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Saturday, July 3, 2004

"Homosexual dominance of the legal system":

Yup, that's what Clayton Cramer is noticing. Two to three percent of the population, and it turns out that they dominate the legal system. It's not just that a lot of heterosexuals happen to agree (rightly or wrongly) with the gay rights movement, so that heterosexuals dominate the legal system but happen to take many pro-gay-rights views. No, it's homosexual dominance.

Cramer is a very smart guy, who has done a lot of work that I admire for its accuracy and thoughtfulness (chiefly on guns). I link to him on many occasions, because he often makes good points. (UPDATE: For instance, the post I criticize also correctly condemns the Swedish legal system's punishment of antigay speech.) But if I am to condemn spurious claims of Jewish control of this or that institution — for instance, fantasies of Jewish or Israeli control of U.S. foreign policy, extrapolated from the fact that non-Jewish U.S. leaders have been persuaded that they should support Israel — I can't let this sort of stuff pass.


Friday, July 2, 2004

Summer Music in Boston: One of the great things about living in Boston is the summer concert scene. So much to pick from, so close at hand. Tonight was the best Boston Pops program I ever heard. In its season finale, Keith Lockhart conducted a Gershwin tribute including American In Paris, Three Preludes (scored for orchestra) and Rhapsody and Blue (along with some Gershwin songs). The final act included a typical Pops sing along, ending with the 1812 Overture, a piece the Pops had prepared for the annual Fourth of July Concert on Sunday. There is a reason these pieces are popular classics, especially when performed live. And our table was in the fourth row center.

I did not really get my act together this summer to get rock concert tickets, but this morning I located on line some 16th row seats for the Eric Clapton concert tomorrow night, without even having to pay an unreasonable premium. Sunday, we get to watch the fireworks on the Charles from the roof of the BU Law Tower--a 17 story structure that always looks better when you are inside looking out, but which has great views. In two weeks, Chris Isaak and the Silvertones come to town. Ah yes, Boston in the summer when it seems everyone clears out of town and the roads and restaurants are all uncongested. Why go to the Cape?

Update: Clapton was great last night, as was opening act Robert Randolph. This review expresses it better than I could. During the blues segment, I did catch myself thinking that, from what I have read, THIS was the music Clapton loved better than his own. The blues is fine--and I have bought his blues albums--but others can play it well. Clapton's own music, with its blues element, is unique and wonderful. Yet to him it is somehow inferior. And that I find sad.


Update: Saw the fireworks last night and they were spectacular. Boston, however, must have the worst music in the country to accompany them. Chicago's is much better. And the Boston Pops Concert was rearranged to fit the national broadcast, so the 1812 Overture was played before 10pm (with a few fireworks at the end) when the network broadcast began, at which time the concert resumed with David Lee Roth, etc. before culminating in the fireworks after 10:35p. Together with long breaks for commercials, the whole presentation was disjointed. Again, Chicago's (and I assume many other city's shows) are much better constructed. But the view was grand from the rooftop and the fireworks themselves were awesome.


More on the Geneva Conventions:

Adam Charnes, a very smart lawyer who has briefed this issue, reports that he "did a lot of research on the question and was unable to find any commentator who read article 5 of [the Third Geneva Convention] as requiring a hearing to determine whether the detainee was a belligerent. Nor did Hamdi's amici so claim in their briefs (though they often implied it)."


Mississippi judge:

Readers Matthew Bower and Scipio (Scipio Mississippiensis, not Africanus) report that the Mississippi judge who published that homosexuals-should-be-locked-up rant was the equivalent of a Justice of the Peace; people who hold this post in Mississippi have relatively modest powers compared to normal judges. They also needn't be lawyers, or even college graduates; Scipio mentions that he has a vague recollection that Judge Wilkerson is indeed not a lawyer.

I suppose this makes me feel a little better — at least this fellow can't do that much damage, and his comments do not not necessarily reflect on the quality of the Mississippi Bar's opinions or articulateness.


The Geneva Conventions and the Guantanamo detainees:

Some people have said that the Supreme Court's Guantanamo detainee decision might have been influenced by the Administration's refusal to give the detainees the procedures to which they're entitled by the Geneva Conventions. The Geneva Conventions are a treaty that we signed, the argument goes, the government is bound to give this procedure, so we should interpret our habeas corpus statute as mandating at least something like what we've promised to provide in any case.

I'm not sure whether the Justices might indeed have been influenced by what they may see as Administration overreaching here. But, as best I can tell, the Geneva Conventions do not require the U.S. to give hearings to detainees who claim that they're actually civilians and should therefore be freed. (Recall that they're "challenging the legality of their detention at the Base," alleging that they have never "been . . . combatant[s] against the United States or ha[ve] ever engaged in any terrorist acts.")

1. Let's start with the Third Geneva Convention, which deals with prisoners of war. First, the Administration is quite right that al Qaeda irregulars don't qualify for protection (see article 4).

Second, while there's obviously debate about whether the detainees are al Qaeda irregulars, as opposed to members of the regular Afghan army or (as these petitioners say) not soldiers at all, I can find nothing in the Convention that gives them a legal right to a hearing on those questions. (Naturally it is to be expected that the U.S. government will seriously consider claims that they're detaining people by mistake, and the U.S. government's position is that it has considered these claims and rejected them -- the question is whether these people have a legal right under the Conventions to a formal hearing on the matter.)

Article 5 does provide for "competent tribunal[s]" -- which need not be civilian courts, but could just be relatively informal military tribunals -- to determine certain matters about the detainees. But here's what the Article actually says:

The present Convention shall apply to the persons referred to in Article 4 from the time they fall into the power of the enemy and until their final release and repatriation.

Should any doubt arise as to whether persons, having committed a belligerent act and having fallen into the hands of the enemy, belong to any of the categories enumerated in Article 4, such persons shall enjoy the protection of the present Convention until such time as their status has been determined by a competent tribunal.

Article 4 in turn defines who is a prisoner of war, and thus entitled to the Convention's protection, as opposed to an unlawful combatant, who is not entitled to its protection. The basic distinction is between regular and generally uniformed members of the armed forces, and irregular and non-uniformed fighters.

So the tribunal is not required. Rather, if a tribunal is absent, and there's "doubt" about whether the people are regular soldiers (who are entitled to protection of the Convention) and irregular illegal combatants (who are not entitled to protection of the Convention), the government simply has an obligation to treat the people as prisoners of war (who after all are prisoners, and may certainly be detained for the duration of the conflict) and give them the Convention's protections. The terms of article 5 are quite clear on that. And under those terms, the government has no treaty obligation to providing hearings as to whether the detainees were soldiers or civilians. (The U.S. has indeed used tribunals in the past to decide whether the detainees ought to be released as civilians, but not, as best I can tell, as a matter of treaty obligation.)

The Administration has been faulted for not convening such article 5 tribunals. The administration's position is that there really is no "doubt" as to the status of these people, but let's say that the administration is mistaken. Its only obligation under the Convention would then be to treat the people as POWs -- to treat them humanely (as the Administration has said that it would), and not try them simply for having levied war against us (that's where being a lawful combatant as opposed an unlawful one makes a difference).

Nothing that I could find in the Convention mandates Parties to convene tribunals to decide whether detainees are entitled to go free altogether, or to free detainees in the absence of such tribunals. That's simply not something for which the Convention provides; and the distinction makes sense: Governments are understandably much more willing to sign a treaty that obligates them to err on the side of treating detainees humanely, and not punishing them beyond just detaining them (which is what the Third Convention mandates), rather than a treaty that obligates them to err on the side of releasing detainees who the government thinks (rightly or wrongly) are indeed enemy combatants.

And recall that the detainees' challenge is not merely that they were being denied the benefits of POW status under the Convention; the remedy they seek is not an assurance of such benefits. Rather, it's an assurance of a hearing on whether they are civilians and entitled to be released, a hearing that the Convention does not mandate.

2. What about the Fourth Geneva Convention, which deals with civilians?

Well, article 4 of that convention specifically exempts from its protection "Nationals of a neutral State who find themselves in the territory of a belligerent State . . . while the State of which they are nationals has normal displomatic representation in the State in whose hands they are." The Rasul v. Bush petitioners are Australians and Kuwaitis, so they're covered by this exemption -- the Fourth Convention doesn't apply.

The Fourth Convention would apply to Afghan nationals. But article 5 of that convention specifically says:

Where, in the territory of a Party to the conflict, the latter is satisfied that an individual protected person is definitely suspected of or engaged in activities hostile to the security of the State, such individual person shall not be entitled to claim such rights and privileges under the present Convention as would, if exercised in the favour of such individual person, be prejudicial to the security of such State.

Where in occupied territory an individual protected person is detained as a spy or saboteur, or as a person under definite suspicion of activity hostile to the security of the Occupying Power, such person shall, in those cases where absolute military security so requires, be regarded as having forfeited rights of communication under the present Convention.

In each case, such persons shall nevertheless be treated with humanity, and in case of trial, shall not be deprived of the rights of fair and regular trial prescribed by the present Convention. They shall also be granted the full rights and privileges of a protected person under the present Convention at the earliest date consistent with the security of the State or Occupying Power, as the case may be.

The terms of these provisions leave a great deal of discretion to the detaining power -- the question is whether the power "is satisfied" that the person is "definitely suspected of . . . activities hostile to the security" of the power, not whether the power is correct in so suspecting. Unlike with the Third Convention's article 5, the Fourth Convention does not provide for tribunals to make this determination. So even as to the Afghan Guantanamo detainees, who were not plaintiffs in Rasul v. Bush, the Fourth Convention requires no procedure.

* * *

What I say above is somewhat tentative: I'm not an expert on the Conventions, and might be mistaken. If someone knows of specific provisions in the Conventions that contradict my view, I'd love to hear this, and may revise my judgment accordingly.

Also, it may be that the Court was indeed influenced by what it saw as the government's failure to do what article 5 of the Third Convention required -- even though such procedures go only to the conditions of confinement and possibility of future trial, not to the release from detention that the petitioners sought -- and decided that the Administration needed reining in. And none of the above expresses an opinion on what the Administration should be doing, as a matter of justice, prudence, or even U.S. habeas or constitutional law, with the Guantanamo detainees. Finally, it may well be that some other countries or organization take a broader interpretation of the Conventions than the text of the Conventions authorizes.

But as best I can tell, it is not correct to say that the Administration is violating the text of the Geneva Conventions (and it is the text that the U.S. has ratified) by failing to give the detainees a hearing on whether they are indeed civilians who should be released. The text of the Conventions does not require any such hearings.


Sex with teenagers:

Alex Sundstrom suggests this answer to the statutory rape problem (again, note that I do not necessarily endorse any of the readers' views that I post here):

I think the most justifiable statutory rape law would apply only to men sleeping with teenage girls (retaining the standard 4-year age gap). My reasons are utilitarian ones, based on a market theory of dating.

(1) Statutory rape laws protect the future happiness of girls. Teenage girls tend to go after lower status males than they will be able to get later in life. They do so because (1) it's socially unacceptable to date teenage girls, so more responsible men/better mates will avoid doing so, (2) even a 30 year old alcoholic might seem more desirable to a teenage girl than the pimply and immature teenage boys she encounters at school, and (3) because teenage girls have a low supply of potential suitors with money, and because women like men who spend money on them in general, it's cheaper to impress a teenage girl — a 15 year old is a much cheaper date for a 30 year old alcoholic than a 25 year old woman would be.

This is bad for girls because the likely consequences — extensive sexual contact and potential offspring and/or longer-term partnership with undesirable mates — will make them unhappy later on, when they realize they can do better. If you restrict a girl's options to sex with age peers, she might make dating decisions she wouldn't make later in life (when all the dumpy social misfits have become attorneys, and can buy her things), but her dating choices will more closely track her future choices than without a statutory rape law.

(2) Of course, the law might affect what's socially acceptable. If this is the case, then it is bad for society to change the statutory rape laws and encourage men to sleep with teenagers, reducing the problem outlined in (1), they will be less likely to start stable families, and grown women will suffer.

This effect seems plausible to me — the age of consent in Ontario is 14, and my girlfriend's parents, who live there, see nothing remarkable about a 22 year old dating a 15 year old. [That's a hypothetical 22-year-old; Sundstrom isn't dating a 15-year-old himself. -EV] The talismanic effect that turning 18 currently has also seems pretty artificial: every red-blooded male knows that men are very much attracted to 16 year old girls, but just pretend not to be until those girls turn 18. A change in the statutory rape laws might affect this attitude (or it might not, considering the fact that sleeping with 17 year olds is already legal in many states).

If repealing statutory rape laws causes an increase in men sleeping with and dating teenage girls, they will increasingly choose to do so. Setting aside whether teenage girls are better looking than older women, sixteen year olds are at the very least much less prone to obesity than older women. So some men who place a value on thinness will choose to date a younger, thinner girl than they otherwise would have before it was less socially acceptable to do so.

These encounters are probably going to be of the casual-sex variety, because (1) intellect, maturity and potential for long-term companionship are not what grown men look for in teenage girls, (2) a shift in social mores would probably occur first among people who are already having casual sex with older women before it would occur in a marriage context (in no small part because of (1)). Because an increase in social acceptability of sleeping with teenagers would increase the supply of attractive girls more than it would increase the supply of attractive, marriageable girls, more men will be able to engage in commitment-free sex with attractive partners, and more men will thus choose to do so. They will be doing so instead of getting married and raising families.

None of these concerns apply to a situation where teenage boys sleep with adult women.

(I take it his point, by the way, isn't just that sex with teenage girls affects their future happiness in some small way — obviously, not all things that make teenagers unhappy should be criminal — but rather that it potentially has very large effects.)

Note again, please, that I probably won't be posting responses to people's suggestions; but if you have your own suggested framework, that you can defend in some detail but not at very great length, and that isn't too similar to what's been posted yet, please do pass it along.


Slate's Kerryisms:

Last week, Slate posted a response to some criticisms of its Kerryisms column, including to my criticisms. Kerryisms, the author says, aren't really attempts to translate Kerry's words into "plain English," though they were originally billed that way.

OK, that's fine -- but what then are they? The response talks about "get[ting] the joke," but what's the joke? The Kerryism columns continue to say that they focus on Kerry's "caveats," "curlicues," and "embellishments." The terms "curlicues" and "embellishments" seem to suggest that the material the columns point to is unnecessary (redundant or otherwise surplus). But often, it's not; it's needed to make Kerry's point politically effective or even simply accurate.

The term "caveats" seems to suggest that the removed material may be necessary, but somehow limits or takes away from Kerry's main point -- but what's wrong, funny, or even noteworthy about Kerry's acknowledging that his answers are more complex than a simple "yes" or "no"?

Just to further illustrate this, let's consider today's Kerryism. Kerry said:

The strong spending caps in my plan will ensure that spending doesn't grow faster than inflation. And if Congress fails to keep spending in line, the budget caps will mean across-the-board cuts in every area except security and education and mandatory programs like health care, Social Security, and Medicare. So when I say "a cap on spending," I mean it.

Here's the Kerryisms version:

The strong spending caps in my plan will ensure that spending doesn't grow. And if Congress fails to keep spending in line, the budget caps will mean across-the-board cuts in every area. So when I say "a cap on spending," I mean it.

Where's the joke? Kerry, to his credit, candidly said that he's talking about spending in real dollars, not nominal dollars ("faster than inflation"). If that's his plan (and it's a plan that's quite consistent with "a cap on spending"), he should make it clear. It seems to me that such candor and precision is to be praised, not condemned; and while it might make his prose less punchy, it may actually be politically wise, as well as more honest: It keeps his adversaries from faulting him for inaccuracy.

He also didn't say that he'd institute across-the-board cuts; he said he'd institute such cuts in all programs except some that he seems to think are too important to cut. Again, if that's his view, it's good that he reveals it -- and it may be politically quite important for him to reveal it, since otherwise people might fault him for threatening to cut Social Security, national defense, and the like. How is it clearer, in any other way better, or even funny to edit that out?

Maybe the claim is that with these "caveats," Kerry's last sentence ("So when I say 'cap on spending,' I mean it") is no longer accurate. But that's not right, either. First, as I mentioned above, even if "cap on spending" is treated as "stabilizing spending," it's quite fair -- even economically more sensible -- to focus on spending in real dollars, not nominal dollars, and still call stabilization a "cap." Second, I take it that Kerry's point in the next sense is that if "Congress fails to keep spending in line," his "budget caps" would mean huge cuts in what he sees as the optional areas, but not in the really important areas. It may or may not be good budget economics, but I don't see much by way of "curlicues," "embellishments," or even "caveats," unless by "caveat" you mean any nuance or retreat from an absolutist position.

So just what's the point here? Here's the columnist's response to my specific past criticisms, which I take it would also apply to the criticism here:

Another blogger, Eugene Volokh, gets the joke and doesn't like it. "Another possibility is that 'Kerryisms' has evolved into an attempt to show simply that Kerry uses a lot of qualifiers, instead of giving very simple answers," Volokh writes. "But often, as in this case, the right answer isn't simple. It's actually not terribly complex, but it's not one-word simple. Is it really good to fault a politician for refusing to oversimplify?"

That's a good and fair question. I prefer to let each reader decide for herself, case by case. I should have explained the general idea more clearly. Now I have. The rest of the judgments are up to you.

Can that possibly make sense? Surely the author must be trying to say something with his column. It can't just be: "Here's a Kerry statement, and a version without qualifiers. Decide for yourself if the qualifiers were necessary / useful / important." (This would be like the Bushisms column giving a bunch of Bush statements, some wrong and funny but some perfectly accurate or at worst slightly off, rather than focusing just on material that's worth criticizing or mocking. Oh, wait, that is what the Bushisms column does . . . .)

Presumably the columnist must have chosen this particular quote not because the quote simply reflects Kerry's praiseworthy refusal to oversimplify. The columnist must have chosen it because he thinks something about these particular qualifiers should lead some readers to think there's something wrong with what Kerry said. Well, what is that?


Child porn cases thrown out:

Interesting Cleveland Plain-Dealer story:

Lawyer Dean Boland has testified as a defense expert in three child-pornography cases in Northeast Ohio . . . . Charges were thrown out in two of the . . . cases, which sent waves of alarm through the law-enforcement community. . . . Boland, 37, of Lakewood, is one of a handful of criminal-defense experts in the country with the knowledge to testify about digital-imaging technology and the ways pornographers are using it to enhance and distribute their wares via the Internet. . . .

Boland has teamed with criminal defense lawyers who are exploiting a provision of [child pornography] law that says to obtain a conviction, a prosecutor must prove that a digital portrait of suspected child pornography is, in fact, a picture of a child. To meet that requirement, the image must be authenticated as a child and not an adult digitally enhanced to look like a child -- an extremely difficult level of proof for police and prosecutors, Boland says.

