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Saturday, March 15, 2003


PROGRESS ON DISMANTLING AL-QAEDA?: An optimistic report from Sunday's Washington Post:
  The United States is within reach of dismantling the leadership of the al Qaeda terrorist network responsible for the Sept. 11, 2001, attacks on New York and the Pentagon, Bush administration officials and U.S. intelligence experts said.
  CIA and FBI officials are cautious in public not to overstate their optimism about breaking up al Qaeda and capturing Osama bin Laden, the organization's leader. But people who receive regular briefings on U.S. counterterrorism operations said the arrest and subsequent cooperation under interrogation of al Qaeda lieutenant Khalid Sheik Mohammed this month have given them concrete reasons to come to this conclusion.


REPAIRING THE WORLD: Interesting stuff on the Iraq crisis from Thomas Friedman in Sunday's N.Y. Times.

Friday, March 14, 2003




SUPREME COURT VACANCY RUMORS: SCOTUSblog points out this little tidbit from Scripps Howard News Service:
Supreme Court vacancies? Sen. Edward Kennedy, D-Mass., says he's been told there will soon be two, and is rearranging his staff for what is expected to be the mother of all fights on Capitol Hill to stop any Bush nomination.
Of course, I have absolutely no idea if there's anything to this, but it seems worth passing on.


CONSTITUTIONAL CONFUSION: A quick post from the business office of the Old Town Alexandria Hilton, during my conference's afternoon break.

The Virginia Tech trustees this week approved three politically significant resolutions. They abolished affirmative action in university admissions, on advice that they were legally obliged to do so. The eliminated sexual orientation from the list of bases on which discrimination is not to take place. And, in response to a talk by an Earth Firster, resolved
No person, persons or organizations will be allowed to meet on campus or any facility owned or leased by the university if it can be determined that such persons or organizations advocate or have participated in illegal acts of domestic violence and/or terrorism. All requests for meetings will be submitted for approval to the President of the university at least 30 days in advance. The President will have final decision-making power to determine who can meet on university property.
What's especially bizarre is that (according to the Chronicle quoting a university spokesman) the sexual orientation change was made to bring Virginia Tech policies into line with federal and Virginia antidiscrimination law, which do not consider sexual orientation to be a suspect class.

The constitutional confusions are impressive. On the one hand, a state university is adopting a policy of prior restraint against a category of clearly-protected-by-the-First-Amendment political speech. (It may be legitimate to punish someone for a speech in which he or she incites terrorism. It is not legitimate to prevent someone who has "advocated" terrorism from speaking about just any topic whatsoever.) State universities may be moreprotective of free speech than federal and constitutional law; indeed they probably should be, since academic freedom is primarily a rule of internal academic governance rather than a principle of law. They may not be less so. On the other hand, it's utterly unnecessary to bring the university's antidiscrimination code into a state of identity with federal and state law. A university may commit itself to engaging in less discrimination than is legally permissible. It may not engage in more than is legally permissible. There's nothing legally problematic about the previous difference between the university's antidiscrimination code and the state's or the United States'. There is something legally problematic about the new difference between the university's speech rules and the First Amendment. They took notice of the law in a way that they didn't have to, and failed to take notice of the law in a way that they do have to.

What a mess.

I'll also note, without commenting on the merits of the change, that the affirmative action abolition was made in response to a Virginia AG memorandum that advised that affirmative action was probably unconstitutional. I think that the trustees could have left things alone until they learned whether the Supreme Court agrees with the Virginia AG, but it might be that state universities have some obligation to defer to the state AG on legal questions.


THE POWER OF PROJECTION. Paul Krugman's column today compares George Bush to the obsessive Captain Queeg in The Caine Mutiny, strawberries and all. But that metaphor already has been taken.


"FRENCH MUSLIMS TO TAKE INTO ACCOUNT": Incidentally, apropos my post below, I have no independent knowledge of whether the French muslims are in fact a fifth column -- but that a Le Monde correspondent just takes this for granted is a pretty troubling sign. And he's not just saying that there may be a few bad people within that group (that could be true of many groups); it's the "6 million French muslims" that he says need to be considered, not a tiny subset.

     I highly doubt that we need to worry about this sort of thing from the American Muslim community. But if the Le Monde correspondent, and others who have made this point (both in the anti-war context and outside) about other European countries, are right, then it shows that the French and other Europeans have made a very bad mistake with their immigration policy, assimilation policy (or nonassimilation policy), or both.

     As I mentioned in a post on this blog's very first day, "letting in immigrants [equals] letting in your future rulers." I had in mind immigrants participating in the ruling of the nation through the ballot-box, and sometimes providing a swing vote that could materially change the nation's laws. But it sounds like the Le Monde correspondent believes that the immigrants have started ruling France in another way -- through "domestic conflagration and terrorism." And the worst of it all is that he seems to see nothing wrong with that; he seems to have accepted it as just part of the new French political reality. Terrifying.

     (Oh, and to preempt one possible response: Of course the same would be true if Americans found that America couldn't do something to the Soviets during the Cold War because "[t]he fear of domestic conflagration and terrorism are also ever-present: there are [hundreds of thousands of] Americans born in the Soviet Union to take into account." If that were a real danger, which really flowed from the hundreds of thousands of Soviet emigres and not just a few KGB spies -- and especially if Americans were willing to change their policies because of that danger -- then one would have to say that the Americans had made a horrible mistake by letting in Soviet emigres like me.)


GOOGLE TELLS US that it's Einstein's birthday today.


MATT WELCH ON HIS FREEDOM FRIES AND HIS FREEDOM WIFE: A very sensible and insighftul post.


[I]n all their pejorative wrangling, in all their efforts to prove that the other side controls the agenda-ridden "news," both sides have underplayed their own contributions to a more troubling phenomenon: the shrillness of the discourse itself.
The thing is, she has a point, although Vincent is nuts if she really thinks both sides are equally responsible. There's no liberal equivalent of Regnery Publishing, churning out endless clip-jobs that do little but heap vitriol on Democrats and libs. There's no liberal equivalent of Fox News either.
And here's one from three hours earlier:
TOLKIEN INTERNATIONALISM. Alex Gourevitch argues at TAP Online that George W. Bush is actually Gollum:
As almost everyone knows, Gollum is the character from The Lord of the Rings trilogy with a severe split-personality disorder. He hates J.R.R. Tolkien's protagonist, Frodo Baggins, because Frodo's uncle took Gollum's precious ring -- the ring that Frodo now wears and that Gollum covets. At the same time, Gollum also loves Frodo, his "master," for treating him with kindness. Gollum expresses this inner war through his oft-repeated refrain, "We hates master. No! No! We loves master."
With that in mind, consider some of our president's recent foreign-policy pronouncements . . .

Read more.
Uh, yeah, right. No clip-job, no vitriol, no shrillness here, folks -- the Left would never stoop to such tactics.


FIFTH COLUMN: Le Monde's London correspondent (1) says that French Muslims essentially contain a dangerous fifth column, capable of turning on France if it approves of an Iraqi attack, and (2) uses this as an argument why the French shouldn't support the attack:
Let's be clear: Mr Chirac does not endorse Baghdad, and he finds Saddam's regime as despicable as do Bush and Blair. But he fears the American hawks will ignite Muslim fundamentalism worldwide. The fear of domestic conflagration and terrorism are also ever-present: there are 6 million French Muslims to take into account.
Again, this is a statement supporting Chirac's position.

     The piece is generally an anti-Blair, pro-Chirac rant, filled with gems like this one:
But it must be tough for Mr Blair, who constantly claims a religious and moral supremacy, to see that on the question of Iraq, it is President Chirac who has emerged as the moral authority on the world stage.

The French president's desire for a peaceful solution surely gives him the moral high ground against the Anglo-American warmongers.
As someone once said, whenever you see the words "surely," "clearly," or "obviously," the statement that follows will be highly controversial, and likely wrong. (Seriously, that's not always true -- the words actually have a useful place in certain contexts -- but it often is.) If peace were always the more moral solution than war, then of course the "surely" would be true. But Neville Chamberlain taught us otherwise, no?

     In any event, though, it seems to me that all the other items in the piece pale in comparison to the fifth column point. If the correspondent's reasoning is correct, then why should anyone trust the French to be acting in any interests other than their own desire to spare themselves their own "domestic conflagration"? If someone is giving you what he claims to be objective moral advice, but you notice that the advisor thinks (rightly or wrongly) that someone has a gun to his head, how trustworthy would you then think the advice is? Thanks to InstaPundit for the pointer.

Thursday, March 13, 2003


NOT SOMETHING YOU SEE EVERY DAY: So I'm driving down the 5 to San Diego, and in the emergency lane on the right of the freeway (not even on the shoulder, but on the asphalt), there's this guy in his 50s (so it seems) riding a horse, with another horse tied up behind him, and a dog running along a few feet in front. A police car is driving slowly behind them. I have no idea what it was all about.


REASON WEEKEND: I'm off to Reason Weekend -- a Reason Foundation event -- where I'll be debating my friend Tom Bell on intellectual property, and then talking on a panel about blogging (following Glenn Reynolds' talk on the subject). I'll be blogging on occasion from there, and my cobloggers will be blogging as normal; but posts will be somewhat less frequent, and I'll be even slower than usual in my responses to e-mail.


EXAMPLE: "Example is the school of mankind and they will learn at no other."

-- Edmund Burke.

     (Thanks to Jonah Goldberg for the pointer.)


JONAH GOLDBERG ON "THE JEWS" AND THE WAR: A great read, as usual.


STUART TAYLOR ON TORTURE AND MILITARY DETENTION: I always enjoy reading Stuart's thoughtful, balanced, and undoctrinaire work; I'm not sure I completely agree with all he says in this column, but it's much worth reading. (Thanks to How Appealing for the pointer.)


DECLARATION OF WAR: As I've argued often on this blog, most legal doctrines (both of domestic constitutional law and of international law) do not turn on whether a war is declared or not. It may well be that the President has a constitutional obligation not to use force in certain situations absent a declaration of war (a hotly contested question), but if there is a war actually happening, then the law recognizes that there's a war on, whether it's declared or not.

     I've also made a related but different point: A declaration of war need not use the words "we declare war"; for instance, the authorization of the use of force after Sept. 11, 2001 was legally speaking a declaration of war. Sen. Joe Biden, one of the drafters of the authorization has taken this view, and I think he's right.

     Today's First Circuit decision (Doe v. Bush) made the same point:
The plaintiffs appropriately disavow the formalistic notion that Congress only authorizes military deployments if it states, "We declare war." This has never been the practice and it was not the understanding of the founders. See J.H. Ely, War and Responsibility 25-26 (1993). Congressional authorization for military action has often been found in the passage of resolutions that lacked these "magic words," or in continued enactments of appropriations or extensions of the draft which were aimed at waging a particular war. See, e.g., Laird, 451 F.2d at 34 ("[I]n a situation of prolonged but undeclared hostilities, where the executive continues to act . . . with steady Congressional support, the Constitution has not been breached."); Orlando, 443 F.2d at 1042-43 ("[T]he test is whether there is any action by the Congress sufficient to authorize or ratify the military activity in question."); see also Ely, supra, at 12-46 (arguing that Congress gave constitutionally sufficient authorization for ground war in Vietnam and Cambodia).
I'm not sure whether I'd go quite as far as the First Circuit does, but they're the judges and I'm not.


The House Judiciary Committee is considering issuing a subpoena to force Minnesota's chief federal judge to turn over his records as part of a broader investigation into drug sentences.

The probe is focused on Chief Judge James Rosenbaum, but has widened to include a review of sentencing decisions by all federal judges to determine whether they're too lenient.

Republicans on the committee say that Rosenbaum misled Congress when he testified on the matter last May and that he has refused to cooperate with the committee's inquiry.

Rosenbaum was appointed by President Ronald Reagan and confirmed by the Senate in 1985. . . .

The committee was scheduled to vote to give Sensenbrenner the power to issue a subpoena when it met on Wednesday, but postponed action. . . .

Jeff Lungren, a spokesman for the committee, said it wants to know whether there is a pattern of departing from sentencing guidelines among federal judges in Minnesota. . . .

Among other things, committee Republicans want Rosenbaum's records from his cases since Jan. 1, 1999, identifying drug-related cases in which he departed from sentencing guidelines. He also has been asked to provide sentencing transcripts, the status of appeals, copies of all decisions and the names of any court personnel who helped in his testimony before Congress.

Lungren said the committee has asked Rosenbaum to turn over his records voluntarily but has not been satisfied with his response. . . .

The dispute apparently began on May 14, when Rosenbaum was invited by committee Democrats to testify about a Republican bill on sentencing guidelines. According to a committee report, Rosenbaum said that defendants convicted of drug offenses "frequently have no idea what they are carrying or receiving."

