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Thursday, October 7, 2004

"First Shipment of Negative Ads Arrives in Afghanistan,"

breaking news from the Borowitz Report. "As the days tick down until Afghanistan's historic democratic election this Saturday, the fledgling democracy took an important step forward today, receiving its first shipment of negative political ads from the U.S. The commercials, full of lacerating personal attacks and half-truths about Afghan president Hamid Karzai and his opponents, will begin airing across the country as early as tonight." More here. Thanks to Michael Klein for the pointer.

"Is Colorado the New Florida"?

Chris at Politics Blog asks this, while discussing the Colorado initiative to allocate Colorado's presidential electors proportionally, rather than on a winner-takes-all basis. The post discusses (though doesn't purport to squarely answer) some potential legal challenges; definitely worth keeping in mind, since it could be a huge problem if the election ends up being very close.

Rethinking FISA: What Should the Rules Be? One of the interesting things about the very controversial Foreign Intelligence Surveillance Act is that lots of people criticize it but few offer any alternatives. FISA, as it is known for short, is the set of laws that regulates most evidence collection within the United States in national security and terrorism cases. Whenever you hear about FISA, you tend to hear about its dangers: FISA creates a secret court that allows the government to obtain secret Section 215 orders, it imposes gag orders such as those struck down last week in Doe v. Ashcroft, its privacy protections were eroded by the Patriot Act, etc. But I wonder: what rules might we come up with from first principles to regulate this sort of evidence collection, and how far are those rules from the rules that FISA creates? In other words, if FISA is so bad, what are the better rules that should replace it?

  This is an enormous topic, obviously, so let me try to focus on just one example. Let's imagine the FBI learns that a suspected Al-Qaeda associate believed to be located in Saudi Arabia regularly uses a Hotmail e-mail account. They have heard rumors from sources in Saudi Arabia that the suspect and others are planning a terrorist attack in the United States. To try to identify the other members of the cell, the FBI might reasonably want to get a list of incoming and outgoing e-mail addresses used to send mail to and from the account. It might then go to those other accounts and repeat the process and look for connections, with the goal of using the linking of e-mail accounts to try to uncover the cell.

  Here's the big question: what rules should regulate the process by which the government can obtain this information? Hotmail is a California company, and the information relating to the 1st account would be stored in and obtainable from California. Let's assume that the FBI goes to Hotmail in California and explains the situation to its lawyers. Hotmail might reasonably decide that they don't want to cooperate absent some kind of official order: they want some official showing that this is a real investigation, not just a rogue officer. But what kind of showing should the government be required to make under the law before the investigators can compel the information?

  Should the government have to get a court order before compelling the information (as would be the case with a warrant), or it is enough that the ISP can challenge the request to compel if they find it faulty (as would be the case with a subpoena, or, at least according to DOJ, a national security letter)? What should the government have to show? Is it enough that sources in Saudi Arabia tell the FBI that this particular e-mail account is believed to belong to a member of Al Qaeda? Should there be a requirement that the government has to provide a court with more specific information than that? Should the government have to provide specific evidence of acts that the suspect has committed that lead the government to believe the suspect is planning attacks? Should the government have to show that the suspect is an agent of a foreign power? That he has known co-conspirators, and is not a "lone wolf"? Should there be any restrictions on Hotmail contacting the suspect to inform him of the government's order to compel? If so, what limits?

  I am no FISA expert, but my understanding is that some of the most controversial Patriot Act changes to FISA were designed to give the FBI powers to obtain information in cases such as this. Under the Patriot Act, as it amends the original FISA Act and the Electronic Communications Act, FBI intelligence investigators have two choices: they can issue National Security Letters without any prior judicial review under 18 U.S.C. 2709 — at least to the extent that this statute is not struck down by the Second Circuit in the DOJ appeal of Doe v. Ashcroft — or, they can go to the FISA Court and get Section 215 court orders. The low relevance standard is used (implicitly or explicitly) in both provisions: the information obtained just has to be relevant to a terrorism investigation, with no showing of specific facts or any connection to a foreign power.

  If the approach of Section 2709 and Section 215 is inappropriate, as I gather many people think it is, then exactly what set of rules should govern cases like this? (And no, I don't have the answer myself — I just think it's a very important question and wanted to get it out there for debate.)
Zealous Defense: In Louisiana, a man by the name of Barbette Williams kidnapped and tried to murder a 6-year-old boy. The kidnapping ended with a 12-hour standoff in which Williams barricaded himself in a house and shot at several officers. Williams was charged with kidnapping and attempted murder and went to trial, where his defense attorney argued that Williams was not guilty by reason of insanity.

  Near the close of the defense attorney's case, Williams jumped up, grabbed his attorney, and slashed him in the face with a razor blade in an apparent effort to kill him. According to this story from the Associated Press, the wounded attorney had the following comment with respect to the slashing:
"I've contended all along that this guy is nuts, and to be honest, this pretty much confirms it."
Seen in a Stanford cafeteria last week: A sign that said
Donut holes
2 for 25 cents
6 for $1.00
But fortunately the cafeteria was not in the Economics Department. By the way, after I mentioned this to the people behind the counter, they changed the sign -- it was now 2 for 30 cents, 7 for $1.00. That makes somewhat more sense. (Though what baked goods are ever normally sold in 7s? Is it a baker's half dozen?) Yet it seemed like a shame: A member of the public noticed an error, and the result is that the rest of the public now has to pay more. There oughtta be a law, I tell ya . . . .
WILL RICKY WILLIAMS FILE BANKRUPTCY?

An article in today's Washington Post raises the question of whether Ricky Williams of the Miami Dolphins will file bankruptcy. Under current law the answer is probably yest. Williams, for non-sports fans, was a star running back for the Miami Dolphins who suddenly retired before the beginning of this season, saying that he doesn't want to play for the Dolphins. In return, an arbitrator ordered him to refund $8.6 million in bonus and payments that he received from the Dolphins.

Is bankruptcy Ricky's answer? Probably yes. First, he could use bankruptcy to probably get out of the remainder of his contract with the Dolphins and put himself up for bid as a free agent. Second, he could dishcharge the $8.6 million obligation as a claim in the case.

Moreover, Ricky could probably still live pretty large in bankruptcy. Assuming he lives in Florida now that he plays for the Dolphins, and assuming he lives like a usual athlete, his house is probably pretty darn nice (usually in the several million dollar range). Because of Florida's unlimited homestead exemption, however, he would be entitled to keep his house in bankruptcy.

This also points up the disingenousness of opponents of bankruptcy reform who say that bankruptcy reform should be opposed because it supposedly does "nothing" to close the homestead exemption. Under current law, as just mentioned, Williams can keep his entire Florida homestead, assuming he lives there. But he was traded to the Dolphins from the Saints just two years ago (2002). If the bankruptcy reform act were actually ever enacted, there would be a 40 month waiting period (3 years and 4 months) before Williams could claim the Florida unlimited homestead exemption, and instead his homestead exemption would be capped. Thus, assuming that I am correct that Williams relocated from New Orleans to Miami when he was traded, the bankruptcy reform act would close the currently-existing loophole. Opponents of reform nonetheless seem to belive that the current system, which would allow Williams to keep a mansion, is more equitable than the system under the bankruptcy reform act.

To tell the truth, it has been a mysterty to me why athletes involved in contract disputes have not previously used bankruptcy as a mechanism for getting out of their contracts. Williams's decision to file bankruptcy to get rid of a contract he doesn't like follows in the footsteps of a wave of such filings in the 1990s, when recording artists similarly filed bankruptcy to try to get out of employment contracts they didn't like. Courts sometimes would toss those as bad faith filings, but there is little chance of that happening with Williams.

Update:

A reader called to my attention some news reports that Williams's agent has been in touch with the agent for Reggie Roby, a former Dolphins punter who threatened to file bankruptcy in the early 1990s in order to get out of his contract. According to reports, the Dolphins "freaked" at the prospect and decided to release him from his contract, so the strategy has never actually been tested (at least tha I have been aware of).

