Author Archive

I recently paid a visit to Chicago, and had a pleasant visit with Lex. I also got to take some pictures around Chicago, especially along the river. With no further ado, I present the pictures:

Update: It seems the link below was wrong before. I’ve fixed that now. Thanks for the comments on the pictures; I have to say that Chicago architecture makes taking great pictures so much easier!

[Excerpted from Between Worlds]

James Taranto makes the following comment on a recent E.J. Dionne column, regarding the pretentions of the two national parties:

It has been widely noted that congressional Republicans have failed to live up to their billing as the party of small government, especially since George W. Bush became president. There are exceptions, to be sure, but the allure of spending other people’s money has proved so great that voters have not gotten the spending restraint they expected when they elected a Republican Congress in 1994. About all that Republicans can say in defense of this record is that Democrats have been worse.

Yet what is less widely noted is that the Democrats, in opposition, have presented themselves to a large extent as an antigovernment party. One of their main themes has been that the Bush administration is “incompetent”–that, at least for now, the government can’t do anything right. As we noted in September, former Enron adviser Paul Krugman blamed the allegedly poor response to Hurricane Katrina on Ronald Reagan’s “ideological hostility to the very idea of using government to serve the public good.”

This attitude betrays a fundamental lack of faith in government. Its implication is that the institutions of government are too frail to withstand the pressures of American democratic politics. It is also a remarkably self-serving position. Liberal Democrats take credit for creating an enormous government, which, according to them, doesn’t work–but would work just fine if only the populace were smart enough to elect liberal Democrats.

In sum: Republicans favor small government but embrace big government when they have the power to control it. Democrats favor big government but insist that it can work only when they have the power to control it. Politicians in both parties, then, seem to see government as a means to the same end: their own political power. Little wonder that voters are suspicious of government.

That seems about right. I think many Americans were intrigued, in 1994, by the possibility that the Contract with America might just prove to be the tonic long needed in national government. Unfortunately, as with most revolutions, this one too reversed to Establishmentarian form once its enumerated objectives were met.

Given the choice between bad ideas and no ideas, is it any wonder voters and citizens are tuning out?

[Cross-posted at Between Worlds]

Finals season is over, but all is not quiet in Law Law Land. It is now time for the write-on competition for positions on the school’s journals, the Loyola of Los Angeles Law Review, the Loyola of Los Angeles International and Comparative Law Review, and the Loyola of Los Angeles Entertainment Law Review. The subject just so happens to involve Amendment IV, which came up obliquely as part of another topic I’ve been keeping my eye on lately: The raid of Congressman William Jefferson’s offices.

I won’t get into the nitty gritty of the particular events, but I wanted to recall a conversation I had with an online friend lately. The friend had said, in part, the following:

Whether or not the warrant is valid is a separate issue from whether or not the search is allowed ab initio. The warrant could have been perfectly valid and any special procedures could have been followed and the search could still be entirely illegal per AI S6.

This is what I wrote in response:

Hrm. Let me restate what I think you’re saying: Regardless of whether or not procedures are in place and followed in order to separate Speeches and Debates material from material required for a major criminal investigation (specifically, AIS6 excepts “Treason, Felon and Breach of the Peace”), the presence of Speeches and Debates material exempts all other materials in the office.

If I’m misunderstanding you, skip the rest of this post and correct me.

If I’m not misunderstanding you, we have 2 issues raised by that interpretation:

1. Are there ever any circumstances in which a MoC’s office can be searched? What about in case of a bomb scare, in which officers (presumably led by Capitol Police, who report to Congress, but possibly including ATF and/or FBI officers, who report ultimately to the Executive) are called about a possible bomb in one of the offices? Such a thing was unfolding this morning when someone reported that there were gunshots at the Rayburn House Office Building. Capitol Police fielded the call, but FBI were involved as well.

   If there are some circumstances in which a MoC’s office can be searched, what might pose such a circumstance?

2. AIS6 poses the following (as you’re aware):

   They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of their respective Houses, and in going to and returning from the same; and for any Speech or Debate in either House, they shall not be questioned in any other Place.

   Notice:

   1. The privilege from Arrest has nothing to do with “Speech or Debate”.
   2. The exceptions come first. So where a major crime is involved, there is no privilege.
   3. Nowhere does it mention an extraordinary privilege from searches and seizures, except possibly with regard to Speeches and Debates.

It seems to me that Jefferson’s Complaint claims not so much that he is protected by the privilege from Arrest than that his office is immune to searches and seizures because searches and seizures should be interpreted as questioining him about his legislative operations.

From there, I can see another way of getting to your conclusion, that validity of warrant is irrelevant. The core issue, as proposed by Jefferson, seems to be: Searches and seizures of an office which holds legislative material should be interpreted as questioning his speech and debate material.

I think there is definitely an issue of law there. A judge must then consider the practical effects.

