The Volokh Conspiracy 
Get posts by e-mail


Academic Legal Writing: personalized copies

Sources on the Second Amendment

Testimony on the Second Amendment

Shards: Poems from the War



Saturday, April 05, 2003


A BIT MORE ABOUT THE ISI "POLLY AWARDS": This is a much more minor error, but note that the other item tied for #1 is:
Meanwhile, at Columbia, Professor Gayatri Spivak delivered, in flawless academic drivel, the following rationalization for suicide bombings: "Suicidal resistance is a message inscribed on the body when no other means will get through. It is both execution and mourning, for self and other."
Actually, the press account that I found says that Prof. Spivak delivered this at Leeds University in England, though she is on the Columbia faculty. Again, a relatively small mistake, but I thought I'd mention it; this was in a press release, so unfortunately some newspapers might publish it without further checking. I'm also checking into some of the other items on the list.

UPDATE: ISI responds:
We are well aware that the lecture we quoted in the press release was delivered at the University of Leeds. However, Spivak is a Columbia professor, the nomination came from a Columbia student, and the Polly was awarded to Columbia University. Therefore, "at Columbia" was meant to indicate the school to which the Polly was being given. It seems you are splitting hairs here, sir.
Well, I tried to make clear that this isn't a huge error, but I think that most readers who read "Meanwhile, at Columbia, Professor Gayatri Spivak delivered . . ." would assume that this means that she delivered her statements at Columbia. Harmless error, as we say in the legal profession, and a slight error, but something of an error nonetheless, notwithstanding ISI's argument to the contrary. And I think that it further suggests a certain degree of imprecise usage, or imperfect fact-checking, much like when a newspaper misspells a name that they really should have gotten right.


ISI RESPONDS: The Intercollegiate Studies Institute just e-mailed me to respond to my post that criticized one of the quotes in their press release. (I had e-mailed them the criticism when I posted it.) As you may recall, their press release gave facetious awards for misbehavior by universities, and here was their explanation for giving Duke one of the awards:
After spending 14 years in a federal prison for bombing the U.S. Capitol in 1983, Laura Whitehorn lectured at Duke University where according to the Durham Herald Sun she advised the students, "It's easy to do a bombing."
I found that the full quote was:
It's easy to do a bombing," said Whitehorn, who is 57. "What's hard is to do it in a way you can be pretty damn sure you are not going to hurt anyone."
I then said that I thought Whitehorn was a bad person, who was rightly punished for her actions, but continued to say this:
But none of this excuses selective quoting that dramatically transforms the meaning of the message. The ISI version suggests that Whitehorn is an unrepentant bomber -- and since most bombers try to kill people, or at least don't care about killing people, so it suggests that she's also an unrepentant attempted murderer. Her actual quote asserts that she's an unrepentant bomber who actually tries to be quite scrupulous about not endangering people; a bad person nonetheless, but seemingly a considerably less bad (or at least differently bad) person. Maybe one might explicitly argue that the moral difference between the two is small or even nonexistent; but one can't just lop off the second half of the quote, and deny the readers the opportunity to recognize that there might in fact be a difference.

Such quoting is unfair to Duke and to Whitehorn, but it's also unfair to the public. If you had read the Polly Awards press release (or a newspaper article that might quote this press release), and then later learned the full quote, would you feel that ISI had been treating you fairly?
Here is ISI's response, which I reproduce in full:
I am writing in response to your April 3rd accusation that we (The Collegiate Network) were remiss in our reporting of Laura Whitehorn's lecture at Duke University. While you are right to say the quotation offered in our press release was taken out of context, you are wrong to say that in doing so we have been unfair to the public, Duke, and least of all to Whitehorn. We chose to quote that particular sentence because it most succinctly and accurately characterizes Whitehorn's political agenda and overall malevolent character. Perhaps we would have done better to quote the following:

"(W)e purposely aimed our attack at the institutions of imperialist rule rather than at individual members of the ruling class and government. We did not choose to kill any of them at this time. But their lives are not sacred…" --Taped statement from Laura Whitehorn's terrorist group claiming responsibility for the U.S. Capitol bombing, 1983

A quotation which discredits your notion that Whitehorn "tries to be quite scrupulous about not endangering people." She was only scrupulous about it at that time, but indicates quite clearly that at a different time there won't be the same care taken to prevent loss of life. Luckily she was arrested before that time came.

Or we could have listed all of the contraband recovered from Whitehorn's apartment after she was arrested:

10,000 in cash; hundreds of pieces of false identification; equipment to produce false identifications; stolen driver's licenses; police department patches; two badges from the N.Y.C. Police Department; U.S. military uniforms; surveillance logs of banks and corporate and government locations; intelligence files on the police and FBI; bulletproof vests; terrorist instruction manuals; a copy of the FBI's "1983 Summary of Terrorist Incidents"; a copy of the attorney general's "Guidelines on the Conduct of Domestic Security/Terrorism Investigations"; and a folder marked "In Progress" containing diagrams and photos of potential bombing targets, including the Old Executive Office Building and the U.S. Naval Academy.

Or we could have pointed out that the FBI said Ms. Whitehorn's apartment yielded evidence of its use by extremist groups suspected of 16 bombings and that the gang's arrest prevented 14 planned acts of terrorism.

In quoting Whitehorn the way we did, we did not deny our audience a "fair" portrayal of a woman who is merely morally obtuse, we gave them a sentence out of Whitehorn's mouth that most plainly reflected the criminal terrorist we know her to be. If we had presented the quotation in its entirety and allowed Whitehorn to make herself appear somehow virtuous simply because she didn't kill anyone when she bombed the capitol building, then we would have been being unfair to our audience.
     I don't think this justification works: The point of quoting Whitehorn rather than just criticizing her was, I take it, to show how what she herself says damns her. This sort of condemnation by quoting the person's own words ("out of Whitehorn's mouth") can be particularly effective, precisely because the person is shown to condemn herself. But that's why it's wrong to quote the person out of context; the statement she was actually making does not condemn her the same way that the half that ISI quoted does.

     Had ISI pointed to the facts it cites (which don't surprise me; as I said, I fully agree that Whitehorn is a bad person), it would have been on entirely firm footing. Unfortunately, it didn't point to those facts -- instead, it chose to quote her, and to quote only that part that they thought "reflected [her as they] know her to be," rather than quoting the entire sentence and letting readers judge for themselves what to make of it. I think that's not right; but in any event, I'm happy to pass along ISI's explanation so you can judge for yourself.


APPALLING, IF TRUE: According to a Knight-Ridder story,
In this dry desert world near Najaf, where the Army V Corps combat support system sprawls across miles of scabrous dust, there's an oasis of sorts: a 500-gallon pool of pristine, cool water.

It belongs to Army chaplain Josh Llano of Houston, who sees the water shortage -- which has kept thousands of filthy soldiers from bathing for weeks -- as an opportunity.

"It's simple. They want water. I have it, as long as they agree to get baptized," he said. . . .
Yup, it's simple; here's another thing that's simple: Federal employees can't distribute federal property (and I'm pretty sure that Llano didn't truck the 500 gallons of water himself in his personal stores) based on religion. They can't say "Only Christians get to bathe, others don't"; they can't say "You can only get to bathe if you agree to become a Christian." The Establishment Clause prohibits it. I would hope military regulations prohibit it. A basic sense of duty to your employer and coworkers should prohibit it. (I would also suspect that the doctrine of many religious denominations would prohibit it, too, but that's not my field.) As I understand the role of the military chaplain -- which is to serve the needs of soldiers of all denominations, and to show yourself to be someone whom soldiers of all denominations can trust -- prohibits it. If this story is true (and a quick search didn't reveal any corroboration or debunking of the story, though I hope that it ultimately proves to be not true), then it's utterly outrageous.

     Whether the Establishment Clause should be read as generally allowing the government to employ military chaplains is not a trivial question. The Establishment Clause objections are the usual ones -- the U.S. government generally ought not be in the business of hiring chaplains to perform religious duties, and any such hiring plan necessarily involves some degree of religious discrimination. (Even many people who endorse a relatively narrow view of the Establishment Clause say that the Clause prohibits discrimination among denominations.) The general answer that lower courts have given is that this is permissible, largely because soldiers are placed in a totally government-controlled environment (especially in the field), and are thus denied access to their own religious counselors; the government should be able to compensate for that; and (if I recall correctly) military chaplains are part of a longstanding American military tradition, and tradition plays an important role in Establishment Clause jurisprudence.

     More broadly, there is the sense that allowing military chaplains helps the military achieve its job, since it provides comfort and counseling to soldiers, and is also kinder to the soldiers. Some people argue that denominations should then send and pay their own chaplains, but even if they do this, the military will still have to treat them specially as chaplains -- allow them to travel with soldiers in the field (something that run of the mill civilian volunteers can't do), probably include them within the military command structure, and so on. So ultimately I do think that the military must have the ability to maintain chaplains (whoever pays for them), and that this should be an exception from the normal Establishment Clause rules.

     But this exception cannot, I think, be unlimited; in fact, the premise of the exception is precisely that the chaplains are using military support and military property to serve the needs of the military and of the soldiers -- not to favor those soldiers who are willing to convert to the chaplain's own religion over other soldiers.

     (Thanks to CalPundit for the pointer.)

UPDATE: Reader Chris Lansdown writes:
I don't think that it's true. I mean, how can you bathe more than a marine or two in 500 gallons of water and keep it pristine?

Also, since I can't see the army actually giving him the water for this endeavor, it is possible that he himself bought it off of locals and soldiers piecemeal, i.e. like $1/quart from drinking water that people were willing to part with for money. A bit unlikely, but what commander would sanction the waste of 500 gallons of water like this?

In short, this might be true, but I'm really skeptical right now. . . .
As I said in the original post, I hope that the story is false, and that Knight-Ridder was duped. No, the story wasn't posted on April Fool's Day (it was April 2). If anyone has more information on whether the story is accurate, please let me know.

FURTHER UPDATE: Reader Ravi Nanavati points out that at least the subject of the story above (Josh Llano) is indeed a military chaplain in the area, citing this site, and crediting comments to Matthew Yglesias's blog post on the subject.


MORE ON ATTEMPTED UCLA FACULTY SENATE ANTI-WAR RESOLUTION: My friend and colleague Mark Kleiman makes some excellent points about this (as usual). Here's an excerpt, but it's worth reading the whole post:
[T]he academic body, unlike its members, shouldn't have political opinions.

For if the academic body has political opinions, then what is the status of members of that body who disagree? Are they now officially outsiders? If having a given opinion puts one at odds, not merely with individual colleagues -- which can hardly be avoided -- but with one's institution, then discourse becomes substantially less free than it ought to be, with no good public purpose served in the process. . . .

Academics spend a significant amount of time judging people: their students, and one another. They need, therefore, to bend over backwards to make it clear that those judgments are based as exclusively as human frailty will allow on scholarly, academic, professional standards of skill at research and discourse, and not on the agreement or disagreement of the people doing the judging with the opinions of the people being judged. . . .

So far I've had four responses to my [e-mail] screed [expressing these views]: two from anti-war colleagues happily agreeing with my comments, one from a pro-war colleague (and, as it turns out, another genuine expert), livid with rage at the prospect of being officially marginalized, and one from one of the authors of the proposal (someone I know well professionally) wanting to know if I were a Republican. Of the four, it seems to me the last makes my case most effectively. . . .

Friday, April 04, 2003


E-MAIL RESPONSES WILL BE EVEN SLOWER THAN USUAL, I'm sorry to say -- I'm on the road right now and won't be back in the office until Wednesday afternoon.


RIAA SUES FOUR COLLEGE STUDENTS: According to this report, the RIAA has sued four college students who were running servers that made RIAA's copyrighted materials available. The students attended three schools -- Princeton, Rensselear, and Michigan Technological University -- and the cases have been filed in federal court in New York, New Jersey, and Michigan. An excerpt from the report:
  The suits allege the students stored thousands of songs on a central server and made them available to students, staff, administrators and others with access to their schools' high-speed Internet networks. The songs could be downloaded using standard Web browsers.
  . . .
  In the Michigan case, Oppenheim said, the student ran a network offering more than 650,000 music files for downloading, in addition to 1,866 songs from his own personal collection.
     The Daily Princetonian has run this story about the Princeton student who was sued. An excerpt from the Prince's coverage:
  The Recording Industry Association of America sued Dan Peng '05 yesterday for what could be tens of millions of dollars, alleging that he illegally made copyrighted music available for download from his computer and facilitated the transfer of copyrighted music over the network through his website,
  . . . .
  By mid-afternoon yesterday, file-sharing sites on the Princeton network — Wake, Gank, Sleep and pTunes — were down. It is unknown if these sites will ever reappear, though the RIAA has not sued the owners of the other sites, and the University said it did not shut the sites down.
  . . .
  The official said Peng was targeted because "he wa committing massive copyright infringement. There are no magic or secret formulas to how he was chosen."
  Though Gank, Sleep and pTunes were only available to users on the campus network, Wake could be accessed from off the campus network.
     At least based on the Prince article, it looks like the RIAA has chosen its targets quite carefully, going after only some pretty far out offenders. But no doubt many will think it is outrageous that the RIAA would sue a college student, regardless of the specific facts. Will this deter other students, at least marginally? Time will tell.