One other reader suggested that rejecting the contract might not make Williams a free agent, however, as the NFL Player's Association collective bargaining agreement might still tie him to the Dolphins, even if he did not actually have a contract with the Dolphins. There is precedent for this view as well, including Terrell Owens last year, whose contract with the 49ers expired, nonetheless, because his agent failed to file the appropriate papers to make him a free agent he was still stuck with the 49ers (who eventually traded him).

Wednesday, October 6, 2004

Department of Education letter to University of North Carolina:

This is the letter that David Bernstein referred to in his Hostile Environment Blowback post below, and it explains why the Department's Office for Civil Rights thought the professor's e-mail about the student's anti-gay comments constituted racial and sexual discrimination and harassment. The always excellent UCLA Law Library has kindly gotten a copy of the letter for me, and I thought I'd put it up.

(Note that there's been a bit of trouble with the UCLA servers today; if you don't get a response when accessing the files, just wait an hour and try again.)

UPDATE: The original post mistakenly said this involved religious discrimination and harassment -- I should have said racial and sexual discrimination and harassment. Sorry; that's the problem with blogging in a hurry. Thanks to reader Richard Riley for correcting this.

Fact-Checking FactCheck.Org: I am a big fan of FactCheck.org. I think they do solid work analyzing the veracity of political claims and ads. I also think that their analysis of the debates has been valuable and even-handed. In their analysis of last night's vice-presidential debate, however, I think FactCheck.org got one wrong.

On the issue of the proportion of casualties in Iraq borne by the U.S., FactCheck.org reported the following:
Cheney disputed Edwards's statement — often repeated by Kerry — that US forces have suffered "90% of the coalition casualties" in Iraq, saying that in fact Iraqi security forces "have taken almost 50 percent" of the casualties.

Both men have a point here, but Edwards is closer to the mark.

Edwards is correct counting only "coalition" forces — those of the US, Britain and the other countries that took part in the invasion and occupation of Iraq. According to CNN.com, which keeps an updated list, 1,066 US service men and women had died from hostile action and other causes during the Iraq operation as of Oct. 5, of a total 1,205 for all coalition countries. That's just over 88% of the coalition deaths.

We know of no accurate count of deaths suffered by Iraqi security forces, but an estimate reported both by the Wall Street Journal and The Washington Post puts the figure at 750. Lumping those estimated Iraqi deaths with fatalities suffered by coalition forces produces a total of 1,955. Of that, the estimated Iraqi portion is 38% (not "almost 50%" as Cheney claimed) and the US total amounts to 55%.
FactCheck.org got the numbers right as far as I am aware. The problem, however, is that FactCheck.org materially misrepresented what Vice President Cheney said. Here is what he said, taken from the debate transcript:
Well, Gwen, the 90 percent figure is just dead wrong. When you include the Iraqi security forces that have suffered casualties, as well as the allies, they've taken almost 50 percent of the casualties in operations in Iraq, which leaves the U.S. with 50 percent, not 90 percent.(cmphasis added)
It is clear from the above that Cheney did not claim that Iraqis accounted for "almost 50%," but rather that Iraqis and other coalition members combined, accounted for "almost 50%" of casualties in Iraq, leaving the U.S. with the other 50 percent. FactCheck.Org's selective highlighting of the relevant passage from Cheney's remarks furthers the misrepresentation.

Again, I generally think the folks at FactCheck.Org do a stand up job. But this time they got one wrong.

Update: In response to reader e-mail, let me offer this clarification. In the post above I am not claiming that Senator Edwards' numbers were wrong. So it is fair to say that Cheney overstate his substantive point when he called Edwards' claim "dead wrong." Cheney's point — as the full exchange makes clear — was not that Edwards was using a false number, but rather that Edwards was using an inappropriate measure of the relative U.S. contribution because he was excluding relevant casualties. My point is not that Cheney's measure was more or less appropriate than that offered by Edwards. Rather, it is that FactCheck.Org's claim that Cheney's number was false is based on a clear misreading of Cheney's words. It is one thing to say that Edwards number was correct, and Cheney's number is inappropriate — as some readers have — it is another to (falsely) claim that Cheney's number is inaccurate. As FactCheck.Org's own calculations make abundantly clear, if coalition and Iraqi security force casualties are combined they account for almost 50 percent of the total casualties — and this is what Cheney said.

One other point worth noting: In the exchange, both Cheney and Edwards referred to casualties. When it came to Iraqi casualty numbers, however, FactCheck.Org used "deaths." As one reader notes, however, casualty counts typically include all those lost to active service, not just those who are killed, so FactCheck.Org may also have undercounted the total number of Iraqi casualties by only reporting deaths. If readers have additional insight on this point, I will post another update.

Update: The VC gets results. FactCheck.Org amends its post.
Most Guantanamo Detainees to Be Set Free?: It's too early to tell if this story will become a reality, but if it does it will be remarkable:
  Most of the alleged al Qaeda and Taliban inmates at the U.S. military prison at Guantanamo Bay, Cuba, are likely to be freed or sent to their home countries for further investigation because many pose little threat and are not providing much valuable intelligence, the facility's deputy commander has said.
  The remarks by Army Brig. Gen. Martin Lucenti in yesterday's edition of London's Financial Times appeared to conflict with past comments by U.S. military commanders who have stressed the value of the information obtained from the detainees and the danger many would pose if released.
  "Of the 550 [detainees] that we have, I would say most of them, the majority of them, will either be released or transferred to their own countries," Lucenti was quoted as saying in the British newspaper. "Most of these guys weren't fighting. They were running. Even if somebody has been found to be an enemy combatant, many of them will be released because they will be of low intelligence value and low threat status.
  "We don't have a level of evidence to feel that we can be confident to prosecute them" all, he added, according to the newspaper. "We have guys here who have never told us anything, except to say that they want to cut off the heads of the infidels if they get a chance."
The CBS investigation will not report until after the election.-- Some bloggers are disappointed or angry that the outside team investigating the CBS story that used the forged Bush Guard documents will not report until after the November election.

I disagree. If I were at CBS, I would do the same thing--wait until after the election for the post mortem. It IS a distraction to the election. Do we really want to be critiquing a CBS report in the week before the election, instead of focusing on the election itself? I don't. Publication in the week before the election would be the best way to bury the story.

The suggestion that I have is that the investigative panel (Dick Thornburgh and Louis Boccardi) post their preliminary report on the internet so that bloggers and the public can comment--pointing out mistakes or important questions unexplored. At least the four or five biggest omissions or mistakes could be addressed in the final report.
Whoops!

In the words of the person who noticed this, "What a difference a [top-level domain] makes":

VICE PRESIDENT CHENEY: Well, the reason they keep mentioning Halliburton is because they're trying to throw up a smoke screen. They know the charges are false. They know if you go, for example, to factcheck.com, an independent website sponsored by the University of Pennsylvania, you can get the specific details, with respect to Halliburton.

Cheney probably meant factcheck.org; factcheck.com is, er, a little different. It's not clear quite how much factcheck.org really helps Cheney's case, but I'm pretty sure that factcheck.com doesn't.

UPDATE: Someone reports: "On a [Democratic] blog last night, the full story appeared. When the VP said .com, someone went there and noticed that the domain wasn't registered. He BOUGHT IT, right then and there, then did a redirect to the Soros site." I don't know whether it's true or not, but it's pretty funny. (I checked the WHOIS record for this, and it reveals that the name had been technically registered a long time ago, but I take it the reader is claiming that the name was owned by a registrar, and was then quickly bought from the registrar.)