1. If he agrees with the interpretation (i.e., a search of an office, regardless of the target and regardless of procedure, is an unrebuttable per se violation of AIS6), then the following becomes true:
   1. Jefferson wins.
   2. Any Member of Congress can hide evidence of treason and felony in his office and claim immunity.
   3. There would be new issues as to what exigencies, if any, can justify any searches. (That goes back to the item about today’s reported gunfire.)
2. If he disagrees with the interpretation (i.e., a search of an office, regardless of the target and regardless of procedure, is an unrebuttable per se violation of AIS6), then the following needs to be resolved:
   1. Must searches and seizures be limited to Capitol Police, which report to the Congress?
   2. May Executive Branch officers ever be involved (considering the FBI’s heavy involvement in D.C., it probably would not be practicable to exclude Executive Branch officers entirely)?
   3. Under what circumstances may Executive Branch officers be involved? (Presumably, only when the Judiciary signs off on a warrant; i.e., no unilateral action by the Executive Branch.)
   4. Under what circumstances, if any, may a Judicial Branch officer sign off on a search?

My guess is that no judge will grant absolute immunity of the sort Jefferson seems to be looking for. I also don’t think any judge will lay down an exact rule as to how a search may be conducted. If anything, the court would probably issue a guideline or a balancing test to help future judges decide whether or not appropriate precautions have been and will be taken before signing off on a warrant.

[Cross-posted at Between Worlds]

Reader Marian Wirth recently took me to task over an earlier piece on immigration. Marian took issue with my characterization of French and German immigration policies, and expounds on the debate much more fully his own website.

First, the semantic issues. It is quite true that the failure of border patrol in the United States does not amount to much of a policy. As for what German immigration is, I’ll defer to Marian’s more intimate familiarity with that issue. However, what I was speaking of was immigration systems. This is probably a bit of a vague term, so I’ll get on with it.

Second, and more to the point, I want to address the illegal immigration issue here in the United States.

Ever since I can remember, the political discourse in the United States regarding immigration has been broadly characterized in the media as a typical struggle of Marxist proportions (although no newspaper will use those words). Specifically, the media portrays it as a struggle between poor, downtrodden laborers, and the rich, racist, WASPs who criminalize them with wicked laws. Since 9/11, another hue has been added to the picture: In addition to being rich, white, and oppressive WASPS, those in favor of tighter border security are now portrayed as paranoid right-wing nutjobs irrationally trying to isolate themselves from the world. This is a characterization which Democrats have unfortunately been quick to seize upon. From the Pete Wilson-era propositions which would have discontinued funding for bilingual immersion classes, and withheld all but emergency medical services from illegals, to the push to require legal status (citizenship, residence, guest worker, approved student, etc.) in order to obtain a driver’s license, anything that tried to find any semblance of structure was met with one epithet: racist.

Thus, anyone who didn’t support the May Day protests with full-hearted enthusiasm must be racist. Never mind that nobody’s advocating an end to immigration; the boycott was also called Immigrant Day. Never mind that what many are objecting to is the flood of illegal immigration. If you opposed illegal immigration you must be ipso facto a racist opposed to all immigration. Many of the organizers wanted the world to think that this was all about jobs and nothing else. (It really is no coincidence that the people trying to turn this into a debate about labor mobility are, for the most part, post-modern Communists. International A.N.S.W.E.R., a vociferous critic of capitalism, was one of the organizers. The first of May, by the way, happens to be May Day, or International Workers’ Day, a Communist holiday.)

So let’s take them at their word, that all immigration was only about jobs. Let us also take into account the fact that the overwhelming number of illegal immigrants are from Mexico, which the activists would have you believe is a symptom of racism, rather than of the geographical fact that Mexico has a long border with the United States. If the issue was only jobs, why not reform the immigration system so that we have a more flexible way of providing for everybody’s needs?

Like Mad Minerva, I come from a family that immigrated to the United States legally (although many better-placed families were able to use their connections to expedite their visa applications in the rush to leave Taiwan after President Carter officially switched recognition to the People’s Republic of China). We would represent those that intend to make the United States our home, a place where we intend to develop roots.

There are many others who would be more than happy to just come to the United States to work, then after they’ve saved up enough money, go back to their home countries and, hopefully, retire. Examples of these include a large portion of illegals from Mexico, but also a large number of pre-20th Century immigrants from all over the world, including Ireland after the potato famine, and China during the California Gold Rush. Many of these probably would like to stay eventually.

And why not? Engraved at the base of the Statue of Liberty is a poem that beckons to the world’s tired, hungry, and wretched. America, it is said around the world, is a land of dreams, of opportunities. The tales of streets paved with gold are a bit exaggerated, but the promise of reward to go with a good work ethic is basically alive and well.

But what dream would it be if it could be dashed at any moment by instability, if there is no rule of law to settle disputes? And yet some of these activists would have us throw out our system of laws, just because Jose or Juan couldn’t be bothered to file for a work visa?

Clearly, the status quo does not serve us well. But is amnesty the right answer? DJ Drummond thinks so, and brings up some very good points:

Sharpen the definitions of �citizen� and �resident�, make clear that we welcome all sorts of legal immigrants but must protect our borders and enforce our laws, and offer the chance to start over for people who leave politely and immediately. And make very, very clear that anyone who remains here against the law after than point may expect a stronger and more determined, coordinated response at all levels.

I don’t care for the word “amnesty”, but if that’s what it must be called to get the requisite votes to clear Congress, so be it. But DJ is clearly on the right track. There is no way we can afford to deport 12 million people. Like it or not, we’re stuck with them. So, how do we integrate them into our society, and how do we pave the way for a more effective future system?