     UPDATE: You can read the complaints filed by the RIAA in all four cases here.


CHILD SOLDIERS: U.S. troops in Baghdad may be attacked and harassed by an 8,000-member force of child soldiers trained and brutalized by Saddam Hussein's regime, The Command Post reports, citing an article from the New York Daily News.

Peter Singer, the Brookings Institution scholar quoted in the article, wrote a riveting but disturbing article in the military journal Parameters not long ago, looking in detail at the issue of child soldiers in conflicts around the globe.

"U.S. troops," Singer wrote in Parameters, "still will likely have to contend one day with facing children in battle, possibly in the near future. Military planners need to recognize that child soldiers are an inescapable new feature of the modern battlefield and make appropriate tactical adjustments. American soldiers need to be prepared for the hard dilemmas they will face in this eventuality."

Among the statistics he cited:

  • Seventy-six percent of ongoing or recently ended conflicts (37 of the 55) have had children beneath the age of 18 serving as combatants.

  • Eighty percent of these conflicts where children have been present included fighters under the age of 15.

  • Forty percent of the total armed organizations around the world (157 of 366, a figure that includes both state militaries and all armed non-state groups operating in a politico-military context) use child soldiers.

  • Sixty percent of the non-state armed forces in the world (77 of 129) use child soldiers.


    ANOTHER CORRECTION: From the Fresno Bee, July 21, 1990:
    An item in Thursday's Nation Digest about the Massachusetts budget crisis made reference to new taxes that will help put Massachusetts "back in the African-American." The item should have said "back in the black."
    UPDATE: It seems that the "back in the African-American" was inserted into the original Fresno Bee story as a practical joke by a newspaper employee. Pretty funny, though I'm sure it wasn't that funny to Bee management!


    SAD NEWS. Our public life has been dealt a blow with the death in Iraq, apparently in a Humvee accident, of Michael Kelly, editor of the Atlantic Monthly and former editor-in-chief of The New Republic. Kelly has long been a frank, insightful, and refreshing voice on politics and culture; I considered it a sign of The New Republic’s decline when Marty Peretz fired Kelly because of his criticisms of Clinton and Gore (and I say this with all respect and affection for my co-blogger Jacob Levy, who now is associated with that magazine!). I should think that most of those who enjoy this blog also would have appreciated Kelly’s work, so I am sure I speak for many here when I say that he will be missed. Our condolences to his family and heartfelt appreciation for the courageous effort that took his life.

    POSTSCRIPT. You can find links to Kelly’s columns for the Washington Post here. His most recent column is here; and a few particular columns that I found memorable are here, here, here, and here.


    ATHEISM AND TOLERANCE: Once upon a time, I got to know an evangelical atheist -- an atheist with real religious fervor. He didn't just not believe in God; he was as committed to spreading his view as some evangelicals are to spreading theirs. Now that itself is perfectly fine, but he also tried to spread his view by expressing contempt for religious people. They weren't just wrong, they were stupid and evil. He was the atheistic equivalent of the religious proselytizers that give religious proselytizing a bad name.

         He also taught me a good deal about tolerance, by bad example (in some ways the most effective form of teaching). Tolerance, especially religious tolerance, doesn't just mean being nice to people who you think are right -- one doesn't need tolerance for that. Tolerance is tougher: It means acknowledging that even if people may be wrong in one thing that means a lot to you, it doesn't follow that they're wrong in all things. It means (among other things) being willing to see the merits, if there are merits, in people who believe things that you think are wrong, foolish, or even evil. You don't have to see merits in those who lack merit; you needn't tolerate Hitler or Stalin. But you do need to be willing to recognize that just because you think someone is obviously wrong on the subject of God, or the Trinity, or salvation by works vs. salvation by faith, or how best to interpret the Bible, it doesn't follow that they're going to be wrong about other things.

         I was reminded of this just now when I saw a post on another blog that mentioned that one of my earlier posts "vastly overestimates the intelligence of religious people." Now as it happens I'm not a religious person. I find the evidence for God's existence -- and especially for God's desire that we follow the rules in this or that book -- to be scant at best. I am also sometimes surprised by people's willingness to accept on such scant evidence the existence of God when they would not accept other controversial claims on such scant evidence.

         But I also know some brilliant people who are quite religious, and I think we all know of still more. (Just to give one famous and outspoken example, Justice Scalia is quite devout; I have heard him called many things, but never unintelligent.) To someone who disagrees with them on important matters, it may be surprising that they are intelligent. And yet there it is: Unless one puts on some huge ideological blinders, I think one would have to concede that these people are extremely smart.

         Now I realize that this doesn't itself disprove the claim I quote above. It's possible, I suppose, that I know a bunch of very intelligent religious people, but they're outliers -- that on average atheists, agnostics, and other nonreligious people are much smarter than religious people. But I haven't seen any statistical evidence of that theory, and my limited anecdotal evidence does not support it.

         The more tolerant, charitable, and I think in this case correct approach, I think, is to recognize that there are idiots in most denominations and no denomination (as well as of all political stripes and of no political stripe), and there are likewise geniuses in each category. The post I'm criticizing follows the "vastly overestimates" quote with "People who believe something merely because it is in a book tend to cut philosophical corners"; I've certainly seen plenty of irreligious people cutting philosophical corners, and I've seen no evidence that corner-cutting is any more common among the religious than among the irreligious.

         Shortly after that, the post quotes, I think favorably, Ayn Rand; but while I agree with the poster's implicit support for individualism and the free market, it turns out that in America the somewhat more religious right-wing intellectuals tend to support individualism and the free market more than do the somewhat less religious left-wing intellectuals. The recognition that there are fools and wise men in most religious/irreligious groups doesn't mean that all the groups are right -- only that even if they err on one point, even a tremendously important one that seems like it ought to be (as a matter of pure logic) quite telling, they may still be quite smart on others.

         This is necessarily a tentative assertion, I realize; perhaps I'm mistaken. But here's one on which I'm pretty sure I'm right: Regardless of the merit (or lack of merit) of the argument, publicly calling non-atheists stupid will win atheists about the same number of converts (and the same level of alienation even among their sympathizers) as publicly calling people who don't believe in religion X stupid wins for members of religion X.


    ANNIVERSARY: This April 19 will mark the 10-year anniversary of the deaths of the Branch Davidians in Waco. Some critics of the war on Iraq will likely attempt to draw some parallels between Waco and the Iraq issue. One such critic, Mary Zeiss Stange, of Skidmore College in New York, did so at an academic conference I attended last week in Lincoln, Neb. (The conference was on religion in the Great Plains.)

    Stange, a self-described “ACLU progressive” who has long studied the Waco matter, offered an impassioned presentation. “Rarely has there been a greater case of blaming the victim,” she said. She quoted Russell Means, who called Waco “the white man’s Wounded Knee.”

    There are two main parallels between Waco and Iraq, she argued: (1) The U.S. government, in each instance, used a mere pretext to initiate a policy of violence. (2) Civil liberties were/are needlessly violated.

    Several steps taken against the Branch Davidians are now explicitly permitted under the Patriot Act, she said, including the infiltration of religious groups and the issuing of warrants without a judge’s approval.

    She made the same argument about the Davidians that Michael Kinsley has made in regard to Islamic fundamentalists: that Americans need to understand the belief system of such radicals.

    She pointed out how Bush has repeatedly employed theological language in his remarks about the Iraq matter. I asked her after her presentation if she meant he is using millennialist language. She said no, she wasn’t talking about end-time rhetoric. She was referring to Bush’s general references to God.

    Stange seemed well-informed and raised points about which reasonable people can disagree. I divert from her thinking in several regards.

    The call to “understand” armed radicals smacks too much of needlessly placing moral blinders on. The Iraq campaign is fully justified. I was unconvinced by Stange’s efforts to minimize two of the Davidians’ activities (selling guns to raise money and converting semi-automatic weapons to automatic ones) by saying many people in Texas regard such actions as a relatively innocuous part of the state’s gun culture (“as common as spitting on the sidewalk”).

    Stange says the Davidians were not assembling a collection of weapons to form an “army of the Lord.” Maybe. But it’s hardly unreasonable to think otherwise.

    David Karesh, she says, certainly could have been prosecuted for statutory rape, given that some of the girls he forced himself on were as young as 12. But doesn’t that fact show that a showdown between Karesh and authorities was almost certainly inevitable? And it’s doubtful he would have agreed to go peacefully.

    UPDATE: I've gotten an e-mail pointing out that selling guns is a legal activity. I certainly realize that. I'm also aware, though, that the law sets specific parameters by which the sale of guns are to be regulated. I once worked in an area in western North Carolina where a county commissioner, a licensed gun dealer, was convicted of serious violations of firearms laws. When Stange, an informed observer on the legal aspects of Waco, mentioned the gun-sale aspect of the Davidians, my thinking was that she was indicating there has been debate over the nature of how those sales; otherwise, I thought, there was no point in raising the issue.


    THE MIND OF THE NYT EDITORIAL BOARD: Gail Collins, the editorial page editor for the New York Times, delivered a lecture at the University of California, Riverside, in March 2002 in which she talked about the role of editorial pages and, in particular, described the editorial board at her paper. From her remarks:

    I have learned, in my time on The Times board and again over the last several months, that drawing opinion out of a group is a very tricky business. It’s very easy just to hire a bunch of experts and send them off to their cubicles and tell them to produce. But when you do get a board that really works together, it’s an amazing experience.

    The Times has an extraordinary editorial board ... which I had virtually nothing to do with assembling. I inherited almost everyone on it from Howell Raines. If the board, which has 14 members, were a single person, that person would have three law degrees, three doctorates -- one in psychology, one in English and one in economics. Said person would also have four Pulitzers, two Polk Awards, one National Book Award, and would be a former MacArthur Fellow NEA Fellow, Bagehot Fellow, Woodrow Wilson Fellow, have experience as a correspondent in Russia, India, Japan, Spain, Jerusalem, Geneva and London. He or she would also be a former New York Times London bureau chief, Washington chief correspondent, city hall bureau chief, Albany bureau chief, foreign editor and science editor. And would have written 19 books. ...

    I think there’s also something to be said for having an editorial page to define opinion for the rest of the paper. I really do believe it would be harder to keep reporters from wandering into subjectivity if they weren’t aware that there were editorial writers working that side of the road. And it serves as a safety valve for any publisher or owner who feels the need to make himself or herself heard on an issue of the day.


    THE WAR WITH CANADA: William Stafford, a sweet-natured Kansas poet, once wrote a poem titled “At the Un-National Monument along the Canadian Border”:

    This is the field where the battle did not happen,
    where the unknown soldier did not die. ...
    No people killed -- or were killed -- on this ground
    hallowed by neglect and an air so tame
    that people celebrate it by forgetting its name.

    The American and Canadian peoples indeed have enjoyed a relationship so becalmed that no troops have been necessary to guard the international border. It seems difficult, at least for many Americans, to imagine that it was ever any different.

    But, at one point in North American history, it was quite different.

    The War of 1812 is largely remembered as having sprung from tensions that arose from the seizing of American sailors by Britain. But the conflict, as Canadians know from their national history, also involved major fighting along the U.S.-Canadian border.

    The conflict devastated communities north and south of the boundary and awakened deep anxieties among Canadians about American opportunism and aggressiveness. Many Americans are aware that the war included the burning of Washington, D.C., by the British, but few are likely aware that it also included the looting and burning of Toronto (then known as York) by U.S. forces.

    D.W. Meinig, an esteemed Syracuse University geographer who expertly explores the intersections of American history and geography, notes that the War of 1812 left the boundary between Canada and the United States “unchanged in position but profoundly altered in meaning.”

