Saturday, August 7, 2004

Advice for Law Students:

Classes will be starting up at law schools around the country in a few weeks, and that means there are lots of nervous incoming 1Ls out there trying to prepare themselves. Fortunately, the blogosphere has lots of good advice. GW Law blogger Ambivalent Imbroglio has started up Blawg Wisdom, a new blog that promises "advice about law school from those who are in it." Blawg Wisdom collects links to posts from around the blogosphere that offer advice on law school. If you're an incoming law student, check it out. On a related note, the bloggers at de novo are looking for reports from current law students about their summer experiences; they promise a symposium on the topic later in the month.

Atkins Dieters Rejoice!

Florida potato farmers are growing low-carb potatoes. Developed to be disease-resistant, the HZPC potato has 30 percent fewer carbs than regular spuds. Another interesting tidbit, the Florida farmers wanted to sell the potatoes as "SpudLite," but were afraid Anheuser Busch might sue. So instead the potatoes will be marketed under the name "Florida SunLite."

Update:Speaking of low-carb products, Alex Tabarrok discovers the "virtues" of low-carb organic bread.

American Cancer Sociey Ad-Hominem:

Radley Balko nails American Cancer Society board member David Seaman for an erroneous ad hominem attack against the Cato Institue's Robert Levy for opposing FDA regulation of tobacco. It's hard to charge the Cato Institute with being bought and paid for by Philip Morris (aka Altria) when the company takes the other side. (NRO's Andrew Stuttaford has more thoughts on ACS here.) What many miss in this debate is that Philip Morris/Altria, as the dominant cigarette company, supports FDA regulation becuase it will drive up costs and reduce competition. As public choice economists have shown, government regulation is often the surest means to cartelize an industry, and that almost always benefits the dominant player.

Friday, August 6, 2004


I'm not an expert on the subject, but I've long thought that current redistricting practices are outrageous. Jeff Jacoby has a nice piece criticizing them, though I'm not sure how well his proposed solution would work.

Thinking well on one's feet:

An interesting tidbit I just read, in an article on oral argument by the late California Supreme Court Justice Stanley Mosk:

A small community in California passed a local ordinance prohibiting fortune telling within its city limits. A fortuneteller named Fatima Stevens brought a lawsuit seeking an injunction against enforcement of the ordinance. Obviously there were serious First Amendment problems with the ordinance, which was a total prohibition -- not a regulation or a licensing -- of the activity. However, the fortuneteller lost in the courts below, and our Supreme Court granted a hearing.

As counsel for the fortuneteller rose for oral argument to present her case, Chief Justice Lucas said, "Counsel, you have us at a disadvantage."

The attorney was perplexed. "Why, Your Honor?"

"Well," said the Chief Justice, "hasn't your client told you how this case will ultimately turn out?"

On its face this was an irrelevant joke; but it was, intentionally or not, sending a subtle message that fortune-telling is indeed bunk, and that even the lawyer can't be taking it seriously -- something that would have dovetailed well with the city's arguments that fortune-telling is fraudulent and should be banned. Dangerous stuff for the lawyer. Here's how Mosk describes the lawyer's artful dodge:

I could not have conceived of an appropriate response to that judicial hand grenade. But this attorney was up to the challenge. "No, Your Honor," he replied. "You must remember I did not consult my client for advice. She consulted me."

The fortune-teller won.

Computer Crime Case Update List:

I started a free computer crime case update service back in January, 2002. Whenever a notable new case is decided in the area of computer crime law, I send out an e-mail to listmembers describing the case, excerpting the key analysis, and offering some commentary. The service now has about 650 subscribers, and averages about one e-mail a month. Subscribing is a pretty good way to stay up to date on the latest developments in computer crime law. The subscription price is hard to beat, too.

  If you want to learn more about the list, you can view the archives of the service here. Check out a sample e-mail here. Finally, if you are interested in joining the list, you can do so from this page.

Taverns for Tots:

Prof. Bainbridge has the scoop on this interesting case (which turns out to be more about smoking than alcohol as such).

More on Michelle Malkin's book:

I'm just delighted that Eric Muller's visit here coincided with the release of Michelle Malkin's book. (It was indeed a coincidence; I hadn't thought about that when I invited him -- I was going to a conference and didn't think I was going to be able to blog as much as I normally do, and Eric had been a great guest-blogger in the past, so I asked him again.)

I'm also delighted to report that Michelle has responded in detail to Eric's posts, which I think is much to her credit; it would be great if more authors were willing to promptly and publicly react to criticism this way. Eric in turn has responded here, here, and here (and, I suspect, might be posting still more here).

Too sensitive for politics:

Yes, I'm against political vandalism; yes, I'm against anti-Semitism; yes, I can understand how such incidents can trigger connections to past horrors. But somehow, if this story is correct, I don't think this candidate is quite ready for public life:

Someone defaced about 50 campaign posters belonging to David Heller in San Francisco's Richmond District.

"I couldn't believe it. I mean, I couldn't handle it," said Heller. "The next day, I just broke. I just cried. The whole day, I couldn't handle it."

Heller, who is Jewish and owns a beauty shop, is running for a seat on the Board of Supervisors.

He told CBS-5 he lost all of his relatives on his father's side to the Nazis during World War Two.

Heller is using the colors of the Israeli flag for his posters. . . .

Look, if you really have to cry, cry — but don't tell reporters about it.

Thanks to Dan Gifford for the pointer.

UPDATE: Reader Andrew Arnold points to this story, which confirms that the vandalism was indeed anti-Semitic: "The signs were taped to the inside of the windows of neighborhood businesses, and someone used black marker to scrawl a swastika and Star of David on the outside of the glass, over Heller's face." I stress again that this is hateful stuff. But even if it makes one want to cry for a day, it seems best to resist that -- and, if one doesn't resist, at least not publicize the crying. There are lots of ways of fighting anti-Semitism; public tears, especially when one is running for public office, are among the less effective.

Hey, look at that.

A big NYT article about my hometown, and one of my favorite places, Portsmouth, NH. And, unlike most mentions of Portsmouth in the national press, it's not about the presidential primary, and so it gets to write about Portsmouth at its summertime best rather than in the bleak midwinter.

It's a good article that hits many of the highlights. It mentions the downtown grease-shrine, Gilley's (where I ate an awful lot of hot dogs and hamburgers as a kid), though not the downtown sub-shrine, Moe's Sandwich Shop.

Unforgivably, the reporter, faced with the problem that "Although it's not difficult to find a good place to eat in Portsmouth (it has more than 100 restaurants), it may be difficult to select just one, with choices ranging from fish joints to French bistros," opts to leave town entirely. Instead visitors should try The Dolphin Striker, Cafe Mirabelle, The Library Restaurant (where my brother had his wedding reception), or The Oar House. Stop in for a microbrew at the excellent and atmospheric Portsmouth Brewery (smoke-free without legislation!) A new development since I moved away is the arrival of a good sushi place, Sakura, downtown in a space that used to be my grandfather's auto-parts store.

A less-welcome change is that you now need an appointment to physically visit the Portsmouth Bookshop, with one of the best collections of old and rare maps I know of in the U.S., and a very fine used book collection as well. But they've retained their (lovely) physical store in the Buckminster mansion despite shifting much of their business to the web-- so, with an appointment, you can still go see the selection. When I was a kid Portsmouth had really surprisingly good used bookstores; but of my two favorites, The Book Guild closed entirely last year and the Portsmouth Bookshop has shifted to this mostly-online model.

One other item the article didn't mention that might be important to anyone planning a trip:the Blues Festival is August 28 this year.

RFK Jr. -- The Green Michael Moore?

Grist magazine's Amanda Griscom called Robert F. Kennedy Jr's book attacking the Bush Administration's environmental record "the green community's Fahrenheit 9/11." Griscom meant this as a complement -- but Moore's critics might beg to differ. Based on some recent posts, it seems the contributors to The Commons Blog -- a relatively new group blog focusing on "Markets Protecting the Environment" -- are intent on showing Kennedy is a factually challenged as the fake-umentary filmaker from Flint.

GM Trees - Boon or Bane? The New York Times ran this interesting story about efforts to genetically engineer trees to address various environmental problems.
In laboratories around the country, researchers are using detailed knowledge of tree genes and recombinant DNA technology to alter the genetic workings of forest trees, hoping to tweak their reproductive cycles, growth rate and chemical makeup, to change their ability to store carbon, resist disease and absorb toxins.

The research is controversial. Environmentalists and others say that because of the large distances tree pollen can travel, altered genes will migrate to natural populations, leading to damage to ecosystems and other unforeseen consequences.
Environmentalists are torn by the research because they generally oppose modern genetic engineering (ignoring the fact that all crops and many tree species are already the result of older genetic modification techniques, ranging from traditional cross-breeding to radiation-induced mutation). Yet thoughtful environmentalists are also struck by the potential to use such techniques to address environmental concerns.

Imagine if the trees needed for paper and pulpwood were grown intensively, like crops, on a fraction of the acreage now subject to timber cutting, reducing the pressure to clear forest land. If this led to an increase in forest area and species habitat, would it not be a good thing? This is actually one of the aims of one of the scientists discussed in the article (Oregon State's Steven Strauss). I've met Dr. Strauss. As I understand it, he began his research as a committed environmentalist seeking to use modern GM techniques for environmental purposes. But the attacks on GM by extreme environmentalists -- including the fire-bombing of some of his research -- has made him reconsider the "environmentalist" label. While Dr. Strauss and his colleagues seeks real environmental solutions, many environmentalists have become modern-day Luddites, more concerned with the technology used than net environmental impacts. In my opinion, this divide between environmentalists and scientists is unfortunate. It obstructs the pursuit of pracitcal solution to real environmental problems, yet it is all too common in modern environmental policy.
Keyed Up:

So it looks like Barack Obama (disclaimer I've disclaimed before: my state Senator as well as a University of Chicago faculty colleague) will have a Republican opponent after all; Alan Keyes is reportedly going to run. An out-of-stater who denounced Hillary Clinton's carpetbag run as an assault on federalism, a very, very religiously conservative black Catholic, and the banner-carrier for an Illinois GOP that has been shattered by corruption, electoral collapse, and 7-of-9, Keyes starts with a smaller natural base of voters than any major-party candidate I've ever heard of. Moreover, he shores up one of Obama's great strengths: his appeal to white ethnic working-class voters who wouldn't vote for a candidate who they think is really black. Keyes' Catholicism and his party make him unappealing to black voters, but he looks all too really black to those white voters.

As everyone knows, Keyes also comes with two major assets: his mind and his voice. When he doesn't go off the deep end (which he does with some frequency, and has done more as time goes on-- his 2000 run for the presidency sounded loonier more often than his 1996 run), Keyes is is very smart, a great speaker, and one of the best debaters around. Of course, all of that's true of Obama too. There's a chance that Keyes-Obama debates could make for the political television of the year, with Lincoln-Douglas parallels getting drawn by the media: the two best debaters in the country are running for Illinois Senate, and this time, instead of debating slavery, they're both black! You get the idea. Hype notwithstanding, they could be really marvelous debates-- again, assuming Keyes doesn't go off the deep end and start screaming at Obama for being a baby-killer or moshing or something.

Anyway, I dug around and found out that Keyes (who has of course never won an election, and has lost by progressively bigger and bigger margins as his campaigns become extended ads for his radio show instead of real campaigns) actually is entitled to call himself "ambassador." It's the title he uses, but it's been noted that

Though Keyes is sometimes called "Ambassador Keyes," the title can be a bit misleading: he served as the American ambassador to the United Nations Economic and Social Council, not as ambassador to the U.N. as a whole or to any individual nation.

This struck me as odd. People who are diplomats (and can you imagine Keyes as a ddiplomat?) but not ambassadors don't just get to call themselves ambassadors. If you're the US representative on a UN committee, that's what you are, right?