FURTHER UPDATE: Reader Neil Klopfenstein suggests that the story behind the factcheck.com site is different, and points to this Wall Street Journal item, cited by Kevin Drum at the now-misnamed Washington Monthly:

FactCheck.com is owned by Name Administration Inc., a Cayman Islands company that engages in so-called "domain parking" -- it acquires discarded Web sites and monetizes the traffic with text advertising. The site had been showing education-related ads, mostly for online-degree programs, when Mr. Cheney mentioned the site during the debate. Suddenly, Name Administration saw a surge in traffic -- about 50,000 unique visitors in the first hour -- which costs the company money for Internet bandwidth, according to John Berryhill, Name Administration's attorney. . . . . So employees redirected traffic to the Soros site, not because of any request nor payment from Mr. Soros's organization or supporters, but based on their own political viewpoints, Mr. Berryhill said. "Individuals within the company are favorably disposed to George Soros's political point of view," said Mr. Berryhill. . . .
Saddam Hussein and the Extraterrestrials:

According to this source, 32% of Americans questioned in a recent poll believe that Saddam Hussein personally planned the 9/11 attacks. And according to this source, 34% of Americans questioned in a recent poll believe in UFOs. All of which leads me to wonder: are these the same people?

Tuesday, October 5, 2004

How to Create a Supreme Court Practice:

Tony Mauro looks into the case of Baker Botts in this interesting article.

First Circuit Grants Rehearing in Councilman Case:

This is great news for Internet privacy. More here and here. Thanks again to Howard for the heads up.

The Truth About Ghostwriting:

In an e-mail published over at Velvel on National Affairs, Judge Richard Posner writes:

The problem is that we no longer have a culture of writing. Writing is now a specialty. So judges, politicians, businessmen, lawyers--and now it seems law professors--increasingly hire ghostwriters (whether they're called ghostwriters, law clerks, or research assistants) as specialists in writing. I am one of the dinosaurs who still does all my own opinion writing (and of course book and article writing as well). You probably are too. But let's face it: we're on the road to extinction.

  Folks, I have a confession to make. Allow me to introduce myself: my name is Larry. I am one of Orin Kerr's ghostwriters. I am part of "Team Blog," the group that writes Kerr's blog posts. There's another group, "Team Law Review," that handles Kerr's legal scholarship. Did you like that recent post exposing the press miscoverage of the Patriot Act? That was me. Maybe you enjoyed the post on the recent Stanford Law grad who was a prostitute? That was me, too. (I'd like to take credit for the Blogosphere Challenge posts, but that series is a combined effort of Cathy, Charles, and Nick-- by the way, great job, guys!) Speaking on behalf of the entire team, we hope you enjoy our work; it certainly annoys us that we get stuck with the writing while Kerr gets the credit. Some guys have all the luck, I guess. Anyway, I should get back to my assignments; Kerr has me looking for a Patriot Act angle to the Stanford prostitute story, and he'll be very upset if I don't find one.

  (Thanks to Howard for the link.)

Hostile Environment Blowback Update:

In this March post, I discussed the case of Elyse Crystall, a left-wing feminist English professor at the University of North Carolina under investigation by the federal Department of Education for alleging subjecting one of her students to an illegal "hostile educational environment" for singling him out for criticism as a conservative "white" "male" "Christian" student in an email to her class. Now comes word that Prof. Crystall has been found to have engaged in illegal activity. In a letter to the UNC chancellor, the DOE's southern regional director of civil rights "The e-mail message not only subjected the student to intentional discrimination and harassment, but also discouraged the robust exchange of ideas that is intrinsic to higher education and is at the very heart of the Constitution's protection of free speech." The DOE chose not to undertake disciplinary action against UNC only because, the Washington Times reports, "Ms. Crystall had apologized for her actions and the university had convened faculty workshops to discourage race and sex discrimination against white, male, Christian undergraduates." Many professors create an intentionally challenging (some would say hostile) environment for students with traditionalist religious beliefs, and I predict that some conservative Christian groups will take the DOE's ruling as an invitation to use hostile environment law against such professors.

Thanks to reader Matt Rustler for the tip.

UPDATE: Now that I've read the DOE's letter, it's clear that its finding of discrimination was based solely on a finding of race and sex discrimination by Professor Crystall. The DOE Office of Civil Rights has no jurisdiction over claims of religious discrimination. I'm not sure if federal law actually bans religious discrimination against students, but many states have laws (or executive orders) banning such discrimination, either in public universities or in all nonreligious universities in the state.

Related Posts (on one page):

  1. Department of Education letter to University of North Carolina:
  2. Hostile Environment Blowback Update:
  3. "Hostile Environment" Blowback:
Fired for Blogging:

Apparently some airlines don't take kindly to flight attendants who blog.

Related Posts (on one page):

  1. Blogging Got Her Fired:
  2. Fired for Blogging:

Monday, October 4, 2004

Is the War on Terror Soft on Crime?: CNN reports:
  The FBI's seismic shift from a broad attack on crime to an intense focus on counterterrorism has resulted in tens of thousands fewer investigations into traditional crimes since the 9/11 attacks, according to a new Justice Department study.
  The detailed analysis by the department's inspector general found that cases related to violent fugitives alone have dropped sharply, with 11,617 fewer opened in 2003 than in 2000.
  The comparison of the two years also shows that in 30 areas where the FBI reduced agents in the wake of 9/11, a total of more than 17,000 fewer cases were opened.
The report itself is available here.
Blogosphere Challenge -- The Final Links: Last week I asked the prowar blogosphere to respond to three questions I had about Iraq. Here are the three questions:
First, assuming that you were in favor of the invasion of Iraq at the time of the invasion, do you believe today that the invasion of Iraq was a good idea? Why/why not?

Second, what reaction do you have to the not-very-upbeat news coming of Iraq these days, such as the stories I link to above?

Third, what specific criteria do you recommend that we should use over the coming months and years to measure whether the Iraq invasion has been a success?
I asked these questions because I wanted to foster dialogue about the war among those with different takes on the war. I figured I would start with the prowar side, get the prowar folks to blog on the kinds of questions that war skeptics have, and then respond with another round of questions.

  I posted the first set of responses (about 35 altogether) in a post you can access here. The remainder of the responses are linked to below in the order I received them:
House of the Dog
Cuz We Said So
The Dead Parrot Society
AlphaPatriot
Right Reason
Heathens, Inc.
Fifth Column
Trigger Finger
sbw
Tiger Hawk
Inside Larry's Head
Technicalities
Jeff the Baptist
Adjoran in the Arena
Flit(tm)
Cabalamat.org
Four Right Wing Wackos
The TrimBlog
Qando.net
BeldarBlog
Political Junky
In the Loop
Kronology
Full Context
Sue Bob's Diary
Hootsbuddy's Place
Winds of Change
Dangerous Dan
PR9000
Hostile.org
Catallarchy
The 80/20 Club
Ogre's Politics & Views
Broken Quanta
Greg's Opinion
Dr. Strangeblog
Centerfield
RussBlog
The Graffiti on the Wall
Lockjaws Lair
The Vast Right-Wing Conspiracy
JDAMs Away
Its not a Bug, its a Feature
For crying out loud
JohnHays.net
Stromata Blog
Thoth
Clue-By-Four
Rite Wing TechnoPagan
  My plan is to read through these answers and post some follow-up questions in a few days. Stay tuned. In the meantime, thanks again to everyone who participated.
Thugs 1, Canadian university 0:

Segacs's World I Know reports on Concordia University (Montreal) refusing to let Ehud Barak -- a former Israeli prime minister -- speak on campus. Here's an excerpt from the university's press release:

During the summer the Office of the Vice-President Services received an initial request from Hillel to hold a public lecture by former Israeli Prime Minister Ehud Barak in the Henry F. Hall Building on our downtown Sir George Williams Campus. After a security assessment, this request was denied.

A series of exploratory discussions ensued about this request with various parties who take pride in Ehud Barak's accomplishments and contributions. . . . Our Director of Security, Mr. Jean Brisebois, oversaw an evaluation of both sites on the Loyola campus, in collaboration with members of the security forces that would be involved in such an event. It was their collective, professional assessment that the security of the guest speaker, the attendees and faculty and students could not be guaranteed at either location. . . .

We at Concordia are cognizant of our responsibility as an institution of higher education to foster free speech and debate on a multitude of issues. Former Prime Minister Ehud Barak's pioneering record as an international figure standing for conciliation, understanding and negotiation precedes him. . . . It is unfortunate, but a reality nonetheless, that the safety of its community members and guests must occupy a central position in planning events at an institution dedicated to free speech. . . .