    In summing up the results of the war, Meinig writes that the war “sharply accentuated the Britishness of Canada.” He adds:

    But, perhaps more important than any of these, was the bitterness that Canadians, and especially Upper Canadians, now harbored. These people had had no quarrel with Americans, had not so far as they could see, given any offense whatever ... yet they had been attacked simply because they were near at hand, and, of course, they were attacked simply because they were British ...

    ... many Canadians felt they had been attacked because they were considered weak and vulnerable, that they had been victimized by the predatory opportunism on the part of a bullying neighbor, that there has been intent to seize them and never let them go. ... The War of 1812, so quickly forgotten by succeeding generations of Americans, would become a pivotal event in a developing Canadian nationalism.

    Curiously, in the postwar years, some American immigrants in Canada worked as teachers and sought to promote pro-American and anti-British sentiment among students. A British visitor to Canada complained in 1833, for example, that:

    You find a herd of children instructed by some anti-British adventurer instilling into the young ... mind sentiments hostile to the parent state; false accounts of the late war ... geographies setting forth [American] cities as the largest and finest in the world; historical reading books describing the American population as the most free and enlightened under heaven and American spelling-books, dictionaries and grammar teaching them an anti-British dialect and idiom.

    Poet William Stafford was right that Americans and Canadians can be grateful for the positive relations their two countries have enjoyed. But in the War of 1812, the record reveals a startling exception to that history of peace and friendship.

    Thursday, April 03, 2003


    EVEN THE NEW YORK TIMES EDITORIAL PAGE IS IMPRESSED with the recent progress in Iraq. Read about it here.


    NEW U.S. NEWS LAW SCHOOL RANKINGS: It's basically the same as last year, which was basically the same as the year before that, which was basically the same as the year before that. But in a profession as obsessed with hierarchy as the law, everyone seems to pay very close attention to the slightest variations anyway. So there it is.


    ENGLISH AL-JAZEERA IS UP: I've been looking forward to checking out the English version of Al Jazeera, and I was very annoyed when denial-of-service attacks took it offline. I just tried the site a few minutes ago, and for the first time, it worked (you can access the site here).

         UPDATE: On further inspection, it looks like this is only a temporary site, without the full articles available. Stay tuned.


    BLOGROLLED: We're on Gary Hart's blogroll.


    "DIFFERENT THAN THE ONE WE WARGAMED AGAINST": Remember that quote from Gen. Wallace -- "The enemy we're fighting is different from the one we war-gamed against"? A LEXIS search found 34 mentions of that quote just in the few days (though that count seems to include a few duplicate items). Sounds like a pretty powerful indictment of the military's planning.

         Except this apparently wasn't quite what Gen. Wallace said. According to the correction page in today's New York Times:
    A front-page article on Tuesday about criticism voiced by American military officers in Iraq over war plans omitted two words from an earlier comment by Lt. Gen. William S. Wallace, commander of V Corps. General Wallace had said (with the omission indicated by uppercasing), "The enemy we're fighting is A BIT different from the one we war-gamed against."
    Uh, whoops! Changes the meaning, doesn't it? True, sometimes "a bit" really means "a lot," but sometimes it does just mean "a bit," and it seems to me that this interpretation should be left up to the readers, who ought to be given the entire quote to consider.

         The original misquote, incidentally, doesn't seem to have come from the New York Times; I saw it mentioned in some March 28 sources, while the Times error happened on April 1. A March 28 Times story got the quote right (with the "a bit" part), and in fact 38 LEXIS stories report the correct quote. The earliest newspaper source with the misquote is the March 28 Daily Telegraph, so perhaps that's the culprit.

         Thanks to Power Line for catching this -- Power Line also mentions another significant Times correction -- and to InstaPundit for pointing on it.


    ELECTRONIC FRONTIER FOUNDATION ON THE CRYPTO-AS-A-CRIME PROPOSAL: The Electronic Frontier Foundation has released an analysis of the now-dead-in-the-water leaked DOJ proposal that many have dubbed Patriot II. I haven't read the whole EFF analysis, but given my interest in the proposal to criminalize use of cryptography, I figured I would start there to try to get a feel for the quality of the EFF analysis as a whole. The experience doesn't leave me particularly confident in the rest of the document. Here's what the EFF analysis says about the crypto proposal:
    USAPA II . . . creat[es] a five-year sentence enhancement for any person who, while committing or attempting to commit a federal felony, knowingly and willfully uses encryption technology to conceal any incriminating communication or information relating to that felony. This provision creates a disincentive for Americans to protect their data and information from identity thieves, stalkers and other criminals. It applies to any federal felony, most of which have nothing to do with terrorism. It creates the spectre of sentence enhancements for business travelers who use VPN systems to gain access to their data remotely or those who use file-sharing systems that utilize cryptography to protect the contents of a file.
         Some of the language here is unusually mushy; the document speaks of the proposed law creating "spectres" and "disincentives," rather than actually applying to conduct. But still, of the four sentences in this paragraph, only the third sentence seems correct to me. Let's start with the first sentence, which begins, "USAPA II . . . creat[es] a five-year sentence enhancement." Well, no. I don't think the provision creates a five-year sentence enhancement; rather, it is an offense with a theoretical maximum penalty f five years in prison, with the actual sentences to be determined by the U.S. Sentencing Commission. Here's what I wrote on this in my earlier post:
    The real question of how the proposed law would impact criminal sentences depends upon how it would be treated under the Sentencing Guidelines. There are no guidelines for this crime, of course (this just being a proposed law, not an actual one), so the effect of a conviction under the proposed crime is a matter of speculation. But its worth noting that the most common approach to grouping related offenses under the guidelines is for the most serious offense to control the sentence. So if I go on a crime spree and commit one serious federal offense along with three minor federal offenses, the offenses will normally be grouped and only the most serious offense will actually determine the sentence. Why does this matter? It matters because the proposed crime is by its nature a dependent crime: a defendant would be guilty of unlawful use of encryption only if he was also guilty of another federal felony crime, and the government could prove that. As a result, if the independent crime is the more serious crime under the guidelines, a conviction for unlawful use of encryption could have no effect whatsoever.
         Now let's try the next sentence, "This provision creates a disincentive for Americans to protect their data and information from identity thieves, stalkers and other criminals." The analysis does not explain why the provision would create such a disincentive. I'm not sure how it would, either: the proposal applies only when a person is committing a federal felony offense, and is using encryption willfully, with intent to violate the law. Given that, I don't see how that could apply to the use of encryption to protect information from hackers and the like. Finally, the fourth sentence says that the provision "creates the spectr f sentence enhancements for business travelers who use VPN systems to gain access to their data remotely or those who use file-sharing systems that utilize cryptography to protect the contents of a file." I find this perplexing. Again, by definition the provision could only apply during the commission of a federal felony, so I don't understand how it could apply to innocent conduct such as a business traveler's remote access to a file. (Or perhaps EFF is just being very subtle here; after all, a spectre is defined as a ghost or phantom, so maybe they are saying that the law wouldn't actually apply here, but might make people fear that it did?)

         To be clear, I am not saying that the crypto-crime provision in Patriot II is a good idea. In fact, on balance I think it's not. It's too broad, I think, and not a particularly effective way of dealing with the problem, so on balance I think I would be against it if it were actually introduced as a bill. But I think it's important to evaluate such provisions carefully on their merits before reaching a conclusion, and I don't think that this portion of the EFF document quite measures up on that front.


    POSSIBLE CORRECTIONS ABOUT THE COLUMBIA TEACH-IN: Reader Tim Waligore writes that, contrary to some accounts (including, I think, some of the quotes that I posted to the blog),
    1. The professors who repudiated De Genova's statements "received louder applause from the audience than De Genova did."

    2. Snyder did not say that he felt comfortable speaking because he knew there would be little opposition, but rather merely "began his speech by noting how as a youth, he was forced off stage in the middle of giving an anti-war speech to his father's rotary club," and then "not[ed] that this gathering looks a lot friendlier." "It hardly seems fair to tar Snyder with not tolerating dissent because he gave an example of how his youthful dissent was not tolerated at all."
    I don't know who's right and who's wrong here, but I thought it would be worth mentioning this perspective. I wish I'd blogged about it earlier (Mr. Waligore e-mailed me several days ago), but I've been swamped and this fell through the cracks -- sorry about that . . . .




    PHOTOGRAPHY AND MEMORY: The works of Wright Morris (1910-1998), a Nebraska-born photographer/novelist, thoughtfully explore what Morris called “the dominance of the past in all aspects of the present, the palpable sense of time as a presence.” Morris’ examinations of traditional farm life and of various scenes across the Great Plains and Southwest are the focus of a current exhibit at Omaha’s Joslyn Art Museum. (The exhibit was skillfully organized by the Iris & B. Gerald Cantor Center for Visual Arts at Stanford University.)

    While my 8-year-old son took art lessons at Joslyn on a recent Saturday morning, I visited the exhibit. I was so struck by the excerpts from various Morris writings -- the crispness of his language and the stimulating effect of his observations -- that I went out to the van, got my notebook and began transcribing many of the passages.

    I’ll cite one example:

    Image making begins in earnest where memory fades ... First we make these images to see clearly; then we see clearly only what we have made. In my own case, over forty years of writing what I have observed and imagined has replaced and overlapped what I remembered. The fictions have become the facts of my life.


    THE KIM JONG IL BLOG: Very funny. Thanks to InstaPundit for the pointer.


    HARVARD LAW GETS A NEW DEAN: Elena Kagan has been named the new Dean of Harvard Law School (read the University's press release here.) Thanks to Howard for the link.


    DOUBLES AND DECEPTION: The U.S., not surprisingly, is playing mind games with Iraqi commanders who are in the dark about whether Saddam Hussein is alive, the New York Times reports today.

    I’ve mentioned this before at my own site, but the question of Saddam and his doubles -- and the prospect of his death in the middle of military hostilities -- brings to mind the 1980 Akira Kurosawa film “Kagemusha” :

    Shot on one of the largest budgets in Japanese film history, Kagemusha (The Double) saw the return of Kurosawa to the samurai film and in epic style. The film takes place in 16th century Japan where a ferocious power struggle, a battle for the county's spiritual capital -- Kyoto, is raging between warlord Shingen Takeda (Tatsuya Nakadai) and two rival clans.

    When Shingen is shot by a sniper during a lengthy siege, on his death bed he proclaims that his passing should be kept secret for no less than three years -- lest the Takeda clan be destroyed by their enemies. Begrudgingly his powerful generals agree, and Shingen's place is assumed by his kagemusha -- his double or “shadow warrior” -- a former thief (again wonderfully played by Nakadai) bearing an incredibly likeness to the lord.

    And so this kagemusha takes on the unenviable task of full-time impersonator, repressing his own personality and assuming the mantle of impotent leader; successfully fooling Singen's family and friends, and playing his part in battle. Even more remarkably, the clan seems to flourish under his rule; morale improves, and the clan's unbeaten military record is maintained.

    But slowly the pressure starts to tell as the kagemusha, a common man elevated far above his station and plagued with pity and self-doubt, longs for his old life and his long forgotten sense of self.


    AWOL CONTINUED: My new hard drive is finally up and running, with all my files from the old one recovered (despite my having been told by the first serviceperson that that would be impossible without going to a mega-expensive data recovery service). But of course the computer SNAFUs have me behind on all sorts of things; and tomorrow is prospective graduate student day here in the department; and this weekend is the Midwestern political Science Association annual meeting; and I've got this paper that I need to send off to the Constitutional Law workshop, and... So blogging should continue to be nonexistent. For a political theory fix, go read the fascinating exchange among Chris Bertram, Micah Schwarzman, Lawrence Solum, and Matthew Yglesias about Cohen and Rawls. Start here and work backwards. I think that I'm not going to blog on their discussion, because I haven't finished my own thinking about the Cohen critique-- and when I do, I'll be ready to write an article rather than a blog-post. Several of the participants in the discussion have already written relevant articles, and are much further in their thought about these questions than I am...


    BILL BENNETT, PAT BUCHANAN, AND S & M: A correction from the Aug. 14, 1995 New Yorker:
    A mistake made by a transcription service mangled a quotation from William Bennett in Michael Kelly's July 17 "Letter from Washington." In criticizing the political views of Patrick Buchanan, Mr. Bennett said, "it's a real us-and-them kind of thing," not, as we reported, "it's a real S & M kind of thing."
    What does it say about the transcriber, by the way, that he or she makes such an assumption? (And, yes, I do try to verify these things before I post them; I don't have online access to The New Yorker, but this appeared in many accounts in seemingly reputable newspapers, and I saw no suggestions that this is mistaken.)