It turns out that a variety of diplomats who aren't ambassador to "the U.N. as a whole or to any particular nation" are appointed "with the rank of Ambassador." Reagan so nominated Keyes on August 22, 1983. Appointments with "the rank of ambassador" require Senate confirmation. It's apparently a pretty common honor to extend to high-level diplomats, including representatives to UN bodies Clinton appointed some 40 people with the rank of ambassador. (I couldn't find similar lists for prior presidents, but there are a lot of Republicans with "rank of ambassador" on their resume. In the 70s, prior to the full normalization of relations with mainland China, U.S. liaisons to Beijing including George H.W. Bush were appointed with the rank of ambassador. Richard Haass currently has the rank of ambassador for his service as Director of Policy Planning at State, Robert Zoellick for being US Trade Representative, and Randall Tobias does for being Global AIDS Coordinator. Richard Armitage held it for a year of coordinating aid efforts to the then-newly independent post-Societ states. And John Negroponte was "Deputy Assistant Secretary of State with the rank of Ambassador for Oceans and Fisheries Affairs" under Carter. I assume that, for many of these posts (like USTR), appointment with the rank of ambassador is a matter of course. Who knew?

Well, lots of people, I suppose, but I didn't.

Thursday, August 5, 2004


My time here at the Volokh Conspiracy is short. Eugene invited me to guest blog yesterday and today; at midnight I turn into a pumpkin and must return to my home at IsThatLegal. I always appreciate and enjoy the chance to guest-blog over here. I know I've been pretty, uh, prolific this time around, and I appreciate the indulgence of those regular Volokh Conspiracy readers who couldn't give a flip about the Japanese American internment.

I'll close with a final observation about "In Defense of Internment." In Michelle's final chapter (page 150), she details what she sees as the many important similarities between the activities of al Qaeda and its supporters today and the activities of Japanese Americans sixty years ago:

"There are parallels between World War II and the War on Terror, but the antiprofilers don't make the proper comparisons. The Japanese espionage network and the Islamic terrorist network exploited many of the same immigration loopholes and relied on many of the same institutions to enter the country and insinuate themselves into the American mainstream. Members of both networks arrived here on student visas and religious visas. Both used spiritual centers--Buddhist churches for the Japanese, mosques for the Islamists--as central organizing points. Both used native-language newspapers to foment subversive tendencies. Both leaned on extensive ethnic- or religious-based fundraising groups for support--kais for the Japanese, Islamic charities for Middle Eastern terrorists. Both had operatives in the U.S. military. Both aggressively recruited American citizens as spies or saboteurs, especially (but not exclusively) inside their ethnic communities. Both were spearheaded by fanatics with an intense interest in biological and chemical weapons."

(Michelle might also have noted in this passage that American citizens of Muslim faith and Arab ancestry have actually pled guilty to charges of attending al Qaeda training camps (the Lackawanna, NY cases) and seeking to levy war against the United States in Afghanistan (the Portland, OR cases). Those, it would seem, are even clearer instances of threat to the United States by American citizens than the handful of vague references about Kibei and/or Nisei in the MAGIC cables.)

Michelle's purpose in writing the book, you'll recall, was to "offer a defen[se] of the most reviled wartime policies in American history: the evacuation, relocation, and internment of people of Japanese descent during World War II." (p. xiii) "Even with the benefit of hindsight," she argues on page 80, "it is not at all clear that mass evacuation [of all people of Japanese ancestry, including U.S. citizens] was unwarranted." Why? Because information (especially from the MAGIC decrypts) about subversive activities by Japanese Americans (which, she notes, happen to be just like the sorts of subversive activities that Arabs and Muslims are engaging in) provided a "solid rationale for evacuation." (p. 141.)

So here's what I don't get.

On page xxx of the book's Introduction ("A Time To Discriminate"), Michelle tells us to "[m]ake no mistake": she is "not advocating rounding up all Arabs or Muslims and tossing them into camps."

She's not?

John Perry Barlow has figured out a plan to "throw [the Republicans] off their game" at the upcoming GOP convention in New York City:
  I propose the following: I want to organize a cadre of 20 to 50 of us. I want to dress us in suits and other plain pedestrian attire and salt us among the sidewalk multitudes in Republican-rich zones. At a predetermined moment, one of us will produce a boom-box and crank it up with something danceable. Suddenly, about a third of the people on the sidewalk, miscellaneously distributed in the general throng, will start dancing like crazy and continue to do so for for about a minute. Then we will stop, melt back into the pedestrian flow, and go to another location to erupt there.
  Perhaps if we enlist enough troops, we can have several platoons simultaneously exploding into dance around Manhattan, so there will be absolutely no way to tell where we might strike next.
  I promise you, this will make the Republicans uncomfortable. They will return to their partisan duties with a sense of disquiet that will slightly but surely fuzz the intensity of their focus.
What Barlow is missing is that GOP convention-goers actually expect New Yorkers to do stuff like this. Frequently. At all hours of the day and night. To be really subversive, Barlow should get 20 to 50 people together, dressed in pedestrian attire, and then have them act perfectly normal. That's right; don't do anything weird at all. The Republicans will have no idea what to make of it. I'm sure that will really throw them off their game.
IN DEFENSE OF INTERNMENT, Part 9: Robinson ends where I began, with some comments about Michelle's method:

Now that I have covered Malkin's central arguments as fallacious, I would like to step back and look at the work as a whole. I do appreciate the author's willingness to take an unorthodox position, and it is good to put the wartime treatment of the Japanese Americans in perspective—I was not aware that GIs were housed in the stalls at Santa Anita after the Japanese Americans had been confined there. Still, Malkin's book is not a useful work of history, but a polemic that relies for its attraction on sensationalism and overstatement. The author lumps everyone who has ever written on the wartime treatment of Japanese Americans into a single homogenous (and self-interested) group and does not discuss their different arguments, or indeed, their disagreements with each other. Such conspiratorial thinking detracts from the merit of what the author does get right. (A minor but indicative point: in one of the two places where my work BY ORDER OF THE PRESIDENT is cited, the author refers to me as "Canadian historian Greg Robinson." Since the matter of my nationality has no relevance to the point at hand I can only interpret its inclusion as a subtle attempt at discrediting me as a foreigner—in fact I am a born and bred New Yorker, with undiluted fealty to my native land).

The work also suffers from the author's perceptible shoddiness of method. Many of the author's contentions, and particularly her generalizations about popular perceptions (such as that the government confiscated Japanese American property), are barren of footnotes. In her section on the MAGIC intercepts, the author takes over David Lowman's work to the point of plagiarism. Not only does she cite the same MAGIC cables, she even indulges in the same selective quotation of sources such as Roberta Wohlstetter and John Costello in which Lowman indulged. For example, she cites military historian John Costello (p. 37) as saying that "The rising current of fear on the West Coast and the evidence from the MAGIC intercepts were important factors in the President's decision to sign Executive Order 9066," but fails to add Costello's statement almost immediately after that sentence that Executive Order 9066, "enabled the military to start to round up 120,000 innocent Japanese Americans." Thus the author ignores the fact that Costello regarded the Japanese Americans as victims, not instigators, of the Order.

Indeed, if I have been able to reply so quickly to Malkin's contentions, it is because ALL the information she presents on MAGIC was featured in Lowman's Congressional testimony twenty years ago, and were addressed in detail at that time. (Many of the MAGIC excerpts and testimony as to Japanese spies were old even then—they had first been made public in 1946, during the Congressional Committee investigation into the Pearl Harbor attack). The author also has a tendency to contradict herself. For example, she states that the opinion of FBI Director J. Edgar Hoover on the Japanese Americans was not reliable or relied upon, since he had no access to the MAGIC intercepts that she claims demonstrated spying by Japanese Americans. (In fact, Hoover received detailed summaries of MAGIC information from the Office of Naval Intelligence, whose members likewise opposed mass evacuation). On the other hand, she is quick to quote any negative comment on Japanese Americans by the FBI or the ONI. Similarly, she implies on pages 77 and 126 that the push for evacuation came from President Roosevelt, since McCloy told DeWitt that he had specifically authorized the evacuation of citizens. Yet on page 81 she states that FDR was too busy with directing the war effort to think of such matters, and properly delegated all decisions to Stimson.

I suspect that in some part these contradictions and this cutting and pasting come from the fact that book was written very quickly—the author herself says that she wrote it over a single year in her spare time (presumably not very plentiful, given her daily columns and other work in media). However, much of it clearly is a result of the author's procrustean effort to stretch facts to fit an ideologically predetermined thesis. As a result, there are certain basic facts that Malkin dares not even touch. She does not explain why the Canadian government, whose leaders did not have the benefit of the MAGIC cables which "proved" the existence of Nisei espionage networks, nonetheless went through the process of relocating and incarcerating their ethnic Japanese residents. Furthermore, she does not explain why immediate loyalty hearings were not granted to people of Japanese ancestry, whether citizens or aliens, the way that they were to all other enemy aliens, just as they eventually were to Japanese Americans.

Most of all, the author does not deal at all with the long, extensive, and very well documented history of anti-Japanese-American racism on the West Coast. This absence is so glaring as to constitute bad faith on the part of the author. Malkin tries desperately to get around the question of racism by locating the entire decision in the White House, and in a vacuum. She must be aware that trying to discuss the process of evacuation without mentioning the long campaign by Californians to get rid of the "Japs" or the political pressure on the Administration from West Coast congressmen and commercial groups is unreal--like trying to discuss the origins of the Fourteenth Amendment without bringing in slavery.

IN DEFENSE OF INTERNMENT, Part 8, wherein Professor Robinson further disassembles Michelle's assertion of a supposed military necessity to evict and detain all Japanese Americans (but not all German or Italian Americans):

The author's case for military necessity--she claims there was a "West Coast under siege"--is fatally flawed, as it reposes on her dramatic account of the shelling by Japanese submarines of a refinery in Goleta, California (pp.7-8), which she called "the first foreign attack on the U.S. mainland attack since the War of 1812." (No, it wasn't, actually; Pancho Villa's raid into Columbus, New Mexico set off panic and a large-scale punitive expedition led by General Pershing; but never mind). In fact, as the author states, this event took place on February 23, 1942, four days after Executive Order 9066 was signed, so it could not have played a factor in any of the decisions.

Not satisfied with describing this single (rather minor) incident, the author tries to disguise the lack of concrete military threat by claiming that this incident "was just one of many long forgotten (or deliberately ignored) attacks"(p.9). Long forgotten? Then where are the incident reports and media accounts at the time, when it was well remembered? Deliberately ignored? By whom? By the Californians who were so panicked over the spectre of a Japanese invasion that they spread wild stories that turned out to be untrue? By the West Coast defense authorities who were ready to make the most compelling case for mass evacuation? The author finishes with stories of Japanese submarines roaming free around Hawaiian waters, and mentions two sinkings of boats in the mid-Pacific. How then was the West Coast under siege? As the author confesses by omission, there were then no sinkings of ships by Japanese subs around the area of the West Coast. And if such sinkings in Hawaiian waters did not change the situation in Hawaii, they should not have been responsible for arbitrary action on the West Coast.

In contrast, there was an urgent military danger on the East Coast. Nazi submarines in the Atlantic were sinking Allied shipping at an alarming rate, and Nazi saboteurs landed on Long Island—the last invasion of the U.S. mainland. However, the Army and the Administration did not take steps to intern all German aliens out a fear of collaboration. As Attorney General Biddle, who was responsible for control of enemy aliens, stated in an unpublished section of his memoirs, "There was more reason than in the West to conclude that shore-to-ship signals were accounting for the very serious submarine sinkings all along the East Coast, which were only sporadic only the West Coast...But the decisions were not made on the logic of events or on the weight of evidence, but on the racial prejudice that seemed to be influencing everyone." (cited in Robinson, BY ORDER OF THE PRESIDENT, p.112).