He said that under the current system "minor and minimal participants" are treated the same way in which "the planner and enterprise-operator who set the evil plan in motion" are treated.

To make his point, Rosenbaum told the committee that there are women whose boyfriends tell them that "a package will be coming by mail or from a package delivery service in the next two weeks." He said they're told: "Keep it for me, and I'll give you $200, or maybe I'll buy you food for your kids."

Later in the hearing, Rosenbaum corrected his statement to say that persons who had been convicted did know they were carrying or receiving illegal drugs, the report said.

After investigating the matter, the committee concluded: "That a sitting federal judge would suggest, as he did in his prepared statement, that persons can be and are convicted on no more evidence than receiving a package at the request of a boyfriend is remarkable."

"If true," the report said, "it raises serious concerns that judges are knowingly permitting such convictions despite the extraordinary power entrusted to them by Congress to prevent convictions based on insufficient evidence. If not true, the falsity of that suggestion, cloaked in the majesty of a federal judicial officer, can only serve to erode respect for the rule of law in the public's mind and in the mind of those who stand accused of crimes." . . .
     I'm not up the caselaw related to separation of powers in this context; it might be that this sort of subpoena is constitutionally permissible -- I'm just not sure. But it does strike me as a very bad idea -- a distraction of the judge from his normal duties, and a means of bullying those judges whose legal decisions the Congress dislikes. If Congress wants publicly available records (status of appeals, copies of decisions, and the like), it should get them. If it wants sentencing transcripts, it should pay for them. If it wants private in-chambers information (such as information about whether the clerks helped the judge with his testimony), it has no business demanding it. Either way, the contemplated subpoena seems quite improper.

     The allegations of the judge supposedly misleading Congress or of his testimony raising "serious concerns" about the judiciary strike me as unsound. The article doesn't give all the details, but it sounds at most like the Judge expressed his opinions in an inartful way. (I take it that his claim was that some people get heavy sentences even though they're only marginally culpable, or perhaps that he thinks they're probably not culpable but a jury decided otherwise.) Not a good sort of business for Congress to be getting into.


CHANCE FOR PRO-GUN-RIGHTS STUDENTS TO WORK ON A SUPREME COURT AMICUS BRIEF: I know nothing about the details beyond what this page says, but I'm passing it along just in case some of you might want to look into this.


FIRST CIRCUIT REJECTS CONGRESSMEN'S LAWSUIT AGAINST BUSH OVER THE IMPENDING WAR: The opinion is here. Haven't read all the details yet, but the bottom line is no surprise -- courts try to avoid intervening in matters of warmaking, though there's a theoretical possibility that they might.


FLAGS ON OVERPASSES: The Ninth Circuit just held that it was unconstitutional for the California Department of Transportation to allow people to post flags on overpasses but not to let them post other messages. This policy, the court reasoned, was unconstitutional viewpoint discrimination on government property.

     The First Amendment issue here is whether (1) the government is itself speaking (in which case it is free to express only one viewpoint and not others) or whether (2) the government is tolerating private speech on government property (in which case its actions must be viewpoint-neutral). The panel found that the government was doing the latter, and the position is plausible, since the flags were apparently spontaneously put up by various citizens; there seems to have been no serious attempt by the government to choose and then promulgate its own message. One could argue that the government was effectively communicating its own message of patriotism by allowing the flags, though it was doing it through providing its property to others (something the government often does) -- this case falls close to the line between (1) and (2). But the court's conclusion was probably correct.

     Interestingly, the panel's opinion seems to leave open the possibility (though not the certainty) that the state could explicitly pass a law -- or perhaps even that the governor could explicitly enact a regulation -- that says the state wants to express a message of patriotism, and is doing so by opening its overpasses to those citizens who want to put up flags. That would make it more overtly government speech, and thus mostly constitutional.


ARTICLE TITLES: Someone who read a draft of my Academic Legal Writing book suggested that I add a section on titles, and when I thought about the subject a bit, I realized that I did have something to say. Here's my draft -- if any of you have some suggestions for improving them, I'd love to hear them (volokh at

     UPDATE: I forgot to mention when I first posted this; but, as you read this, recall that the book is aimed at law students or rather junior lawyers -- the rules may be different for people who already have well-established academic reputations. To answer Glenn's likely somewhat facetious question, Is Democracy Like Sex? is an intriguing and fitting title for a thought-provoking article published in a Top 20 law review by an established constitutional scholar, but I wouldn't recommend the title to a student who hasn't yet made a reputation for himself.
     A title should do three things. Most importantly, the title should persuade people to read the article. When busy people do a WESTLAW or LEXIS search that yields fifty items, how do they choose what to read? They look at the authors' names and at the titles. If the title looks helpful -- not necessarily exciting, but helpful -- they'll read further. The title is your opportunity to get people to devote time to at least reading the Introduction.

     Second, the title can frame people's thinking once they start reading your piece. If a title focuses the reader on a concept, the reader is more likely to keep that concept in mind.

     Third, the title can help readers remember your article. Remember, though, that a memorable title is of little use to you if it wasn't attractive enough to get people to read the piece in the first place.

     So how should you choose your title? Let me suggest the following approach.

     1. Start with a descriptive title, which summarizes the general question that your article is answering (though not necessarily your specific answer). If a person's query comes up with an article called "Freedom of Speech and Workplace Harassment," the person will have a good sense of the article's substance. Naturally, the title can capture only a small part of your point, but it can capture enough to give readers some idea of whether the article is relevant to their interests. Purely descriptive titles might not be that memorable, and might not much help frame readers' thinking, but they're good at getting people to read the piece.

     Of course, it's not enough that your title be comprehensible to you; make it comprehensible to your readers. I named one of my articles "Test Suites," but late in the publication process realized that few readers would know what that means. Renaming the piece "Test Suites: A Tool for Improving Student Articles" made the purpose and value of the article clearer (though I think the title could have been made better still).

     It's acceptable for an article to have a subtitle as well as a title. This can let you communicate two ideas, one general and one more specific. For instance, "Freedom of Speech and Information Privacy: The Troubling Implications of a Right to Stop Others from Speaking About You" conveys both a general point (the article is about the First Amendment problems with information privacy laws) and a specific one (the problems arise because "information privacy" really refers to a right to stop others from speaking about you). The title may be too long, but it takes advantage of its length. Likewise, "Academic Legal Writing: Student Notes, Law Review Articles, and Seminar Papers" gives people a short summary (the book is about academic legal writing) but also tells them that it's useful for three different purposes.

     2. If your article focuses on a particular concept -- and especially if it pioneers the concept -- include the concept in your title. Say you're writing an article about laws requiring passersby to help strangers whom they see to be in peril. Your main thesis is that these laws might have the perverse effect of discouraging some people from cooperating with the police; but you also think this broader idea of anticooperative effects of law deserves more attention.

     "Duties to Rescue and Anticooperative Effects of Law" may be a good title: It tells potential readers that your article is both about duties to rescue and about the general problem of law discouraging cooperation with the authorities; it focuses readers' attention on the concept of "anticooperative effects"; and it gives them a phrase that they can remember the article by. My colleague Ken Karst, for instance, pioneered the term "The Freedom of Intimate Association" in a Yale Law Journal article with that title, and now the phrase is a well-established part of constitutional jurisprudence.

     3. If you have a witty play on words that you'd like to include in the title, now is the time to consider it. I try to avoid such titles in my own work, but a little wit can make the article seem more appealing, can put the reader in a good mood, and can help the reader remember the article later. I still remember an article title I saw in the early 1990s, "One Hundred Years of Privacy" -- this both communicated the article's essence (a look back on the privacy tort a century after Warren and Brandeis first proposed it), and alluded to the novel "One Hundred Years of Solitude."

     But be careful! First, amateur comedians notoriously overestimate how funny their jokes are. Second, with some topics (abortion, the death penalty, and the like), some readers will find any humor to be jarring. Third, even an amusing gag distracts the reader from your main point. To be effective, the joke must be interesting and memorable enough that its value overcomes the distraction. So read the title over on several occasions to make sure that the gag really works, and ask friends whether they agree. If you're in doubt, err on the side of having a purely substantive title.

     4. Edit the title even more carefully than you edit the rest of your work. Clarity, proper word choice, and liveliness are especially important in a title, both to make people more interested in reading the piece, and to set the right tone for their reading -- if the title sounds clunky or abstract, people will expect the rest of the article to be the same. Thus, for instance, "Considering the Advantages and Disadvantages of Prohibitions on Concealable Firearms" isn't as good as "The Costs and Benefits of Handgun Prohibition." The "considering the" is surplus; "costs and benefits" is shorter and simpler-sounding than "advantages and disadvantages"; and "handgun prohibition" cuts out an unnecessary prepositional phrase, and recasts the abstract "concealable firearms" as the concrete "handguns."

     5. Generally, avoid case names. Just as the article should usually be about a topic and not just a particular case (see Part I.A.7.b, p. [cross-reference to I.A.7.b]), so should the title. First, the case name might not be familiar to some readers, unless the case is very famous; a reader might be interested in the general subject, but might not connect the case to the subject. Second, stressing a particular case makes your claim seem narrower and less useful.

     Sometimes, a case may be so important and controversial that many readers will want to read articles about it -- referring to the case name will then draw more readers than it will repel. But generally speaking, titles should be about concepts, not cases.

     6. Generally, avoid jargon, little-known legal terms, and statutory citations. Readers may also be put off by titles with little-known legal terms, statutory citations (unless they're extremely well-known, such as "Title VII" or "42 U.S.C. § 1983"), and jargon, whether it's drawn from economics, literary criticism, feminist studies, libertarian philosophy, or what have you. Many readers will be interested in the general topic, but not fully understand the terms; and when the query gives them those fifty titles, they'll choose the ones they understand rather than the ones they don't. Again, there may be exceptions, for instance if the substance of your article will only appeal to those people who know the jargon -- then, the technical terms may attract exactly those readers that you want. But usually, stick with plain English.

     7. That other articles have silly or mystifying titles doesn't mean your should, too. Well-known authors can get away with less descriptive titles, since people will read their pieces because of the author's name, not the article's name. You don't have that luxury.

     So here's an example. You decide to write an article about whether compulsory licenses in copyrighted musical compositions make sense, using Allman v. Capricorn Records, a recent court of appeals case, as a launching-off point. Don't start with "Compulsion or Anti-Monopoly?" or "Licensing Fair and Foul," or, heaven forbid, "Copyright and § 115: Is Capricorn a Sign of the Times?"

     Rather, (1) start with a descriptive title: "Copyright and Compulsory Licenses," or "Compulsory Licenses in Copyrighted Musical Compositions," or "Compulsory Licenses in Copyrighted Musical Compositions: Keep Them, Expand Them, or Reject Them?" These aren't exciting, but people who see the title will know whether the piece is likely to help them.

     Then, (2) see if there are any other basic concepts around which your article is oriented. For instance, if you argue that compulsory licenses make copyright a form of "intellectual quasi-property," rather than true property, mention that concept in the title: "Compulsory Licenses in Copyrighted Musical Compositions: Intellectual Quasi-Property as a Remedy for Transaction Costs." This is especially so if you're trying to pioneer the concept of "intellectual quasi-property."

     If you do want to rework the title to (3) include some pun or witticism, now is the time to do it. This way, you have the descriptive title in front of you, and can compare it to the amusing alternative. If the amusing version is clearly better, go with it. But if it's not better -- and it probably won't be better -- then stick with the purely substantive title.

     Now (4) see if you can make your title shorter, clearer, and more forceful. Does the subtitle really add enough value to the title? Do you really need the word "Compositions," or will it be clear enough (and less technical-sounding) without it? Do you really need the word "Copyrighted," or will that be obvious, since virtually all musical compositions are protected by copyright? (I think "uncopyrighted" is probably helpful, because it makes it clearer to the casual reader that the article is about copyright law.) Can you make the title sound more active, perhaps "Compulsory Licenses in Copyrighted Music: Fighting Transaction Costs Through Intellectual Quasi-Property"? I'm not sure what the best title would be, but I am sure that you should spend some time editing it.

     You don't have (5) any case names here, and you probably don't need them. "Transaction costs" is a bit of (6) economics jargon, but it's so well-known that it's probably worth keeping, especially since there's no really good synonym. You don't have any technical legal terms or statutory cites, which is good: If your title had been "17 U.S.C. § 115: Fighting Transaction Costs Through Intellectual Quasi-Property," you should have changed it to our working title ("Compulsory Licenses . . .") -- many readers, even ones who are tolerably familiar with copyright law, might not be sure what § 115 covers.

     So you now have a pretty good title. It's not very exciting, but it should get the job done. Someone who is interested in information on compulsory licenses and who comes across a piece labeled "Compulsory Licenses in Copyrighted Music: Fighting Transaction Costs Through Intellectual Quasi-Property" will probably think it's worth looking at -- and that's the title's main function.