    THE QUOTING OUT OF CONTEXT AWARD goes to the Intercollegiate Studies Institute's "Polly Awards," which are aimed at supposed left-wing excesses on campus. Here's one item that's tied for #1 on their list of five for this year; I just got their press release yesterday:
    After spending 14 years in a federal prison for bombing the U.S. Capitol in 1983, Laura Whitehorn lectured at Duke University where according to the Durham Herald Sun she advised the students, "It's easy to do a bombing."
    Shocking! But here's what the Durham Herald Sun article (registration required) reports her as saying (emphasis added):
    Nearly 20 years after a bomb went off damaging Senate meeting rooms, the woman who was charged with conspiring to put it there defended her actions.

    Laura Whitehorn, who spent 14 years in federal prison for the deed, told a Duke audience Monday that though she wouldn't do it again, she didn't regret her action to protest U.S. involvement in Grenada.

    And she said she took issue with a group of Duke students labeling her a terrorist because of it.

    The goal of the Capitol bombing, unlike the 1995 Oklahoma City bombing and the Sept. 11, 2001, attacks on New York and Washington, D.C., was to make a point -- not to force the government into doing something, she said. And Whitehorn said the utmost care was taken to make sure no one was hurt.

    "It's easy to do a bombing," said Whitehorn, who is 57. "What's hard is to do it in a way you can be pretty damn sure you are not going to hurt anyone."
         Whitehorn is a criminal. She was rightly punished. It's bad that she doesn't even now regret her actions. I suspect that the student groups who invited her probably shouldn't have done so, unless she really is remarkably noteworthy in other ways.

         But none of this excuses selective quoting that dramatically transforms the meaning of the message. The ISI version suggests that Whitehorn is an unrepentant bomber -- and since most bombers try to kill people, or at least don't care about killing people, so it suggests that she's also an unrepentant attempted murderer. Her actual quote asserts that she's an unrepentant bomber who actually tries to be quite scrupulous about not endangering people; a bad person nonetheless, but seemingly a considerably less bad (or at least differently bad) person. Maybe one might explicitly argue that the moral difference between the two is small or even nonexistent; but one can't just lop off the second half of the quote, and deny the readers the opportunity to recognize that there might in fact be a difference.

         Such quoting is unfair to Duke and to Whitehorn, but it's also unfair to the public. If you had read the Polly Awards press release (or a newspaper article that might quote this press release), and then later learned the full quote, would you feel that ISI had been treating you fairly?

         I'll e-mail a copy of this post to ISI, and if they respond, I'll be happy to post their response here.


    GEITNER SIMMONS: I'm delighted to say that Geitner Simmons, an editorial writer at the Omaha World-Herald and the author of the Regions of Mind blog (which we've long blogrolled), will be guest-blogging here today and Friday. I expect that you'll find his posts to be interesting and thoughtful, similar to ours in style but different enough in substance (and, often, subject matter) to make for a welcome new perspective. You can reach Geitner at geitner.simmons at

    Wednesday, April 02, 2003


    THREE MORE CHEERS FOR THE COMMAND POST, its founders Michele Catalano and Alan Nelson, and its contributing bloggers. Not only is the site a great source of news, but it's also a remarkable Internet success story -- Extreme Tracking shows them with 50,000 unique visits per weekday, and more yesterday and likely today. And this is a site that has only been around for two weeks, since the start of the war. More mainstream media should be writing about them (and communications studies scholars should be studying them, though naturally it will take them longer to get started).


    And there is still the threat of chemical weapons -- none have been fired yet, but CBS News Correspondent David Martin reports the Iraqis can be overheard on their radios talking among themselves about using them.
    Thanks to The Command Post for the pointer.


    A Muslim fundamentalist source claimed Wednesday that Osama bin Laden's al-Qaida network captured five coalition troops in Iraq.

    The source who requested anonymity told United Press International by telephone that the kidnapping of four U.S. troops and a British soldier, took place last Saturday in al-Zubair region of southern Iraq, close to the Kuwaiti border.

    He said the "kidnapped troops will be equally treated as al-Qaida prisoners held in Guantanamo Bay."

    He said al-Qaida will soon release a videotape of the captured soldiers and will ask to swap them with al-Qaida suspects being held by the United States.
    Via The Command Post.


    GERMANY, FRANCE, AND RUSSIA ARE RESPONSIBLE FOR THE WAR, say unilateralist Bush Administration warmongers. Uh, no, actually that's not who says it -- apparently the people saying this are UNMOVIC inspectors. Thomas Nephew has translated a German newspaper article on this (thanks to InstaPundit and BuzzMachine):
    Could this war have been prevented? Yes, say some [inspectors]. But with a surprising argument: Germany, France and Russia made war unavoidable with their purported peace politics. Gerhard Schroeder's categorical "no" to military deployment was simply "crazy." "We might have been able to fulfill our mandate," one hears in the hotel lobby. . . .

    The 120 inspectors noticed [quickly] . . . that they would not reach their goal without the full cooperation of Iraqis. But they waited in vain to be approached. A warning presentation by Hans Blix on January 15 in the Security Council didn't change things. Iraq made its first concessions when Secretary of State Colin Powell presented sensational pictures, videos, and tape recordings of mobile bioweapons labs, rocket launching ramps, and munitions bunkers. And as the American threat of war became more and more clear and found more support. . . .

    Blix delivered a more conciliatory situation assessment on February 14. This was the basis for Germany, France and Russia to speak of "functioning inspections" and to increasingly distance themselves from America and Great Britain. The governments in Berlin, Paris, and Moscow felt confirmed in the conviction that their peace strategy would lead to success.

    The inspectors in Baghdad saw things completely differently: their position was suddenly weakened. Documents were held back again. Scientists appeared -- if at all -- only with their own tape recorders. After the conversations they had to deliver the cassettes to the NMD. The hope for greater assertiveness that had grown following Powell's speech diminished again. "After February 14 we didn't get much any more."

    In hindsight a clear pattern emerged, from the viewpoint of the UN inspectors: "Saddam Hussein followed every step in the Security Council closely. As soon as divisions appeared, cooperation diminished." [emphasis added] The officials in Baghdad only became more cooperative when military pressure increased. Rhetoric never impressed Saddam Hussein, the inspectors say, the deeper the quarrels split the international community, the surer he felt more himself. . . .

    Was the mission programmed to fail? No, say the inspectors: a united Security Council might have forced a peaceful disarmament. But even then an ambivalent thought that sounds surprisingly hard coming from an inspector: "How does one best handle a tumor -- with a quick surgical procedure or with long, difficult chemotherapy whose success is doubtful?"
    Read the whole thing.


    A BIT MORE ON IMMIGRANTS AND WEAPONS: Christopher Lansdown reminds me about Anh Duong, one of the lead developers of the thermobaric bunker-buster bombs used against al Qaeda in Afghanistan -- she's a Vietnamese refugee. The example is less stark than in the Manhattan Project, for obvious reasons, but it's worth remembering.


    IRAQI FREEDOM: Wendell Steavenson, a former Time reporter now reporting for Slate from Kurdistan, has an excellent piece today. It's an interview with an Iraqi deserter, and it acknowledges that deserters' views won't match the views of all Iraqis -- but it still provides an interesting perspective. Here's the closing, but the whole thing is worth reading.
    I asked him what had surprised him most about Kurdistan.

    "When I came here I was shocked when I saw all the dishes on the roofs of the houses. I had never seen them so I asked people what they were and they said satellite. I had never heard the word satellite."

    He was clearly delighted about the satellites. "It is the first time I watched satellite. Now I watch the news every half-hour. In Iraq we heard the names Bush, Blair, and UNSCOM, but we never saw them. We didn't know what they are doing -- or what purpose they had."

    I related a final question through my translator. "What do you know now, that you didn't know before?"

    "I can understand that they want to liberate Iraq, free the people of Iraq, create a better life in Iraq. I am very comfortable about the fighting in Iraq because I can see they want to free Iraq."

    It's an extraordinary thing to have Bush freedomisms quoted to you by an Iraqi. Perhaps the deserter had picked up his rhetoric from the Kurds who are very emphatic about human rights, about freedom and democracy. Democracy might be an imperfect and slightly misunderstood concept in Kurdistan, where human rights are tied up with honor killings and clan laws, but it is plain that freedom is something that everyone feels the lack of when it's denied. I don't think that we have yet begun to imagine the extent of that denial in Iraq.
    Yet another reason, I think, why we need to remember that whether the war is ultimately judged a success will be influenced by how the Iraqis will react after they're liberated, and after they see our full intentions, rather than by how some of them are reacting right now.


    WHO'S PROTECTING THE ISLAMIC HOLY SITES? We are, while the Ba'athists are jeopardizing them:
    General Brooks added that coalition forces in the central city of Najaf have come under fire from paramilitary forces that took refuge in the Ali Mosque, one of Shiite Islam's holiest sites.

    "We can fire back. We chose not to fire back, and that's a very important distinction. The regime is firing from within a mosque, something that doesn't have military value, that should be protected by them. It's protected by us," General Brooks said.
    From VOA News, via The Command Post.


    TREAT HER LIKE A SOLDIER: Virginia Postrel makes an excellent point (thanks to InstaPundit for the pointer):
    Reporters on Fox News Channel and MSNBC are displaying an exceedingly annoying habit of referring to Pfc. Jessica Lynch as just "Jessica" in news stories, the better to tug the viewers' paternal/maternal heartstrings. But Jessica Lynch is not the little girl who fell down the well. She is a U.S. soldier serving in harm's way. If you're old enough to be a POW, you're old enough to be referred to as "Private Lynch." Even if you're female.


    IMMIGRANTS AND WORLD WAR II: The joke a few days ago about who was the greatest German general of World War II (the answer is Eisenhower) reminded me of a broader point -- a huge number of the scientists working on the Manhattan Project were immigrants, many from enemy nations. Einstein (who didn't work on the Project but whose letter to Roosevelt helped prompt the American nuclear program), Teller, and Fermi were the obvious names, but there were many others, too.

         If Hitler hadn't chased away these scientists with his tyranny and in particular his anti-Semitism -- a weird counterfactual hypothetical, I realize, but let's assume this -- he may have developed the bomb first. (I take it some would have come to the U.S. in any event, but others might not have.) Or if we weren't as open to the immigrant scientists, either because we didn't let them in or because we didn't trust them to work in such an important military project, the Soviets might have developed the bomb before we did. (They did get some of the information by spying on us, but my understanding is that they had their own nuclear development program that would have gotten them there relatively soon in any event.)

         In any event, if we hadn't had the bomb, it's possible that the war against Japan would have been longer, and bloodier for our forces and perhaps even the Japanese -- I know there's a hot debate about this, on which I know little, but my guess is that our having the bomb did accelerate the war's end. But as the "Germany gets it first" scenario and the "Soviets get it first" scenario suggest, the consequences of our not developing the bomb first might have been even more dire than extra casualties in an invasion of Japan.

         Our getting the bomb first -- and thus perhaps avoiding a horrible outcome to World War II (if the Germans got it first) or the Cold War (if the Soviets did) -- is thus in large measure a dividend of our political and ethical system. Those who push brilliant people away through irrational loathing, or through political oppression more broadly bear an important military cost. Those who welcome them and (after substantial background investigation, I'm sure) trust them, even though they are aliens, belong to minority religions or ethnicities, and come from nations with which we are at war, derive a huge military benefit. This may not always be so, and sometimes accepting large groups of immigrants (especially if they aren't sufficiently assimilated, or if some of them do indeed prove to be spies or saboteurs, and those aren't properly screened out) may indeed pose dangers. But the Manhattan Project shows that our openness, even to former citizens of our enemies, can sometimes be tremendously beneficial as well.


    ACADEMICS TAKING OFFICIAL STANDS OUTSIDE THEIR AREAS OF EXPERTISE: My friend and fellow lawprof Ward Farnsworth has an article on this, and on the problems that such stands can pose. The article is focused on law professors signing friend-of-the-court briefs, but I think some of the points there also apply to university faculty senates making collective public statements about the war and other subjects (see a few posts down).


    MILITARY COMMAND JARGON: A PRIMER. Which is the bigger unit: the 101st Airborne or the Seventh Marines? That’s an easy one: the 101st Airborne is much bigger; it’s a division, whereas the “Seventh Marines” refers to a regiment. I feel obliged to mention this because I just heard a television commentator refer to the “Seventh Marine Division” -- a blunder. It occurred to me that it might be useful to post a general summary of the sizes and commanders of the different infantry units in the Army and Marines. The usefulness will be twofold. In the event, however unlikely, that you aren’t at all clear on these points already, they may increase your understanding of the coverage of the war. If you are clear on these points already, you may know more about them than I do and be able to correct any mistakes that exist in what follows (I know most of what little I do because my father was a Marine); I will amend it accordingly.