Without the evidence to refute Boland's testimony and prove authenticity, judges threw out child-pornography charges in Summit and Portage counties in March. A Columbiana County judge has reserved his ruling until trial. . . .

"The majority of child pornography downloaded from the Internet, as sick as the images are, really can't be determined to be actual children," Boland said. "It's very easy to fake these images, and prosecutors need to be required to authenticate their evidence." . . .

Recall that in Ashcroft v. Free Speech Coalition, the government argued that non-obscene virtual child pornography -- i.e., material that looks like children having sex or posing lewdly, but that actually didn't involve the use of real children -- should be unprotected in part because otherwise it would be hard to enforce bans on actual child pornography. The Court rejected that argument:

Finally, the Government says that the possibility of producing images by using computer imaging makes it very difficult for it to prosecute those who produce pornography by using real children. Experts, we are told, may have difficulty in saying whether the pictures were made by using real children or by using computer imaging. The necessary solution, the argument runs, is to prohibit both kinds of images. The argument, in essence, is that protected speech may be banned as a means to ban unprotected speech. This analysis turns the First Amendment upside down.

The Government may not suppress lawful speech as the means to suppress unlawful speech. Protected speech does not become unprotected merely because it resembles the latter.

The Constitution requires the reverse. "[T]he possible harm to society in permitting some unprotected speech to go unpunished is outweighed by the possibility that protected speech of others may be muted . . . ." The overbreadth doctrine prohibits the Government from banning unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process.

Justice Thomas concurred in the judgment (though his vote wasn't needed to form the Court's majority); he reasoned:

In my view, the Government's most persuasive asserted interest in support of the [CPPA] is the prosecution rationale -- that persons who possess and disseminate pornographic images of real children may escape conviction by claiming that the images are computer generated, thereby raising a reasonable doubt as to their guilt. At this time, however, the Government asserts only that defendants raise such defenses, not that they have done so successfully. In fact, the Government points to no case in which a defendant has been acquitted based on a "computer generated images" defense.

While this speculative interest cannot support the broad reach of the CPPA, technology may evolve to the point where it becomes impossible to enforce actual child pornography laws because the Government cannot prove that certain pornographic images are of real children. In the event this occurs, the Government should not be foreclosed from enacting a regulation of virtual child pornography that contains an appropriate affirmative defense or some other narrowly drawn restriction.

The Court suggests that the Government's interest in enforcing prohibitions against real child pornography cannot justify prohibitions on virtual child pornography, because "[t]his analysis turns the First Amendment upside down. The Government may not suppress lawful speech as the means to suppress unlawful speech."

But if technological advances thwart prosecution of "unlawful speech," the Government may well have a compelling interest in barring or otherwise regulating some narrow category of "lawful speech" in order to enforce effectively laws against pornography made through the abuse of real children. . . .

Will cases such as the ones described in the Plain Dealer article -- assuming that they indeed reflect serious obstacles to prosecution of real child pornography, and not just easily remediable errors on the government's part -- persuade Justice Thomas, and perhaps even one of the Justices in the Free Speech Coalition majority (say, Justice Breyer)?

Thanks to reader John Waszak for the pointer to the newspaper article.


New on Zarqawi:

Robert Novak at Town Hall calls the Zarqawi story an "urban legend," and says his source at the CIA agrees.

One CIA source puts this aborted Zarqawi raid in the same category as Michael Moore's "Fahrenheit 9-11," which spreads such false information as George W. Bush's conspiring to get Osama bin Laden's relatives out of the U.S. after the terrorist attacks.

Note that the question I asked yesterday about NBC's Pentagon officials applies equally to Novak's CIA source: how do they know? If the decision not to attack was made by the NSC, then there's a pretty small number of people who can credibly claim to know why it was made. The CIA source might be telling the truth as far as he or she knows, but not be in a position to know very well. In any event, I'd love to hear Novak's CIA source's account of why the attack plans were rejected.

One item from the column I hadn't seen before:

Sen. Clinton on the next day, March 4, called the NBC report "troubling" and asked Gen. John Abizaid about it. The Central Command commander in chief replied, "I would be very surprised to find out that we had a precise location on Zarqawi." Unsatisified, the senator asked for "further investigation."

On March 9, Hillary Clinton asked CIA Director George Tenet about the story. Tenet: "I don't know that Zarqawi was up there at the time, Senator. And I don't know that the report accurately reflects the give-and-take of the decision-making at the time." In CIA-speak, that was a "no."

And, finslly, someone asks the NBC reporter for some follow-up.

Jim Miklaszewski told me he stands by his story, and pointed to House Armed Services Committee hearings April 21. Congressman Snyder brought the NBC story up to retired Gen. John Keane, and asked why the attack was rejected. "No, I can't help you," the former Army acting chief of staff replied. "We were looking at it as early as the Fourth of July weekend before we commenced activities against Iraq."

I'm going to check out the Congressional transcripts Novak quotes to see what else is there.

By the way, one of my initial questions has now been answered. Has there ever been an official denial? Yes, there has.

The character of that official denial seems to be: unless we had 100% certainty that Zarqawi himself was in the camp at any given moment, the failure to attack is not an oddity requiring explanation. It's been pointed out to me (by a Republican) that this is an odd standard for administration officials to hold themselves to in any event, and that in that sense it's oddly like the claim "If we had known that terrorists were going to hijack airplanes on September 11 and fly them into buildings, we would have acted." In wartime, one rarely has perfect information; that neither excuses nor explains inaction.

But both Zarqawi himself and the Ansar al-Islam camp were identified as items in the casus belli. As best as we knew at the time there were ricin prouction facilities and terrorist training facilities at the camp, and the fact that this was so was relevant to the case for war. So simply saying "We didn't know for sure when he was in the camp" isn't responsive to the charge that an attack that would clearly have been more than justified as part of the war on terrorism was vetoed in order to preserve a casus belli against Iraq (though it is responsive to the charge that, by letting Zarqawi himself live, the administration became responsible for all his subsequent crimes).

See also David Meyer.

More later today...

Update:

I'm trying very hard to be careful and thorough, and to present new information and new claims as they become available. Apparently I'm not quite succeeding at striking the necessary balance of tone, so let me be explicit. As best as I can judge the available evidence, including the various public statements as well as the various anonymous claims-- it seems likely to me that the decision not to attack the Ansar al-Islam camp many months earlier was made fo rreasons that were primarily political rather than primarily logistical or legal. Given what Powell and Bush were saying about the camp and Zarqawi at the time, and what we now know western intelligence agencies knew about them at the time-- that is, even without the benefit of hindsight and the knowledge of the blood on Zarqawi's hands since then-- it seems to me that there was an extremely powerful case for attacking the camp, especially if we had even moderately good reason to think Zarqawi himself was present in it.

I'm not sure that we yet have (even anonymously) any statements about why the NSC vetoed the attacks by anyone who was in a position to know. And the on-the-record statements by those who were in a position to know have been maddeningly non-committal on every point except that we never knew, with 100% certainty, that Zarqwai was in the camp at any given moment. They have left plenty of room to think that the attacks were vetoed at least in part to preserve a casus belli or to facilitate negotiations on the Iraq war resolution in the Security Council; and they have left plenty of room to think that there were well-developed and credible plans for taking out the camp whose only flaw was that they were not guaranteed to kill or capture Zarqawi. I think we have good reason to think that there is mystification, at best, in the Pentagon about why the attacks were vetoed, and a sense both there and in the Intelligence Committee that no persuasive logistical reason was ever given for not attacking. Neither Novak nor his source nor the public records he quotes provide any such reason. That's not inherently surprising; even a year after the fact there can be good reason to keep logistical and intelligence details secret from the public. The same doesn't apply to the Pentagon or the Intelligence Committee.

I don't myself have any sources. But I've checked with a couple of people who do; I wanted to get a sense of whether I was wasting (quite a lot of) my time and my readers' time on a ghost of a story. What I've heard back leads me to keep digging. I won't waste readers' time or credulity by talking about what I've heard at two degrees of separation; it's enough to persuade me of a couple things, but I fully recognize that it doesn't count as sourced reporting.

Anyway, I intend to continue quoting what I can find about the Zarqawi/ Ansar story, and especially to quoting denials, in part because I started this theme off three days ago by talking about the absence of denials and in part because I really do mean to let readers know what I know about this story. But my quoting a denial does not mean that I think the denial is decisive, definitive, or credible. If I read something that really convinces me the charges are untrue, I'll be entirely unambiguous about that.

In the meantime, I'll continue to quote and link to the material that's entering into my sense of the balance of probabilities, while freely, unhappily, acknowledging that my current sense is that Miklaszewski and NBC are somewhere closer to the truth than Novak is.


Thursday, July 1, 2004

Colorado court order prohibiting mother from saying "homophobic" things

about her lesbian ex-partner, who has joint custody: I blogged about this case last November, when the judge entered the order; here's a brief excerpt from the original news story:

A Christian mother is appealing a judge's decision that prohibits her from teaching her daughter that homosexuality is wrong.

Cheryl Clark, who left a lesbian relationship in 2000 after converting to Christianity, was ordered by Denver County Circuit Judge John Coughlin to "make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic." . . .

Judge Coughlin, who issued his ruling April 28, did award Dr. Clark sole responsibility for the girl in the area of religion, although with the caveat about exposing the child to anything "homophobic." . . .

Mr. Staver pointed out that the judge gave no similar orders to Miss McLeod regarding remarks or teaching about Christianity or Christians. "It's a real one-way street on this," he said. . . .

Today, the Colorado Court of Appeals reversed the order, though leaving open the possibility that it could be reimposed:

Finally, Clark contends the trial court violated the United States and Colorado Constitutions in ordering that, although Clark would be awarded ["]sole parental responsibility . . . in the area of religion,["] she would be required to make sure that there is nothing in the religious upbringing or teaching that the minor child is exposed to that can be considered homophobic. The court neither defined homophobic nor found that exposure to homophobic teachings would either endanger E.L.M.C.'s physical health or significantly impair her emotional development. We conclude that remand for further findings is necessary on both constitutional and statutory grounds.

"While [c]ourts are precluded by the free exercise of religion clause from weighing the comparative merits of the religious tenets of the various faiths or basing [their] custody decisions solely on religious considerations, the family is not beyond regulation in the public interest as against a claim of religious liberty, and neither the rights of religion nor rights of parenthood are beyond limitation." Thus, evidence of beliefs or practices which are reasonably likely to cause present or future harm to the child is admissible in a custody proceeding.

When parental responsibilities have been determined, § 14-10-130(1) allows the person with decision-making responsibility to determine "the child's upbringing, including his or her . . . religious training," unless the court, after hearing and upon motion by the other party, finds that, "in the absence of a specific limitation of the person's . . . decision-making authority, the child's physical health would be endangered or the child's emotional development significantly impaired." . . .

Here, the trial court observed that Clark and McLeod will never be able to agree regarding the religious upbringing of the minor child and awarded Clark sole parental responsibility concerning religion. Thus, Clark is the "person . . . with responsibility for decision-making" within the meaning of § 14-10-130(1). . . .

Here, . . . we cannot determine from the findings whether the trial court applied the correct standard in limiting Clark's right to determine the child's religious upbringing. Although McLeod argues this restriction is a mere nondisparagement clause, we cannot uphold it on this basis because it is not so described in the trial court's order. Nor is it mutual.

Hence, given the important role that religious freedom enjoys in our constitutional scheme of ordered liberty, and the mandate of § 14-10-130(1), we conclude that remand is necessary. . . .

Clark does not assert, and we do not address, amicus Liberty Counsel's argument that lack of a definition of homophobic in the order creates a constitutional problem of vagueness and overbreadth. However, Clark may present this issue to the trial court on remand, in the context of the court's additional findings. . . .

So the restriction has been lifted -- but if the trial court judge concludes that without the restriction on anti-homosexual comments, "the child's emotional development [would be] significantly impaired," then the restriction could be reimposed.

The Court of Appeals also upheld the trial judge's decision to award joint custody to the mother and the ex-partner, though the ex-partner hadn't adopted the child. The court's decision was based on the "psychological parent" doctrine: Once someone has raised a child for many years, from near infancy, with the legal parent's permission, it's in the child's best interest that the resulting psychological bond -- which is much more important to the child than any legal or biological bond -- be maintained. The court also concluded that the doctrine doesn't violate the legal parent's parental rights under the Constitution (distinguishing Troxel v. Granville, the case striking down a grandparent visitation law). That part seems quite sensible to me.


Judicial First Amendment rights:

The Mississippi Supreme Court just decided a very interesting judicial free speech case. A state judge sent the following letter to a newspaper (and followed it up with comments to a radio station):

Dear Editor:

I got sick on my stomach today as I read the (AP) news story on the Dog attach [sic] on the front page of THE MISSISSIPPI PRESS and had to respond!

AMERICA IS IN TROUBLE!

I never thought that we would see the day when such would be here in AMERICA. The last verse of chapter one of the book of Romans in our HOLY BIBLE is my reason for responding and sounding the alarm to this. You need to know as I know that GOD in Heaven is not pleased with this and I am sounding the alarm that I for one am against it and want our LORD to see and here [sic] me say I am against it.

I am sorry that the California Legislature enacted a law granting gay partners the same right to sue as spouses or family members. Also, that Hawaii and Vermont have enacted such a law too.

In my opinion gays and lesbians should be put in some type of a mental institute instead of having a law like this passed for them.

I don,t [sic] know but I believe if we vote for folks that are for this we will have to stand in thh [sic] judgement of GOD the same as them.

I am thankful for our Legislators and pray for wisdom for them, on such unbelievable legislation as this.

May GOD bless each one of them in JESUS CHRIST NAME I pray!

Thank you for printing this,

Connie Glen Wilkerson

Bro. Connie C. Wilkerson

The Mississippi Commission on Judicial Performance asked the Mississippi Supreme Court to sanction the judge; the relevant Canon of Judicial Ethics turned out to be "A judge should . . . conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary." The Mississippi Supreme Court held 5-2 that sanctioning the judge would violate the First Amendment. A few thoughts:

  1. An important question here is whether the First Amendment rule here should be the same as when the government is acting as sovereign, punishing (even criminally) speech by private citizens, or the same as when the government is acting as employer. I think this is not an easy question, but it's probably the critical one.

  2. If the majority is right that the rule should be government-as-sovereign, then I think it's correct to say that the speech is constitutionally protected. The majority correctly dismissed the argument that there's a compelling interest in protecting impartiality and the appearance of impartiality:

    No credible person could dispute that having impartial judges is a compelling state interest. But "impartiality" is not the same as the "appearance of impartiality." We find no compelling state interest in requiring a partial judge to keep quiet about his prejudice so that he or she will appear impartial.

    Whatever state interest the Commission may find in preventing judges from announcing their private views on gay rights would conflict with, and be outweighed by, the more compelling state interest of providing an impartial court for all litigants, including gays and lesbians. Allowing — that is to say, forcing — judges to conceal their prejudice against gays and lesbians would surely lead to trials with unsuspecting gays or lesbians appearing before a partial judge. Unaware of the prejudice and not knowing that they should seek recusal, this surely would not work to provide a fair and impartial court to those litigants.

    But I think the Court should have been free to reprimand the judge — not to remove him from office or otherwise take away any privileges, but to formally express its own views that his statement deserves condemnation. The majority seemed to suggest otherwise, but didn't explain why it couldn't exercise its own counterspeech as a remedy for the judge's speech.

  3. The dissent had a plausible argument that the judge is a government employee, employed to do a job that his speech has ended up undermining. The judge might, for instance, end up having to recuse himself from cases where homosexuals are parties or even witnesses. At the same time, I'm quite troubled by two arguments by the dissent: "I do not agree that this type of speech — the judge's personal views regarding all homosexuals — relates to political and social community concerns" (p. 29) and

    If the judge now before this Court had done no more than express his views on statutes concerning same-sex partners and legislation regulating their activities or their rights, the analysis could stop here. As earlier mentioned, Canon 4B expressly recognizes the unique value of judges contributing to improvements of the law and the legal system and acknowledges their freedom to speak out in these areas. However, when the judge in today's case stated that certain individuals in our society were sick and that they all needed to be indiscriminately placed in mental institutions, he crossed over the line!

    (pp. 26-27). Here the dissent is wrongly denying that their view would seriously restrict judges' speech, rather than acknowledging that this is a substantial restriction but concluding that it's a justified one. To effectively and persuasively defend their "views on statutes concerning same-sex partners and legislation regulating their activities or their rights," judges would have to explain just why they think same-sex relationships are less worthy than opposite-sex ones — and to do that, they might well need to convey their "views regarding all homosexuals," which of course do therefore "relate[] to political and social community concerns." Perhaps the restriction is constitutional despite that; but judges shouldn't pretend that such a restriction really doesn't interfere with judges' ability to express their views concerning the law, or other "political and social community concerns."

  4. Finally, it seems to me that even most reasonable critics of same-sex marriage or of Lawrence v. Texas have to be appalled by the judge's position. Gays and lesbians should be put in some type of a mental institution? Over five million Americans locked up because of their sexual preference? (Note that his argument couldn't even be defended on the grounds that it's a call to restrict conduct rather than just orientation — if homosexuals are mentally ill, they remain mentally ill even if they stop having sex.)

    Views like his — plus of course spelling and capitalization like his — end up being the strongest arguments for the pro-gay-rights movement.

Thanks to reader Andy Lowry for the pointer.

UPDATE: Just to make it clear, my point in the second-to-last paragraph -- "Views like his . . . end up being the strongest arguments for the pro-gay-rights movement" -- is a descriptive one: When people hear stuff like this, they're much more likely to become hostile to the anti-gay-rights movement, and somewhat more likely to become sympathetic with the gay rights movement. Such a change in attitude may or may not be logically valid, but it is psychologically quite likely. Popular revulsion at people who back position X may often be worth a dozen logical arguments that position X is unsound.

ClaytoN Cramer, who I think took that paragraph as a normative argument, rather than a descriptive one, asks "By this reasoning, the prominent role of homosexuals in spreading AIDS ends up 'being the strongest argument for' opposing the gay rights movement." Sure. My guess is that the association between male homosexuals and AIDS has led quite a few people to a less pro-gay-rights position (though there may be complex effects stemming from the way AIDS may have created some sympathy for homosexuals as well, and may have led them to be better organized politically). Certainly if gay rights activists are seen as reckless about AIDS, for instance by opposing the closure of bathhouses and the like, or more generally by promoting promiscuous sex, this makes people much more likely to become hostile to the pro-gay-rights movement.