TWENTY QUESTIONS: Here's a pretty cool version. It's not a conceptually very hard progamming task, I think, but I was still impressed by the execution.


France, China and Syria all have a common reason for keeping American and British troops out of Iraq: the three nations may not want the world to discover that their nationals have been illicitly supplying Saddam Hussein with materials used in building long-range surface-to-surface missiles. . . .
The article gives many details (for the accuracy of which I naturally cannot vouch).


HOUSE JUDICIARY RANKING DEMOCRAT ASSEMBLES MEETING TO DISCUSS BUSH IMPEACHMENT MOVE: From Ethan Wallison, Conyers Joins Meeting To Mull Ousting Bush Time To Impeach?, Roll Call, Mar. 13, 2003:
House Judiciary ranking member John Conyers (D-Mich.) assembled more than two-dozen prominent liberal attorneys and legal scholars on Tuesday to mull over articles of impeachment drafted against President Bush by activists seeking to block military action against Saddam Hussein.

The two-hour session, which featured former attorney general-turned-activist Ramsey Clark, took place in the downtown office of a prominent Washington tort lawyer. Participants said Conyers, who hosted the meeting, was the only Member of Congress to attend.

"We had a pretty frank discussion about putting in a bill of impeachment against President Bush," said Francis Boyle, an Illinois law professor who has been working on the impeachment language with Clark.

Boyle said he was not aware of any Member who is willing at this point to introduce articles of impeachment, but added that he is certain the option is "being actively considered" by some on Capitol Hill.

Neither Conyers nor his aides would comment Wednesday on the meeting. But participants said there was no indication that support for such a proposal had grown at the meeting. . . .

"To a person, every other person in the room who spoke [besides Clark and Boyle] was opposed to it. Every single one," one participant said, citing both practical and political objections that were raised. . . .

Participants in the meeting said Boyle and Clark were not being realistic.

"He's very invested in [impeachment] and prone to exaggeration," one participant said of Boyle after the meeting. "He says, '[Impeachment] is going to be incredibly popular because it gets huge applause at anti-war rallies.' Well, OK." . . .
No, no, no, don't listen to the pessimists, Rep. Conyers! Trying to impeach Bush would be an excellent idea for the Left -- trust me on this one . . . .

Wednesday, March 12, 2003


THE DARK SIDE OF PEER-TO-PEER: Declan reports on the use of peer-to-peer networks to distribute child pornography. Very disturbing stuff.


CRYPTONOMICON: As part of my Everyone Must Read Cryptonomicon campaign, I pass along an e-mail I got from my friend Jack Schaedel; I had given him the book for his birthday:
I'm into the 700's in Cryptonomicon. There are so many passages I have read twice because they are so enjoyable. Part of me wants to find out what happens next as quickly as possible, but part of me does not want the book to end. . . .
Enough said.


THE TRUTH COMES OUT, and it's quite different from what one would gather when reading the newspaper article cited in the next post. Skip Oliva tracked down what appears to be a copy of the resolution -- which I should have done myself -- and it says, in operative part (shorn of the rherotic):
BE IT FURTHER RESOLVED that local law enforcement continue to preserve and uphold residents' freedom of speech, assembly, association, and privacy, the right to counsel and due process in judicial proceedings, and protection from unreasonable searches and seizures, even if requested to do otherwise and infringe upon such rights by federal or state law enforcement agencies acting under new powers created by the USA PATRIOT ACT or by Executive Order . . . .
Well, first, the police already have a legal obligation to comply with the Constitution, even if "requested to do otherwise." Second, as I've argued before, the USA Patriot Act seems to me quite constitutional. Third, technically speaking if the police fail to comply with requests, then that's not "civil disobedience" or "disobey[ing] the federal laws" (I quote the newspaper article) at all.

     So it's all much ado about nothing. The Arcata City Council decided to fulminate about the supposed sins and likely future sins of the Bush Administration, and issued an essentially legally inoperative press release about it. But, not surprisingly, the media flubbed it.


When does civil disobedience turn into a federal crime? We may soon find out.

The Arcata City Council, by a recent vote of 3-1, Councilman Michael Machi dissenting and Councilwoman Elizabeth Conner absent, has decided to oppose the USA Patriot Act and related laws -- and order its management employees to disobey the federal laws involved. Those employees will be asked if they agree to take that stand. But how can they say no; if they do, won't their attitude as team players be suspect? . . .
Arthur and the newspaper criticize this, on the plausible grounds that government officials should follow the law. But I have a more basic question: Exactly what parts of the Patriot Act -- and what "related laws" -- are the city officials contemplating flouting? The Patriot Act has lots of sections. I have no idea exactly what the city council thinks it's doing (other than sending a message in a way that's particularly dangerous to its employees), and what exactly its employees are therefore likely to do. If anyone has some more details, please let me know.

UPDATE: The newspaper article badly misreported the resolution, it turns out; see here for more.


SUE THEM IN ENGLAND: Noted hawk Richard Perle is suing noted journalist Seymour Hersh over a recent New Yorker article that Hersh wrote. The twist: Perle is suing him in England, because libel cases are easier to win in England.

     I know nothing about the merits of the case, but here's the main legal difficulty: Even if English courts agree to hear the case (which they well might, given that The New Yorker is doubtless distributed there), and even if Perle wins a verdict, he will still need to enforce it. If Hersh has assets in England, or if Perle also gets a judgment against The New Yorker's publishers and they have assets in England, then Perle has no problem. But if he tries to enforce the judgment in U.S. courts, they'll quite likely refuse to do anything, precisely because English libel law is so much more plaintiff-friendly, and naturally doesn't comport with First Amendment standards. (The leading cases on the subject are Matusevitch v. Telnikoff, decided in the mid-1990s by a federal district court and a Maryland appellate court, and the recent Yahoo! case from a federal district court.)

     Now maybe Perle doesn't mind the inability to enforce the judgment -- maybe the verdict (or a default judgment, if Hersh refuses to show up) would be enough for him, because he wants vindication. It would be pretty expensive vindication, but it might be worth it. But unless Perle can find some English assets to seize, or unless U.S. courts change their tune (possible, since there hasn't been any binding Supreme Court precedent here, but unlikely), vindication -- not money -- is the most that he'll be able to get.

     Thanks to Hugh Hewitt for alerting me to this (I was just on his show discussing this question), and to Joshua Micah Marshall, whose blog post alerted Hugh.


MORE ON FRENCH FRIES: Li'l Cato writes:
Eugene, it is silly, petty, and undignified to change food names this way [french fries to freedom fries], but France has been silly, petty, and undignified.
     Look, I don't want to blow this issue out of proportion -- the fate of the Western world will not turn on it either way -- but I'm not sure how this argument is supposed to work. Assume that France's actions are silly, petty, and undignified (I think they are close to that). Why does it follow that silly, petty, and undignified actions on our part (here I'm specifically talking about the House of Representatives cafeteria renaming its fries) are an effective response to this?

     Of course, sometimes silliness is a sensible response to silliness, for instance because it exposes the other side's silliness -- but for that, I think it helps if the silliness is somehow logically connected (e.g., a leftist is fulminating about the Bush Administration's supposed fascism and a defender of Bush starts goose-stepping and speaking with a German accent to highlight the ridiculous overstatement). More usually, I think that my doing silly, petty, and undignified things would just make me look, well, silly, petty, and undignified; and there's not much mileage in that. I understand the temptation to respond to another's follies in kind. I just don't understand the benefit.


TORTURE AND SLIPPERY SLOPES: My former student Matt Bower has an interesting post on this time-stamped 4 pm today (here's the is permalink, but right now it's Blogger-bugged). A particularly interesting excerpt, though the whole thing is much worth reading (and note that Matt's ultimate conclusion as to torture in domestic terrorism cases is quite ambivalent):
Generally, the possibility of torture rapidly becoming more widely used if permitted under certain circumstances doesn't strike me as very great.

I think part of the reason for my relative lack of concern about torture of foreign terrorists on foreign soil, from a slippery slope perspective, is that I suspect we've always used torture to some extent, one way or another. Perhaps I'm letting my borderline conspiracy theorist tendencies show here, but I've never much doubted that our military and intelligence agencies have occasionally used torture against foreign nationals in extreme circumstances, and that this was either explicitly (if very quietly) condoned, or at least officially winked-at, by the chain of command. And I'm nearly certain that we've implicitly condoned torture by other nations' intelligence services, when we had an interest in the results of the interrogation. If those assumptions are true -- perhaps a bigger "if" than I'm acknowledging -- then the fact that we seemingly haven't slipped far down that slope, so far, seems to me to indicate that it isn't as slippery as we might think.


OUTLAW THEM ALL -- LET THE JURY SORT IT OUT: Jesse Walker has a nice post expressing skepticism that the "torture to find the ticking time bomb" scenario will be that common, and suggests that if it ever happens, jury discretion to nullify -- to acquit someone even though the letter of the law calls for his conviction -- will be enough to free the laudable torturer. I've seen this argument elsewhere, which also urged that the Presidential pardon power will be adequate for the purpose.

     There's a lot to be said for this argument, on two grounds: (1) It might send the proper anti-torture message, because it will maintain the legal prohibition on torture, but will at the same time prevent the bad result of a hero who saved hundreds of thousands lives being convicted. (2) This is one area where it's hard to come up with well-defined rules up front, in part because fortunately the ticking time-bomb scenario hasn't yet arisen, so we'll only be well-equipped to decide what's permissible and what's not after the fact.

     But I wonder just how different this approach is from the alternative of legalizing torture in some circumstances, which Jesse and others are criticizing.

     1. If the merit of this approach is that we can retain our existing laws, and take care of the necessary exceptions through the conventional framework (Jesse says he's "reluctant to rewrite the law" for the ticking-time-bomb scenario), then presumably we'd also retain prosecutorial discretion -- for at least over 100 years, an even more accepted part of our system than jury nullification. If it's morally OK for the jury to acquit someone who they think did the right thing even though he violated the law, then it's also OK for the prosecutor to refuse to prosecute him (and, as I mentioned, for the President to pardon him). Jesse himself seems to acknowledge this. Maybe that's good, but let's just make this clear, because it shows that "the prohibition against torture" that Jesse understandably praises, and says shouldn't have any formal exceptions, really isn't a firm prohibition after all.

     2. Furthermore, another part of our existing laws is the necessity defense. Under the necessity defense (at least as stated in the Model Penal Code; other formulations may differ):
(1) Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that:
(a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and
(b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and
(c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear.
This essentially gives courts the same power as juries and prosecutors to decide -- though as a matter of law and not unguided and unreviewable discretion -- that an exception needs to be made when it's really important. Courts very rarely exercise this power, just as, to our knowledge, jurors rarely exercise the power to nullify, and the President rarely (as a fraction of all cases) exercises the power to pardon; the Court, for instance, recently rejected a necessity defense as to medical marijuana use, on the theory that Congress had meant to foreclose it. But the defense is theoretically available, and I would think that the ticking-time-bomb scenario would be a classic application for it.

     Now I take it that Jesse and others would reject the necessity defense in torture cases, since the necessity defense effectively does legalize torture in those circumstances where the defense is recognized. And the legislature could foreclose the defense if it wanted to (something the legislature couldn't do as to jury nullification, Presidential pardon, and possibly even prosecutorial discretion, though this last one is a hard question). But this just raises the question: Why is relying on juries to exercise their discretion -- or relying on Presidents and prosecutors to exercise theirs -- that different from letting courts exercise their discretion under the necessity defense? Really, how different is (a) the current "prohibition of torture" but with plenty of safety valves for the torture that we think really is necessary from (b) the legal toleration of some torture, which Jesse and others oppose?

     3. Finally, you can guess what will happen if someone in the government -- especially in the Ashcroft Department of Justice -- made the argument that Jesse made: "Hypocrisy!," lots of people would shout. "That evil John Ashcroft; here he's claiming that the government is adhering to '[t]he prohibition against torture,' but at the same time he's urging prosecutors not to prosecute criminal torturers, and suggesting that juries should violate their oaths by acquitting them even though they're clearly guilty." Or, to make the calmer version of the argument, they might say that whatever message is sent by the legal prohibition on torture is undermined by the wink-wink-nudge-nudge acknowledgment that of course the prosecutors and the jurors will protect you if they think you really had to do it.

     Now I'm not that bothered by this, in part because I think that hypocrisy isn't as bad as some say; and maybe a mixed message is exactly what the situation calls for. But we should be clear that the "torture must be illegal, but of course no-one will prosecute or convict the heroes" line does call for this sort of benign hypocrisy, and that there is at least a serious risk that the result will be the wrong message: the message that the police really should ignore the laws whenever they think prosecutors and juries will back them up.