I sympathize with the university's position, assuming that their reason for saying no is candid. But the bottom line is that the thugs -- those whose possible actions would jeopardize the "safety of [Concordia's] community members" -- have won: They have kept the university from engaging in an important part of its academic mission (bringing important ideas and people to help educate their students). And when thugs win once, it seems to me that this simply emboldens them to spread their thuggery more broadly. A sad day for Canadian higher education.

Thanks to InstaPundit for the pointer.

Patent for "method of concealing partial baldness,"

"A method of styling hair to cover partial baldness using only the hair on a person's head. The hair styling requires dividing a person's hair into three sections and carefully folding one section over another." The patent is right here — but don't try this, er, "practice" it, at home, lest you infringe.

No, I can't speak with confidence as to whether the patent would stand up, since I'm not a patent law expert. But I'd bet that if a case came to court, the patent would probably be invalidated.

Thanks to my friend Haym Hirsh for the pointer.

UPDATE: Reader Tom Hynes points to what I should have checked at the outset -- the patent was granted in 1977, when I believe the term of protection was 17 years from the date of the grant. The method is thus now in the public domain, so comb over to your heart's content! (Tom, Haym, and I all want to assure you, though, that we have fine heads of hair, and the patent is thus of purely academic interest to us.)

"Speech as Conduct":

I'm pleased to say that Speech as Conduct: Generally Applicable Laws, Illegal Courses of Conduct, "Situation-Altering Utterances," and the Uncharted Zones will be published next year in the Cornell Law Review, a journal I've always greatly respected.

October Term 2004 and the Press: Today is the First Monday in October, the official statutory beginning of the new Supreme Court Term. As you might expect, the reporters who cover the Supreme Court are offering lots of preview stories to tell us what we can expect in the Term ahead. (For those who don't follow such things, the Supreme Court year runs from October to October, and each year is called a Term. To put things into English, today is something like the Supreme Court's first day of school.)

  The strange part about Term preview stories is how little the stories can tell you. The stories are well written and generally quite accurate, but the truth is that we just don't know much about the new Term yet. We know the issues raised by the cases the Court has agreed to hear in the fall and early winter, but that's about it. No one knows how the Court will decide these cases, and no one knows what cases the Court will decide to hear for the latter half of the Term. (The Court agrees to hear cases throughout the year, and has only filled up about half of its docket for the Term so far.)

  On another note, it wouldn't be the beginning of a Supreme Court Term without a New York Times editorial explaining to the Justices how they should do their jobs. Today's editorial, The First Monday in October, begins by telling the Justices how they should rule in their major cases. The Times editors tell the Justices to uphold the guidelines, invalidate the death penalty for juveniles, and bar the use of segregated prisons. The editorial concludes by giving the Justices a homework assignment: given the possibility of another close election, the Times editors instruct, the Justices should "beg[i]n to think now about how they could do a job better this year if the presidential election once again ends up on their docket."

  Meanwhile, the Washington Post offers a lighter approach: their Federal Page offers a trivia quiz on Supreme Court law clerks. I missed questions #3 and #10.

Sunday, October 3, 2004

More D.C. Baseball Team Names:

Brian Doss has some clever suggestions. And a reader suggests "The Washington Disenfranschised."

Related Posts (on one page):

  1. More D.C. Baseball Team Names:
  2. Naming the New D.C. Baseball Team:
This Sweet Old World:

My friend Stewart Baker reports this item, which isn't news, but was news to me:

The prospects for life in the Universe just got sweeter, with the first discovery of a simple sugar molecule in space. The discovery of glycolaldehyde in a giant cloud of gas and dust near the center of our own Milky Way Galaxy was made by scientists using the National Science Foundation's 12 Meter Telescope, a radio telescope on Kitt Peak, Arizona.

"The discovery of this sugar molecule in a cloud from which new stars are forming means it is increasingly likely that the chemical precursors to life are formed in such clouds long before planets develop around the stars," said Jan M. Hollis of the NASA Goddard Space Flight Center in Greenbelt, MD. . . .

Glycolaldehyde, an 8-atom molecule composed of carbon, oxygen and hydrogen, can combine with other molecules to form the more-complex sugars Ribose and Glucose. Ribose is a building block of nucleic acids such as RNA and DNA, which carry the genetic code of living organisms. Glucose is the sugar found in fruits. Glycolaldehyde contains exactly the same atoms, though in a different molecular structure, as methyl formate and acetic acid, both of which were detected previously in interstellar clouds. Glycolaldehyde is a simpler molecular cousin to table sugar, the scientists say. . . .

What next? Space Rum? Space doughnuts?

Chicago Defender on the New Deal's National Industrial Recovery Act:

[Text: "Dear, the old factory is now a member of the "NRA" which means I'll get better wages and better hours. Later: Under the "NRA" this factory shall advance hours and minimize wages of all employees. Henceforth we shall employ white help only."]

The Defender was the largest and most influential black newspaper of its day. Historian David Beito has discovered that it published many cartoons critical of New Deal policies, and especially of the disemployment effects of the NRA on African Americans. Historians have tended to gloss over the extent to which New Deal regulatory programs, especially minimum wage laws, prounion legislation, and the Agricultural Adjustment Acts, were pursued at the expense of African Americans. They prefer to focus instead on the New Deal's contributions to African American well-being, such as the employment blacks received on WPA projects. As historian Ken Kersch has noted, during the New Deal African Americans recognized that their future fate lay in their ability to form an effective interest group within the emerging regulatory state. The black leadership had no choice but to abandon its prior support for laissez-faire and opposition to coercive unionism in favor of a far more statist agenda.

Saturday, October 2, 2004

The New Report Supporting the Bush Guard Memos Falls Apart.-- [[Oct. 3 update: I added pictures from Paul's post at Wizbang to this early Oct. 2 post.]] I have waited to post on this until things are mostly sorted out, but I expect much more to come out today, when Wizbang (who broke this story) provides significant updates.

Several days ago, Associate Professor David Hailey of Utah State University posted a report on the internet that purported to provide evidence for his opinion that the Bush Guard memos were typed. As you know, virtually every competent expert who had come forth concluded that the memos were almost certainly produced on a computer, probably using Times New Roman font in Microsoft Word.

CBS producer Mary Mapes was so impressed by Hailey's report that she sent it out to support the story.

People were amazed that Hailey had come up with a typewriter that could come fairly close to producing text from the memos (but not as close in my opinion as Microsoft Word). Naturally, people were curious what sort of previously unknown typewriter it was that could produce a font that looked like computer output. Strangely, Hailey didn't say in his report.

But as Paul and Kevin at Wizbang (and later other bloggers) began to look at the report, it began to collapse. Wizbang disclosed that the superscript "th" looked very different from the rest of the type. Indeed, it appeared as if it had been floated into place using a program such as PhotoShop. [[Click to enlarge.]]

Then Wizbang discovered what might be the smoking gun: on Hailey's own website, they discovered what appears to be an earlier draft version of the same document that had most of the text that Hailey had produced using the font "Typewriter." But where the superscript was supposed to be, there was only a blank, as if he had not yet floated in the superscript from another font. There were also some numbers missing from the draft document in places where numbers from another font were later floated in.

[[10/3: Paul added red lines to Hailey's draft to show some of the missing text; click to enlarge.]]

Once caught, Hailey changed his report online, without indicating that he had changed it. In the new version of the report, he disclosed that he had created his document, not on a typewriter as everyone had supposed, but instead using a computer font. He added this language, confessing for the first time that he had not typed the text supposedly matching the Killian memos:
I was able to recreate most of the defining characteristics using a font called "ITC American Typewriter Condensed." Once I had identified the font family, I recreated the memo using characters from that font family [he is here only hinting that he combined characters from different fonts]. Do not misunderstand figure 4. My addition is not typed. It is replicated based on the characters already in the memo using a font [not true, he used more than one font] from the typewriter family as my template. It does not prove that the memos were typed, or that I can type them. It only proves that I know what the font family is and can reasonably accurately reproduce the characters in the memo. The reproductions in the memo demonstrate that and nothing more.
Going back over the original memo, it appears that he never actually said that he generated his version of the memo on a typewriter, though anyone would certainly get that impression. It was not appropriate for him not to have originally disclosed that he created the memos using computer fonts, when the other experts had claimed that that is precisely how the forgeries were produced.

