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Friday, September 13, 2002


FANTASTIC PIECE BY N.Z. BEAR on some of the sillier arguments we've been hearing recently.


STILL MORE ON THUCYDIDES: I know this is a digression, but, hey, blogging is all about digression! And it does strike me as pretty interesting, in a weird way. In any case, more on Thucydides, Pericles, courage, and freedom, from reader Eddie Thomas, who teaches philosophy at Mercer:
Mark Kleiman is right, I believe, in claiming that Thucydides is not altogether a cheerleader for Athens and its ambitions. Nonetheless, I read Thucydides as making the point that it was ultimately the hesitation of the Athenians, and not their rashness, which did them in. . . .

In summarizing the person of Pericles and the failure of his successors, Thucydides says the following (Book II, Penguin edition,
p.164): "Such a policy, in a great city with an empire to govern, naturally led to a number of mistakes, amongst which was the Sicilian expedition, though in this case the mistake was not so much an error in judgement with regard to the opposition to be expected as a failure on the part of those who were at home to give proper support to their forces overseas."

Rex Warner, the translator, puts in a footnote here that "this explanation of the failure of the Sicilian expedition is not borne out by the narrative in Books VI-VII." He is thinking undoubtedly of the fact that the Athenians raised a great army to sail to Sicily. This would seem consistent with Mark Kleiman's view that the Athenians failed because they didn't take seriously the perils of war.

But the text continues: "Because they were so busy with their own personal intrigues for securing the leadership of the people, they allowed this expedition to lose its impetus, and by quarrelling among themselves began to bring confusion into the policy of the state. . . . [I]n the end it was only because they had destroyed themselves by their own internal strife that finally they were forced to surrender."

The event that Thucydides seems to be referring to was the Athenian decision to recall the general Alcibiades (a young brash man strongly in favor of the war) for political reasons and leave only the general Nicias (an older general who was opposed to fighting the war and who was well known for arranging an earlier peace treaty with the Spartans). Nicias, though an honorable man, hesitates when the battle favored the Athenians, and hesitates again when a viable retreat is available. His hesitation costs the Athenians not only their victory but also most of their army. It also cost him his life.

Ultimately, then, to conclude a matter you had probably hoped already concluded, I think there are powerful parallels in Thucydides, but not quite the ones that Mark Kleiman suggested.


MORE ON "MY PUBLIC SPIRIT STOPS AT MY DAUGHTER": Several readers suggest that the author of this piece, which I excerpted below should be chastised for her hypocrisy; a couple pointed out that Best of the Web quoted the same letter and said "Here in a nutshell is the definition of an American liberal: one who is willing to sacrifice the future of other people's children to an abstract principle.

     There's certainly something to this criticism, but I wonder whether it might be a bit too quick. I read the Post piece as something written by a person who's ideologically in transition -- she's been brought up with the liberal gospel that everyone should send their kids to government-run schools, but now she's seeing some of the problems with that approach. Maybe she'll end up with the hypocritical view that "Well, it's OK when I do it, but when others try to help poor people do the same by setting up school choice programs, that's bad, because everyone should send their kids to government-run schools." Or maybe she'll conclude that parental choice is best for everyone. Or maybe she'll take some other nonhypocritical view, whether sound or unsound.

     Right now, she finds herself having been faced with a decision about her own child. She doesn't seem to be a legislator or an activist or a policy molder; no-one's asked her to confront broader questions about school choice programs. She had to make a particular decision, and this decision showed her the weakness in the liberal gospel. Being an optimist, I'd like to think that this is the first step on her road towards the right position on school choice -- and if this step takes her to an inconsistent position, that she'll travel further down the road towards the consistent spot at the other end, rather than being a hypocrite. That's how a lot of political journeys go, and I'd rather praise her taking the first step than condemn her for not having instantly gone all the way.


"HOLLYWOOD STANDARDS": "[Mel Gibson] has been married to his wife, Robyn, for more than 20 years, unusually long by Hollywood standards . . . ."


A LIBERAL WRITES ABOUT WHY SHE'S SENDING HER CHILD TO PRIVATE SCHOOL: An eloquent (and detailed) Washington Post letter to the editor:
My Public Spirit Stops at My Daughter

My daughter began private elementary school this year. Our decision to pay for something not everyone can afford immediately raised painful questions of social and economic class. . . .

Our local public elementary school ranks near the bottom of the Anne Arundel County system. Its test scores confirm the stories I have heard from discouraged neighbors: Their children, who had adored nursery school, soon came to dread kindergarten. They were bored by repeating material they had already learned. They wanted to stay home.

The test scores combined with these stories persuaded my husband and me to start looking into private schools for our daughter.

My mother-in-law didn't approve. She said it wasn't right for us to send our daughter to private school. If we kept her in public schools and worked to make the system better, everyone would benefit -- including people who don't have the option of sending their kids somewhere else.

For a card-carrying liberal, I was surprisingly unapologetic about our decision. Why should I sacrifice our daughter's future to an abstract principle? I wasn't up to battling the school system about class size, curriculum and extracurricular activities. And by the time any changes could be made, our daughter would have already missed out on a vibrant education. . . .

Private education doesn't square so well with my liberal, communitarian ideals. But with the state of our public school, I wouldn't dream of educating our daughter any other way.
UPDATE: More on this topic above.


EUROPEAN OPPOSITION TO AN AMERICAN ATTACK ON IRAQ: As Slate's Anne Applebaum points out, the fact that foreign politicians criticize a proposed American policy doesn't necessarily mean that the policy is unsound on the merits -- it might also reflect the fact that the foreign politicians are, well, politicians, who sometimes do things for political reasons tied to their own domestic political well-being.


WHAT PASSES FOR "CENSORSHIP" IN MANY PEOPLE'S MINDS: Stephen Green puts it well in an aside to his account of the Hanan Ashrawi speech:
Oh, yes. One girl was wearing black tape on her mouth, presumably trying to make some point about the First Amendment. Honey, when you have to put the tape on yourself, then the only thing you're saying is that you're too silly to bother censoring.


Attorney General Jennifer M. Granholm today announced that as a result of a cease and desist order her office issued on August 26, 2002 to certain Internet billing companies, 104 suspected child pornography websites are no longer able to accept credit card charges through such companies to peddle their wares. As a result of this action, which is the first of its kind in the nation, the access to these websites is essentially cut off for residents of the United States.

On August 26, 2002, the Attorney General’s High Tech Crime Unit issued letters to six Internet billing companies including: “BillCards,” “CardBilling,” “CCbill,” “iBill,” “Trust-Bill,” and EAN Enterprises, d/b/a “LancelotSecurity,” ordering them to stop facilitating and promoting suspected child porn on 116 websites. Nearly all of the billers have responded, saying they will stop providing billing services to the suspect sites. Even where no response was received from a particular billing company, a further review by the Attorney General’s High Tech Crime Unit found that the targeted websites were no longer accepting charges through the billing company. . . .

As of early September, 104 of the 116 websites containing suspected child pornography are no longer able to accept charges through the previously mentioned billing companies. All of the companies that were sent cease and desist orders have either indicated a willingness to comply with the order, have severed their relationship with most of the websites, or have indicated they have required the websites to provide proof that the models depicted are of legal age.
I don't quite know how the online billing business is organized, but I take it that the AG's office could equally easily issue such orders to the more major credit card companies as well, in case they provide billing directly.

     And of course what is done as to child porn sites may well be done in the future as to sites that are allegedly distributing works that infringe copyright -- the billing companies may likewise be ordered to stop servicing charge requests from those sites. Obviously this won't stop free file sharing, but it might do something against off-shore for-pay sites that sell infringing material.

     I mention all this not because I'm opposed to these sorts of remedies in principle, especially as to child porn sites. It is interesting, though, to think about how these remedies could be applied more broadly -- and to think about what sort of showing of likely illegal conduct the government will have to make in order to get and enforce these orders, and whom the showing would have to be made to. Can the executive branch do this on its own, or would it need a court order? Would it have to show that the sites actually contain illegal material (whether child porn, copyright infringement, trademark infringement, or what have you), or are just likely to contain it? Would the showing need to be beyond a reasonable doubt, by clear and convincing evidence, by a preponderance of the evidence, or just probable cause?


JOHN HENRY VS. STEAM DRILL: Just got my first ballot as a participant (on the John Henry side) in the Supreme Court Forecasting Project at Washington University (St. Louis). Here's the brief summary, from their Web site:
This project involves a friendly interdisciplinary competition to compare the accuracy of the different ways in which legal experts and political scientists assess and predict Supreme Court decision making. . . .

Our prospective undertaking . . . seek[s] to predict the outcome of each argued case in the Court's October 2002 Term. Two methods of prediction will be used, and their relative accuracy compared at the end of the Term. A "political science" model will predict the outcome of each case (and the votes of each individual Justice in those cases) by utilizing a statistical forecasting model based on information derived from past Supreme Court decisions and certain characteristics of each pending case. We will apply the same statistical model to every case.

The "legal" method is more decentralized -- panels of legal experts will collectively predict each of the Term's decisions. The panels will be drawn from a pool of 75-100 prominent legal scholars and appellate lawyers, each of whom is an expert in some area of the Supreme Court's docket and many of whom clerked at the Court. For each pending case, we will ask three people with the relevant subject matter expertise to predict the outcome. Because we are interested only in the collective accuracy of the legal experts, not in individualized comparisons between different legal experts, we will not reveal any individual panelist's vote(s) or the accuracy thereof.


Prior to the oral argument, both the predictions of the statistical model and the cumulative predictions of the legal experts will be posted on this web site. We will begin posting our forecasts at the beginning of the 2002 term.
Cool! I've been on the side of the steam drills in many projects; they win eventually. But somehow I think that you can bet yo' las' red cent on me and my colleagues in at least this particular competition.


SLATE'S WHOPPER OF THE WEEK is much worth reading. An excerpt:
"Following intense media interest in the Islamic Conference due to be held this Wednesday the 11th of September 2002 at [London's] Finsbury Park Mosque, the organizers, Al-Muhajiroun, would like to make it clear that:

1. The participants, which include leaders from the Muslim community … will not be celebrating the events of the 11th of September. …"

—Sept. 10 press release from Al-Muhajiroun.

"September the 11th 2001: A Towering Day In History."

—Poster for the event, illustrated with a photograph of the World Trade Center in flames.
And there's more. (Note that the event was small and closed, with 150 participants and access restricted by the organizers, rather than a large, open one, where the organizers might reasonably claim that they have no control over who participates.)