This is just human nature: When people see fools, bigots, or lunatics on one side of an issue, they are likely to be alienated from people on that side, and more sympathetic to people on the other side. Right or wrong, that's reality.


American media outlets being duped about the Quran and beheadings?

A Slate article reports:

Following the recent beheadings of Americans and other foreigners in Iraq and Saudi Arabia, the U.S. press turned to various experts to identify a precedent in the Quran or Islamic history for this kind of gory murder. "Beheadings are not mentioned in the Koran at all," Imam Muhammad Adam El-Sheikh, co-founder and chief cleric at the Dar Al Hijrah mosque in Falls Church, Va., told USA Today. Yvonne Haddad, a professor at the Center for Muslim-Christian Understanding at Georgetown University agreed, telling New York Newsday, "There is absolutely nothing in Islam that justifies cutting off a person's head."

If reporters bothered to open up a copy of the Quran, say, N.J. Dawood's Penguin Classics translation, they'd find at least two relevant passages:

God revealed His will to the angels, saying: "I shall be with you. Give courage to the believers. I shall cast terror into the hearts of the infidels. Strike off their heads, strike off the very tips of their fingers." (Sura 8, Verse 12)

"When you meet the unbelievers in the battlefield strike off their heads." (Sura 47, Verse 4)

The piece correctly points out that this may not reflect the views of mainstream Islam today. (The Bible says that eating shellfish is an abomination, but that's not the view of mainstream Christians today.) But it also correctly points out that the quotes the newspapers passed along were inaccurate, and that newspapers should be less credulous on such matters.


Justice Breyer rejects complaint against Judge Calabresi:

The complaint is linked to here. The story about Justice Breyer's response is here. An excerpt:

A justice of the Supreme Court yesterday rebuffed a call by members of Congress for an investigation of a federal judge's statement last month that President Bush came to power in a similar way to dictators such as Hitler and Mussolini.

Justice Breyer said a committee he chairs that studies the enforcement of judicial-conduct rules is not the appropriate forum to hear the complaint against Judge Guido Calabresi of the Manhattan-based 2nd Circuit Court of Appeals.

"The committee has no authority — statutory or administrative — to investigate particular allegations of misconduct and impose sanctions," Justice Breyer wrote in a letter to Rep. Lamar Smith of Texas. . . .

Justice Breyer's response, which was released by the high court yesterday, points out that the established procedure for filing a complaint against a federal judge is to write to the clerk of the appropriate appeals court. . . .

Also, an amusing tidbit: "In their correspondence, neither Justice Breyer nor the lawmakers mentioned the identity of the keynote speaker at the American Constitution Society's gathering. It was Justice Breyer."


Teenagers and marriage:

Reader Pat Birmingham points to this table of state marriage statutes, including the age requirements (which tend to be 18 without parental consent, 14 to 16 with parental consent, and in a couple of instances 12 for girls, though that might require judicial consent, too -- I can't tell just by looking at the table).


This week:

Jesse Helms turns against the tax cuts.

William F. Buckley turns against the war.

Bruce Bartlett makes the fiscal case for Clinton nostalgia, and Julian Sanchez says he's hearing a lot of that sort of thing.

Tyler Cowen requests an invitation to join the Ranks of the Shrill, over the tightening of the Cuban embargo.

It might be that after John Kerry makes himself more visible we'll see some rallying around Bush. But in the meantime, one wouldn't say that Bush's natural base is sounding very enthusiastic about him or his major decisions or his decision-making procedures these days.

I've never cast a vote for a major-party candidate for President. To the best of my recollection I've never even cast a vote for a major-party candidate for the Senate or for a governorship. And in some important ways my natural affinities lie to the right rather than to the left, especially among academics, journalists, and politicos. (That is to say, my affinities really do not lie with the grassroots right, where social conservatism reigns.) But, assuming Kerry doesn't pick Gephardt or resume his trade-bashing noises, I'm steeling myself to cast a major-party presidential vote this November.

I know a lot of Libertarians are leaning Democratic this year because they oppose the Iraq War. I'm leaning that way in part because I supported it, and thought it was a truly important project. Some combination, or some complicated interaction, of terrible incompetence; an absolute prioritization of political over policy considerations; and a serious contempt for outside, contrary, disinterested, or expert opinion have made a serious mess of Iraq, trade policy, fiscal policy, and much else besides.

I dislike Kerry. I've disliked him for fifteen years; in New Hampshire we had plenty enough exposure to him to leave me sick of him a long time ago. And, man oh man would I prefer to be supporting a pro-Social Security privatization, pro-voucher, pro-tax cut incumbent president who was serious about fighting the war on terrorism and democratizing the Middle East and who might appoint Supreme Court justices who would enforce a strict reading of the Commerce Clause. Even support for the Federal Marriage Amendment wouldn't outweigh all of that, since the President doesn't play a direct role in amending the Constitution and anyway I feel sure that the FMA will never pass.

But we've had no Social Security reform, no push for vouchers, atrocious incompetence and policy made for the wrong reasons on the important foreign policy questions, protectionism, agricultural subsidies, and a spending explosion. All that's left are a) the tax cuts, which are good but something close to meaningless in the absence of spending cuts; b) a general positioning as "hawkish;" and c) annoyance at various elements of the left who I'd rather not be aligned with and certainly don't want to listen to crowing. (I really don't want Michael Moore to spend four years feeling like, and crowing that, he decided a presidential election.) Those aren't sufficient reasons to outweigh the general inability to govern competently or to make good policy judgments.


Clinton on Scalia and Bork:

This is not a huge problem -- errors always happen -- but I thought it was worth flagging. Ted Frank reports that on page 337 of Clinton's book,

Clinton mistakenly says that Reagan nominated Scalia after the Bork nomination was rejected. "President Reagan then nominated Judge Antonin Scalia, who was as conservative as Bork, but hadn't said and written as much to prove it."

The problem here isn't just the chronology -- Scalia was nominated before Bork. It's also that Scalia was widely known to be a conservative legal scholar (and a conservative federal court of appeals judge), who had written and said lots of things that showed his conservatism.


Did Michael Moore say that he hopes more Americans will die in Iraq?

Ann Coulter writes:

As Mickey Kaus has pointed out, every time Kerry starts campaigning, his poll numbers plummet ... But he's got a lot of surrogates campaigning for him. There's Michael Moore, who has said he hopes more Americans will die in Iraq. His movie, "Fahrenheit 7/11" as we call it, apparently supports the [New York] Times' view that life in Iraq was better, sunnier, happier under Saddam Hussein. Moore has also accused the American people of being the stupidest, most naive people on the face of the Earth. And after last weekend, he's got the box office numbers to prove it!

Can any readers point to Moore's saying that he hopes more Americans will die in Iraq? If you have a specific quote that expresses this view (with a citation or, better yet, a URL), please e-mail it to volokh at law.ucla.edu. I'm genuinely not sure whether or not he did; Ms. Coulter may well be mistaken on this. Thanks!

UPDATE: Ted Frank points to this: "I oppose the U.N. or anyone else risking the lives of their citizens to extract us from our debacle. I'm sorry, but the majority of Americans supported this war once it began and, sadly, that majority must now sacrifice their children until enough blood has been let that maybe — just maybe — God and the Iraqi people will forgive us in the end." Earlier in the item, he says "The Iraqis who have risen up against the occupation are not 'insurgents' or 'terrorists' or 'The Enemy.' They are the REVOLUTION, the Minutemen, and their numbers will grow -- and they will win."

Hmm; doesn't quite sound like hope that more Americans will die in Iraq (note the "sadly," plus the "must" seems to refer to what he sees as the inevitable consequences of the Administration's policies, rather than what he would like to see happen). On the other hand, it's quite clear that he wants us to lose, and some very bad people to win. But in any event, I'm not at all sure that this is what Coulter was referring to.


My legal predictions come true, for a change:

I blogged in March:

No hint of litigation about this yet, but it makes for an interesting hypothetical question (assuming Slate didn't get a copyright clearance) -- check out this Slate "Juicy Bits: We read the book so you don't have to" column, and compare it to the situation in Harper & Row v. Nation Enterprises (1985). Not an identical case, of course; for instance, the excerpts here are from a published book, rather than a yet-to-be-published book. Still, it seems like an interesting fair use issue.

Reader David Gil points to this item in Slate's Corrections column:

After receiving a complaint from the publisher that a June 22 "Juicy Bits" article on My Life by Bill Clinton infringed on the book's copyright, Slate removed the piece on the advice of counsel.


An unasked Zarqawi question:

I've gotten lots of e-mail about the Zarqawi story (see posts here and here) that has asked, more or less, why I would ever believe anything from the mainstream media with its obvious anti-Bush bias. I've responded, over and over again, that I know the rules reporters for major mainstream American news sources work under, and that if an NBC reporter claims to have "Pentagon sources" for a claim, then he does have such sources.

But, amidst all the media bias e-mail, an important question hasn't been asked, one that doesn't require us to disbelieve the reporter at all.

The original report said:

Military officials insist their case for attacking Zarqawi's operation was airtight, but the administration feared destroying the terrorist camp in Iraq could undercut its case for war against Saddam.

That's all that's said about the most explosive version of the case. "Military officials" told Jim Miklaszewski that the NSC killed the plan because destroying the camp could remove a pillar from the case for the war.

How do they know what the NSC's motives were?

Since the report came from a TV network and not from the Times or the Post, it lacks the elaborate code telling us what rank the military officials hold and how close they were to the key meetings. It could be that the sources were involved in drawing the plans up, but very far from the NSC decisionmaking about what to do with the plans. They considered their case "airtight," and when the NSC said no, they imputed bad motives to the NSC.

NBC would have told the truth; it doesn't place the officials at the meeting. The officials would be telling the truth as best they understand it. But the underlying charge still might not be true.

Conversely, maybe the military officials do have good information on what was said at the NSC; maybe they were in the room. Or maybe Roger Cressey, quoted elsewhere in the article and still in the White House (though no longer on the NSC staff) by the time of some of the relevant meetings, knows what went on. But the report really isn't clear enough on how the Pentagon staff whose plans were rejected know why they were rejected. As it stands, the charge could be a kind of bureaucratic sour grapes.

Of course, the officials quoted might be falsely imputing motives without the real motives being adequate or sufficient. But how much evidentiary weight do we put on these Pentagon sources? I don't know, because Miklaszewski doesn't tell us how they would know what they claim to know.


Trunk monkey:

Laugh-out loud funny video. Thanks to Clayton Cramer for the pointer; he links to some others in the same series.


Michael Moore, the NRA, and campaign speech restrictions:

Rick Hasen, a top election law expert, discusses the subject.


Conservative lawprof claims that he isn't allowed to teach constitutional law:

A Montana newspaper reports:

University of Montana professor Rob Natelson, accusing the Law School of discriminating against him for years because of his conservative political views, has asked the state Board of Regents to overturn a decision denying him the opportunity to teach constitutional law. . . .

Natelson urged the regents to admonish the Law School "to reassess its policies and practices to assure that faculty members of all viewpoints receive equal opportunity and treatment in hiring, promotion, work practices, merit pay and faculty awards, and that there is greater viewpoint diversity among faculty."

In addition, he asked the regents to order the Law School to file "a plan of affirmative action (but not preferential hiring) to assure that the goals of equality opportunity, equal treatment and intellectual diversity are met." This may include, he said, "reassessment of intellectual political bias, faculty sensitivity training and basic education in federal and state provisions against illegal discrimination." . . .

Natelson said he's been punished by the Law School in several ways. His requests for merit pay increase have been denied, he said, and his applications to teach constitutional law have been spurned four different times after professors teaching the course have left the school. . . .

In his appeal, Natelson cited the Montana Constitution ban on political discrimination and said political discrimination by state agencies can be unconstitutional under the 14th Amendment to the U.S. Constitution. . . .

I'm not sure whether politically based teaching assignment decisions would indeed be unconstitutional -- the question of a university's power to control the content and viewpoint of the classes that it offers turns out to be a complex and, in my view, unsolved First Amendment issue. Moreover, since it would be very hard for a university to control class content directly (for instance, by reviewing each professor's lesson plans, or monitoring what he says in class), the university might plausibly argue that such control, if it's constitutionally permissible in the first place, can be done by considering a professor's ideology in deciding which classes to assign him to teach.

I'm also not sure whether Prof. Natelson's claims are factually accurate (and I'm sure that I won't invest the huge amount of time needed for me to decide this for myself).

Still, if Prof. Natelson's claims are factually accurate, then this would show a serious professional failing (whether or not it's also a legal failing) on the law school's part. I do hope the matter gets more closely investigated.

Many thanks to Paul Caron (TaxProf Blog) for the pointer.


Sex with teenagers:

Here are Glenn Reynolds' views, though not squarely focused on the age of consent.


Sex with teenagers:

The Curmudgeonly Clerk responds (see his post for various links):

As regular readers know, I have done a fair amount of blogging about statutory rape laws over the course of the last year or so, and I have come to advocate what is essentially a descriptive approach to the law of statutory rape. That is, I think that the age of consent ought to correspond to teenage behavioral norms rather than attempting to prescribe them. To set the law up in this area in any other fashion basically criminalizes otherwise consensual sexual behavior that is not statistically aberrant.

For example, an Alan Guttmacher Institute paper indicates the following percentages among teenage females (where the % indicates sexual intercourse):

Age 15: 24%

Age 16: 39%

Age 17: 52%

Age 18: 65%

The percentages for teenage males are not dissimilar. But I assume that the female percentages are the ones that really matter in this debate, as statutory rape prosecutions most often involve female victims. Likewise, concerns about the poor judgment of teens and the possibility of adults preying on them always seem to be primarily directed towards female teens.

Of course, even from the foregoing data, one might dispute what age/percentage correlation is sufficiently high to serve as the basis for the age of consent. It seems to me though that rather large numbers of teens are engaging in sexual intercourse by the ages of 16 and 17. And, it's important to remember that the foregoing statistics apply solely to "sexual intercourse." If other sexual activities are accounted for, those percentages may rise significantly.

Admittedly, this descriptive approach may run into more difficulty in serving as a basis for "Romeo and Juliet" provisions that typically exist within statutory rape laws (i.e., the provisions that provide that, even when one of the participants has not reached the age of consent, there is no rape so long as the other participant is within a certain range of years). However, there is data on this as well. The aforementioned Guttmacher study reports that:

Nearly two-thirds (64%) of sexually active 15-17-year-old women have partners who are within two years of their age; 29% have sexual partners who are 3-5 years older, and 7% have partners who are six or more years older.

So, one can make a good case, I think, for fairly narrow "Romeo and Juliet" provisions, particularly if one is contemplating a lower age of consent. No one, I suspect, has a problem with prosecutions of the sort detailed in this Houston Chronicle article. However, a narrow age-range for "Romeo and Juliet" provisions does produce some questionable prosecutions with unexpected frequency (e.g., cases involving two teens). Though even cases involving only teenage participants are themselves not easily characterized on occasion.

Personally, I am less and less persuaded by prophylactic arguments directed at teenage wisdom. Increasingly, in the criminal justice system, we are willing to attribute a high degree of sophistication and culpability to minors (i.e., treating juveniles as adults). Statutory rape laws head in the exact opposite direction. I find it somewhat difficult to reconcile the two trends. Others hve offered additional reasons for questioning the paternalism that lies behind statutory rape laws.

The Guttmacher study does admittedly provide statistics that might be are cause for concern regarding pregancy and STDs among teens, two oft-cited rationales for enforcing statutory rape laws. However, my hunch is that concerns about pregnancy and disease can be better addressed via sex education rather than through a legal prohibition that teens themselves already apparently disregard in large numbers.

Interesting; as I mentioned, I don't endorse any of the items I post, but this seems detailed, thought-through, and worth considering.

But to what extent should the law track practice? Say there are a lot fewer 30-year-olds having sex with 16-year-olds than 18-year-olds having sex with 16-year-olds. Is that by itself that much of a reason for treating the 30-year-old and the 18-year-old differently? (Just questions that I thought might inform reader's thoughts, or future submissions; please don't respond specifically to those questions, except in the context of a broader post.)

I'll post one or two more items on this today, and save others for tomorrow and next week.


Are you a political history junkie?

Or are you a political history SuperJunkie? Test yourself by guessing the election year from the electoral college map. Cool! Provided by Tom McMahon.


More on the Guantanamo detention case:

Several people, including Juan and Mike Rappaport (The Right Coast), suggested that I needn't worry about the litigation as military tactic by 50,000 detainees scenario, because Congress could still statutorily strip these detainees of the rights to petition for habeas. This would not be a suspension of the constitutional right to habeas corpus (which isn't allowed except in cases of invasion or rebellion), but rather a denial of habeas to people -- enemy aliens detained outside the U.S. -- who have only a statutory habeas corpus right, not a constitutional one.

How would this work? Well, remember that all of us can have three kinds of rights: (1) Constitutional rights, which are secured by the Constitution itself, and which can't be taken away by Congress (except when the Constitution specifically authorizes it, as with suspension of habeas during rebellion or invasion). (2) Statutory rights, which are granted (I speak here of legal rights, not moral rights) by statute, and which can be taken away by statute. (3) Common-law rights, which flow from judicial decisions, but which can be taken away by statute.

To give one non-habeas example, if the police illegally wiretap us, we might have a common-law claim of invasion of privacy against the police officer, a statutory claim under laws that restrict wiretaps, and a constitutional claim for violation of the Fourth Amendment. Our statutory and common-law rights may actually be broader than our constitutional rights (and, as to the wiretaps, the statutory rights are indeed broader). This might mean that when we sue based on the wiretap, the court might not even have to decide the scope of our constitutional rights, if it's clear that our statutory rights were violated. But the statutory and common-law rights may be repealed by legislative action; the constitutional rights can't be.

In Johnson v. Eisentrager (1950), the Supreme Court held that German soldiers caught by the Americans in China, and detained in Germany, didn't have either a statutory or constitutional right to habeas corpus. The statutory issue took little space; the Court concluded that the statute authorizing habeas petitions basically only gave jurisdiction to judges in the district where the person was being detained. This was an extension of Ahrens v. Clark (1948), which held the same, but specifically reserved judgment on whether this rule applied when the person was detained outside any judicial district (such as on a military base in Germany); Eisentrager essentially concluded that the rule did apply there, and there was no statutory right to habeas.

The Court then went on to conclude that the enemy detainees didn't have constitutional rights to habeas (or the rights of the Bill of Rights), either.

In the Guantanamo case (Rasul v. Bush), the Court said that -- because of more recent developments in the Court's interpretation of the habeas statute -- the Guantanamo detainees did have statutory rights to habeas. It therefore didn't have to explicitly decide whether they had constitutional rights to habeas. So it's possible that Congress could, if such habeas petitions prove too burdensome, limit the habeas statute to exclude them. That would then require the Court to answer the question whether such enemy detainees do indeed have constitutional habeas rights, and not just statutory ones.