    A "fire team" consists of a few men commanded by a corporal.

    A squad consists of about twelve men (three teams) commanded by a sergeant – typically a total of thirteen soldiers.

    A platoon’s size can vary, but it typically consists of three squads, or 39 soldiers, plus a platoon sergeant and a platoon leader -- a lieutenant.

    A company consists of two or more platoons (usually three or four) -- typically between 150-200 soldiers -- and is run by a captain.

    A battalion consists of two or more companies (e.g., three "rifle" companies plus a heavy weapons company) -- perhaps 700-800 soldiers -- and is run by a lieutenant colonel. Players of Stratego may be wondering at this point what a Major does. A major typically is an executive officer -- second in command -- in a battalion. Or he can run the battalion if lieutenant colonels are in short supply, or command a company if they are short of captains.

    A regiment typically consists of three or four battalions and is run by a full colonel: around 3,000-5,000 soldiers.

    A brigade typically consists of a couple of regiments, but also can be smaller than the numbers that formulation would suggest. They traditionally have been run by brigadier generals, but now in the Army brigades are commanded by full colonels. A reader informs me that the Army evidently no longer uses "regiments" as fighting units. It's brigades instead -- except in the Army's cavalry divisions, where apparently regiments still are used. (You can go here for some further explanation; you will have to scroll down, as I couldn't get the permalink to work.) The Marines, by contrast, only form brigades for particular and occasional purposes. The brigade/regiment distinction gets complicated to a point that I don't think is likely to be of great interest to the laity, as brigades and regiments are largely interchangeable for purposes of comprehending news coverage. The really important thing is to distinguish them from battalions and divisions.

    A division typically consists of three infantry regiments plus more: an artillery regiment, supply staff, intelligence staff, logistics staff, headquarters staff, motor transport people, a medical battalion, and some other headings, ending up with 15,000-25,000 or so soldiers -- 18,000 is the rule of thumb, but a paratrooper battalion could be attached, or a tank regiment, etc., with a resulting variation in numbers. It is run by a major general (a "two star" general). There also are distinct armored divisions; these differ because they consist mostly of tanks and other armor that support the infantry divisions. The Marine Expeditionary Force is a unit roughly on par with a division in its scale, though larger as it includes its own air support and other amenities.

    A corps consists of two or more divisions (maybe 60,000 soldiers) and is run by a three-star general -- a lieutenant general. V Corps ("Fifth Corps") is the outfit in Iraq now. It is run by William Wallace.

    A group of "corps" make up an "army" or a command -- in the case of Iraq, the central command -- which is run by a full (four-star) general. (There are no five-star generals now; Eisenhower, Bradley, and a couple of others from WWII had that distinction.) In this case the general is Tommy Franks, who oversees not only the V Corps but also the Air Force and Naval units there, etc.

    Examples of usage:

    The Seventh Armored Brigade (the "desert rats") is a British unit, a "brigade" because it's too small to be considered a "division." "Brigades" are more common in British usage than American.

    The "101st Airborne" (the "screaming eagles") is a division of the Army that traditionally consisted of paratroopers (plus support of various kinds), but now is a more general air assault division making extensive use of helicopters, etc. This division fought famously for Bastogne in the Battle of the Bulge during WWII. Many of the divisions and regiments you hear about now have storied histories, having participated in great battles of prior wars. It can be fun to go do a search for a regiment’s name; usually there are sources on the web providing some history.

    Divisions go by numbers, as do regiments and battalions. So within the First Marine Division, there are infantry regiments that that have numbers of their own -- the first marine regiment, the fifth, and the seventh. An ambiguity can arise here that is related to the television miscue that precipitated this post: someone can refer to the "First Marines." This should not mean the first division; it should mean the first *regiment* (which is in the first division). The first division is better referred to as the First Marine Division. This is the division that went into Guadalcanal; it was the first bunch of Marines to fight in WWII (at least in an offensive capacity; thus I am setting aside the Marine detachment at Wake Island, which a reader reasonably reminded me not to overlook).

    If someone refers to "the 31st infantry," on the other hand, this refers to a regiment, not a division. The resulting rule of thumb: when you refer to a division, use the word "division." If you refer just to a number -- the 31st infantry, or the 7th marines, or the 3d cavalry -- you are referring to a regiment. Yes, the “101st Airborne” is an exception; it’s a division. That’s why only rules of thumb are possible.


    AND WE SHOULD LISTEN TO THEM ON THIS BECAUSE . . .? Some UCLA faculty members are gathering signatures in order to try to get the UCLA Faculty Senate to enact an anti-war resolution:
    The undersigned joins in this petition to call a special meeting of the Division (that is, of "all members of the UCLA Division of the Academic Senate, which includes emeriti and numbers about 3300 faculty members") to consider adopting the following resolution, to be sent in a letter to President George W. Bush:

    We, the faculty members of the University of California, Los Angeles, say to the President of the United States, that we:
    1. condemn the U.S. invasion of Iraq;
    2. deplore the doctrine of preventive war the President has used to justify it the invasion;
    3. reaffirm our commitment to addressing international conflicts through the rule of law and the United Nations;
    4. oppose the establishment of an American protectorate in Iraq; and
    5. call for the establishment of a post-war representative government in Iraq, answerable to the United Nations, which guarantees to Iraqis inalienable personal, political, and civil rights.
         Let's set aside the merits of the matter, and focus on the role of the UCLA Faculty Senate here. The Senate represents UCLA faculty members from all departments -- medicine, mathematics, political science, music, and more. Where does the Senate get the expertise or the authority (not in the legal sense, but in the social sense) to expostulate on the war? Why should the public give any credence to the majority vote of a bunch of nonexperts who happen to work at a university?

         If the UCLA Faculty Senate expressed a view about, say, astronomy ("We, the faculty members of UCLA -- including ethnomusicologists and art history scholars -- endorse the expanding universe hypothesis") or about the history of literature ("We, the faculty members of UCLA -- including physicists and dentistry professors -- endorse the view that Shakespeare's works were actually written by one person named Shakespeare"), we'd think that's a pretty unsound thing for a generalist university to say: They're trading on the credibility of the institution as a center of expert learning to support a view on which 95% of the faculty can't possibly have an expert opinion; this is likely to be either unpersuasive or misleading, and in the long run it will also weaken the institution's credibility more generally. Seems to me exactly the same thing applies to the UCLA faculty's opinion about the war.

         Oh, and before people e-mail me about this, let me say: Of course I expostulate on the blog about subjects on which I'm not an expert. But (1) readers know that the blog is casual commentary, not an official statement of "We, the faculty members"; (2) I hope that when I'm really outside my zone of expertise, I generally speak with suitable tentativeness, or even explicitly note my lack of expertise; and (3) when I speak outside my zone of expertise, I try to provide my arguments rather than just expecting you to rely on an authority that I cannot rightly claim. None of this applies, I think, to the statement that UCLA's biochemists, computer scientists, and drama teachers might be asked to vote on.


    IS PETER ARNETT A U.S. CITIZEN? Some people ask whether Peter Arnett is a U.S. citizen -- if he's just a New Zealand citizen, the theory goes, then there's no point even asking about whether what he did is treason (though I think that in any event the answer is no). According to the Atlanta Journal-Constitution, though, Arnett became a U.S. citizen in 1980.

         It turns out that even if he were just a permanent resident, he might conceivably be subject to a treason prosecution (see Carlisle v. United States, 83 U.S. 147 (1872)) -- the text of 18 U.S.C. sec. 2381 doesn't limit treason to citizens, but says "Whoever, owing allegiance to the United States, levies war against them or adheres to their enemies, giving them aid and comfort within the United States or elsewhere, is guilty of treason . . .," and Carlisle makes clear that permanent residents are seen as "owing allegiance" at least until they cease being permanent residents. I doubt that the U.S. government would want to resurrect this somewhat unfamiliar doctrine today, but it might conceivably happen -- though here, of course, it's irrelevant, because he's a citizen, and because (as the Eric Muller post that I cite here points out) there isn't sufficient evidence that he intended to aid the Iraqis.


    SHOCK AND APPALL: The Ba'athists major tactic -- and the only one that seems even potentially successful -- seems to be to push the allies into doing things that would appall us (and, to some extent, appall other democracies and the Arab world). By shooting from ambulances, using hospitals as arms depots, using civilians as literal shields in firefights, using suicide bombers disguised as civilians, and so on, they hope to lead our soldiers to kill more civilians; this, their reasoning goes, would create such an outcry that we would back down from our attack.

         This, in an odd way, is the flip side of the "shock and awe" campaign. Shock and appall is low-tech; shock and awe is high-tech. Shock and appall operates by bringing about the death of one's own civilians; shock and awe operates by bringing about the death of enemy leaders and military units. Shock and appall only works against Western democracies (imagine how the Chinese military, or even the Russian military, would react to such tactics); shock and awe would largely be practiced by Western democracies, because its principle of trying to inflict minimal enemy civilian deaths is largely one that's particularly appealing to those democracies.

         But what they have in common is that they are in large part psychological warfare (as the very terms "awe" and "appall," and to some extent "shock," suggest), aimed at weakening enemy morale. Morale has always been a key part of warfare, but it seems to be especially critical to the two most noted features of both sides' tactics -- shock and awe, and shock and appall. Defeating the other side psychologically is the way that we can win the war on the terms that we want. Defeating us psychologically is the only way that the other side can win the war at all.

    Tuesday, April 01, 2003


    "HARD-LEFT": A reader takes me to task for calling the L.A. Weekly "hard-left." Those who have read the paper will, I think, agree with my characterization. It's not merely a liberal paper, which calling it "leftist" or "left-wing" would have suggested; rather, I suspect that its editorial line is probably where roughly the left-most 2% (maybe at most 5%) of the country are. I was trying to be descriptive, not pejorative.

    UPDATE: My friend Jesse Walker, who knows the L.A. Weekly well, and is a student of the Left, suggests that I may be mistaken -- "hard-left," he suggests, suggests that the subjects are Marxist-Leninists, where the Weekly was generally Socialist but with a democratic rather than totalitarian perspective, which he thinks should be called "leftist." I think that these days most people think of "leftists" as merely the Jesse-Jacksonish wing of the Democratic party, which is to say a bit to the left of liberals, but not necessarily Socialists; and that with the fall of the Soviet Empire, Marxism-Leninism has faded from the American picture (it was never a big part to begin with), and "hard-left" has come to refer to the Socialists. But I may be mistaken, and in any event these distinctions quickly start verging on the absurd.

         Suffice it to say that the L.A. Weekly is not the National Review Online, so their criticisms of the anti-war movement (the subject of Clayton Cramer's post, linked to by the post below) may be surprising and therefore especially interesting to some.




    GLOBALIZATION AND FREEDOM: The Institute for Humane Studies, a non-profit, educational organization affiliated with George Mason University, is sponsoring a free workshop on Globalization & Poverty at Georgetown University, June 28-July 4. It promises to be an exciting seminar that explores issues related to globalization with an emphasis on freedom. The application deadline is April 15.

         IHS is also sponsoring an essay contest on globalization (prizes total $10,000); the submission deadline is May 1.


    HOW GOOD ARE YOUR HOAX DETECTORS? Check out the April Fool's Day Quiz. No fair googling!

    UPDATE: Ow! I got 9 out of 16 correct, almost as bad as random guessing. But that's why I try to rely on research rather than intuitions . . . .


    A man was using his free speech rights when he barked back at a police dog, a state appeals court has ruled.

    The 4th Ohio District Court of Appeals upheld the dismissal of charges against a man who answered the barks of Pepsie in this southeast Ohio city in September 2001.

    Jeremy Gilchrist, then 21, encountered the dog, which was in a police cruiser, as he walked along a street with friends.

    His attorney said he was trying to be funny when he barked back. . . .

    State law makes it illegal to taunt, torment or hit a police dog or horse. Officer Krishea Osborne testified that Gilchrist's barking made the dog "work himself up into a frenzy."

    However, Athens County Municipal Judge Douglas Bennett threw out the charges last June, saying the law violated the right to free speech. The appeals court agreed Wednesday.

    Bennett also said Gilchrist wasn't a threat to the animal or public safety because he was 30 feet away from the cruiser. . . .
    Thanks to fellow constitutional law professor Jim Maule for the pointer.


