The Volokh Conspiracy

American University Muslim chaplain and anti-Semitic, anti-Christian, and anti-Shi'a books: The Eagle, the American University student newspaper, reports:

AU's Muslim Chaplain Fadel Soliman, who is also the director of World Assembly of Muslim Youth (WAMY) International, which has published and distributed a handful of anti-Christian, anti-Semitic and anti-Shi'a Muslim books, said he made at least one of the books available to students curious about other religions.

Soliman said he does not teach from these books, as he focuses his teaching on Islam, though he acknowledges using them as a resource, as they are an encyclopedia of religions.

Until a week ago, The Eagle had two of Soliman's books published by WAMY in its possession. Entitled "A Handy Encyclopedia of Religions and Sects," the book was called "a tract of anti-Semitism comparable to the Protocols of the Elders of Zion (an infamous fabrication)" in the 9-11 Commission.

The encyclopedia was written by Dr. Maneh al-Johani, . . . the [late] secretary-general of WAMY . . . .

Soliman was asked why a chapter titled "Judaism and its Branches," which is in Arabic, included Freemasonry in a Feb. 28 interview. Soliman acknowledged that he put marks on the first page and subsequent pages, but didn't answer the question. . . .

In a phone interview before the page was professionally translated, Soliman said he thought the writing in the book was a good introduction to other religions and that he has used the book as a tool for students in the past and would recommend the book to students interested in other religions.

Inlingua, a translation service with offices in Maryland and Virginia, translated the first two pages of the chapter.

Inlingua translated the first part of the first paragraph as, "The religion ushered in by Moses is pure monotheism. After [King] Solomon, the followers of this religion distorted it, giving rise to Judaism. The acts of the Jews became filled with shameful things and sinful behavior. They became overcome with materialism. They came to view economic hegemony over the world as the only basis for the sovereignty of the Jewish race. They therefore fought with the entire world. They spread moral decay in the world. They supported oppression. They hallowed aggression. They distorted religion."

In a third interview at a rally in support of him, Soliman was shown the inlingua translation of the first page in person and was asked to comment on it. While he said he would have to study the first paragraph more, he asserted that the second paragraph was "scientific." The second paragraph includes the line, "Some [Jews] entered Islam to plot its downfall and to light the fire of discord within it."

The second page of the translation implicates the Lions, Zionism, Freemasons and the International Rotary as complicit in a Jewish conspiracy to "corrupt and tightly control the world."

In response to the full inlingua translation of both pages, Soliman wrote in an e-mail, "I assure you that I do not agree with most of what you sent as translation of selected parts from the Encyclopedia. I was a member of the interact myself, my wife was a member of the Rotaract, my father was a Rotary member till he died and my mother attends regularly the meetings of the Lions. My best friend in school was a Jew." . . .

According to Soliman, WAMY is the largest Muslim youth charity in the world and has done humanitarian work all over the world, in addition to setting up youth camps in the United States. . . .

Ali al-Ahmed, a Saudi Arabian man who is the executive director of the Saudi Institute, said in an interview in March that WAMY is not only anti-Semitic, but also anti-Shi'a and anti-Jesuit.

The Saudi Institute describes itself as a "private, nonprofit, nonpartisan" organization that "inspires and facilitates the development of transparency and civic society in the Kingdom of Saudi Arabia."

Ahmed said Soliman's book, as well as other WAMY publications, contains even more offensive tracts. According to Ahmed, some WAMY books also say "Shi'a Muslims are actually Jews, founded by a Yemeni Jew" and "Jesuits recruit widowed women and convince their daughters to sell their bodies to raise money for the Jesuits." . . .

In an e-mail, Soliman wrote that he met Ahmed and they talked about an anti-Shi'a WAMY book. In his words, "[Ahmed] told me about a controversial book that we have about the Shiaa, I read the book and took a decision at once to ban it, then I sent to WAMY in Saudi Arabia, they read the book and within 10 days they banned it and stopped its circulation all over the world for the exaggerations that it continued." . . .

In response to questions about WAMY and Soliman, Gary Wright, assistant vice president of the Office of Campus Life, said, "my interpretation as an administrator is that we make our judgments based on criteria that we admit students, hire faculty and staff."

Wright also said that the MSA said the Encyclopedia has not been distributed to their knowledge and that "by his actions, [Soliman] has been honorable." He went on to say that the chaplains in the ministry must "sign a form that says they will educate and respect the community" and that "we feel that he has honored the requirements." . . .

Should the location of the detainees matter? Jacob Levy asks me this. My tentative answer is that I don't think this should matter that much -- to me, the important questions are whether the detainees are U.S. citizens, and whether they were detained in military operations in a theatre of combat. If both are satisfied, then I think there's a strong case for leaving this to military and executive determination, not to civilian judicial determination.

Nonetheless, historically the place of detention has seemed to be important (as Johnson v. Eisentrager stressed), possibly because of the historical understanding of the territorial jurisdiction of the courts to which a habeas petition was presented. As a matter of first principles, one might reject this distinction. But there is something to be said for sticking to precedent, especially when the results it reaches are pretty workable. So if the Court follows the Johnson v. Eisentrager line, and limits the unavailability of habeas to cases where people are detained on foreign soil (not just soil that's under foreign control -- Eisentrager involved a U.S. military base in occupied Germany, which surely was under American control), I won't be particularly bothered.

Guantanamo: A question for Eugene:

It looks to me as if your (persuasive) argument about unlawful combatant detainees doesn't turn at any point on the status of Guantanamo Bay as a place. That is, if I've read your argument correctly it would be legal (or, which might be different, unreviewable by U.S. civilian courts) to hold the detainees on what is uncontroverisally U.S. soil, just as it's legal to so hold POWs.

Is that right? I would, and I'm sure Conspiracy readers would, appreciate reading your views on the separate issue of Guantanamo's status and how if at all that status is relevant. I'm not following the case closely. But from press reports it appears that the Administration thinks something important turns on Guantanamo's very odd extraterritorial status. I find that worrisome, in a way that the argument you're making is not. You're suggesting that the detentions are legally valid. The Administration seems to be arguing that they're legally invisible, because there is no legal system that has both de jure and de facto jurisdiction over the territory of Guantanamo. There's a difference...

Political Science Moves to SSRN Model: There has been intermittent commentary in the blogosphere about how much we political scientists envied the availability of online resources like SSRN for pre-prints, working papers, and so on.

A group of political science associations have launched www.politicalscience.org, which is starting off as a searchable database of conference papers but which is supposed to expand into a preprint and working paper site as well. Even the unification of the conference papers is a significant improvement on the status quo ante, and the addition of preprints will make it more valuable still.

Amicus curiae briefs: My friend and colleague Stuart Banner just came out with an excellent short article called The Myth of the Neutral Amicus: American Courts and Their Friends, 1790-1890, 20 Constitutional Commentary 111 (2003). I found it quite enlightening and asked him for permission to post his Introduction; he kindly said yes, so here it is:

An amicus curiae ("friend of the court") is, in modern American practice, a non-party to a case who nevertheless has a strong enough interest in the case's outcome to file a brief. Common amici include the federal and state governments, ideological organizations like American Civil Liberties Union or the Washington Legal Foundation, commercial groups like the Chamber of Commerce or the AFL-CIO -- in short, anyone with a stake in influencing the content of judge-made law. The name amicus curiae is generally acknowledged as something of a misnomer, in that very few amici intend primarily to help the court. Virtually every amicus hopes instead to advance its own interest by helping one party or the other win the case. This mismatch between name and function is embodied, for example, in court rules that typically require amici to identify the party to the case on whose behalf they wish to argue.

The misnomer is conventionally understood to be a vestige of a time when amici actually did render disinterested advice, for the purpose of helping the court rather than one of the parties. The original role of an amicus, on this view, was that of a neutral bystander, someone without a stake in the outcome of a case, who offered information to the court gratuitously, just to help the court avoid error. The function of an amicus has changed, the story goes, but the name has not. This understanding of the amicus's history traces back to a 1963 Yale Law Journal article by the political scientist Samuel Krislov, who located the supposed "shift from neutrality to advocacy" in the nineteenth century. Krislov's conclusion has been repeated many times since.

In recent years, many courts have even relied on this supposed history to refuse to permit interested non-parties to file amicus briefs, on the theory that only the disinterested are eligible to become amici. As one federal district judge reasoned in 1999, it would be improper to allow a non-party to participate as an amicus where the non-party "has a specific pecuniary interest in the defendant's perspective," or where the non-party "makes no attempt to present itself as a neutral party."

To put the history of the amicus this way, however, only raises further questions, questions that to my knowledge have not been raised previously. Who exactly were these neutral amici in the early nineteenth-century United States? Why were they offering disinterested help to judges? Was there really a time when gratuitous public-spirited legal advice was more plentiful than it is today?

We might approach these questions with some skepticism about the conventional story of a transformation from neutral to partisan amici, because the story fits so perfectly into a common but unrealistically nostalgic version of the history of American legal practice. If one believes that the law was once a noble profession, staffed by officers of the court rather than mere advocates, and if one thinks of American lawyers as having gradually degenerated into paid mouthpieces for their clients, then one can readily believe that the institution of the amicus curiae has undergone the same decline. But if one considers the American lawyers of today no more or less venal than ever, the assumed change in the function of the amicus curiae becomes a puzzle.

There is a second reason for revisiting the issue. Krislov wrote in the early 1960s, before the existence of computerized legal research, so he had no easy way of counting cases. He drew his conclusion from a very small sample, a sample that nevertheless included cases clearly at odds with the point he was trying to prove. Today, with the benefit of an enormous word-searchable database of court opinions, we can do better.

In this paper I accordingly investigate the role of the amicus curiae in early American practice. The paper concludes that:
There was never a time in American practice when an amicus was only allowed to offer neutral advice. Some amici were partisan even in the early 19th century.
Neutral amici were slightly more common than partisan amici through the 1820s. Beginning in the 1830s, however, partisan amici seeking to advance the interests of their clients became much more common than neutral amici, and remained so through 1890, the study's endpoint.
Before the 1870s most neutral amici did not file written submissions. Neutral amici were almost always lawyers who happened to be present in court, watching the oral argument of a case in which they were not involved, and their advice was given orally and spontaneously.
The change in the middle decades of the 19th century, to amici that were much more likely to be representing the interests of a client than offering distinterested advice, was most likely caused by the shift from an oral to a written practice, not by any loss of neutrality on the part of lawyers.
These conclusions are at odds with the conventional understanding of the history of the amicus curiae.

But what if we were doing something really, really bad? Some people ask -- but what if we were doing something really, really bad to the Guantanamo detainees, or for that matter to Nazi or Japanese soldiers taken prisoner in World War II? Or, which is what the question amounts to, what if there were charges that we were doing something really, really bad: Torturing them (or, if you think that torture is sometimes permissible, torturing them just out of sadistic motives), or killing them on a whim, or the like. Shouldn't civilian courts get involved then?

     I think the answer is no, just like civilian courts ought not get involved when we do bad things in war to non-prisoners -- for instance, when we kill innocent civilians in misguided bombing campaigns. There are lots of awful things that the government may try to do to foreign nationals in foreign lands as part of a war effort. Some are necessary and some are not, some are proper and some are not, some are downright evil.