EARLY STATEMENT OF THE "DEMOCRACIES DON'T FIGHT EACH OTHER" PRINCIPLE: Not exactly the same thing, but pretty close -- "War would be banished from the face of the earth, were nations instead of princes to decide upon their necessity." From St. George Tucker's edition of Blackstone's Commentaries (1803).


INSTAPUNDIT TRAFFIC this month. Look at it and be amazed. And this is one guy.

UPDATE: Note how the graph has as its zero mark 15,000. On slow weekends, visits fall all the way to a piddly 15,000 per day. Incredible.


MEDIA BIAS, CLARENCE THOMAS, AND CORNEL WEST: John McWhorter has an excellent Wall Street Journal piece on media profiles of Thomas and West. Here's how it begins:
To judge by many reviews, books like Bernard Goldberg's "Bias" and William McGowan's "Coloring the News" are just overblown rants, maliciously exaggerating a liberal slant in the press when they are not simply inventing it.

But the contrast between two recent profiles in the Washington Post, of Clarence Thomas and Cornel West, affirms the sad truth that these books try to present. The naked prejudice on view in the profiles -- published only a week apart -- shows a kind of journalism barely advanced beyond the casual slander that was ordinary in Gilded Age newspapers.
Much worth reading.


MORE MATHEMATICAL PROOF: Reader Curt Wilson points out:
1. We know from basic physics that Power = Work / Time.
2. We also know that Knowledge = Power.
3. And we know that Time = Money.
4. Substituting, we get Knowledge = Work / Money.
5. Therefore as Money goes to infinity, Knowledge goes to zero!
Can't argue with logic like that.


MORE ON WHY WAR DOESN'T REQUIRE A DECLARATION OF WAR: I realize that in my past posts on this subject I haven't given much by way of actual case holdings, and a recent exchange apropos Dahlia Lithwick's claim in Slate that "we are not even at war as a legal matter, which requires a formal war declaration by Congress" led me to collect some items:

      (1) The most extensive discussion of the subject that I could find is in The Prize Cases (The Brig Amy Warwick), 67 U.S. 635, 666, 668-669 (1863). The discussion arose in the context of a civil war, but it applied broader principles; most relevant today are the statements that:
[W]ar may exist without a declaration on either side.
If a war be made by invasion of a foreign nation, the President is not only authorized but bound to resist force by force.
      (2) Montoya v. United States, 180 U.S. 261, 266-67 (1901), arose in the context of a war with Indian tribes, but again applied broader principles. It adopted earlier statements that a war may exist without being declared, and most relevant to today's situation, it acknowledged that a war may be levied by a group that is not a nation:
If [the] hostile acts [of "a collection of marauders"] are directed against the government or against all settlers with whom they come in contact [as opposed to being "for the purpose of individual plunder,"] it is evidence of act of war. . . .

We recall no instance where Congress has made a formal declaration of war against an Indian nation or tribe; but the fact that Indians are engaged in acts of general hostility to settlers, especially if the government has deemed it necessary to despatch a military force for their subjugation, is sufficient to constitute a state of war.
(Note of course that all this is true without regard to what one sees as a moral character of a particular war; I don't know who was at fault in the particular conflict at issue in Montoya, but this doesn't matter for legal purposes.)

      (3) In Bas v. Tingy, 4 U.S. 37, 40-44 (1800), each Justice gave his own opinion in writing (pretty much the norm during that era), but they all seemed to agree that a state of war may exist between two nations even without a formal declaration of war.

      These cases aren't squarely controlling here, because none specifically involved a clandestine attack, involving no attempt to occupy actual territory, by a foreign enemy that doesn't amount to a nation. But certainly all of them acknowledge that war may exist without a declaration of war; and the considered dictum in Montoya suggest that this applies to attacks by enemy marauders and not just sovereign states.

     And I have not seen any Supreme Court cases that even suggest the contrary -- that a war may exist only when declared by Congress. The only court authority that I've seen for this proposition are the lower court decisions in United States v Averette, 19 USCMA 363, 41 CMR 363 (U.S. Court of Military Appeals 1970), and Robb v. United States, 456 F.2d 768 (U.S. Court of Claims 1972), which held (interpreting the Uniform Code of Military Justices in light of what they saw as constitutional constraints) that military authority over civilians was limited to times of declared war. These lower court statements do not, however, strike me as that persuasive, especially given the contrary statements by the Supreme Court. And the courts themselves described their holdings as quite limited, distinguishing earlier cases that held that "war" in other contexts does include undeclared wars.

      So I continue to be pretty firmly convinced that "war as a legal matter" does not "require[] a formal declaration of war." Be cautious about claims that it does.

      (Note, incidentally, that Senator Biden takes the view that in any event the Congressional authorization of the use of force is legally tantamount to a declaration of war, though that's a separate issue.)

Thursday, September 12, 2002


THINGS YOU WON'T FIND HERE, NO MATTER HOW HARD YOU LOOK: Found in our referrers log -- a google query for "Kazakh Girls Nude."

UPDATE: Mystery solved, as a result of a quick google search for "Kazakh Girls Nude Volokh"; our July 21 archive contains a post by Sasha about "The Fall of Otrar (1992), a Kazakh movie," another by him about "the interesting article in Health Facts and Fears, 'Girls Worried About Weight More Likely to Smoke,'" and one by me about free speech and workplace harassment law, quoting someone as saying "I remember cases where a faculty member was accused of creating a hostile work environment because he had classical nude photos on his wall" (all three emphases added). That's how one becomes a Kazakh Porn Baron Hit-Magnet!


EXCELLENT RANT by Matt Welch, about the latest L.A. Times' story on the "blog-o-sphere."


WHICH SIDE TO BE AGAINST? I confess that I don't share Damian Penny's outrage at Salon's Forbidden Thoughts About 9/11. I took the Salon piece as an attempt to honestly portray an ignoble (not evil, but ignoble) side of human nature, without praising it and even while acknowledging its ignobility. Consider, for instance, the very first example Penny cites:
I knew a guy who narrowly escaped getting hit by a falling body. The first e-mail he sent out, two hours later, was, "Hey, how do we get ahold of all the new 212 cell numbers that'll be available?"
Both in context and out of it, it's pretty clear that the example was given precisely because this is (1) a wildly inappropriate reaction but (2) an all too human one. It may be self-centered; it may be petty; it may be inappropriate; it may be black humor that went awry; it may be black humor that some find consoling; it may be an artifact of shock; it may be a combination of all of the above. The very fact that we usually (and rightly) self-censor these sorts of sentiments actually makes them valuable, in a certain way, for study, especially when they're presented -- as I think Salon did -- without praise or glorification. Some might think that it's inappropriate to present them on the first anniversary, but I don't think that even this is so. In any event, if it was an error, it was occasion for mild disagreement, not rage.

     But then came Scott Rosenberg's response (thanks to InstaPundit for the link), which undermined Salon's case more than strengthened it. Instead of stressing that the piece was simply an interesting attempt to peer at a base part of human nature, the response turned it into some sort of political statement, dragging the Administration into it, of all things:
That we chose not to drape our entire issue of 9/11 in a sanctimonious, monotone blanket of enforced "respect" seems to have riled some people and cheered others. I guess we're used to that. In the piece I linked to below, Simon Schama talked about the "pious hush" the administration is using to "bestow on its adventurism the odour of sanctity." Breaking that hush seems to me to be valuable, even patriotic.
Patriotic? Come on, get serious. It's not unpatriotic, but it's not patriotic, either.

     But the oddest, funniest, and perhaps most telling item came in Rosenberg's bristling at the wish that Salon go bankrupt:
Sorry you disagree, Mr. Penny. That's what democracy is all about. We're free to publish stuff you don't like and you're entirely free not to like it . . . . When did political disagreement turn into a license to wish that your opponents lose their jobs . . .?
Uh, Mr. Rosenberg: In America you don't need a license to wish things. If Penny tried to bankrupt Salon by burning down its building or suing it, talk about democracy and freedom to publish would have some relevance. If he tries to bankrupt Salon by wishing it, well, it's hard to see what exactly is undemocratic or anti-freedom about that.


IN DEFENSE OF AIRPORT SECURITY: I know this may be an unpopular view on the blogosphere (and contrary to my ideological instincts), but my experience with federalized airport security has been uniformly favorable. I have found Transportation Security Administration personnel to be professional, courteous, consistent, and attentive. This contrasts sharply with my experiences over the past year with traditional secutiry personnel. No gossiping while monitoring the x-ray machine; no confiscation of nail clippers or cigar cutters; no obnoxious or rude behavior. I travel frequently, and on several recent trips I have traveled between airports with TSA security and those with their old security still in place. The difference is noticeable and striking. Lest some readers think I have given leave of my senses, I recognize that my experiences may not be reflective of TSA operations nationwide. (I don't travel THAT much.) I am also willing to accept that the change may not be due to federalization. The simple change from one provider to another could account for a temporary performance improvement. Other factors, such as more rigorous standards or training requirements could also be the cause. It is also possible that these changes will not last; the TSA may not have had time to become a bloated, unresponsive bureaucracy yet. Maybe so, but until such time, I will much prefer dealing with security in airports with TSA personnel than the alternatives.


CONCORDIA UNIVERSITY in Montreal, where the anti-Israel students rioted over the Netanyahu speech, has instituted "[a] moratorium on the use of university space for events related to the Middle East conflict . . . until further notice. This includes a moratorium on public speeches, rallies, exhibits and information tables. We will be meeting with student leaders to develop a more long-term policy in this regard." Here's the full statement:
A message to the community from the Rector

Today’s Violent Events Evoke Shame and Dismay

September 9, 2002 — A shameful and distressing event occurred today at Concordia University. A speaker, invited by a student group, was prevented from speaking by the use of violence and intimidation. Some students and visitors were threatened and jostled. University property was damaged.

In a university that prides itself on openness, tolerance of diversity and freedom of expression, such actions evoke shame and dismay. They cannot and will not be tolerated.

The following steps will be taken immediately:

1. Normal operations will resume tomorrow, Tuesday, September 10th. The Hall Building will be open as usual. Students, professors and staff can be assured that appropriate security will be in place.

2. Those identified as having provoked or engaged in violence or vandalism will be prosecuted and their student status reviewed.

3. What is needed now is a period of restraint. A moratorium on the use of university space for events related to the Middle East conflict will be instituted immediately and until further notice. This includes a moratorium on public speeches, rallies, exhibits and information tables. We will be meeting with student leaders to develop a more long-term policy in this regard.

Concordia has no intention of abandoning its tradition of free expression. It is not acceptable for the university to be disrupted in the manner that occurred today.