Robinson's not done yet. And neither am I. One more post from each of us to follow.
[Eric Muller (visiting from, August 5, 2004 at 9:39pm] Trackbacks
IN DEFENSE OF INTERNMENT, Part 7: Professor Greg Robinson, author of "By Order of the President," has more to say about Michelle Malkin's book "In Defense of Internment":

Michelle Malkin engages in overkill. Her stated purpose is to prove that the removal and confinement of Japanese American aliens, and particularly of citizens, was based on justifiable fears of espionage and sabotage, rather than racism (and thus to make the case for racial profiling by the Bush Administration). If this were all she wished to argue, she could have stopped with the signing of Executive Order 9066 itself. She could then more easily have made the case that the Army and the Executive felt obliged to act as they did considering the circumstances, though it was a terrible injustice to loyal citizens. After all, how the government's policy played itself out afterwards is logically irrelevant to the initial cause. She would still have been mistaken, in my opinion, about the threat from the Nisei (more on the distinction between the confinement of Issei and Nisei later on) . However, she would have been able to summon up some reputable authority. This was, after all, the retrospective commentary of Secretary of War Henry Stimson, the most influential advocate of evacuation, in the memoir he wrote with McGeorge Bundy, ON ACTIVE SERVICE IN PEACE AND WAR. (P. 406). Because of this, Stimson supported compensation for losses suffered by Japanese American aliens and citizens in the evacuation. (On the other hand, Stimson went on to say that, more than the danger of disloyal activity, the anti-Japanese hysteria on the West Coast was so strong that Japanese Americans needed to be moved to protect them from illegal violence, a statement which throws into doubt Ms. Malkin's insistence that racial bigotry played no factor in the evacuation).

In contrast, Malkin's objective is to defend the government's actions throughout, which means that she goes beyond that those involved believed, all in order to denounce a nonexistent conspiracy among her opponents to create "the myth of the concentration camp." (Like Eric Muller, I am dubious about any campaign among scholars to equate the camps with concentration camps of Nazi Germany. As one who had relatives disappear during the Holocaust, I myself would be unlikely to do so).

Malkin thus follows in the paranoid style of Lillian Baker, the most important internment denier, whose gift to posterity, "The Concentration Camp Conspiracy," likewise charges an immense conspiracy on the part of Japanese Americans to defraud the government and distort history. To be fair, Malkin does not go as far as Baker in claiming that the camps were pleasant places or that the guard towers were for the inmates' protection. Still, her central premise is that the government acted justly in establishing camps to which Japanese Americans were "free to move elsewhere (initially)" "free to leave" and " free to enter". This is a serious distortion. Let us break down her comments.

First, Japanese Americans were, for a few weeks in March 1942, permitted to relocate "voluntarily." However, they were required—in practice, and possibly officially—to have an outside sponsor, and they were given no aid or financing for such a move. Such relocation would have meant families had to sell everything they owned or relying on what they had on hand--the bank accounts of enemy aliens were frozen--and move to an unknown location. Despite this, thousands of Japanese Americans did indeed move East. The vast majority of them, relying on the assurances of the West Coast Defense Command, moved inland to eastern California, only to be caught in the cruel net of involuntary confinement when that area was declared restricted. The author correctly notes that the threat of violence from inland communities made further "voluntary" relocation possible.

She might have gone further, in order to defend the government, to point out that the War Relocation Authority did initially intend to place Japanese Americans in communities outside the West Coast, but that when WRA Director Milton Eisenhower visited a Western Governor's conference, the rabid anti-Japanese sentiment he experienced forced him to shelve his plans and prepare for confinement for the duration. Rather, Ms. Malkin's talent for overkill shows itself in her insistence that hostility from inland Japanese-Americans was a significant factor in striking fear in the hearts of the West Coasters.

To say that people were free to enter the camps is true but irrelevant. In many case non-Japanese spouses of confined Japanese Americans, such as Elaine Black Yoneda, "volunteered" to go to camp to be with their families. As with people who volunteer to be jailed for their beliefs, such actions are a result of (or protest against) injustice and not a denial of it.

Finally, the assertion that Japanese Americans were "free to leave" the camps must be placed in context. The author correctly notes that those with permits who were adjudged loyal by the governments were able to leave. Again, she might have gone on to mention that as time went on the camp inmates were able in many cases to get day passes to go into town for supplies or on hikes. However, the Japanese Americans were held for months without individual trials, hearings, or charges. Until individuals were able to arrange to get paroled through the long, cumbersome and inevitably arbitrary loyalty and sponsorship procedure, they had no way to escape being confined against their will. The WRA, for a number of reasons, was unable to accommodate all those who sought resettlement, and some three quarters of Japanese Americans remained in the camps throughout the war.

So much for Michelle's claim that people were free to relocate out of the zone of forced eviction, free to enter the camps, and free to leave them.
[Eric Muller (visiting from, August 5, 2004 at 3:38pm] Trackbacks

This just in: Baying at the moon is not a crime in Chapel Hill, North Carolina.


As I noted yesterday, in her new book "In Defense of Internment," Michelle Malkin undertakes to "defend ... the evacuation and relocation of ethnic Japanese from the West Coast (the so-called "Japanese American internment")." (p.xii) ("Ethnic Japanese" here means the Nisei--American citizens born in this country to Japanese immigrant parents who had been forbidden by U.S. law from naturalizing as U.S. citizens because they were Asian.)

Michelle is undoubtedly aware that the two most prominently voiced criticisms of the government's program are these:

1. The government evicted all American citizens of Japanese ancestry from their West Coast homes and placed them into camps, but took no action affecting American citizens of German or Italian ancestry. (In other words, if your name was, say Joe Kaminaka or Lou Matsumoto, you were evicted and confined; if your name was, say, Joe DiMaggio or Lou Gehrig, well, uh, you know.)

2. The actions taken against Japanese Americans were absurdly disproportionate to the scope of any security risks of which the government was even arguably aware.

If you're going to defend the program, this is what you've really got to defend, because this is what scholars most commonly and cogently criticize.

How does Michelle's book handle these two tasks?

The quick answer (a longer answer follows): As to (1), the 165-page text includes a single paragraph (on page 64). As to (2), the book says nothing at all.

Here's the longer answer.

1. Why no similar treatment of similarly situated Americans of German and Italian ancestry? (Why, that is, did Joe Kaminika end up in Manzanar in 1942 while Joe DiMaggio ended up batting .305?) Here's the lone paragraph on the point from "In Defense of Internment":

The disparate treatment of ethnic Japanese versus ethnic Germans and ethnic Italians is often assumed to be based on anti-Japanese racism rather than military necessity. Japan, however, was the only Axis country with a proven capability of launching a major attack on the United States. Some ethnic Germans and ethnic Italians had divided loyalties, but there was no evidence that Germany or Italy had organized a large-scale espionage network akin to the one described by Japan's diplomats in the MAGIC messages. Moreover, any attempt to evacuate all ethnic Germans or ethnic Italians from coastal areas would have done more harm than good to the war effort because so many Americans had German or Italian ancestry. An East Coast evacuation of ethnic Germans and Italians, as envisioned by General Drum, would have resulted in the relocation of some 52 million people. By comparison, the total U.S. population at the time was 135 million people.

I'm afraid we're into eye-rolling, head-shaking territory here. Nevermind that Michelle tells her reader nothing about the racial backdrop for the government's distinction between citizens of Asian ancestry and citizens of European ancestry--decades of depictions of Asians as a fearsome, robotic, animalistic Yellow Peril.

Item: "Japan was the only Axis country with the capability of launching a major attack on the United States?" Here Michelle contradicts herself, because the book emphasizes repeatedly that Roosevelt, Stimson, and McCloy had good reason (from MAGIC) to worry about potential Nisei involvement not just in a full-blown Japanese attack on the West Coast, but in more ordinary kinds of domestic spying, disruptions of war production, and the like. So why would it appropriately have mattered (if it were true) to the MAGIC-reading trio of Roosevelt, McCloy, and Stimson that Japan could mount a full-blown assault on the West Coast but Germany could not mount a full-blown assault on the East Coast? What's more, it was not true after early June of 1942--before a single Japanese American was transferred for indefinite detention in a "relocation center"--that Japan had the capability of launching a major attack on the United States. The decisive American victory at Midway ensured that. And folks, notwithstanding Michelle's assertion (page xxxiii) that this view of Midway's impact is hindsight, that's just wrong: Newsweek (June 22, 1942), The New Republic (June 15, 1942), The Nation (June 27, 1942), Time (June 22, 1942), and the Los Angeles Times (June 8, 1942) all opined that the Midway victory essentially foreclosed any large-scale sea-based attack on the continental United States.

Item: "There was no evidence that Germany or Italy had organized a large-scale espionage network akin to the one described by Japan's diplomats in the MAGIC messages," says Michelle. Huh? This claim is so easily refuted that it's not worth the effort to spell it out. The only difference between the Japanese espionage operations and the Nazi ones was that we didn't have to decypher intercerpted cables to get a hint of the Nazi ones.

Item: "Any attempt to evacuate all ethnic Germans or ethnic Italians from coastal areas would have done more harm than good to the war effort because so many Americans had German or Italian ancestry." Oh, I see. Because there were so many potential spies and saboteurs along the East Coast, it didn't make military sense to do anything to them. (Remember: it's not just that the government didn't evict and detain Americans of German and Italian ancestry: it's that the government did absolutely nothing to them!)

2. How, from the alleged MAGIC evidence that Japan had successfully recruited certain Kibei (that is, American-born citizens who had resided and been educated in Japan) into spying, did the government (and does Michelle's book) justify uprooting tens of thousands of Nisei (American-born citizens who'd never been to Japan) from their homes and forcing them into indefinite detention in barren camps?

Here's how General John DeWitt justified suspicion of all Nisei in February of 1942: "The Japanese race is an enemy race and while many second and third generation Japanese born on United States soil, possessed of United States citizenship, have become 'Americanized,' the racial strains are undiluted."

Michelle doesn't say that, though. She just doesn't say anything.

Update: Allow me, before people jump all over me, to correct one thing I asserted (namely, that the government did nothing to American citizens of German ancestry). The government did act against a number of German aliens--a far smaller number than Japanese aliens--and those actions sometimes entailed the internment of American citizen children of those aliens. What I meant is that the government took no sizeable or programmatic action against American citizens of German ancestry as such.

Letourneau no-contact order:

Despite my outrage at Letourneau (see below), I'm not sure that the judge's order that she not contact the boy she had sex with -- now a 21-year-old man, Vili Fualaau -- is valid. Courts generally do have broad powers to restrict the associational rights (and also free speech rights) of people who are released on probation, even though such restrictions also correspondingly restrict the rights of those with whom they'd want to associate.

But the theory in such cases is generally that the restrictions are needed to keep the probationer from relapsing into a life of crime: If the person was convicted for being a gang member, he can be barred from hanging out with his ex-gang-members; if he was convicted for being involved in some politically motivated crimes, he can be barred from other members of the militant wing of the movement. The government generally can't impose such restrictions on law-abiding adults, but it can impose them on people who are still under the supervision of the criminal justice system, so long as the restrictions pass a quite deferential test of reasonableness.

Here, though, it is legally impossible for Letourneau to relapse into her old crimes with the man, because he's now well past the age of consent. I suppose the court might be reasoning that she still has some psychological hold over the young man, or that being with him is emotionally bad for her or for him; but that seems to go more into the territory of pure matters of the adult heart, which are generally outside the government's competence. Usually the government shouldn't try to protect adults from heartbreak or emotionally harmful relationships. The woman does seem rather emotionally off-kilter, and it may not be good for the young man to see her, but that does seem to be much more of a call for him and her rather than for the judge.