     But not every evil is properly remedied through civilian courts. That's been the traditional view throughout American history, that's likely the original understanding of the Constitution, and it seems to me that it's the most practically effective approach. Certainly we shouldn't mistreat prisoners, or unnecessarily bomb innocent civilians. I think, though, that the remedy for that should be through the executive branch (or possibly in some measure through Congress), as influenced by American citizens, and in some situations as influenced by the views of other countries (views to which the executive should quite properly listen to, though of course not always defer to). Historically, for instance, other countries have advocated on behalf of their citizens who are detained as wartime captives -- as has been apparently the case for some of the Guantanamo detainees.

     Civilian courts are good, though expensive, ways to resolve civilian disputes. They embody lots of protections aimed at keeping the government from entrenching itself in power at the expense of domestic dissenters. They are set up to err on the side of protecting liberty, since in most domestic law enforcement situations that's the right direction to err in. They enforce a Bill of Rights that has been developed through the experience of domestic law enforcement.

     But our reliance on civilian courts as a way of dealing with civilian problems doesn't mean that civilian courts must be the ultimate means for dealing with all problems generally, or even all problems that involve risk to innocent people's lives and liberties. The traditional practice has been to leave the authority -- and the responsibility -- for dealing with military matters, including military detentions, to the President, as constrained in some measure by Congress. On balance, I think it is best to leave it there, and to check that authority through the means of publicity and public pressure (both foreign and domestic), rather than by bringing in federal judges.

Guantanamo: My colleague Kal Raustiala writes:

Saw your blog query:

[W]hat if every criminal defendant in the US refused to plead out and demanded a trial[?] Is there a constitutional difference between this scenario and your "many prisoners in a war situation" scenario? Both would wildly overload the system. Is there a reason you see for permitting trials in the former case (even though aggregation would collapse the system) but not permitting habeas in the latter (same)?

Another correspondent asked something similar.

     I think this does shed light on a key question here. As I understand Kal's argument, presumably the U.S. would have to invest the time, manpower, and money -- including the time of soldiers who would be distracted from their military duties by having to provide information for the habeas hearings -- for tens of thousands of detainees taken captive in some future large military conflict. That's the price of justice, the theory would go; we need to pay it.

     And that's true if the obligations imposed by the Constitution apply equally, or even nearly equally, to (1) American citizens (or invitees of the American government) arrested for civilian crimes, and (2) foreigners captured on foreign battlefields and thought to be fighting in a war against America. (There are intermediate categories between the two, such as illegal aliens arrested in the U.S. for civilian crimes, who are generally given constitutional protection, U.S. citizens captured on foreign battles fighting against us, and so on, but for now let me stick to the polar extremes, which are actually quite common, and which are what this case is largely about.)

     But I don't think that's so. Our Constitution has never been understood as making it so. Making it so would potentially hugely burden our ability to fight wars; and, no, I don't think that protecting the interests of foreign soldiers who we think are enemy combatants justifies interpreting the Constitution otherwise.

     The relevant Bill of Rights protections that we have come from the Anglo-American experience of civilian law enforcement. They do impose serious burdens on the government, but the fact that these burdens are acceptable for civilian law enforcement doesn't mean that they are acceptable when fighting a war, and dealing with non-citizens who were captured outside the U.S. on foreign battlefields, and who are thought to have been trying to defeat us.

     Johnson v. Eisentrager (1950), the leading precedent in this field, got it right, I believe:

If the Fifth Amendment confers its rights on all the world except Americans engaged in defending it [a reference to the fact that soldiers are generally governed by military justice, with no real recourse to civilian courts], the same must be true of the companion civil-rights Amendments, for none of them is limited by its express terms, territorially or as to persons. Such a construction would mean that during military occupation irreconcilable enemy elements, guerrilla fighters, and "werewolves" could require the American Judiciary to assure them freedoms of speech, press, and assembly as in the First Amendment, right to bear arms as in the Second, security against "unreasonable" searches and seizures as in the Fourth, as well as rights to jury trial as in the Fifth and Sixth Amendments.

Such extraterritorial application of organic law would have been so significant an innovation in the practice of governments that, if intended or apprehended, it could scarcely have failed to excite contemporary comment. Not one word can be cited. No decision of this Court supports such a view. None of the learned commentators on our Constitution has even hinted at it. . . .

As a matter of constitutional history and military need, enemy soldiers have long been treated by military justice and military detention, with virtually no intervention by civilian courts. It is a harsh system, as is the system of shooting and trying to kill them (with no trial, arrest warrant, or anything else) before they're taken captive. But I don't think the Constitution commands any other system.

More on Guantanamo, from Ann Althouse.

Detainees and unlawful combatants vs. POWs: My post about Guantanamo brought several messages about this perennial issue. Some complained that the Administration is trying to have it both ways by coming up with some novel category of non-POW detainees. Others didn't complain about the Administration's actions as such, but simply suggested that the courts could come up with a dividing line for habeas purposes -- POWs don't get habeas review, detainees do. Such a line, they pointed out, would reduce the burden on the court system to manageable limits, since the great majority of the hundreds of thousands of enemy soldiers that would be detained during a major war would be POWs.

     I've blogged about this general question before, but it seems worth mentioning again; so here are a few thoughts.

     1. There's nothing at all novel about the concept of an enemy detainee who isn't a POW. To the best of my knowledge, the practice of civilized nations has long recognized that there are two categories of wartime military captives. The first involves (more or less) soldiers who were fighting in uniform within organized command structures; these are generally seen as being entitled to "prisoner of war" status, which means (a) humane treatment, (b) limits on certain kinds of interrogations, and (c) immunity from being tried for actions that consist of "lawful warfare," e.g., shooting at our soldiers (while fighting in uniform within organized command structures). Usually shooting at a U.S. soldier is murder or attempted murder, and voluntarily being part of a group that goes to shoot at a U.S. soldier is conspiracy to commit murder. But if you're doing it while fighting in uniform within organized command structures, you get immunity from that sort of punishment -- though you may still be detained as a POW for the duration of the war, and in some measure beyond the cessation of hostilities.

     The second category, which I stress again has long been recognized by "the laws of war" -- in America, it dates back to the Revolutionary War, as the Supreme Court recognized in Ex parte Quirin -- is that of unlawful combatants. The quintessential examples are spies and saboteurs, but more generally it also includes soldiers who do not fight in uniform within organized command structures. Unlawful combatants are generally not protected in the ways I describe above; they have many fewer rights (I speak here of rights under international conventions and conventional practice) than lawful POWs. In particular, unlawful combatants may be tried and often executed for their unlawful conduct; they don't have the "lawful combatant" immunity from murder laws, for example.

     "Enemy detainees" is a good term to cover both categories, both POWs and unlawful combatants; though since POWs have a familiar name (POWs), "detainees" has often been used during this conflict to refer specifically to unlawful combatants. So the Administration's conduct is amply precedented, and generally consistent with American (and, to my knowledge, world) military traditions and "the laws of war." It's possible that the Administration has erred in classifying some detainees as unlawful combatants rather than POWs; and there's debate about whether it has complied with some of its duties under the Geneva Convention to provide a "competent tribunal" (a military tribunal, mind you, not a civilian one) for determining whether those detainees about whose status there's a legitimate dispute are entitled to POW status. But that's a matter of implementing the unlawful combatant vs. POW distinction. The distinction itself is very well accepted.

     2. This also suggests, I think, that it doesn't make much sense for purposes of American constitutional law, or the American law of habeas corpus, to provide habeas to unlawful combatants but not to POWs. The distinction is a matter of miiltary practice and treaty law, not of U.S. constitutional law. What's more, it doesn't make a huge deal of sense. Unlawful combatants and POWs are both deprived of their liberty by U.S. forces. Both can claim that they really weren't enemy soldiers, but were caught by mistake. If anything, the detainees who are detained on the grounds that they are thought to be unlawful combatants are likely to be more dangeorus than the POWs.

     The conditions of confinement might be somewhat different, especially as to the degree of interrogation to which the detainees are being subjected. (The U.S. has agreed to provide humane treatment to the detainees -- consistently, of course, with the need to maintain security -- so that potential difference between unlawful combatants and POWs doesn't much come into play.) But I don't see why this distinction should make a difference to deciding who's entitled to habeas and who isn't, especially since this distinction has historically been an artifact of treaty law and traditional military practice, not a matter of domestic constitutional obligation. More broadly, the historical U.S. constitutional practice has long been to treat all detainees alike for purposes of U.S. constitutional law.

     3. Now there is of course one important potential difference, which I alluded to in the first item. Once an unlawful combatant is tried and convicted for his unlawful actions, then he does stand in a different position from the POWs: He's not just being detained as a prophylactic measure for the duration of hostilities (however long that might take), but he's being imprisoned for a longer time as a punishment, or even being executed. At that point, there's a more credible case for civilian court review. I think it's probably still pretty weak, for various reasons. But he can no longer be squarely analogized to the bulk of other detainees.

     But none of the Guantanamo detainees has been tried yet on those grounds. Perhaps most won't be. Nor is there any obligation -- certainly no obligation under U.S. constitutional law, but I think not even under international treaties -- to try the unlawful combatants immediately, or within some time of their detention. Since even perfectly lawful combatants may be detained indefinitely, without trial, unlawful combatants may likewise be detained indefinitely, until their trial (or until the government decides, as it may wish to, to release them or reclassify them as lawful combatants).

     The current litigation thus isn't challenging punitive detention or execution, which hasn't taken place. Rather, it's challenging prophylactic detention -- the very sort of thing that was indeed done to German and Japanese soldiers captured during World War II. And, for the reasons I mentioned above, there's no reason in the U.S. Constitution or U.S. habeas corpus law for treating challenges to detention filed by alleged unlawful combatants more favorably than similar challenges filed by lawful combatants.

Failed Gorelick Defense: The Washington Post tried to defend Jamie Gorelick against "Mr. Ashcroft's Smear," but fails. While the Post pretends that Ms. Gorelick's 1995 memo, and the subsequent guidelines, did not erect a "wall" between intelligence and law enforcement, it misses the larger point. At issue is not whether Ms. Gorelick played a postive or negative role in the Justice Department's pre-9/11 anti-terrorism efforts. Rather, as I explained here, at issue is the fact that she was intimately involved in the develoment and implementation of policy decisions that affected law enforcement's ability to detect and prevent terrorist attacks. If there is a genuine dispute between Ms. Gorelick and Mr. Ashcroft over the extent to which this "wall" was required by the Foreign Intelligence Surveillence Act and various court opinions, that dispute should be aired in front of the Commission, not between a witness and a purportedly disinterested Commissioner.

Perhaps, as the Post suggests, Gorelick's critics should have called for her recusal sooner. Perhaps. But us civilian types had no way of knowing precisely how involved she was in developing Justice Dpeartment policy during the Clinton Administration until now. Indeed, I saw no reason to for her withdrawl or recusal until after the memo was declissified by Ashcroft and Gorelick took to the Post's editorial page in her own defense. Perhaps those at Justice who were aware of her role should have suggested she was an inapprorpiate choice to be on the Commission, but imagine the Post's reaction had John Ashcroft complained about the Gorelick choice. The person in the best position to assess the appropriateness of her serving on the Commission was Gorelick herself, and she simply made the wrong call.