Frederick Lowy, Rector and Vice-Chancellor
I'm glad that the university forthrightly condemned the thuggery, and I do hope that the thugs will indeed "be prosecuted" and, I hope, expelled. But though I sympathize with the university's need to keep order -- and I realize that I'm not there, having to endure the risk of disruption and violence -- I think that the moratorium on a vast range of events is a mistake.

     It seems to me that the university should defy the thugs, and insist that it will go on as a center of learning and debate on all topics, and will provide the necessary security to make sure this happens, backed by swift and serious sanctions against those who disrupt the university. Expensive, burdensome, and risky? Yes. But especially in times such as those today, leading institutions (including of course both the university and the local police department) need to step forward and bear the burden. Others have sacrificed much more.

     In any case, we should watch for the university's reaction, and see what its "long-term policy" will be, and what the "student status review[s]" will yield.

     Thanks to Don Kates for alerting me to this, and to John Wilson of the indispensable UCLA Law School reference library staff for finding the Concordia statement.

UPDATE, ABOUT "THE CAPITAL OF NICENESS": Here's a bit more from a Chronicle of Higher Education piece that is unfortunately not available for free online:
The first casualty was the cancellation of a planned Tuesday visit by Norman Finkelstein, a professor of political science at DePaul University and a critic of Israel's policy on the Palestinians. He was invited by the Concordia Student Union, which represents undergraduate students. . . .

Gil Troy, a professor of American history at neighboring McGill University, called Concordia's ban on Middle East activities"draconian."

"Concordia's way of responding to the tension is by saying, We're not going to talk about the Middle East," he said. In March, Mr.Troy wrote a column in a Montreal newspaper blaming Concordia's faculty for not doing more to quell tensions. "The innocent bystanders are not so innocent. Professors and students have to stand up and say this is not acceptable. There has to be a real push for civility.

"If this can't happen 6,000 miles away from the Middle East, here in Canada, the capital of niceness," he asked, "then where can it happen?"


. . . The history, the logic and the facts lead to one conclusion: Saddam Hussein regime is a grave and gathering danger. To suggest otherwise is to hope against the evidence. To assume this regime's good faith is to bet the lives of millions and the peace of the world in a reckless gamble, and this is a risk we must not take. . . .

All the world now faces a test, and the United Nations a difficult and defining moment. Are Security Council resolutions to be honored and enforced or cast aside without consequence? Will the United Nations serve the purpose of its founding or will it be irrelevant? . . .

We must stand up for our security and for the permanent rights and the hopes of mankind. By heritage and by choice, the United States of America will make that stand. And, delegates to the United Nations, you have the power to make that stand, as well.
Exactly right: We are multilateralist by preference; of course we'd rather have allies. But we will act unilaterally if that is our only choice, so our enemies realize that they can't thwart our defense of our people by simply peeling away those allies who are not as resolute as we are.


MORE ON "ONLY A LAD": Eve Tushnet responds to my Only a Lad by passing along The Smiths' Sweet and Tender Hooligan:
. . .
He was a sweet and tender hooligan, hooligan
And he swore that he'll never, never do it again
And of course he won't (oh, not until the next time)

Poor old man
He had an "accident" with a three-bar fire
But that's OK
Because he wasn't very happy anyway
Poor woman
Strangled in her very own bed as she read
But that's OK
Because she was old and she would have died anyway
. . .
DON'T BLAME -- that's the motto all right.


GOOD FOR THE L.A. TIMES! I blogged my item about the Utah fake hate crime yesterday, with a future date so that it would be posted this morning; I also e-mailed the reporter who wrote the original L.A. Times story last night. I just got an e-mail from the reporter saying that the follow-up story ran today. It's considerably shorter than the original one (it's in the "In Brief" story), and doesn't mention the original L.A. Times story, but at least it was indeed printed. Good work.


WHY C++ IS NO BETTER THAN C. Contrary to conventional wisdom, the programming language C++ is not any better than C, on which is it based. I say this because C++ < C (at least unless one is using an optimizing compiler that messes with the order of evaluation). For instance, if C were 0 before the expression was evaluated, the left-hand side would equal 0, but the right-hand side would be 1 (since by then C would have been incremented). If one reverses the order, then one gets the result that C == C++; but in any event, C++ is no greater than C, and may even be less.

     Of course, if the language were ++C, then it might be better than C (since C < ++C, though ++C == C). C+1 would be unambiguously better. But I'm not buying any of this C++ stuff. At best one can see it as an improvement over C -- but only for the next guy who uses it, not for me. Who needs that?

     This is the only C pun that I've ever made up (though I suspect that others have independently discovered it as well). If you need an explanation, then I'm afraid that you won't find it funny in any event.

UPDATE: Reader Dave B. writes that this isn't quite so, because "The postincrement operator is defined, basically, to (1) return the current value of its operand, and (2) to increment the value of the operand after the next 'sequence point'; the order in which the compiler actually evaluates things is unimportant for a well-defined C/C++ expression." Maybe; but in any event, C++ > C will yield a false result even under this definition, so the gag still pretty much remains intact (I think).

FURTHER UPDATE: Reader Michael Zorn actually ran an experiment (source code not available on request, since it's pointless to waste time on this) which confirms that, with his compiler, C++ > C yields a false result. Reader Frank Fleming further confirms that on his compiler (gcc), C++ < C yields true. Vindicated!


MORE ON THUCYDIDES: Mark Kleiman has a different take -- and it sounds like a much more educated one -- on the Thucydides quote. I'm no classicist and can't really say anything about the quote's original context, other than that Mark's post is (as always) much worth reading. My sense is that at some point, when enough time passes and the original context for a quote becomes largely forgotten and even relatively inaccessible, a quote takes on a life of its own, and ends up meaning what its words say now, and not what they said in context -- I think the Thucydides quote is one such. Still, surely Mark is right that even if one ought not weigh too nicely the perils of war, one should weigh them quite carefully nonetheless. (By definition one shouldn't do anything "too much," since "too much" simply means more than one should.)

UPDATE: Iain Murray writes, responding to Mark's comment (and you'd have to read Mark's comment to fully get this):
Turning to Thucydides (I'm a classicist in origin), I think claiming that we are meant to hear Thucydides's sardonic laughter is a little strong. As the OCD says of the Funeral Oration, its "dramatic truth was combined with the greatest degree of literal truth of which Thucydides was capable. He tried to recreate real occasions." As a result, the Funeral Oration is the best and clearest statement of Athenian Imperial ideology we have. Moreover, Thucydides clearly held Pericles in the highest regard. It was not Pericles that led Athens to disaster, in his eyes, but demagogues like Cleon who squandered his legacy and ignored his ideology. Yet, overall, Thucydides was more the scientist than the author. He studied man's politics as a doctor studies diseases, not to establish blame but to establish cause and effect. Thucydides did not laugh when he composed his history, although, sitting in exile, he may have sighed once in a while.

Having said all that, I think a better aphorism for current times is also contained in the Oration:

"Our love of what is beautiful does not lead to extravagance; our love of philosophy does not make us soft." (2.40.1)
I leave all this to the classicists.


A NEWSPAPER’S DUTY? As InstaPundit pointed out, an alleged anti-Moslem hate crime in Salt Lake City now appears to be a fake:
Not only was the July fire that damaged a Muslim-owned motel in Alpine not a hate crime, the owner set it, investigators said Wednesday.

Police on Wednesday arrested Alpine Lodge co-owner Mazhar Tabesh, 39, on suspicion of aggravated arson. Tabesh was being held at Wasatch County Jail, said Heber City Police Sgt. Jason Bradley.
Now there’s not that much that this teaches us about hate crimes generally; it doesn’t suggest that most or even many alleged hate crimes are fake; at most, it reminds us that things aren’t always as they seem, always a worthy reminder.

     But here’s a twist: The L.A. Times ran this story on July 29, under the headline Immigrant Family Feels Post-9/11 Rage:
Mazhar Tabesh always felt he was not welcome here. He had been threatened, his wife was spat at and his family received a chilly reception in stores around town. But he never imagined that anyone would try to kill him.

The unimaginable happened on a recent Sunday night as Tabesh and his wife were preparing for bed. Someone deliberately set fire to the motel owned by the Pakistani native. The family escaped without injury but watched their future and savings crackle and burn. . . .

Tabesh, his wife, Samina, and in-laws are among the few Muslims in this dominantly Mormon area. Since the Sept. 11 terrorist attacks on the World Trade Center and the Pentagon, people of South Asian and Middle Eastern descent across the country have been targets of verbal attacks and worse, like what struck this quiet town of 7,300 recently.

Residents were quick to condemn the incident and defend Heber City, a town of stout turn-of-the-century brick buildings and scraggly strip malls that draws tourists to its famous attraction, an antique steam train nicknamed the Heber Creeper. . . .

If minorities are being targeted, it would not make Heber City too different from other U.S. cities, where harassment of Muslims appears to be on the rise.

Heather Jacobson, who works at a local flower shop, called Heber City "your basic small town," warts and all.

"People who live in little towns don't believe things like that can happen in their town, but it can," said Jacobson, who moved here from Las Vegas. "Some people are really open, but it's really weird -- I've found that people here are kind of close-minded, kind of hypocritical. I don't think I'll live in Utah the rest of my life."
So what should the L.A. Times do, and what will it do? I can see why the Times might not want to cover the new story (that this hate crime may well have been a fake) -- the original story was given as an example of something that was seen as a national trend (not a vast one, but still one that numbered in the hundreds of incidents, some of them serious), and the new story might not be; I know of no evidence that a lot of these incidents are fake. The Times might therefore worry that they’re giving disproportionate coverage to a highly unrepresentative event.

     But while I think there’d be something to this position, ultimately I think it has to fail: The Times has a basic obligation to alert its readers to situations where it may have misled them, even inadvertently. It can include what cautions it can about these fake reports being unrepresentative, but I don’t think it can avoid its basic obligation to correct the record, especially when the original story carried a (quite possibly unrepresentative) slam against Heber City and its residents.

     What’s more, while I suspect that these fake reports are much less common than real anti-Muslim crimes, that’s my suspicion. We don’t know this for sure, and while coverage of individual such incidents doesn’t tell us how common they are, it does remind people that not every allegation is well-founded. I do think that the Times is entitled to pick and choose which stories it thinks are representative in the first instance. But I don’t think that its own judgment of unrepresentativeness can outweigh its obligation to set the record straight once it publishes the original story.

     It will be interesting to see what the Times does; I’ve e-mailed the author of the story, and look forward to seeing what develops.

Wednesday, September 11, 2002


ANOTHER 5000 "UNIQUE VISITOR" DAY, just like yesterday, thanks chiefly to more InstaPundit links. It won't last at this level -- it never does -- but it's still pleasant to see.