     As usual on this matter, I remain torn; I'm not at all sure what the right rule should be. But I do think that the "let's not change the law, but let's retain the discretionary valves" approach is not going to resolve much.

UPDATE: Jesse Walker responds, quite reasonably:
I don't disagree with a lot in your response to my post. My main point, as you noted, was that the clear-cut torture scenario is extremely rare in the real world, and quite possibly doesn't exist
at all. Changing the law to recognize the sheer possibility of justifiable torture opens the door to the slippery slopes that you
and others have already written about. Jury nullification and prosecutorial discretion don't do that, and they seem like adequate
safeguards for the one-in-a-million situation I'm discussing.

Now, you could argue that if a jury lets off a torturer, that might also send a message that sets off one of those slippery slopes. The
difference is that I think the justifiable-torture scenario is so rare that the chances of such a verdict happening are incredibly
small. Changing the law upfront, on the other hand, sets off the slope no matter what; you'll probably end up with the problems of
legalized torture yet none of the alleged benefits.

Final point. One reason why I object so strongly to what Dershowitz and others are proposing is because I suspect that they don't merely believe that the ticking time bomb scenario is more pervasive than I do. I think their idea of when torture is acceptable is probably a lot more permissive than mine. (Similarly, I could easily see myself criticizing Ashcroft, or whoever, on the grounds you lay out in your point #3, if I think he's being lenient toward behavior that doesn't meet my own smell test.)


MAILBAG: Some notes from my massively-backlogged inbox, before I leave for the weekend (for a Liberty Fund conference in Alexandria VA on nationalism).

Responding to this post on "Transportation, Exile, and Intellectuals," Alexander Campbell reminds me that the core idea under discussion was present in Gibbon. Since Gibbon and Smith were very much part of the same intellectual universe, it's not shocking to find such an overlap. With regard to the attempt to fit China into the theory, Chris Nugent (to whose judgment I happily defer) writes:
Though I have not read the rest of the article, I can say that no one who studies "classical Chinese literature" (as I do) would ever identify the Warring States period as the "great age of classical Chinese literature." There was a flourishing of different philosophical schools as competing states sought to attract thinkers who would improve their governments and armies. There was also a great deal of soul-searching due to general dismay over the fall of the Zhou. It is certainly fair to think of this period as a "golden age" of sorts for Chinese political philosophy (though for real philosophy, most China scholars would probably point to the Song (960-1279); the Warring States is more like a "seminal age"). However, in terms of literature per se, no one would point to the Warring States. Also, as it was a period of incredible violence and bloodshed, with the competing states continually attacking one another, there was nowhere near the sort of cultural flourishing that later, more peaceful periods saw. The "Great Age of Chinese Poetry" is considered to be the long reign of Emperor Xuanzong in the first half of the 8th century, a time when China enjoyed unity, peace, and an extremely strong central government. Chaos may often produce provocative and original ideas, but one cannot generalize to say that it is conducive to overall cultural accomplishment in all or even most cases. Moreover, the masterworks of Chinese literature are far more concerned with empire and with totality than with "small and divided places, e cially marketplaces." China may indeed be an exception in this case, but it is a pretty damn big and important exception. Printing, gunpowder, and the compass were all invented in the context of a very stable central government run by an immense bureaucracy that was very antagonistic towards both conflict and free commerce. This is not to say that I would want to live in imperial China, but it is important to be honest about its historical realities.

Gil Milbauer writes:
I'm trying to figure out how you reconcile your reasonable position with respect to military conscription (it's ok to pay someone else who's willing to serve; even though there's a tradition of serving for duty, honor, and patriotism rather than selfish preferences) with your unreasonable position with respect to queues (it's bad to pay someone else who's willing to wait in the line, because there's a tradition to maintain that's more important than satisfying the preferences of the parties involved).
Well, two things. One is that I've never objected to paying someone to go stand in line for you. Implicitly or explicitly this is ubiquitous. (A secretary places the call for his or her boss, and does the waiting on hold until the call can be taken. A personal shopper, well, shops for you. An RA goes and checks books out of the library for a professor.) I object to walking to the front of an extant line and buying one's way in-- the in-person disruption of the rules of queuing. The other is that, while I hold conscription to be a great evil, I'm unconvinced that conscription with a buyout option (as during the Civil War-- the draftee pays someone else to serve in his place) is better. Another name for "hybrid system of allocation" is often "corruption." And, if there's conscription without a formal buyout option, informal buyouts (whether secretly paying someone to assume one's identity, paying off the draft board, using wealthy-family connections to get out) are necessarily corrupt. Again: an aboveboard and pre-announced market is often the best option, but that doesn't mean that it's morally permissible to unilaterally introduce market exchange into an ongoing system that works on another basis.

Let's see... I have nothing further to add about the Pledge of Allegiance or about Orthodox Jewish marriage law, so I'm afriad I'm going to skip right over all those e-mails.

With respect to my various bits about Kurds and federalism, Steve Postrel wrote a couple of long and thoughtful e-mails; others asked some of these questions as well, but I'm just going to post my exchange with Steve as that gets most of the key issues onto the table.
I don't see why providing an explicitly Kurdish, rather than a northern, province is a good idea. If we are not shooting for an independent Kurdish state (and policy toward Turkey says we are not), then embedding ethnicity in the new Iraqi constitution will create lots of problems and won't make the Kurds safer or freer.

First, if the Kurds get special treatment, then every other ethnic group is going to want the same thing. This will lead to huge negotiating problems on territory, status, and power and enhance the centrifugal tendencies already present. It will also create the dynamic of each ethnic group identifying with ethnic interests rather than, say, regional, urban or rural, economic, and ideological affiliations. Given the tinderbox qualities of these ethnic divisions when they are made salient and central to personal identity, this does not seem calculated to bring peace and prosperity to Iraq.

Second, even if they can find an agreement on ethnic federalism that explicitly enshrines Kurdish rights in the new constitution, such a settlement will not be stable against demographic and economic changes. Small differences in birth rates, over a time span of decades, can create huge imbalances in the weight of individuals' political voices. Eventually these are likely to cause the modus vivendi to crack.

Third, even if the first two problems can be finessed somehow, a new Iraq that contains explicit ethnic provisions will not have a favorable impact on the general project of spreading liberalism in the Middle East. It will likely be perceived as anti-Arab by Arabs, as a US plot to weaken collective Arab autonomy and sovereignty. More importantly, we want to promote the idea of non-confessional, non-ethnic citizenship in a state with protection for individual rights. Saddam has oddly done us a favor here by being so horrible that everyone in Iraq understands why individual rights are important. True, the Sunnis haven't been murdered as much as the Kurds or Shiia, but from all accounts they also are itching for an end to Baathism. We should capitalize on this rare common understanding of the need for mutual recognition of one another's rights. Ethnic spoils built into the foundation of the new regime is not a move in this direction; rather, it throws away this rare historical moment...
I responded: It doesn't seem to be the case, in any general way, that ethnic provinces or ethnic federalism make ethnicity more central to politics than other cleavages. This is controversial, but my read on the evidence is actually the reverse. Where there is *no* ethnic federalism, minorities (especially linguistic minorities) make the agitation for special protection or, eventually, secession central to their politics. Where there *are* ethnic provinces, normal politics tends to happen within them. It defuses the ethnic cleavage, by reassuring the minority and (for linguistic minorities) by creating a space within which regular politics in the minority language can take place. Rearranging the Indian federation so that state lines often followed linguistic cleavages did a great deal to defuse language conflict in India.

Where there are territorially concentrated minorities, with strong senses of region and land, drawing the provincial boundaries without reference to them isn't taken to be "non-ethnic" or neutral; it's taken to be anti-minority and mobilizes a backlash. (Slovakia and Romania have done this, to ill results.) It's not decisively important that the province be *called* Kurdistan or West Kurdistan or what have you. It *is* decisively important that there be a province or provinces that have Kurdish rather than Arabic as the official language, the medium of instruction in state schools, the language in which laws are published, etc. "Non-ethnic" citizenship in an Arabic-speaking state isn't interpreted as non-ethnic by minority language speakers. (In all these cases the justification is a bit different for the Sunni-Shi'ite divide, but there are parallels.)

The demographic-change point is a fatal criticism of another kind of ethnic politics-- reserved offices and guaranteed representation at the center. The pre-civil war Lebanese constitution was of this sort, and it, well, led to the Lebanese civil war.

Steve's reply:
1) If language is really the issue, which was not clear in your initial posts, then are you really advocating bilingualism a la Canada for the future Iraqi federation? And if not, how in the world are the national govenment and the Kurdish province to interact, since presumably Kurdish people will need to be able to follow national laws and court preceedings?

2) It wasn't clear to me from your earlier posts that you weren't advocating Lebanon-style office splitting. In fact, it's still not clear to me how to avoid these problems, unless provinces have no upper-house powers at the national level at all (which would cause other problems). With such upper-house power, a small minority may gain disproportionate sway to the point of causing the majority to toss out the whole settlement. In the US, the Senate isn't too much of a threat here because there are so many states and because the divisions are not ethnic. Those won't be true in an ethnically federal Iraq.

3) I am still dubious about the stability of an explicitly ethnic province in a federal republic. Non-Kurds who move into Kurdistan will be near-official second-class citizens; if a lot of them move in for economic reasons, this could cause serious problems. Similar issues would apply to Kurds moving into other parts of Iraq. And universal guarantees of individual rights will be problematic if there is no equivalent to an incorporated 14th amendment. Sharia law in one province, anyone?

If the Turks weren't quite so paranoid, I'd think a confederation rather than a federal structure would be the best solution, but if they're going to go federal I'm still inclined to think they should go all the way to a non-ethnic, neutral constitution that outlaws consideration of ethnicity in public law. They should set up the boundaries so that the Kurds get to be an overwhelming majority in the north; such an arrangement should be an accommodation to politics, not a constitutional principle that rigidifies the social structure, inhibits intermarriage, restricts business dealings, etc.
My responses, trying to keep them shorter than my book about ethnic politics:

The language problem is worse problem now, or under a "non-ethnic" constitution a la Turkey. The native speakers of a minority language have great difficulty following national politics and legal proceedings, and they lack any institutional buffer, any set of regional politics or courts that they can understand in their native language.

With respect to second-class citizenship and the inclusion of an ethnic province in a federation: A Kurdish province (or provinces) needn't be Kurdish in any way beyond the way that the state as a whole is Iraqi-Arab. Citizenship doesn't have to differ.

More generally: ethnic provinces are the rule in federal republics and democracies these days. The U.S., Australia, and Germany are the outliers. Spain, Switzerland, Canada, India, Belgium, Nigeria, South Africa are the rule. (And Shari'a in one province-- or several-- is an issue in Nigeria.) But second-class citizenship isn't a pervasive problem in these states. In some people continue to migrate pretty freely (Spain); in some the ethnic groups have over time become more and more concentrated (Belgium). Canada has waves in each direction.

And with respect to Steve's final paragraph, I wrote "Now I'm not sure we disagree. I think that liberal political theory can openly admit this kind of "accommodation to politics," and that there is good reason to constitutionally entrench it-- not as a matter of first principles and foundational morality, but as a response to the particular history of injustices that a given state has had, and to the well-established propensity of ostensibly-non-ethnic central states (again, Turkey) to come to equate "civic" with "majority-ethnic" and "minority-ethnic" with "treasonous." " (Which serves as an adequate thesis statement of a great deal of my academic writing over the past five years.)

That's all for now...


  U.S. officials said Wednesday that surrender negotiations have secretly begun with key Iraqi military officials in hopes that some military units will not fight in a possible war.
  The Pentagon is not handling these communications, officials said, but instead other elements of the U.S. government are conducting them.
  One senior official said that some parts of the Iraqi military already may have agreed not to fight.
     It's important to recognize the possibility that this is a bit of "strategic disingenuousness," as Philippe once put it -- in this case a message designed to hurt the morale of Iraqi military officers. But it's something to watch.


COMMENTS ON FIELD TRIPS TO GUN RANGES: TalkLeft has a post about constitutional law class field trips to gun ranges and about a similar field trip by criminal defense lawyers -- followed by a nice exchange of reader comments.


A PRO-FREEDOM-FRIES VOICE: Glenn Reynolds (in his MSNBC blog) defends the renaming campaign:
I want to think that this is stupid -- kind of like renaming sauerkraut “liberty cabbage” during World War I -- but on reflection I’m not so sure. Renaming sauerkraut was silly, because it did no harm to Germany, a country that was our mortal enemy. But France, though mortally irritating, isn’t really our mortal enemy, it just feels that way sometimes. And in a long-term relationship, nondestructive ways of signalling more-than-typical annoyance have a lot of value. I still think that the French don’t appreciate just how much long-term harm they’re doing to relations with the United States. If something like this helps to get the message across, without being destructive or self-defeating like trade sanctions, it’s not such a bad idea. Even if it does seem kind of silly at first glance.
I don't think I'm fully persuaded -- I think my first glance was right on this, especially as to the House of Representatives cafeterias (see yesterday's post), but perhaps I'm mistaken and Glenn is correct.