Andrew McCarthy also comments on the Post's editorial. Among other things, he notes that the Post misrepresents the history of the "wall" and the role of Ms. Gorelick's memo and the subsequent guidelines that she helped develop. Contrary to the impression Gorelick and the Post have tried to create:

Gorelick's March 1995 memo is highly relevant to unfolding the thought process that generated intelligence lapse, the key issue being probed by the 9/11 Commission. In it, Gorelick explicitly asserted that the precautionary measures she sought to install, which ultimately became the wall, "go beyond what is legally required...[to] prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation" (Emphasis added).

In the end, however, McCarthy returns to the central point: Whatever one's view of Ms. Gorelick's actions while at Justice -- and McCarthy defends Gorelick's policy decisions on several fronts -- she is simply the wrong woman for the job.

Under the circumstances as they exist, we can have either of two things: (a) nine commissioners, access to all essential witnesses, and no interested witness shaping the commission's findings; or (b) ten commissioners, no access to a pivotal witness, and the commission's hearings and final report tainted by a self-interested participant who even now is making public, unsworn allegations. No matter how we have traveled to this point, that is not a difficult choice.

Metro: Fixed Rail Versus Buses: Against my better judgment (given what I think is an overheated real estate market), I am househunting in Arlington, Virginia. Houses that are walking distance to the Metro are attracting the most speculative fervor, with traffic jams forming at open houses. So, I started researching which neighborhoods were in what I assumed were on less desireable express bus routes. I figured that with the Orange Line already overcrowded, and no money for new trains in sight, express buses would become more popular, and houses near express bus routes would become more desireable. Guess what? There is only a single express Metrobus route that runs through Arlington to D.C. One. And it doesn't run along the most logical route, which would be Arlington Blvd., a broad avenue with plenty of bus stops which bisects Arlington into north and south. And it only goes into D.C. as far as Fourteenth Street, N.W., avoiding most government agencies and the Capitol.

Every other bus route, express or otherwise, goes either to an Arlington metro station or the Pentagon (in Arlington and itself a metro station). I take it that the bus routes were created when Metro trains were still relatively new and hurting for customers, and the idea was to feed them with the buses. Now, the Orange line is straining its capacity, and large sections of Arlington live within walking distance of perfectly sensible express bus routes (Arlington Blvd., Columbia Pike), but not Metrorail. The obvious sensible solution would be to invest in some express buses. I don't know if this in on the table, or if the powers-that-be in Arlington are just too wedded to the longstanding vision that all must worship exclusively at the altar of the Orange line. Any Arlington politics mavens out there who know what's going on?

About to be on the Michael Reagan Show, criticizing the proposed Victims' Rights Amendment.

Litigation as a military tactic: Here's the question I ask people who think that the Guantanamo detainees have a right to petition civilian courts for habeas corpus.

Let's say that we weren't dealing with several hundred detainees, but with tens or hundreds of thousands, as was the case during World War II. If one of them has the right to petition for habeas corpus, then all the others would, too (since the habeas claims, such as "I'm not really an enemy soldier," would involve different facts for each person). Courts would have an obligation to consider each petition. Presumably the government would have an obligation to respond to the factual allegations (unless the factual allegations are clearly insufficient). Since each case would focus so closely on the factual claims, it wouldn't be enough for government lawyers to submit boilerplate responses -- they'd have to also interview soldiers (some of whom might still be out in the field) who can testify to the circumstances of the person's capture.

What's more, presumably many, perhaps most, detainees would feel some interest in trying to stymie our continuing war effort, or even an obligation to try to stymie it. So we might well find tens of thousands of habeas petitions, with the general form prepared by volunteer lawyers, and with the specific details written down in each petition by the detainee or the detainee's friends. If Nazi and Japanese soldiers detained by the U.S. government filed such petitions en masse, for instance in 1944, what should our courts have done?

Save the Planets: Today's Slate Explainer answers the question: "Who's Our Planetary Protection Officer? And what the heck does he do?" Cool.

"Fucking Brilliant" Regulatory Strategy: Until Janet Jackson's breast appeared for .7 seconds (an FCC friend tells me that FCC staffers watched it dozens of times to count the number of frames containing an image of her breast), FCC penalties for broadcast indecency were rare and relatively small. Only three fines since 1999 were greater than $50,000. The fifth-highest fine since 1999, for instance, was $27,500 levied against a station hosting the performers of "Puppetry of the Penis" because, in the words of the FCC, "one of the performers exposed his penis while preparing to demonstrate `genital origami.'"

Indeed, in the Janet Jackson hearings Senators' and Representatives' main complaints were that the FCC found so few things actionably indecent; that the maximum monetary penalty under the statute was only $27,500 for each violation; and that the FCC had never revoked a license because of broadcast indecency.

Now that is changing. The House has passed legislation that increases the maximum monetary penalty to $500,000 for each violation and that provides for revoking the license of broadcasters who are penalized three times. Other legislation would (to the delight of George Carlin) define the statutory term "profane" to include any form of eight objectionable words. The FCC, meanwhile, has reversed an earlier ruling and announced that Bono's statement upon receiving a Golden Globe award that "this is really, really fucking brilliant" was subject to penalty because it was indecent and profane. This determination greatly expands the scope of "indecent" - the FCC had limited indecency to language that "describes or depicts sexual or excretory organs or activities," which Bono's usage did not do. And it gives an entirely new meaning to "profane," which the FCC had limited to blasphemy (and did not use as the basis for penalties).

The bottom line for broadcasters is that they are much more likely to be penalized, and that the penalties will probably be more severe - and as a result a judicial challenge is more likely.

In recent years broadcasters have refrained from bringing judicial challenges to the regulation of broadcast indecency precisely because the fines were small, and rare, enough that broadcasters decided it was not worth the costs of antagonizing the FCC and Congress. Now, with heavy fines (and maybe even license revocation) on the line, broadcasters are more likely to do so. Indeed, that process began yesterday, when both NBC and a coalition of media groups filed petitions asking the FCC to reverse its decision. It looks like those groups are girding for a judicial challenge to the indecency regulations.

This is significant, because the Supreme Court probably would - and in my view should - find these indecency regulations unconstitutional. With respect to newspapers and magazines, telephones, and cable television, the Supreme Court has held that the government may not reduce the adult population to viewing only what is fit for children. As the Supreme Court noted in the 2000 Playboy case on cable indecency, a core principle of the First Amendment is that "The citizen is entitled to seek out or reject certain ideas or influences without Government influence or control."

Broadcast has been the glaring exception in the Supreme Court's jurisprudence, but its special status is no longer tenable. The Court ruled, 5-4, in the 1978 Pacifica case that broadcast indecency could be penalized because broadcasting is uniquely pervasive and uniquely accessible to children. The problem is that broadcasting no longer has that distinction Broadcast's pervasiveness and accessibility are not significantly different from, for example, cable television. Indeed, for the 88 percent of television households who use cable or satellite, a broadcaster is just another cable station. It further bears noting that the V-Chip embedded in television sets allows parents to choose what sorts of material they want to block (if they so desire), giving them control over what their children see and further undermining the case for state regulation.

The bottom line is that the government's new regulatory aggressiveness is likely to produce judicial review of such regulation - which review will likely invalidate the regulation on First Amendment grounds.

Might some FCC Commissioners and Members of Congress have supported this new regulation regime because they secretly wanted to bring about the demise of broadcast indecency regulation? I don't know, but I believe that their actions - prompted by the fleeting image of Janet Jackson's breast - will probably hasten that demise.

How Appealing: Howard Bashman's blog, How Appealing -- which has quickly become the leading U.S. source of hot legal news about interesting recent cases -- is now here, hosted by Legal Affairs. If you're a lawyer, a law student, or a legal academic and you haven't seen it, be sure to check it out.

Why don't bloggers get many review copies? Co-blogger David (immediately below) raises the question of why bloggers don't get many review copies of books. In part some publishing houses may think of blogs and the Internet as threats, rightly or wrongly. They prefer not to think about us, and they prefer not to have to tell their bosses: "These are interesting outlets, we should invest resources in courting them." Just think how long it took the major music companies to get serious about on-line music.

A second issue concerns readers. Do blogs really help book sales? I suspect many of our readers look at blogs in lieu of reading books. We bloggers are a kind of guilty pleasure. We offer the aura of being intellectual, yet in bite-size bits. And if you read about a book on a blog, you may think you don't need to read the book. If I think about myself, I now read more blogs and (slightly) fewer books as a result. You can tell all the stories you want about complementary uses of books and blogs, but at some margins differing activities are likely to be substitutes.

The leading blogs don't focus on books per se; nor do they offer traditional book reviews. And of course you can't link to (most) books the way you can to (some) newspapers and magazines. The Clarke book, the Woodward book and other "political" books get huge play in the blogosphere. They provide a kind of common language for our debates about the issues. But readers care about the issues and personalities most of all. I'll admit that I have used blogs as a substitute for reading (and buying) these books. I've also noticed how frequently neophyte bloggers will simply mention a new book as "interesting" and think they have given their audiences something. In reality most readers don't find this of value. They would like to learn about the substance of the book. So blogs definitely make books more famous and more important. I am less sure how much they boost book sales.

I remain optimistic about the future of the book. And if major presses send me review copies, there is a good chance I will cite them in my blog posts. But I am not expecting a flood to start arriving in the mail.

The Publishing Industry and Blogs (They Don't Get it, Yet): I find it a bit odd that I've been blogging for the VC for almost a year but have not made it on to any publisher's review copy lists. The VC has a "circulation" of over ten thousand readers a day, many of whom, judging by my email, are professors, attorneys, or law students. That's a lot higher circulation than many of the obscure journals to which at least academic publishers routinely send review copies. And given how often I blog, a book of interest would have a reasonable chance of receiving mention.

So, a smart university press (or even trade press) would put me on their list for review copies of law books, or at least some subset of law books, such as legal history, constitutional law, and law and science, especially because their competitors aren't doing so yet. I'm not at all offended by the lack of attention, nor am I in any need of free books. I just find it interesting that book publishers have been so slow to recognize a new medium through which they can publicize their wares. Or are many other bloggers, perhaps those who aren't on group blogs, being flooded with books?

Republican and Democratic brains: I've been waiting for researchers to do MRI scans on people when they vote or look at political ads. The New York Times reports on precisely this latter experiment:

"The researchers had already zeroed in on those [9-11 and war] images and their effect among Democrats on the part of the brain that responds to threats and danger, the amygdala. Mr. Graham, like other Democrats tested so far, reacted to the Sept. 11 images with noticeably more activity in the amygdala than did the Republicans, said the lead researcher, Marco Iacoboni, an associate professor at the U.C.L.A. Neuropsychiatric Institute who directs a laboratory at the Ahmanson Lovelace Brain Mapping Center there.