Further, how can one conclude that the memos were produced on a typewriter and not using a modern computer program such as Microsoft Word if the best that you can do is produce a rough copy using a modern computer program (did Hailey also use Microsoft Word to create his copies, just like the forger)?

Moreover, the font that Hailey disclosed that he used (ITC American Typewriter Condensed) is a poor fit for the memos and (according to comments on Wizbang) was not in existence until 1974, after the memos were written. Indeed, it was such a poor fit that (apparently) Hailey had to get numbers and the superscript "th" from other fonts in the same family and insert them in the documents. Hailey has not been able to produce a typewriter that used ITC American Typewriter Condensed in 1972, because none ever existed.

To see why his font is not a good match, in the three relevant fonts (the Killian font, MS Word Times New Roman, and ITC American Typewriter Condensed) in the headers to this Killian memo compare the following characters: M, R, J, 9, 7, 2. It's pretty obvious that Times New Roman is a much closer match than ITC American Typewriter Condensed.

In light of all this, consider the beginning of Hailey's Report, the Abstract:
ABSTRACT

The following evidence from a forensic examination of the Bush memos indicates that they were typed on a typewriter:

1. The specific font used is from a typewriter family in common use since 1905 and a typewriter capable of producing the spacing has been available since 1944.
Since Hailey was not able to identify the "specific font," instead creating his copy by picking and choosing characters from different fonts (without disclosing that fact in his original report, and only hinting at it in the current report), it would be impossible for him to make this claim. Yet it is the first "fact" in his abstract.


In the report itself, he goes even further:
The font is a common typewriter typeface invented at the beginning of the 20th century and in continuous use until the computer replaced the typewriter. The font's name is "Typewriter." Although the typeface was somewhat modified for civilian communities in the 1960s, it remained commonplace in the military well into the 1970s. In short, the Bush memos were produced in a version of Typewriter commonly used in the military at the time.
This is quite stunning. Hailey has not identified the font used and he used more than one font to create his relatively poor copies, yet he confidently asserts the name of the font and when it was created. Then, without having located any machine that used the main font that he actually used to create his copies (ITC American Typewriter Condensed), he asserts flat out that "the Bush memos were produced in a version of Typewriter commonly used in the military at the time." How could he know this without having identified the font used or found any machine in 1972 that could have produced it? Obviously, he couldn't. Hailey has no substantial basis, scholarly or otherwise, for making these claims.

To say that his report is shoddy scholarship would be an understatement.

There is another reason that I have not posted until now, besides the one mentioned earlier—that is the tone of the criticisms. I do not endorse any claims that have been made that Professor Hailey committed fraud, nor do I think that he should lose his tenure as some have suggested. I believe that Hailey misled people by not disclosing that most of his documents using multiple "Typewriter" fonts were not produced on a typewriter, and that Hailey is still not being fully candid by not disclosing clearly enough that the font he favors was such a poor match that he had to import characters from at least one other font (perhaps from the same "family"). I do not, however, believe that he should be subject to more than the normal punishment for extremely shoddy scholarly work—the disapproval of his peers.

I will continue to give Hailey the benefit of the doubt and assume that in the next few days, he will begin making amends.

UPDATE: Instapundit comments on my post (in which I corrected some of my typos):
COMING NEXT, AN EFFORT TO REHABILITATE PHLOGISTON CHEMISTRY: Jim Lindgren notes that an attempt at demonstrating that CBS's forged documents might have been done on a typewriter has fallen apart.

This is hardly a surprise, of course. But it wouldn't be much of a vindication for CBS even if, through some miracle, the documents turned out to be genuine. It's quite clear now that CBS acted without concern for the genuineness of the documents, and in fact in the teeth of opinions from its own experts that the documents were probably bogus. No amount of after-the-fact lawyering can change that evidence of journalistic bias and ineptitude, though CBS's namecalling of its critics, and general stonewalling, compounds the offense and moves it from negligence to the category of 'reckless disregard."
2D UPDATE: Definitely go read Paul's new description of many of the things he discovered and revealed earlier. It provides the visual evidence that my account lacks, as well as being an account from the people who have owned this story--Wizbang.
Bush's uncomfortable exchange with O'Reilly about the Swift Vet ads?

--Watching part of Bush's interview with Bill O'Reilly (tip to Instapundit), I found Bush's responses to questions about Rove having prior knowledge of the Swift Boat ads to be odd, to say the least. Of course, Bush can look uncomfortable even when he is saying something that he deeply believes in, but he looked awfully sick to his stomach in this exchange:

O'REILLY: You didn't know anything about the Swift Boat ads before they went on the air, did you?

BUSH: No. I didn't.

O'REILLY: Did Karl Rove know anything about it?

BUSH: I don't think so. In other words, you're asking if anybody coordinated this in our campaign?

O'REILLY: No, whether they'd give you a heads up they were going to do it.

BUSH: Not to my knowledge.

Now if Rove had advance knowledge of the timing of the Swift Boat ads, that doesn't necessarily mean that Rove was coordinating the ads (as our readers have pointed out about all the Democrats who had advance knowledge of the CBS Guard and Yellowcake stories), but it would be relevant to such a question.

The tape and the transcript are available here. To see the relevant passage, click on VIDEO, then Tuesday, Part II; wait for the actual interview to start and move ahead to near the end.

Friday, October 1, 2004

Three Questions on Iraq -- The Challenge Has Ended:

Thanks to everyone who participated in my blogosphere challenge by sending me links to posts on the three questions I raised about the war in Iraq. I received in the neighborhood of 90-100 responses, and hope to post links to all of the responses sometime over the weekend. I also expect to respond myself to a few of the common arguments to see if we can advance the debate a bit more.

ACLU Fights Back Over "Patriot Act" Coverage: It seems that the ACLU's temporary success mispresenting the nature of Wednesday's court decision has led to some heat being directed back at the ACLU. Corrections have been run at several papers, and the ACLU's misleading description has become a bit of a story itself. How does the ACLU respond? With another press release:
  ACLU Blasts Justice Department's Attempts to Manipulate Truth About Patriot Act Ruling
FOR IMMEDIATE RELEASE
  NEW YORK - In what appears to be a concerted campaign to mislead the American public, the Department of Justice and some of its Republican allies in Congress are attempting to minimize the impact of landmark ruling this week against so-called National Security Letters and the provision of the Patriot Act that broadened their use by the FBI.
  "The Justice Department should spend less time spinning this landmark decision and more time trying to fix the law," said Anthony D. Romero, Executive Director of the American Civil Liberties Union, which brought the successful challenge to the Patriot Act provision along with the New York Civil Liberties Union.
  At issue is a Sept. 29 ruling by a federal court striking down a provision that gave the FBI virtually unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The Patriot Act dramatically expanded that provision by permitting the FBI to obtain records of people who are not suspected of any wrongdoing.
  In an e-mail message sent yesterday to Senate leaders and their staffers, a Senate Republican Policy Committee analyst claimed that news reports that the ruling had invalidated a Patriot Action provision were "false." The analyst, Steven J. Duffield, said that because the court's ruling also struck down the underlying 1986 law that the Patriot Act amended, the decision should not be viewed as a blow to the Patriot Act, as reported by many national newspapers.
  ACLU Associate Legal Director Ann Beeson called the e-mail message a desperate attempt to insulate supporters of the Patriot Act from criticism. "There is no question that the court struck down a provision of the law that was dramatically expanded by the Patriot Act."
  So wait-- there is an alleged campaign to mislead the American people because someone sent an e-mail to Senate leaders and their staffers? Wow. That's quite a campaign.

  More substantively, note how the ACLU has shifted ground from its original position to something rather different. In its original press release, the ACLU claimed that the court had struck down a key provision of the Patriot Act in a rebuke to the Bush Administration. This time around, the ACLU makes no mention of its earlier claim and instead vigorously defends different, more accurate ground — that this was a 1986 law that was expanded by the Patriot Act. This is true. But who has said anything to the contrary? That is, except the ACLU?