SHARDS: Just thought I'd mention again Shards: Poems from the War; we're getting a decent number of readers (plus of course the ones who see the poems when they're posted on this blog), and we'd love to see more submissions.


WAYS TO CATCH FLIES: If you write a total stranger an e-mail, commenting on his blog post and asking him to take some time to read and comment some other post, it's probably not a good idea to close the message with the line "How about a little help holding them morally responsible. Or is that all academic bullshit?"

     Odd as it may seem, strangers are less likely to do something that you ask them to do if you suggest that their past statements might be bullshit. Perhaps a surprising fact about human nature, but there it is!


ATTRIBUTED TO THUCYDIDES: "The secret of happiness is freedom, and the secret of freedom is courage."

     It's been said often enough, but it bears repeating, because courage is an unnatural quality that needs all the help it can get.


HOW FREE PEOPLE DIE: Dan Hanson writes:
In their calmness and obvious resolve, [the passengers who fought the terrorists on Flight 93] sent a message to all of us. . . . “This is who we are. This is how free people live, and this is how they die.”
(Via InstaPundit.)


HUGH HEWITT: I'm about to start my Hugh Hewitt Show gig in just a few seconds; it's broadcast live in L.A., but it can be caught later tonight on these stations.


"STATEMENT OF CONCERNED UCLAW STUDENTS, September 11, 2002": I just got a copy of this statement, which was distributed to law school students, and which seems to be related to the "Teach-In" about "Oppression." What's striking about the statement is its utter lack of balance and perspective -- its unwillingness to look not just at supposed sins of the U.S., but also perhaps the countervailing virtues, virtues that might help mitigate and sometimes even justify the sins.

     Here's how the Statement begins:
Today, we bow our heads, we clasp our hands, and mourn . . .
. . . the deaths of over 3000 civilians in the terrorist attacks on September 11, 2001, from the firefighters and businesspeople to the janitors and day laborers.
. . . the deaths of thousands more civilians in the subsequent military action in Afghanistan.
Here already we see this striking lack of perspective. Of course the death of civilians (though I'm not sure that we're talking about "thousands") in Afghanistan is indeed something to mourn. But might it be worth mentioning that those deaths also likely saved the lives of many Afghan civilians, and the liberty of millions, by freeing them from the Taliban yoke? Might that countervailing benefit be something that could put these tragic deaths in perspective (and might therefore show a further difference between those deaths and the September 11 deaths)?

     It goes on:
But as we mourn, we also remember . . .
. . . that for many decades, the 11th of September has represented tragedy and the repression of people of color, including the Attica prison massacre backed by Nixon and Rockefeller on September 11, 1971 and the U.S.-sponsored military coup in Chile on September 11, 1973 during which President Salvador Allende, a democratically-elected socialist leader, was murdered.
. . . that the U.S. responded to the bombing of Pearl Harbor by incarcerating 100,000 Japanese Americans.
. . . that U.S. imperialism and political violence against people in the Mideast and other Third World and indigenous peoples has resulted in great inequality and suffering.
Again we see the willingness to condemn the U.S. for its alleged misconduct without even a word about America's acts that might have counterbalanced this misconduct. If you're going to go back to World War II, any words about the millions of people -- including "people of color" -- freed from Japanese and Nazi oppression by American blood and treasure? If you're going to fault the U.S. for its misbehavior towards Japanese-Americans, might it not be worthwhile to just say a word or two of praise for the good that it did in the same conflict?

     Or whatever you might think about U.S. actions in, say, El Salvador, hasn't the U.S. been of a bit of help to people in other countries, too? I'd say that the "people of color" "and other Third World and indigenous peoples" in South Korea are probably pretty glad that American boys died in the tens of thousands to save them from the fate now endured by the North Koreans. Or if we talk about modern times, how about the Kuwaitis and the Somalis? Or how about the Europeans preserved from Communism by American might, or the Bosnians or the Kosovars preserved from Serb imperialism? (Or do those not count because they aren't "Third World," "in the Mideast," or "people of color"? does it matter that the Bosnians and Kosovars Muslims? or that they're "indigenous peoples"?)

     Then it goes on further:
As we remember and reflect on the current situation in our communities, we become enraged by . . .
. . . the curtailment of civil liberties brought by the USA PATRIOT Act and the Airport and Transportation Security Act.
. . . the squashing of dissent on campuses, in the workplace, and in the streets.
. . . the shifting of enormous resources to the military budget and away from human needs.
. . . racist acts of hate crime and discrimination against Arab Americans, Muslims, South Asians, Sikhs, and people of Middle Eastern descent.
. . . the crackdown on immigrants and refugees, including INS raids through our communities, the firings and arrests of immigrant airport workers, the deputization of local law enforcement to enforce INS policies, the forced deportation of Cambodian American refugees, INS-Social Security "no-match" letter that threatens the livelihood of immigrant workers.
. . . a definition of "terrorism" that provides justification for the intolerable actions that our government takes.
[Remainder of flyer omitted.]
     Wake up and smell the burning bodies, folks. Yes, when 3000 Americans are butchered on American soil, the government will want some relatively slight broadening of its power to search and to eavesdrop (and the USA PATRIOT Act and the Airport and Transportation Security Act have only slightly broadened the power). There are good arguments that this increase is unnecessary and unwise, but if you say you're "enraged" by it, that tells us more about your rage threshold than about the substantive merits of your position.

     The supposed squashing of dissent is to my knowledge an utter myth, and I've been following this field closely. Obviously you're quite willing to dissent; I think that good sense, and on this day the respect for our dead, should have deterred you from dissenting in quite this way, but no-one is squashing you.

     The shifting of enormous resources to the military budget comes from the fact that not being murdered by the thousands is a "human need" of American citizens.

     Racist crimes were sternly denounced by government officials, and are being prosecuted; if you are enraged at the racist criminals, I share your rage. But somehow the impression I get is that you are enraged at someone else -- the U.S. government, or U.S. society. Well, folks, we didn't do it. You'd be rightly outraged if we held all members of some group of "people of color" morally responsible for the crimes perpetrated by a few scum out of that group. Don't hold Americans generally morally responsible for the crimes perpetrated by a few scummy Americans.

     To my knowledge, most of the immigrants arrested and detained were detained for violation of immigration laws and other laws. All nations, to my knowledge, restrict immigration in some measure, most much more than the U.S. does; and they then enforce those laws. (There's no principle of constitutional law and good morals, incidentally, that says that immigration laws may not be enforced by local governments but only by the federal government.) There could be many sound criticisms of American immigration policy; for instance, I certainly don't think that there should be any per se requirement of citizenship for airport screeners. But again, folks, have a bit of a sense of perspective: We Americans -- you included -- are under attack. A nation's power to control its borders has traditionally been an important part of its defenses, and I suspect that all nations in the world have used it this way. If you save your "rage" for other things, your thoughtful disagreement will be more effective where it's present.

     I've spent far too long on this; I hope some of it was interesting to those outside the narrow confines of UCLA Law School because much in this flyer is so emblematic of the errors that so many commit, especially at universities. But the bottom line is just that this sort of stuff is so unbalanced and so foolish -- and in its refusal to provide American actions with any balanced treatment, so much evidence of hostility to America -- that it pains me to see fellow members of the UCLA Law School community endorse it.

     The letter was signed by 77 (by my count) UCLA people, presumably all UCLA Law School students (out of a total of about 900-1000). Worse, though, it was signed by the La Raza Latino Law Students Association, the Asian Pacific Islander Law Students Association, Black Law Students Association, and, worst of all, the Immigration Law Society and the Chicano/Latino Law Review.

     I had hoped that the Chicano/Latino Law Review saw its mission as being an academic journal, not a propaganda organ. I had hoped that the Immigration Law Society saw its mission as serious, thoughtful investigation of immigration law -- a field that tries to accommodate both the needs of national security and the interests of immigrants and their relatives -- and not at signing leftist diatribes that focus more on "rage" than on legal knowledge or critical thinking. I had hoped that the race- and ethnic-based law student groups would likewise focus more on serious thought rather than knee-jerk rage -- and, like the great majority of Americans of all races and ethnicities (and the great majority of Americans who, like me, are immigrants), they would be willing to see and acknowledge the strengths of our great nation as well as its weaknesses.

     Clearly, my hopes weren't realized. On this day, of all days, they choose to spread their unfair, unbalanced message, a message that I think can only be fairly understood as expressing hostility to our great country. They have a right to spread this message; but I think we have the right, and the duty, to condemn it.


UPDATE ON UCLA LAW "TEACH-IN": A member of the Critical Race Studies Program faculty says that the Program didn't authorize the flyer indicating the Program was one of the event's endorsers, and that the Program in fact did not endorse or sponsor the event. Fair enough; but my criticism of the Immigration Law Society's and the Chicano-Latino Law Review's role still stands. I'll probably have more comments on this later.
UPDATE ON THE UPDATE: Nix that -- it now turns out that the faculty member was merely pointing out that the Program wasn't the sponsor (which I certainly never alleged), but it was indeed a sponsor. I reassert, then, my criticism of the Program: Academic programs should organize academic events, not propaganda events.


THE HIGH NOON ANALOGY IS CORRECT, writes Orrin Judd, and I think he's quite right (and, I hope, right as to what President Bush will actually say). I found High Noon to be a very moving and meaningful film, in its own simple way; the scene where Gary Cooper, knowing that he must face the killers all alone, writes out his will struck me as particularly effective, precisely because it was understated. I hope there's no need for analogy to that scene in our actions toward Iraq, but I fully realize that some Americans -- and perhaps very many, depending on the effectiveness of the weapons of mass destruction that Iraq now has -- will die. It's just that, as Gary Cooper realized, it's better -- not just more honorable but more effective -- to fight now than to try to save the fight for later. (Thanks to InstaPundit for the link.)


SEPTEMBER 11 EVENTS AT CASE WESTERN RESERVE UNIVERSITY LAW SCHOOL: My friend and fellow lawprof Jonathan Adler writes, apropos the discussion of one of the UCLA events and perhaps the Columbia events:
What a contrast with what's going on at Case.

We're having a memorial service during which 6 or so students and faculty will speak. No set topics or perspectives. Just a diverse group representing different portions of the faculty, each sharing their own perspective on 9-11. I was asked to participate, and will be reading a portion of C.S. Lewis "Learning In Wartime."

After the service, we will also have panels addressing policy questions, with two speakers each on the domestic and international changes wrought by 9-11. I am sure there will be some hand-wringing about civil liberties, but there will also be some discussion for the need to be vigilant. Indeed, I expect one of my colleagues to defend ethnic profiling at airports.