That's a plausible argument -- but here's why I'm skeptical, and why I think that the Court's ruling may lead the Justices (and lower courts) to actually conclude, in my view wrongly and dangerously, that enemy detainees do have the constitutional right to habeas corpus review, and thus can continue to use litigation as a military tactic.

1. To begin with, just to make clear, the Court did not preclude the possibility of such a constitutional right. It didn't hold there was such a constitutional right (it only said there was a statutory right), but it didn't hold the opposite.

2. More importantly, the Court went out of its way to cast doubt on the broad applicability of Eisentrager (which, recall, is the case that did reject a constitutional right). For its purely statutory holding, the Court could have limited its treatment of Eisentrager to the purely statutory point: Recent cases have led the Court to interpret the statutory habeas provision more broadly than it was interpreted during the Eisentrager era (that's the argument captured in the Court's statement that "Because Braden overruled the statutory predicate to Eisentrager's holding, Eisentrager plainly does not preclude the exercise of [habeas] jurisdiction over petitioners' claims"); and since Eisentrager talked very little about statutory habeas, there's no reason to discuss Eisentrager further.

But the Justices didn't just do that; they began by distinguishing Eisentrager on the facts:

In reversing that determination [of a constitutional right to habeas], this Court summarized the six critical facts in the case [Eisentrager]:

"We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States."

On this set of facts, the Court concluded, "no right to the writ of habeas corpus appears."

Petitioners in these cases differ from the Eisentrager detainees in important respects: They are not nationals of countries at war with the United States, and they deny that they have engaged in or plotted acts of aggression against the United States; they have never been afforded access to any tribunal, much less charged with and convicted of wrongdoing; and for more than two years they have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control.

Only then did the Rasul majority go on to say "Not only are petitioners differently situated from the Eisentrager detainees, but the Court in Eisentrager made quite clear that all six of the facts critical to its disposition were relevant only to the question of the prisoners' constitutional entitlement to habeas corpus. The Court had far less to say on the question of the petitioners' statutory entitlement to habeas review. Its only statement on the subject was a passing reference to the absence of statutory authorization: 'Nothing in the text of the Constitution extends such a right, nor does anything in our statutes.'" And then the Court continued with its statutory analysis.

This strongly suggests to me that the Court is trying to limit Eisentrager's constitutional holding to a situation where some number (maybe all, maybe most, maybe some) of the Eisentrager factors are met. And if that's so, then there might indeed be a constitutional right to habeas in my hypothetical.

3. Also, while the Court is saying that its holding is statutory, actually its holding is much more common-law-like. Habeas law has generally been developed by judges, with relatively little participation by Congress (though in recent years the Congress has cut back in some measure on repeat habeas claims by criminals). The broadening of statutory habeas that the Rasul Court focused on was done not by Congress, but by the Court itself. So the Court may formally be interpreting the statute, but it is actually making a sort of statutory common law that has little to do with specific Congressional commands.

This isn't itself illegitimate, it's part of our habeas tradition, and the Court has done this in many other areas (such as antitrust law, or, historically, copyright fair use law, or evidentiary privilege law under the Federal Rules of Evidence). And such common-law decisionmaking might be supersedable by contrary Congressional statutes.

But it's important to realize that here the Court is exercising its own policy judgment, not just saying "Congress said we should do this, so we'll do this." The Rasul decision thus represents the Court's own views of sound habeas policy -- and, coupled with what I said above in item 2, it suggests that the majority might well apply the same views to the question of what habeas relief is constitutionally required.

Recall the key arguments made by the Court in Eisentrager as support (not the only support, since the Court also stressed history and other factors, but as a major support) for its decision (some paragraph breaks added):

To grant the writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence.

The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals.

It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers. Except in England, whose law appears to be in harmony with the views we have expressed, and other English-speaking peoples in whose practice nothing has been cited to the contrary, the writ of habeas corpus is generally unknown. . . .

That was the heart of Eisentrager's constitutional argument, but it is an equally strong prudential argument against recognizing, in common-law fashion, a hitherto unrecognized statutory habeas right. But the Rasul majority obviously didn't buy this. This suggests that they won't buy the Eisentrager constitutional argument in a constitutional habeas case, either -- and that the logic of their case might thus suffice to overrule or at least limit to its facts (again, see item 2 above) Eisentrager's constitutional holding.

* * *

So these are my attempts to respond to the very thoughtful points raised by Juan and Mike (see links at the start of this post). I recognize that indeed the Court might eventually hold that the enemy detainees in my hypo don't have a constitutional right to habeas, and that Congress can thus deny them habeas review if it thinks that such review would be too burdensome. I also recognize that some may argue that such review might not be that burdensome (if the Court concludes that lower courts can summarily deny habeas if the military provides even very slightly, purely military process to those who claim they're wrongfully detained). And I recognize that some may argue that, no matter how burdensome the review is -- how effective mass habeas petitioning may be as an enemy litigation tactic -- that's a price that we have to pay, to protect the rights of the alleged enemy combatants.

But I think that, largely for the reasons that Eisentrager gives (though with less focus on transportation, given modern technology), Rasul does indeed risk substantially hampering our military effort, and strengthening our future enemies' military effort. And I'm not at all sure that Congress can avoid this burden simply by limiting statutory habeas for enemy detainees to the constitutionally required minimum.


Spider-Man 2

Jonah is right, other than his parting shot at DC. Adam Graha-Silverman is right. John Podhoretz is just being silly.

Went to see the movie yesterday afternoon with someone known to you all. Loved it. It was pretty close to (though not quite) pitch-perfect as a movie. It included lots of easter eggs for the geeks (Stan Lee! "Spider-Man No More" complete with the cover shot reproduced exactly! The Doc Ock denouement! The cartoon "Spider-Man" theme song!) without letting them get in the way; it probably included more shots than even Daredevil did that were lifted precisely off the page, but here they were actually integrated into the movie. Wonderful performances all around. Kirsten Dunst is just right; she has the right kind of looks to be the idolized-from-afar daydream billboard ad without the passivity that could go with those looks.

I'm really not thrilled with the telegraphed direction of the third movie. Of the three possible villains they've got kicking around, they seem inclined to go with by far my last choice. And I think it will be very tough to top Alfred Molina's Doctor Octopus, either in his performance or in the effects. (Vastly better than the lame suit of armor they put Willem Dafoe into as the Green Goblin.) But I should have a little faith, since things have gone so well so far.


David Kopel on "Fifty-six Deceits in Fahrenheit 911",

here.

I have not checked this myself, so I can't vouch directly for its accuracy; but I know Kopel's work well, and think highly of it (and of him).


Sex with teenagers:

So I've been thinking -- purely for academic reasons, I hasten to stress! -- about statutory rape laws. There's broad agreement that sex with people who are too young is wrong, and should be illegal, because children aren't mature enough to consent to sex.

But there's vast disagreement about what the proper cutoff age will be. California law prohibits pretty much all sex with under-18-year-olds. But (according to this source, seemingly created by people whose motivations may not coincide with mine, but which appears to be relatively accurate), California is in a tiny minority on this score: Only 6 states have a categorical age of consent of 18. (I set aside the special issue of sex between married couples; in most states, I believe, people can marry, at least with parental consent, before 18, and can then have sex.) Maybe the 18 cutoff is right, but it seems to me hard to say, given this, that it's the obviously right one.

What's more, Canada -- not generally thought of as a much lewder country than the U.S. -- has an age of consent of 14 (though perhaps some provinces set it higher; I'm not sure). It's 14 in many European countries, and flat 18 (or higher) thresholds seem to be unknown in any Western nations.

Now in some states and countries, there's a lower threshold for sex among young people: Sex with under-16-year-olds may be categorically banned, for instance, but sex with under-18-year-olds may be legal if the age difference between the parties is no more than, say, four years. But, as I said, the categorical illegal-to-have-sex-with-under-18-year-olds position -- which is the one that's most consistent with the "they lack the legal power to consent" theory -- is very much a minority. And in the U.S. a flat 16 cutoff seems to be the norm. Of course, that too could be wrong, and 18 could be better the rule.

So here's my question: What should the rule be, at least within American states, and what are the most cogent arguments that support it? I'm not asking what the constitutional rule should be; I'm also not asking, at least directly, what's likely to prevail politically. I'm asking what the right policy approach will be.

But this policy approach should take into account real human behavior (of the teenagers, of their prospective partners, of parents, of police, of prosecutors, and so on), and not just a perfect theoretical world. So one might want to consider:

  1. The risk of physical harm from sex, such as pregnancy or sexually transmitted diseases.

  2. The risk that teenagers who really aren't very mature will end up being emotionally and developmentally hurt.

  3. The possibility that sex among teenagers is less likely to be manipulative or exploitative (whatever exactly that means) than sex between an older adult and a teenager -- and the possibility that this is a myth, and that 16-year-old boys are as likely to (or more likely to) want to and be able to exploit 16-year-old girls as 40-year-old men would be.

  4. Whatever moral claims to making their own decisions you think the teenagers would have.

  5. The possible harms and benefits of having a law that is vastly underenforced, and that is enforced when the prosecutor decides the case is especially egregious (and when other circumstances, such as unwanted pregnancy or parental complaint, bring the case to the government's attention).

  6. And more.

Let's set aside, as I mentioned, the special case of sex within marriage. Let's also set aside sex among family members (blood or otherwise), or high school teachers having sex with students and the like. Also, note that I see "teenager" for convenience; one might certainly argue that the age of consent should be below 13, though I doubt that this will fly.

If you're interested, please submit (to volokh at law.ucla.edu) a concise but thought-through, detailed, and proofread argument for what you think is the right position. I promise to be quick about posting these items; I'll be able to do that because I won't have to aggregate the results, or decide whether I endorse the argument or not. I want to post interesting and thoughtful arguments, whether I think they're right or not. (And, yes, I will eventually post the results of the Ancient Rome question, but since I do have to aggregate and screen that, it's been on the back burner.)

Note, though, that I don't expect to post all or even most of the responses; please forgive me if I don't post yours (whether because I think it's a bit duplicative of others', or not specific enough, or some such). If you post on this and want me to link to your post, please e-mail me both the permalink URL and the text of the post; if I use it, I'll then include the text and also a link. If you don't want your name to be used in my post, please say so.


A Remarkable Admission of "Dirty Tricks":

From the N.Y. Times:

[Nader]said that while representatives of an antitax group encouraged Republicans to attend a meeting last Saturday in Portland, Ore., to help him collect 1,000 signatures, he said Democrats were "infiltrating" the same meeting merely to block other supporters from getting in.

Mr. Nader said Democrats crowded into a meeting hall, kept other people out and gave the false impression that they had signed petitions for him. Democratic officials did not dispute Mr. Nader's account. "I felt it as my obligation due to the dirty tricks that the far right were doing to stack the seats at that convention," said Moses Ross, communications secretary for the Multnomah County Democratic Party. "I felt obliged to encourage our Democrats to do something about that."

So let's see. Republicans want Nader on the ballot to take votes from Kerry, so they go to a meeting to sign petitions for him. Sneaky, yes, but not interfering with anyone else's rights. The Democrats respond by flooding the meeting room to prevent both Republicans and anyone else from signing the petitions. This strikes me as beyond the ethical (and, depending on the details of "kept people out," perhaps legal) pale, as it prevented others from exercising their constitutional right to assemble, and was intended to do so. Someone, at the very least, owes Mr. Nader and his supporters and apology.


Greenspan:

Alan Greenspan receives a tremendous amount of adulation. I may be wrong but (1) I think that Greenspan, along with other central bankers, caused the great stock market bubble of the late 1990s, by opening the money supply spigots to fend off problems stemming from the collapse of Long Term Capital Management and the Russian bond default; and (2) when the bursting of that bubble threatened to cause a severe contraction, the money supply was increased again, with inflationary pressures this time going into a bubble housing market, which has ballooned from Sydney to New York. (Here in the D.C. area one hears that prices are going up due to building restrictions, hiring at the Department of Homeland Security, and immigration, but this doesn't explain why London, Sydney, Boston, L.A., Toronto, etc., have all had similar price distortions increases, nor why housing prices even outside big cities are at all-time highs by many measures.) I foresee this bubble ending badly, too--not nearly as badly as the Nasdaq bubble for owners of housing, but perhaps a lot worse for the economy as a whole.

UPDATE: Coincidentally, just noticed that the Times has a story about Greenspan critics today.

Personal Fireworks Show:

Cool.


George Mason's Service Members' Clinic:

Today's Washington Post has a nice piece on my law school's "Clinic for Legal Assistance to Service Members." Acting Dean Dan Polsby:

It's not exactly a secret that the culture of higher education in America is anti-military. We're a little different in the law school. We're near the Pentagon, with a lot of military and naval officers in our student body. I just don't think we drink very deeply from the same cultural springs that some of our brother and sister schools drink from.


Lincoln on Revolutions:

If by the mere force of numbers a majority should deprive a minority of any clearly written constitutional right, it might in a moral point of view justify revolution; certainly would if such right were a vital one. . . .

This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing Government, they can exercise their constitutional right of amending it or their revolutionary right to dismember or overthrow it. . . .

Of course, the Revolution was conducted by trained professionals, boys and girls -- don't try this at home.


Strange Ninth Circuit Opinion on Expert Witness Perjury:

Via Wally Olson at PointofLaw.com:

What does it take to convict an expert witness of perjury? Well, according to the Ninth Circuit (over dissents from O'Scannlain and four others), ruling last week, it's not enough to catch the expert passing himself off in testimony as a specialist in orthopedic surgery when his actual residency was in physical medicine and rehabilitation. Very curiously, the Ninth Circuit judges decided that the misrepresentation was not material to the jury's reception of Dr. Edmund Y. Chien's testimony -- even though he was testifying on a plaintiff's future need for orthopedic surgery -- and thus, on a habeas corpus petition, overturned his California state court perjury conviction.

As the dissent pointed out, "If two doctors gave me conflicting diagnoses about my need for invasive orthodpedic surgery, I know that I would be more inclined to trust the opinion of the actual orthodpedic surgery specialist."


Lincoln on the Supreme Court:

Also from his First Inaugural Address; agree or disagree -- and in practice our legal and political system has generally rejected Lincoln's view -- it's eloquent and thought-provoking (paragraph break added):

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice.

At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.


Wednesday, June 30, 2004

Closing paragraph of Lincoln's First Inaugural Address:

I just read the Address for the first time -- too bad that it took me so long -- and thought the closing paragraph was quite moving:

I am loath to close. We are not enemies, but friends. We must not be enemies. Though passion may have strained it must not break our bonds of affection. The mystic chords of memory, stretching from every battlefield and patriot grave to every living heart and hearthstone all over this broad land, will yet swell the chorus of the Union, when again touched, as surely they will be, by the better angels of our nature.


Congressmen write to Justice Breyer

-- in his capacity as head of the Judicial Conduct and Disability Act Study Committee -- to complain about Judge Calabresi's remarks. Here's the letter. Seems like overkill to me, especially given the Judge's apology, but I thought I'd pass along the Congressmen's opposite view.


Liberty & Power on a Roll!: WOW! Liberty & Power has added a host of interesting "Contributing Editors" to its already impressive stable making it a libertarian intellectual powerhouse. I go way back with most of the folks on its roster--in some cases, to when they were students, in others to when I was a student. My congratulations.

Given the stance of most of the Liberty & Power contributors on the "war on terror" in general, and the Iraqi war in particular, the time may be ripe for a full fledged debate on the relationship between libertarianism and foreign policy. It appears that there is an assumption on the part of many libertarian intellectuals that libertarian principles entail a very specific version of "noninterventionism" in foreign policy.

I believe that this is a category mistake, and that noninterventionism (which I favor), and its exact contours, does not follow deductively from libertarian first principles. In other words, two people holding exactly the same commitments to libertarian principles can favor radically different foreign policies. I realize that this is a cryptic observation, but I do fear that the recent anti war vociferousness of some libertarian intellectuals, of whom I have the highest regard and respect, may unfairly tag all libertarians with a very particular set of foreign policy positions about which even radical libertarians actually differ.

I confess that my instincts here are driven by the fact that I disagree sharply with the anti war stance of these libertarians, and they with me, but I do not believe my libertarian principles, or my commitment to them, have changed in the slightest. Because I think neither has theirs, something other than libertarian first principles are at stake. About all this I am open to reasoned argument. I have not given this matter any sustained or systematic thought, but the time may be nigh to do so.

Update: Note that Liberty & Power has now been added to the much-coveted Volokh Conspiracy blog roll at the left!


So, who exactly controls us -- the Saudis, or the Israelis?

Michael Moore says the Saudis. Ralph Nader has a different view; I've quoted it here, but reader Duncan Frissell points to this even more explicit reference:

Independent presidential candidate Ralph Nader yesterday courted the Islamic vote by accusing Republicans and Democrats of ignoring the interests of Muslim Americans and describing the Congress and White House as "puppets of Israel." . . .

"The Israeli puppeteer travels to Washington and meets with the puppet in White House. He then goes down Pennsylvania Avenue and meets with the puppets in Congress," said Mr. Nader. The Israeli leader then "brings back millions of dollars" in aid to Israel, he said.

So which of these reliable worthies is right? Or could it be both, perhaps with the Queen of England (Lyndon LaRouche's bete noire) thrown in for good measure?


And where in the Constitution is that?

A TV station's Web site reports:

[An ACLU] lawsuit filed Tuesday challenges a new state law that effectively bans nude summer camps for teenagers, saying it violates the constitutional right to privacy. . . .

The law was passed in March in response to a weeklong residential camp for 11- to 18-year-olds last June at White Tail. . . .

"Legislators overreacted and in the process they substantially interfered with the right of families to make lifestyle choices," Virginia ACLU executive director Kent Willis said. "Using the overall logic of this law, legislators are now free to prevent children from swimming, playing baseball or riding a bus." . . .

Attorney General Jerry W. Kilgore said last year that such camps could attract pedophiles and child pornographers. . . .

I'm generally for giving parents lots of flexibility in how to raise their children. But even if this law is unwise (and I think the Attorney General's argument is not implausible, though I think nonconsensual nude photos via hidden cameras are a more likely risk than true child porn, which requires photographing lewd nudity, not just nudity as such), I really doubt that the Constitution protects such a right. And the fact that it's talked about as a matter of "privacy" just shows what a malleable and ultimately unhelpful word "privacy" has come to be.

Clayton Cramer has more on this, though I don't entirely agree with his analysis.

UPDATE: Curmudgeonly Clerk has some more specific legal points related to all this.