I won’t pretend that I have the perfect, or even the only viable plan. But here’s what I think:

• Revamp the guest worker program. Create two tiers, one for skilled professionals and another for unskilled professionals. Unskilled professionals will not be entitled to unemployment benefits, and will have shorter grace periods for picking up new work in case of a layoff.
• Increase staffing in consulates general to expedite background checks.
• Amounts paid into social security can accrue for future payouts, but if a worker is forced to leave the country by, for example, unemployment or other ineligibility for renewal, and does not qualify for re-entry for more than a year, amounts paid into social security are forfeit. That money could probably be best used to pay benefits to citizens and legal residents, who, in an economy that cannot even employ guest workers, will probably need the help.
• Harsh penalties for human traffickers. I suspect a lot of these middlemen entice workers with promises of the golden land in exchange for exorbitant amounts of future debt. This is at the very least true for many illegal immigrants from China; there is nothing that suggests that it isn’t true of illegals from Mexico or other places as well.
• Rather than designate current illegals as felons, allow them a grace period to apply for guest worker status. Those with violent criminal records must be deported immediately. Those with minor, non-violent records must pay a fine. Those who have been here for less than, say, 5 years must also pay a fine. None will qualify for social services in excess of what they earn from here on.
• In all cases, contribution to and participation in local communities will be mitigating factors.

The point is, people see the shining beacon that is America. They should be allowed to become “official” Americans, provided they can show, through their hard work and contributions to the life of the community, that they love this country. This is important; have you ever seen the giddiness a “newly minted” American exudes? While certain cultural values will always be shifting, others cannot be abrogated. Civic awareness, typically very low in non-Western nations, is important.

Integration does not mean simply providing services and then hoping the immigrants sink or swim, as with the European model. Integration means actual involvement with the day-to-day civic life. Perhaps America doesn’t need to reach out anymore to scour the planet for those who want to come here; but we need to make sure there are no delusions about what it takes to be an American, and no mistakes that the vast bounty of America’s resources will not be doled out to those who would break American laws.

I imagine some will be turned off by this. You can’t please everyone. But I’m pretty sure that if someone is turned off because he has to (*gasp*) work at getting what he wants, American really doesn’t want him around. We’ve got plenty of people who already do not believe in personal responsibility; we don’t need more.

[Cross-posted at Between Worlds]

Do you remember the first time you gave some money to a beggar? How many had you turned away, telling yourself, “next time, next time” before you finally dug some change out of your pocket? If you have given often, have you ever thought, he’s just going to use it to get drunk? I’ll bet you have. Did that stop you from giving again?

If you could help everyone who was in need, and it was no sacrifice, I bet most of you would. But you can’t, so you have to be picky. The guy at the street corner with that smoldering spark of hope in his eyes, holding up a sign declaring that he will work for food: I bet you’d rather help him than the inebriated chap stumbling toward you saying, “Gimme yer money, I need some fuckin’ money!” I bet the choice is even easier when both guys are standing right there, in front of a bar. You have this gut feeling that the guy who hasn’t given in to drink is probably more worth your dollar than the lush.

So it is with humanitarian aid: In a world of finite resources, you help the ones that will benefit most, or maybe the one that’s easiest to reach. So too with humanitarian intervention. Jeff Jacoby of the Boston Globe writes in defense of a humanitarian case for the Iraq War, beginning with a quote from Pamela Bone:

She is writing about a group of female Iraqi emigrees whom she met in Melbourne in November 2000.

“They told me that in Iraq, the country they had fled, women were beheaded with swords and their heads nailed to the front doors of their houses, as a lesson to other women. The executed women had been dishonoring their country with their sexual crimes, and this behavior could not be tolerated, the then-Iraqi leader, Saddam Hussein, had said on national television. More than 200 women had been executed in this manner in the previous three weeks…. Because the claims seemed so extreme, I checked Amnesty International’s country report…. Some of the women’s ‘sexual crimes’ were having been raped by one of Saddam’s sons. One of the women executed was a doctor who had complained of corruption in the government health department.”

It was cruelty such as this that has stirred other liberal lions, such as Christopher Hitchens, to join others in support of the war. And yet. And yet:

I remember asking Ted Kennedy during the run-up to the war why he and others in the antiwar camp seemed to have so little sympathy for the countless victims of Ba’athist tyranny. Even if they thought an invasion was unwise, couldn’t they at least voice some solidarity with the innocent human beings writhing in Saddam’s Iraqi hell? Kennedy replied vehemently that he took a back seat to no one in his concern for those who suffer under all the world’s evil regimes, and demanded to know whether supporters of war in Iraq also wanted to invade North Korea, Burma, and other human-rights violators.

It was a specious answer. The United States may not be able to stop every homicidal fascist on the planet, but that is hardly an argument for stopping none of them.

It is not a perfect analogy to the beggars, certainly. The fact of war makes it a less than perfect analogy. But the fact is that, despite whatever you, dear reader, may believe about the Bush Administration’s rationale for war, there was a deeply urgent humanitarian need in Iraq, that could only be met by the ousting of Saddam’s regime. Iraq was the case that could most benefit from “help”, and that was most easily reachable: Saddam had, through his intransigence not only on ceasefire terms, but U.N. Security Council Resolutions (for what they’re worth), provided the legal basis for what amounted to a resumption of the first Gulf War. There are few other countries that are implacable inimical to the United States, that are also security risks as well as humanitarian time bombs waiting to go off.