PARMENIDES' FALLACY: Hadn't heard of it before I read a New York Times article by Philip Bobbitt (who, incidentally, is a leading constitutional law scholar), but it highlights an important point:
"Parmenides' Fallacy" . . . occurs when one tries to assess a future state of affairs by measuring it against the present, as opposed to comparing it to other possible futures. . . .

[For example, t]he turning point in the 1980 presidential race came in a debate when Ronald Reagan criticized President Jimmy Carter's record by asking the American people, "Are you better off today than you were four years ago?"

While rhetorically devastating, this question is hardly the way to evaluate a presidency. After all, the state of the nation will never stay the same for four years, regardless of who is in office. A more relevant question to have asked would have been, "Are you better off now than you would have been if Gerald Ford had continued as president -- and if he had had to cope with rising oil prices, a revolution in Iran, a Russian invasion of Afghanistan and soaring interest rates?"

Or, consider the 2001 invasion of Afghanistan. Are we better off now than we were the day before we intervened? Probably not. Before that war we knew where Al Qaeda had its bases and it had not struck since Sept. 11; a number of American and allied soldiers who became casualties were then alive and unwounded; public opinion in Pakistan was less hostile to America; there was a greater measure of sympathy around the world for our losses in New York and Washington; our economy and confidence in our markets were stronger.

But let's ask the relevant question: Are we better off today than we would have been if we had let the Taliban continue arming and sheltering our Qaeda enemies, many of whom we killed and captured in our intervention? Clearly, we are vastly better off for having acted.
Bobbitt then goes on to explain why attack Iraq will make us -- and the Iraqis -- better off in the future than if we hadn't invaded:
I recognize that we are running a terrible risk if we put Saddam Hussein's back against the wall. But unless we are willing to eventually grant him a free hand in the Persian Gulf, he is bound to act in a way that will put his back against the wall in the future -- after he does acquire nuclear weapons. At that point, however, the United States would have a significantly diminished capacity to prevent his aggression. . . .

We should also consider the future of the Iraqi civilians. Yes, they would suffer the horrors of war in the near term, which for a time would be even worse than life under the sanctions now. But if an American-led intervention succeeded, the country's oil revenues could once again enrich its people, as well as its schools, hospitals and financial institutions.

The Iraqis would be much better off after an invasion than they would be living indefinitely chained to Saddam Hussein. For us, though we live in relative tranquillity at present, we will at least be far less badly off in the future if we act now. Parmenides' Fallacy must not paralyze our imaginations, or our will.
The rest of the piece is also much worth reading.

     My one quibble is that fallacies -- such as Parmenides' Fallacy -- often have nonfallacious counterparts as rules of thumb. It's not logically accurate to say that because you're worse off now than four years ago, it must be the ruling party's fault; but under some circumstances, it may be plausible to presume, as a rule of thumb to be used given limited knowledge, that what has happened over the past four years is indeed partly the ruling party's fault. And given that judgments about what will happen in four years, or what would have happened had someone else been elected four years ago, are always made in an environment of limited knowledge, such imperfect presumptions are often necessary. (I touch on this in my Slippery Slopes article, where I argue that the Is-Ought Fallacy, the Ad Hominem Fallacy, and to some extent the Post Hoc Ergo Propter Hoc Fallacy have such nonfallacious rule-of-thumb counterparts.) But Bobbitt's point as to Iraq, I think, is excellent.

     Thanks to Kevin Connors for pointing me to Bobbitt's piece.


KUWAITI KISSING: Fellow lawprof Clifford Fishman writes:
Perhaps you've seen the story that a leader in Congress has ordered the House cafeteria to rename "French fries" and "French toast" -- they are now "freedom fries" and "freedom toast."

I think Congress is missing a bet. They should legislate that formerly "French" things be renamed in ways that will enhance the administration's efforts at coalition building at the UN and among the Alliance of the Willing. How about Polish Fries? Spanish cuff? British toast (which also might describe Tony Blair's political future)? Kuwati Kissing?
I think this is an excellent idea, but I suggest something more -- instead of offering billions in aid to potential allies, offer the equivalent of product placement. Does your formerly frumpy-seeming nation want to be associated with romance and sex? The country providing the most help for the war effort will get "___ kissing." Do you want millions of Americans to appreciate you whenever they're eating burgers? Contribute enough troops, and you get "___ fries." And no need to limit ourselves to licit products; I hadn't heard of this until I looked up "French ___" in my dictionary, but apparently "French blue" is "a combination of amphetamine and barbiturate." Surely lots of countries want good publicity with the important junkie-American market. Let's use our world-renowned business savvy here, folks!


PANEL ON IMMIGRATION AND CITIZENSHIP, ORANGE COUNTY (CALIFORNIA): I just got a notice about the following event, which some of you might find interesting:
The Claremont Institute, Chapman University School of Law, and the Salvatori Center of Claremont McKenna College are sponsoring a conference, "American Citizenship in the Age of Multicultural Immigration," March 20-22 at Kennedy Hall on the Chapman University School of Law campus. (Use 333 N. Glassell Street, Orange, CA on . . .

While immigration-related issues such as national security, economics, an amnesty are fiercely debated, insufficient attention is paid to the central issue of citizenship. Once we become clearer about the meaning of American citizenship, we can begin to comprehend what is at stake in immigration policy and begin to replace emotion with reason and the rule of law.

Participants in this conference include the best in the fields of journalism, academia, and policy. They include Paul Gigot of the Wall Street Journal, Charles Kesler of Claremont McKenna College and the Claremont Review of Books, Jan Ting of Temple University Law School, John Eastman of Chapman University Law School, Joel Kotkin of Pepperdine University and the Milken Institute, Mark Krikorian of the Center for Immigration Studies, the Honorable Viet Dinh of the U.S. Department of Justice, the Honorable Mike Antonovich, LA County Supervisor, and the Honorable Chris Norby, Orange County Supervisor. (See for a full program.)


RUMSFELD, THE BRITISH, AND SADDAM: Andrew Sullivan criticizes Rumsfeld for saying that the U.S. might have to fight without Britain:
SPEAKING OF PRUDENCE: I'm a big fan of Donald Rumsfeld. But really his outbursts are getting out of hand. What on earth was he thinking when he opined that it was "unclear" whether the coming war would be undertaken alongside the British? The U.S. is desperately trying to build support for a war against Saddam and Rumsfeld has inadvertently kicked the most solid ally in the teeth. He achieved many things at once: he emboldened the left-wing critics of the war in Britain, undermined Blair at a critical moment, and, in some British eyes, devalued the importance of the British military contribution. Rumsfeld later retracted the remarks, but the damage has been done. This is an extremely delicate diplomatic moment and Rumsfeld has all the subtlety and restraint of the new superbomb. He must simply understand the wisdom of shutting up at moments like this. And Bush must tell him.
Others have of course criticized Rumsfeld on the same grounds.

     The criticism seems apt, but I wonder whether there might be a good reason for Rumsfeld's statements. Anti-war forces know that the only hope for stopping or delaying the war is (1) if they peel away enough allies from the U.S., or seem capable of peeling them away, and (2) the U.S. decides that it can't go to war without those allies. Saddam may likewise think that if the British withdraw their support, the U.S. might back down, and therefore so long as it seems likely that the British are getting cold feet, he can remain fundamentally obstructionist.

     It is thus in the interests of the U.S. to send the message that we're perfectly willing to go it alone (perhaps with an "unless Saddam disarms immediately" proviso), and in that respect Rumsfeld's statement may be helpful (or so I conjecture). Of course, we at the same time want to send the message that we have confidence in the British, and maybe Rumsfeld's statement therefore does more harm than good. But I think it does do some good, maybe enough to justify it -- though I should stress that I'm not an expert on diplomacy, and may well be mistaken.


"CONTAINMENT IS DEADLIER THAN WAR": Iain Murray has the numbers (quoting a Walter Russell Mead article in the Washington Post). Estimates, of course, which is to say guesses, but they seem quite plausible.


THE FREE MARKET: Andrew Sullivan quotes a reader e-mail:
I'm out on the street smoking a cigarette and this black dude, wearing a "No War Against Iraq" T-shirt and a bag on his shoulder, comes up to me and asks, "Sir, are you against the war or for the war?" "For the war," I say, at which point he pulls a T-shirt out of his bag that says, "Kick Saddam's Ass!," and tries to sell it to me. I said, "No thanks," and he moved on. Is this a great country or what?
I love it.


A POST-PRINT MOMENT: I was sitting in the faculty library reading a printout of a recent case, and I saw a cite to a Supreme Court case that I realized I wanted to look at. "Have to remember to look it up on WESTLAW when I get back to my office," I told myself.

     Then it hit me: I'm in the library. Ten feet away from me are the actual printed U.S. Reports. And I'd almost forgotten all about them.


PASSING THE BUCK: Eugene mentioned the pay-to-skip-lines passes available at amusement parks. There was an article in Slate on that very topic some time ago, relevant to our current discussions.

I'd want to draw some distinctions. It's of course perfectly reasonable for the producer of a good to sell it at a market-clearing price instead of distributing it by queue, or by a money-queue combination. It's within bounds to distribute it by a hybrid, such as these passes-- but the owners would be well-advised to pay attention to the social dynamics of hybrid systems. If people waiting in line spend all day feeling excluded and snubbed because the VIP passholders kept getting on rides before them, then that's bad for the sense of fun that drives repeat business. Across a lot of American amusements, the adjective "democratic" gets thrown around. "Once we're all doing this, we get to forget about the hierarchies and distinctions that matter in the rest of our lives." Movies, amusement parks, and television have all been like that. Some sporting events but not others-- and fewer and fewer these days. But it's one of the joys of, say, minor league baseball. And the installation of fancy skyboxes at a minor-league park might well turn out to be a money-loser, if they change the experience for enough of the rest of the crowd that can't afford the skyboxes.

But anyways, in a controlled system it's kosher to announce a system of prices, queues, or hybrid, even if hybrid systems may often be a bad idea because they irk people. Spontaneous social norms and rules, however, take badly to hybrids and exceptions.

I think prostituion should be legal. But that doesn't mean that it's appropriate to offer, in the middle of a first date, money for sex. Dating depends on a set of norms, mores, and manners that is disrupted by the intrusion of a pure and explicit exchange relationship.


NEW POLL ON PRIVACY AND SURVEILLANCE: A new Harris poll is out that explores public attitudes about government surveillance powers and privacy (you can access it here.) The press release summarizes the results: "Large majorities of the public, aware that it would affect their civil liberties, continue to favor giving law enforcement agencies stronger powers, which they might use when dealing with people suspected of terrorist activities." Of particular interest are the responses to this question:
"Overall, how confident do you feel that U.S. law enforcement will use its expanded surveillance powers in what you would see as a proper way, under the circumstances of terrorist threats? Would you say very confident, somewhat confident, not very confident, not confident at all?"

Very confident -- 22%
Somewhat confident -- 52%
Not very confident -- 14%
Not confident at all -- 9%
Not sure/Decline to answer -- 2%
This seems like an oddly-worded question to me, but on the whole the poll results show relative comfort with government surveillance powers. Not all of the results are this optimistic about the use of government powers, but in general the results suggest that the public is less worried about the U.S. government than, say, Al Qaeda. Privacy expert Alan Westin (who designed the poll) had the following interpretation of the results:
The finding that one-quarter (23%) of the public does not believe government will use its new powers properly parallels Harris Interactive surveys showing that about one quarter of U.S. adults believe they personally have been the victim of a privacy invasion. They also indicate that a similar one-quarter adopts a very high, or "Privacy Fundamentalist," orientation on consumer privacy issues. This shows that the 75% to 25% split on new government anti-terrorist powers is not unique to the 9/11 sit ation but is directly in line with overall American privacy attitudes today.
I don't know if I agree with that assessment, but I figure it's worth passing on.


George Doughty . . . shot [his laptop computer] four times, as customers [of his restaurant] watched, after it crashed once too often. . . .

In police reports, Doughty said that he realized afterward that he shouldn't have shot his computer but at the time it seemed like the right thing to do.


MILITARY E-MAIL AND BLOGGING: The New York Times reports that
Concerned that sensitive information might leak out, some units of the United States military are starting to clamp down on e-mail communication from their soldiers and sailors, who have been using it from ships, bases and even desert outposts to stay in touch with family and friends.
The military likes e-mail because it improves morale, and right now the e-mail seems to be largely unmonitored. Now, though, things might change:
The Air Force last week warned its service men and women that it might begin limiting or blocking electronic messages because some people had sent home sensitive information, including digital pictures that might have compromised unit safety.
A very interesting issue (which I hasten to add is a policy issue, not a constitutional one -- the military is perfectly free to restrict communications, and should indeed do so if the benefits of restriction exceed the costs). I wonder, though, what they'll do with regard to the real warbloggers (if they're real).