"The first interpretation that occurred to me," Professor Iacoboni said, "is that the Democrats see the 9/11 issue as a good way for Bush to get re-elected, and they experience that as a threat."

But then the researchers noted that same spike in amygdala activity when the Democrats watched the nuclear explosion in the "Daisy" spot, which promoted a Democrat.

Mr. Freedman suggested another interpretation based on his political experience: the theory that Democrats are generally more alarmed by any use of force than Republicans are. For now, Professor Iacoboni leans toward this second interpretation, though he is withholding judgment until the experiment is over."

Here is another interesting result:

"At the start of the session, when they look at photographs of Mr. Bush, Mr. Kerry and Ralph Nader, subjects from both parties tend to show emotional reactions to all the candidates, indicated in the ventromedial prefrontal cortex, an area of the brain associated with reflexive reactions.

But then, after the Bush campaign commercial is shown, the subjects respond in a partisan fashion when the photographs are shown again. They still respond emotionally to the candidate of their party, but when they see the other party's candidate, there is more activity in the rational part of the brain, the dorsolateral prefrontal cortex. "It seems as if they're really identifying with their own candidate, whereas when they see the opponent, they're using their rational apparatus to argue against him," Professor Iacoboni said."

All these results are on eleven data points; arguably the Times reporting is premature. But if you are looking for a cutting edge in modern social science, this would be one of my picks.

The Confusion: The Slithery D writes:

You wouldn't know it from the unprecedented silence of the boys at the Conspiracy, but the Confusion, book 2 of the Baroque Cycle, appeared in book stores last week.

Well, one reason I haven't been blogging much is precisely that I've been busy reading The Confusion. I thought Cryptonomicon was fantastic, one of the best novels I've read in many years. I thought Quicksilver was good, but not nearly as good as Cryptonomicon. So far (I'm about 60% into the book), The Confusion seems excellent.

Oklahoma State University faculty council approves speech code: The Daily O'Collegian reports that the OSU faculty council approved a speech code banning, under the rubric of "racial or ethnic harassment," any acts "hostile toward the dignity of an individual, carried out on grounds related to race, color, ethnicity or national origin," or that "unreasonably interfere[] with the work or academic performance of those of a particular race, color, ethnicity or national origin." The policy makes clear that this isn't just limited to face-to-face insults -- "print and electronic harassment that interferes with the participation of the targeted population in the life of the university" also appares to be explicitly included. And "All forms of racial or ethnic harassment, including unintentional interference in educational activities and opportunities of racial and ethnic minorities, will be dealt with in a serious manner." (I'm trying to track down the text of the policy, but haven't gotten it yet, so I'm going on what the article said.)

     Now I'm surely not in favor of acts "hostile toward the dignity of an individual" as I understand them. But I equally surely wouldn't want the speech of students subjected to such a vague, broad prohibition. What if someone writes a newspaper article harshly criticizing a black student leader, partly because he's seen as working against the interest of black students? That would be carried out on grounds related to race; someone might say that it's "hostile toward the dignity" of the person; and someone might say it "interferes with the participation of the [person] in the life of the university" (for instance, because the statement either seriously offends the person, or diminishes his prestige, or persuades people not to reelect him to some office).

     Or what if someone writes a newspaper article arguing that white faculty members generally aren't attentive enough to racial issues -- and some faculty members argue that this "unreasonably interferes with the work . . . performance of [white professors]," because it leads black students to be hostile to them, and thus makes it harder for the professors to do their job? Or what if the same happens in reverse, with someone criticizing black faculty members in some department as being too focused on racial matters?

     The speech code seems to me quite clearly unconstitutional, both because of its breadth (since it appears to cover even fully constitutionally protected speech, and not just unprotected fighting words or threats or other kinds of speech that might be more easily restrictable) and its vagueness. But it looks like it'll be there at OSU (since it sounds like it's well on the way to being finally enacted), hanging over students -- many of whom don't want to become the new First Amendment test cases -- until someone sues to get it struck down.

U.S. v. Lara: The most exciting passage in the opinion Eugene blogs below is, as far as I'm concerned, in Thomas' concurrence.

"I cannot agree that the Indian Commerce Clause "provide[s] Congress with plenary power to legislate in the field of Indian affairs." At one time, the implausibility of this assertion at least troubled the Court, see, e.g., U.S. v. Kagama (considering such a construction of the Indian Commerce Clause to be "very strained") and I would be willing to revisit the question. [citations omitted]

Souter, in a separate dissent, criticizes Thomas for being willing to ignore on-topic Indian law rpecedents. But the precedent on this question is a mess, and I think Thomas is exactly right to see the problem created by a body of law that simultaneously grants Congress unlimited legislative power over every aspect of tribal life and considers tribes to be sovereign bodies. As far as the absurdity of inferring plenary power from the Indian Commerce Clause (especially in light of the Lopez restoration of the meaning of the Interstate Commerce Clause), I was working on notes toward a paper on the problem just this morning. I expected my view to come across as kind of a crank's view, requiring as it does overturning more than a hundred years of precedent interpreting the Indian Commerce Clause. It might still come across as a crank's view, but now the crank keeps company with one lonely Supreme Court justice.

The Supreme Court on the Treaty Power: The President has the "Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur" (U.S. Const., art. II, sec. 2, cl. 2.) The treaties then become the "supreme Law of the Land" (art. VI), and Congress may enact legislation that is necessary and proper for complying with the treaties (art. I, sec. 8). Does this include only those treaties that cover subjects within the federal government's other enumerated powers (for instance, over warmaking, foreign commerce, and the like)? Or does this also include treaties that deal with subjects that would otherwise (but for the Treaty Power) be outside the federal government's powers?

     For instance, the Supreme Court has struck down the Religious Freedom Restoration Act, as applied to the states, on the grounds that it exceeds the federal government's enumerated powers -- if the President signs a treaty mandating all signatories to exempt religious objectors from many generally applicable laws, the Senate ratifies the treaty, and Congress reenacts RFRA to implement the treaty, would that be constitutional? (Some people argue that our human rights treaty obligations already provide an authority for such a statute, but I'm skeptical.)

     The question isn't whether the Treaty Power can trump the Bill of Rights and other individual rights protections can't be trumped by treaty; it's pretty well-established that it can't. Rather, the question is whether it provides an independent source for federal power, or whether it's governed by the article I limitations on federal power as well as by the individual rights limitations.

     The Supreme Court's answer to this, delivered in Missouri v. Holland (1920), is that the Treaty Power is an independent power. A Religious Freedom Restoration Act-enabling treaty could indeed let Congress do what, absent a treaty, it couldn't have done. Nonetheless, people have hotly debated whether this is right, and in recent years there has been some talk that the conservative Justices on the Court, who have tried to in some measure restrain federal power, could overturn or limit Missouri v. Holland.

     Today's decision in United States v. Lara seems to suggest that Chief Justice Rehnquist and Justice O'Connor, at least, continue to endorse Missouri v. Holland. In the course of dealing with a rather different question related to the Indian tribes' inherent powers, the Court gave the Treaty Power as one source of authority for Congress to "legislate in respect to Indian tribes," and in the process said (some citations omitted):

The treaty power does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, "to make Treaties." But, as Justice Holmes pointed out, treaties made pursuant to that power can authorize Congress to deal with "matters" with which otherwise "Congress could not deal." Missouri v. Holland, 252 U. S. 416, 433 (1920); see also L. Henkin, Foreign Affairs and the U. S. Constitution 72 (2d ed. 1996). And for much of the Nation's history, treaties, and legislation made pursuant to those treaties, governed relations between the Federal Government and the Indian tribes.

This was written by Justice Breyer, but Rehnquist and O'Connor joined this section without reservation; and those who didn't join -- Justices Scalia, Kennedy, Souter, and Thomas -- didn't express any opposition, either.

It may well be that if the question is more squarely presented, Rehnquist and O'Connor might take a different view -- but I doubt it, since they were certainly free to express their reservations in this case, and still join the rest of the opinion. And even if Rehnquist and O'Connor retire in the next several years, the fact that these two conservatives, who have long spearheaded the attempt to limit federal power in some measure, endorse Missouri v. Holland suggests that even conservative replacements for them might take a similar view.

My Iraqi update: I don't usually blog on Iraq, if only because I have never been there. Nor do I have any Arabic at all. But lately there has been so much talk about how the war is going. Jacob (below) writes about who has and hasn't changed their minds. Perhaps an outsider's perspective on the whole matter might prove useful.

Here is what I expected before the war started:

1. WMD would be found, and probably used by Iraq during fighting.
2. The whole world would come to America's side.
3. Iraqi reconstruction would be a huge mess.
4. Our administration (indeed any administration) would handle it badly.
5. In Iraq civil war would ensue. Ten to fifteen years later Iraq would end up with a (relatively) stable oligarchy, better than Saddam but hardly ideal.
6. A kind of de facto partition might arise/continue, under the U.S. guise of protecting the Kurds.
7. If we didn't fight the war something worse would happen. I never thought Iraq was a threat to the U.S., but I envisioned a wider Middle Eastern war breaking out, sooner or later. We would intervene later, but on worse terms.
8. The strike would cause some countries to accelerate their nuclear programs, but this would happen anyway. The pace would not so much matter.

Let's do a simple stocktaking. Clearly I was wrong about #1 and #2. So far I am right about #3 and #4. #5 and #6 remain to be seen. In that department things have gone as I had expected. We'll never know that much more about #7, since it is a counterfactual. I will stick with #8 as written.

When it concerns how the war will turn out for the Iraqis, subsequent events haven't caused me to revise my priors much. The war is worse for America's global reputation than I had thought, largely because #1 hasn't kicked in. (That being said, the war has been less bad for American troops than I had expected, for this same reason.) #7 remains a hovering uncertainty, never to be resolved.

When I now wonder whether the war will turn out to be a bad idea, my thoughts go in the following direction. The cost, international backlash, and Quagmire factor will make it harder to do this again. A pre-emptive strike will sometime be necessary, but a succeeding President is more likely to flinch. (Of course this is not certain. If Bush wins handily in November the door might remain open, perhaps too open, for this to happen again.)

The war could conceivably turn out to be worse for the Iraqis too. But nothing I've seen so far has caused me to update my earlier estimates. I was fooled in 1989 about the difficulties of constructing a civil society. Since then I've learned that lesson.

So the key comparison concerns #7, which we probably will never know. Iraqi reconstruction could go very badly, without forcing many of us to change our minds. That being said, we ought to hold great trepidation about our ability to forecast counterfactuals. So no one should be very sure that the war was a good idea, either.

Eternal Sunshine of the Spotless Mind: Saw this movie last week, and thought it was so-so. I very much liked Being John Malkovich, an earlier Kaufman movie; thought Adaptation was interesting but not as good; and thought Eternal Sunshine was pretty weak. The main plot element is creative on its own, but it can't carry the whole movie, which ends up getting pretty boring at times.

Yes, Jim Carrey is quite good in it, but not good enough to keep the movie going. Compare The Truman Show, a very good movie with Carrey in a serious role; there, the creative plot element was supplemented with enough interesting detail and enough character development to make the film work.