  I don't want to be unfair. The ACLU does lots and lots of great work, and the organization has played a vital role in many areas of law. Ann Beeson is a very skilled and highly effective lawyer. But it seems to me that when you get caught trying to play games like this, it doesn't help your credibility to switch positions and then "blast" your critics for mounting "a concerted campaign to mislead the American public." I expect better from the ACLU, and I am disappointed by this.
Unfounded infringement claims by copyright owner

lead to damages award against it. Larry Lessig reports:

EFF and CIS received news of a huge victory yesterday in the Diebold case. In an opinion released yesterday, the Court held 512(f) of the DMCA could be used affirmatively against the company for its baseless claims of copyright infringement brought against the Swarthmore students who posted memos from Diebold on the net. These are the same amazing students who then launched the Free Culture Movement.

The post links to the opinion, which is pretty short and readable -- the basic conclusion is that the students' posting of internal Diebold memos was so clearly a fair use that Diebold must have known that the students weren't infringing (or at least should have known this); therefore, under section 512 of the Copyright Act, it's liable for knowing material misrepresentation in its letter to the ISPs that claimed the documents were infringing and thus had to be taken down.

And while I'm bragging

about my coblogger Orin's success, here's something from a UPI story about Sen. John Cornyn's press conference on that decision holding unconstitutional a secret subpoena:

[Sen.] Cornyn noted that the erroneous coverage was apparently first spotted by a George Washington University law professor named Orin Kerr, who wrote about it on a web site call "The Volokh Conspiracy."

"It's another victory for the bloggers," said Cornyn.

We've feen fark'ed: Thanks chiefly to a Fark.com link to Orin's post about the media's reporting on the recent decision invalidating a secret subpoena provision, we had nearly 27,000 unique visits yesterday, according to eXTReMe Tracking, and about 32,000 counted by SiteMeter. Not much by the standards of some sites, but I believe a new blog record.
The Volokh Conspiracy Gets Results:

In light of yesterday's posts (see here and here) on how the press misreported Wednesday's court decision allegedly striking down part of the Patriot Act, it is worth pointing to the first item on the Corrections Page of today's New York Times:

An article yesterday about a judge's ruling to invalidate some federal surveillance powers referred incorrectly to a subpoena statute that was struck down. While the statute - authorizing the use of subpoenas known as national security letters - was amended by the antiterrorism legislation called the USA Patriot Act, it was not created under that act. It was enacted in 1986 and amended several times, including once in October 2001 under the Patriot Act, to expand its application. The judge's ruling analyzed and struck down the statute as a whole, including provisions that predated the Patriot Act.

The correction also appears at the end of the electronic copy of the article available on the Times website, along with a header in bold at the top of the article that announces "Correction Appended."

  The correction is misleading in a way: it does not point out that the statute was invalidated for reasons unrelated to the Patriot Act amendments. At a minimum, I would change that last sentence to read, with my change in bold: "The judge's ruling analyzed and struck down the statute as a whole, including provisions enacted under the Patriot Act." Still, the correction makes a decent effort to clarify the facts. Good for the Times. I haven't checked to see if other papers made corrections, but I suspect very few have.

UPDATE: The Washington Post has run a correction as well:
A Sept. 30 article said that a federal judge in New York found a key component of the USA Patriot Act unconstitutional. At issue in the case was the Justice Department's use of "national security letters," a type of administrative subpoena that allows federal agents to demand records from businesses and prohibits the companies from revealing that the demands were made. While the Patriot Act loosened restrictions on the use of the letters, most of U.S. District Judge Victor Marrero's ruling focused on earlier statutes governing the letters.
Naming the New D.C. Baseball Team:

I firmly believe that professional sports team names should reflect something important about the city. For example, the "New Orleans Jazz" was a great name, the "Utah Jazz" an abomination. I've been thinking about names for the new D.C. baseball team. As a resident of the region, I'm partial to the "Washington Stuck in Traffics," the "Washington Long Commutes," or the "Washington Everyone Here Seems to be a Lawyer or Federal Workers." Because the team will be in D.C. itself and not suburban Arlington, as seemed more plausible at one time, perhaps it could go with the "Washington Hopeless Bureaucracys," "Washington Terrible Public Schools," or "Washington Thank God Marion Barry Isn't the Mayor Anymores." However, the D.C. baseball tradition suggests that the team should choose a name that reflects the presence of the federal government, as in the old "Senators." But I don't think that the "Senators" name really reflects the essence of the city, the way the "Jazz" seemed to for New Orleans. I've come up with three favorites. First, the relatively bland but telling "Washington Lobbyists." Second--and this one is too really too obscure for the mainstream, but it's my personal favorite--the "Washington Rentseekers." Finally--and I really think I have a winner here--the "Washington Special Interests."

UPDATE: Name suggestions are pouring in. Several readers suggested the "Gridlocks," which applies both to common local political and traffic conditions; the Wall Street Journal apparently came up with that one. Other suggestions that I like: "Washington Military Industrial Complex" (here's a witty post on the problems created by sports team names that are singular instead of plural); "Washington PACs"; "Washington Wonks" (points for alliteration); and "Washington Deficits." Also, a reader reports that "sports talk show on WTEM the other day had a suggestion to honor a major historical event in Washington - name them the "Washington God Damn Bitch Set Me Ups."

Related Posts (on one page):

  1. More D.C. Baseball Team Names:
  2. Naming the New D.C. Baseball Team:
A comment on the debates.

--I personally find it hard to watch either Bush or Kerry speak, especially when it counts, such as in a debate. Both did a little better than I thought they would. I thought Kerry won on style and Bush won on substance, though Kerry certainly had some moments where he gave strong answers that would have broad appeal--such as a list of all the things he would do at home to make the US safer. I should also add that in the past I have been a terrible judge of who wins these things.

Jim Geraghty on Kerry Spot on NRO has been particularly strong in the last few weeks--worth checking regularly. I thought that this comment from one of Geraghty's readers summed some problems with Kerry's arguments:

"To summarize his [Kerry's] comments: It's the wrong war at the wrong time, but I'm committed to winning it; We're spending too much on Iraq ($200 billion), but I'd send more troops and equipment; I'll bring in more nations to help Iraq, but the other nations currently in Iraq were coerced and do not provide much assistance; Saddam and Iraq were a grave threat, but Osama is the only terrorist worth pursuing; Terrorists are pouring into Iraq, but Iraq is a distraction to the war on terror. I still have no idea what he would do as President to fight this war on terrorism."

Thursday, September 30, 2004

More on the Mainstream Media: Following this post, several readers have asked me where the press got the idea that the recent court decision in New York invalidated a major part of the Patriot Act. I assume the main source is this ACLU press release, which begins:
In ACLU Case, Federal Court Strikes Down Patriot Act Surveillance Power As Unconstitutional

FOR IMMEDIATE RELEASE
  NEW YORK - Saying that "democracy abhors undue secrecy," a federal court today struck down an entire Patriot Act provision that gives the government unchecked authority to issue "National Security Letters" to obtain sensitive customer records from Internet Service Providers and other businesses without judicial oversight. The court also found a broad gag provision in the law to be an "unconstitutional prior restraint" on free speech.
  "This is a landmark victory against the Ashcroft Justice Department's misguided attempt to intrude into the lives of innocent Americans in the name of national security," said ACLU Executive Director Anthony D. Romero. "Even now, some in Congress are trying to pass additional intrusive law enforcement powers. This decision should put a halt to those efforts."
  The American Civil Liberties Union and the New York Civil Liberties Union, which brought a challenge to the law earlier this year, hailed the ruling as a signal blow to the current administration's efforts to expand government surveillance powers in violation of the Constitution.
  "Today's ruling is a wholesale refutation of excessive government secrecy and unchecked executive power," said ACLU attorney Jameel Jaffer. "As this decision suggests, certain provisions of the Patriot Act should never have been enacted in the first place."
  The ruling is the first to strike down any of the vast new surveillance powers authorized by the Patriot Act.
  I can understand the difficulties that long and complicated legal opinions raise for many reporters. Imagine you are a reporter who covers legal issues and terrorism. It's late on a Wednesday afternoon, and a court hands down a 122-page legal opinion. You have just a few hours to write a story on it. The Justice Department declines comment, so that's no help. But then the ACLU gives you a nice and easy-to-understand press release that tells you what the opinion does, what it means, and offers a few great soundbites. With a deadline just a few hours away, what are you going to do — wade through 122 pages of hypertechnical legalese yourself, or base your story at least in large part on the ACLU's press release?