CHICAGO SCHOOL: Dan Drezner's new TNR column is up. Footnotes here (and keep scrolling down).


UNIVERSAL STUDIOS "DIRECTOR'S PASS": A couple of years back, when I last went to the Universal Studios amusement park, I saw a nifty option -- if you spend an extra $20 or $30 (I forget exactly how much), you can buy a "Director's Pass," which lets you get on all the rides via a separate line. Very few people buy such passes, so each line was literally just five or so people long. I bought the pass, and was very happy with the result (or at least as happy as one could be at Universal Studios, which isn't a top-of-the-line amusement park in my book).

     Of course, the small number of buyers means Universal isn't making that much money on this, and it might be losing money if it's alienating other customers -- I don't know whether this is so, though I'll bet that Universal has been looking into it, and if they've kept the program long enough, they probably think that it pays. But it seems to me like a worthwhile feature, and of course not that different from other well-established but slightly subtler systems, like preferential boarding for frequent flyers. It doesn't follow that freelance buying of places in line will work as well; for reasons Jacob mentions, it might not. Still, I thought I'd mention this as a slightly different data point.




SERB ASSASSINS: Jacob's post below reminds me of a story that I'd heard: In 1920, a Viennese newspaper ran a contest for the most creative made-up headline. The winner was:
Archduke Ferdinand Still Alive; World War I Fought by Mistake
UPDATE: David Nishimura points out that in 1920 no-one would have called it "World War I," and of course he's right. The account may of course be completely apocryphal, or the headline might have referred to the "Great War" or whatever the Austrians were calling it. (Incidentally, since this is purportedly an English translation of a German headline, then "World War I" might in fact be the proper rendition, especially if the translation was done after World War II.)


FREEDOM: Reader Eric Scharf writes:
[A]s contemptible as I find the diplomatic machinations of the current French government, I have not redesignated my [French] spouse as a "freedom wife"; the words do not naturally cohabitate. Our Franco-American son, however, could easily be renamed "Pursuit of Happiness."
Good logic.


COMMODIFICATION CONTINUED: This post inspired a lot of e-mail, most of it taking the pure-market approach and asking, "Why the heck not?" Someone marching to the front of a queue and buying someone else's space in it is Pareto-optimal; the other people are made no worse off, and the parties to the exchange are made better off. Many people mentioned alternatives such as paying someone else to wait in the queue in one's stead, as well as making comparisons to waiting, acquiring the ticket, then immediately reselling it to the person a few feet away who would otherwise have just bought his way into line.

I also received a, to me, convincing reply to that kind of objection-- from Roger Sweeny:
What if a venue hands out numbers to the people in the queue and says, "Come back when the box office opens; we'll serve you in the order you were in line." And what if someone, having now left the queue sells his number? Does your attitude change?

I know mine does. And I think I know why. Maintaining a queue is a somewhat fragile thing. It's unofficial, "Hayekian." It is maintained by example. When someone marches to the front of the queue, they are a counter-example. Moreover, they force the people in the queue to then turn into semi-legislators, "Is this offer to buy a place in line a violation of the social norm? If it is, how shall we enforce the norm now? How can we prohibit this interloper from doing what he wants? Shall we yell? Threaten? Beat him up? Or just storm the box office (if he's going to jump the line, then everyone will)?"

But if the place is sold in a private transaction, no one knows. Someone comes back later with the number and buys the allowed number of tickets
(which I suppose leads to the potential complication: what if I was going to buy one ticket and sell my number to someone who is going to buy the
full allowed two? or the full allowed four?).
I think this is right. The other cases may be economically identical, but they're not identical in their effects on the maintenance of social norms.


BAD NEWS: Ugh. If assassinations involving Serbs aren't a bad omen, I don't know what is. I don't know what it's a bad omen for, mind you, but still.


LOOKING FOR SAGANIANA: Again, looking for a good source. A somewhat reputable source that makes the argument that there must be a lot of extraterrestrial life out there, along the lines of "Even if only 1% of stars have planets, and even if only 1% of them can support life, and even if only 1% of them, etc., then there must be this huge number of planets with intelligent life." And another source -- I think Carl Sagan did this once? -- pointing out that these percentages are entirely made up and the real ones could be (or must be?) much tinier. Thanks!


LOOKING FOR POSNERIANA: Does anyone know of a good source where Judge Posner says (1) governments aren't good at setting prices or running businesses because of dispersed information, i.e., some version of the Hayekian "knowledge problem," or else has he said the opposite somewhere?; (2) judges aren't good at evaluating the fairness of settlements but they unfortunately have to do it because there's no other alternative?

Tuesday, March 11, 2003


WELCOME TO IRAQ, WE HOPE YOU ENJOY YOUR STAY: Wednesday's N.Y. Times includes a report on 'friction' between the Iraqi government and antiwar activists who have volunteered to serve as human shields. It seems that the activists want to guard humanitarian sites, but the Iraqi government instead wants them to guard sites with military value (surprise, surprise). Here's the report, in the middle of a story on Baghdad preparing for war:
  Friction has also developed between Western antiwar activists and the Iraqi government over where to place human shields. The activists wanted to be positioned at hospitals or schools, but the Iraqi government instead placed them at industrial locations like the Doura oil refinery.
  The government ordered five of the organizers to leave last week after protests erupted over the choice of sites.
  "There are inappropriate sites like water facilities located too close to army bases, too close to legitimate strategic targets," said Gordon Sloan, an Australian architect and one of those ordered out of the country. "In general I think everyone should leave."
  But dozens of shields remain, including a group of 40 who alternate between three trailers on the grounds of the Doura refinery and a four-bedroom bungalow in the family housing for refinery and other workers. Down the street sits the Great Victory Company, which helps complete the welding for some short-range Iraqi missiles.


I'M A BIT SKEPTICAL: The American Prospect quotes an Economist story which says:
The administration . . . is reminding Mexico of the possible effects if it fails to come through. . . . One American diplomat has given warning that a Mexican No could "stir up feelings" against Mexicans in the United States. He draws comparisons with the Japanese-Americans who were interned after 1941, and wonders whether Mexico "wants to stir the fires of jingoism during a war".
The Prospect understandably protests, citing also some rather different recent statements by Bush as evidence (it's a long argument, so check it out at the Prospect site if you'd like to read it at length); so does Alex Frantz (Public Nuisance).

     I confess to being a bit skeptical, both as to the Prospect's parsing of Bush's statements, and even as to the usually quite reliable quote by The Economist. Remember that for the past several years, courting the Hispanic vote -- widely believed to be a potential swing vote, which is made even more important by the closeness of recent elections -- has been a huge issue in American politics. The Republicans have been assiduous at this; during the 2000 primary campaign, Bush's ability to get Hispanic votes in Texas (there, chiefly Mexican-American votes) was one of his selling points. American politicians know this; I'm pretty sure that American diplomats know this; I'm pretty sure that Mexican politicians know this.

     Given this, the alleged statement by the American diplomat seems mighty peculiar. Even if you're a die-hard anti-Bush cynic, who thinks that Bush is doing all he does for the crassest possible reasons, presumably you'd assume that he wants to be reelected. Would he really want to alienate Mexican-Americans by threatening retaliation against them (even setting aside retaliation against Mexico, which might alienate some but not nearly as many) simply to slightly increase his chances of picking up one extra vote in the Security Council? Not very likely.

     This having been said, sometimes people -- even (unnamed) diplomats! -- do remarkably stupid and undiplomatic things; and The Economist is a highly reputable publication. Still, the story seems so odd that I wanted to register my skepticism, at least unless more evidence comes out.


LESSIG, THE SUPREME COURT, AND LEGAL PRINCIPLES: Larry Lessig is back at his blog, and has included a link to his petition for rehearing in Eldred. As Marty notes over at SCOTUSblog, the "tenor" of the petition is "fairly remarkable" in that the petition "appears to accuse the five Justices in the Lopez and Morrison majorities of bad faith or, at the very least, a serious departure from the Rule of Law." And at his own blog, Lessig suggests that this was the toned-down version, in which he "made the claim of principle in as careful and balanced a way as possible."

     I've written before (in a post you can access here) that I don't think that Lopez or Morrison were necessarily relevant to Eldred: Lopez and Morrison were about structural constitutional limits on the distribution of federal versus state authority, and Eldred wasn't. As best I can tell, Lessig doesn't see the cases that way: all of these cases were about limits of Congressional power, and any Justice that found Congress had exceeded its limits in Lopez and Morrison should have found that Congress exceeded its limits in Eldred.

     I think that Professor Lessig has done a tremendous public service by litigating the Eldred case. He has raised awareness about the importance of the public domain, and helped create a political climate much more wary of expansive IP rights than before he started. Still, it seems to me that his claim that the Supreme Court was unprincipled in Eldred is a fairly weak one. First of all, if Eldred is really e same as Lopez and Morrison, then it's not only five justices that are unprincipled, but seven. Don't forget about Justices Breyer and Stevens, both of whom voted to uphold the legislation in Lopez and Morrison but voted to strike down the legislation in Eldred. Second, I think it's worth noting that neither of the Justices who agreed with Lessig's side relied on Lopez or Morrison; neither of the dissents even cited Lopez, and Stevens cited Morrison only in passing. So while Lessig's petition criticizes the majority for not citing Lopez or Morrison (see petition at p.2), he overlooks the fact that not even the Justices who agreed with him cited Lopez, and neither of them relied on Morrison.

    Maybe I am misinterpreting the gist of the petition; if so, my apologies. And I remain a fan of Lessig's work. But I think the future of the public domain will be best served if Eldred is treated as a launching point for legislative reform, not an example of judicial foul play.


IMMIGRATION LAW now has its own blog, The Manifest Border. I'm glad to see that; this is a very important field, but one that many people (including me) know far too little about.


HOLD THE FREEDOM FRIES: Slate's Chatterbox quite rightly condemns the decision by Congressman Bob Ney -- who's apparently in charge of such things -- to replace "french fries" and "french toast" with "freedom fries" and "freedom toast" at House cafeterias. The original talk of this sort of renaming was mildly amusing -- part joke, part pugnaciousness. If some restaurant wants to do this, either as a gesture of self-expression or as a publicity stunt, then that's fine.

     But when it's done by the House of Representatives, it just seems to me to be silly, petty, and undignified. The French derive no glory from the names "french fries" or "french toast"; it's no skin off their ass to deny this name to them. (Many a Frenchman would probably say "Fine by us -- we want no part of your parodies of real food.") It just seems like empty bluster, a completely unsubstantive response to a substantive question. Yes, I know, Congress does precisely this often enough. It just shouldn't.

UPDATE: Eric Muller correctly points out that "The French do not call french toast french toast, and they don't call french fries french fries. And most Frenchmen wouldn't even know that Americans call those foods that." Of course they don't -- they call french fries "pommes frites," and while I don't know what they call french toast, I'd be amazed that they'd label it with their country's name. After all, what's your own is normal; it doesn't need a special description. (American Cheese is a rare exception.) My point is simply that if the Frenchmen did know that we call pommes frites "french fries" (and I suspect that most Frenchmen who have visited the U.S. have noticed this), they don't think "Wow, we're so glad the Americans honor us this way, and we'd be really upset if they renamed them freedom fries in order to spite us."


ENDS AND MEANS: Jim Henley (Unqualified Offerings) suggests that the arguments I give below in favor of torture -- and I stress again that I acknowledge some excellent arguments against torture -- rest on the notion that the end justifies the means.

     They certainly do; but the end sometimes does justify the means. Is it right to kill thousands of completely innocent children? No. Is it right to kill thousands of children, or even a few children, as "collateral damage" when you're pursuing a fleeing forger? (For instance, you tell your police officers that they should feel free to drive so recklessly that they are nearly certain to kill many innocent bystanders, just to catch the forger.) No. Is it right to kill thousands of children as "collateral damage" when you're trying to defeat Hitler? Yes -- we're not happy about it, but we were right to fight the war even in ways that were sure to kill many innocent bystanders (at least in general, even if people can quibble about particular instances).

     Some means can only be justified by very important ends. Some means might possibly be unjustifiable by any ends. And it is sometimes accurate to say "The end does not justify the means" when we're pointing to a particular means that is unjustified by a particular end. If the question is whether we should beat confessions out of accused robbers in order to make citizens safe from robbers, we may well say "the end does not justify the means," referring to this particular situation.

     But as a general statement of moral principles, "The end does not justify the means" is, unfortunately, not sound. This forces us to do the hard and dangerous work of figuring out just when particular ends justify particular means. I don't like it -- I wish we could simply repair to clear rules such as "never kill innocents," "never torture," and the like. But we can't, which means that "the end doesn't justify the means" isn't really that forceful a response to a concrete argument as to why some extraordinary needs justify extraordinary measures.