Moreover, appellate courts do sometimes set aside such restrictions on probationers when the restrictions do seem to go beyond the government's legitimate attempts to prevent repeat crimes; the judge has broad authority here, but not complete authority (and less authority than prison wardens do, since one major reason for action in the prison context, which is the need to maintain prison security, is absent when probationers are involved).

On the other hand, I'm working here based on just what I saw in the news story -- perhaps the judge has a persuasive explanation for his order, possibly based on some specific evidence that he's seen about either Letourneau or Fualaau. If any readers do have such information, I'd love to see it; please e-mail me both the URL of the news story and the relevant excerpt.

Mary Kay Letourneau:

A thoughtful acquaintance of mine sent around an e-mail expressing skepticism that what Mary Kay Letourneau did was all that bad. Many 12-year-old boys, he pointed out, would be quite happy to have sex with a 35-year-old woman. Perhaps this is even so for most 12-year-old boys, at least most of those who actually end up doing it. Nor would this be likely, he opined, to leave lasting psychological scars.

Well, maybe so; I can't say that I feel deep pity for the boy because this woman had sex with him, or visceral outrage at the woman for doing so. Perhaps I should, but I can't quite muster it -- and, yes, I'd have a very different view of a 35-year-old man and a 12-year-old girl, because I do think (based on an admittedly nonexpert judgment) that this is more likely to involve manipulation and lasting harm. (That doesn't by itself tell us what the law on this subject should be, of course.)

But Letourneau didn't just have sex with him -- she had two babies by him. Now that is a matter that leaves lasting (life-long) effects on many (I'd hope most) men, and certainly not one that the boy was prepared to thoughtfully embrace. Children can be a great joy, but also a great burden, one reason that it's pretty important for people to think hard and maturely before having them.

Would you want to start your adult life at 18 with two kids whom you'd feel (if you're a decent person) a moral obligation to support, to spend time with, and to be responsible for? I sure wouldn't. I suspect that of the men who think back and say "I wish I had a 35-year-old woman have sex with me when I was 12" (or more likely a little older), very few would say "I wish I had two children to be responsible for when I was 18." The boy may well love his children, who are apparently being raised by his mother. But he didn't have a meaningful choice in this matter (not even the choice involved in choosing to have sex as an adult, knowing the risk that this will lead to an unwanted child). And he lacked this choice in a matter that likely has a far greater effect on his life than the mere sexual (or even romantic) relationship.

I don't care that much whether Letourneau took the boy's innocence, a metaphysical, metaphorical, and possibly (in this situation) overrated attribute. But she did take his freedom -- the freedom to be a relatively carefree yet decent 18-year-old, and the freedom to have a family that he in some meaningful sense chose to have. And that is indeed something to feel outraged, and full of pity, about.

Eminent domain and state constitutional property rights:

My fellow Russkie lawprof Ilya Somin (George Mason) — part of the small but growing Russo-American invasion of the legal academy — passed along, at my request, this brief summary of the Hathcock case:

The Michigan Supreme Court recently overruled one of the worst judicial decisions of modern times. In County of Wayne v. Hathcock, the court reversed Poletown Neighborhood Council v. City of Detroit, a 1981 decision that allowed Detroit to use the power of eminent domain to take and bulldoze an entire neighborhood so General Motors could build a new factory. As a result of Poletown, over 4,200 people lost their homes, 16 churches were destroyed, and an entire community was wiped out. Perhaps even more importantly, Poletown set a dangerous precedent for similar abuses of government power in Michigan and elsewhere. Numerous politically connected businesses and other powerful private interests have used it to justify using the state's takings power for their own benefit.

Under most state constitutions, including Michigan's, government may only take private property for a "public use." This test traditionally forbade most takings that transferred private property to other private hands. Courts rightly reasoned that the power to condemn property should not be abused to enable the wealthy and politically influential to appropriate their neighbors' property for their own benefit. Poletown, on the other hand permitted the condemnation of property for transfer to private interests so long as the action creates a public benefit by "bolster[ing] the economy." As the Hathcock opinion explains, Poletown's "economic benefit" rationale "would validate practically any exercise of the power of eminent domain on behalf of a private" commercial enterprise. Virtually any business can claim that increasing its profitability will "bolster the economy."

For more details on why Poletown was a horrible decision, see my January op ed on the subject in the Detroit News.

The court's unanimous decision to overrule Poletown is a major victory for constitutional rights. Hathcock restores the traditional principle that government may not, as a general rule, take private property for the purpose of giving it to other private individuals or corporations. Hathcock's most important contribution is establishing the rule that "bolstering the economy" is not enough of a reason to condemn private property for transfer to other private interests.

The Hathcock opinion is available online here.

Scroll down to the second half if you want to read the important part.

Ilya knows the case well; he filed an amicus brief in it for the Institute for Justice and Mackinac Center for Public Policy.

The decision, of course, is binding precedent only in Michigan, but it may well prove influential elsewhere as well, since state courts interpreting their own state's constitution often look to trends in other states for guidance.


If you were of a mind to unsettle the settled understanding of what led to the incarceration of Japanese Americans between 1942 and 1945, and restore some credibility to the now-discredited claim of military necessity, you'd need to do two things.

First, you'd need to make at least a prima facie case of causation--that is, you'd need to persuade people that the various government actors whose actions produced the decision had well-grounded suspicions of subversion by American citizens of Japanese ancestry, and that those well-grounded suspicions of subversion were what led them to take the actions they took.

Second, you'd have to undermine the settled understanding, supported by several decades of comprehensive research by numerous scholars, that racism, economic jealousy, and war hysteria led these actors to took the actions they took.

How does Michelle's book try to accomplish these two things?

As to the first, the book quotes extensively from a handful of decyphered messages (the "MAGIC" cables) about Japanese efforts to develop some Issei and Nisei as spies for Japan. It really all turns on those MAGIC cables. The trouble is that the historical record tells us absolutely nothing more than that Roosevelt, the Secretary of War (Stimson), and his top assistant (McCloy) generally had access to the thousands of messages of which these concerning potential Issei and Nisei spies were a tiny few. The record tells us nothing about who actually reviewed which of the intercepts, or when, or what any reader understood them to mean. The record is just silent on these issues--reflecting, in a way, the silence of the actors themselves on MAGIC at the time. One might well say (and Michelle does), "but they couldn't talk or write about the MAGIC decrypts; they were ultra-secret and everybody was keen to keep them that way." That may well be so. But that doesn't mean we can fill in the silence in the record with our own suppositions about what they must have read and what they must have thought about what they read. In short, Michelle's book presents no evidence--because, apparently, there is none--to show that MAGIC actually led anybody to think or do anything.

And then, of course, there's the much larger problem (suggested by Greg Robinson below) that the program we know as the Japanese American internment was not a single decision but rather a long series of decisions taken over a period of months (or, if you count some of the pre-war prepartion for action against the ethnically Japanese in the USA, a period of years). And we know--for totally certain--that many of those decisions could not conceivably have been influenced by concerns for military necessity supported by MAGIC.

Let's take one example. When you think of the Japanese American internment, what do you picture? People living in the desolate high desert, in tarpaper barracks, under military guard, right?

Do you know how that happened? Do you know how it happened that Japanese Americans ended up spending years in desert camps under military guard, unable to leave without clearance? If you think that any federal government actors (let alone Franklin Roosevelt, Henry Stimson, or John McCloy) made that decision, you're wrong. The federal government, having evicted Japanese Americans from their homes and confined them in the late spring of '42 in racetrack and fairground "assembly centers," wanted to move Japanese Americans to wide-open, unguarded agricultural communities in the interior, modeled after Civilian Conservation Corps camps. But in early April of 1942, the governors of the Mountain States unequivocally rejected that idea, saying (I quote here the words of Governor Chase Clark of Idaho) that "any Japanese who might be sent into [the state] be placed under guard and confined in concentration camps for the safety of our people, our State, and the Japanese themselves." The federal government, needing the cooperation of the states, had no choice but to accede to the governors' demands.

So Japanese Americans ended up going into guarded camps (call them what you will) because Mountain State governors demanded it. Do you think that the governor of Idaho had access to the MAGIC decrypts, and that he formulated his demand for "concentration camps" on the basis of an evidence-based belief of military necessity? Or do you think maybe something else explained it? (Before you answer, consider also that Governor Clark liked to compare people of Japanese ancestry to "rats," proposed that all American Japanese be sent "back" to Japan (where most of them had never been) and that the Japanese islands then be "sunk," and admitted publicly that his views on the subject were "prejudiced" because he didn't know "which Japs he could trust" and therefore "didn't trust any of them." Or consider that the Governor of Wyoming announced that if the federal government went ahead with its CCC Corps Camp plan, there would be "Japs hanging from every pine tree.") Personally, I don't see how the MAGIC decrypts could have had anything to do with the decision to confine Japanese Americans under military guard in camps, which is probably the central feature of what we call the Japanese American internment.

OK, so there's really nothing in Michelle's book to accomplish the first of the things the book needed to accomplish--that is, to make out a prima facie case that MAGIC led to the series of decisions that constituted the program Michelle defends.

What about the second? What does Michelle offer to discredit the copiously documented influences of nativism, economic jealousy, racial stereotyping, rumor-mongering, and hysteria on the series of decisions that constituted the program Michelle defends?

Nothing. Literally not one single thing. Not a sentence.

If a book is going to try to "provoke a debate on a sacrosanct subject that has remained undebatable for far too long" (p. xii), and to "correct" the historical "record," I think the book needs to offer a reader more than this.

Wednesday, August 4, 2004

Corporal Klinger should have thought of that!

According to AFP,

A growing number of conscripts have to be dismissed from Finland's armed forces every year due to an internet addiction that makes them unsuited for service, an official said on Tuesday.

"It's an increasing problem. More and more young people are always on the internet day and night. They get up around noon and have neither friends nor hobbies. When they get into the army, it's a shock to them," Jyrki Kivelae, head of the conscription division at the Finnish defence staff, said. . . .

"It's really a shock to them, they are physically too weak to do the service, and mentally unprepared to deal with people directly and not through the internet," Kivelae said.

Finland's defence relies solely on conscripted forces, with nearly 30,000 male Finns undergoing six to 12 months of compulsory military training every year . . . .

[S]ome nine percent [of conscripts] are dismissed due to medical reasons, including internet addiction that is now classified as a temporary mental condition, Kivelae noted.

"So we send them back home, where they can stay for two or three years more, then they can come back to the army later when they are more grown-up and able to carry out their duty."

Yeah, right, Internet addiction, that's the ticket. My conjecture: The Finnish military doesn't really need as much manpower as it's getting; it figures that lazy soldiers are more trouble than they're worth, and when "a temporary mental condition" such as "internet addiction" can be blamed, everyone is happy. Somehow I think that if there was a war on, this dread disease could be cured with remarkable ease.

For more of my views on Internet addiction, see here.

Judges thanking externs:

I just noticed that Judge Harold Baer, Jr., in the Southern District of New York has a practice of thanking interns who worked on his opinions, e.g., "Sonia Wadhwa, a Summer 2004 Intern in my Chambers and upcoming second year law student at The George Washington University Law School, provided substantial assistance in the research and drafting of this opinion." (I assume that the reason he doesn't thank his regular law clerks is that he figures being a law clerk -- which, unlike an internship/externship during law school, is a paid post-law-school job and a great credential -- is compensation enough.)

Seems nice, though it definitely runs against the dominant federal court tradition, which is that all the opinions are treated as the work of the judge, and the existence of law clerks and interns/externs (the latter two terms are generally synonymous) is studiously ignored.