There is no doubt that we have expended much treasure on Iraq, not only in money, but in the irreplaceable lives of our sons and daughters. A cost so dear may not seem, to some, to have been worth it. Yet how much more meaningful is our aid, than mere money? Anyone can throw money around. But how many would have sacrificed lives? Especially, who among the Western nations would have sent soldiers in the path of real harm, for a people from such a different culture?

Anyway, what’s done is done. Now we have a choice. Do we withdraw, and congratulate ourselves for having given a fish to the pauper? Or do we stay, and teach the pauper how to fish for himself?

(Hat-tip: Lorie Byrd)

[Cross-posted at Between Worlds]

Oskar Lafontaine, a German politician of the Left, has weighed in on the definition of “terrorism”: Herr Lafontaine asserts that “terrorism is the killing of innocent people to achieve political objectives”. By this definition, certainly, the men who turned jetliners into weapons on September 11 are terrorists. Herr Lafontaine concedes this. But, by the same token, he argues that “Americans are also terrorists when they bomb cities and villages in Afghanistan (and) Iraq and kill tens-of-thousands of innocents.”

There is, of course, a consistency here, something different from blind anti-Americanism. It is a consistency born of a simple moral absolutism: All killing is wrong. Of course, it isn’t quite that simple. It is modified in that only the killing of innocents is to be considered terrorism. This means that any time collateral damage occurs, the actor who caused such damage is to be regarded a terrorist, regardless of the lengths taken to avoid it.

The refreshing thing about this, of course, is that it’s not quite moral relativism: It is moral equivalence. The only way to avoid ever becoming a terrorist, then, is for a state actor never to act at all. This is, essentially, a strict liability view of the world: It matters not what your intentions were; if some innocent somewhere dies, and the proximate cause is your action, you are automatically a terrorist.

Yes, it’s easy to ride the moral high horse when you’re not in charge. The fact that Herr Lafontaine has no real power whatsoever is a testament to the limits of such a position among even the cynical German electorate.

(Hat-tip: Davids Medienkritik)

[Cross-posted at Between Worlds]

Some friends and I were exchanging notes, and we discused the possibility that Slobodan Milosevic’s death was part of a conspiracy. I don’t usually spring for conspiracy theories, but we did discuss that the International Criminal Court having a motive: Milosevic’s defense had made a mockery of the proceedings. My friend outlined some of the problems with the ICC:

1. Jurisdiction/sovereignty: This is basically a question of who has power over the defendant. The Serbs insist that Milosevic was theirs to try, and even his bitterest opponents in that country are angry that he was removed to the Hague. The essence of the jurisdictional issue is that Under Yugoslav Federal law and Serbian law, which govern the person of Slobodan Milosevic, the man and the Head of State, there is no call whatsoever for the ICC to try him because the legal institutions exist inside the country to judge the former President, if and when a case is made against him, which to date has not been the case. Further, Serbia, at the time of his alleged crimes, did not recognize the ICC.

2. Serbian Law: The ICC considers itself to be in the right, but under Serbian law, the decision to take Milosevic to the Hague for trial constitutes kidnapping, since it was not agreed upon by a majority of the Serbian cabinet ministers. Thus, even if the ICC has jurisdiction by Milosevic’s presence, it is only because he was forcibly brought before the court.

3. Evidence: Simply put, there isn’t any. Of the over 2000 people initally slated to testify against Milosevic, all but 5 have refused, partially over the sovereignity dispute, and the testimony of those 5 is both weak and unreliable. There is no paper trail or any sort of documentation that links Milosevic to any of the alleged crimes. It’s literally Milosevic’s word against the prosecutors.

4. Lack of a Jury: This is one of the United State’s major complaints, and Milosevic has hammered it. The ICC doesn’t have juries…it uses a three judge panel to reach decisions. This is inherently fraught with conflict of interest, because if the ICC “loses” such a high profile case it will be the laughingstock of the world, and will never approach legitimacy. But inherent in that conflict, no fair trial was really possible for Milosevic.

5. Legality of the Court: This is a finer point of law, but was Milosevic’s main argument, which the court had no answer for. Milosevic claimed that the ICC had no legal basis to hear his (or any) international case. The judge interpreted that as a question of jurisdiction, but they are not the same thing. Jurisdiction concerns the power of the court over the defendant. I could set up the court of “plezercruz” in my back yard with Jon holding a gun as my bailiff, and, if you stumbled into my back yard, I could declare jurisdiction over you because I CAN force you to comply. But it certainly wouldn’t be “legal.” Jurisdiction is about power, not right.

   Legality concerns whether the court actually is an agent of law in the first place. Milosevic’s argument was, basically, that since the UN Security Council itself had no right or ability in law to sanction him personally, it was impossible for that same council to create a court to do that for them. Courts are agents of the sovereign, and the UN has no sovereignity by defintion. By his argument, the ICC had no more right to try him than I have of trying you in my backyard. This argument crippled the ICC. It had no answer for it.