One such question is the following: "Is it morally ok for someone to march to the head of a long queue (for tickets for the theatre or football or whatever) and offer to buy another person's place in that queue?" Since the purchaser buys the place and the person they displace goes away or to the back of the line, the exchange isn't worsening any one's position.

Respondents seem to break down into three categories: people who think it is just obviously ok, people who think it is just obviously wrong, and people who find themselves switching back and forth between perspectives.
Ooooh... I like this one. Many of the standard examples of blocked exchanges or illegitimate commodification in the Michael Walzer/ Margaret Jane Radin school inspire a "so what?" reaction in me. I can't wrap my head around what's so obviously wrong with the sale, and I say that it would be "obviously OK." In this case, I had a strong, immediate "obviously wrong" reaction. There are all sorts of things that get rationed by queue that don't have to be and shouldn't be. (The scalping laws force rationing by queue onto ticket sales, for example.) And I'm sure my economist friends are right to look at rationing by queue and at least often suspect regulatory failure and wrongfully-blocked exchanges.

But queues we will always have with us. Across a wide range of activities (checking out in the grocery store, waiting for admission to a general-seating theater, waiting for a bus or a taxi) it's the natural, socially-evolved norm. And the person walking to the front of the line with a fistful of dollars is accepting that norm for everyone else while seeking to violate it him- or herself.

In Israel, I was once surprised to find, there seems to be no norm of queuing for a bus. When the bus arrives, it's a free-for-all to get on board. Some mild shoving and jostling seems to be permissible. But if I took that approach while waiting for a bus in New York, I'd be getting unfair benefit from my violation of the local norm. Similarly, while one could imagine metro buses that sold seats in advance and were boarded like airplanes, eliminating the need for queuing, the extant norm is not an auction but a queue. Buying one's way to the front seems to me obviously unfair.

And I think this is so even if the good one acquires by queue can then be auctioned off. If I were waiting in line for opening-show tickets to Return of the King, I'd have no objection to the person in front of me buying a ticket and then scalping it on E-Bay. I would object to that person simply selling off his or her place in line.

I'll have to think about this more. I think it makes a very nice, complicated case for Hayekian libertarians in particular: evolved social norms vs. free exchange. One doesn't have to think that the exchange should be blocked by criminal prohibition to think that it's wrong, a violation of rules that shouldn't be violated.


MORE ON ROMAN POLANSKI: The Smoking Gun has gotten the deposition of the 13-year-old-girl in the Polanski criminal case (I'm linking to the second half, which is where the most incriminating details are). It's pretty damning, assuming it's accurate (and I have no reason to doubt that it is) -- Polanski gave the girl champagne and a quaalude, got her drunk, and then began having sex with her against her will and over her protests. As I've mentioned before, this isn't an adult having sex with a willing 17-year-old (which would in fact be legal in many states). This is serious stuff.


SCHOLAR-BLOGGERLY CELEBRATIONS: Happy birthday, Kieran! We were in grad school together; how did you get to be almost two years younger than I am?


CLINTON/DOLE: In response to my earlier post about the Point-Counterpoint segment on 60 Minutes, and my repetition of the NYT's statement that the segment had last been seen in 1979, a few people wrote in to say that P.J. O'Rourke and Molly Ivins were given the space, briefly, in the mid-90s. (By all reports, it didn't go well.)

My recollection from newspaper coverage at the time is that O'Rourke and Ivins (and maybe a third person?) took turns in the end-of-show slot otherwise occupied by Andy Rooney's ruminations about his earwax. That is, I think it went Rooney one week, O'Rourke the next, Ivins the next, or something-- not like the point-counterpoint format of competing statements on the same question shown in the same episode. This is fuzzy; I haven't watched 60 Minutes since I was 17 or so. (In sixty minutes I can read an academic article, two chapters of a book, most of an issue of The Economist or TNR, or two sections of the Sunday paper, any one of which will teach me a whole lot more than watching Morley Safer totter after someone waving his cane while the narration says "We tried to talk to Mr. Smith, but he wouldn't agree to an interview, saying that his lawyer advised him not to discuss the case with the press before trial, which obviously means that he's a tobacco-growing pedophile who puts razor blades into the Alar-covered apples that he hands out to trick-or-treaters.") Does anyone who watched the show back then, and who didn't blink and miss the O'Rouke experiment, remember whether it was a rotating slot or a point-counterpoint format?

UPDATE: Asked and answered. Thanks to Dave Lull.


IRAQ AND LEBANON: Last week I made the point that analogies between proposals for a federal Iraq and the pre-civil-war constitution of Lebanon were faulty, that Lebanon wasn't a federal state but rather a consociational centralized one, with a power-sharing deal for the primary religious groups at the all-powerful center. Now it turns out that some Arab states are hoping for a genuinely Lebanese model of government to be put into place in postwar Iraq.

I have no idea whether the Bush administration's urge to keep the House of Saud happy extends so deep as to give them a say in the postwar order. I'm afraid it probably does. I sure hope it doesn't.


DAFT DRAFT: Something's been disturbing me about the sometimes-sincere and sometimes-strategic bubbling up of support for conscription lately. There's a ubiquitous rhetoric about equally-shared sacrifice, about everyone pulling together and doing their bit. There's also, typically, some reference to the manpower needs of the armed services.

But another name for "conscription" is "compelling young men [and, in Israel, women] to accept below-market-clearing wages for military service." If we needed to increase the number of men and women under arms by a quarter-million, there'd two ways to do it. One would be to raise military wages and salaries, and keep raising them, until enough fit candidates were willing to enlist, accepting the opportunity cost of years of prime educational or career time as well as the cost of risk to life and limb. This would require everyone (well, all taxpayers and future taxpayers) to bear the cost of this big new army. It would also, presumably, reduce the much-hyped racial and class inequalities in who enlists, since the financial opportunity cost of three years of one's life is higher the higher one's earning potential.

The other would be to say to the young men [and, maybe, women] who will bear the risk to life and limb that they must also bear the financial burden, by compelling them to serve at a suppressed wage. It's more-or-less unavoidable that the primary life and limb risks involved in national defense will be borne by healthy men and women who happen to be young adults at the time a war happens to strike. It's not unavoidable that the older, the less fit, and the younger and the future generations that will presumably benefit from increased security be spared the expense of equipping an army, that those bearing the greatest risks also be forced to bear the financial cost. Conscription seems to me a deeply unfair concentration of burdens and sacrifices, just the reverse of what's claimed for it.

Blogging will remain light this week; I'm going to a conference starting Thursday.


REP. JAMES MORAN (THE "IT'S THE JEWS' FAULT" CONGRESSMAN): An acquaintance of mine who is a solid liberal Democrat, and who knows what he/she is talking about, writes me:
Jim Moran's been saying this kind of stuff for years. The people at my synagogue have been ahgast for a long time. Some of them even supported (egads!) the Republican against him last election (these are pretty liberal Jews, so that's a big deal). There's been a move afoot for awhile to get a Democratic challenger to him, which makes much more sense because it's a very Democratic district. My rabbi, Jack Moline, has called on Moran to resign. Moran is also horrible on consumer issues (esp. bankruptcy legislation), has tangled with ethical issues around money and politics and is a notorious womanizer. Funny how the major press reported the apology but there was no story when he originally made the remark more than a week ago.


TORTURE: Eve Tushnet has a series of very thoughtful posts on torture -- I pointed to the top-most on the page, so keep reading beyond the first item you see. (Thanks to InstaPundit for the pointer.)

     I think Eve's concerns about slippery slopes are very powerful. As I'd mentioned in my own post (far less detailed) post on torture, it's remarkable how quickly proponents of torture actually slip from the ticking nuclear time-bomb scenario ("isn't it OK to use torture in these utterly extraordinary cases?") to much more mundane situations. I remember a conversation where someone (I forget exactly who, but I remember it was someone I like and respect) was suggesting that torture should be permissible when thousands of lives were on the line, and gave as a supporting example -- which he seemed to endorse -- the Jordanians' supposed success in foiling a plot against the King's life using torture. But wait, I said, aren't you already relaxing this "thousands of lives at stake" condition, by suggesting that it would be OK under your theory to use torture even to save one man's life (though an important man's)? I believe the person actually hadn't realized the slippage even as it was happening in his own argument.

     Here's what worries me, though, about this concern as well as about other moral and legal rules -- and I'm generally a believer in strong, bright-line rules: The same argument could be made not just about torture, but about killing terrorists, or for that matter enemy soldiers (Iraqi, Taliban, Japanese, Nazi), as well. After all, once you start thinking it's OK to kill terrorists -- not ones who are in custody, but ones who are on the loose -- then you might kill non-terrorists because you think they're terrorists. Or you might kill people because you think they're working closely with terrorists. Or you might knowingly kill innocents because they're in the same building as the terrorists whom you're bombing. Or you might bomb civilians in Dresden because you think it will advance the war effort against the Nazis. Or you might threaten to kill terrorists' families in order to get terrorists to surrender or to inform on other terrorists. Or you might call enemy sympathizers spies and aiders of the enemy, and kill them. Or you might eventually just kill anyone who you think is working against the greater good of the nation, which is to say against you. Or you might conclude (which is what some people to whom Eve is responding have concluded) that anyone whom you might permissibly kill in war -- and that's a long list -- you may also permissibly torture. So therefore, to stop from going down that road, and from becoming something you don't want to be, you shouldn't kill terrorists or enemy soldiers -- not even in war, not even in self-defense, never, never, never.

     This is in fact part of the standard argument for pacifism, and it has some force. People do slip down this very slope; it has happened often in human history. Different people have different views on where the lines between good, troubling but acceptable, and bad are drawn on this slope, but I think all of us will find something on that list to which we'll object. But the counterargument -- that sometimes we need to do awful things -- has force, too. Concerns about slippery slopes are valid arguments against certain actions, especially when they're expressed with the concreteness and psychological plausibility that Eve provides. But they aren't as such conclusive arguments, when the argument for action is compelling enough.

     Now it may be that torture is different. For starters, a bright-line rule against torture is more likely to be tolerable. We can't survive without the ability to kill, at least to kill the evil in self-defense, but unfortunately also to kill the innocent as an unfortunate side effect of certain defensive actions. (I don't like it, but let's be realistic: If we hadn't done this, then all of us would be living under Nazi rule, or dead.) But we might be able to survive if we retain the ability to kill but forgo the ability to torture. And it might be that the long-term benefits of giving up torture, including the long-term pragmatic benefits -- such as the decreased likelihood that future domestic oppressors would find it possible to use torture against us -- exceed the costs.

     Still, what if we are faced with the ticking nuclear time-bomb? Really, would we, as Eve points out, spare one person from torture, and allow the deaths of hundreds of thousands? Would that really be such a morally wonderful act? Yes, the risk of slippery slopes -- fueled in part by how we ourselves will change once we authorize torture, and in part by the very success of the initial tortures -- is very real, and we must guard against it (though the trouble is that even if you guard against it, it can happen nonetheless). But the risk of the hundreds of thousands dying -- and perhaps millions more after them -- would be real, too, and might well be much higher (though who knows?).

     So I continue to be torn on this issue. Eve's arguments are genuinely forceful, in large part because they're concrete and tie to real phenomena about human psychology. As my Mechanisms of the Slippery Slope argues should be done, they don't just rely on metaphors, but explain the mechanisms by which we might slip from torture as a truly extraordinary measure to torture as a far too ordinary one. Yet the pragmatic counterarguments -- the same ones that justify killing in self-defense, in war, and in other contexts -- are forceful, too. Let's hope that this debate stays purely hypothetical (though I'm not sure that this is possible).

Monday, March 10, 2003


YOUR ESSAY, THEIR TITLE: Amitai Etzioni writes about the dangers of op-ed titles that miss the author's point.


  Along with the usual reminders to hold the noise down and pay overdue fines, library patrons in Santa Cruz are seeing a new type of sign these days: a warning that records of the books they borrow may wind up in the hands of federal agents.
  The signs, posted in the 10 county branches last week and on the library's Web site, also inform the reader that the USA Patriot Act "prohibits library workers from informing you if federal agents have obtained records about you."
   "Questions about this policy," patrons are told, "should be directed to Attorney General John Ashcroft, Department of Justice, Washington, D.C. 20530."
     After hearing so much about how the Patriot Act is threatening library privacy, I decided to take a look at the Patriot Act to see just how bad the provisions are that specifically apply to libraries. I found something odd: unless I'm missing something, there are no provisions of the Patriot Act that specifically regulate libraries. The section of the Patriot Act that the librarians worry about is a section that applies generally to all tangible records, Section 215, which has been codified at 50 U.S.C. 1861 and "sunsets" in December 2005. It is a general law that allows the FBI to collect evidence in cases involving "foreign intelligence information not concerning a United States person or . . . international terrorism or clandestine intelligence activities." It's sort of a foreign intelligence version of the traditional grand jury subpoena authority that prosecutors have in criminal cases.

   nbsp;  As best I can tell, the librarians are correct that this law allows the government to collect library records in foreign intelligence investigations. However, it seems relevant that the law allows this only because it allows the government to collect any record, and well, library records are records, too.