The trouble with rage:

Nicholas Kristof (N.Y. Times) puts it well (thanks to Dan Gifford for the pointer):

In the 1990's, nothing made conservatives look more petty and simple-minded than their demonization of Bill and Hillary Clinton, who were even accused of spending their spare time killing Vince Foster and others. Mr. Clinton, in other words, left the right wing addled. Now Mr. Bush is doing the same to the left. For example, Mr. Moore hints that the real reason Mr. Bush invaded Afghanistan was to give his cronies a chance to profit by building an oil pipeline there.

"I'm just raising what I think is a legitimate question," Mr. Moore told me, a touch defensively, adding, "I'm just posing a question."

Right. And right-wing nuts were "just posing a question" about whether Mr. Clinton was a serial killer.

I'm against the "liar" label for two reasons. First, it further polarizes the political cesspool, and this polarization is making America increasingly difficult to govern. Second, insults and rage impede understanding. . . .


Eugene's Scenario and Suspending Habeas Corpus: I rarely disagree with Eugene. Nonetheless, I am not convinced by his argument Congress could not suspend habeas to prevent the filing thousands of writs by enemy detainees in U.S. hands on foreign soil in his Monday hypothetical. As Eugene notes, the text of the Suspension Clause provides: "The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it." A foreign war, while perhaps important for national security is neither a case of "rebellion or invasion," so that settles it, right? Not necessarily. Article I, section 8 of the Constitution provides for the creation of "Armies" and a "Navy," but no one seriously contends that this makes the Air Force illegal. The textual provisions clearly provide for the provision of the armed forces, and this settles the matter. Could not one analogously argue that the Suspension Clause authorizes suspension in times of dire national emergency?

Justices Scalia and Thomas both address this issue in their respective Hamdi decisions, both concluding (for different reasons) that Congress has the power (if not Constitutional authority) to suspend the writ where necessary. Justice Scalia, in defending his position (with which I agree) that the federal government must either prosecute Hamdi for treason or seek suspension of the writ of habeas corpus, argues that the textual limitation is no obstacle:
To be sure, suspension is limited by the Constitution to cases of rebellion or invasion. But whether the attacks of September 11, 2001, constitute an "invasion," and whether those attacks still justify suspension several years later, are questions for Congress rather than this Court.
(Scalia, J., dissenting, p. 26). He further argues that
It is difficult to imagine situations in which security is so seriously threatened as to justify indefinite imprisonment without trial, and yet the constitutional conditions of rebellion or invasion are not met.
(Ibid, FN6).

Justice Thomas objects to Scalia's position noting, as did Eugene, the textual predicate for suspension would seem to exclude foreign wars and other situations in which providing for writs of habeas corpus for enemy combatants could cause serious problems. Thus "Congress would then have to choose between acting unconstitutionally and depriving the President of the tools he needs to protect the nation." (Thomas, J., dissenting, p. 16). Yet Thomas then proceeds to agree with Scalia that the Supreme Court "could not review Congress' decision to suspend the writ" (Ibid., FN4). Therefore, as a practical matter, Congress could suspend the writ to address Eugene's scenario, even if it would be, in some sense, "unconstitutional." Nonetheless, Justice Thomas finds this objectionable because "the power to protect the nation must be the power to do so lawfully."

Justice Thomas makes another point worth mentioning. He argues that if the treatment of certain detainees is unconstitutional, it is not suddenly made constitutional by suspending the writ of habeas corpus. The detainees are denied a legal remedy, but the constitutionality of their treatment remains unchanged. I agree. But the difficulties of Eugene's scenario are not predicated on the U.S. military treating the detainees in an unlawful or unconstitutional manner. To the contrary, the difficulty arises from the need for the courts to hear, and the military to respond to, the thousands of habeas petitions. This burden remains no matter how well the detainees are treated.

While I tentatively disagree with Eugene's bottom line on the suspension of habeas - Congress could do it if the situation required - I nonetheless believe the decision in Rasul was misguided. The fact that Congress and the President would potentially have to act in an unconstitutional manner to address such a scenario suggests the ruling is unwise. Moreover, the fact that the text of the Suspension Clause only makes reference to threats arising on domestic soil reinforces the Rasul dissenters' argument that writs of habeas corpus are not available to enemy combatants detained outside of U.S. territory. But that is not what the Supreme Court decided, so (for the time being) we'll have to live with it.

Sentencing Guidelines held unconstitutional by another judge:

The judge this time is Paul Cassell, one of the leading conservative criminal procedure professors who was appointed to federal district court a couple of years ago. Prof. Douglas Berman (Sentencing Law and Policy reports):

I previously noted that law professors like to get the first word on important cases, and apparently that maxim holds even when they become judges. U.S. District Judge Paul Cassell of the District of Utah, who did interesting and provocative work as a law professor before he started doing interesting and provocative work as a judge, became (to my knowledge) the first federal judge to officially decalre the federal sentencing guidelines unconstitutional after Blakely. Here is a link to Judge Cassell's opinion in US v. Croxford, as well as a link to an article discussing Judge Cassell's ruling.

Update: I've just now had the chance to read Croxford and it is almost as breathtaking as Blakely itself. A must read for all Blakely followers today!

Go to Prof. Berman's post for the link to the opinion.


The President and Congress are "puppets" of "the pro-Israeli lobbies":

Who said that, just a few weeks ago?

(Click here for the answer.)


Will Baude on Scalia and Thomas,

in The New Republic Online.


Which Justices Have the Broadest (and Narrowest) Views of Free Speech?

I've just updated my Excel spreadsheet of the Justices' votes in free speech cases to include 1994 to 2003 -- 10 years in which the Court's makeup has remained the same. Here are the results, with the Justices ranked from having the broadest aggregate view of free speech protection to the narrowest aggregate view.

Ranking, from most speech-protective (#1) to least (#9)

Justice

Score, out of 57 cases

#1

Kennedy

39

#2-3 (differences of <1 point treated as ties)

Souter

32

#2-3

Thomas

31.7222

#4

Stevens

29.6667

#5

Ginsburg

28.5

#6

Scalia

25.4167

#7-8

O'Connor

21.5

#7-8-9

Rehnquist

21.1667

#8-9

Breyer

20.5

For (1) a description of my method, (2) an explanation of why it makes some sense to look at Justices' overall votes on a wide range of free speech issues, and (3) an acknowledgment of the limitations of such aggregate results, see here.

As I stress in the article I cite to, I don't want to overstate the importance of such aggregate data. Still, many laypeople, journalists, and even scholars do make generalizations about the Justices (e.g., Thomas is a conservative and therefore has a narrow view of free speech, Breyer is a liberal and therefore has a broad view), and there is some value to such generalizations. If such generalizations are made, they should at least be accurate.

The Excel spreadsheet is still tentative; I'd love to hear any corrections that people might have. But before e-mailing me any proposed changes, please (1) make sure you've read my scoring method, (2) make sure you've recently read the case, and (3) tell me specifically which scores you think should be changed, and why.

Also, remember that I'm not counting whether I think the Justices reached the right result -- only whether they reached a more or less speech-protective result (and speech-protective in a pretty narrow sense, focusing on speech restrictions by the government and not on the effect on the overall level or quality of public speech).


Less restrictive but equally effective alternatives:

The Ashcroft v. ACLU majority concludes that filters may well be a less speech-restrictive but equally effective alternative to the restrictions that the Child Online Protection Act imposes. That's why the Court effectively strikes down the Act. (The Court technically just upholds the preliminary injunction as not an abuse of the trial court's discretion, but it's clear that the Court agrees with the trial court on the merits; and though the Court remands for more factfinding, it's hard to see how more factfinding will really satisfy it.) Here's the Justices' argument:

A statute that "effectively suppresses a large amount of speech that adults have a constitutional right to receive and to address to one another ... is unacceptable if less restrictive alternatives would be at least as effective in achieving the legitimate purpose that the statute was enacted to serve." When plaintiffs challenge a content-based speech restriction, the burden is on the Government to prove that the proposed alternatives will not be as effective as the challenged statute. . . . The purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal, for it is important to assure that legitimate speech is not chilled or punished. For that reason, the test does not begin with the status quo of existing regulations, then ask whether the challenged restriction has some additional ability to achieve Congress' legitimate interest. Any restriction on speech could be justified under that analysis. Instead, the court should ask whether the challenged regulation is the least restrictive means among available, effective alternatives. . . .

Blocking and filtering software is an alternative that is less restrictive than COPA, and, in addition, likely more effective as a means of restricting children's access to materials harmful to them. . . . First, a filter can prevent minors from seeing all pornography, not just pornography posted to the Web from America. . . . In addition, the District Court found that verification systems may be subject to evasion and circumvention, for example by minors who have their own credit cards. . . . Finally, filters also may be more effective because they can be applied to all forms of Internet communication, including e-mail, not just communications available via the World Wide Web. . . .

That's correct in one way: Indeed, given the choice between (1) having only COPA (which would require commercial providers of obscene-as-to-minors material to put it behind credit-card checks or other proxies for age verification) and (2) having only the alternative of filters, option 2 is the best solution.

But I don't think that's the right analysis. If the "purpose of the test is to ensure that speech is restricted no further than necessary to achieve the goal" ("to assure that legitimate speech is not chilled or punished" unnecessarily, which must be what the Court is referring to), then the comparison must be between (1) having both COPA and filters and (2) having only the alternative of filters. If COPA and filters do a better job of serving the compelling interest in shielding children from sexually explicit material (and the majority didn't dispute that the interest was compelling, as the Court held in the past) than just filters, then COPA is necessary to get that extra level of protection.

Justice Breyer's dissent, then, was more sound (especially, I think, as to his third point):

Thus, the relevant constitutional question is not the question the Court asks: Would it be less restrictive to do nothing? Of course it would be. Rather, the relevant question posits a comparison of (a) a status quo that includes filtering software with (b) a change in that status quo that adds to it an age-verification screen requirement. Given the existence of filtering software, does the problem Congress identified remain significant? Does the Act help to address it? These are questions about the relation of the Act to the compelling interest. Does the Act, compared to the status quo, significantly advance the ball? (An affirmative answer to these questions will not justify "[a]ny restriction on speech," as the Court claims, for a final answer in respect to constitutionality must take account of burdens and alternatives as well.)

The answers to these intermediate questions are clear: Filtering software, as presently available, does not solve the "child protection" problem. It suffers from four serious inadequacies that prompted Congress to pass legislation instead of relying on its voluntary use. First, its filtering is faulty, allowing some pornographic material to pass through without hindrance. . . .

Second, filtering software costs money. Not every family has the $40 or so necessary to install it. By way of contrast, age screening costs less. . . .

Third, filtering software depends upon parents willing to decide where their children will surf the Web and able to enforce that decision. As to millions of American families, that is not a reasonable possibility. More than 28 million school age children have both parents or their sole parent in the work force, at least 5 million children are left alone at home without supervision each week, and many of those children will spend afternoons and evenings with friends who may well have access to computers and more lenient parents.

Fourth, software blocking lacks precision, with the result that those who wish to use it to screen out pornography find that it blocks a great deal of material that is valuable. . . . .

Few parents, even the best parents, so closely supervise their children and the children's friends that they know whether the computers at the friends' houses have filtering software installed (and installed securely enough that the children's friends can't easily circumvent it). Their children will at some point have access to an unfiltered computer. COPA would thus provide those children an extra level of shielding beyond what filters alone could do.

Now this doesn't mean that Justice Breyer is right on the bottom line. Perhaps the extra protection that COPA provides is too small to be worth the free speech cost. Perhaps on balance filtering alone will be more effective than COPA plus filtering because COPA will lull so many parents into a false sense of security that they'll stop using filtering. Perhaps Justice Breyer underestimates the free speech cost (I think he does, and I hope to blog more about that later). Perhaps the Court has been wrong in assuming that shielding children from sexually explicit speech is a compelling interest, or at least compelling enough to justify burdens on the ability to communicate to adults.

But I think Justice Breyer is right in the particular criticism he makes of the majority. By its formulation of the test, the majority is trying to make it seem like the restriction is unnecessary, and in fact not even beneficial (when compared to the easy alternatives). That makes the majority opinion look like it's giving the public the best of both worlds: It's protecting speech without really sacrificing any shielding for children.

Yet there's little reason to think that this is indeed so. More likely, the majority opinion does indeed in some measure diminish the level of shielding that children are likely to have.

That may well be right — we might have to sacrifice some shielding of children from sexually themed material, in order to protect free speech. But Justice Breyer is right that the majority is wrong to suggest that no such sacrifice is taking place here.

For more on this sort of mistake, by the way, which the Court also committed in Reno v. ACLU (1997), see this article of mine.


A brief Zarqawi roundup:

I'm working to synthesize a lot of information. For now:

David Meyer has a very thorough rundown and chronology. It includes the passages from a Greg Miller LA Times article from February of 2003-- a full year before the NBC story.

[l]awmakers who have attended classified briefings on the camp say they have been stymied for months in their efforts to get an explanation for why the United States has not begun a military strike on the compound near the village of Khurmal.

Absent an explanation from the White House, some officials suggested the administration had refrained from striking the compound in part to preserve a key piece of its case against Iraq.

"This is it. This is their compelling evidence for use of force," said one intelligence official, who asked not to be identified. "If you take it out, you can't use it as justification for war."

Sen. Dianne Feinstein, D-Calif., a member of the intelligence panel, said she and other members had been frustrated in their attempts to get an explanation from administration officials in closed-door briefings.

"We've been asking this question and have not been given an answer," Feinstein said. Officials have replied that "they'll have to get back to us."

Asked whether the White House might have rejected hitting the site to avoid complicating its efforts to build support for war against Iraq, she said: "That's an obvious thought. I hope not."

Tom Veal points out that there was at least one public response to the NBC story in March, from Assistant Secretary of Defense for International Security Affairs Peter Rodman, under Congressional questioning.

I do know something about the planning. We had our eye on that location, Kirma. But I'm not sure I agree with the characterization of the decisions that were made. Any kind of operation is complicated. And I do know that we had our eye on that location. There were discussions in the administration. And obviously no attack was made.

But I don't recall anyone discussing on either side of the discussion anyone saying, well, no, we don't want to do this because it will interfere with a plan to go after Saddam. I mean, you could have made the opposite argument that it would — if we had found something interesting there, it would have — could have strengthened our case.

This isn't a particularly decisive denial, even in conjunction with the Rice comments from Sunday. (I'll eventually assemble all this into a single post with links.) But there it is, for whatever you think it's worth.

Sebastian Holsclaw suggests that the issue was diplomatic: while in the midst of building the case for war, it was simply thought to be too sensitive to launch a unilateral strike against terrorists on what was nominally Iraqi territory. I've heard this from a number of other people as well. At first this looks dubious, given that the first Pentagon plan was in June 2002. But it's true that in June we didn't know we were still 8-9 months away from the final UN diplomatic stalemate, and we didn't know there was going to be such a stalemate.

I have to say that I find this only a slightly less bad reason for refraining than the one NBC's Pentagon sources alleged. It still amounts to a prioritization of the large-scale Iraq War over a pre-emptive strike on an al-Qaeda affiliated, ricin-equipped terrorist. And it's not the same as Rice's claim that there was never a moment when we could have been sure about getting Zarqawi. (I'm also going to blog later on about the distinction between the two legitimate targets, the ricin-equipped Ansar al-Islam camp and Zarqawi himself, and what work that distinction does and doesn't do.)

A claim that a number of people have e-mailed me that won't stand up is that there's nothing to criticize in retrospect since at the time we didn't know how bad Zarqawi was. This is false. At the time he hadn't killed as many people, of course; he's had a busy, bloody year. But the camp was referred to, often, in building the case for war, including in Powell's UN speech. There were ricin attacks planned and successfully stopped in Europe. They provided a living, breathing example of the central nightmare scenario: al-Qaeda-affiliated terrorists with unconventional weapons. The U.S. had even tried to cooperate with Hussein to get Zarqawi arrested and extradited when the latter was in Baghdad; the very fact that Hussein refused was cited as evidence of his collaboration with Zarqawi. Both Zarqawi himself and the camp were understood at the time to be very bad, very big deals. It seems to me that any acceptable reasons for not having attacked the camp ASAP must be logistical. And Feinstein, Cressey, Michael O'Hanlon, and the unnamed Pentagon officials are all denying that there were sufficient, or sufficiently-explained, logistical obstacles.

Finally, many people have e-mailed-- and this has the ring of truth to me-- that there might have been a reluctance on the part of the Administration to launch a strike that was heavy on cruise missiles and bombers, given Bush's dismissal of such strikes in the early days after 9/11. (Remembering Clinton's cruise missile strikes against bin Laden's camps, Bush insisted that that was the wrong way to proceed.) But, as became evident in the evtnual attack on the base, that wasn't really what was at issue. There were Kurdish pesh mergas ready, willing, and able to take part in a ground assault, provide that they had some Special Forces and air support.

More to come, including some questions that I'd love to see NBC ask its original sources or some investigative reporter for a newspaper follow up on.


Why Scalia?: The Onion has this somewhat amusing story (hat tip to The Irish Trojan's Blog), the best part of which is the title: American People Ruled Unfit to Govern. The opening reads:

WASHINGTON, DC—In a historic decision with major implications for the future of U.S. participatory democracy, the Supreme Court ruled 8-1 Monday that the American people are unfit to govern.

The controversial decision, the first of its kind in the 210-year history of U.S. representative government, was, according to Justice David Souter, "a response to the clear, demonstrable incompetence and indifference of the current U.S. citizenry in matters concerning the operation of this nation's government."

As a result of the ruling, the American people will no longer retain the power to choose their own federal, state, and local officials or vote on matters of concern to the public.
My question is why The Onion has Justice Scalia writing the majority opinion (with Justice Kennedy the lone dissenter):

"This decision was by no means easy, but it unfortunately had to be done," said Justice Antonin Scalia, who penned the majority decision in the case. "The U.S. Constitution is very clear: In the event that the voting public becomes incapacitated or otherwise unfit to carry out its duties of self-governance, there is a danger posed to the republic, and the judicial branch is empowered to remove said public and replace it with a populace more qualified to lead."

"In light of their unmitigated apathy toward issues of import to the nation's welfare and their inability to grasp even the most basic principles upon which participatory democracy is built, we found no choice but to rule the American people unfit to govern at this time," Scalia concluded.
Justices Ginsburg, Stevens and Breyer go unmentioned in the lampoon.

Now I have my disagreements with Justice Scalia, but a refusal to defer to the American electorate or to doubt their competence in nearly all matters is not among them. If effective humor is based on truth, where is the joke--or even the irony--in this? Perhaps some reader can enlighten me on this humoric (which may not be a word, but it does rhyme with "sophomoric") choice.