   Milosevic asked the ICC to seek a ruling from the International Court of Justice (a non-criminal UN court which settles inter-sovereign disputes and is nonbinding) as to it’s own legality, but the ICC basically ignored his request, despite amicus briefs from all over the world urging them to do so, probably because the ICC likely has no legitimacy in law.

Overall, Slobodan Milosevich managed not only to derail his own prosecutors, but shook the basic foundation of the ICC itself. If not for Slobodan Milosevich’s glaring humiliation of the ICC, Saddam Hussein might have been sent to the ICC for judgment. Instead, the world has now seen that the ICC has deep internal legitimacy issues, and it is unlikely that any of Iraq’s ‘war criminals’ will be sent there.

From that perspective, indeed, there seems to have been a motivation to hasten Milosevic’s departure from the mortal realm.

(Hat-tip: plezercruz)

[Cross-posted at Between Worlds]

The Cold War has been over, or so we’re told, for over a dozen years now. Why then is it that our political discourse sometimes still sounds like Marx vs. Gladstone? Eric S. Raymond examines the history of ideological warfare, from its roots in the Cold War, to the modern manifestation in the seeming clash of civilizations between Islam and the West.

The essay does wax a bit … pretentious, if I may. But all the name-dropping (in terms of philosophers, writers, and memes) is exactly the sort that ivory tower types might be most excited by.

The essay also seems to adopt what Richard Hofstadter has called the “paranoid style”. Now, I’m not big on conspiracy theory or religion, which share some traits. Still, the temptation to adopt conspiracy theory is a basic human impulse, and in this vein, one could do worse than to read what Raymond has to say. You don’t have to agree with his conclusions, but what he states should be interesting, and a thought-provoking examination of the source of your beliefs.

[Cross-posted at Between Worlds]

The Ivy League has lost another one. Larry Summers has resigned.

Over his time at Harvard, Summers has brought the university back into public light, and tried to make the university more accessible. Unfortunately, he has made unfortunate comments such as this:

He offered three possible explanations, in declining order of importance, for the small number of women in high-level positions in science and engineering. The first was the reluctance or inability of women who have children to work 80-hour weeks.

The second point was that fewer girls than boys have top scores on science and math tests in late high school years. “I said no one really understands why this is, and it’s an area of ferment in social science,” Summers said in an interview Saturday. “Research in behavioral genetics is showing that things people previously attributed to socialization weren’t” due to socialization after all. This was the point that most angered some of the listeners, several of whom said Summers said that women do not have the same “innate ability” or “natural ability” as men in some fields.

Asked about this, Summers said, “It’s possible I made some reference to innate differences. . . I did say that you have to be careful in attributing things to socialization. . . That’s what we would prefer to believe, but these are things that need to be studied.”

Of course, at the bastion of liberal sensibilities that is Harvard, that comment did not go down well, as there’s no possibility that a white male could have any purpose in mind other than to degrade, denigrate, and disregard womyn. Right.

And now, the flickering light of sanity that Summers was trying to bring to the ivory towers of the Ivy League is to be extinguished. And Summers isn’t completely coy about his reasons:

Working closely with all parts of the Harvard community, and especially with our remarkable students, has been one of the great joys of my professional life. However, I have reluctantly concluded that the rifts between me and segments of the Arts and Sciences faculty make it infeasible for me to advance the agenda of renewal that I see as crucial to Harvard’s future. I believe, therefore, that it is best for the University to have new leadership.

(Hat-tip: Mad Minerva)

Look for the “liberals” now to proclaim that the hens have chased the fox out of their house. Of course, never having been out of the coop, it may be easy to mistake a guard dog for a fox.

[Cross-posted at Between Worlds]

Davids Medienkritik takes Der Spiegel to task for again pandering to the addiction to anti-American innuendo.

Torture in the name of freedom? Since when has America advocated torture as a means of promoting freedom? When someone is tortured or abused in a German jail in violation of established standards, does that mean the German government is torturing in the name of democracy as well? When illegal immigrants suffocate or commit suicide in German custody is that also in the name of democracy? It is as if the United States had never addressed the issue. It is as if the McCain bill torture ban had never been passed by Congress and signed by the President.

This is a dangerously cynical equation of two concepts. Particularly in a Europe where the general public is already so jaded that many no longer believe in the concept of freedom. Why? Because instead of reporting on the systematic violation of human rights in nations like North Korea and Iran the German media finds it necessary to exploit two year old photos of Abu Ghraib for profit (again and again). Never mind that Saddam’s Abu Ghraib was a thousand times worse or that hundreds of thousands are starving to death in Kim Jong Il’s gulags. There is no need for context in the world of asymmetric journalism.

I don’t doubt that torture is a blight on America’s good name, and it is a sin that needs to be rooted out. Many are of the opinion that torture is not, in fact, effective. (It must seem ironic to anti-Americans that John Yoo, who has written in support of the idea that the Constitution grants the executive expansive powers in times of war, happens to think that “answers extracted under torture might not be reliable” [answer to question 11] — but that won’t, of course, stop the demonization.) In fact, American policy appears to have gradually shifted away from reliance on torture. However, due to the slowness of the process of discovery, some of the worst abuses did not emerge until some time after they had been committed, and (hopefully) dealt with.