    FEAR AS NEWS, AND THE RETURN OF THE CRYPTO-AS-A-CRIME DEBATE: About two months ago I posted about the proposal to criminalize use of encryption to further a crime in some contexts, which I argued was more bark than bite. As far as I know, this proposal is now dead, which is probably for the better. However, an Associated Press story out today revives the story, by focusing on fears among privacy advocates that the proposal might come back and might apply to any use of encryption. Here's the beginning of the AP piece:
      Cheating on income taxes or neglecting to pay sales taxes on online shopping could get you five extra years in prison if the government succeeds in restricting data-scrambling technology, encryption-rights advocates fear.
      Such a measure, they worry, might also discourage human rights workers in, say, Sri Lanka from encrypting the names and addresses of their confidants, in case they fall into the wrong hands.
    (emphasis added).

         The story does not say that the privacy advocates are actually correct in their interpretation, which as I suggested in my earlier blog post, seems highly unlikely. Nor does the story mention that the proposal is considered pretty much dead, which seems important. The article does briefly note at the end that some people think that the fears are overblown, quoting Stewart Baker and mentioning me, too (ah, the power of blogs and Declan's Politech list). But that's it. Most of the story is on the fears themselves, which a casual reader could very easily think must be fully justified --or else why d the AP report them?

         My guess is that the author of this AP story also wrote the AP story that came out on Sunday titled ACLU Cyberchief Worried About Privacy. This piece is a profile of Barry Steinhardt of the ACLU, and focuses on, well, his fears. An excerpt:
      American Civil Liberties Union's cyberchief holds up his Handspring Treo, a combination organizer, phone and e-mail gadget, as he describes the many ways his government might spy on him.
      Snoops could try to tap into the calendar to see his meeting schedule. They could ask his service provider for phone and e-mail records. If Steinhardt were to upgrade to a device with global-positioning capabilities, investigators might even track his whereabouts.
      Though the government isn't necessarily doing any of this, Steinhardt fears it's just a matter of time.
    (emphasis added)

         Barry Steinhardt seems like a very interesting person, plainly worthy of a profile. And the underlying issues here are important ones. But if these fears are justified, wouldn't it be more helpful and more balanced if the stories focused on the actual scope of the laws, and the actual conduct of the government, rather than just the fears of privacy activists? This is more an issue in the crypto story than in the Steinhardt profile, I think; in the former, we can all look at the language of the proposed statute and debate what it's scope might be, making the fears less relevant, whereas in the latter, Steinhardt's fears are obviously relevant to his profile. Still, the general theme of "fear as news" seems worth watching.


    WHAT IF WE HAD GOTTEN THE U.N. ON OUR SIDE? Here's a thought experiment: Let's say that somehow -- through being more diplomatic or offering more concessions or through performing a miracle -- the Bush Administration had managed to persuade the U.N. Security Council, including France and Germany, to go along with us and to authorize a war. Seems unlikely, but let's just assume this.

         What would have been the upside? Well, it's possible, I suppose, that the Iraqis would have capitulated by now, or at least that more would have: Because the endeavor was U.N.-backed, the theory would go, rather than being seen as fundamentally a U.S. action, the Iraqis would be less resentful and more likely to capitulate. Possible, but unlikely -- the overwhelming majority of the soldiers would still have been American, the impetus for the war would have been seen as chiefly American, and the Ba'athist thugs would still be forcing the rank-and-file to fight. We'd also have Turkish cooperation, which would make it easier to push hard on the Northern front, though apparently Turkish cooperation might itself have some costs both in the war and the postwar settlement, because of the Turk/Kurd problems.

         But consider the downside. I suspect that many in the Ba'athist camp, especially at the high and middle levels, would indeed quit or switch sides if they thought the allies were sure to win; and I suspect that all but the insane in that camp realize that, if the allies keep fighting, the allies would win. The only way the Ba'athists can retain power is if the allies stopped fighting, and that's what the Ba'athists are now trying to make us do -- in particular, by using tactics that lead to more deaths of Iraqi civilians, which they hope will make the allied countries lose the stomach for the battle.

         And it seems very likely that these Ba'athist tactics would have been more effective if we'd had a broader coalition. The French and German governments, for instance, were always less enthusiastic about the war than the American and British governments; antiwar sentiment was much more entrenched among the French and German public than among the American. Even if we could have persuaded them into the prowar camp, they would never have been as firmly in that camp as we and the British are. As the Iraqi civilian deaths mounted -- and, to some extent, as the allied military deaths mounted -- it would have been much more likely that the French and Germans would have been pulled back into the antiwar side.

         Now as a purely legal matter, a French or German defection from the prowar coalition probably would not have stopped the war, unless the enabling resolution somehow so provided, especially if the war were being prosecuted under American command. Even if the French proposed a ceasefire resolution in the Security Council, America and Britain would have vetoed it.

         But as a political matter, I suspect that a French defection or more broadly a French/German defection -- or a Russian or Chinese defection, though I doubt that those countries would have defected over public unease about casualties -- would indeed have posed problems for the allies. If we went into the war trumpeting the backing of the French and other Western Europeans, then many people, including many in America, England, and Australia, might have been persuaded that such backing was really necessary for the war to be legitimate and not "unilateral." When the backing was removed, this legitimacy would be deflated; the removal of the backing would be seen as a serious setback to be added to whatever setbacks (setbacks, that is, relative to our expectations of easy, clean victory) were seen on the battlefield. By waiting for French (and to some extent German) approval, we'd be suggesting that the French and the Germans must have a voice in our war-or-peace decisions. And then when they shifted from lukewarm support for the war to opposition, people would have been more likely to listen to them about that, too -- and the Ba'athists would have been even more emboldened. (Incidentally, this observation about psychology mirrors, I think, the principle in some parliamentary procedures that a motion to reconsider a previous decision can only be made by someone who voted in favor of the original decision: The defection of a member of the majority is seen as more worth considering than the repeated dissent of the minority.)

         By saying that we don't really care that the French, Germans, Russians, and Chinese are against us, and that we can afford to leave them out of the coalition, the Administration signalled to the public (a public that is willing to in some measure respect the Administration's views, as the polls suggest) that their voices don't much matter. The French were against the war at the outset -- if various setbacks, including great Iraqi civilian casualties, turn the French even more against the war, the American (and, I suspect, British and Australian) public won't pay that much attention to them. At some point, I do think that the Ba'athist forces will break, and will conclude that surrender is the less dangerous option. The more resolute we are, the quicker that point will come. And it's easier for this resolution to be maintained by a smaller coalition of committed countries (chiefly America, England, and Australia; much as I appreciate the support of Poland, Denmark, and the others, the coalition won't come undone if they defect) than by a larger coalition that also contains lukewarm supporters among its important members.

         This, of course, is all speculation. Perhaps the benefits of a broader coalition would have overcome the costs. Perhaps if we had the French on board, they wouldn't have defected even when the going got tough. Or perhaps if they had defected, this wouldn't have at all affected the willingness of the others to remain.

         But it still seems to me quite likely that having the at-best-lukewarm supporters on the outside of this coalition makes us better off than having them on the inside.


    EMPATHY VS. HARDHEADEDNESS: Cathy Seipp has an interesting comment about this on her new blog. Here's the beginning, though it goes further:
    A basic responsibility of adulthood is to set good examples for children, which is why I so hate the current trend of grown-ups taking a "Mommy, I'm scared!" attitude . . . especially when they're teachers. Case in point: this little op-ed piece in the L.A. Times today, by a history teacher at Los Alamitos High School named Lorraine Gayer. . . .

    Gayer describes a student quaking about a strange glowing ring around the moon she'd noticed:

    Her friends, she said, assured her that the moon's eerie halo was nothing more than ice crystals. "But I don't believe them," she said. "It means something else, something more terrifying!"

    "Is it about the war?" I asked. She nodded that it was. I told her that I too was scared, and we talked about the importance of talking to friends and family members. . . .

    What about the importance of not succumbing to superstitious beliefs? History teacher Gayer could have taken this opportunity to teach a good historical lesson about that. . . .
    The proper balance of empathy and hardheadedness is a tough question, I think -- one that teachers and parents regularly have to face. Empathy is sometimes the kind thing to do; it's sometimes necessary to build or keep trust; and it's sometimes a useful tool for getting people to explain their deeper underlying problems. At the same time, empathy can reinforce bad habits, and excessive focus on empathy can prevent the teaching of self-reliance and courage; what's more, its emotional reward for the teacher/parent/etc. can skew the person's judgment about when empathy is really proper. Somehow there's got to be an optimal mix somewhere, though that tells us little about what exactly the right mix should be. I'm quite prepared to believe, though, that -- as Cathy suggests -- much modern educational orthodoxy could use a bit less of the empath and more of the hardass.


    THE DIVERSITY CHARADE: The Univerisity of Michigan School of Law defends its use of racial preferences in admissions on the grounds of viewpoint diversity. Racial and ethnic diversity, Michigan claims, are needed to ensure a quality educational experience at the law school. Yet, as I noted a few months back, there is startlingly little viewpoint diversity among the faculty at the University of Michigan Law School -- a fact some Michigan law school administrators acknowledge.

    A new study by Northwestern Law Professor John O. McGinnis and Columbia University law Student Mathew Schwartz documents the lack of viewpoint diversity at Michigan and other law schools by examining political contributions by professors. A summary of their findings is in today's WSJ (link here for WSJ Online subscribers). Here's a brief excerpt:
    We reviewed all federal campaign contributions over $200 by professors at the top 22 law schools from 1994 to 2000. During that time, close to a quarter of these law professors contributed to campaigns -- a proportion far greater than the average citizen. The proof is stark: as the Anglican church was once described as the Tory Party at prayer, the legal academy today is best seen as the Democratic Party at the lectern. America splits evenly between the GOP and Democrats, but 74% of the professors contribute primarily to Democrats. Only 16% do so to Republicans.

    At Michigan, they report, the differential is eight-to-one. Moreover, they suggest their study underreports the lack of ideological diversity because most campaign contributions to Republican candidates come from only a handful of schools.

    The lack of meaningful viewpoint diversity on law school faculties suggests that viewpoint diversity is not the primary motivation behind law school affirmative action policies. As McInnis and Schwartz note, "When law schools make no progress (and no discernible effort) in correcting the patent absence of diversity in viewpoints, it is fair to assume that their true goal is racial patterning, not educational diversity." Michigan and other schools don't admit this because racial diversity, for its own sake, does not justify the state's use of racial classifications under existing Supreme Court precedent. Yet rather than challenge these precedents, and own up to the true purpose of racial preference programs, Michigan and other law schools engage in a diversity charade.


    THE TIMES OVERPLAYS ITS HAND (AGAIN). There is a remarkable story above the fold on the front page of today’s New York Times. Its title: “Rumsfeld’s Design for War Criticized on the Battlefield.” The first two sentences: “Long-simmering tensions between Defense Secretary Donald H. Rumsfeld and Army commanders have erupted in a series of complaints from officers on the Iraqi battlefield that the Pentagon has not sent enough troops to wage the war as they want to fight it. Here today, raw nerves were obvious as officers compared Mr. Rumsfeld to Robert S. McNamara, an architect of the Vietnam War who failed to grasp the political and military realities of Vietnam."

         Provocative stuff. After such a beginning one looks forward to details: examples of these complaints. Incredibly, however, the number of such quotations furnished in the article is…one. Here it is: “One colonel, who spoke on the condition that his name be withheld, was among the officers criticizing decisions to limit initial deployments of troops to the region. ‘He wanted to fight this war on the cheap,’ the colonel said. ‘He got what he wanted.’”

         Okay, so there’s a colonel who says anonymously that Rumsfeld is fighting the war “on the cheap.” The implication is indeed critical. But this scarcely serves to support the remarkably inflammatory claims at the article’s outset. The authors tell us that the anonymous colonel was “among the officers" saying such things. Yet not a single additional quote or detail is given in the article. After the quotation mentioned above, we are told that “[t]he angry remarks from the battlefield opened with comments made last Thursday” – a reference to William Wallace’s comment that the war probably will be longer that strategists predicted. Then we are told that “The comments echo the tension in the bumpy relationship between Mr. Rumsfeld and Gen. Eric K. Shinseki, the Army chief of staff.” Then almost all the rest of the article’s 28 paragraphs are given over to a discussion of general tensions between Rumsfeld and Shinseki – tensions that existed long before the war (no other evidence of increased tension since the war is offered).