  UPDATE: Senator John Cornyn of Texas is on the case. As I understand it, he held a press conference on this earlier today and mentioned my earlier blog post.
GO ARNIE:

Congratulations to Governor Arnold for vetoing a counterproductive piece of legislation in California that would have imposed new disclosure requirements on pharmaceutical benefits managers. As the FTC noted in an analysis of the bill (from the press release):

The staff analysis finds that AB 1960 is likely to have an adverse effect on consumers in two ways. First, mandated disclosures may actually increase prices. "Whenever PBMs have a credible threat to exclude pharmaceutical manufacturers from their formulary, manufacturers have a powerful incentive to bid aggressively. . . Whenever competitors know the actual prices charged by other firms, tacit collusion - and thus higher prices - may be more likely. It is for this reason that California law requires the state to use sealed bids to procure desired goods and services whose value exceeds $25,000," the FTC's letter states.

Second, the bill has a number of provisions that are likely to make drug substitution more expensive. PBMs frequently use drug substitution to reduce costs and promote competition between branded drug makers. Generic substitution is encouraged by the FDA and widely recognized as safe, and California already requires prescriber approval for the substitution of one branded drug for another. Because current safeguards appear sufficient to protect consumers, AB 1960 is likely to increase costs to consumers without providing any additional benefits.

The Governor's veto message points to the FTC analysis as influencing his decision to veto it.

Supreme Court to Hear Medical Cannabis Case on November 29th: Some may have noticed that I have been blogging a lot less of late. There are probably several reasons for this, among which is the work I have been doing on Ashcroft v. Raich, the medical cannabis case now before the Supreme Court. Our brief is due in 2 weeks and, this weekend, we made a major breakthrough in our Commerce Clause argument. (I cannot disclose it now, of course. Wouldn't be prudent.)

Yesterday the clerk announced that the Court will hear argument in the case on Monday, November 29th. So expect blogging by me to be intermittent at best until then.
Welcome Jim Lindgren! A belated welcome to my friend Jim Lindgren of Northwestern. Jim and I were once on the same faculty at Chicago-Kent College of Law, and it is good to be colleagues again. I am sure the same attention to factual detail that led to Jim's exposure of the fraudulent gun ownership data of Michael Bellisiles along with his boundless enthusiasm will make Jim a truly excellent blogger. I look forward to reading his future posts.

Update:The immediate response of one reader: "Oh, THAT Jim Lindgren. I knew his name sounded familiar. Excellent!" Indeed it is.

Mainstream Media Ruled Unconstitutional: No, not really. But is it too much to ask that when the mainstream media reports on court decisions that they properly identify the law that is struck down and the Administration that is rebuked? Apparently it is, at least if the Thursday morning papers are any guide.

  As I noted in my post below, a recent decision of the Southern District of New York struck down part of a 1986 law known as the Electronic Communications Privacy Act. How does the press report the decision? No mention of the 1986 law, of course. Instead, the press is reporting that the court struck down a major part of the Patriot Act, in a blow to the Bush Administration's overzealous response to terrorism. As I trace the history of the statute, this is quite inaccurate: the basic law was implemented in 1986, almost 20 years ago. To be fair, the Patriot Act did amend some language in this section; just not in a relevant way. As best I can tell, the court's decision does not rely on or even address anything in the Patriot Act. (See page 14-22 of the Court's opinion for the details of the statute's history.)

  But of course you don't get that from the mainstream press, which likes to report everything related to terorrism as if it were the Patriot Act. Here is the New York Times:
Judge Strikes Down Section of Patriot Act Allowing Secret Subpoenas of Internet Data
By JULIA PRESTON
  A federal judge struck down an important surveillance provision of the antiterrorism legislation known as the USA Patriot Act yesterday, ruling that it broadly violated the Constitution by giving the federal authorities unchecked powers to obtain private information. The ruling, by Judge Victor Marrero of Federal District Court in Manhattan, was the first to uphold a challenge to the surveillance sections of the act, which was adopted in October 2001 to expand the powers of the federal government in national security investigations. The ruling invalidated one piece of the law, finding that it violated both free speech guarantees and protection against unreasonable searches. It is thought likely to provide fuel for other court challenges.
The Washington Post goes out of its way to construe the decision as a rebuke to the Bush Administration:
Key Part of Patriot Act Ruled Unconstitutional
By Dan Eggen
  A federal judge in New York ruled yesterday that a key component of the USA Patriot Act is unconstitutional because it allows the FBI to demand information from Internet service providers without judicial oversight or public review. The ruling is one of several judicial blows to the Bush administration's anti-terrorism policies in recent months. . . . Marrero's ruling is the latest setback in the courts for the Bush administration's terrorism policies, which civil libertarians and some lawmakers consider overly broad. The Supreme Court ruled in June that detainees held as "enemy combatants" may challenge their confinement through the U.S. courts. Two rulings by federal courts in California have also struck down portions of statutes making it a crime to provide "material support" to terrorists. . . . But the ACLU argues that Marrero's ruling is a warning to the government about some of its tactics in the war on terrorism. "This is a wholesale refutation of the administration's use of excessive secrecy and unbridled power under the Patriot Act," said Ann Beeson, an ACLU lawyer. . . .
Not to be outdone, the Associated Press offers a similar story (could it be that they are all reading from the same script?):
Judge blocks part of Patriot Act
  NEW YORK (AP) — Declaring that personal security is as important as national security, a judge Wednesday blocked the government from conducting secret, unchallengeable searches of Internet and telephone records as part of its fight against terrorism. The American Civil Liberties Union called the ruling a "landmark victory" against the Justice Department's post-September 11 law enforcement powers.
  Of course, many readers may consider the identity of the law at issue as a minor point; after all, the important thing is that the law was struck down, not whether it was a 1986 law or a 2001 law that was at issue. But I think the label matters, actually, and that it matters a lot: the mainstream media has created a monster called the Patriot Act that has millions of Americans terribly worried about the government in general and the Bush Administration in particular. The early reports are trying to view this ruling as a rebuke to antiterrorism strategies of the Bush Administration, but that's just not accurate: if anything, it is a rebuke to the antiterrorism strategies of the Reagan Administration.

  Finally, if I'm missing something, please let me know; there's always a risk when I blog this late at night that it's me missing the obvious, not the Washington Post, New York Times, and Associated Press.
Interesting Interview With the Principals in CBS Draft E-mail Hoax.

--INDC Journal has interesting interviews with the reporter and producer of the CBS story spreading the email selective service hoax. It is surprising that they can't see that spreading a hoax that has been debunked might be more than a tad irresponsible.

MoveOn is pressing CBS to run yet a third questionable story. As if CBS isn't in enough hot water already after running two stories in one month based on phony documents, MoveOn.org has started a lobbying campaign to get CBS to run yet a third false story (hat-tip Kerry Spot). This one, on the attempts by Iraq to get Yellowcake uranium in Africa, was bumped from its original broadcast slot by the Bush Texas Guard story.

Here is MoveOn's call to arms:

Date: Monday, September 27 From: Peter Schurman, MoveOn.org Subject: CBS censoring the truth about Bush's case for war

Dear MoveOn member,

President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents. For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush's case for war.

Now, CBS' 60 Minutes program has uncovered new and important revelations about the Bush administration's reliance on the documents. But, in an unprecedented and astonishing move, CBS bumped the report back until after the election, saying it would be "inappropriate" to air the piece when it might interfere with the political season.