In the United States, one of the foremost critics of torture, who writes eloquently and usually does not fly off the handle, is Andrew Sullivan. Sadly, he is one of only a few who backs up his critiques by looking for facts to support his accusations. The rest, unfortunately, seem to regard torture less as reprehensible in itself, than as a vehicle by which to score political points against the current Administration. While Sully’s writings sometimes may seem to lean in that direction (and some have accused him of ulterior motives), they are nonetheless well thought-out, and do not get in the way of his desire to see the West triumphant. His aim primarily is to have the West win as cleanly as possible, and however idealistic, it is a worthy goal.

I regretfully observe, though, that it is far too easy for media outlets to capitalize on the market for sensationalist reporting. Not that Der Spiegel is really regarded as a font of serious writing (which does not mean that it’s never published thought-provoking material). In fact, I doubt Der Spiegel is any more highly regarded as a serious policy journal than, say, Vanity Fair or Rolling Stone.

But as Ray D. notes:

The irony of it all is that publications like SPIEGEL would not even have the freedom to print this exploitative trash had it not been for the massive sacrifice in lives, blood and toil of American soldiers to liberate Germany from Fascism and defend it from Communism.

No context. No differentiation. Shock value. Manipulation. Emotionalism. Sensationalism. And then the same publication dares lecture us on the dangers of anti-Americanism.

That’s legacy media for you right there. Well, it’s not Davids Medienkritik for nothing!

[Cross-posted at Between Worlds]

Tiger Woods isn’t the only celebrity to be tired of people trying to pigeonhole him in one race or another, or to even make a big stink about the color of his skin. Morgan Freeman recently spoke out, somewhat, on the manic obsession that our society makes of race and color:

“You’re going to relegate my history to a month?” the 68-year-old actor says in an interview on CBS’ “60 Minutes” to air Sunday (7 p.m. EST). “I don’t want a black history month. Black history is American history.”

Black History Month has roots in historian Carter G. Woodson’s Negro History Week, which he designated in 1926 as the second week in February to mark the birthdays of Frederick Douglass and Abraham Lincoln.

Woodson said he hoped the week could one day be eliminated � when black history would become fundamental to American history.

Freeman notes there is no “white history month,” and says the only way to get rid of racism is to “stop talking about it.”

The actor says he believes the labels “black” and “white” are an obstacle to beating racism.

“I am going to stop calling you a white man and I’m going to ask you to stop calling me a black man,” Freeman says.

I guess now that blacks have been recognized by the Academy of Motion Pictures, albeit in a rather contrived showing a couple years ago (which is not to say that Denzel Washington didn’t deserve the award), that’s just one less milestone to conquer. (By the way, doesn’t anybody think it’s rather nice, and rather interesting, that a black man got to go to space before one got an Oscar? I’ve been informed that Sidney Poitier won an Oscar for his role in Lilies of the Field in 1963, twenty years before Guion “Guy” Bluford became the first African-American in space. The first black man in space was Cuban Colonel Arnaldo Tamayo-Mendez aboard a Soviet mission in 1980.)

Without saying that racism is solved (which, so long as people are human, will never be definitively “solved”), I do believe that this is another step toward Dr. King’s dream that someday, people will be judged “not by the color of their skin, but the content of their character.”

Still, while we’re using labels, can we please stop insisting calling blacks “African-Americans”, and insisting that folks like Charlize Theron cannot be called “African-American” simply because she’s white.

By the way, Mr. Freeman, for your words, and for your wonderful work in motion pictures, you are the man!

[Cross-posted at Between Worlds]

I’ve got a midterm in three hours, but the Iraqi elections is something that can’t be missed. Besides, I hadn’t really covered the October constitutional referendum, so this is my way of making up for it.

Read the rest of this entry »

In Torts, we’re currently working on Indiana Harbor Belt Railroad Co. v. American Cyanamid Co., 916 F.2d 1174. Judge Posner delivered the opinion, and in class, Professor Nockleby offered a critique of it. I thought Judge Posner wrote very lucidly, but Professor Nockleby also makes some great points. The professor challenged us to offer policy arguments against his, as a way of forcing us to learn the arguing skills we must develop as lawyers. I had a few thoughts, and I decided to share them with Judge Posner in an e-mail, which I have excerpted here:

Essentially, Professor Nockleby’s position is as follows:

1. The real issue in the case is, “In the absence of negligence (or proof of negligence), on whom should the presumptive burden of loss caused by the escape of a dangerous substance, acrylonitrile, while in rail transit be cast?”

2. The shipment of acrylonitrile is an abnormally dangerous activity. Therefore, the court should impose strict liability upon the Shipper. (Professor Nockleby cites Rylands, Siegler, and Spano as precedents that argue *in favor* of his position.)

3. Where a loss is created, and created non-negligently, someone must bear the loss, and strict liability is the best vehicle for assigning the loss.

[Here I have questions:
1) Does imposition of strict liability allow for later indemnification (Prof. Nockleby seems to imply that it does, but I'm not sure that's so clear); and
2) In the instant case, isn't the state agency which cleaned up the spill (and which charged Indiana Harbor Belt for the cleanup) essentially the way in which the liability is shifted? That is to say, if, as Prof. Nockleby insists, the danger of the case is in the future implications when, rather than a switching station, it is residents who are harmed, isn't the fact that a government agency can clean up the spill an argument that "the people" have resources which are just as corporate as "big business"? Isn't the government a sunk transaction cost, and what we're doing then is simply doing the indemnification?]