A SEPTEMBER 11 PRAYER: I am not a praying man, but I can appreciate great prayers when I read them. Check out this one; an excerpt:
We pray for those who died September 11.
We pray for those who lived.
Lord hear our prayer.

We pray for peace.
We pray for war that brings peace.
Lord hear our prayer.

We pray for our patriots, that they may keep us free.
We pray for our enemies, that they may someday be free.
Lord hear our prayer. . . .


A THOUGHT ABOUT TODAY'S CEREMONIES: I haven't watched them on TV, and only listened a bit to them on the radio, so I'm not sure how much is about the grief and how much about the resolve. But the following message from Stan Brown does strike me as worth passing along, because I suspect that it does respond to at least some of the coverage out there today:
I find myself disturbed and vaguely uneasy when watching some of the 9/11 coverage today. I keep turning it off. I guess because I think the focus seems all wrong. Everything in the media seems to be about grief and suffering -- not only for the families of those who died, but also for all Americans who were disturbed by the terrible events a year ago. . . .

I hesitate to say all this because I am not trying to be a cruel, heartless bastard. I cried again when I saw the memorial to the nephew of a friend who was in the WTC and died. But I realized that the father’s grief was the same as it would be if his son had been killed in an auto accident or shot in a random drive-by shooting. There are millions of people who have lost a friend or family member in the last year. They grieve, too. And without billions of dollars in aid and lavish sympathy from the media and government. . . .

I am not saying that focusing on the grief and suffering is not appropriate. Rather that they should be the preamble or introduction for the essential focus of today. . . . Today’s events need to have a reason beyond just crying again. [They need] to be about the resolve to strengthen America and to celebrate what the attackers wanted to destroy. We shouldn’t just focus on how bad we feel. We have to also focus on what we are going to do to stop it from happening again[.]


“DETENTIONS TROUBLE EXPERTS OF ALL PERSUASIONS, YET CIVIL LIBERTARIANS SOFTEN CRITICISM OF BUSH POLICIES,” by James Gordon Meek, L.A. Daily Journal (a newspaper for lawyers), Sept. 11, 2002, is an interesting and generally balanced summary of the views of many on the war and civil liberties -- a summary that I think gives reason to hope that people on both sides are recognizing that this is a complex issue that can’t be resolved with sloganeering.

     I’ve excerpted this for copyright reasons, but I hope this provides a flavor of the piece. The one quote that strikes me as quite unsound is the one at the very end, though of course it's always impossible to tell if some relevant context might have been inadvertently cut in the editing.
     “While the hours that followed the al-Qaida attacks on New York and Washington resonated with a simple understanding that a fight had begun between good and evil, the year since has obscured such definition -- with lines blurring between civil libertarians and staunch conservatives, immigrants and enemy combatants, and pragmatism and principle.

      “For the lawyer at the heart of many of the Bush administration's policies to deal with terrorism, the calculation is somewhat simpler.

      “My worst fear, the thing that has kept me up at night for the last 365 days, has not been realized. And that fear is that America suffers another catastrophic attack,” Assistant Attorney General Viet Dinh said.

      Knowing the government has done everything possible to prevent new attacks on the homeland each day, Dinh insisted, is the only thing that will let him go to sleep tonight.

      And the critics who shouted the loudest alarm that the Constitution was being shredded with each new controversial legal policy from the Bush administration have softened their vitriol.

      "It's not the case that the government has gone hog-wild," Hussein Ibish, the communications director for the American-Arab Anti-Discrimination Committee, recently said.

      In December, Ibish forecast to Court TV that the groundwork was being laid "for an all-out assault on civil liberties in the United States."

      However, some who consistently defended the government's actions in the legal war on terrorism have grown increasingly concerned about how the Bush team has handled the highest-profile terrorism cases.

      Douglas Kmiec, dean of the Catholic University School of Law, said he is troubled by the detentions of U.S. citizens Jose Padilla and Yaser Esam Hamdi, though he remains generally supportive of President Bush and Attorney General John D. Ashcroft. . . .

      If the government prevails in court on its claim that so-called enemy combatants in military custody have no right to a lawyer, it could obviate constitutional due process claims in other cases against U.S. citizens accused of terrorist ties, Kmiec said. . . .

      Eugene Volokh, a UCLA law professor and staunch conservative who has vigorously championed Bush administration policies, also concedes that the Padilla case has blemished the government's overall anti-terrorism efforts.

      "There are very serious problems when the government claims the right to detain somebody as an enemy combatant when it's not clear that they're an enemy combatant and without any review by civilian courts," he said.

      Dinh -- whose fingerprints are on most of the Bush administration's controversial legal policies dealing with terrorism -- says the Padilla case demonstrates the blurred line between the criminal justice system and the war against enemy combatants.

      "The Constitution applies fully to Padilla as it does to any other detainee," Dinh said. "It just so happens that his rights under the Constitution as a legal and factual matter based upon the precedent of the Supreme Court are very limited."

      The Padilla matter is not all that bothers Volokh; he also objects to the Justice Department's efforts to close special immigration hearings for those swept up in the Sept. 11 federal investigation.

      "There is something troubling -- not as a euphemism for bad, necessarily -- but something that should make us worry with regard to closing immigration hearings," Volokh said. "Why? Because one of the ways we can be assured that the government is following the rules is by the possibility of publicity."

      Like Russian émigré Volokh, Dinh is a naturalized U.S. citizen. He fled the oppressive totalitarian regime in the People's Republic of Vietnam more than two decades ago and was the subject of immigration hearings as a child.

      But Dinh vigorously disputes that anyone has been silenced by the Justice Department's efforts to keep immigration hearings closed. Defendants have access to counsel and can contact the news media, he said. . . .

      "It's just simply that the actual proceedings, where sensitive evidence will be presented and where the ongoing progress of the investigation will be discussed, would not be open to the public," he said. . . .

      [T]he fact that no one has been tried by the military to date, legal scholars including Detlev Vagts see as evidence that the administration has been willing to listen to criticism and has reacted appropriately (at least on this issue). As a result, Vagts sees reason for optimism.

      "A, we haven't had the trials, and B, the Defense Department regulations are reasonably decent," said Vagts, a Harvard expert on the laws of war who strongly disapproved of the administration's initial plans. . . .

      "The rhetoric and the formal stand of the Bush administration has been far more extreme than their actions," Esther F. Lardent, chair of the ABA commission on immigration, said.

      Born in a refugee camp after World War II to parents persecuted by the Nazis, Lardent has long denounced the Justice Department for sweeping up 1,200 Arab immigrants after Sept. 11 and concealing their identities. A year later, however, with 52 remaining in custody, concerns that the number of detentions would grow have evaporated for the moment, she said.

      Still, it seemed unreasonable to shut out advocates and the media from those cases, she said.

      "I'm not a total little peace nut on this stuff -- I don't want to die -- I understand some of the caution. But what has happened is a sort of rigidity," Lardent said. "We're not even allowing the system to work." . . .

      "Raising concerns about certain policies that either are or could be discriminatory or abusive, and some actions that are truly indefensible, does not say that the government has behaved like a group of despots and tyrants," Ibish said.

      Likewise, Ibrahim Hooper, spokesman for the Council on American-Islamic Relations, said the government has reacted favorably at times to the concerns of the Muslim community in America.

      "Whenever the government has acts of anti-Muslim bigotry or hate crimes brought to their attention, they tend to deal with them quite swiftly. That's one thing we have to give them," Hooper said. "But the [overall] policies have been consistently bad." . . .

      David Sobel, general counsel of the Electronic Privacy Information Center, a civil liberties group based here, said the passage of time hasn't diminished his distrust of the government's new powers granted by the anti-terrorism USA Patriot Act of 2001 or of the shroud of secrecy it continues to throw over matters outside the machinery of war.

      Yet the Bush administration did not use the fight against terrorism to tighten controls on encryption technology, as Sobel anticipated months ago. Neither did Justice Department officials fulfill his prediction that they would seek new laws forcing information-services providers to expand data-retention capabilities to make government snooping easier.

      The fact that the government hasn't slid as far down the slippery slope as many watchdogs expected "might indicate that the scope of the [terrorist] conspiracy was not nearly as large as some in the government were trying to lead us to believe," Sobel said.


THE ORGANIZERS OF THE UCLA LAW SCHOOL "TEACH-IN AND PANEL REGARDING OPPRESSIVE U.S. LAW AND POLICIES AGAINST IMMIGRANTS OF COLOR" ARE (1) the Chicano-Latino Law Review, (2) the Immigration Law Society, and (3) the Critical Race Studies Program. Contrary to what the original e-mail that we got suggested, UCLA as such, the law school, and the Student Bar Association are apparently not organizing or endorsing this.

     But look at the groups that are, and consider what this says about them.

     The Critical Race Studies Program is an official program organized by the law school, which gives interested students an opportunity for "a coherent and rigorous program of study focusing on the nexus of race and the law." This is not supposed to be some student group that's devoted to ideological advocacy -- this is supposed to be an academic program of an academic institution, devoted to critical thinking. Is it so much to ask that the panels cosponsored by the group discuss both sides of an issue, especially given that the problem of terrorism threatens Americans of all races? That they frame the issue as whether certain laws and policies are oppressive, rather than just taking it for granted that they are oppressive? Again, it's not just a matter of abstract principles of fairness -- balanced debates are just more useful to the academic enterprise, which of course is what the Critical Race Studies Program strives to be.

     The Immigration Law Society is just a student group; I do not expect from them the same commitment to academic inquiry that I do from UCLA's academic programs. And yet shouldn't prospective immigration lawyers want to hear the government's side on this? The function of U.S. immigration law -- and I suspect the immigration law of every country that welcomes immigrants -- is to enhance national welfare, and the welfare of both would-be immigrants and nonimmigrants, by allowing people to immigrate (permanently or temporarily) while at the same time protecting national security, and the security of both recent immigrants and nonimmigrants, from those immigrants who would threaten it. Can one helpfully discuss immigration law questions -- can one "teach" the audience about them -- without considering both parts of this inquiry?

     Finally, the Chicano-Latino Law Review. This too is a student organization, but it's an organization devoted to publishing a scholarly journal; again it is supposed to be engaged in an academic enterprise. Its goal is fostering critical thinking about the issues, not propaganda.

     And to the extent that its goal is also focusing on the welfare of Chicanos and Latinos, what about the welfare of those Chicanos and Latinos who were murdered by terrorists? I know of no specific numbers -- these people died as Americans, not as members of certain races, and I'm glad that the numbers (if they were gathered at all) aren't being heavily reported. But there's no doubt that many, likely hundreds, of the dead whom we mourn on this day are Chicanos and Latinos. Hundreds were immigrants. Hundreds were noncitizens immigrants who were living in the U.S. permanently or temporarily. In future attacks, hundreds, thousands, maybe tens of thousands of immigrants, Chicanos, Latinos, and "[people] of color" may die.