Update: Clayton Cramer offers these subtle comments:

That's what makes it obviously parody, because Scalia is one of the few current Supreme Court justices that actually does believe that, unless clearly contrary to the Constitution, the people do have a right to make their own laws. The Onion is parodying Randy Barnett's theory of the Constitution in which the masses are not trusted to make their own laws, except for those laws that implement Barnett's libertarian ideas.
Obviously this is a parody (I used the term "lampoon") of theories that would permit broader judicial review than either Kramer or Justice Scalia would approve. But I still do not see why it is funny to put these words in the mouth of Justice Scalia, who most vocally rejects such theories, while omitting from the parody those justices who are the most sympathetic and putting Justice Kennedy in dissent. Perhaps this is just one of those supremely "ironic" humor things that cannot be explained.

Further Update: Several readers offered a better explanation than Clayton, and one that seems plausible to me. Here is a representative email:

The writer of the article and the editors are not lawyers. Moreover, even if they were I doubt that they would be as familiar with the intricacies of each Justice's jurisprudence (very few in the press seem to be, as evidenced by the nation's major newspapers constant talk about the "liberal" four justices and the "conservative" five justices). To those in mainstream culture who have some familiarity with the Supreme Court, Justice Scalia is seen as the epitomy of the conservative justice. Conservatives at their extreme, to those in the mainstream of the press culture, are fascists. Thus, Scalia is the natural choice for the guy who would write the opinion telling us we're too stupid to rule ourselves.


"Free Weed"--William F. Buckley on Legalizing Marijuana William F. Buckley and Milton Friedman have long supported legalizing marijuana. Years ago, Buckley publicly announced that he had smoked marijuana on his boat off the coast outside the three mile limit (unlike me, who have never tried it). Now 78 years old and giving up ownership of the National Review, Buckley writes in National Review Online in support of complete legalization and speaks as well of medical cannabis:

But the stodgy inertia most politicians feel is up against a creeping reality. It is that marijuana for medical relief is a movement which is attracting voters who are pretty assertive on the subject. Every state ballot initiative to legalize medical marijuana has been approved, often by wide margins. Of course we have here collisions of federal and state authority. Federal authority technically supervenes state laws, but federal authority in the matter is being challenged on grounds of medical self-government. It simply isn't so that there are substitutes equally efficacious. Richard Brookhiser, the widely respected author and editor, has written on the subject for The New York Observer. He had a bout of cancer and found relief from chemotherapy only in marijuana — which he consumed, and discarded after the affliction was gone.

The court has told federal enforcers that they are not to impose their way between doctors and their patients, and one bill sitting about in Congress would even deny the use of federal funds for prosecuting medical marijuana use. Critics of reform do make a pretty plausible case when they say that whatever is said about using marijuana only for medical relief masks what the advocates are really after, which is legal marijuana for whoever wants it.

That would be different from the situation today. Today we have illegal marijuana for whoever wants it. An estimated 100 million Americans have smoked marijuana at least once, the great majority, abandoning its use after a few highs.
The whole column is here.

Wearing a cross at your trial:

The Court of Appeals of Minnesota confronted an interesting question yesterday: May a trial court require a defendant to hide a cross that he was wearing, so that the jury couldn't see it? (The Minnesota Constitution has been interpreted as mandating the government to accommodate religious practices in many contexts; but even under the U.S. Constitution's current Free Exercise Clause rule, such a requirement may pose problems because it singles out religious symbols for special restriction.) Here's the relevant excerpt from the opinion:

Before trial, the prosecutor requested that Tate put a cross that he was wearing around his neck inside his shirt so that it was not visible to the jury, arguing that Tate's cross would be "sending a religious connotation to the jury." The district court then told Tate "to tuck [the cross] inside [his] sweater." . . .

Minnesota courts apply a balancing test when analyzing whether a state regulation infringes a right under the Freedom of Conscience Clause of the Minnesota Constitution. Courts must ask if (a) the objector's belief is sincerely held; (b) the state regulation burdens the free exercise of religious beliefs; (c) the state interest in the regulation is compelling; and (d) the state regulation uses the least restrictive means.

Tate argues that it is clear that the district court's restriction violated his right to the free exercise of religion because (1) he "strongly objected to the suggestion that he hide his cross, an indication that his religious beliefs are sincere" and (2) the district court failed to conduct its own inquiry into the substance and sincerity of his beliefs. See Joseph v. State, 642 So. 2d 613, 615 (Fla. Dist. Ct. App. 1994) (holding that the Free Exercise Clause entitled defendant to wear sweatshirt and jeans with religious pictures and names when trial court conceded that defendant's clothing was based on his religious beliefs and there was no evidence to support trial court's decision to prohibit defendant from wearing the clothing); In re Palmer, 386 A.2d 1112, 1114 (R.I. 1978) (holding that trial court's refusal to allow defendant to appear in courtroom while wearing a prayer cap unjustifiably infringed on his right to the free exercise of religion because trial court did not attempt to determine the sincerity of defendant's beliefs or whether such beliefs precluded the removal of the prayer cap in court).

Tate further asserts that the state failed to articulate any compelling state interest in having Tate hide his cross, although the district court expressed concern that if Tate did not hide his cross, the jurors would see it because they were "captives of the system and would not have that same right to express their religious beliefs or the right to refuse to have other's religious beliefs expressed to them." Tate maintains that it is unclear what interest was promoted by the hiding of his cross and that, further, no interest in courtroom decorum could outweigh his right to wear his cross. . . .

The court of appeals concluded that "because the district court did not conduct an inquiry into the substance and sincerity of Tate's beliefs, the district court's order forbidding Tate from openly wearing his cross was error." Presumably this means that if the trial court did conduct such an inquiry, and Tate was found to be sincere in his beliefs, he was entitled to wear the cross. But it's conceivable that the court of appeals is leaving open the possibility that the defendant could still be restricted because of some compelling interest in shielding jurors from religious symbolism. In fact, the court of appeals later characterized the district court's actions as "arguably infring[ing]" Tate's religious freedom, so the "arguably" suggests the question may still be open.

But in any event, the court held (probably correctly), that any such error didn't make Tate's trial unfair, and thus doesn't justify giving him a new trial.


Tuesday, June 29, 2004

Another Leftist Bush-Basher:

Which famous North Carolina politician said the following to Business North Carolina magazine about President Bush's tax cut?:

"I would not have voted for the tax cut, based on what I know. I think he was eager for attention, so the fellow down at the pool hall could say, `Boy, that fellow has guts.' There is no doubt that the people at the top who need a tax break the least will get the most benefit. I think he just wanted to show he had guts to do something. Too often presidents do things that don't end up helping the people they should be helping, and their staffs won't tell them their actions stink on ice. You know, not too many people will criticize a tax cut, but it's going to be costly."

If you guessed Jesse Helms, go to the head of the class!

(Thanks to Brad DeLong for the pointer.)


More on abortion statistics:

Reader Michele Kerr points out something that I missed, from the odd op-ed about abortion and Democrats (the one I mentioned here):

* Six out of 10 Americans call themselves conservatives. Only a quarter of them are having abortions.

* A little more than one-third of Americans call themselves liberals. More than four in 10 are having abortions.

* This means that liberals are having one third more abortions than conservatives.

More than four in 10 liberal Americans are having abortions? Even if one reads this as "have had" abortions, if women are roughly 50% of liberals (not exactly right, but close), that would mean that 80% of liberal women — and 50% of conservative women — have had abortions. Can that possibly be right?

I don't exactly follow the writer's statistics, but it seems pretty clear that there's at least one error somewhere in there. It might be, for instance, that the numbers refer to people who answered yes to "As far as you know, has anyone close to you had an abortion?" But "More than four in 10 know have had someone close to them have an abortion" would be very different than what the article says, which is "More than four in 10 are having abortions."

UPDATE: Glen Whitman (Agoraphilia) has more.


COPA and obscenity law:

Justice Breyer (joined by Chief Justice Rehnquist and Justice O'Connor) dissented in today's Ashcroft v. ACLU. The Child Online Protection Act, he reasoned, was very narrow.

COPA doesn't limit itself to unprotected obscenity (defined roughly as speech that appeals to the "prurient interest," depicts sex in a "patently offensive" way, and lacks "serious value"). Rather, it requires that sites hide behind credit card checks (or similar screens that serve as proxies for age) any "harmful-to-minors" material, defined as speech that appeals to the "prurient interest" of minors, depicts sex in a way that's "patently offensive" when displayed to minors, and lacks "serious value" for minors.

But Justice Breyer argued that the distance between these two is very small. In practice, Justice Breyer argued, the law only restricts "legally obscene material, and very little more." In his view, "the addition of [the words 'of minors'] to a definition that would otherwise cover only obscenity expands the statute's scope only slightly."

I'm not sure Justice Breyer is right; the law is so vague that it's hard to tell. But if he is, then why is he complaining about the supposedly dire practical effects of striking down the law? (I understand complaining about purely theoretical questions, even if there's little practically riding on the issue, but much of Justice Breyer's argument seems to be focused on pragmatic considerations.)

After all, under Justice Breyer's understanding of COPA, the government could achieve its goals just as well simply by enforcing obscenity law. Maybe obscenity law is not a "less restrictive" alternative (it could be more restrictive), but it should work just fine. COPA hardly seems a necessary addition to the government's powers — which is part of the First Amendment test that he applies — if the government already has ample tools to fight the problem.

Justice Breyer actually alludes to the possibility of obscenity prosecutions by arguing that this decision may end up leading to more speech restriction, rather than less (some paragraph breaks added):

. . . [W]ill the majority's holding in practice mean greater or lesser protection for expression? I do not find the answer to this question obvious.

The Court's decision removes an important weapon from the prosecutorial arsenal. That weapon would have given the Government a choice — a choice other than "ban totally or do nothing at all." The Act tells the Government that, instead of prosecuting bans on obscenity to the maximum extent possible (as respondents have urged as yet another "alternative"), it can insist that those who make available material that is obscene or close to obscene keep that material under wraps, making it readily available to adults who wish to see it, while restricting access to children. By providing this third option — a "middle way" — the Act avoids the need for potentially speech-suppressing prosecutions.

That matters in a world where the obscene and the nonobscene do not come tied neatly into separate, easily distinguishable, packages. In that real world, this middle way might well have furthered First Amendment interests by tempering the prosecutorial instinct in borderline cases. At least, Congress might have so believed. And this likelihood, from a First Amendment perspective, might ultimately have proved more protective of the rights of viewers to retain access to expression than the all-or-nothing choice available to prosecutors in the wake of the majority's opinion. . . .

But under Justice Breyer's description of COPA's boundaries, the "middle way" still remains: The government can simply announce that it will start enforcing obscenity laws against all businesses that distribute obscenity in ways that are easily accessible to minors. Justice Breyer stresses that "harmful-to-minors" material is "legally obscene material, and very little more." So the government policy would be nearly exactly what it could do with COPA.

(It's possible, of course, that this might not be optimal for free speech, because once the government starts this narrow program of obscenity prosecutions, it will eventually start doing more. But that's far from clear.)

Of course, some prosecutors might object that this middle way is harder than with COPA. The whole point of COPA, they might argue, is to shield children even from a good deal of pornography that's protected as to adults, but inappropriate for children. But if they're right, then Justice Breyer's assurances about the narrow scope of COPA are mistaken.

So it seems to me that either Justice Breyer is right that COPA affects very little protected (i.e., nonobscene) speech — but then striking it down affects the government's power to shield children very little. Or he is right that it's a necessary tool for shielding children; but that would only be the case if COPA affects speech considerably more protected speech than he suggests.


Judge Calabresi's letter of apology:

I couldn't find a copy of the letter online, so I thought I'd keypunch it in. (It's been publicly released by the Second Circuit.) Here it is:

June 24, 2004

The Honorable John M. Walker, Chief Judge

United States Court of Appeals, Second Circuit

157 Church Street

New Haven, CT 06510

Dear John,

I write you as Chief Judge to express my profound regret for my comments at last weekend's American Constitution Society Conference. My remarks were extemporaneous and, in hindsight, reasonably could be -- and indeed have been -- understood to do something which I did not intend, that is, take a partisan position.

As you know, I strongly deplore the politicization of the judiciary and firmly believe that judges should not publicly support candidates or take political stands. Although what I was trying to do was make a rather complicated academic argument about the nature of reelections after highly contested original elections, that is not the way my words, understandably, have been taken. I can also see why this occurred, despite my statements at the time that what I was saying should not be construed in a partisan way. For that I am deeply sorry.

I will not take the time here to outline the non-partisan theoretical framework I was trying to develop. In retrospect, I fear that is properly the stuff only of an academic seminar. For, whatever I had in mind, what I actually said was too easily taken as partisan. That is something which judges should do their best to avoid, and there, I clearly failed.

Again, I am truly sorry and apologize profusely for the episode and most particularly for any embarrassment my remarks may have caused you, my colleagues, and the court.

You should feel free to share this letter with our colleagues.

Sincerely,

[signature]

For more on the controversy, see here, here, and here.


More on yesterday's cases:

Pejmanesque has a very long post on the subject, but with lots of relevant quotes from the cases.


Student Note makes a difference:

Another reminder that student Notes can influence people, from the recent federal district court decision that holds the federal Sentencing Guidelines unconstitutional (United States v. Green), the judge writes:

The conflict between the Guidelines and the mandate of Apprendi and Ring first came to this Court's attention when it encountered a February 2004 Note in the Harvard Law Review on the subject. The Court was at that point nearly ready to issue its sentencing opinion in two of these cases, and the sentencing hearings in all of them had occurred some time before that. The Court reexamined the relevant precedent, and it became increasingly clear that the Court could not "conscientiously and with due regard to duty and official oath decline the responsibility" to apply Apprendi and Ring in its sentencing analysis.

The Note is The Unconstitutionality of Determinate Sentencing in Light of the Supreme Court's "Elements" Jurisprudence, 117 Harv. L.Rev. 1236 (2004), by William J. Trach. Congratulations!


Abortions costing Democrats voters?

An odd column that reasons that because Democrats are more likely to have abortions, and Democrats' children would be more likely to grow up to vote Democrat, a liberal abortion policy is costing Democrats votes.

It's odd for a couple of reasons. First, consider the closing argument:

For advocates so fundamentally committed to changing the face of conservative America, liberals have been remarkably blind to the fact that every day the abortions they advocate dramatically decrease their power to do so. Imagine the number of followers that their abortion policies eliminate who, over the next several decades, would have emerged as the new liberal thinkers, voters, adherents, fund-raisers and workers for their cause. . . .

As liberals and Democrats fervently seek new voters and supporters through events, fund-raisers, direct mail and every other form of communication available, they achieve results minuscule in comparison to the loss of voters they suffer from their own abortion policies. It is a grim irony lost on them, for which they will pay dearly in elections to come.

It sounds like criticism of Democrats -- but why isn't it praise? Democrats are defending what they think (rightly or wrongly) is a fundamental human right, even at some cost to their political power. Sounds pretty noble to me. The opposite, which would be changing their views on what they used to think of as a human rights issue in order to get more voters in a couple of decades, would be pretty ignoble.

Second, I take it that the effects of not having an abortion are a bit more complex than just having one extra child, which as best I can tell is the author's model. If a woman wants two children, and has an unexpected child early in life, she might well have just one more child later.

Third, the effects of a Democrat's having an unwanted child might be one extra Democrat. Or perhaps the mother would end up being poorer, or less educated (if, for instance, having a child at age 18 leads her not to go to college). This may make it less likely that she'll vote -- as I understand it, poor people indeed tend to be less likely to vote. It may leave her with less time to volunteer as a "worker for [her] cause." It may give her less education to be a "new liberal thinker[]." And it may leave her with less money to contribute to candidates and to causes.

So the simple model that the article suggests seems pretty vastly oversimplified, and the numbers only add a false sense of accuracy. But in any event, I keep going back to the first point: Even if the article is right, it is describing a laudable blindness to political consequences (or perhaps deliberate ignoring of political consequences) -- not so much "grim[ly] iron[ic]," as a necessary and proper consequence of adherence to principle. And the only honorable thing that Democrats can do in response to the article is to resolutely ignore it.


Justices voting together:

SCOTUSBlog reports on how often pairs of Justices voted together. Here are the top 9 percentages (counting those times that the Justices agreed with each other entirely):

Souter

Ginsburg

85%

Rehnquist

O'Connor

79%

Rehnquist

Kennedy

77%

Stevens

Souter

77%

Ginsburg

Breyer

77%

Stevens

Ginsburg

75%

Scalia

Thomas

73%

O'Connor

Breyer

70%

Souter

Breyer

70%

The big surprise to me: O'Connor and Breyer being so close.

Not a surprise at all: Scalia and Thomas, though they vote together often, are only #7 on this list.

The lowest percentage: Unsurprisingly, Stevens and Scalia, at 38%.


Circuit score-card,

from SCOTUSBlog. Puzzle (not terribly telling, but I hope amusing): Of the circuits that have had five or more cases before the Court this Term, which circuit has the lowest reversal rate? Go here to see the answer; also check the overall reversal rate for all jurisdictions.


Another Scalia/Thomas split,

in today's Ashcroft v. ACLU decision, in which Justice Thomas provided the critical fifth vote for the majority, and Justice Scalia took a very different view in dissent.


Should U.S. Courts Look to Foreign Legal Decisions?

Judge Richard Posner and Vicki Jackson square off about this in Legal Affairs.


As long as I've broken my blogging moratorium:

I have a question.

Has there ever, in the four months since it broke, been a refutation of, an official response to, or even a developed conservative talking point on the story that Pentagon plans to take out Zarqawi before the Iraq war were vetoed by the White House, because Zarqawi was more convenient as a living terrorist in Iraq who could help justify the war? (See long-ago posts from Mark Kleiman and Kevin Drum, and this follow-up from Fred Kaplan in Slate. Kevin and Brad DeLong have both made efforts to keep the story alive, to no great avail.)

At the time this seemed to me a huge, terrible story. Given a possibility for real pre-emption against one of the worst terrorists out there, the administration said no, for bad reasons. And many hundreds have since died at that terrorist's hands or under his orders.

It was the sort of thing that, had it been asserted by The Nation or Michael Moore or Wesley Clark, would have been trumpeted by the right as evidence of the unhinged conspiratorial thinking of the left. Reported and (apprently reliably though in part anonymously) sourced by NBC, it went, as far as I can tell, entirely unanswered, but also almost entirely unnoticed. At first I assumed that it was so extreme and appalling a claim that there was almost certainly a credible counter-story or at least contrary interpretation to be offered. But I never saw it.