4. Professor Nockleby insists that, in an abnormally dangerous activity such as shipping a dangerous chemical like acrylonitrile, it should be the agent which has control over the decision to ship which should bear the loss.

5. Professor Nockleby also takes exception to your analogy with people who build houses between runways at O’Hare. My understanding of that illustration was that the people built the houses after the runways were already there, in which case I think it is reasonable to expect people not to buy up land between runways and build houses. If, on the other hand, the houses were there before the runways, we have eminent domain issues.

I don’t expect an e-mail back from Judge Posner, but I invite you, dear readers, to leave comments, particularly if you’re familiar with this case and its interpretations and arguments. Thank you!

[Cross-posted at Law Law Stud]

[lawschool]
[torts]
[strict liability]
[negligence]
[Posner]

I hadn’t commented on either Roberts or Miers due to the hubbub of starting school, and because there really wasn’t much to know. As for Alito, from my very limited knowledge, it seems that he’s a pretty reasonable guy. But don’t take my word for it. Michael Barone has a nice long article covering Judge Alito, and why Democrats might be ill-advised to pull out the stops in opposing him. Barone correctly notes that several Democrats are caught between a rock and a hard place: The need to be reasonable versus the need to satisfy constituents. Red-state Democrats, then, have the easiest job: They won’t face recrimination for being reasonable. What I find interesting is that some blue-state Democrats, like the Senators from Massachusetts, who would be virtually uncontested at election no matter what positions they took, nevertheless feel the need to excoriate a nominee simply because Bush made the nomination. Unsurprisingly, Pennsylvania Democrats are less likely to spit on their native son.

Andrew Sullivan notes that there’s a liberal for Alito: Kate Pringle, a liberal Democrat who once clerked for Alito.

Captain Ed adds to that list a certain Jeff Wasserstein, who characterizes himself as “a Democrat who always voted Democratic, except when I vote for a Green candidate” but is neverthless on board. Captain Ed tips his hat to the Los Angeles Times, which surprised me somewhat.

Meanwhile, James Taranto notes that the New York Times is still on the same old saw. The Tuesday column item led to some sleuthing by reader Chris Bartony (which James has posted). The best part is Chris’ conclusion:

I think that they have a Screed-O-Matic somewhere at the New York Times. They just insert the name and hit the Republican Judicial Nominee button and the thing churns out the copy. I know that Maureen Dowd and Bob Herbert use it all the time.

That seems about right.

Speaking of which, it is important to remember that there’s a difference between a judicial conservative and a social conservative; that Judge Alito, on the face of his published opinions, hardly seems an extremist in either sense; and that maybe getting things done “just about right” is more important than having your party “win”. That’s the only way American will have Alito Justice (apologies for the punnery).

[Cross-posted at Between Worlds]

Last year, the Boston Red Sox overcame the Curse of the Bambino by beating their archrivals, the New York Yankees, en route to a sweeping victory in the World Series.

This year, I watched the final pitch and tag-out at first base as the Chicago White Sox overcame their 88-year Curse of “Shoeless” Joe Jackson (also known as the Curse of the Black Sox), and won the World Series in a sweep of the Houston Astros.

Next stop: The Chicago Cubs for an attempt to break their nearly century-long curse. The Cubs have not won the World Series since 1908, a drought so long that they’ve even had time to build up another curse inside, the Curse of the Billy Goat.

PS – The Astros were understandably disappointed. It was their first ever trip to the World Series since they were created 44 years ago (the longest any major league baseball team had taken to get to the World Series), and they had overcome a 15-30 start to this season. Their time will come.

PPS – Former President George H. W. Bush, a Texan, was understanbly disappointed when they showed his face in a replay. It looks like he’s gained some weight. I guess he’s been spending too much time with Bill Clinton!

[Cross-posted at Between Worlds]

Bill Rice at Dawn’s Early Light recently considered Sino-Japanese energy geopolitics. While the disputes over the Spratly Islands in the South China Sea are well-known, less well-known but, as Bill points out, equally contentious, are the disputes over gas fields in the East China Sea:

What is at stake is over 200 billion cubic meters of natural gas reserves. China already has developed stations at Chunxiao (Shirakaba), Duanqiao (Kusunoki) and Tianwaitian (Kashi) that are starting this month to produce natural gas. Japan had floated a proposal to jointly develop the sites, but only after China agreeing to stop drilling and submit to Japan its internal surveys of where the natural gas is coming from (See the Asia Times Online file for an in depth analysis).

Read the rest of this entry »

One of the persistent comparisons between the West and the Muslim world has been the place of religious tolerance. We in the West have become so accustomed to religious pluralism that a sizable minority feels safe in denigrating the religious background of the West by taking it out of context, while defending those who hijack yet another religion by insisting that the majority of believers of that other religion don’t share the views of those extremists. Goose and gander deserve different sauces. Yet, we tolerate these, and others less self-contradicted, because we have developed a respect for the freedom of conscience, without which we would still be experiencing the internecine brawls that rocked our ancestral societies in the 16th and 17th Centuries.