Hellboy: Just saw it yesterday, and didn't much like it. I enjoy action movies, and I rather liked Spiderman and X-Men 2, so I'm not against movies based on comics. But this one was pretty disappointing -- formulaic, without much wit or innovative detail to make it fun despite the formula.

Speaking Update: In my earlier post (now corrected), I neglected to mention that I will be speaking on Saturday at 1:00pm in Washington DC at the 2004 NORML Conference, which will be held at The Hamilton Crowne Plaza Hotel. I will mainly be discussing the case of Raich v. Ashcroft that I argued in the Ninth Circuit. You can get information about that case as well as view a nice picture of me with my co-counsels and clients here.

Time for Gorelick to Go: Last week, former federal prosecutor Andrew McCarthy made a strong case that Jamie Gorelick had no place on the 9/11 Commission. Having been appointed and having already participated in the proceedings thus far, whether Gorelick should resign from the Commission altogether, or recuse herself from any consideration of the Justice Department's role (or lack thereof) in the events leading up to the 9/11 attacks, was a judgment call in my mind. Eric Muller, for one, thought a sufficiently broad recusal would be sufficient, and in accordance with the Commission's own policy (as Eugene noted here). To date Gorelick has only recused herself from consideration of her own actions and other measures taken while she was at the Justice Department.)

Until yesterday, I was inclined to agree with Muller. A mid-investigation resignation would have been overkill. But then Ms. Gorelick wrote this op-ed in the Washington Post explaining her decision to remain on the Commission and, more importantly for the recusal question, directly challenging the testimony of a witness who testified before the Commission. Specifically, she claims that Attorney General John Ashcroft's account of the "wall" between law enforcement and anti-terrorism investigations, and the role of her 1995 memo in erecting or clarifying the "wall," was "simply not true." (See Randy's post on the Ashcroft testimony here.) Yet rather than present her case in front of the commission, in public and under oath (a la Ashcroft, Rice, et al.), she is doing so in the national media while she remains a member of the Commission.

Re-enter Andrew McCarthy who, it is worth noting, was the assistant U.S. attorney who led the 1995 prosecution of Sheikh Omar Abdel Rahman for terror-related activities. Today McCarthy has another article explaining in detail that Gorelick's op-ed misrepresents her own 1995 memo and, more importantly, buttresses the case against her place on the 9/11 Commission. Among other things, McCarthy notes that were Gorelick herself not on the Commission, there is no question that she would have been subpoenaed to testify about her memorandum. Instead, she is questioning witnesses, participating in the deliberations, and -- on the Washington Post editorial page -- attacking the testimony of Commission witnesses in an effort to defend her own role in the pre-9/11 intelligence lapses. After this performance, her continued presence on the Commission can only undermine its credibility and appearance of independence. It is time for Gorelick to go.

UPDATE: Old Benjamin at Advisory Opinion has similar thoughts -- and reports on evidence the hole Gorelick has dug for herself is even deeper than I thought (see the first update).

Credit to Ashcroft Where It's Due: According to this Newsweek story, high-ranking Bush Administration officials, most prominently Cheney and Rumsfeld, have argued for stripping Americans suspected of aiding Al Qaeda of their rights and holding them indefinitely as "enemy combatants." They have met with strong resistance from SURPRISE! John Ashcroft and others in the Justice Department, who both remember that the U.S. is a constitutional republic, and recognize that it's almost impossible to imagine the Supreme Court upholding the military detention of American citizens on mere suspicion of wrongdoing. Justice, in fact, would apparently like to release Jose Padilla to civilian authority, but is being blocked by the politicos, especially Cheney. The Newsweek story, if true, is good reason for both Cheney and Rumsfeld to resign, now.

How's that again? An obvious point, I guess. But if you're going to write an article claiming that "a growing faction of conservatives is voicing doubts about a prolonged United States military involvement in Iraq, putting hawkish neoconservatives on the defensive and posing questions for President Bush about the degree of support he can expect from his political base," then you really ought to adduce more evidence than:
a) Pat Buchanan, who is not a part of Bush's base (you might recall him opposing the first Gulf War on the dubious grounds that it might help Israel, running against both Bushes pere et fils for the Presidency, and his years of railing against the free-trade, Confederacy-betraying, Jew-loving sins of the current administration), continuing to oppose a war he's opposed all along;
b) the Cato Institute, which is not a part of Bush's base and has been pretty seriously critical of him for the big-spending, protectionist sins of the administration, continuing to oppose a war it's opposed all along;
c) one Republican Representative who opposed thew war in the first place continuing to oppose the war now; and
d) National Review which has always supported the war and never been primarily neocon in its orientation, continuing to support the war and not be primarily neocon in its orientation.

Ordinarily one runs into the problem of reporters seeking to explain a change with reference to something that hasn't changed. Here we have the oddity of a reporter seeking to describe a change using only cases and examples that have not changed.

Now maybe the paleo critique of the war or the libertarian critique of the war are finding new, more-willing listeners in the mainstream right. Maybe the semi-realist National Review line is winning people over who had been attracted to the Weekly Standard democratization line. But we have no evidence of that. That would require talking to some people who have changed their minds, not quoting all the ones who haven't.

Not tooting my own horn, but my wife's. Sebastian Mallaby has an interesting article in today's Washington Post entitled "Visions of US Aid," in which he looks at the index created by the Center for Global Development for measuring the contributions that the world's richest countries are making to the well-being of the world's poorest. Interesting -- and, as my wife Nancy is the founder of the CGD, I felt honor-bound to blog it.

Rockin' Book Tour Goes North by Northwest: I enjoyed the hospitality of Notre Dame law school last week, as well as the comments by Professor Patricia Bellia. Here is a very gracious account of my talk by Rick Garnett.

The Rockin' Book Tour for Restoring the Lost Constitution continues this week in the Pacific Northwest.

TODAY: Monday, 4/19:
Eugene, Oregon
University of Oregon law School (noon, Room 142)
Portland, Oregon
The Cascade Institute & The Portland Federalist Society Lawyers Chapter (5:30- 7:00pm, Details here [RSVP requested])

Wednesday, 4/21:
Seattle, Washington
University of Washington law school (12:30pm, William H. Gates Hall, Room 127 [This is a room change])
Puget Sound Lawyers Chapter and the Seattle University Law School Chapter of the Federalist Society (6:00-7:30pm, Details here [scroll down])

Saturday, 4/24
Washington, DC
2004 NORML Conference (1:00pm, The Hamilton Crowne Plaza Hotel)

Canada, Free Speech, and Brian Leiter: Leiter writes, in support of Canadian restrictions on religiously motivated speech condemning homosexual acts, and on "hate speech" in general:

Now don't misunderstand me. Canada is a civilized country, and so the fact that Canada takes seriously the post-WWII European consensus--namely, that naked bigotry, religiously motivated or otherwise, is a danger to humanity--makes perfect sense. But the U.S. is different. In the U.S. I much prefer our more-or-less "libertarian" regime governing speech, and for reasons Fred Schauer pegged two decades ago in his book on the subject: not because the "marketplace" of ideas, such as it is, will yield the truth, or because speech doesn't "harm" people (it does, all the time), but rather because there is no reason to have confidence that the agents of the state in America will exercise their regulatory powers in the service of human well-being and enlightenment.

So I admire Canada, not so much for their approach to free speech, per se, but rather for having achieved a level of civilization that permits them to regulate expression without sacrificing the central values of the post-Enlightenment world.

Hmm. A few points.

(1) It's a fallacy to assume that speech restrictions are motivated primarily by moral rather than political considerations. It's a fallacy to assume that law in general is motivated by moral rather than political considerations. Right now, gays and others have sufficient political power in Canada to achieve protection from their critics. Who and what gets silenced next depends not on Canada's level of civilization, but on what groups manage to organize themselves into powerful lobbies with the strength to get politicians to silence their enemies.

(2) Brian's post reveals one of the major differences between libertarians and our friends on the left: libertarians tend to believe that the government cannot be trusted with too much power, whereas leftists tend to believe that the wrong people cannot be trusted with too much power. They put their faith in politics to put the right people in power. But, even if you are sure you know who the right people are, how can you predict in advance whether the right people will be in power in the future? The genius of the Framers of the American Constitution was to establish a system of government that assumed the untrustworthiness of whomever would take power in the future, with a system of checks and balances and constitutional restraints to limit their power. Much of this system no longer exists, but the First Amendment preserves the ideal of limiting government authority in the sphere of communication.

(3) Albert Jay Nock once wrote, "whatever power you give the State to do things for you carries with it the equivalent power to do things to you." What continues to separate Americans from Canadians and Europeans is our general unwillingness to give the State the power to do things for us at the risk of it doing things to us.

(4) There is nothing civilized about putting someone in jail for saying that homosexual acts are a sin. Civilized people settle their differences without violence, and locking someone in jail is a violent act. Threatening someone with jail (or even a fine) for condemning homosexual acts is a threat of violence, albeit state violence. Admittedly, state violence is a "more civilized" form of violence than is the private use of force, but it's less civilized than a pacifistic approach to those who offend you. And in Canada, you don't even have to condemn homosexual acts to be subjected to state violence. Toronto print shop owner Scott Brockie refused on religious grounds to print letterhead for a gay activist group, the local human rights commission ordered him to pay the group $5,000 (approximately $3,400 U.S.), print the requested material, and apologize to the group?s leaders. Brockie had always accepted print jobs from individual gay customers, and even did pro bono work for a local AIDS group. He just didn't want to participate in what he considered sinful activities. Forcing someone to act against his beliefs in this way is not "civilized," but the modern equivalent of compulsory mass.

(5) Speaking of gays in Canada, what does being civilized have to do with the fact that as part of the Canadian government's suppression of obscene material, Canadian customs frequently target books with homosexual content. Customs seizures have included Andrea Dworkin's Pornography, and several serious novels. A gay organization had to spend $14,000 (approximately $9,600 U.S.) in legal fees to force customs agents to allow The Joy of Gay Sex into the country. Police raids searching for obscene materials have disproportionately targeted gay organizations and bookstores. Two gay activists at the University of Toronto were fined for selling Bad Attitude, a lesbian magazine with sadomasochistic content. According to the ACLU, "more than half of all feminist bookstores in Canada have had materials confiscated or the sales of some materials suspended by the government."

(6) I wonder where all the enlightened, civilized Canadians were when Professor Sunera Thobani of the University of British Columbia, a native of Tanzania, faced a hate crimes investigation after she launched into a vicious diatribe against American foreign policy after 9/11? Thobani, a Marxist feminist and multiculturalist activist, had remarked that Americans are "bloodthirsty, vengeful and calling for blood." The Canadian hate crimes law was created to protect minority groups from hate speech, but in this case, it was invoked to protect Americans. The police revealed the investigation to the media, despite a general policy against doing so, because, a hate crimes investigator explained, "here we have a complaint against someone who is obviously from a visible minority, whom the complainant feels is promoting hate. Normally, people think it's a white supremacist or Caucasians, promoting hate against visible minorities . . . We want to get the message out that it's wrong, all around." The police eventually decided not to file charges for undisclosed reasons, perhaps because Thobani's speech was sufficiently rambling that her perceived attack on Americans could alternatively be construed as an attack on the "socially constructed" American nation invoked by President George Bush. While still potentially insulting to Americans, this would not violate the hate crimes law. Had she been speaking of real Americans and not socially constructed Americans, though, she could be in the clink right now.