But before I finally file such a dreadful item as "probably true" in my mind I want to ask the Conspiracy's readers, many of whom give the administration much more benefit of the doubt than I do any more: were we ever offered any reason not to believe this story? Was it denied, refuted, or responded to? A denial doesn't disprove it, of course, but has there even been a denial?

Links appreciated. I'll update this post, if useful information comes in (but I won't update just to quote e-mails that say "Of course it can't be true!").

Update:

I've sent versions of this reply to versions of this question several times already; I'm going to post it here and be done with it.

All it takes for you to believe that it is probably true is to not hear a denial? I'll tell you what is "probably true". It is probably true that the administration decided that such a dumb and insulting claim did not deserve a response.

I don't expect denials of every made-up story in The Nation, a Michael Moore movie, or a left-wing blog. If the original claim has no evidentiary weight, then a denial just brings unwarranted attention to the claim-- although one can usually count on bloggers or the opinion press to take the time to refute even that kind of thing.

But when genuine reporters from a major news organization that I know to be bound by mainstream American journalistic rules about sources (i.e. not a British tabloid) report such a claim and source it to the Pentagon, with supporting statements from a named former NSC member, that has some serious evidentiary weight. It creates some presumption that there's truth to it. I've been trying to suspend judgment, pending hearing a reply. The reply might not be dispositive, any mor ethan the story is. But, in the absence of such a reply, eventually I've got to stop waiting for one and weigh some evidence on one side against no evidence on the other.

A denial doesn't have to mean Ari Fleischer standing up and talking about it at his daily press conference. It might just take the form of a National Review reporter calling some anonymous sources at the NSC who give a rebuttal to NBC's anonymous Pentagon sources. Instead, there has been, as far as I can tell, less of a response to the NBC story than to any given loony Michael Moore theory. Given the number of outlets for journalists to refute to nutty stuff from the fringe, I kept expecting to see someone take the time to put some evidence on the other side of this story from a real news organization. And now I'm publicly soliciting such evidence, or links to any refutations or denials. Given that, if the story is false, it seems to me a much more important use of time to refute it than to refute the fringe material that people do devote the effort to denying, eventually I think we have to take the lack of response as telling in its own right.

Update:

On "This Week," Sunday June 27 (i.e. two days ago), Condoleeza Rice said

Let me just say we never had as far, as we know, we never had a chance to get Zarqawi. That camp was taken out at the beginning of the war against Iraq. The poisons network was largely broken up through other means, parts of it broken up in Europe. But we've known about Zarqawi for a long time. Measures were taken, for instance, to try to get the Iraqi government to turn Zarqawi over when it was believed that he was in Baghdad. And the Iraqi government would not comply with that request that was made through a number of intelligence services. So, Zarqawi was on people's radar screens. There were, I can tell you that we do not believe there was an opportunity to get him at that time.

[via Nexis; hat tip commenter V from VJ on Brad DeLong's site.] So there's at least one public statement that is in pretty direct contradiction to the sources in the story. If not having had an "opportunity" means that taking out the camp was logistically impossible, that doesn't seem very persuasive, since once the war started it was taken out pretty quickly and without any forces that couldn't have been there before the war (i.e. the fight didn't depend on U.S. heavy armor). If it means that we were never sufficiently sure that Zarqawi was in the camp at any given moment, that seems like a better argument-- and the kind of argument that one really has to hope was what really happened.

I'll be posting again at some point, with responses to a number of arguments that have been put to me in e-mail, and this Sebastian Holsclaw post, but for now I did want to mention that we do now have an on-the-record statement that there was not a viable opportunity to attack Zarqawi. Now, if I had my druthers, I'druther see NBC go back to its Pentagon sources for a reply, or for someone to ask Rice or the NSC what was unviable about the Pentagon's attack plans.

Update:

See more above.


I wish I'd written that...

Alan Wirzbicki has a new article up at TNR on one of my favorite subjects: the US-Australian alliance. He writes that Aussie PM John Howard

faces a tough challenge from antiwar Labor party candidate Mark Latham in elections that could take place as soon as August. Not surprisingly, Iraq is high on the agenda. Most Australians opposed the war, and Latham, to the consternation of U.S. officials, has promised to bring Australia's 850 troops home by Christmas.

Australia's troop contingent is small, but the Bush administration has made a big deal about the race. Earlier this month, the president attacked the Labor leader during a joint Rose Garden press conference with Howard. "I think that would be disastrous," he said in response to a question about Latham's pledge to withdraw from Iraq. "It would embolden the enemy who believe that they can shake our will." Other high-ranking U.S. officials have also stepped in to criticize Latham. Bush's ambassador to Canberra, former Texas Rangers co-owner Tom Schieffer, has repeatedly warned Australian voters that a Latham win would hand terrorists a victory.

American officials are not only pulling for Howard, but making noises about U.S. retaliation if Australia chooses Labor instead. In March, Schieffer hinted darkly at "very serious consequences" if Latham wins and carries out his withdrawal pledge, a comment widely interpreted in Australia--where the entire episode is front-page news--as a threat to the longstanding U.S. military alliance. Deputy Secretary of State Richard Armitage was more ominous, suggesting Australians "ought to think what it would be like without this relationship." [...]

But whatever the outcome of the race, the administration's strident interference has already exposed just how unhinged Bush's worldview has been made by the chaos in Iraq. U.S. officials are plainly willing to make Iraq the determining factor in America's bilateral relationship with even an ally as close as Australia. "Bush is making Iraq a test of the alliance," Hugh White, the head of the Australian Strategic Policy Institute, told the Age newspaper. "Latham is saying the alliance is bigger than Iraq--Bush is saying 'No, it isn't.'"

This message has the virtue of being clear. It also has the drawback of being, well, crazy.[...]

No matter what Latham does if elected, the fact will remain that Australia helped fight the war in the first place, back when its boots on the ground really mattered. If the world comes to believe that in U.S. eyes Australia's sacrifice counts for nothing--that a U.S. ally as historically close as Australia can be excommunicated by a single-minded Bush administration--it sends a clear message that cooperating too closely with the Americans is a no-win proposition. Ornery American conservatives expect French goodwill from World War II to last forever; but ours apparently expires after 18 months.

I'd rather the Aussies didn't go home. But at this point going home is within the range of reasonable policy options for everyone except the US and the UK. And real, durable alliances are bigger than any given partisan election in one of the allied countries, or than a policy disagreement. Failing to respect the boundary between short-term policy disagreements and the long-term importance of an important alliance was one of Gerhard Shroeder's sins in his re-election campaign. Now it's the Bush Administration doing that.

I'm ambivalent about the election itself. John Howard has always been one of my least favorite politicians as far as Australian domestic politics goes. The strength of his commitment to the American alliance is, as far as I'm concerned, his only real virtue. But that strength is real, and the virtue is an important one; and Latham hasn't inspired any goodwill in me yet. But, of course, the election result isn't for me to decide-- or for the Bush administration to decide, either.


"Prurient interest":

One of the prongs of the Court's obscenity test is that the speech must "appeal to the prurient interest" in order to be punishable as obscenity. (This requirement is not sufficient -- two other prongs must be met -- but it is necessary.) The Child Online Protection Act likewise required that the speech be designed to "appeal to the prurient interest" "with respect to minors."

But what does "prurient" mean here? In Brockett v. Spokane Acardes (1985), the Supreme Court specifically rejected the argument that all material that "incites lasciviousness or lust" is prurient. Only material "whose predominate appeal is to 'a shameful or morbid interest in nudity, sex, or excretion'" can be seen as appealing to the prurient interest, the Court held. "Material that, taken as a whole, does no more than arouse, 'good, old fashioned, healthy' [I kid you not -EV] interest in sex" remains constitutionally protected.

Justice Breyer's dissent today in Ashcroft v. ACLU, though, seems to take a different view: "Insofar as material appeals to, or panders to, 'the prurient interest,'" he concludes, "it simply seeks a sexual response." Does this mean that Justice Breyer -- and Chief Justice Rehnquist and Justice O'Connor, who joined his opinion -- want to cut back on Brockett, even though then-Justice Rehnquist and Justice O'Connor joined Justice White's majority opinion in that case? Or is this just a slip that flows from the use of terms of art such as "prurient interest," which have a technical meaning that differs from what to most people is their intuitive meaning?

Note that Justice Breyer uses the "seeks a sexual response" definition of "appeals to the prurient interest" twice, as part of his core argument.


Congratulations to our coblogger Stuart Benjamin,

whose excellent Stepping into the Same River Twice: Rapidly Changing Facts and the Appellate Process, 78 Texas L. Rev. 269 (1999), was just cited by the Supreme Court majority opinion in Ashcroft v. ACLU.


You Can't Say That! Review:

Very nice review of my You Can't Say That! published in the Law and Politics Book Review.


Monday, June 28, 2004

Why not suspend habeas corpus in the hypothetical below?

In a post below, I describe this scenario:

Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.

Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. . . . It sounds like they'll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material. Litigation will become a tactic of warfare.

A couple of readers ask: If the result is so burdensome, why can't Congress just avoid it by suspending habeas corpus? Consider it a little constitutional law puzzle.

For the answer, click here.


New Blog on Race Issues:

Right on Race, founded by Tom Wood — the coauthor of Prop. 209 — and with posts by Roger Clegg (Center for Equal Opportunity), Todd Gaziano (Heritage Foundation), John Rosenberg (the Discriminations blog), and Tom himself. It also has an Open Forum section for reader submissions, which appears to be moderated (a good move, I think).

Sounds like a very interesting new resource, with some really first-rate contributors; check it out.


Litigation as an enemy military tactic:

I've blogged below about one aspect of the Guantanamo detainees case; but here's the bigger picture: Say that we're fighting a World War II-like war, but against insurgent forces in various allied countries, and not against national governments. (You'll see in a moment why this proviso is important). We capture 50,000 alleged enemy soldiers, partly because some of the enemy forces have surrendered en masse; apparently we had captured millions that way towards the end of World War II. The allied countries don't have strong enough militaries to effectively detain these people themselves (think France in early 1945), so we detain them instead. This is actually quite normal for large-scale wars, consider again World War II, except that the war is a modern war against insurgents and not a traditional war against governments.

Now, the detainees file 50,000 petitions for habeas corpus, all claiming that they aren't actually enemy soldiers. This means civilian courts would have to process all those cases, and the military would have to respond to all the petitions, and get affidavits or even live testimony from various soldiers in the field whose testimony is relevant for this purpose.

Would this tactic be allowed? Well, let's consider this under the four elements (see below) that the Court pointed to when it distinguished the Guantanamo detainees (who get their habeas petitions considered) from the German detainees in Johnson v. Eisentrager (who didn't get their petitions considered).

Like the detainees at Guantanamo, our hypothetical detainees (1) "are not nationals of countries at war with the United States" — our war isn't with their countries, but with insurgencies in those countries. They (2) "deny that they have engaged in or plotted acts of aggression against the United States"; it costs them nothing to deny that. They (3) haven't "been afforded access to any tribunal, much less charged with and convicted of wrongdoing," partly because there's nothing to charge them with or convict them — we just want to detain them as enemy combatants, not try them for unlawful combat. They are held (4) "in territory over which the United States exercises exclusive jurisdiction and control" — imagine that for security reasons, we need to keep them at a base that's at least as controlled by us as Guantanamo is.

It sounds like they'll probably get to file their petitions, strain our courts, impose more burdens on our soldiers, and possibly even risk the disclosure of secret material.

Litigation will become a tactic of warfare. As I understand it, soldiers generally think they have an obligation to continue trying to harass their captors — for instance, by trying to escape — even once they're captured. Here we'd be giving them a cheap (for them) and safe way of doing that. If I were the other side's general, I'd actually teach my soldiers how to file habeas petitions (not everyone would have to know how to do that — there'd just have to end up being some soldiers in every prison camp who can write the petition on their comrades' behalf). This would be a very substantial burden, and one that to my knowledge we've never had to labor under.

Now there are three possible responses to this:

First, one can argue that, sure, this would be very expensive and burdensome, but that's the price we pay for justice. But I don't see any reason why this is a necessary price — one that the Constitution or an Act of Congress requires us to pay. In war, there is always the risk of injustice; innocents even unfortunately die, with no legal process for every bombing or attack to decrease that danger. It seems to me that people on the field of battle must run the risk of being erroneously detained as well as being erroneously killed. The constraints to that have traditionally been moral and political, not judicial; I see no reason why this should change.

Second, one can argue that there's really no such burden, since the military can always avoid habeas review of detentions just by keeping people outside Guantanamo, in places where the U.S. government has less complete control (for instance, on a base leased from a friendly country, which at least has the power to kick us out when it wants to). But what's the point of that? And beyond that, as I argue below, it isn't even clear under the Court's decision that this would indeed be enough to avoid the Court's judgment.

Third, one can argue that the military can avoid habeas review of detentions just by providing them with some modest "access to [a] tribunal" — for instance, a brief hearing before a military tribunal, such as that contemplated by article V of the Geneva Convention. This might indeed be a much lesser burden on the military, since it may involve only a brief hearing by military officers with highly truncated rules of evidence. And the military may often engage in such hearings in any case.

This would be the best spin that could be put on the Court's decision. But from the Court's opinion, it isn't clear whether such hearings would be sufficient (since they seem to be just one factor out of four). Even if they are, it isn't clear what sort of military process is sufficient to avoid any need for civilian review (which is what the writ of habeas corpus contemplates). And if they can be highly truncated, it isn't clear how much of a benefit they really will provide to anyone.

Finally, one can say that that is a different case, and we shouldn't let hypotheticals involving 50,000 detainees affect the judgment in a case involving several hundred detainees. But can entitlements on habeas corpus, which are individual rights, really turn on that? "If you're one of up to X detainees, you have an individual right to habeas corpus; but once more than X people are detained, you lose that right" — I can imagine the Congress enacting such a statute, but it would be a mighty odd rule for a court to come up with on its own.

So that's the source of my misgivings about the Court's Guantanamo decision. Let's hope that my concerns eventually prove groundless, and litigation does not indeed become one of the enemy's weapons of war.

UPDATE: Will Baude at Crescat Sententia responds. I don't think his analogy is quite right -- the right to trial for civilian crimes is very clearly established; the question here is whether we should in the first place recognize a novel right to civilian review of military detention of aliens captured overseas. Still, I thought it would be helpful to link to the argument.


What exactly does the Guantanamo Detainees case mean?

In Rasul v. Bush today, the Court held that the Guantanamo detainees are entitled to have their detention reviewed, presumably by civilian courts, even though they're not U.S. citizens, and they're being held outside the U.S. Johnson v. Eisentrager, a 1950 case involving a similar petition brought by detained Nazi soldiers, seemed to hold the contrary -- but the Court distinguished Johnson on four grounds:

  1. "[The Guantanamo detainees] are not nationals of countries at war with the United States." (In Eisentrager, the Court concluded that peace had not been officially declared.)

  2. "[T]hey deny that they have engaged in or plotted acts of aggression against the United States."

  3. "[T]hey have never been afforded to any tribunal [even a military one, as in Eisentrager], much less charged with and convicted of wrongdoing."

  4. "[T]hey have been imprisoned in territory over which the United States exercises exclusive jurisdiction and control."

A big part of the Court's decision focused on the fourth item -- but as Justice Scalia argues, the government's "exlusive jurisdiction and control" over Guantanamo isn't really that different from the government's exclusive jurisdiction and control over occupied Germany. Guantanamo has been controlled by the U.S. longer than German bases were (I suspect that today Germany has more legal authority over U.S. bases in Germany -- certainly it has more de facto authority, since if the Germans wanted to kick us out, we'd surely go, whereas we're not leaving Guantanamo even though Castro does want us out). But it's hard to see why that should make a difference.

But even if the fourth item is a possible ground for distinguishing Rasul from Eisentrager, the Court doesn't (unless I've missed something) explain whether exclusive jurisdiction and control is necessary for habeas, sufficient for habeas, or particularly important for habeas. What if the detainees had been kept in Afghanistan instead, or at a military base in no-longer-occupied Germany? I don't see how one can figure out from the Court's opinion whether they would then be entitled to petition the civilian courts for hearings. And the government does want to know this, since it wants to know where they should be kept.


Should U.S. Courts Look to Foreign Legal Decisions?

Judge Richard Posner and Vicki Jackson square off in Legal Affairs.


Book drive for Baghdad University library:

Prof. Steven Taylor (PoliBlog) is running this, and it seems like a worthy project:

I have volunteered to help Dr. Safaa al-Hamdani, a biology professor at Jacksonville State University (another school here in Alabama) in a book drive to collect texts to help populate the Baghdad University library, which, between post-war looting and multi-decade neglect by the Saddam regime is in serious need of help.

While I am focusing my efforts on my university, and other schools in Alabama with which I have contact, I thought a note to the Blogosphere wouldn't hurt.

While books from any discipline are welcome, Dr. al-Hamdani notes that there is a special need for science, math and medical texts. Also, he asks that books no older than five years be collected, as given the cost of shipping we want to make sure we are sending usable books. Also, funds to help ship the books are also in need.

If you can help, please [email me at the address given] here.

If you are able to help, books or donations could be sent directly to me.

There is a brief news story about the book drive here.


Rats!

Well, it turns out that the Moore/Letterman exchange I mentioned last week is indeed apparently fictional. (As I mentioned in the original post, "Don't know if it's true, and I won't assume that it is. But it's at least a good joke.") Nathan Florea says he has a more accurate transcript, which is very different, and he points to a file containing the relevant clip.

I couldn't get the file to work for me -- I saw the video, but not the audio, and I don't read lips much. But, especially given my original skepticism about the original version, I suspect that Mr. Florea is right. Another beautiful story ruined by ugly fact . . . .


Does federal law bar military detention of U.S. citizens

alleged to have been fighting for al Qaeda or the Taliban? That was one of the issues in Hamdi and in Padilla.

A federal law, 18 U.S.C. 4001(a), says "No citizen shall be imprisoned or otherwise detained by the United States except pursuant to an Act of Congress." Padilla and Hamdi argued that as a result they couldn't be detained unless they were accused of having violated some federal criminal statute.

Not so, the government argued, the post-September 11 Authorization for Use of Military Force authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." Such "necessray and appropriate force," the government reasoned, includes the power to detain enemy combatants, as well as the power to shoot them on the battlefield -- military force has always been understood to include the power of military detention.

Five of the Justices in Hamdi -- Justice O'Connor, joined by Chief Justice Rehnquist, Justice Kennedy, and Justice Breyer in the plurality, plus Justice Thomas in his dissenting opinion -- took the view that the Authorization allowed military detention at least of citizens who are "'part of or supporting forces hostile to the United States or coalition partners' in Afghanistan and who 'engaged in an armed conflict against the United States' there." That's why Hamdi lost on the statutory question.