     Of course, this doesn't mean that Section 215 is a good law. If anything, the fact that it applies to all tangible things makes it more troubling, not less. And from the standpoint of mounting opposition to Section 215 generally, I think this is probably a pretty effective strategy. On the other hand, if you're worried that the Patriot Act singles out libraries for lesser privacy protection, it turns out that it doesn't.


TEARS OF THE SUN AND SCHOOL PRAYER: Just saw Tears of the Sun -- not bad, but not great. Here's a factoid, though, about Joe Roth, who's the mogul behind Revolution Studios and the movie's Executive Producer (whatever "Executive Producer" means):
[Joseph Roth] grew up on Long Island (N.Y.) in the '50s, the son of . . . a plastics plant foreman with a passion for left wing causes. In 1959 Roth’s childhood was suddenly transformed when his father made him [one of the five children involved] in an ACLU suit to abolish prayer in public schools. Local ministers branded Joe the Devil; enemies burned a 25–foot cross on his lawn and planted a bomb in his basement; FBI agents shadowed him. "What saved me was that I played three sports, and the kids couldn’t come to terms with a lefty commie bad kid who was playing ball with everybody," says Roth. The lawsuit ended with a 1962 Supreme Court decision [Engel v. Vitale] declaring public school prayer unconstitutional. "Joe had to stand up at a very tender age," a friend says. "It made him dogged . . . very tough." . . .

-- Joshua Hammer, The Sly Dog at Fox, Newsweek, May 25, 1992.
I'm always amused with interesting tidbits about the future lives of parties (or near-parties, as is the case here) in leading Supreme Court cases. Most of them fade back into obscurity, but some don't.


MAKING TROUBLE: The Foundation for Individual Rights and Education is unveiling its guides for students -- know-your-rights volumes on religious liberty, due process, student fees and student organization funding, and student rights in the context of first-year orientations (available May), and free speech and academic freedom (available May). Their goal clearly seems to be to make trouble, which I much approve of; for instance, they answer the question "How can I wage a successful campaign against speech codes at my school?"

     I haven't read the guides myself, but I've been very impressed by FIRE and by its people, including Harvey Silverglate, who is one of the cofounders and the coauthor of three of the guides. These should prove to be valuable and influential resources.


THROWING THINGS: Check out Throwing Things, a cool and mostly nonpolitical blog. My favorite recent posts: (1) Homeland defense graphics, and (2) Fred Rogers or Michael Jackson -- you decide.


LARRY ELDER: Spent an hour or so this morning with Larry Elder, one of my favorite radio talk show hosts; he was interviewing me for a forthcoming documentary of his that criticizes Michael Moore's Bowling for Columbine. (The tentative title, I think, is Michael and Me.) It was a lot of fun, and Elder really is very sharp and engaging; if you get a chance to listen to his show -- he's just recently been syndicated -- you should.


NOT A PLEDGE BREAK: Most of us Conspirators are fortunate enough to be academics, which means we get paid a salary to write more or less whatever we please, on whatever topics we please. Writing for the lay public is actually considered a legitimate part of our daily jobs, though of course we're also expected to write more traditional scholarship. So we're in the pleasant position of not having to ask anyone for money to support our blogging habit, whoops, I mean to support our blogging.

     But, like all bloggers, we'd love to have more visitors -- we're thrilled at the 5000 or so we get on the average weekday, but we want more, more, MORE! So if you like this blog, I'd like to ask you to spread the word. I know many of you have been doing it already, but the general rule is that if you don't ask, you usually won't get, so we're asking this of those who (1) are inclined to do it, and (2) haven't done so yet. For example, you might
  1. E-mail friends, especially friends who you know like reading stuff online, to suggest that they check out this blog.

  2. Add us to your blogroll, if you have a blog. We fully understand why some people might like to keep their blogrolls small (we certainly do), but our general practice is to blogroll those blogs that we regularly read -- if you agree with us on this, and you read us regularly, perhaps you might do the same, if you haven't already.
  3. Add us to your organization's blogroll, if you run it -- we know some mainstream media organizations keep lists of recommended blogs, as do some think tanks and academic departments.

  4. Bookmark us, if you find that you visit occasionally and think "Gee, I wish I'd visited more often, but I keep forgetting."

  5. Get people to add our RSS feeds (available on the left-hand side of the screen, under the orange buttons labeled "XML") to their RSS readers (thanks to reader Mike Rose for reminding me of this).
Or, if you prefer, do nothing of the above -- we're happy to have you reading on whatever terms you like.

UPDATE: A reader writes:
I pledge that the next time I go to a star trek convention I will attend as a Klingon named Blog, of the house of Volokh.
We'll take it!


OH, AND AN INTERESTING LINEUP IN THE "FEAR OF CANCER" CASE: Justice Ginsburg, joined by Justices Stevens, Scalia, Souter, and Thomas, are in the majority; Justice Kennedy, joined by Chief Justice Rehnquist and Justices O'Connor and Breyer, in dissent. We've seen these line-ups before in some criminal procedure cases, where Scalia and Thomas sometimes take a more government-constraining view -- often on original meaning or textualist grounds -- than the other conservatives, and where Breyer sometimes takes a more government-empowering view than the other liberals. But it's not clear why this sort of line-up would happen here, and Scalia and Thomas don't enlighten us (and, of course, they have absolutely no obligation to enlighten us on this).


COOL QUOTE FROM JUSTICE BREYER in today's "fear of cancer" tort case: Breyer is dissenting from the Court's conclusion that, under the Federal Employers' Liability Act, a person who was injured by asbestosis can also recover for the fear of the cancer that asbestosis may cause; asbestosis seems to be associated with an increased risk of cancer, but of course not all asbestosis sufferers will eventually develop cancer. I express no opinion on the result, but I like the following Breyer paragraph:
How is the jury, without speculation, to measure compensation for the augmentation of a cancer fear from, say, two in nine to one in three? Given the fact that most of us lead our lives without compensation for fear of a 22% risk of cancer death, what monetary value can one attach to an incrementally increased fear due to a risk, say, of 30%? The problem here is not the unreality or lack of seriousness of the fear. It may be all too real. The problem is the impossibility of knowing an appropriate compensation for asbestosis insofar as its appearance tears away that veil of disregard that ordinarily shelters most of us from fear of cancer, if not fear of death itself.


REMEMBER THE CASE ABOUT THE DEMONSTRATION OUTSIDE THE U.N.? Of course not -- it was a whole month ago, which is a decade in Net years. But think back, back, back, in particular to the claims that there was something outrageous about the federal government supporting New York's attempt to require the demonstration to happen away from the U.N. building. On Feb. 16, I blogged:
A Syracuse Post-Standard editorial reports that the Administration filed an amicus brief supporting New York's decision to deny anti-war demonstrators a permit to parade near the U.N. . . .

     [I]f the report is true, it's hardly surprising, unusual, or (as an e-mail from one reader suggested) outrageous. Naturally, if the Administration took the same view that I faulted the New York Sun for taking (which is that antiwar demonstrations should be suppressed because their message indirectly helps our enemies), I would similarly fault the Administration likewise; but the editorial doesn't suggest this, and it seems quite unlikely.

     Rather, I suspect that the Administration's justification is the same one that press accounts attribute to the trial judge (a Clinton appointee, incidentally) who upheld the denial, and to the three-judge Second Circuit panel that upheld the trial judge: Large demonstrations outside the U.N., on whatever subject and expressing whatever viewpoint, pose special security problems that justify a content-neutral requirement that demonstrations be held elsewhere. As I mentioned several days ago, such a content-neutral restriction may well be quite permissible, as the four judges who have considered it have held. So the Administration's urging the same position (if that's what it in fact did -- I know of no pointers to an online version of the Administration's brief, if one was indeed filed) is not terribly noteworthy, and not at all outrageous.

     Ah, some might ask, but why is the Administration getting involved at all? Well, the standards for filing an amicus brief aren't very demanding -- one has to have some interest in the case, and something to say that might possibly help the court. That's the basis on which many organizations file amicus briefs, and on which the federal government does, too. The federal government files briefs in lots of cases that involve state government action but a federal constitutional claim. For instance, the Clinton administration filed an amicus brief in Hill v. Colorado to urge the Court to uphold state-law regulations of speech outside abortion clinics; but that's just one of many examples.

     What's more, there's a pretty clear reason why the federal government might want to get involved here: The justification for the restriction -- preventing danger to the U.N. building and its occupants -- implicates the federal government's security interests as much as it implicates the City's security interests. Just the sort of case where the federal government's input might be helpful, and certainly entirely proper. . . .
     The fantastic UCLA Law Library has tracked down the federal filing, and I'm happy to report it's as I expected it. Technically it's not an amicus brief but just a "statement of interest." It stresses that the federal government has its own interest in protecting the U.N., pursuant to its treaty obligations.
To meet [its] obligations, the United States Mission to the United Nations works closely with the City of New York, and in particular, the New York City Police Department. . . . The United States' obligation to ensure the safety of the United Nations and access to the United Nations headquarters represents a substantial federal interest. . . . Following the events of September 11, 2001, issues involving security of and access to the United Nations headquarters must be given serious consideration. The United States respectfully submits that this interest should be heavily weighed by this Court in considering plaintiff's specific request to march on First Avenue between 42th and 48th Streets. See, e.g., International Society of Krishna Consciousness, Inc. v. City of New York, 501 F. Supp. 684, 693 (S.D.N.Y. 1980) (rejecting plaintiff's constitutional challenge to the police department's restriction on certain activities along the east side of First Avenue between 42nd and 48th Streets after concluding that the police department had a substantial interest in protecting the United Nations headquarters and the United ations officials).
I can't say that this was likely to be terribly helpful to the court; there's just not a lot there besides the obvious. But there's not a peep about the supposed treasonous content of the speech (the New York Sun argument that I condemned), or the content of the speech at all. It's a standard content-neutral time, place, and manner restriction argument, focusing on interests -- the physical security of the U.N. -- that have nothing to do with what the protesters were going to be saying.

Sunday, March 09, 2003


Terrified Iraqi soldiers have crossed the Kuwait border and tried to surrender to British forces -- because they thought the war had already started.

The motley band of a dozen troops waved the white flag as British paratroopers tested their weapons during a routine exercise.

The stunned Paras from 16 Air Assault Brigade were forced to tell the Iraqis they were not firing at them, and ordered them back to their home country telling them it was too early to surrender. . . .

A British Army source in Kuwait contacted me to explain how the extraordinary surrender bid unfolded. The source said: "The British guys on the front-line could not believe what was happening. They were on pre-war exercises when all of a sudden these Iraqis turned up out of nowhere, with their hands in the air, saying they wanted to surrender.

"They had heard firing and thought it was the start of the war.

"The Paras are a tough, battle-hardened lot but were moved by the plight of the Iraqis. There was nothing they could do other than send them back.

"They were a motley bunch and you could barely describe them as soldiers -- they were poorly equipped and didn't even have proper boots. Their physical condition was dreadful and they had obviously not had a square meal for ages. No one has ever known a group of so-called soldiers surrender before a shot has been fired in anger." . . .
The story is reported as somewhat amusing, and I suppose it is (assuming that it's accurate) -- but what do you think happened to the soldiers when they returned to Iraq? Even in a civilized army, this sort of behavior is likely punishable; in the Iraqi army, I suspect that the punish is quite severe, and possibly fatal. Is it really the case that "[t]here was nothing [the British] could do other than send [the Iraqis] back"? Perhaps there's some rule here that does command this, but couldn't they have just treated them as defectors, and turned them over to Kuwaiti authorities?

     After all, that would be a dozen fewer Iraqis who could kill or wound some allied troops when the war starts; it would be a dozen fewer Iraqis who might be killed by allied troops when the war starts; and it would be a dozen fewer Iraqis who might be killed by Saddam before the war starts. True, it's possible that they might have actually been saboteurs or infiltrators, but I presume that they could have been disarmed, and locked up by the Kuwaitis in some safe but not terribly expensive surroundings -- surely both the allies and the Kuwaitis have some plans for dealing with prisoners of war when some are indeed taken. Wouldn't letting them stay in Kuwaiti custody be a win-win scenario (at least for everyone but Saddam)?

UPDATE: Mark Kleiman suggests that the story is in fact not accurate, and gives reasons for his doubts.

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