Despite these examples, on balance, Brian may prefer Canada's current speech-restrictive regime to the U.S.'s libertarian regime. But is he confident he will approve of Canada's speech restrictions in ten years? In twenty-five years? In fifty years? The beauty of liberalism, in the classical sense, is that it's a system designed to work when your friends are in power, and when your enemies are in power, limiting their ability to do harm (and good). I can sleep soundly at night knowing that I won't be arrested for thought or speech crimes regardless of who is in power in the foreseeable future, something I certainly couldn't say if I were Canadian.

So, I agree with Brian that the marketplace of ideas is not necessarily efficient, and that expression of hateful ideas based on unthinking bigotry is not conducive to discovering truth. I disagree with him about the wisdom of giving a government power to suppress speech based on a judgment that the government is currently controlled by a civilized citizenry that will permit the government to use that power only for good, I disagree that Canada has proven itself to have such a citizenry, and I disagree with the underlying premise that the dynamics of speech restrictions will, over anything resembling the long-run, be based more on consensus notion of morality as opposed to power politics.

Sunday Song Lyric: As the long-delayed spring arrives, and the close of the semester approaches, it's time to feel a bit care free (at least until it's time to grade exams). So what could be a better Sunday song lyric than "Devil May Care" by Bob Dorough? This song, most recently recorded by Diana Krall, seems appropriate for this time of year (and should not be confused with the Frank Sinatra song of the same name.Here are the lyrics:

No cares for me
I'm happy as I can be
I've learned to love and to live
Devil may care

No cares and woes
Whatever comes later goes
That's how I'll take and I'll give
Devil may care

When the day is through, I suffer no regrets
I know that he who frets, loses the night
For only a fool, thinks he can hold back the dawn
He who is wise never tries to revise what's past and gone

Live love today, let come tomorrow what may
Don't even stop for a sigh, it doesn't help if you cry
That's how I'll live and I'll die
Devil may care

For those readers still thinking "Who in the world is Bob Dorough?" in addition to a jazz vocalist, song-writer, and musician, he's one of the musicians and vocalists from "Schoolhouse Rock." That alone should make him worthy of a Sunday song lyric.

Fallacies and vices: A bunch of us were sitting around, trying to figure out what is The Economist's Vice. Here was one good candidate:

The Economist's Vice: "To think that Wealth Maximization is a good proxy for Utility Maximization"

I nominated the following:

The Economist's Vice: "To think that it is scientific to talk of "satisfying preferences," and paternalistic or mystical to talk about other normative values."

We then turned to The Philosopher's Vice. I suggested the following:

The Philosopher's Vice: "To think that The Economist's Vice(s) open the door for rampant egalitarianism and national health insurance"

One of us suggested The Experimental Economist's Vice:

The Experimental Economist's Vice: "To think that students are like other people"

Another group member suggested The Lawyer's Vice:

The Lawyer's Vice: "To think that words alone can settle an argument" [just for the record I did not suggest or endorse this one!]

Blogger's vice anyone? How about this?

The Blogger's Vice: "To think that packaging a link with an expression of moral outrage is a worthwhile exercise."

Addendum: John Nye suggests the following:

The real (modern) economist's vice: To think that formal (mathematical) rigor is equivalent to scientific (substantive) rigor.

Another Win-Win: Rantisi is brought to justice: "We will all die one day. Nothing will change. If by Apache or by cardiac arrest, I prefer Apache," he said. It's nice when cosmic justice and individual preferences can both be satisfied.

UPDATE: Mark Kleiman objects:

The point seems to me an elementary one. Since "To bring X to justice" means "To arrest and try X according to law," using the phrase "X was brought to justice" to describe a situation in which X was, in fact, shot down like a dog must be an error. It may be warfare, but it isn't justice.

Sorry, Mark, but I don't see why arrest and trial is necessary for justice, nor do I think that arrest and trial create justice. Rantisi not only didn't deny responsibility for his crimes, he reveled in them. There is no injustice in killing him. There are sound prudential reasons for generally not giving governments the power to eliminate even obviously and admittedly guilty, unrepetant mass murderers without arrest, trial, etc., but these are prudential reasons only, not interests of justice per se. In Rantisi's case he was not only obviously and admittedly guilty and unrepetant, but a "ticking time bomb" who was Hamas's primary contact with Iran and Hezbollah, attempting to import their mass murdering skills to Israel. An operation to arrest and try him would not only have put additional Israeli and Palestinian lives in danger during its undertaking, but would have required additional weeks or months of planning that would have allowed Rantisi to participate in many more murders, and build up the infrastructure of murder. No, the interests of "justice" argue for exactly what Israel did.

As for arrest and trial not creating justice, O.J. Simpson was arrested and tried according to law, but I'd laugh at anyone who says that "justice" had anything to do with either the conduct of the trial or its outcome. Again, we accept such fiascoes because, over the greater run of cases, justice is better served by arrest and trial than by alternative methods of attempting to secure justice. But to suggest that justice is purely a matter of following procedure seems to me legalistic nonsense.

Mark also objects that it's bad manners to express glee at the death of the likes of Rantisi. Guess we will have to cancel Purim. [I posted the update as I was rushing out for the day, and I thought I had deleted the last two sentences, which I decided did not do justice to rabbinic Judaism's ambivalent teachings on how one should feel when an evil enemy has been duly punished. But the holiday of Purim does indeed gleefully celebrate the hanging of the evil Haman and his sons, who, according to tradition sought to destroy the Jews of the ancient Persian empire. Meanwhile, I can't disagree with Pejman:

The objection against "danc[ing] on the graves of one's recently slain enemies" is frankly bizarre. Again, Rantisi was a murderer and a psychopath on a mass scale--a characterization with which I am sure Kleiman agrees. Why shouldn't those who support Israel against such terrorists rejoice in his death? Once we in the United States capture or kill Osama bin Laden, will we not rejoice? Shouldn't we? For the record, I'll smoke a huge cigar, toast the capture or death of bin Laden, and perhaps even engage in some forms of hedonism (ladies, take note of this--you are invited to help me in this noble cause) once the goal of capturing or killing bin Laden is accomplished. Far from being "bad manners," such a response would be entirely appropriate--and it is appropriate in response to Rantisi's death. He was too long of this world. And the world is far better without his presence.]

Why Not Let the Top Seeds Pick Their Opponents?: The NBA playoffs start tomorrow. The Minnesota Timberwolves are the 1st seed in the Western Conference - meaning that they play the 8th seeded Denver Nuggets. If the Timberwolves had the choice, they might well prefer to play the 7th seeded Houston Rockets, who slumped badly at the end of the season and are playing the worst basketball of any of the teams from the West. Why shouldn't the Timberwolves have that choice?

Playoff seedings are determined by regular season records. If (as in the NBA) 8 teams go to the playoffs from each conference, the team with the best record will play the team with the 8th best, the 2nd will play the 7th, and so on. The idea is to reward the teams with the best records by pitting them against the weakest opponents. But a better - and more interesting - system would allow the top seeds to choose their opponents.

My proposal is straightforward. At the end of the last game of a given round of the playoffs (or, for the first round, the last game of the regular season), the first seed would choose which team in the bottom half of the seedings it wanted to play. The second seed would then choose among the remaining teams, and so on. This need not delay anyone's travel plans; the selection could proceed in order (like a draft), with each team having a few minutes to make its selection. The only difference between my approach and the current one is that the best teams would have some ability to choose their opponents.

Why make this change? It truly rewards the teams with the best records, and it avoids the problem of a top team having the bad luck to be pitted against another top team while teams with fewer wins have weaker opponents. Maybe the 7th seed slumped at the end of the season or has just suffered injuries, whereas the 8th seed ended the season strongly and would have had a better record if its star had not been hurt in the beginning of the season.

My proposal would make for better matchups. Leagues like the best teams to meet deep into the playoffs, and this makes it more likely that that will happen - because the team with the best record will avoid playing the stronger teams until late in the playoffs.

It should also greatly increase fan interest. Fans of the choosing teams can debate who their team should opt to play in a given round of the playoffs. And it would create a new element for the chosen teams and their fans. If the 1st seed decided to play the 7th seed rather than the 8th, the 7th could use the choice as a motivating tool ("They chose to play us because they thought we were weak. Let's show them.") and the 8th seed could boast that the best team was afraid to play them. And if the 8th seed met the 1st seed later in the playoffs, the story line would be irresistible ("The 1st seed must now play the team it sought to avoid.")

Who would oppose this change? There is only one group of people who have anything to lose from this system - the coaches. Woe to the coach who chooses to play a higher-seeded team and then loses. But that woe translates into fan interest - "Can you believe he chose to play Team Y when he could have played Team Z?" - and a new set of story lines. My system might even induce fans to watch a blowout until the end ("As soon as the game is over, the coach will choose his next opponent").

Having options makes sense in other areas of life. Why not this one?

Jacob Levy on Ethics: I just ran across Jacob Levy's article on New York Times ethicist Randy Cohen -- it's really an excellent and thoughtful piece about the complex relationship between ethics and morality; I highly recommend it. It was published in late 1999, and maybe Cohen has improved since then. But to me the important thing wasn't the criticism of Cohen as such, but rather the broader points that Jacob makes.

NRA TV: Stop the Bleating reports:

Instead of buying a TV station, as it was previously rumored to be considering, the NRA has decided to take its message to the Internet via NRANews.com, "Freedom's Last Channel of Communication." They'll have daily webcasts, including a three-hour live segment. Advantages?

-Lower overhead.
-Not having to deal with the FCC.
-Less pesky FEC/Bipartisan Campaign Reform Act crap to worry about; FEC regulations implementing BCRA expressly exempt Internet communications from the definition of "electioneering communications." For now. . . .

I'm not sure how successful this tactic will be; my sense is that, at least right now, Internet video is considerably less effective than TV. It does have advantages, for instances that the archives are constantly available, and presumably over the years, Internet video will rival TV more and more. But right now, I doubt that the video portion of the site will be a roaring success -- though I'd be glad to be proved wrong.

"People ought to stay out of our business": That's what the 9/11 Commission chair Thomas Kean seems to be saying in response to calls for Jamie Gorelick to resign. (I say "seems" because there's always the possibility that he was quoted out of context.) From the Washington Post:

Gorelick told CNN yesterday that she will not resign. "The wall was a creature of statute. It's existed since the mid-1980s," she said.

Several of Gorelick's colleagues on the commission rushed to her defense, characterizing her as qualified and nonpartisan, and complaining privately that she was ambushed by Ashcroft.

"We don't want to get in a fight with the attorney general, and I hope he doesn't want to get in a fight with us," said commission Chairman Thomas H. Kean, the former Republican governor of New Jersey. But "people ought to stay out of our business." . . .

Hmm -- I'd have thought that, in a democracy, the makeup of investigative panels like this was very much the people's business, and not just the panel members'. "There's no reason for Gorelick to resign because . . ." would be a perfectly appropriate response. "People ought to stay out of our business" is not. But it looks like more than one politician seems to be forgetting that.