But what about Padilla, who is alleged to be an enemy combatant, but who apparently wasn't engaged in an armed conflict against the United States in Afghanistan? Well, four of the Justices in Hamdi -- Justices Souter and Ginsburg, who partially concurred in Hamdi, and Justices Scalia and Stevens, who dissented -- disagree with the view I give above, and think that the Authorization doesn't apply even to Hamdi. It follows that they think it shouldn't apply to Padilla, either.

And in Padilla, which was disposed of on procedural grounds, Justice Stevens's dissent said, in footnote 8, that "I believe that the Non-Detention Act . . . prohibits -- and the Authorization for Use of Military Force Joint Resolution . . ., does not authorize -- the protracted, incommunicado detention of American citizens arrested in the United States." And the dissent was joined by Justices Souter, Ginsburg, and Breyer, who was in the plurality in Hamdi. So it sounds like five Justices think that Padilla should win on this statutory issue.

Now there is some question as to whether the five Justices' view of the 4001(a)/Authorization interplay in Hamdi is binding precedent. Lakewood v. Plain Dealer Publishing, 486 U.S. 750, 764 n.9 (1988), says that "when no single rationale commands a majority, 'the holding of the Court may be viewed as that position taken by those Members who concurred in the judgmen[t] on the narrowest grounds,'" and seems to reject the notion that one can add up votes from the plurality and the dissent. On the other hand, I suspect that lower courts will conclude that the five Justices' views are indeed binding on them.

On the other hand, I suspect that many lower courts would be reluctant to mix four Justices' views from one case (Hamdi) with one extra Justice's views in another (Padilla), especially when those views came in a footnote to a dissenting opinion written by another Justice (though, to be sure, an opinion that Justice Breyer did join without reservations). So in future cases involving Padilla -- I assume that Padilla can refile his case in the proper district, and thus avoid the procedural problem that led the Court to reject his claim -- lower courts would be free to conclude that Padilla loses on the 4001/Authorization question. What the Supreme Court will do with that, when and if Padilla's case comes back to the Justices, is impossible to tell, especially given that it could take years (assuming Padilla continues to be detained for that long), and some of the Justices might retire by then.


Justices Scalia and Thomas:

Note that Justices Scalia and Thomas are about as far apart as possible in the Hamdi case. Justice Scalia would say that the military essentially has no power to detain citizens, except when Congress suspends habeas corpus, or when the citizens are promptly tried through the civilian criminal system. Justice Thomas would say that the President has very broad, nearly unreviewable, power in this situation.

This is just further evidence that the "Justice Thomas follows Justice Scalia in lockstep" argument that some have made is simply a slur on Justice Thomas. We've seen lots of cases where Justice Thomas has taken a different view from Justice Scalia — consider his opinions on the scope of the Commerce Clause, the scope of the Ex Post Facto Clause, the protections offered to anonymous speech, the Excessive Fines Clause, crossburning, and more.

In many cases, of course, the two agree: They were appointed, after all, by conservative Presidents, and come from the same conservative legal movement. We should be no more surprised by this agreement than by, say, Justice Brennan's and Justice Marshall's frequent agreement.

But cases such as Hamdi show that Justice Thomas has his own views, which do indeed differ in many important ways from Justice Scalia's; and he can forcefully and eloquently express them. Many people will of course disagree with his decisions, either the separate ones or the ones on which he joins Justice Scalia (or vice versa). But they should disagree on the merits, rather than by casting aspersions on his ability or willingness to think independently.


Detention cases:

See here for Larry Solum's summary and roundup of reactions.


Radio and TV:

Unless plans change, I should be on (1) Warren Olney's To The Point radio show today (see here for the station list and times), and on (2) the Abrams Report (MSNBC). I should be talking about the Guantanamo cases, Hamdi, and Padilla on both shows.

Note that TV networks often cancel such interviews at the last minute, which is why I say "unless plans change."

UPDATE: MSNBC did indeed cancel -- that's the TV biz for you.


Breyer v. Scalia, Pragmatism v. Formalism:

Eugene makes a good point (below) about the way that Breyer's and Scalia's positions gives room to both liberal and conservatives to take a position seemingly at odds with their ideologies.

I would add that there is a way in which Breyer's and Scalia's votes are completely unsurprising: Scalia's position is in line with his longtime formalism, and Breyer's is consistent with his longtime pragmatism. The plurality opinion that Breyer joins is suffused with pragmatism. The plurality finds that the mushy Mathews v. Eldridge test applies (despite the fact that, according to Thomas' dissent, none of the parties cited Mathews even once), and then engages in an ad hoc balancing process designed to make sure that Hamdi gets to challenge his detention but that the government is not unduly burdened.

Scalia, meanwhile, finds that the Constitution does not allow the government to hold a citizen without detaining him, unless it suspends the writ of habeas corpus. He finds that the Constitution and the common law defeat the government's claims, so there is no role for a balancing test. His view is that this may not be the most efficient or pragmatic approach, but it is the one that the law provides. If people don't like that, their representatives can change the law.

What's interesting here is that this split is not as unusual as some might imagine. Yes, this court is split 5-4, along conservative/liberal lines, in many cases (think Bush v. Gore). But in some notable cases it has been split 5-4 along formalist/pragmatist lines. One of the biggest cases of the last few years is Apprendi v. New Jersey, in which the Supreme Court held that juries, not judges, must impose increases in penalties for a crime beyond the prescribed statutory maximum. That case was 5-4, with Stevens, Scalia, Souter, Thomas and Ginsburg posed against Rehnquist, O'Connor, Kennedy, and Breyer. The exact same lineup occurred in Blakely v. Washington, which came down last Thursday and imperils the federal sentencing guidelines. As for Hamdi, the reason that the five formalists (Scalia, Stevens, Souter, Thomas, Ginsburg) didn't win is that one of them (Thomas) found his formalism taking him in the opposite direction — he alone adopted the government's position, across the board.

I'm not claiming that formalism v. pragmatism will always (or even often) trump other fault lines, but I do think it's interesting that this split has arisen in such big cases as Apprendi and Hamdi.


Military detention cases:

Marty Lederman, a very knowledgeable lawyer and Court-watcher, posts his thoughts at SCOTUSBlog.


Justices Scalia and Breyer:

I've only read the Hamdi case so far, but here's a tentative thought (subject to revision as I read the other cases and rethink the matter) — two significant facts in this case are that Justice Scalia voted against the government, and Justice Breyer voted (partly) in favor of the government.

This is because these votes may well change the political dynamics within the conservative and liberal movements. I know there are quite a few conservative lawyers and policy wonks who are uneasy (whether rightly or wrongly) with broad assertions of military powers even during wartime. And I'm pretty sure there are quite a few liberal lawyers and policy wonks who are uneasy (again, whether rightly or wrongly) with what they see as a September 10th attitude towards civil rights during wartime.

But many such people may find it hard to argue these positions within their own movements, because (1) they may themselves be unsure of their positions, and (2) it's always hard to argue to one's friends something that seems like it's supporting "the other side." I'm not speaking here of fear of professional retaliation or such things — I'm speaking of the natural and often laudable human tendency to question one's own views when they contradict those that are held by people one likes and respects, and of the natural human tendency not alienate one's friends by seeming to join their political enemies. The tendency is only a tendency; many conservatives have disagreed with some of the Administration's actions in this field, and many liberals have agreed with the Administration. But I suspect that some in both camps have been reluctant to do so, for the reasons I note.

In such situations, having allies that are authoritative within one's own movement can greatly embolden dissenters within those movements. It's much harder for conservatives to harshly criticize fellow conservatives for adopting a position that Justice Scalia has adopted. A conservative who quietly holds such seemingly "liberal" views would thus be reinforced in those views, and emboldened to voice them. Many of his fellow conservatives will still disagree with him; but he'll suspect that the disagreement will be more cordial, and less firm, if he can enlist Justice Scalia on his side.

Likewise, I suspect, for many liberals who can enlist Justice Breyer on their side. Breyer is probably not as liberal on constitutional issues as Justice Scalia is conservative (though that's of course hard to measure). I also suspect that he's not as important to liberals as Justice Scalia, who has long been one of the leaders of the conservative legal movement, is to conservatives. Still, his votes on race preferences, on federalism, on many (though not all) criminal justice cases, on many (though not all) church-state cases, and in other fields make him quite respected by most liberals. So a liberal lawyer will thus feel more comfortable making at least mildly pro-Administration arguments (recall that Justice Breyer voted partly for the Administration and partly against it here) when he can point to Justice Breyer's vote.

Again, I stress that I'm talking here just of factors that may influence how firmly people hold their views, and how vocal they are about those views — they're unlikely to vastly sway large groups of people (in part because most liberals voted against Justice Breyer's views, and most conservatives voted against Justice Scalia's). Furthermore, I'm speaking here only of effects in legal or policymaking circles; I'm not sure how much the public at large is influenced by Justice Breyer's or Justice Scalia's views.

But these are important circles. It matters how often conservatives are willing to make arguments skeptical of military power to other conservatives, and how often liberals are willing to make arguments that support military powers to other liberals. And I think that Justice Scalia's and Justice Breyer's votes will indeed affect the frequency of such intramovement arguments — arguments that I think are on balance good, both for the country and (at least in the medium and long run) the movement — and thus have significant extralegal effects as well as purely doctrinal ones.


Strong Language:

I've had time to give today's opinions only a quick review, but I was struck by the dissent's language in Rumsfeld v. Padilla. The majority didn't reach the merits, because it found that the case had been filed in the wrong jurisdiction. Stevens' dissent (joined by Souter, Ginsburg, and Breyer) focused on the jurisdiction/venue issue, but (because in his view the Court should have reached the merits) his dissent ends with his view of the merits. Here it is, in its entirety (except that I have omitted the footnotes):

Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information. Incommunicado detention for months on end is such a procedure. Whether the information so procured is more or less reliable than that acquired by more extreme forms of torture is of no consequence. For if this Nation is to remain true to the ideals symbolized by its flag, it must not wield the tools of tyrants even to resist an assault by the forces of tyranny.

This is pretty strong language. And it seems quite possible that, in another case where venue was proper, one or more of the five who didn't reach the merits would agree.

Update:

Scalia's dissent in Hamdi v. Rumsfeld suggests he would be a fifth vote for the Padilla dissent's position on the merits. He says that, unless the government suspends the writ of habeas corpus (which it has not done), the government must charge a citizen it is holding with a crime. It cannot detain a citizen without charging him. He ends this part of his dissent by noting:

Absent suspension of the writ, a citizen held where the courts are open is entitled either to criminal trial or to a judicial decree requiring his release.

He notes that this would apply to Hamdi and Padilla (because both are U.S. citizens). And he ends his dissent by saying:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis-—that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.


The opinions are finally on the Supreme Court site.

Off to pick up the printouts.


The cyberporn case (Ashcroft v. ACLU II)

wasn't announced today, I'm told; that means it'll come down later this week. Likewise for Alvarez-Machain, the foreign torts case.


Guantanamo detainees apparently win, 6-3,

which is to say that they are entitled to a civilian court's hearing their habeas petitions. I say "apparently" because I haven't yet read the opinion; will blog more as I read it. I'm pretty shocked by the result, but I may be less shocked when I read the details.


BREAKING NEWS: Supreme Court Grants Review in Raich v. Ashcroft: This morning, the Supreme Court announced that it was granting the government's petition for certiorari in Raich v. Ashcroft. In Raich, the Ninth Circuit held that the application of the Controlled Substance Act to persons who cultivated their own cannabis for medical use, or had caregivers cultivate it for then at no charge, was unconstitutional because it exceeded the power of Congress under the Commerce Clause. Assuming a normal briefing schedule, the oral argument should be some time after mid-October.

Raich will represent the third great Commerce Clause case in 15 years. They seem to come in five year intervals. Lopez in 1995, Morrison in 2000 and now Raich in 2005. A ruling for the government in Raich would, in my view, represent the effective repudiation of Lopez and Morrison, for the government's reasoning would allow Congress it to reach whatever activity it chooses provided that its statutory scheme was sufficiently large enough. In other words, by the government's theory, the more power that Congress claims, the more justified is its claim of power. Therefore, if the Court reaches the merits, whatever it decides in Raich v. Ashcroft will be a landmark decision with enormous importance for the future of federalism.

Update: FULL DISCLOSURE: It occurred to me that some readers may not know that I have been one of the principal attorneys in the case since its inception.


Update: A reader writes: "Not being a lawyer myself, I am sure I missing something simple and basic, but your statement wasn't enough for me to understand which side of the case you are working on." A fair queston. I argued the case on behalf of Angel Raich and Diane Monson in the Ninth Circuit.


Sunday, June 27, 2004

Stars and Bars:

Today's L.A. Times story about Sam Raimi, the director of Spiderman and Spiderman 2, started with these paragraphs:

Most of the furnishings in Sam Raimi's office on the Columbia lot seem accidental -- things that have survived the siege of finishing "Spider-Man 2." There's the big monitor on a cart stuffed with playback devices, the tinfoil taped to the windows to keep sunlight (and inquiring eyes?) out, the well-worn couch and coffee table. But what fills the wall behind his desk is clearly no accident -- an American flag that's about as long as Raimi, at 5 feet 9 inches, is tall.

Since Hollywood is a part of our nation where the "stars and bars" in most directors' lives are not hung on the wall, and given that the very last images of his film feature a pair of such flags waving in the breeze after his hero has created them on a typical web-slinging swing down a Manhattan avenue, the question seems inevitable: What do the flags mean to Raimi? . . .

Now, as best I can tell, the only standard meaning of "stars and bars" is the first Confederate flag (thanks to Wikipedia for the image):

A few dictionary checks (for instance, one through dictionary.com) confirmed that this is the only standard meaning of "stars and bars." Am I missing some deep joke or reference here? Or did the author just err?

I mention this because I think this minor error (if error it is) is relevant to a broader point I'd like to make about writing; but before I build too much on this, I'd like to make sure that it is indeed an error. So if you have a plausible explanation for why the story might be right after all, please let me know at volokh at law.ucla.edu.


Sunday Song Lyric: Eugene's post on the infamous Cuyahoga River fire brings to mind the R.E.M. song, "Cuyahoga" off of "Life's Rich Pageant." The lyrics are somewhat dense (as is typical for R.E.M. tunes). Nonetheless, I suspect the song was inspired -- at least in part -- by the myths about the 1969 fire discussed in Eugene's post from Tuesday. As the fire occurred 35 years ago this week, it seems a fitting Sunday Song lyric, even if it didn't make the latest R.E.M. greatest hits compilation.
Let's put our heads together and start a new country up
Our father's father's father tried, erased the parts he didn't like
Let's try to fill it in, bank the quarry river, swim
We knee-skinned it you and me, we knee-skinned that river red

This is where we walked, this is where we swam
Take a picture here, take a souvenir

This land is the land of ours, this river runs red over it
We knee-skinned it you and me, we knee-skinned that river red
And we gathered up our friends, bank the quarry river, swim
We knee-skinned it you and me, underneath the river bed

This is where we walked, this is where we swam
Take a picture here, take a souvenir
Cuyahoga
Cuyahoga, gone

Let's put our heads together, start a new country up,
Underneath the river bed we burned the river down.
This is where they walked, swam, hunted, danced and sang,
Take a picture here, take a souvenir
Cuyahoga
Cuyahoga, gone

Rewrite the book and rule the pages, saving face, secured in faith
Bury, burn the waste behind you

This land is the land of ours, this river runs red over it
We are not your allies, we can not defend
This is where they walked, this is where they swam
Take a picture here, take a souvenir

Cuyahoga
Cuyahoga, gone
Cuyahoga
Cuyahoga, gone.

(Last Sunday's) Sunday Song Lyric: This is the Sunday song lyric I had tried to schedule for posting last week. Alas, I goofed, so here it is.

On June 12, 1963, civil rights activist Medgar Evers was assassinated in Mississippi. This event, and the subsequent deaths of four young girls in a church bombing, inspired Nina Simone — the "High Priestess of Soul" — to write "Mississippi Goddam." The song rarely received much radio airplay, but she would regularly perform the protest song in live performances, introducing the song by announcing: "The name of this tune is Mississippi Goddam, and I mean every word of it."
Alabama's gotten me so upset
Tennessee made me lose my rest
And everybody knows about Mississippi Goddam

Alabama's gotten me so upset
Tennessee made me lose my rest
And everybody knows about Mississippi Goddam

Can't you see it
Can't you feel it
It's all in the air
I can't stand the pressure much longer
Somebody say a prayer

Alabama's gotten me so upset
Tennessee made me lose my rest
And everybody knows about Mississippi Goddam

This is a show tune
But the show hasn't been written for it, yet

Hound dogs on my trail
School children sitting in jail
Black cat cross my path
I think every day's gonna be my last

Lord have mercy on this land of mine
We all gonna get it in due time
I don't belong here
I don't belong there
I've even stopped believing in prayer

Don't tell me
I tell you
Me and my people just about due
I've been there so I know
They keep on saying "Go slow!"

But that's just the trouble — "do it slow"
Washing the windows — "do it slow"
Picking the cotton — "do it slow"
You're just plain rotten — "do it slow"
You're too damn lazy — "do it slow"
The thinking's crazy — "do it slow"
Where am I going
What am I doing
I don't know
I don't know

Just try to do your very best
Stand up be counted with all the rest
For everybody knows about Mississippi Goddam

I made you thought I was kiddin' didn't we

Picket lines
School boy cots
They try to say it's a communist plot
All I want is equality
for my sister my brother my people and me

Yes you lied to me all these years
You told me to wash and clean my ears
And talk real fine just like a lady
And you'd stop calling me Sister Sadie

Oh but this whole country is full of lies
You're all gonna die and die like flies
I don't trust you any more
You keep on saying "Go slow!"
"Go slow!"

But that's just the trouble — "do it slow"
Desegregation — "do it slow"
Mass participation — "do it slow"
Reunification — "do it slow"
Do things gradually — "do it slow"
But bring more tragedy — "do it slow"
Why don't you see it
Why don't you feel it
I don't know
I don't know

You don't have to live next to me
Just give me my equality
Everybody knows about Mississippi
Everybody knows about Alabama
Everybody knows about Mississippi Goddam

That's it!

Online Bluebook and ALWD CItation Manual Exercises,

from the Interactive Citation Workstation. I checked out the Bluebook exercises, and they look like a pretty good tool for Bluebooking practice. There are also exercises that teach the ALWD Citation Manual. Both seem to be free to LEXIS student users.

If any of you can recommend other free online resources for this, please let me know. Also, if you have had bad experiences with the ICW exercises, please let me know as well. I plan on recommending these (and others) in a future edition of my Academic Legal Writing book, and I want to make sure that they're worth recommending. So far they seem pretty helpful.