[Eric Muller (visiting from, August 4, 2004 at 9:07pm] Trackbacks
IN DEFENSE OF INTERNMENT, Part 4 (Or, "The Robinson Rebuttal"): OK, enough about research methods and terminology and book covers. Let's get to the meat of Michelle's claim, shall we? Her argument is that intercepted and decrypted Japanese "chatter" about efforts (a small number claimed to have been successful) to recruit Japanese aliens ("Issei") and American citizens of Japanese ancestry ("Nisei") was "the Roosevelt administration's solid rationale for evacuation." (page 141) It's a claim of causation she's making: notwithstanding the scholarship of the last 30 or so years, based on exhaustive perusal of available archival records, which shows the overpowering influence of racism and various sorts of nativist and economically motivated political pressure on the various decisionmakers' actions, these MAGIC decrypts, viewed by only a few of the key decisionmakers, were "the Administration's rationale"--a rationale grounded in military necessity. I'll have a fair amount to say about this, possibly later tonight (it has been a long day), and definitely tomorrow. Right now, though, I wanted to pass along to you a first reaction to Michelle's book from my friend Greg Robinson of the University of Quebec at Montreal, whose book "By Order of the President: FDR and the Internment of Japanese Americans" is the definitive scholarly account of the genesis of the Administration's decision to evict and detain all of the West Coast's Issei and Nisei. (Here's a review of Greg's book from The Atlantic online, and here's an excerpt from the book.)

Several years ago, I wrote a book on the decisions behind the mass removal and confinement of the Japanese Americans, commonly, if inaccurately, known as the internment, and in particular the role of President Franklin Roosevelt. I based it on several years of research in a number of archives around the country. The book was published by the Harvard University Press in 2001. In the time since, I have done further research in this area, which has confirmed me in my conclusions. Since the book was published, I have read a number of critiques by various defenders of Executive Order 9066, especially by bloggers, who seem to constitute a large and vocal group. I have preferred to let the work speak for itself, and I have never before responded to any critics, even when their comments distorted what I actually said. However, I feel that I must break my silence in the case of Michelle Malkin's book.

First, Malkin is a bestselling author whose book is being put out by an established publisher, and her status as a celebrity will make many undiscriminating or unknowing people buy the book and take her arguments at face value.

Also, Malkin, unlike all other writers I have seen, deliberately impugns the motives of those who disagree with her. Although she sets herself up as a disinterested seeker for truth with an open mind, she is gratuitously nasty towards all others: "Unlike many others who have published on this subject, I have no vested interests: I am not an evacuee, internee, or family member thereof. I am not an attorney who has represented evacuees or internees demanding redress for their long-held grievances. I am not a professor whose tenure relies on regurgitating academic orthodoxy about this episode in American history." Well, I am none of these things, apart perhaps from being a professor, and I was not even that when I researched and wrote my book. I am mindful, however, of the wise counsel of Sidney Hook, who in his "Ethics of Controversy" reminded people "[b]efore impugning an opponent's motives, even when they legitimately may be impugned, answer his arguments." Since there is a great deal to criticize in Malkin's arguments from a logical and historical point of view, I will start by focusing on that.

The analysis of the book should start with the material the author includes on MAGIC (the decrypted intercepts of the Japanese code), which by her own statement constitutes the heart of her argument. There is a certain boredom born of repetition in any such discussion, since the author's material is mostly if not entirely lifted from the work of the late David Lowman, to whom the book is dedicated. (As the author states in the August 3, 2004 entry on her blog: "After reading a book by former National Security Agency official David Lowman called 'MAGIC: The Untold Story of U.S. Intelligence and the Evacuation of Japanese Residents from the West Coast during WWII," published posthumously by Athena Press Inc., I contacted publisher Lee Allen, who generously agreed to share many new sources and resources as I sought the truth.") Lowman's work has frequently been refuted and discredited. (Lowman first tried to make the case that the evidence of the MAGIC cables justified Executive Order 9066 in testimony before the Subcommittee on Administrative law and Governmental Relations of the House Committee on the Judiciary in June 1984. At that time, John Herzig, himself a retired Lieutenant Colonel and former intelligence officer, and Peter Irons effectively rebutted his testimony. Lowman did not resurface until 2000, when he put the same information in the book Malkin mentions. According to the Los Angeles Times's review, the editor of Lowman's book himself expressed doubts as to the credibility of Lowman's conclusions.

Since there is nothing new in the author's case for MAGIC, my rebuttal will be brief. (For a more detailed presentation of the matter, John Herzig's "Japanese Americans and MAGIC," Amerasia Journal 11:2 (1984), is still unequalled).

Let me divide it into three parts: first, that the MAGIC cables do not present the image of a Japanese American spy network; Second, that the people who pushed the case for evacuation would not have had access to the MAGIC excerpts in any case; thirdly, that those who did have access to MAGIC did not base their decision on it.

First, an examination of the MAGIC cables provided by the author does not provide any case for implicating the Japanese Americans in espionage activities. Most of the cables discussed (a tiny handful of the thousands of messages decrypted) come from Tokyo or Mexico City and refer to areas outside the United States. Those cables that do speak of the United States detail various efforts by Japan to build networks, and list hopes or intentions rather than actions or results. For example, the author quotes (p. 41) from a January 31, 1941 cable from Tokyo which orders agents to establish espionage and to recruit second generations. It does not say that such recruitment took place, and furthermore that recruitment was to take place even more among non-Japanese. Similarly, the author cites excerpts listing census data transmitted on the Japanese population of various cities--hardly secret information. The author relies most strongly on a memo from the Los Angeles consulate to Tokyo from May 1941. The author claims "the message stated that the network had Nisei spies in the U.S. Army" (p. 44). In fact, the message states "We shall maintain connection with our second generations who are at present in the U.S. Army." This speaks again of agents to be recruited. There is no evidence that any individuals had been recruited as agents, still less that they were actively giving information. Replies back from Los Angeles and Seattle state that they had established connections with Japanese and with "second generations." The rest of the cables she cites recount information given to Japan in fall 1941, long after any discussion of recruiting Japanese Americans had ceased, with no clue as to the source of the information given. The sum total of the information is that Japan unquestionably tried to build a spy network in the US during 1941. It is also clear that the Japanese wished to recruit Japanese Americans, as well as non-Japanese.

Even assuming for the sake of argument that the MAGIC excerpts did show some credible risk of disloyal activity by Nisei on the West Coast, those who made the case for internment did not rely on them. The author herself notes that access to the MAGIC encrypts was limited to a dozen people outside the decrypters, and notably says that President Roosevelt, Secretary of War Henry Stimson, and Assistant Secretary of War John McCloy had access to the MAGIC cables. This leaves her in the position of asserting that the essential reflection and decision was made by those three figures, and the reasons or motivations of all other actors were irrelevant. However, the record amply demonstrates that West Coast Defense Commander General John DeWitt (and his assistant Karl Bendetsen) were largely responsible for making the case for evacuation, and that their judgment of the situation and their recommendation for mass evacuation overcame the initial opposition of McCloy and Stimson. DeWitt's motivations for urging evacuation--notably his comment to McCloy that "a Jap is a Jap," and his reliance on arguments about the "racial strains" of the Japanese in his Final Report--indicate that his conduct was informed by racism.

Finally, there is no direct evidence to support the contention that the MAGIC excerpts played a decisive role in the decision of the figures who did have access to them to authorize mass evacuation, and considerable evidence that leads to a contrary inference. Throughout all the confidential memoranda and conversations taking place within the War Department at the time of the decision on evacuation, transcripts which show people speaking extremely freely, the MAGIC excerpts are not mentioned a single time. In particular, there is no evidence that President Roosevelt ever saw or was briefed on the MAGIC excerpts the author mentions, let alone that he was decisively influenced by them. As I detail at great length in my book "By Order of the President," throughout the 1930s Roosevelt expressed suspicions of Japanese Americans, irrespective of citizenship, and sought to keep the community under surveillance. As early as 1936, he already approved plans to arrest suspicious Japanese Americans in Hawaii if war broke out. As of early 1941, before FDR could have received any MAGIC excerpts, the Justice Department and the military had already put together lists of aliens to be taken into custody (the so-called ABC lists). These were not based on suspicion of individual activities, but of the suspected individuals' position in Japanese communities. Roosevelt continued to believe in a threat despite receiving reports of overwhelming community loyalty from the FBI and his own agents, reports he called "nothing much new."

More to come.
Religious discrimination:

A woman has apparently been fired by a Muslim-owned company because she ate pork on the premises. Is this illegal religious discrimination?

No, just as a Christian-owned company's firing an employee because he is a homosexual is not illegal religious discrimination. Antidiscrimination laws bar people from discriminating based on the employee's religion. An employer may still discriminate based on their employee's conduct — food preferences, sexual preferences, and the like — because of the employer's beliefs, whether those beliefs are religious or secular.

If the employee's practice were inherently religious (e.g., she was praying in a way the employer thought was the wrong way), then an employer couldn't discriminate based on that. And if the employee saw her own conduct as religious — for instance, if she felt a religious obligation to eat pork — then the employer would have a duty to reasonably accommodate that conduct.

But if the employee was engaging in essentially secular conduct, for secular reasons, the employer may fire her for that (unless some other law gets in the way). That the employer was motivated by his own religion doesn't make the firing illegal. (True, had the woman been a good Muslim, she wouldn't have eaten the pork and hadn't been fired — but the same is true if she had been a good Jew, or a secular vegetarian, or just someone who didn't eat pork at the employer's office. She was being discriminated against based on her nonreligious actions, not based on her religious beliefs.)

There are a couple of good reasons for this. First, a contrary rule would itself be religious discrimination. If a secular employer is free to fire an employee for violating the employer's secular views about morality or decency (e.g., a secular employer fires an employee for adultery, for homosexuality, or for eating dog meat, which the employer finds disgusting or immoral), that's not illegal religious discrimination. There's just nothing religious there. Likewise, a religious employer should be equally free to fire an employee for violating the employer's religious views about morality or decency (e.g., for adultery, for homosexuality, or for eating pig meat).

Second, for deeply religious employers, most of their decisions may be influenced by the employer's religious faith. If an employer fires an employee for treating coworkers unfairly, for being lazy, or even for theft, the employer's reasoning might be colored or even dictated by the employer's religion. If such religious influence made the employer's action into religious discrimination, religious employers would be highly constrained (again, in ways that secular employers would not be).

Now the firing may well be foolish, arbitrary, or unfair in the eyes of non-Muslims (or even of many Muslims), just as many people find firing based on sexual orientation to be foolish, arbitrary, or unfair. It may be the sort of thing that very few secular employers would do. But as a general matter, employers are still legally allowed to fire people even based on foolish, arbitrary, and unfair reasons, so long as they're not discriminating based on the employee's race, religion, sex, and other such attributes. So it seems that this employer was acting within its legal rights.

Jonathan Rowe has a similar analysis.

Bloomington Pantagraph v. Michael Moore:

I've had the nastygram sent by the Pantagraph to Michael Moore, complaining about Moore's alleged partial fictionalization of a Pantagraph headline put up here. (The page will disappear soon, so you might want to avoid linking directly to that page; before that happens, I'll copy it to a permanent home and update this post accordingly, but I'm on the road now and can't do that.)

Moore's Fahrenheit 9/11 apparently portrayed the Pantagraph as saying, in a large headline accompanying a Dec. 19, 2001 news story, "LATEST FLORIDA RECOUNT SHOWS GORE WON ELECTION"; the Pantagraph says that this was a caption accompanying a Dec. 5, 2001 letter to the editor, and thus just the newspaper's summary of what the letter was saying, rather than the newspaper's characterization of the actual news.