     Isn't there some room, on the anniversary of the terrorist bombings, for a program put on even by these three groups to consider the need to protect these people -- alongside all other Americans and guests of America -- from terrorists, as well as the need to protect them from the government? Yes, we must be constantly watchful of government oppression, in time of war and in time of peace; I have no disagreement at all about that. But shouldn't we also be constantly aware of the need for the government to have the tools necessary to protect us, and consider at least the possibility that its law and policies are not "oppression" but rather constraint created by the need to protect Americans' lives from those who would murder them? Or is this possibility so far outside the charter of the Critical Race Studies Program, the Immigration Law Society, and the Chicano-Latino Law Review that it doesn't even merit balanced discussion, on this day alongside other days?

     The student groups of course have the First Amendment right, and the academic freedom right, to put on the program they're putting on, on this day as on other days -- just as I and others have the First Amendment right, and the academic freedom right, to criticize them. And my criticism is simply that they have the responsibility, not the legal responsibility but the intellectual and moral responsibility, to see "teach[ing]" as an opportunity for true critical inquiry, and not for propaganda.


A BIT MORE ON HOW SOME AMERICAN LAW SCHOOLS RESPONDED TO 9/11: Dr. Manhattan e-mailed me in response to my complaints about the UCLA program (and the planned Columbia program), with a pointer to an earlier blog post of his:
For [the] usual reflection of how Columbia Law School responds to the war on terrorism, see these reflections from the most recent alumni magazine. While the fora took place not long after 9/11, the reactions haven't aged well.
I looked at the excerpt to which he linked, and he seems to be quite right.

     Without doubt, it's vitally important that law schools -- and other organizations -- keep a close eye on what the government is doing, and speak out when the government is unnecessarily restricting people's liberty, in time of war as well as in time of peace. But one must at the same time never lose track of the government's first duty, which is to protect our liberties against our enemies; and this duty necessarily requires some constraints on liberty, whether it's certain kinds of searches, seizures, and eavesdropping, pretrial detention, burdens on people who want to come to this country, and so on.

     It's simply impossible to have a sensible discussion of freedom from government without at the same time discussing the need to have government, and the need to sometimes restrict freedom in order to preserve ourselves from our enemies. It's likewise impossible to have a sensible discussion of the need to constrain our liberty to preserve our security without at the same time discussing the threat that the government itself can pose, has posed, and will pose to our security as well as our liberty. Balance in putting together these programs isn't just an ethical or esthetic requirement -- it's necessary for the programs to say anything useful.

Tuesday, September 10, 2002


ANOTHER OVER-5000 UNIQUE VISITOR DAY, thanks chiefly to links from InstaPundit, The Corner, Hugh Hewitt, Mickey Kaus, the L.A. Examiner, and others. Much appreciate the pointers, and hope our new visitors enjoyed what they saw!


CLAYTON CRAMER'S BLOG. Just looked at it closely for the first time (it's new), and I'm very impressed; lots of thoughtful and articulate stuff on drugs, history, and other matters. Clayton is the first person who started seriously blowing the whistle on Michael Bellesiles (through hard work thoroughly checking Bellesiles' cites), and has written a good deal on gun history; I much respect his work, and look forward to reading his blog more in the future.


SEX DIFFERENCES, BLOGGING, AND BLOG-READING: Megan McArdle has an interesting and thoughtful post on this subject. I haven't been following the issue closely, but what Megan says seems to make a good deal of sense.

NOTE: McArdle seems to have replaced her page with a special 9/11-related item for today, so the link unfortunately doesn't work for now.


A BIT MORE ON THE UCLA LAW SCHOOL "TEACH-IN": The Student Bar Association has responded to my query by saying that they didn't cosponsor the teach-in, and don't endorse the teach-in, but were merely passing along the information about the teach-in as a courtesy to the student groups who organized it. I'll trust them on that, but unfortunately this was not what the original message implied; it said:
To commemorate the lives of the heros and the victims of September 11th, the UCLA, [the Student Bar Association] and the student organizations would like to invite you to attend the following programs:
and then listed the programs, including the teach-in. I understood this as saying that all three groups endorse all the programs as part of their joint organization, and I know that other professors and at least one student interpreted it the same way.

     I asked them to clarify this for all the recipients of the original message, and not just for me; we'll see what happens.I also asked what groups put on the teach-in (the original message just said "the student groups"); will pass along this information when I get it.


MARK KLEIMAN ON MARIJUANA POTENCY. I know nothing about the subject myself, except that I know that Mark Kleiman is one of the leading experts on drug policy.


"FOR KARNES, IT WAS A 'GOD THING' THAT HE WAS IN THE PORSCHE -- A PORSCHE 911 -- THAT DAY." A fascinating story of a remarkable 9/11 rescuer, from Rebecca Liss in Slate.


KLEIN BOTTLES FOR SALE: I actually had one custom-blown for me about 15 years ago, but then unfortunately mislaid it; now they seem to be commercially available. (My father, if I recall correctly, had one made for himself many years ago in Russia.) These are clearly quite cool, if you're a math geek like me. As you might gather, I have absolutely no financial stake in this company; a fellow lawprof and fellow math buff, Jonathan Siegel, e-mailed me about this, so I thought I'd mention it.


As a colleague of Eugene's on the UCLA Law School faculty, I should not like his readers to assume that he is the only member of our community unhappy about the program for commemorating the anniversary of the terrorist attack. Conceivably, oppression of immigrants of color is a significant enough phenomenon to be worthy of discussion in our law school. Certainly, if any group wishes to discuss it here, they have a right to do so. Equally certainly, it is not an appropriate subject for front-and-center inclusion in tomorrow's ceremonies.

     The standard for what is appropriate for occasions like this was set by Abraham Lincoln at Gettysburg. If we are to go beyond simple statements of patriotism and prayer for the dead and the survivors, then as Eugene suggests, the discussions should at least have some balance. The program here at the law school reflects disregard for the principle of balance, as well as terrible judgment and the detachment from American society that has become so characteristic of leading colleges and universities.

     But not everyone in the law school is happy about it. I've already received various statements of disgruntlement from students and faculty.

     Daniel Lowenstein

     UCLA Law School
As you might gather, I agree entirely with Dan.


MORE ON THE UCLA "TEACH-IN": I also asked the organizers: "Incidentally, might I ask you who will be on the 'teach-in and panel'? Will there be some who take the view that U.S. law and policies are in fact not oppressive, but necessary and justifiable given the difficulties that our nation faces?" It turns out that the speakers will be:
Bunthavy Laur, a Cambodian American activist who will be speaking about the deportation of Cambodian refugees;

Ben Monterroso, a community organizer affiliated with the workers (and their families) who have been fired and arrested at LAX;

Kripa Upadhyay, from the South Asian Network, who has worked with communities in Artesia in responding to the wave of hate violence and discrimination against South Asian people after 9/11/01;

and . . . a UCLA law student who will speak about experiences and activism here at UCLAW and in the broader Arab American community.
Now these people may well provide some interesting and important perspectives; and I certainly agree that the government may sometimes get "oppressive," in the immigration context and outside it, and that we should be vigilant against this.

     But on September 11, might it be helpful to also ask how the government may help protect us from oppression by certain immigrant aliens -- granted, a tiny group of them, but one that has caused vast damage, and may well cause much more in the future? And on any day, at an institution of higher learning, might it be worthwhile for the Student Bar Association (an ostensibly nonpolitical group) to include on a "panel regarding oppressive U.S. law and policies against immigrants of color" some voices that might defend government policy? (After all, wouldn't a defense of U.S. law and policy be also an opinion "regarding [supposedly] oppressive U.S. law and policies"?)

     Wouldn't some diversity be helpful here?


LIBERAL GROUP FINDS THAT 79% OF AMERICANS BELIEVE "THE RIGHT TO OWN FIREARMS" IS "ESSENTIAL" (48%) OR "IMPORTANT" (31%). Yup, that's what the Freedom Forum First Amendment Center's State of the First Amendment 2002 survey (1012 respondents) finds. What's the more, the number is up from 64% in 1997 (33% essential, 31% important) to 79% in 2002 (48% essential, 31% important).

     The report is the source of the soundbites that support for the First Amendment is supposedly declining; the situation is more complex than that, it turns out, and I plan on blogging some more about this. But to my knowledge not one media outlet has reported on the right-to-bear-arms findings (I did a LEXIS NEWS;CURNWS search for (FIRST AMENDMENT CENTER OR STATE OF THE FIRST AMENDMENT OR FREEDOM FORUM) AND (BEAR ARMS OR OWN FIREARMS OR SECOND AMENDMENT) and didn't find a single story that reported on this survey).

UPDATE: Yes, I know that the right to own firearms is in the Second Amendment, not the First; the survey was mostly about the First Amendment and related issues, but it also asked about the right to own firearms, and "the right to privacy" (though it's impossible to tell exactly how people interpreted the latter question, since "privacy" is such a vague term).


"TEACH-IN AND PANEL REGARDING OPPRESSIVE U.S. LAW AND POLICIES AGAINST IMMIGRANTS OF COLOR": Here's a message that was apparently sent to all UCLA faculty and students:
To commemorate the lives of the heros and the victims of September 11th, the UCLA, [the Student Bar Association] and the student organizations would like to invite you to attend the following programs:

12:00 - Chancellor's program on the lower UCLA campus

1:00 -1:30 - Moment of silence followed by a few words from [two colleagues of mine]

4:00 - 6:00 - 9/11 Teach-in and panel regarding oppressive U.S. law and policies against immigrants of color (Room 1357) [contact information omitted]

6:15 - Candelight vigil in the law school courtyard
Here's my response, which I e-mailed to some administrators, to the Student Bar Association, and the people whose contact information was listed:
Forgive me, but might I ask: Are you also planning a teach-in and panel regarding threats to U.S. from terrorist murderers, whether of color or not, and how the U.S. can best deal with them? I surely oppose oppression of people, whether immigrants of color or not, by the U.S. government. But I also oppose oppression of people by terrorists, many of whom gained entrance to the U.S. as immigrants of one sort or another.

Was there any plan to teach about both sorts of oppression, or does only the former seem to be of importance to UCLA, SBA, and the student organizations? (I am aware that the vigil, the moment of silence, and the chancellor's remarks will express sympathy for the victims of 9/11. My concern is with the substantive, academic, forward-looking, 2-hour-long portion of the program, which appears to me to focus on how to deal with one aspect of the threat we face, but not to the other aspect.)
We'll see what response I get.