It's outrageous that a major TV news outlet would censor an important piece of news for political reasons. Especially since this report has met CBS' standards for accuracy — it's true. One can only assume that CBS is buckling under pressure from the right — and that's just plain wrong.

Call CBS and its parent company, Viacom, now, at: . . . .

The reason that CBS publicly gave for further postponing the story (that it was too close to the election) was indeed inappropriate on its face (unless of course CBS in the 2 months before the election would run investigative stories only if they favored one candidate).

But there are other better reasons for CBS not running the story. First, it is false. Note that Moveon claims:

"President Bush based his famous and false claim that Iraq was seeking uranium from Niger on a set of crudely forged documents."

It would be hard to write a sentence with more errors in it, given what many have revealed in recent months (examples here and here). First, Bush did not mention Niger, but rather Africa. Second, Bush stated what British intelligence found, an analysis that has never been revoked and has recently been confirmed. Third, the administration did not even have possession of the forged documents when Bush made his statement, and it recognized the documents as doubtful almost immediately after they did get their hands on them. Last, one of the intelligence reports released this summer confirmed Bush's original claim about British intelligence and showed that Joseph Wilson had not been truthful about what he had told the CIA at the time--that Wilson himself had reported probable Iraqi attempts to get Yellowcake.

Moveon's second sentence is similarly ridiculous:

"For the last two years, no one has uncovered who falsified these documents, which lie at the heart of Bush's case for war."

Not only were the documents NOT part of Bush's case for war, the Italian con man who was caught forging the documents has confessed that he created them for French intelligence.

If CBS had run this story, they would have shot themselves in the foot yet again--pushing another false tale that happens to hurt the President.

UPDATE: I was just thinking: how does MoveOn know what CBS was going to say in their report? How do they know that CBS wouldn't have focused on French attempts to undercut the war, the Bush administration's quick skepticism about the documents, the exposure and public discrediting of Joseph Wilson this summer, and the vindication of Bush's claim, which so many critics still don't want to face? Hmmm . . .

2d UPDATE: Wizbang explains how MoveOn knew about what CBS had said in a story that hadn't run yet. It appears that CBS gave a tape of their half-hour story (before its scheduled broadcast) to organizations that share CBS's orientation, such as Salon. Salon has a long, credulous description of CBS's story, with direct quotes (nonmembers are subjected to a long ad to get a free day pass to Salon Premium).

People have been wondering why CBS, who was taken in by Joe Wilson earlier, hasn't recanted their earlier embrace of his now discredited claims. Rather than admit their earlier mistake on Wilson and apologize, CBS had planned to use him again in the postponed story, allowing Wilson to make the same false claims that left him so discredited that the Kerry campaign removed their Wilson page.

It's time for bloggers who know more about the Niger story than I do to fact-check and document the false claims that CBS planned to run (many of which are in the Salon story). If these three stories (memogate, the email selective service hoax, and the Niger yellowcake) are representative of what CBS can do in just one month, CBS management must stop pretending that politics doesn't matter. They should integrate their newsroom politically. And if they are going to team up to do a story with a blogger, perhaps they might next time team up with a blogger who might fill in their blindspots, rather than one who would magnify them.

3d UPDATE: A reader points out that it is incorrect to say that an Italian suspect has confessed to forging the documents. Rather, an Italian who conveyed the documents has "confessed" to procuring them (claiming that he thought them genuine) and to working for French intelligence (see here and here) in the matter.
District Court Invalidates Part of Electronic Communications Privacy Act: District Judge Victor Marrero of the Southern District of New York issued a 122 page opinion in Doe v. Ashcroft yesterday invalidating 18 U.S.C. 2709, the "national security letter" provision of the Electronic Communications Privacy Act, on Fourth and First Amendment grounds. This is big news: it might require heavily increased reliance on the controversial Section 215 powers of the Patriot Act, and creates considerable constitutional uncertainty as Congress heads into debates on revisiting the Patriot Act in 2005. To make matters more interesting, the Court's Fourth Amendment analysis is rambling, self-indulgent, and rather odd — all of which will set up an interesting appeal in the Second Circuit. One warning, though: I'm a Fourth Amendment specialist, not a First Amendment scholar, so I am going to blog on the former and not the latter. I'll leave the First Amendment part for Eugene in case he feels like blogging on it.

  First, a bit of introduction. Section 2709 allows the FBI to order ISPs to disclose certain transactional information about their subscribers in terrorism investigations. For example, imagine that the FBI has reason to believe that a suspected member of Al-Qaeda in Afgahanistan has a Hotmail account, and is using that Hotmail account to communicate with other co-conspirators. Section 2709 lets the FBI order an ISP to disclose the person's name and address (in the unlikely case it was entered accurately), as well as transactional information such as when the account was accessed, from what IP address, and the e-mail addresses of other associates who sent e-mail to or received e-mail from the suspect account. The FBI sends a letter — known as a National Security Letter, or NSL — to the ISP ordering it to make the disclosure, and the ISP must do so. Also, the section provides that the ISP cannot "disclose to any person" that the order has been made.

  The recipient of a NSL challenged this procedure in federal court, claiming that the procedure violated the Fourth and First Amendment. The Fourth Amendment argument related to the constitutional rights of the ISP, not the rights of the ISP's subscribers; under relevant precedents, it is quite clear that ISP users do not have a reasonable expectation of privacy in their transactional records. The plaintiff argued that there is nothing in the statute that allows the ISP to challenge an NSL if the letter is overbroad, and that this failure to allow a judicial challenge rendered the statute unconstitutional. The basic idea here is that there needs to be judicial review of any kind of order to compel information under the Fourth Amendemnt so that a court can determine whether the order is valid. The government did not contest this; the government contested the plaintiff's reading of the statute.

  Specifically, the government responded that the statute had to be read as allowing a challenge, just like the challenge at issue in this case. Arguing that the court should construed the unclear statute in a way that renders it constitutional, the government urged the court to read the statute in harmony with other similar laws such as laws governing the issuance and challenge of subpoenas. If a recipient of an NSL wanted to challenge the NSL, the government argued, it could just go to a district court like the Southern District and file a motion to quash the NSL. Such a reading would presumably (although not obviously) render the statute valid under the Fourth Amendment.

  Judge Marrerro rejected this argument, at least sort of. In a very strange passage, Judge Marrero concluded that even if the government were right that the statute means what the government says, Section 2709 is unconstitutional because the NSL letters themselves appear on FBI letterhead and are phrased using very commanding language. A reasonable recipient is likely to view the NSL letter, "phrased in tones sounding virtually as biblical commandment," as something that could not be challenged. (see page 62-63). Thus, even if the statute could be read to allow recipients to challenge the letter in court, the scariness of the letter trumped the text of the statute and rendered the statute unconstitutional:
The Court concludes that in practice NSLs are essentially unreviewable because . . . given the language and tone of the statute as carried into the NSL by the FBI, the recipient would consider himself, in virtually every case, obliged to comply, with no other option but to immediately stay put.
Id. at 65. Then, before moving on to the First Amendment issues, Judge Marrero suggested that the government might be able to cure the Fourth Amendment defect "by alerting all NSL recipients" that in its view recipients can challenge the letters.

  Put simply, this rationale is really quite strange. I have never seen reasoning like this in any Fourth Amendment opinion. (Notably, Judge Marrero did not offer any Fourth Amendment precedent in support of that approach; instead he relied on a 1st Circuit case interpreting Rule 6 of the Federal Rules of Criminal Procedure and a First Amendment case, Bantam Books v. Sullivan, 372 U.S. 58 (1963)). It's only a statutory interpretation issue, ultimately, and the Second Circuit on appeal might just read the statute and conclude that it does not allow a challenge on its face. But Judge Marrero's approach is quite strange. Under Judge Marrero's own reasoning, for example, he could have rendered Section 2709 constitutional under the Fourth Amendment simply by announcing that he construed the statute to allow a challenge — something he implicitly did by ruling on the plaintiff's challenge. After all, had he announced that he was interpreting the statute to allow challenges, word would have gone out quickly to the ISP community and the ISP community would know that they could file the challenges. Ergo, the statute would be constitutional.