I'm not sure that the Pantagraph's copyright objection quite flies; if Moore only copied the seven-word headline, that might be below the threshold of copyrightable expression. (If it is copyrightable expression, he might still claim that his use is fair, though the fictionalization might be argued to undermine the fair use claim.) On the other hand, it's not clear just where the copyrightability line is, so maybe the Pantagraph does have a solid claim. And in any event, the newspaper's argument — if it's factually well-founded — is a serious criticism of the movie's accuracy (and, if Moore knew the use of the headline was misleading, his ethics), even if it isn't a legal winner.

The newspaper might sue Moore on a theory that the movie defamed it, by making a false statement about it that would reduce the newspaper's reputation among those who know the truth. But I doubt that the newspaper would be able to prove damages, which are generally required for a libel (or trade libel, which is to say libel-of-a-product) claim. And I don't think this fits within one of the categories of defamation that allow recovery without a showing of damages. This is getting into the nitty-gritty details of state libel law, and I can't be 100% positive here; but that the newspaper's letter focused on the copyright claim rather than any libel claim supports my supposition that a libel claim probably wouldn't fly.

UPDATE: I also doubt that the newspaper could sue Moore on the theory that he used the newspaper's trademark in a misleading way. If Moore misused the trademark in advertising the movie, that might be different; but if the trademark is in the movie itself, and no-one will be confused into thinking that the Pantagraph endorses the movie, trademark law wouldn't, I think, be implicated.

[Eric Muller (visiting from, August 4, 2004 at 1:39pm] Trackbacks

As I continue liveblogging my own thoughts about Michelle's book "In Defense of Internment," I'll note a part of the book where I think Michelle is quite right. In her introduction (pages xiii to xxxv), or at least in certain parts of it, she makes the case that the civil liberties Left and representatives of the Japanese American community have not helped anyone think clearly about the Roosevelt Adminisration's policies by attacking each step of the Bush Administration's domestic antiterrorism policy since 9/11 as a reprise of the worst mistakes of WWII. This was one of the two main points I made in my article "Inference or Impact? Racial Profiling and the Internment's True Legacy," which Michelle graciously cites in her book.

A big part of what drove Michelle to write this book was her disgust with people on the left who have never met an antiterrorism policy they like, and who have trotted out the scary specter of the incarceration of Japanese Americans at every opportunity. In "Inference or Impact," I worried about the Chicken Little effect of repeatedly claiming a replay of the WWII experience of Japanese Americans--that it might lead people to minimize the reality of that experience. Michelle is doing that in this book, and in at least a small way, I think the civil liberties left has some of its own rhetoric to blame. David Cole didn't force Michelle Malkin to write this book, mind you. But maybe some of David's rhetoric helped her build her head of steam.

Now I hasten to add that Michelle is also slaying dragons of her own creation. She's outraged, she says (see pages 95-99), at all of the people who liken the War Relocation Authority's "Relocation Centers" for Japanese Americans to Nazi death camps by naming them with the historically accurate term "concentration camps." (That's what FDR himself called them — see the quotation from FDR on page 21 of Michelle's book.)

I don't have the faintest idea who Michelle is talking about here. I know of no one who compares Manzanar to Auschwitz, and Michelle's book doesn't cite anyone who does so.

Michelle is certainly right that scholars of the Japanese American experience and the Japanese American community itself play games with terminology, sometimes using historically authentic terms such as "concentration camp" while rejecting other historically authentic terms (such as "internment") on the basis that they do not adequately reflect what really happened. (Most savvy people today speak of "incarceration" rather than "internment.")

But Michelle does exactly the same thing, rejecting the historically authentic term "concentration camp" while insisting on using the historically authentic but grossly misleading term "evacuation." (People are "evacuated" in order to protect them from a threat, such as a hurricane or a forest fire. Japanese Americans were evicted from their homes, not evacuated.)

If in fact there were people who compared this country's camps for Japanese Americans to Nazi Germany's death camps, I would certainly understand Michelle's angry desire to set the record straight. My grandfather was in Buchenwald,** and I'd be as outraged as anyone--probably more outraged than most--by the suggestion that this government ran places like that. But--to foreshadow my next post on this topic--the way to counter a comparison of Manzanar to Buchenwald is to describe Manzanar carefully. It is not to compare Manzanar to a Boy Scout Camp, which Michelle comes very close to doing.

More on that later.

**I note that Michelle has set up an "errata" page for the book. Here's one. On page 99, she says that "[h]istorians who compare the American relocation camps to Dachau and Bergen-Belsen will be hard-pressed to find a single European Jew who ... was given permission to leave ... a Nazi death camp." Not so. Nearly all of the German and Austrian Jews (like my grandfather) who were seized at Kristallnacht and taken to Dachau, Buchenwald, and Sachsenhausen in early November of 1938 were released over the following several months. Those who could not get visas out of Germany and Austria were later recaptured and killed (like my great uncle Leopold). But Nazi Germany's policy from the mid- to late 1930s was to "encourage" (by which I mean terrorize) Jews into leaving the country. You can read more about this episode here if you're interested.

Landscaping Man:

Superhero? Supervillain? Neighborhood jerk? Promoter of public goods? My friend and felow libertarian lawprof Tom Bell (Agoraphilia) has the story.

Privacy law angle on "Scott Peterson ordered cable porn" evidence:

Apropos this story, here's the Cable TV Privacy Act. Subsection (h) seems most on point -- it suggests that the police could get this information via a court order (assuming it's material, which it probably is, though I'm not sure that it's tremendously probative), but cable company employees couldn't themselves take the lead in alerting the police about it.

Schwarzenegger settles lawsuit over bobblehead:

So reports the San Francisco Chronicle:

Under the new agreement, Ohio Discount Merchandise Inc. can produce Schwarzenegger-the-politician dolls -- without the gun. . . .

The doll in question featured Schwarzenegger in a gray suit, white shirt and red tie. But he was also carrying what looks like an assault rifle and had a bullet-clip belt draped over his shoulder . . . .

Ohio Discount also agreed to donate a portion of its sales of the upcoming bobblehead doll to Schwarzenegger's nonprofit Arnold All-Stars after-school program in Los Angeles. . . .

The original Schwarzenegger bobblehead was part of a five-doll deal that included several Democratic presidential candidates, organized by Washington, D.C., lobbyist John Edgell, to raise money for two cancer and children's charities.

Edgell, who was also named in Schwarzenegger's suit, said Monday he opposes the settlement and plans to seek an injunction. . . . Edgell has now created a prototype for a "Governor Girlie Man Arnold" bobblehead, featuring the governor in a pink suit and heels -- a reference to Schwarzenegger's comments that Democratic state lawmakers who did not agree to his budget proposal were "girlie men." . . .

Edgell said he would continue to seek to produce the assault weapon-toting Schwarzenegger.

"It was a political statement to tweak Arnold because he pledged to support an assault weapon ban and hasn't done anything," Edgell said. "Also because he stars in all these violent movies and has a pro-kid image ... Schwarzenegger should not be the only public figure immune from the public's right to poke fun at him."

But Bosley said they are satisfied with the settlement, even though he maintains his company would have won the lawsuit.

"It made more sense to settle," he said.

As I argued here and here, I think the defendants should have been able to win on First Amendment grounds. But the law in this area (the "transformativeness" test) is unfortunately pretty vague, and it makes sense that a small company would settle rather than litigate, even if that means changing the humorous but partly political statement that the bobble-heads make. I hope, though, that someone else does challenge Schwarzenegger on this; I like the governor, but I don't think politicians or celebrities should be able to suppress humorous commentary about them -- and I hope some robustly defended lawsuits involving politician-plaintiffs, where courts are especially likely to see the free speech issue, will push the law in the right direction.

Cyndi Lauper Live:

Went to see Cyndi Lauper at Wolf Trap last night. I wasn't exactly eager to go, but my fiancee persuaded me. I thought of Lauper as an odd woman with a nice voice who had a few hits in the mid-80s, and then ruined her career with a series of bad p.r. moves, including getting too heavily involved in professional wrestling (remember Captain Lou Albano?) By the time I was at Yale Law School in the late '80s, she was reduced to playing at Toad's nightclub, a rather small live music venue in New Haven, and I didn't think it worth the $15 (and the walk across the street to Toad's) to go--it just seemed "so mid-80s."

As it turns out, though, the show was great. Lauper has tremendous energy, a lot of charisma (which was most apparent when she waded into the audience during a few of her songs), a great voice, and some real musical talent, demonstrated by playing a string instrument(couldn't identify it from the bleachers) during "Time After Time" and by a very clever arrangement of "She Bop." Moreover, her rendition of True Colors was very moving. And instead of spending much of the concert on lame filler songs, she instead sang some very nice covers from a recent cover album. If she's scheduled to appear in your town, by all means go.

IN DEFENSE OF INTERNMENT, Part 3: In her prefatory note to readers of her new book "In Defense of Internment," Michelle Malkin says the following about the book's goal:
"This book defends both the evacuation and relocation of ethnic Japanese from the West Coast (the so-called "Japanese American internment"), as well as the internment of enemy aliens, Japanese and non-Japanese alike, during World War II. My work is by no means all-encompassing; my aim is to provoke a debate on a sacrosanct subject that has remained undebatable for far too long."

Read just a bit further, though, and you'll see that the book is not just about "provoking debate." It's about "correcting the record" (page xv). By the time she finishes her retelling of the story of how the U.S. government decided to force 112,000 Japanese aliens and U.S. citizens of Japanese ancestry from their homes and into camps in the interior, she maintains that "it should be obvious to any fair-minded person that the decisions made were not based primarily on racism and wartime hysteria" (page 80), but were based instead on information in top-secret decrypted cables from Japan to its embassies around the world (the so-called "MAGIC" decrypts) suggesting that certain people in the Americas (both ethnically Japanese people, including primarily Japanese aliens but also a handful of American citizens of Japanese ancestry, as well as people of other races and ethnicities) were secretly working as spies for the Japanese government.

In other words, the government did what it did to people of Japanese ancestry in the United States from 1941 to 1945 because a select few officials at the very top of certain branches of the government (really a very few--the President, the Secretary of State, and a few War Department officials, but not the Attorney General or J. Edgar Hoover) knew that the Japanese government had sought to develop relationships with ethnically Japanese (as well as ethnically non-Japanese) people in the United States, and had apparently had some success in developing such relationships. It was cool and calibrated military necessity, not racism and not war hysteria.

I'll have more to say about her substantive claims about MAGIC and racism and hysteria later. (Dave Neiwert has already said plenty about it, by the way.)

First, though, people ought to ask Michelle some very serious questions about the book's goal and the research methods that support it.

I was, frankly, amazed at the speed with which Michelle researched and wrote the book, and then brought it to publication. She mentioned yesterday that she had been led to do much of the research for the book by a weblog dialogue (a "diablogue?") between me and Sparky at Sgt. Styker that took place 16 months ago.

I know that when I undertook to tell the story of a single government decision from this era — the decision to draft American citizens of Japanese ancestry out of the camps and into the military (which is the subject of my book) — I had to spend hours and hours first finding all of the relevant files from all the relevant agencies in archives all over the country, then sifting through those files to find all documents from all agencies and people relevant to the decisionmaking process, and then poring over the documents themselves, in order to link together disparate positions of many different people in many different agencies into a coherent narrative.

In "In Defense of Internement," Michelle "corrects the record" by telling a much broader story about a whole long set of government policies and decisions. She cites to original documents from a staggering number of agencies and offices within agencies--the FBI, the Justice Department, the Office of Naval Intelligence, various branches of the War Department (including G1, G2, and the Provost Marshall General's Office), the State Department, the Military Intelligence Division, FDR's communications, and, of course, the voluminous MAGIC cables.

I haven't checked, but I assume that lots of relevant materials for the story Michelle tells would be all over the country--in both DC-area branches of the National Archives as well as many of its regional offices, in presidential libraries, in the private papers of people like John McCloy and Milton Eisenhower and Franklin Roosevelt and George Marshall and many others who played a role in this long anc complex story, and in lots of other places.