COMMEMORATION: I will be wearing a black armband when teaching tomorrow (actually, throughout the entire day at the office), and I hope that many others will do the same.


NEVER PAY MORE THAN $4000 FOR A PICTURE: It's mathematically provable that one should never pay more than $4000 for a picture:
  1. A picture is worth 1000 words.
  2. These days a word is generally 32 bits.
  3. There are two bits to a quarter.
  4. That's 1000 * 32 * $0.125 = $4000.
QED. Next question?


Under a policy quietly imposed by the Bush administration three months ago, tens of thousands of Muslim men, from more than 26 countries, have not been able to get United States visas, disrupting lives, creating diplomatic tensions and causing headaches for American diplomats.

The policy requires that officials in Washington approve visas for every male between the ages of 16 and 45 who is a native of any one of 26 countries. Most are in the Mideast, but the list also includes Pakistan, Malaysia and Indonesia, several diplomats said.

Even if a man does not live in one of those countries, but he or a close relative was born in one of them, his visa application must be sent for approval. Before Sept. 11, consular offices or embassies could issue most visas after a routine check.

After Sept. 11, applications from men in this category had to be sent to Washington, and if nothing negative turned up in 30 days, the embassy could issue the visa. Now the consular office must send the application to Washington and wait for a response. The policy was changed because the administration found that there were too many applications to review adequately within 30 days, diplomats said.

The delays now are interminable. One American official said there was a backlog of least 100,000 visa applications, now being reviewed by the F.B.I. and C.I.A. . . .
Now for all I know this policy may indeed be as unsound as the article makes it out to be. Extra processing by a cumbersome bureaucracy isn't always a solution for all our ills; even if in principle this might help terrorists, in practice it might do little good and considerable collateral harm. Or maybe not; I'm surely not an expert on this field.

     But in the entire story, which contains quote after quote that's critical of the policy (and lots of unquoted text that's likewise critical), there's not a single statement from a defender of the policy. Not one; check it and see. And of course this not only leaves the reader with half a picture -- it casts doubt on the validity of what the story does say, because any journalist who'd be so biased that he doesn't include any contrary views can't well be trusted to be accurate in what he does include.

     And members of the media wonder why the public doesn't have much confidence in them.


DETERRING THE USSR VS. DETERRING IRAQ: Many people have argued that if Iraq gets nuclear weapons, Hussein won't use them against us -- even clandestinely, through third parties -- or even threaten to use them against us, because he'll be deterred by our fear of retaliation. We survived for decades this way with the USSR possessing nuclear weapons, the argument goes; why wouldn't this work better against Iraq?

     Well, for virtually all of the nuclear age, the USSR was ruled by a clique that was intentionally organized to prevent dictatorial decisionmaking by one person. I'm not an expert in Soviet-era history, but to my knowledge this system provided a vast amount of "checks and balances" that would control any insanity or misjudgment on the part of one person, no matter how highly placed. (This was of course a reaction to Stalin, driven by the apparatchiks' fear for their own lives.) Khruschev, Brezhnev, Andropov, Chernenko, and Gorbachev may have been known in the West as the "leaders" of Russia, but their power, while immense, was very much shared with other Soviet higher-ups. Government by committee has lots of problems, but it does decrease the risk of rash, ill-calculated, megalomaniacal, or just plain insane action by one Hitler, Stalin, or Hussein. Deterring the USSR did not require that the General Secretary of the Communist Party remain rational -- only that enough of the ruling junta remain rational.

     As I understand it, Iraq really is run by Hussein; obviously, there must be some other power centers there, but relative to the USSR's leaders, Hussein has much more dictatorial authority. If we rely on "Iraq's" rationality, we'd be relying on his rationality -- or the rationality of whoever succeeds him. (Note, incidentally, that after 1956 or so, the USSR also had a pretty well-ordered transition system, so there were no interregnums during which small factions fought it out with each other, and during which some part of the nuclear arsenal could easily be seized by a small group; we can have no such confidence as to Iraq.) That's a much less safe bet than relying on the USSR's rationality was.

     Finally, we should recognize that while deterrence worked during the Cold War, it was a very high-risk strategy. We relied on deterrence because we had no choice. Right now, it seems like we do have a choice; we can preemptively strike against Iraq much more cheaply than we could have preemptively struck against the USSR. And if we miss this opportunity, we might be placed in a situation where deterrence won't work nearly as well as it fortunately did work against the Soviets.

UPDATE: Reader Stephen St. Onge writes:
The leaders of the USSR were survivors of a Darwinian selection process of not taking too many chances. Khrushchev and Co. went through The Nail That Looked Like It Might Stick Up Someday Gets Tossed Into The Blast Furnace by Stalin, and the successors of that group were just careerists. This does not apply to Saddam.
An excellent point.

Monday, September 09, 2002


FREE MARKET MUSIC: If we're highlighting classic Oingo Boingo tunes with, shall we say, counter-cultural messages, let's not forget this one .


WAS ASHCROFT PRESIDENT CLINTON'S ATTORNEY GENERAL? The L.A. Times seems to think so; an editorial today says
In May, for instance, judges on the secret federal court that approves classified wiretaps and searches in terrorism and espionage cases blasted Atty. Gen. John Ashcroft for the FBI's use of false information in dozens of requests for top-secret warrants.
But wait a second -- as many people have pointed out, the Justice Department misstatements that the Foreign Intelligence Surveillance Court pointed to happened largely during the Clinton Administration (the government admitted 75 such misstatements in September 2000, and then some more in March 2001).

     The editorial also says:
[Congress] must compel the administration to return to the people each privacy, 1st Amendment protection and due process right [Ashcroft has] taken, unless he can prove that doing so would hurt national security.
We can debate whether the Attorney General has "taken" from people their privacy or due process rights -- much depends there on what one thinks is the proper scope of privacy and due process. But exactly what "1st Amendment protection[s]" has the Administration been "tak[ing]"? I've followed recent First Amendment developments very closely -- my main field is First Amendment law -- and I'm pretty confident that there've been very few governmental restrictions on free speech during this war, imposed by the federal government or by state or local governments. The L.A. Times just asserts the First Amendment point, and gives absolutely no evidence in support of it.

     (Link via Hugh Hewitt.)


HUSSEIN THE RATIONAL? Don Kates, a leading writer on gun issues, has a forthcoming article in the History News Network on "A-Bombs, Gun Control, Consistency and Common Sense"; it's not posted yet, but I'll try to pass along a link when it is. In the meantime, here's a great excerpt:
These pollyannaish prognostications are belied by history which teaches that criminals are all too often willing to take suicidal risks. For instance, if Saddam obtains an a-bomb, he might think no one could trace it back to him if he smuggles it onto some miscellaneous tramp freighter and detonated it in New York harbor.

     Such gambles are routine to Saddam, a gambler as reckless as Hitler. Consider his 1980 attack on Iran, a nation four times more populous than Iraq and comparably stronger militarily. But, seeing Iran in the midst of revolutionary turmoil Saddam (mis)-calculated that he could steal certain oil-rich provinces adjoining Iraq. The mis-calculation proved a ludicrous catastrophe when Iran initially routed the Iraqi attack and then captured several of Iraq's own oil-rich provinces. . . .

     [A]fter 750,000 deaths[,] Iraq gained nothing from eight years of war. Both nations' provinces were heavily damaged, and Iraq was saddled with debts far beyond its ability to pay.

     Saddam's solution was another reckless gamble: invading Kuwait from which he was immediately expelled by the Gulf War . . . .
How much are we willing to bet on Saddam's rationality?


ONLY A LAD: An exchange I'm currently having on the criminal law professors' list reminded me of the following classic, from Oingo Boingo. As you read it, pretend you're hearing it sung to a dance beat; it really is remarkably effective that way:
. . .
The lady down the block
She had a radio that Johnny wanted oh so bad
So he took it the first chance he had
Then he shot her in the leg
And this is what she said
Only a lad
You really can't blame him
Only a lad
Society made him
Only a lad
He's our responsibility
Only a lad
He really couldn't help it
Only a lad
He didn't want to do it
Only a lad
He's underprivileged and abused
Perhaps a little bit confused
. . .
And when he stole the car
Nobody dreamed that he would
Try to take it so far
He didn't mean to hit the poor man
Who had to go and die
It made the judge cry

Only a lad
He really couldn't help it
Only a lad
He didn't want to do it
Only a lad
He's underprivileged and abused
Perhaps a little bit confused

It's not his fault that he can't believe
It's not his fault that he can't behave
Society made him go astray
Perhaps if we're nice he'll go away
Perhaps he'll go away
He'll go away

(Repeat chorus)
. . .


CAREFUL WITH THOSE CAMPAIGN CONTRIBUTION STATISTICS: I've seen a few blog posts recently that talk about corporations giving money to federal candidates, and cite for that information.

     Under federal law, corporations may not give money directly to a candidate. The reports that gives (here's an example) make clear that
The organizations themselves did not donate, rather the money came from the organization's PAC, its individual members or employees or owners, and those individuals' immediate families. . . .
METHODOLOGY: The organizations listed here came from two sources: either they were the sponsor of a PAC that donated to the member, or they were listed as individual donor's employer. Donors who give more than $200 must provide information on their occupation and employer.
Thus, Citigroup Inc. did not give $80,480 to the Hillary campaign -- all we know is that Citigroup employees gave the money (perhaps with a bit extra from a Citigroup-organized political action committee, but contributions by PACs are generally limited by law to $5000, and are often less than that; clicking on "List PAC Contributions" button and then looking further reveals that $2000 came through the Citigroup PAC). Now maybe the giving of the money was coordinated by Citigroup higher-ups, for instance by some Citigroup officer who threw a fundraiser and persuaded a bunch of employees to come by; but maybe not -- it could be that $80,480 minus $2000 just happens to be the total that Citigroup's employees contributed, which isn't implausible given that there are plenty of such employees in New York, and each one who gives more than $200 must list his employer's name, so that all those totals then end up being aggregated. It's impossible to tell for sure.

     Thus, be careful whenever someone claims that some corporation gave some amount of money to some federal candidate -- some, most, or even all of that might be entirely uncoordinated contributions by people who happen to work for the corporation. And none of it can lawfully come from the corporation directly.

     (Note that the rules may differ from state to state for state candidates; I speak here only about the federal rules.)

UPDATE: Just as a thought experiment, imagine a New York-based company that has over 125,000 employees; just to pick some numbers out of thin air, imagine that 20% of its employees are in New York, and only 0.5% of those gave an average of $300 each. That would yield $37,500 total, with absolutely no coordination. So while it's possible that some of the "Corporation X employees gave $Y" claims do indeed reflect some coordination action on the part of X, it's not certain and not necessarily even likely -- any corporation which has enough employees will show up on these lists, simply because of the independent actions of its employees.