         I realize that journalists may be put into a tough position if they hear complaints from lots of officers who refuse to be quoted even anonymously. But I would have thought the right way to respond to that predicament would be with journalistic modesty. Announcing an “eruption” of complaints and comparisons to McNamara – well, those are fighting words. Their details and nuances and sources matter. It would be nice to know precisely what was said; it would be nice to know if it was said by one or two colonels or by three or four generals. As the article is written I guess we are just supposed to trust the judgment of the reporters: we are meant to assume that if we had heard what they have heard, we would have reached the same conclusions that they offer in their general description of what’s being said. Unfortunately, the New York Times has overplayed its hand so many times with respect to Iraq that I find it impossible to make that assumption. In general – but from the Times in particular – I want facts and quotations, even if not for attribution, rather than loud conclusions supported by a single colonel's anonymous gripe.

         I have no doubt that some in the military -- maybe many -- think we need more troops in Iraq. They may be right. But this article from the Times promotes a particular (and particularly vicious) spin on this possibility without reporting enough facts or details to make it convincing. Unfortunately, of course, the conclusions drawn by this article no doubt will be cited by others – particular on the Times’ editorial page (the journalistic equivalent of the "alley-oop" in basketball) – as if it were proof of something despite the meager support the piece offers in support of its headline and lede.

    UPDATE: See this interesting link for a related curiosity.

    Monday, March 31, 2003


    SO, ARNETT, TREASON? Fellow constitutional law professor Eric Muller analyzes this, quite correctly in my view. The bottom-line result is "no." Walter Cronkite airs this possibility, too, in tomorrow's New York Times, though his analysis naturally focuses on journalism, not law. (People opining in public on things that they're actually specialists in -- shocking!)


    FINDING FACTS WHEN FACT-FINDERS DISAGREE: The very interesting Nina Totenberg segment on All Things Considered about a possible split in the panel considering the campaign finance case (read the transcript here) raises what I think is a novel question of law. For the purposes of higher court review, what are the "facts" of a case when the facts are found by a panel of judges, and the individual judges disagree? The legal system has established ways of recognizing facts for purposes of appellate review in most run-of-the-mill cases. For example, in a bench trial, the normal process is for the single trial judge to decide the facts. In a jury trial, the facts are normally construed in favor of the party that won at trial.

         But what to do if Congress has created a special review procedure that requires a panel of three judges to find the facts, and the judges disagree? Are the "facts" for the purposes of higher court review the facts found by the majority of the judges on the panel? What if all three judges disagree on the facts? What if two judges agree on one point but another set of two judges agrees on another point-- should the higher court patch together the set of facts that had two votes, if there is one? Or does some other rule govern? This may have come up before: three judge trial panels are used occasionally by Congress, pursuant to 28 U.S.C. 2284. But my quick Westlaw search didn't find any cases on this question. Does anyone know of any prior cases in which this came up, or know of any statutory authority that covers it?

         UPDATE: Lawprof Rick Hasen responds over at Election Law.


    WE'RE WORTH $3055, OR $3.63/SHARE: I have absolutely no idea about what this means, or what this Fantasy Blog Shares Market is all about. I probably don't really want to know -- this is one of the many things that I will remain rationally ignorant about. But there it is, in case you find it interesting. (Thanks to TechLawAdvisor for the pointer.)


    Feigning civilian or noncombatant status to deceive the enemy is a violation of the laws of war, Human Rights Watch said today. On March 29 at a U.S. military roadblock near Najaf, an Iraqi noncommissioned officer reportedly posing as a taxi driver detonated a car bomb that killed him and four U.S. soldiers. Iraqi Vice President Taha Yassin Ramadan said at a Baghdad news conference that such attacks would become “routine military policy.”

    “When combatants disguise themselves as civilians or surrendering soldiers, that’s a serious violation of the laws of war. Any such blurring of the line between combatant and noncombatant puts all Iraqis at greater risk.”

    International law prohibits attacking, killing, injuring, capturing or deceiving the enemy by resorting to what is called perfidy. A perfidious attack is one launched by combatants who have led opposing forces to believe that the attackers are really noncombatants. Acts of perfidy include pretending to be a civilian (who cannot be attacked) or feigning surrender (surrendering soldiers also cannot be attacked) so that opposing forces will let down their guard at the moment of attack. Other examples include feigning protective status by the misuse of emblems of the United Nations or the red cross and red crescent.

    Perfidy poses particular dangers because it blurs the distinction between enemy soldiers, who are a valid target, and civilians and other noncombatants, who are not. Soldiers fearful of perfidious attacks are more likely to fire upon civilians and surrendering soldiers, however unlawfully.

    Attacks carried out by openly armed belligerents in civilian clothes, with no attempt to feign civilian status, do not constitute perfidy. Suicidal attacks by undisguised military forces, exemplified by Japanese kamikaze attacks during World War II, are not a violation of the laws of war.

    Perfidy is distinguished from ruses of war, such as mock operations, misinformation, surprises, ambushes, or the use of camouflage or decoy. Ruses are permissible acts of warfare intended to trick the enemy; they do not violate international law to the extent that they do not depend on taking advantage of an enemy’s willingness to abide by the law protecting noncombatants.


    WHAT ROBIN COOK IS REALLY CALLING FOR: A devastating plague or even brain death. Whoops, not quite, but something similar -- from the Daily Telegraph via The Command Post (Andrew Ian Castel-Dodge [Coldfury]):
    . . . Suppose . . . that British troops were indeed withdrawn in stages. What would be the immediate consequences?

    First, and most obviously, catastrophe would fall on Basra. Any citizen who had failed to fight the British would be deemed a collaborator. . . .

    The Iraqi regime has always suspected the loyalty of Basra's Shi'ites. Remove the British troops from around the city and we would see the terrible vindictiveness with which a tyranny treats those it regards as traitors.

    A second consequence would be, paradoxically, a prolongation of the war that Mr Cook finds so "bloody and unnecessary". British forces are holding a large section of the allied line. Pull them out and Saddam Hussein would pour his forces southward in an attempt to turn the American flank. Whether or not you think this war is justified, it is culpably irresponsible not to seek its swift conclusion. . . .

    Mr Cook is perfectly entitled to his view that the war ought not to have been launched in the first place. He is by no means alone in his opinion. And it is only fair to acknowledge that several of the contentions of the anti-war lobby have been realised.

    The war is lasting longer than many had hoped, and opposition to Saddam has not translated automatically into support for the invading forces. This is not to say that the case for military action has been undermined but, equally, there is no reason to expect Mr Cook to have watered down his opposition. What is extraordinary is the former foreign secretary's sense of timing.

    British soldiers in the field want and deserve home support. Most people instinctively grasp this, which is why opinion has shifted so markedly since the shooting began. The grown-up question, at this stage, is not whether we should have embarked on the war at all, but what we do next. There are bounds within which this might be legitimately debated; Mr Cook has broken those bounds. . . .


    Listeners to Swaziland's state-run radio station thought it had its own correspondent in Baghdad covering the war -- until legislators spotted him in parliament at the weekend.

    "Why are they lying to the nation that the man is in Iraq, when he is here in Swaziland, broadcasting out of a broom closet?" MP Jojo Dlamini demanded of Information Minister Mntomzima Dlamini in the House of Assembly on Monday. . . .

    Announcer Phesheya Dube gave "live reports" purportedly from Baghdad last week. Programme host Moses Matsebula frequently expressed concerns about Dube's wellbeing and once advised him to "find a cave somewhere to be safe from missiles." . . .


    WAR PHOTOS: Fellow lawprof Myron Moskovitz passed along a PowerPoint slideshow -- compiler and photographers unknown -- and I put up some of the pictures that I liked best here. (I believe that this is fair use, for complex reasons that I don't have the time to go into, but if any owners of any of the copyrights in the photos object, I'll be happy to remove them.)


    Three US troops were wounded, one seriously, after Iraqi soldiers used a Red Crescent ambulance to stage an attack in southern Iraq, an AFP correspondent reported.

    The Iraqi troops in Monday opened fire on a group of American soldiers who had approached the ambulance at a town north of Nasiriyah.

    The seriously injured soldier would be evacuated, while two others were undergoing surgery at a captured air base, a US air force source said.
    If the U.S. starts searching ambulances, and people start complaining about the inhumane delays in medical care that this causes, remember this incident (and others like it, such as the use of hospitals as depots).

    UPDATE: As several e-mails point out, there have been similar incidents with Palestinians smuggling arms or soldiers using ambulances.


    DOING YOUR JOB: A couple of people pointed me to this story:
    A Chandler attorney was kicked off the bench Thursday an hour into his first shift as a judge after he announced in writing that he would disqualify himself from all drug cases because drug laws conflict with his libertarian principles.

    By the end of the day, the Arizona Supreme Court’s chief justice stripped Marc Victor of his authority to work as a judge pro tem, which are attorneys who serve for free as temporary judges.

    "I was pretty shocked," said Victor, 34, a criminal law defense attorney who also serves on the legal committee for the National Organization for the Reform of Marijuana Laws, also known as NORML. "Either you take a certain philosophical position or you can’t be a judge."

    Judge Thomas O’Toole, who heads Maricopa County’s criminal law judges, said Victor was using the courthouse as a political platform, which was "grossly inappropriate" and "bizarre."

    "This conduct was a legal blindside," said O’Toole, who ordered Victor off the bench in the morning. "We were set up."

    Victor, a libertarian who believes drug laws are unconstitutional, applied for the position and was approved this year.

    His position with NORML was reason enough to disqualify himself from drug cases in order to prevent an appearance of bias, but he also wanted it known that his views would clash with rulings by the U.S. and Arizona Supreme Courts upholding the constitutionality of drug laws, Victor said.

    He wrote a six-page explanation that he planned to insert into the record of each drug case as a minute entry.

    Victor was originally assigned to Superior Court’s Early Disposition Court, which is for accused drug offenders, but he switched court calendars with another judge. Victor said the new Superior Court calendar had 40 criminal cases, but only about eight involved drugs, which he planned to send to the judge with whom he switched. . . .

    O’Toole said there is a chance he will report Victor to the Arizona Commission on Judicial Conduct, the panel that polices judges.

    "It’s a real chilling kind of a thing for one judge telling another judge what he can say in a minute entry while he’s recusing himself," Victor said. "It’s another thing if I decided to sit on drug cases and started dismissing them."
         If you're appointed to do a job, and then you tell your superiors that you won't do part of the job, they're entitled to dismiss you; there's nothing shocking about that. What Victor did wasn't just "taking a certain philosophical position" -- he also refused to work on a large set of cases (20% of the calendar).

         Now to the extent that the dismissal was motivated not just by the recusal but also by the judge's desire to use his job as a way to spread certain views about the drug laws (by issuing a 6-page order criticizing the drug laws in every drug case), the matter becomes more complex. Judges are generally entitled to express their views about the law in their opinions; in fact, they're obligated to do so. I would assume the same applies to judges pro tem. On the other hand, certainly governors and Presidents are entitled to appoint judges based partly on what they've said in their past opinions on other courts. It's likewise possible that appointing authorities (including judges who appoint pro tem judges) have the power to consider a judge's opinions in deciding to dismiss a judge who doesn't have life tenure or at least some sort of fixed term -- it's an interesting and complex question. (Aside: I don't think that the Arizona Commission on Judicial Conduct would have any basis for disciplining Victor, since at this point it isn't clear that he did anything unethical, unless the allegation of a "set up" is based on claims that Victor was somehow not candid in explaining his views when he was first selected, a matter on which we don't have any specific facts).

         But in any event, Victor can't have it both ways: He can't insist on keeping his job, and at the same time on refusing to do a considerable part of it. Some court systems might let judges pro tem pick and choose the cases they want to work on -- but they have no obligation to do so, and can properly insist that judges do the work (except for a few cases in which they may inevitably have to be recused, for instance if they know the parties) that they're appointed to do.


    GUN CONTROL DEBATE IN THE BOSTON AREA: I'm organizing a debate on Gun Control and the Second Amendment at Harvard Law School next Tuesday (April 8). It's co-sponsored by my Target Shooting Club and the Harvard Law School Democrats. Well, here's the news in more eye-catching form:

    Gun Control and the Second Amendment
    a debate featuring

    Tuesday, April 8, 2003
    4 - 6 p.m.
    Austin North classroom, Harvard Law School
    Free and open to the public

    I know what you're all thinking -- yes, it's that Eugene Volokh. It's going to be partly on constitutional issues, partly on policy -- given the participants, it should be a fun event. We want this event to be well attended, so please spread the news far and wide, and come see us if you're in the Boston area.