I can't imagine how Michelle--or, indeed, anyone--could have done the primary research necessary to understand the record, let alone "correct" it in the manner the book attempts to do, in five or six years, let alone in one. Especially while doing anything at all in addition to researching the book (such as writing a nationally syndicated newspaper column). To tell the story correctly, a person would need to sift through thousands and thousands of pages of archival material from all over the country and then piece bits together into a coherent story.

I have a hard time believing that Michelle did anything of the sort. I suspect that she derived much of the information that supports her account from secondary sources, and relies primarily on primary research done (or perhaps not done) by others. (I do not doubt, by the way, that the documents to which Michelle cites actually exist; I'm not suggesting she's making them up. What I suspect--indeed, what I know from my own experience--is that there must be thousands of additional documents in the archives that are relevant to a full understanding of the government's wartime decisions, and that massively complicate the simple story she narrates.

A person certainly can "provoke debate" (uninformed debate, at least) by going about things in this way. But a person can't "correct the record" in this way, or report history in a way that anyone ought to believe. It's just not possible, and it's not credible.

Eric Muller guest-blogging:

I'm happy to say that fellow lawprof Eric Muller (isthatlegal at bellsouth dot net), of IsThatLegal?, will be guest-blogging here today and tomorrow. Eric is pretty centrist, which probably puts him on the left compared to most of us Conspirators, and way on the right compared to most law professors; but more importantly, he's knowledgeable and thoughtful, and I've much appreciated both his blog and his past guest-blogging stints here.

[Eric Muller (visiting from, August 4, 2004 at 7:30am] Trackbacks

OK, I said my first post on the subject of Michelle's book would come in a couple of hours, and would be about the book's goals and method. I lied.

I posted a message on my own blog yesterday that the cover of the book didn't inspire much confidence that the book would be Fair and Balanced. I thought the visual equation of a Japanese American man with Mohammad Atta was a bit, shall we say, scandalous. Michelle disagreed.

Now I know who the Japanese American man on the cover is (Richard Kotoshirodo), and I still say that the cover is scandalous. Kotoshirodo was an American citizen of Japanese ancestry, educated in Japan (making him a "Kibei"--that is, a person born in the US to Japanese alien parents (a "Nisei") and who was sent to Japan for his primary and/or secondary education) who, while employed by the Japanese consulate in Hawaii, was sent out by the consulate to observe various sites of interest to the Japanese consulate in the months before Pearl Harbor and told to report back on his observations.

The book's cover compares this apparentlyly disloyal American citizen of Japanese ancestry who did some surveillance for his employers at the Japanese consulate before Japan's surprise attack to Mohammad Atta, a Saudi citizen who piloted a plane into one of the World Trade towers, killing thousands of civilian innocents. A fair comparison? Not in my eyes. Maybe you see it differently.

One other thing: nobody who looks at this cover in a bookstore is going to have the faintest idea who the Japanese American face is; nearly everyone, it's safe to say, will recognize Mohammad Atta. Coupled with the book's title ("In Defense of Internment") and its subtitle ("The Case for 'Racial Profiling' in World War II and the War on Terror"), which sits directly between the two photographs, this cover will, I think, suggest to the ordinary person that American citizens of Japanese ancestry presented World War II America with the same sorts of risks as al Qaeda does today. If that's not a scandalous aspersion on the loyalty and character of Japanese Americans, I don't know what is.

Update: Folks are photoshopping the cover of "In Defense of Internment" over here, if you're into that sort of thing.

[Eric Muller (visiting from, August 4, 2004 at 6:52am] Trackbacks

Eugene was kind enough to invite me to guest-blog here today and tomorrow, and with the publication this week of Michelle Malkin's book "In Defense of Internment: The Case for 'Racial Profiling' in World War II and the War on Terror," it looks as though I'll have plenty to write about. About which to write, I mean. (How many times did my father drill into my head the rule that prepositions are incorrect words to end sentences with?)**

The last couple of days have been a bit of a whirlwind. It isn't every day--or every decade, frankly--that a high-profile person like Michelle (syndicated columnist, frequent FOX News contributor) elaborately defends the eviction and incarceration of some 70,000 American citizens of Japanese ancestry from 1942 to 1945 as a military necessity. I got my blog started some 16 months ago when Rep. Howard Coble blunderingly offered his view on a radio program that Japanese Americans were justifiably rounded up because "it wasn't safe for them to be on the streets"--a long-discarded justification for the government's program that Michelle does not see fit to defend in terms (although she generally sticks up for Coble anyway--see page xvii of her book). I would have loved to get a review copy of the book from the publisher, as some bloggers on the right and some warbloggers did, but I didn't. And it's strange that I didn't, given that (a) I'm the only person in the blogosphere who regularly blogs about the government's wartime treatment of Japanese Americans, (b) Michelle wrote yesterday that it was my lengthy exchanges with Sparky at Sgt. Stryker 16 months ago that inspired her to do much of the research for her book, and (c) Michelle cites my work, both approvingly (where, on page 352, she speaks of my "thoughtful" analysis in this article on racial profiling) and disapprovingly (where, on pages 110 and 334, she faults my book "Free to Die for their Country" for "exalting ... belligerent draft resisters" in the camps). Fortunately, my local Barnes & Noble here in Chapel Hill had a copy on Monday, and I was able to read it yesterday, so I'm in a position to say something about it now while the blogosphere is abuzz about it.

I plan to post my reactions to the book serially today and tomorrow rather than posting a single huge review all at once. So, if you're interested in this sort of thing, check back here occasionally. I'll post the first piece of my review--which will pertain to the book's goals and its method--in a couple of hours, when I've got down what I want to say.

In the meantime, a big "thanks" to Eugene for the invitation to guest-blog here again. More soon.

**I know, I know. "With" is a preposition. This was a joke.


I can't tell whether I'm amused by this word or annoyed by it, but it's stuck in my head in either case. Yes, it does mean what you think it means (though the sources that I've seen suggest that it always has a jocular connotation; I haven't been able to check my OED yet to confirm, and I'm on the road and thus don't have ready access to UCLA's online subscription).

UPDATE: Many thanks to readers Bill Rudersdorf and Richard Lowery, who confirmed that the OED does list this as dating back to the 1600s (so it's not just a recent invention of people who wanted to sell dictionaries of obscure words); two of the uses don't seem to be jocular, though the most recent one, from the late 1870s, does.

"When nerds get tattoos":

GeekPress reports.

Tuesday, August 3, 2004

Center for Talented Youth:

I just gave a couple of talks about law this morning at the CTY summer program in L.A., and very much enjoyed it. The students, mostly 14- and 15-year-olds, seemed smart, engaged, and thoughtful; I know Jacob and Tyler have spoken highly about the program before, and my quick sense of it was also very positive. I'd also given a couple of talks to a different bunch of students in the same program several weeks ago, and generally got the same positive impression.

Pitching the Patriot Act:

Legal Times has an interesting article on the public relations campaigns being waged over the Patriot Act. An excerpt:

While political spin is nothing new, the level of hype, hyperbole and outright hysteria surrounding the act is extraordinary. And with the presidential election months away and several key provisions of the Patriot Act set to expire in December 2005, both sides have stepped up to market their interpretation to the American public by launching Web sites, reaching out to local politicians, writing letters to newspapers, and traveling on whistle-stop campaigns.

Monday, August 2, 2004

Using corporate logos in a film:

Apropos the JibJab controversy, reader James Barnett asks:

Did the JibJab parody violate any laws regarding the unauthorized display of corporate logos?

I'm assuming, of course, that they didn't ask for Wal-mart's or McDonald's permission to include the store logos that pop up behind the American Indian.

The answer is "no." As a general matter, people can use others' trademarks in their movies, books, and the like, unless a reasonable buyer would be misled into thinking that the trademark owner endorses the work. At least when the item appears inside the work (as opposed to being on the cover, where casual browser might be more likely to be misled in at least some situations), that's pretty unlikely. And that's true whether the work is humorous or serious, except when a parody is so deadpan and so subtle that a casual buyer might be fooled. (JibJab seems to have altered all or most of the logos it uses, which helps prevent people from inferring that the trademark owners endorse the JibJab movie; but that isn't strictly necessary, which is why an author of a serious book can speak of someone drinking a Coke or driving a Mercedes without having to come up with fictional soft drinks or cars.)

In this respect, trademark law is a weaker intellectual property right — and a lesser (though not nonzero) interference with writers' and moviemakers' ability to create new works — than is copyright law. Copyright law applies without regard to whether consumers will likely be confused by the use of another's work.

Ah, the savvy reader might ask, but what about a trademark that's also a copyrighted work, because it has a substantial and complex graphical dimension to it? A simple word can't be protected by copyright (though it can be a trademark), and probably even the McDonald's golden arches are too simple a graphical image to be protected by copyright (though again it is a trademark). But what if there's an image, such as Mickey Mouse's head that's complex enough to be both a copyrighted work and a trademark?

There, the owner of the mark might have a copyright claim — but when the mark is being referred to as a symbol for something that the new work is commenting on or criticizing, then the fair use defense would probably be pretty effective. In any case, though, the golden arches (plus the word McDonald's) or the WalMart sign are likely only protected by trademark law, not copyright law, and therefore they can be pretty freely used inside movies, books, and the like.

The above is something of an oversimplification, but the best I can do in a few paragraphs.

Hold the presses! Hold the chalk-printing bicycles!

My former student Eric Soskin reports that chalking sidewalks does seem to be illegal in New York, the very place where the chalk-writing bicycle is scheduled to be deployed. N.Y. Admin. Code sec. 10-117 provides:

No person shall write, paint or draw any inscription, figure or mark or affix, attach or place by whatever means a sticker or decal of any type on any public or private building or other structure or any other real or personal property owned, operated or maintained by a public benefit corporation, the city of New York or any agency or instrumentality thereof or by any person, firm, or corporation, or any personal property maintained on a city street or other city-owned property pursuant to a franchise, concession or revocable consent granted by the city, unless the express permission of the owner or operator of the property has been obtained.

N.Y. Admin. Code sec. 19-138(b) provides:

Except as otherwise provided by law, it shall be unlawful for any person to deface any street by painting, printing or writing thereon, or attaching thereto, in any manner, any advertisement or other printed matter.

The City government has taken the view that this prohibits chalking -- not implausible, given that even temporary chalking may be seen as "deface[ment]," and as "writ[ing] on . . . any . . . real . . . property owned . . . . by . . . the city." Chalking is of course easier to remove than graffiti, which seems to have been the main target of section 10-117, but it does seem to be covered by the text of the ordinances.

The federal district court has upheld the ordinances (when applied to chalking) as constitutionally permissible content-neutral restriction that are narrowly tailored to the government interest in preventing "visual blight." Lederman v. Giuliani, 2001 WL 902591 (S.D.N.Y.). The ordinances' challengers didn't seem to put up much of a fight, and the district court's decision might have been influenced by the challengers' failure to really rebut the City's arguments; moreover, district court decisions are in any event not binding precedent.

Still, I suspect that other courts will reach the same result. Though streets are traditional public fora for demonstrations, leafletting, and other purposes, I suspect that the Court will treat unattended displays (even temporary ones) as outside the scope of what the government must tolerate in such fora. And the Court has indeed been open to such aesthetically justified ordinances, when they leave open ample alternative channels for expression (as this one likely would, though one could make a straight-faced though likely not winning argument to the contrary).

It will be interesting to see if the police will ticket the chalk bicycle man, and if he will fight the ticket.

It's a bicycle! No, it's a printer!

My friend Haym Hirsh points to this story:

Josh Kinberg . . . [has developed] a bicycle that receives text messages and prints them in foot-high chalk letters, then blogs a digital photo and GPS map of the printing, all while the rider cruises along. . . .