Thanks to Best of the Web for the pointer.

Jonathan Rauch on the 9/11 commission: I haven't been following the commission's work, and have no informed opinion -- but I much respect Rauch's views, and he's written extensively on the pathologies of American government procedures. Some key paragraphs (emphasis added):

The time and attention of Washington's top policy makers is Washington's most precious commodity. According to news reports, Rice and her staff spent hours preparing her public testimony: briefing her, assembling timelines, "war-gaming" likely questions. Each of those hours was an hour not spent on national security. Meanwhile, an armed uprising -- the most dangerous yet -- was erupting across Iraq.

Maybe Rice's diverted hours didn't matter. Sometimes, though, when policy makers take their eye off the ball, bad guys kick it. In 1998, Saddam Hussein took advantage of President Clinton's impeachment distraction to throw weapons inspectors out of Iraq, and that same distraction may have impeded an effective U.S. response. . . .

[D]istractions in time of crisis do not help. And Washington could not have chosen a worse moment than now for a paroxysm of finger-pointing. "Our focus has been on 9/11 -- who did what and who didn't," Senate Foreign Relations Committee Chairman Richard Lugar, R-Ind., told ABC's "This Week". "But it ought to be on June 30," the date when sovereignty is supposed to be transferred in Iraq.

Economists speak of transaction costs. Washington needs to master the concept of investigation costs. A government saddled with a high-profile probe is a government less focused on other tasks, and wartime is the worst time for distractions. . . .

UPDATE: Here's a different view from another writer whose work I also much like, Matt Welch:

Above all, Bush's attitude toward sensitive information has remained consistent from his pre-9/11 behavior: Transparency is overrated, secrecy is a virtue, and post-Watergate reforms curtailing the government's ability to snoop, prosecute and act freely are a serious obstacle to protecting the country.

These beliefs don't make him venal, just wrong. History has shown that a government that acts without the checks and balances of scrutiny is a government that abuses its power. Secrecy is often just another word for "it would be embarrassing for me if you saw that." And transparent examination and debate, however untidy, unlocks the genius of distributed, free-flowing intelligence -- one of America's biggest competitive advantages -- and gives citizens their deserved seat at the decision-making table.

Consider for a moment how things would be if Bush would have gotten his way on the 9/11 hearings: We would not have seen the strangely cathartic (and/or infuriating) gesture of Richard Clarke apologizing to the surviving families of Sept. 11 victims, Condoleezza Rice would not have faced public grilling, Bush probably wouldn't have held a rare primetime press conference, and we certainly wouldn't have been able to read the infamous PDB memo. Reforms would have been handled by the wise men and women of the congressional intelligence committees and the internal investigators at the CIA and FBI. Our knowledge of the changes would be limited to whatever leaks were thrown our way (as opposed to daily sworn testimony of officials like George Tenet and John Ashcroft). . . .

(Thanks to reader Pete Guither for the pointer.) As I said, I have no informed opinion on the subject myself, but I'm happy to pass along opinions from others who know more than I do. I link, you decide.

Rats -- we're not Banned in Burma any more; my correspondent tells me that we're accessible again.

Greens for Tax Increases: I find it somewhat amusing that many environmental groups spent Tax Day calling for a tax increase. Specifically, U.S. PIRG, the Sierra Club, and other groups called upon Congress and the Bush Administration to increase taxes. Specifically, they called for the re-enactment of taxes on corporations and certain chemical feedstocks to pay for hazardous waste cleanups at abandoned waste sites under the federal Superfund program. Such a tax expired several years ago and the BUsh Administration opposes its reimposition. Although BushGreenWatch would prefer to call the imposition of this tax "restoring industry fees," it is a tax increase, pure and simple.

Environmental groups claim Superfund taxes represent the "polluter pays" principle - the generally unassailable idea that polluters should pay for the costs of their polluting activities. The problem is that the Superfund tax imposes costs on companies (and, by extension, consumers and shareholders) irrespective of their relative contributions to pollution problems. The tax on chemical feedstocks imposes costs on the highly progressive and environmentally responsible corporation just as surely as it imposes costs on the corporate scofflaw. The Sierra Club's Carl Pope claims "the Bush administration is using tax dollars instead of making corporate polluters pay to clean up their toxic messes," but the same can be said of Pope's preferred policy. Across-the-board taxes on corporations and specific chemical substances similarly use "tax dollars" to pay for cleanups and do nothing to "make corporate polluters pay to clean up their toxic messes." As Angela Logomasini of the Competitive Enterprise Institute noted in this story, "The Sierra Club is basically saying that if you're in business, you're a polluter and guilty."

Tort sanity:

"A top Russian ballerina, who was sacked for being too heavy, lost a damages claim for £575,000 against the chief of Moscow's Bolshoi Theatre yesterday. The prima ballerina Anastasia Volochkova, who was fired in September for being too bulky to be lifted by her dancing partners, sought the damages from the Bolshoi's general director, Anatoly Iksanov, for harm to her personal and professional reputation."

Here is the full story.

The economics of Iraqi reconstruction: Randall Parker offers some interesting facts about the finances of Iraqi reconstruction. Here is one good bit:

"Even though involvement in Iraq is costing US taxpayers a lot of money at this point very little of the reconstruction money from the US government has been spent.

Efforts to repair war damage and kick-start the economy, which have fallen behind. Only $2 billion of the $18 billion aid and reconstruction package Congress approved last fall has been committed to contracts.

A increasing portion of the construction money is going to pay rising security costs.

For some companies, security costs now amount to 20% of the total contract price, double the standard 10% estimate that industry groups and government contracting officials quoted six months ago. As much as $4 billion may wind up going to security, Bowen said."

Read the whole post. Parker is a skeptic about the possibility of democracy in Iraq. He also argues for the partition of Iraq, under the belief that at least the Kurds will like the U.S.. I am not sure how we would handle Turkish opposition to this idea, or the possibility of civil war in Turkey, if Turkish Kurds try to secede. Nonetheless the argument is an intriguing one. It doesn't have to be so perfect to be the best option on the table.

TaxProf: An interesting new academic blog from taxprof Paul Caron, aimed at tax professors but also useful to lawyers and students working in the field.

Banned in Burma, yanked from Yangon: A reader reports (I don't yet know how he figured it out):

You should know that as of today the Conspiracy is banned in Burma (Myanmar). The yellow flag says "banned phrase found."

Handy Aramaic phrases to use while watching The Passion of the Christ, from The Guardian (U.K.) (thanks to Michael Klein for the pointer):

Its alleged anti-semitism isn't the only problem with Mel Gibson's The Passion of the Christ. There's also the small matter of it being in Aramaic. To help enrich your enjoyment, here is a handy glossary of useful terms . . .

B-kheeruut re'yaaneyh laa kaaley tsuuraathaa khteepaathaa, ellaa Zaynaa Mqatlaanaa Trayaanaa laytaw!
It may be uncompromising in its liberal use of graphic violence, but Lethal Weapon II it ain't.

Da'ek teleyfoon methta'naanaak, pquud. Guudaapaw!
Please turn off your mobile phone. It is blasphemous.

Shbuuq shuukhaaraa deel. Man ethnaggad udamshaa?
Sorry I'm late. Have I missed any scourging?

. . .

Ma'hed lee qalleel d-Khayey d-Breeyaan, ellaa dlaa gukhkaa.
It sort of reminds me of Life of Brian, but it's nowhere near as funny.

. . .

There's much more.

Gmail fun: Reader Mike Aracic writes:

Lawyers can sure make it tough to have a good time! I am eagerly awaiting the time the first of my friends got a Gmail address[.] The victim (friend) was going to immediately get a short paragraph from me about refinancing and "male enhancement."

If the leaders of the Jewish Community needed an impetus to try to discourage the ridiculously excessive bar and bat mitvzah parties that have become the norm in many large cities, this story in the April 26 People Magazine (not online) should be it:

She's got the deejay blasting Beyonce and a computerized light show. She has nearly 100 friends crammed into Manhattan's ritzy Bryant Park Grill. She's got the gift table groaning with Tiffany bags and guests greeting her dad at the door with "Mazel tov!" Everything is perfectly poised for 13-year-old Kimya to have a world- class bat mitzvah, except for one tiny detail:

Kimya isn't Jewish.

Welcome to the strange new world of faux mitzvahs, where non- Jewish teens like Kimya Zahedi--whose parents are Iranian-born Muslims--and Taylor Lasley, African-American and Presbyterian, get to party like it's 5764 (that's 2004 on the Hebrew calendar). A centuries-old Jewish tradition, bar mitzvahs (for boys) and bat mitzvahs (for girls) mark the passage from childhood to adulthood with rituals like candlelighting and slicing braided bread called challah, as well as with elaborate and often expensive celebrations. Now more and more non-Jewish kids areinsisting on their own bar or bat mitzvah-style parties--without the religious rites and months of studious preparation--when they turn 13. "You see how you can have so much fun with so many people," says Kimya, who attends one or two bar or bat mitzvahs every weekend in and around her wealthy neighborhood in Alpine, N.J.

The article goes on to quote Gentile parents bullied by their children into throwing lavish 13th birthday parties for them so the kids can be part of the "in" crowd. Talk about a Chillul Hashem! (desecration of God's name!) When the most widely-known Jewish rite gets to be known less for its spiritual significance and more for the social status the accompanying party provides, so much so that 13 year old social climbers insist on emulating it, someone needs to do something.

Law and film: In my law and film class this year we watched four movies: High Noon, Kubrick's early Paths of Glory, Kurosawa's Rashomon, and Atom Egoyan's The Sweet Hereafter, a Canadian movie from 1997. A schoolbus crashes through the ice and many schoolchildren drown, leading to a liability suit in a small town. To my surprise, this latter film was by far the class favorite of the four. Many class members considered the other movies stilted or at times even ridiculous. Everyone found The Sweet Hereafter intriguing. It is a sad and moving film, and thus it is not appropriate for every evening. But if you have any interest in law and cinema at all, see it.

A bit more on gmail: David Link, who works for Senator Figueroa -- the California legislator who's talking about outlawing google's new free e-mail with customized advertising service -- writes:

The Senator has represented a good portion of the Silicon Valley for the twelve years she has been in the legislature, and has earned the respect of much of the high-tech community for her concern about the unique and challenging issues this industry raises.

More important than that, though, the issues with Google's proposal go a bit deeper than just the Nanny State pejorative would suggest, and I wanted to offer some of thoughts for you to consider.

After speaking with Google's policy and legal staff, it became clear to us that Google had not thought through some of the key problems of consent that G-Mail raises. You are certainly correct that the G-Mail subscriber consents to the service's requirements. But, as you acknowledge, there is a separate problem about the consent of non-subscribers who send e-mail to a G-Mail customer. The problem is that Google seems to have less interest in scanning the e-mails their customer sends out than in scanning the e-mails their customer receives. And those people are not asked -- and, I think, could not practically be asked -- to consent to having their personal sentiments scanned for ad-friendly content.