    D.C. BLOGFEST: Eve Tushnet is organizing a blogger/blog reader gathering at the Tastee Diner in Silver Spring, MD, on Saturday, April 5 starting at 8:30 pm. I'm looking forward to stopping by, and if you're in the D.C. area, you should, too. Eve has more details and directions.


    MORE FACTS ON THE COLUMBIA "TEACH-IN": Dan Drezner has some quite damning information, including a letter to the editor from De Genova himself (the "million Mogadishus" guy) in which De Genova tries to "contextualize" his comments, with striking results.


    LEADERSHIP: One aspect of political leadership is the ability and willingness to lead the public in a direction in which it would not otherwise have been willing to go. Successful political leadership is when the public eventually comes around to the leader's views, because they're persuaded either by the leader's arguments or by the success of the leader's policies.

         Leadership, like many other political practices (e.g., dissent), is not inherently good. It's bad when a leader who leads people into an evil or ultimately unsuccessful policy. Likewise, politicians following the polls isn't inherently good. Doing the public's will certainly has value in a democracy, but when a follower politician follows the public into an evil or ultimately unsuccessful policy, that's bad, too.

         But the usually positive connotation of "leadership" does reflect an important point -- that the public's views are not fixed, and that just as public attitudes may and should change political decisions, so the consequences of political decisions may and often should change public attitudes. And therefore politicians who want reelection and the respect of future generations (two factors that, along with the desire to serve their country, are the incentives that our system uses to get politicians to behave well) should do what they think is right, and hope that the success of their actions will bring the public along.

         Moreover, such action is fully consistent with the democratic theory of government by the people: Democratic theory has to recognize that most people don't have the time, the knowledge, and the temperament to make complex policy decisions, and they elect politicians in part (though only in part) to lead them. Incidentally, different political structures, I suspect, make leadership more or less easy -- my guess, just based on theory and not on empirical studies, I'm afraid, is that leadership is easier in a system where elections occur at fixed times than in a system where elections can be called whenever a coalition falls apart, or in a system where there's an easily triggered popular recall procedure. As The Federalist (No. 71) puts it, four years provide a time in which "a man indued with a tolerable portion of fortitude . . . might reasonably promise himself, that there would be time enough before [the end of the term] arrived, to make the community sensible of the propriety of the measures he might incline to pursue."

         Shifting to the concrete: One problem with the media obsession with daily opinion polls about the war (and I hope that it's only a media obsession, and not an Administration obsession, which would be far worse), and with repeated questions about "what would the public think if we don't win in the next week," is that they miss this important point -- even though this point is especially important during a war that will in any event last for at most several months (though I hope that won't happen) rather than, as Vietnam did, several years. The Administration must realize that they will be judged not based on what the public thinks on March 31, 2003, but on what the public thinks after the war is over.

         Once the war is over, the public will know a lot more. I suspect, for instance, that we'll uncover lots of powerful evidence of Iraqi chemical, biological, and possibly even nuclear programs. We'll uncover lots of powerful evidence of Iraqi atrocities against Iraqi civilians that will put the admittedly regrettable loss of civilian life to allied bombs into perspective. We will, I think, find that the reason for the Iraqi opposition was in fact primarily the threat of death from their own security forces, and not the average soldier's patriotic zeal. Likewise, once the privations of the war are over, even those Iraqis who are unhappy with it now will be considerably more happy.

         Of course, it's also possible that once the war is over, we'll find ourselves with an impossible task of reconstructing Iraq in the face of continuing seething hostility and a culture that's unsuited to democracy -- I doubt either of those elements will be the case, but it's possible. We may find ourselves facing increased terrorist attacks. We may lose vastly more of our own soldiers, and end up inadvertently killing vastly more Iraqi civilians, than seems likely right now. We might find that Saddam really didn't have any weapons of mass destruction (highly doubtful, but theoretically conceivable). But whichever scenario is accurate, and whatever the war reveals, the Administration will be judged in November 2004 (and even many months before Nov. 2004, in the various legislative battles that it will have to fight before then) based on the outcome of the war, and not based on the snapshot that we see today. Therefore, both the right and the instrumentally rational thing for the Administration to do is to exercise leadership, rather than to follow public attitudes, or to materially change its policies in order to get short-term changes in public attitudes.

         All this may seem obvious, but I do think that a lot of people are missing it. Media organizations do daily polls; because they do them, we read them; because we read them, we attach significance to them. The poll in March 2003 is much less important than what the attitudes in July 2003 will be -- but we have the March 2003 numbers in front of us, and can only guess at the July 2003 numbers, so we overvalue the irrelevant data that's in front of us because the relevant data is necessarily absent. I just hope that the Administration isn't making the same mistake.


    FISH REDUX: A while ago, a bunch of us blogged about a Stanley FIsh column in the Chronicle about a university's obligations not to confuse itself with a political party. In the interest of completeness I'll link to this "FrontPage" symposium ostensibly about the column and including Fish himself. It's not particularly enlightening; David Horowitz electronically yells a lot. But just in case you're interested. (Link via


    THE WHEEL OF HISTORY: Marxism claims that societies evolve from feudalism to capitalism to socialism to Communism. North Korea has long shown that attemps to create Communism can end up returning to feudalism, or at least to hereditary monarchy (Kim Il Sung and Kim Jong Il). Now we see them going many centuries further back, to an approach straight out of the Bible:
    All triplets in North Korea are being forcibly removed from parents after their birth and dumped in bleak orphanages.

    The policy is carried out on the orders of Stalinist dictator Kim Jong-il, who has an irrational belief that a triplet could one day topple his regime.

    The number three is thought to be auspicious in North Korea and triplets are revered. It is believed they are likely to rise to positions of power, which accounts for Kim's insistence that they are all raised in state-run orphanages, where their development can be controlled. . . .

    "There is no doubt that the policy is compulsory and universal," a veteran Western diplomat told London's Daily Telegraph newspaper.

    "It may be officially atheistic and Stalinist, but North Korea essentially operates a state religion infused with superstition, astrology and a personality cult that glorifies Kim as a unique individual.

    "You don't take any chances with rivals in that system," the diplomat said.

    The children are housed in "triplet rooms", which visitors describe as bare but clean. They are said to receive good foreign-aid food, but none of the love and affection bestowed on most children.

    A member of a foreign delegation that visited one such orphanage said they were greeted with a vision of desperate isolation and sadness.

    The triplets were placed together in one room, with many of them rocking backwards and forwards in an almost trance-like state.

    "Our people were stunned into silence," the delegate told the Telegraph.

    A pediatrician who studied evidence from the visit diagnosed severe emotional trauma. . . .
    From The Herald Sun (Australia), but much the same story appears in the March 9 Times (London), Thanks to InstaPundit for the pointer.


    HOAX: I saw yet again this little story being sent around on e-mail. Folks, as best I can tell, it's a hoax (see Snopes). As Fire Upon the Deep (Vernor Vinge) put it, "They don't call it the Net of a Million Lies for nothing." Before you pass around stories like this, check them out; the cuter they are, the less likely they are to be true. To give you a purely selfish perspective -- I generally support private gun ownership, and I'm glad there are lots of people speaking out in favor of it; but the more myths pro-gun people spread, the less credible we'll be when we actually have accurate information that we want to pass around.
    This is a portion of National Public Radio (NPR) interview between a female broadcaster and US Marine Corps General Reinwald who was about to sponsor a Boy Scout Troop visiting his military installation.

    INTERVIEWER: So, General Reinwald, what things are you going to teach these young boys when they visit your base?
    REINWALD: We're going to teach them climbing, canoeing, archery and shooting.
    INTERVIEWER: Shooting! That's a bit irresponsible, isn't it?
    REINWALD: I don't see why, they'll be properly supervised on the rifle range.
    INTERVIEWER: Don't you admit that this is a terribly dangerous activity to be teaching children?
    REINWALD: I don't see how. We will be teaching them proper rifle discipline before they even touch a firearm.
    INTERVIEWER: But you're equipping them to become violent killers.
    REINWALD: Well, you're equipped to be a prostitute, but you're not one, are you?
    The radio went silent and the interview ended.
    UPDATE: Several people e-mailed about the David Deming incident, described here. Deming is a University of Oklahoma professor who wrote a letter -- that I suspect was loosely based on this tale (though he certainly didn't claim the story was real) -- to a student newspaper; this led several students to file a sexual harassment (!) complaint, though fortunately ultimately the charges were dismissed on First Amendment grounds. The Center for Individual Rights did some good work in this case. I'd followed the story quite closely, and just last week was in fact citing this in an anti-speech-code memo I was writing. I didn't think this incident was originally worth mentioning in this post, but since some people have e-mailed me about it, I thought I'd add an update.


    EXPLAINING STUDENT VIEWS ABOUT THE WAR IN IRAQ?: The Washington Post has an interesting article today that tries to link student views about the war in Iraq to the teachings of conflict resolution courses taught in schools. I'm not sure I buy the theory, but it's an interesting idea, and I thought I would pass it on. An excerpt:
    . . . one is struck by the lens through which [students] view the war: the way they examine arguments pro and con, assume that none of the players is irredeemable, and fault President Bush and his advisers for poor communication skills.
      "Americans are dictating for the Iraqi people what a 'good life' looks like," says Puneet Gambhir, a sophomore at Thomas Jefferson High School for Science and Technology in Alexandria. "Why didn't we communicate directly with the Iraqi people, ask them what a government for their families and friends would look like, allow them to buy into our dream? We never created buy-in."
      Classic conflict-resolution talk.


    AESTHETICS: Virginia Postrel's blog has a stylish new look.

    Sunday, March 30, 2003


    NAT HENTOFF ON WHY HE DIDN'T MARCH: Noted liberal and civil libertarian Nat Hentoff, writing in The Village Voice:
    I participated in many demonstrations against the Vietnam War, including some civil disobedience -- though I was careful not to catch the eyes of the cops, sometimes a way of not getting arrested. But I could not participate in the demonstrations against the war on Iraq. As I told The New York Sun in its March 14-16 roundup of New Yorkers for and against the war:

    "There was the disclosure . . . when the prisons were briefly opened of the gouging of eyes of prisoners and the raping of women in front of their husbands, from whom the torturers wanted to extract information. . . . So if people want to talk about containing [Saddam Hussein] and don't want to go in forcefully and remove him, how do they propose doing something about the horrors he is inflicting on his people who live in such fear of him?"

    I did not cite "weapons of mass destruction." Nor do I believe Saddam Hussein is a direct threat to this country, any more than the creators of the mass graves in the Balkans were, or the Taliban. And as has been evident for a long time, I am no admirer of George W. Bush.

    The United Nations? Did the inspectors go into the prisons and the torture chambers? Would they have, if given more time? Did they interview the Mukhabarat, Saddam's dreaded secret police? . . .

    The United Nations? In 1994, Kofi Annan, then head of the UN's peacekeeping operations, blocked any use of UN troops in Rwanda even though he was told by his representative there that the genocide could be stopped before it started.

    Bill Clinton refused to act as well, instructing the State Department not to use the word genocide because then the United States would be expected to do something. And President Clinton instructed Madeleine Albright, then our representative to the UN, to block any possible attempts to intervene despite Kofi Annan. Some 800,000 lives could have been saved.

    The United Nations? Where Libya, Syria, and Sudan are on the Human Rights Commission? The UN is crucial for feeding people and trying to deal with such plagues as AIDS; but if you had been in a Hussein torture chamber, would you, even in a state of delirium, hope for rescue from the UN Security Council?

    From Amnesty International, for whom human rights are not just a slogan, on Iraq: "Common methods of physical torture included electric shocks or cigarette burns to various parts of the body, pulling out fingernails, rape. . . . Two men, Zaher al-Zuhairi and Fares Kadhem Akia, reportedly had their tongues cut out for slandering the president by members of Feda'iyye Saddam, a militia created in 1994. The amputations took place in a public square in Diwaniya City, south of Baghdad."

    As John Burns of The New York Times wrote in January: "History may judge that the stronger case [for an American-led invasion] . . . was the one that needed no [forbidden arms] inspectors to confirm: that Saddam Hussein, in his 23 years in power, plunged this country into a bloodbath of medieval proportions, and exported some of that terror to his neighbors." . . .
    Thanks to reader Chris Coyle for the pointer.


    AUSTRALIA AND THE ANGLOSPHERE James Bennett responds to my TNR piece. I should note that I didn't attribute the Anglosphere-determines-alliances view to Bennett. Andrew Sullivan has put a view like that forward, and so have sundry NR commentators.

    This page is powered by Blogger.