Kinberg will officially roll out the bike during August's Republican National Convention in New York, but he says the project is as much performance art as protest. The project homepage can be found at See video of it in action in QuickTime or Real Video. . . .

I doubt that this will get mass-produced, but if it does, expect the billboardization, especially for commercial advertising, of yet another surface. (Of course, people have chalked messages in the past, but the difficulty of doing many readable, appealing-looking messages has been a natural check on that.)

For those interested in the legal angle, I expect that right now there isn't one — my guess is that writing in chalk on a sidewalk is generally legal (though if you have positive evidence — rather than just rumor or vague memory — of some prohibitions on it, please let me know). UPDATE: My guess was wrong -- sidewalk chalking seems to be prohibited in New York City. See here for a follow-up.

JibJab asks for declaratory judgment

that they did not violate the copyright in This Land Is Your Land. Sounds good -- should be interesting to see what happens. And if the parties don't settle, we might actually get a published opinion out of it, which could set a valuable (or awful, depending on what you think of its merits) precedent for the future.

Thanks to Ralph Luker for the pointer.

Anticipatory Search Warrants: I have read a lot of Fourth Amendment cases over the last few years, but today I learned something new: several courts of appeals have allowed the government to obtain and execute "anticipatory" search warrants. According to these cases, the government can get a warrant even if their case for probable cause hinges on some future event. If the future event occurs, the warrant becomes operative and they can execute the search. If the future event does not occur, then the warrant is not yet operative and they cannot execute the search.

   The Ninth Circuit's most recent decision, last week's United States v. Grubbs , provides a helpful illustration. The police obtained a warrant to search a home for child pornography. The "condition precedent" was the receipt of child pornography that the suspect had ordered to be delivered to his home. The police obtained the warrant, and then waited for the item to be delivered. When it was delivered, the police executed the warrant.

   Maybe I am missing something, but I find this line of cases quite troublesome. The whole point of a warrant requirement is to have a neutral magistrate decide when probable cause exists. The decision to authorize the search is up to the judge, not the police officer. The addition of a condition precedent delegates that decisionmaking authority to the law enforcement officer, at least in part. Because the officer decides when the triggering event has occurred, the probable cause determination is no longer made entirely by the neutral magistrate.
Supreme Court agrees to hear the Blakely Sentencing Guidelines issue:

The Supreme Court just granted certiorari in U.S. v. Booker and U.S. v. Fanfan, and set oral argument for the first day of the new Term (as predicted here, though it certainly wasn't an out-on-a-limb prediction).

The CIA / John Kerry connection:


While Democratic presidential nominee John Kerry and his running mate, John Edwards, and their families were having a "lite" lunch at Wendy's in the Town of Newburgh Friday, drumming up local support right after the national convention in Boston, their real lunches were waiting on their bus.

A member of the Kerry advance team called Nikola's Restaurant at the Newburgh Yacht Club the night before and ordered 19 five-star lunches to go that would be picked up at noon Friday. Management at the restaurant, which is operated by CIA graduate chef Michael Dederick, was told the meals would be for the Kerry and Edwards families and actor Ben Affleck who was with them on the tour. . . .

Former CIA employees making food for the Kerry campaign? What other stuff are they passing along to them? Sure, they'll tell you that this is the explanation, but can you believe a story like that?

Case notes -- question for law review editors:

I'd like to add some material to my Academic Legal Writing book on (1) writing casenotes for publication, and (2) writing casenotes for a law review write-on competition, when the competition requires a casenote. I'm not wild about casenotes as a genre of legal scholarship -- I don't think they're particularly useful to readers, and I don't think they make particularly good calling cards for their authors -- but I know that some law reviews have students write them, so I'd like to discuss them.

Naturally, I've thought quite a bit about the subject myself, but I'm surely not above soliciting free advice. If you're a law review editor, and have some thoughts on (1) what you think makes a casenote especially publishable, or (2) what you think makes a casenote in a law review write-on competition especially good -- potentially two quite different questions, I realize -- could you please e-mail me at volokh at Thanks very much.

The E-Mail Privacy Act of 2004:

A few weeks ago, I wrote a long post about the First Circuit's recent wiretapping decision in United States v. Councilman. As I explained in that post, Councilman is a dangerous decision for Internet privacy; a statutory fix to correct the decision is very much needed. The first of several bills attempting such a fix was introduced in Congress last week. The bill is the E-Mail Privacy Act of 2004, introduced by Rep. Jay Inslee. I thought I would take a look at the bill and offer some comments. My basic take is that it is a well-meaning bill, but not a skillful effort to fix the Wiretap Act and solve the Councilman problem. (Warning: The rest of this post is very technical. Instead of writing for a general audience, I'm going to address the post to the much much smaller audience of Wiretap Act geeks out there.)

The bill does two things. The first step is to amend the definition of "intercept" in 18 U.S.C. 2510(4). Here is the current version, with the proposed new language in bold:

"intercept" means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device, and, with respect to an electronic communication, includes the acquisition of the contents of the communication through the use of any electronic, mechanical, or other device, at any point between the point of origin and the point when it is made available to the recipient.
   What the drafters are trying to do, I gather, is draft a narrow statutory fix. After all, the surveillance tool used in Councilman was in fact a device that acquired an electronic communication between the point of origin and the point it was made available to its recipient. The drafters were probably thinking that the best fix would be to describe what happened in Councilman and just stick in the language into the statute. In a statute as complicated as the Wiretap Act, however, that approach doesn't work.

   The main reason it doesn't work is that it introduces a new concept to the Wiretap Act — that of a "point of origin" of an Internet communication and a "point when [a communication] is made available to the recipient" — that is quite unclear. I think it would leave the law in a state of considerable confusion. For example, is this "point of origin" a physical location? Or is it a temporal concept, meaning the time when a communication was sent? Or does the concept mix spatial and temporal notions? Similarly, at what point is a communication made available to its recipient? In the case of an e-mail, is the e-mail made available when it arrives in the recipient's inbox? What if the recipient's password has been changed, and he no longer has access to his inbox-- is the e-mail made available to the recipient at that point? And how would this apply to Internet telephony, packets that are probably exempted from the amendment because the packets contain bits of phone calls and therefore are wire communications, not electronic communications? Would Councilman continue to apply to VOIP, and if so, why?

   But wait; there's more. What is the point when a communication is made available to its recipient in the case of an Internet communication other than an e-mail? The Councilman case happened to involve e-mail, but the Wiretap Act applies to all "contents" of communications sent on the Internet. Although the precise scope of "contents" is unclear, it almost certainly includes computer commands and quite possibly includes URL search terms. Who or what is the "recipient" of these communications, and when are such communications made available to that recipient? In the case of a person-to-person communication, there is a human sender and receiver that presumably provides the point of reference for the point of origin and availability on receipt. But how to these notions apply to human-to-computer and even computer-to-computer communications? I have no idea.

   In light of these questions, I don't think that this effort to amend 2510(4) is the way to go. There is much better language floating about that would amend 2510(4) much more skillfully (more on that later), and that won't create so many headaches.

   The second part of the Inslee bill is designed to address the broader issue of when ISPs can look through stored files of their customers without violating federal law. This isn't exactly a Councilman problem from the standpoint of the law, and I don't have particular views on this part of the bill. At the same time, the proposed amendment is related to the facts of the Councilman case, and is interesting from the standpoint of the privacy rights of Internet users vis-a-vis their ISPs.

   The generally accepted view has been that the primary law that protects the privacy of stored user files from unauthorized accesses exempts ISPs that provide the service. That law, 18 U.S.C. 2701, states that that general prohibition on unauthorized access to an ISP does not apply "with respect to conduct authorized . . . by the person or entity providing a wire or electronic communications service." The idea is that the law regulating when system administrator can look through user files stored on the ISP's server should be contract law — the Terms of Service that regulate the account — rather than federal criminal law. (A recent 9th Circuit decision arguably rejects this view, but that's another discussion.)

   Inslee's bill would amend the ISP exception from criminal liability so that it applies only "to the extent [that] the access is a necessary incident to the rendition of the service, the protection of the rights or property of the provider of that service, or compliance with [rules regulating voluntary disclosure in] section 2702." This language is mostly copied from the Wiretap Act, and would incorporate the standard from the provider exception of 18 U.S.C. 2511(2)(a)(i) — read all about that standard here — from the Wiretap Act to the Stored Communications Act.

   The basic gist of the change is that ISPs would only be able to look through user files for legitimate reasons relating to the provision of service, and then only when the particular way that they looked through the files was narrowly tailored to those service needs. Is this a good idea? I don't know. I assume that ISPs will fight it: they will argue that it is a bit much to have employees risk indictment (and ISPs risk the threat of class action lawsuits) for the particular way that their employees look through files stored on the ISP's server. On the other hand, the change might not make much difference; the same law allows the consent of a subscriber to exempt the ISP from liability, and ISPs would presumably try to get at least a partial waiver of rights in the Terms of Service if this amendment went forward.

Sunday, August 1, 2004

Sunday Song Lyric: In 1988, George Bush was running for President as a virtual incumbent against a liberal Massachusetts politician. At the time, I was listening to a lot of ska, particularly various bands that, at one time or another, recorded on the 2Tone label, including The Specials, the Untouchables, and the Beat (aka English Beat). One of the ska bands I particularly enjoyed was Madness. Their music was fun and upbeat, and often displayed a wild sense of humor. (Who else would name a song "Michael Caine"?) One of their biggest hits — never, to my knowledge, released on a studio album in the U.S. that wasn't a compilation — was "It Must Be Love," a fun little ditty and this week's song lyric.
I never thought I'd miss you
Half as much as I do
And I never thought I'd feel this way
The way I feel
About you
As soon as I wake up
Every night, every day
I know that it's you I need
To take the blues away

It must be love, love, love
It must be love, love, love
Nothing more, nothing less
Love is the best

How can it be that we can
Say so much without words?
Bless you and bless me
Bless the bees
And the birds
I've got to be near you
Every night, every day
I couldn't be happy
Any other way

It must be love, love, love
It must be love, love, love
Nothing more, nothing less
Love is the best

As soon as I wake up
Every night, every day
I know that it's you I need
To take the blues away

It must be love, love, love
It must be love, love, love
Nothing more, nothing less
Love is the best

It must be love, love, love...

Saturday, July 31, 2004

FDR's Folly: Jim Powell's FDR's Folly is a good but flawed book. He does a very good job at showing the economic irrationality of a wide range New Deal policies, and of bringing the latest economic research to bear on the effects of those policies. On the other hand, the book is written in a polemical, over-the-top style that virtually ensures that historians won't take it seriously. This is really too bad, because most historians (of the New Deal and otherwise) are economically ignorant, and their work would be improved by exposure to economically sound explorations of past American economic policy. A couple of examples of the problems with the book, on issues on which I have particular knowledge/expertise: (1) Powell cites my book for proposition that 500,000 blacks put out of work by NIRA. This was one New Dealer's estimate, and I point out that many historians think is exaggerated. Why state a disputed figure as a fact? Why not just say, "as many as" or "some estimate that"? (2)Powell states that Supreme Court Justice James McReynolds, an arch-foe of the New Deal, "didn't like" Jewish Justices Brandeis and Cardozo. Actually, McReynolds was a raving anti-Semite, and a racist, too. Powell didn't have to raise the issue at all. Or, he could have simply stated the truth, which I think effects not at all whether McReynolds was right to think the New Deal largely unconstitutional. Instead, an objective reader might conclude that Powell intentionally downplaying McReynolds' anti-Semitism to buttress the anti-New Deal case. In short, the book makes a lot of good points, but does so in a way that is unlikely to persuade many readers who were not already inclined to be anti-New Deal.