CAREFUL WITH THOSE SURVEYS: There's been much talk recently about the First Amendment Center / American Journalism Review survey that purportedly shows that Americans "think the First Amendment goes too far in the rights it guarantees." I say "purportedly" because I've come to distrust media accounts of surveys, especially if they do not contain links to the actual text of the survey instrument. (The American Journalism Review article that I cite does not include such a link, though it does say "poll to come"; perhaps they're planning to post it soon. In the meantime, if anyone knows where the text is posted, and can pass it along, I'd be much obliged.)

     One reason for the distrust, of course, is loaded questions; but another reason is questions that are illogical, can't easily capture people's opinions (for instance, what should a respondent say if he thinks that part of the First Amendment -- such as the Establishment Clause -- goes too far in the rights that it has been interpreted as guaranteeing, but other parts of the First Amendment are about right?), or rest on a misunderstanding of existing conditions. For instance, consider one line from the American Journalism Review account:
About half of those surveyed said government should be able to monitor religious groups in the interest of national security, even if that means infringing upon religious freedom.
The trouble with the question that I assume they asked ("Should government be able to monitor religious groups in the interest of national security, even if that means infringing upon religious freedom?") is that monitoring religious groups in the interest of national security generally does not infringe the First Amendment religious freedom guarantee. The Supreme Court has never held that the government may not monitor religious groups (for instance, by sending in government agents as members, or tapping their phone lines given a warrant based on the proper showing of probable cause). Current First Amendment doctrine strongly suggests that religious groups need not get any special immunity from government intelligence gathering. If the government is evenhandedly investigating a variety of groups that it thinks are involved with terrorism, the First Amendment lets the government investigate religious groups alongside nonreligious ones. (For a while, the executive branch had implemented a policy of not surveilling religious groups unless certain fairly demanding standards were met, but I don't believe that decision was required by the First Amendment.)

     Thus, it may well be that -- at least on this point -- the surveytakers and not the respondents are the ones who are out of step with the First Amendment (at least as interpreted by the Supreme Court).

UPDATE: I've found the survey online, and blogged some more about it here; you'll also find a link to the survey findings and survey text in that post. The religious freedom question is pretty much what I thought it would be: "In the interest of national security, government should be able to monitor religious groups even if that means infringing upon the religious freedom of the groups members." I thus entirely stand by my criticism of the question.


DON'T TRUST MEDIA QUOTES: One reason that I'm skeptical of media accounts about political figures' supposed flubs is that quotes -- including quotes in transcripts -- are not always reliable evidence of what the speaker actually said. The journalist or transcriber mishears or miswrites, and it looks like the source erred. I've in the past blogged two examples of when this happened to me, once when I was quoted as talking about someone's "right to hypocrisy" (I said "right to his property") and once when a transcript showed me discussing "whether a state makes good religion" (I said "whether a state may exclude religion"). Here's another example I just ran across, in a FoxNews story:
"I think it raises real serious concerns for the potential precedence they set and how they might be abused down the road," said James Lyndsey, an analyst with the Brookings Institution.
Actually, I'm pretty sure that he said for the potential precedents -- unless his statement was in writing or unless he confirmed the term with the reporter (which I doubt), it sounds like the reporter, the editor, or the proofreader screwed up. And now the poor analyst looks inarticulate as a result.

UPDATE: Turns out that the Fox News Online people actually read their e-mail; I e-mailed them about the glitch (at foxnewsonline at, and they corrected it, and sent me a nice thank-you message. Another advantage of the Net over print.


FRACTION OF PRISON INMATES WHOSE MOST SERIOUS CRIME WAS A DRUG OFFENSE: In a recent discussion on a lawprofs' discussion list, I again heard the claim that "the vast majority" of prisoners are not morally culpable because they're in prison for a drug-related crime. I'd heard this claim before, so I decided to look this up -- and it turns out that, at least as of 1997, 24% of the federal and state prisoners had drug offenses listed as their most serious offense. (Source: Bureau of Justice Statistics, "Correctional Populations in the United States, 1997," tbls. 1.5, 1.14, and 1.15.)

     Of course, many violent crimes and property crimes might be drug-related in the sense that they result from wars over drug turf, or from junkies trying to support their habit, a habit made more expensive by the drugs' illegality. It may well be that decriminalizing drugs will eliminate many of these crimes, though it might also lead to new crimes by drug users because of increase in the level of drug use and drug addiction. That's a very tough question; my tentative inclination is to suspect that the war on drugs is more criminogenic than a drug-filled peace, but I'm not expert enough on the subject to know the answer.

     But even if some, say, gang killings are caused by the war on drugs, surely this doesn't make the killers any less morally culpable; so to return to the original claim, I'd say that the vast majority of the people in prison are morally culpable, even if one were to conclude that all drug-related crimes are not morally culpable (and I suspect that at least some drug offenses are morally culpable even to libertarians, for instance because they involve distribution to children, or involve other misconduct in the course of the distribution.)

     In any event, a factoid from one data junkie to the other data junkies among our readers!

UPDATE: A piece from last year has more comments on this issue.


ANOTHER VERY PROMISING ACADEMIC BLOG: Check out Prof. Jacob T. Levy's new blog, and in particular his post on why blogging may be more compatible with academic integrity than many other forms of "public intellectual" commentary are.

     Here's a quick thought on that topic, which is quite consistent with his analysis: When you're blogging, you can say "I'm not an expert on this, but here's what I think," or "This is a tough question, and here are the arguments on both sides but I'm not sure who's right," or even "I was wrong." For a variety of reasons (some good and some bad), you can't sell op-eds that say these sorts of things, and reporters won't quote you on these things. But you can say this in a blog, and in fact not just intellectual honesty but self-interest push you to do this, since when you make a habit of acknowledging your errors and the places where you lack expertise or a conclusive answer, readers will generally see you as more credible when you do claim to be confident of something.

     In any case, returning to Levy, I don't know him personally (partly because he's a political science professor, and not a law professor), but his blog seems much worth reading -- substantive, thoughtful, and calm.

Sunday, September 08, 2002


     The President mulls a strike against Iraq, which he calls an "outlaw nation" in league with an "unholy axis of terrorists, drug traffickers and organized international criminals." The talk among world leaders, however, focuses on diplomacy. France, Russia, China, and most Arab nations oppose military action. The Saudis balk at giving us overflight rights. U.N. secretary general Kofi Annan prepares a last-ditch attempt to convince Saddam Hussein to abide by the      U.N. resolutions he agreed to at the end of the Gulf War. . . .

The president asks the nation to consider this question: What if Saddam Hussein "fails to comply, and we fail to act, or we take some ambiguous third route which gives him yet more opportunities to develop his program of weapons of mass destruction and continue to press for the release of the sanctions and continue to ignore the solemn commitments that he made? Well, he will conclude that the international community has lost its will. He will then conclude that he can go right on and do more to rebuild an arsenal of devastating destruction."

     The president's warnings are firm. "If we fail to respond today, Saddam and all those who would follow in his footsteps will be emboldened tomorrow." The stakes, he says, could not be higher. "Some day, some way, I guarantee you, he'll use the arsenal."
     These are the words not of President George W. Bush in September 2002 but of President Bill Clinton on February 18, 1998. Clinton was speaking at the Pentagon, after the Joint Chiefs and other top national security advisers had briefed him on U.S. military readiness. The televised speech followed a month-long build-up of U.S. troops and equipment in the Persian Gulf. And it won applause from leading Democrats on Capitol Hill.
An excellent point from The Weekly Standard, for all those who argue that today's anti-Iraq rhetoric is just some personal vendetta of our current President or some members of his Administration. (Thanks to Andrew Sullivan for the link.)


"NEWS FROM ANOTHER UNIVERSE", from Samizdata (thanks to InstaPundit for the link). Particularly noteworthy is their 1000 words of explanation of the root causes of American anger. Always important to constantly focus on root causes.


WILL WATSON NOW CRAWFISH? Eugene isn't the only one pointing out alleged "Bushisms" that aren't. The Hack Scrivener takes Roland Watson and Christopher Caldwell to town for claiming that the use of "crawfish" as a verb is improper. (Unlike Watson, I just checked, and it's in my Webster's Collegiate.)


MIGHT REPUBLICANS GET CONTROL OF THE SENATE (AT LEAST TEMPORARILY) BASED ON A MISSOURI VICTORY ALONE, regardless of what happens in other states? That's the claim being made by some:
Control of the U.S. Senate, for a couple of months anyway, may be a matter for voters in the state of Missouri to decide. . . .

     [Republican Jim] Talent is running against Sen. Jean Carnahan, widow of former Gov. Mel Carnahan, who was killed while on the campaign trail when the small private plane on which he was traveling crashed in bad weather. Though Carnahan was dead, Missouri voters nevertheless elected him to the Senate in November 2000. Jean Carnahan was appointed to fill the vacancy.

     According to Missouri law, appointed senators serve until the next general election and, if they wish to remain in office, must contest for the right to serve out the balance of the term -- essentially making the fall contest a special election. As the GOP reads it, Talent, should he win, immediately becomes the junior senator from Missouri and does not have to wait until the Senate reconvenes in January 2003 to take the seat. A Talent victory would, for the balance of the year, change the partisan split in the chamber to 50 Republicans, 49 Democrats and one independent -- Jim Jeffords of Vermont who voted with the Democrats to organize the chamber after he left the GOP in 2001.

     Normally, this would not matter but it is increasingly likely that there will be a lame-duck session of Congress after the fall elections . . . .
     According to a friend of mine (I haven't checked it myself, but he's very reliable on such matters), Missouri Rev. Stat. § 105.040 reads "Whenever a vacancy in the office of senator of the United States from this state exists, the governor, unless otherwise provided by law, shall appoint a person to fill such vacancy, who shall continue in office until a successor shall have been duly elected and qualified according to law."

UPDATE: The Washington Post echoes the above, and writes:
But there's another big "if" to the scenario. Missouri election results must be certified by the governor and secretary of state. The secretary of state, Matt Blunt, is a Republican, but Gov. Bob Holden is a Democrat. According to Blunt's office, the governor is not required to certify the results this year. That option could keep Talent from taking office early even if he outpolls Carnahan.

A Holden spokeswoman declined to comment on whether the governor would delay certifying the results of a Talent victory. She said Holden is researching the issue and would do what is "appropriate." Polls indicate the Carnahan-Talent race is a virtual toss-up.

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