Observers of the Islamic world have noted the societal trajectories there. While the outlying societies, such as Indonesia and Malaysia, have been largely able to co-exist with other religions (although these relationships have been strained in the past century), the core of the Muslim world, the Arabian peninsula, has been home to an intolerant fundamentalism which denies the validity not only of other faiths, but also militates against coreligionists who happen to follow a different interpretation. The Sunni-Shia divide, although subtle in practice, has been politically exploited over the centuries.

Read the rest of this entry »

The friend who asked, rhetorically, if the Saddam Trial was nothing but a dog-and-pony show before a kangaroo court later (but before I responded to him) asked this question:

If the invasion is illegal, the Court has no jurisdiction.

The smart money is that this is what Saddam’s lawyers will try to argue. Professor Willis, my Civil Procedure instructor, concurs, but adds much more nuance. She suggests that Saddam’s lawyers will specifically try to argue that the court has no jurisdiction over him because the Coalition Provisional Authority headed by Paul Bremer, under whose auspices the statute creating the Iraqi Special Tribunal was drafted, had no authority due to the illegality of the war. According to the Human Rights First page, “Iraqi Special Tribunal: Questions & Answers“, the statute was actually enacted by the Iraqi Governing Council, to which the CPA temporarily ceded legislative authority for that purpose. Moreover, arguing the illegality of the war may be futile.

This is how I answered my friend:

Read the rest of this entry »

A friend of mine posted on Wednseday, at a forum we both contribute to, about the opening of the Saddam Trial. He has consistently been one of the members of the forum who have opposed the Iraq War. Over the course of our correspondence I have gotten the impression that his opposition is due more to his partisan opposition to President Bush than to a consistent ideology; and from that impression, I read a question which he posted with some skepticism. Here’s what he wrote:

My question is: What’s the point of even having a trial?

Everyone here knows there is absolutely no chance he will be released alive. His objections to the legitimacy of the trial will be overruled, and he will be found guilty and sentenced to death. There is no other outcome. Moreover, he will use the trial as a stage to embarass the United States.

So what’s the point of even having a trial? Why do we need to perpetuate the illusion of fairness when the conclusion is already predetermined?

We should skip the dog-and-pony trial and go straight to sentencing. Maybe Bush should have Saddam’s head cut off and stick it on the gate around the Whitehouse.

I think it would be fair to say that, as his post went on, his visceral opposition to President Bush took over, and the post assumed a more emotional overtone. Here was my response (which I’ve edited for easier understanding outside of the forum):

Read the rest of this entry »

Anti-war types are incensed that the Administration would ever try to stage anything that would put a better spin on the war effort than what the anti-war groups perceive:

“It’s important to demonstrate the perfidy and mendacity of this administration now,” said one leading spokesman, “before it becomes fixed in the mind of the public as an American ‘victory,’ or something to be admired and emulated in the future. If we don’t set the record straight now, who knows how history will record it? For all we know, they’ll decide to put up a bronze statue in Arlington to commemorate it, or something.”

Rand Simberg’s “article” comes to us from … 1945. Let’s face it, it is in the nature of all American Administrations, indeed of any regime, to justify its actions. And it is indeed the job of an observant press to question such propaganda. But what happens when some members of the press get their own ideas? Blogress Laura Lee Donoho shares an anecdote from Somalia, from her husband’s experiences there:

My husband had the opportunity to see this odious practice for himself when he was deployed to Somalia in 1992.

One day as my husband and part of his battalion was out in a convoy he saw a CNN newscrew near a group of Somalis. The crew and the Somalis were blocking the road that my husband’s convoy was attempting to go down so my husband checked into what was going on.

What he saw upset him so much that he called me that very day the first chance he got. He was livid.

He told me that blonde haired white people who were obviously working for CNN were making and handing out signs to the poor Somali people and having them pose for the camera with the signs which said stuff like, “Go home U.S. military.”

Manipulation of the “truth” is common, and one doesn’t have to be an establishment type, whether George Bush or Dan Rather, to do so. Recall the last time you decided to tell a white lie, or fudged your retelling of events to suit the point of your story (“I once caught a fish this big!”).

Which is really worse, the President holding a scripted “unscripted” conference with the troops that nevertheless manages to get the President’s message out, or the television producer who fabricates evidence but claims that the point is “fake but accurate”, relying on sentiments that cannot be discovered because the man who supposedly held them 30 years ago is conveniently dead? Then again, it really is a difference between the mentality of teamwork with life-or-death stakes, and the quite different stakes of taking down a political opponent when your own candidate fails to conduct a convincing campaign against a vulnerable incumbent.

But, don’t take my word for it. I have it on good authority that even though all Administrations do this, the Bush flub is particularly execrable and mendacious, and that the media never gets it wrong (or, at least, is never not “accurate”) except when they’re being set up by a right wing conspiracy.

Is it, nonetheless, embarrassing for the Bushies? Absolutely. Will it blow over? Most likely. If people can’t be bothered to tune in to the news of the Iraqi Constitutional Referendum, then people won’t be bothered to follow news of something that we all know people do. In the end, the brouhaha will have less impact than some would desire.

[Cross-posted at Between Worlds]