This variation on the issue of consent has some similarities to the question of taping telephone conversations -- something that, in California, requires the consent of both parties, if I remember correctly. The fact that Google thought only in terms of one party -- its advertisers' target -- confirms what we learned from Google's staff -- that they hadn't thought about those people's rights at alll, and had no interest in exploring it.

You make a good point when considering your own concerns about how your e-mail to someone else might be treated, and how the ad would be "associated" with it. But that is exactly what is so odd about G-Mail -- what other form of private and personal correspondence (telephone, letters) has anything close to this sort of potential issue? Yes, the ads are targeted at the recipient, but they are based on someone else's thoughts, sometimes quite personal or sensitive ones. In those other forms of communication, the only way any outside party can have any access at all to the content of the conversations is to get a court order based on some sort of suspected wrongdoing. G-mail proposes a different standard -- however benign it may seem right now -- for e-mail.

Is this a good idea? Google has a technology that CAN scan e-mail, while the phone companies and the US Postal Service do not, and, most likely, can not. But because a technology exists is not, in itself, a reason to use it. We are accustomed to a very broad notion of privacy in those other contexts, and, up until now, have seldom had reason to question the sanctity of e-mail privacy. In fact, this is one of the barriers e-mail services had to overcome in order to get people to use it in the first place -- and they did a rather good job.

Now, though, comes G-Mail. Google presents G-Mail as a very small step, but I think it is more than that -- I think it begins to work a change in the very notion of communicative privacy altogether. It's clear to me that Google doesn't intend to collect information about people's private correspondence, but by telling people they will now be reviewing e-mail -- even using a non-human technology -- the idea that e-mail is as private as a letter slowly recedes. At the very least, we should stop and think about the implications of that.

These are the reasons Senator Figueroa's initial letter to Google said that she thought this might ultimately be a Faustian bargain. She is convinced that Google has made a very big mistake in this, and that the market will ultimately work against them. I believe that, too. But some mistakes, I think, may be too dangerous even to make -- at least without more thoughtful consideration of their consequences. G-Mail seems to be one of those.

I think there is much more to this issue than your initial post might have presented. I hope all of this leads to a more productive discussion about what, exactly, is at issue here. At the very least, I hope, if you disagree with any bill we might introduce -- and you very will might -- that there is a more informed discussion than the current press would lead people to believe.

     I much appreciate Mr. Link's response, but I stand by my criticism. As I mentioned in an UPDATE to my original post, I don't think a ban on gmail would really protect any legitimate right of the senders. As best I can tell from press accounts, gmail would only be connecting information about a gmail user's e-mail with that gmail user, and using it to market to that gmail user. My messages to a gmail user are not associated with me in the gmail output -- they're just associated with the gmail user. And if the user agreed to that, I see no grounds for me as the sender to complain.

     It's true that google's marketing to the gmail user will in some sense be based on my thoughts. But so what? I'm sharing my thoughts with my recipient. My recipient is already able to retransmit those thoughts to someone else, simply by forwarding them; and such forwarding, unlike with gmail, would actually associate my thoughts with my name in some other human's eyes. (This illustrates, incidentally, that a third party can indeed get access to e-mail, and even to letters, without a court order -- simply by getting the recipient to show the third party this material.)

     With gmail, the recipient is simply having those thoughts automatically routed through the gmail advertisement generator. There's nothing wrong with that, no invasion of any legitimate rights claim on my part. In fact, I'm much more worried that my recipients would forward some of my messages to another human than that the messages would be automatically scanned -- and associated with the recipient's identity, not mine -- and used to generate ads to be shown to the recipient. (Note that Senator Figueroa's proposal, at least as it's described, is in no way limited to making sure that the sender's identity is indeed protected from disclosure to others.)

     So this really isn't about protecting the sender's identity, as the Senator's own analogy ("We think it's an absolute invasion of privacy. It's like having a massive billboard in the middle of your home") shows. Rather, it's about preventing a form of marketing that some people think is distasteful, and that some people think might change people's attitudes towards privacy ("the idea that e-mail is as private as a letter slowly recedes").

     I don't think that this is something that the California Legislature should be using its coercive power to do. The government shouldn't be banning voluntary services -- services that many users might find to be quite valuable to them, and to involve no real intrusion on the rights of others -- in order to prevent changes to voters' ideas about e-mail.

Bush and Sharon: For all the handwringing of the American (not to mention world) media, the dynamic is very simple: Bush has made it abundantly clear that he wants the Palestinians to have a responsible government that fights terrorism, and wants the Israelis to move toward a settlement that turns over sovereignty of Gaza and most of the West Bank to a Palestinian state. No progress was being made in either direction for some time. Then, Sharon announced a unilateral withdrawal from Gaza. Self-interested, sure, but also a political risk that breaks the impasse that had developed, and a potential momentum builder. Bush looked in vain for a reciprocal gesture from the Palestinians. He got nothing. Worse than nothing, the Palestinians have been busily discussing how to bring Hamas into their government. Result: political rewards for Sharon, a cold shoulder for the Palestinians. It was almost two years ago that Bush made it clear that he would judge the Palestinian leadership by one criteria: its willingness to fight terrorism. Why, two years and no willingness to fight terrorism later, it expects "evenhandedness" from Bush shows that they simply don't understand the man.

UPDATE: Debka, which takes a "right-wing" Israeli line, is alarmed that Bush referred to the 1949 armistice lines, and not the 1967 "Green Line." Bush's actual remarks: "Realities on the ground have changed over decades. In the light of those changes, including already existing major Israeli population centers, it is unrealistic to expect the outcome of final status negotiations will be a full and complete return to the 1949 armistice lines." Traditional American (and Israeli) policy has been that the 1967 borders, with modifications, should be the baseline for the final settlement. By pushing things back to 1949, I wonder if Bush, with Sharon's complicity, isn't hinting that demographic realities run both ways, and that major Arab population centers in Israel--Nazareth, Umm Al-Fahm and surrounding villages[edit: note that Arab population centers in the Galilee were under Israeli military rule until 1966]--may be transfered to the new Palestinian state in exchange for Jewish settlement blocs in Judea and Samaria.

UPDATE: Then again, Laurence Rothenberg of the Center for Strategic and International Studies suggests via email that the president was simply trying to emphasize that the 1967 lines are not fixed and internationally recognized "borders" but armistice lines, subject to negotiation.

Gorelick recusal rule: This Eric Muller (IsThatLegal?) post is so useful that I thought I'd link to it and excerpt it even though InstaPundit has also already done it. The bottom line:

Under these guidelines, it certainly seems to me that Ms. Gorelick should not be participating in the portion of the Commission's investigation that focuses on law enforcement's role in counterterrorism. I think it would have been wise for her not to be present at the hearing yesterday.

On the other hand, she's a very smart lawyer and her participation in other hearings has, to my eye, been very focused and helpful.

I think the calls for her outright resignation are exaggerated. On the other hand, I think she should confess that she ought not be playing a role in the Commission's law-enforcement-related inquiries, and should recuse herself from all further deliberation on the matter.

For the text of the guidelines, and more from Eric, see his post.

Who benefits? I'm hardly one to espouse a naive (or sophisticated) self-interested view of political action. That being said, I chuckled when I read the following:

" Last year's tax cut proved to be a significant windfall for its main architect and political instigator, saving President Bush tens of thousands of dollars on his 2003 return."

Bush's income fell four percent over the last year, to $822,126. His current income tax liability fell fifteen percent, saving the Bush family about $30,858. The Cheneys saved more than $88,000. But most of these savings were due to write-offs. In fact the Cheneys were hit by the Alternative Minimum Tax.

How about Kerry?

"Meanwhile, for Sen. John F. Kerry (Mass.), the Democrat seeking to drive Bush from the White House, his tax burden more than tripled on income that surged with the sale of a million-dollar painting."

The Kerrys filed separately, but John reaped $1.35 million from the sale of a painting by Dutch Baroque artist Adam Willaerts.

Here is the full story, brief registration required but subscription not needed.

Wall of Separation: You might find this excerpt from Attorney General John Ashcroft's testimony before the 9/11 Commission to be of interest:

The single greatest structural cause for September 11 was the wall that segregated criminal investigators and intelligence agents. Government erected this wall. Government buttressed this wall. And before September 11, government was blinded by this wall.

In 1995, the Justice Department embraced flawed legal reasoning, imposing a series of restrictions on the FBI that went beyond what the law required. The 1995 Guidelines and the procedures developed around them imposed draconian barriers to communications between the law enforcement and intelligence communities. The wall "effectively excluded" prosecutors from intelligence investigations. The wall left intelligence agents afraid to talk with criminal prosecutors or agents. In 1995, the Justice Department designed a system destined to fail.

In the days before September 11, the wall specifically impeded the investigation into Zacarias Moussaoui, Khalid al-Midhar and Nawaf al-Hazmi. After the FBI arrested Moussaoui, agents became suspicious of his interest in commercial aircraft and sought approval for a criminal warrant to search his computer. The warrant was rejected because FBI officials feared breaching the wall.

When the CIA finally told the FBI that al-Midhar and al-Hazmi were in the country in late August, agents in New York searched for the suspects. But because of the wall, FBI Headquarters refused to allow criminal investigators who knew the most about the most recent al Qaeda attack to join the hunt for the suspected terrorists.

At that time, a frustrated FBI investigator wrote Headquarters, quote, "Whatever has happened to this — someday someone will die — and wall or not — the public will not understand why we were not more effective and throwing every resource we had at certain 'problems'. Let's hope the National Security Law Unit will stand behind their decision then, especially since the biggest threat to us, UBL, is getting the most protection."

FBI Headquarters responded, quote: "We are all frustrated with this issue ... These are the rules. NSLU does not make them up."

But somebody did make these rules. Someone built this wall.

The basic architecture for the wall in the 1995 Guidelines was contained in a classified memorandum entitled "Instructions on Separation of Certain Foreign Counterintelligence and Criminal Investigations." The memorandum ordered FBI Director Louis Freeh and others, quote: "We believe that it is prudent to establish a set of instructions that will more clearly separate the counterintelligence investigation from the more limited, but continued, criminal investigations. These procedures, which go beyond what is legally required, will prevent any risk of creating an unwarranted appearance that FISA is being used to avoid procedural safeguards which would apply in a criminal investigation."

This memorandum established a wall separating the criminal and intelligence investigations following the 1993 World Trade Center attack, the largest international terrorism attack on American soil prior to September 11. Although you understand the debilitating impact of the wall, I cannot imagine that the Commission knew about this memorandum, so I have declassified it for you and the public to review. Full disclosure compels me to inform you that its author is a member of this Commission. . . .

It is difficult to blame Commissioner Gorelick for her failure as Deputy Attorney General to forsee 9/11 when she issued this directive. Had she anticipated 9/11, there is little doubt she would have acted differently.

UPDATE: Instapundit links to blogospheric reaction to press coverage of this disclosure and Gorelick's conflicts of interest.

Wednesday, April 21, 2004

Tuesday, April 20, 2004

Monday, April 19, 2004

Sunday, April 18, 2004

Saturday, April 17, 2004

Friday, April 16, 2004

Thursday, April 15, 2004

Wednesday, April 14, 2004