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Saturday, December 31, 2005

Happy Anniversary:

On this date in 1991, the Union of Soviet Socialist Republics ceased to exist. As detailed by University of Hawaii political science professor R.J. Rummel on his website "Powerkills", the 20th century was humanity's worst century of genocide and democide (the latter including mass killings not based on religion, race, or ethnicity). By far the greatest perpetrators of genocide were Communist regimes. Although a few of the Communist genocide perpetrators eventually developed hostile relations with the U.S.S.R., none of the Communist regimes would ever have come to power without the support of the Evil Empire that arose in October 1917, and which began styling itself as the "U.S.S.R." in 1922.

Rummel's website provides excellent quantitative data on genocide/democide all over the world. You might also want to check out Rummel's fine weblog "Democratic Peace."

A retrospective article on the Heritage Foundation website reminds us how bitterly President Reagan was attacked for his magnificent speech at Westminster in 1982. Reagan was mocked as a deluded idealist by so-called "pragmatists" who thought they knew better. Yet Reagan was right when he declared:

It is the Soviet Union that runs against the tide of history by denying human freedom and human dignity to its citizens...
...the march of freedom and democracy...will leave Marxism-Leninism on the ash-heap of history...
The collapse of the Evil Empire came sooner than even Reagan had hoped. The Cuban efforts to impose new dictatorships on Nicaragua and El Salvador failed completely. Solidarity became the elected government of Poland, and later yielded power to another government following a free election. The Warsaw Pact is now nothing more than a scrap of paper, and all the countries which suffered under its jackboots are making their way--some faster than others--towards stable and democratic government.

Within the former U.S.S.R. itself, the Baltic Republics are making great progress, while Central Asia languishes under tyranny, and Russia itself is retrogressing into dictatorship. Dictators still oppress many hundreds of millions of people, and are still perpetrating genocide and promoting terrorism.

Today's anniversary, however, should remind us that the true pragmatists are those who recognize that totalitarianism is in constant danger of collapse because of its own internal contradictions, and that if free nations remain strong and resolute, they can bring down a superpower.

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The Return of A3G: David Lat, aka Article III Groupie, has left the U.S. Attorney's Office in New Jersey and is on his way to DC. Just a few minutes ago, Underneath Their Robes returned and A3G put up a new post announcing that the blog is back online. Comments are open, too, if you want to drop a note. Thanks to Michael Cernovich for the info.
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New Blog By David Friedman: When I was in college, the two books I found most helpful to appreciate libertarianism were Murray Rothbard's For a New Liberty (now available for free downloading here) and David Friedman's, Machinery of Freedom (which was updated in 1989). As a senior at Northwestern, I taught a for-credit student-organized seminar on libertarianism that used both these books. Murray Rothbard died a few years ago, but David Friedman continues to turn out interesting provocative work. (He was 26 when The Machinery of Freedom was published in 1971.) For quite some time, David has posted on discussion boards, but now he turns his attention to blogging. The start of his new blog Ideas is auspicious. I have not read every post, but all I have read were of a very high quality. I won't single any out for special mention because I don't want to turn this post into a substantive discussion of David's provocative positions. His blog is the appropriate venue for that. But Ideas will now be among the blogs I regularly visit. Check it out. (Hat tip to In Lehmann's Terms)
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'Twas the Night Before New Year's: Thanks to everyone for reading the VC this year. I thought I would end 2005 with some verse, with apologies to Clement Clarke Moore:

'Twas the night before New Year’s, and through the blog whole,
Not a creature was stirring, not even a troll;
The posts of ’05 had been written with care,
In hopes that our readers would enjoy seeing them there.

The commenting crowd was taking a break,
From reactions to posts using names that are fake;
And Eugene in Cali, and we in DC,
Were grading exams, giving A, B, and C.

When out in the blogosphere there arose such a clatter,
I checked Google News to see what was the matter.
When, what I did I see within my monitor’s borders,
But the whole MSM, and its eager reporters,
Get ready, young bloggers, so lively and quick,
For the Big Blogging Stories of 2006.

Ready or not, the RSS feeds they came,
And the MSM whistled, and shouted, and called them by name;
"Now, Snoopgate! Now, Fitzmas! Now, mid-term elections!
On, Hilary! On, Cheney! On, judicial selections!
To the top of the blog! You must answer the call!
Now blog away! Blog away! Blog away all!"

Some bloggers felt joy, some bloggers felt sorrow,
But all had to work on their posts for tomorrow;
They wrote and redrafted, adding links to the most,
And when they were done pressed the button to Post.

Away the posts flew, going all round the Earth,
Giving some great annoyance and others great mirth.
So in my pajamas, I feel blessed to write,
"Happy New Year's to the blogosphere, and to all a good-night."

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The Supreme Court is Getting Funnier: So sayeth The New York Times:
  The mood under Chief Justice Roberts has brightened, . . . with the average number of justice-generated laughs per argument rising to 2.9 from 2.6 the previous term.
  In the current term, the Times analysis found, there has also been movement in the funniness-of-individual-justices department. Justice Breyer has taken the lead, at 28 laughs, edging out Justice Scalia, with 25. They also tied in the largest-number-of-jokes-in-a-single-argument category, each squeezing five into a single hour.
  The Times story builds on an amusing 2-page article by BU lawprof Jay Wexler in the latest issue of The Green Bag.
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Friday, December 30, 2005

Question for David B, in response to his post immediately below: Assuming it is true that Jews have disproportionately benefited from government programs in the past, either as recipients or employees, what's the case that this has actually caused individuals to become liberal Democrats? Is there any evidence that Jews arrived in the U.S. as free market libertarians, and then decided that government was a good thing after having experience with government programs? There was a stereotype in the early 20th Century of Jews as disproportionately likely to be radical leftist socialists upon arrival from Europe; was this just a myth? Is disproportionate experience with government a cause of political liberalism, or just a reflection of preexisting cultural and ideological associations? Big questions, and I'm not one to know the answers, but your suggestion as I understand it doesn't seem intuitively persuasive to me.
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Why American Jews Tend to Be Liberal Democrats--An Occasional Series:

I've been promising for ages to blog about why American Jews tend to be so liberal, but I've consistently put it off because it's a daunting topic. So instead of one big post, or even a series of concurrent posts, I've decided to post occasionally on different aspects of the subject, and will link them all as I go along via Powerblogs links feature.

For my first post, I'm going to address the common assertion, which I've seen in many emails addressed to me when I blog about related topics, that American Jews should logically be more conservative on economics because Jews have been such successful entrepreneurs, and the government is widely perceived as an enemy of entrepreneurship.

It's certainly true that many Jews have been successful entrepreneurs--everyone from famous businessmen such Julius Rosenwald, founder of Sears, and Michael Dell, to small-time tailors and shopkeepers. But what isn't often recognized is that a huge, almost certainly much larger number of Jews made their way to the middle class via government.

First, the Jewish population was concentrated in New York City, and until the 1970s the City had an excellent, free, public university system, with CCNY known as the "Jewish Harvard". Many Jews (including my mom) took advantage of this system, often at a time when major private universities had anti-Jewish quotas, and feel they therefore owe some of their success to the government.

Second, and relatedly, huge numbers of Jews over the decades found employment with government, especially as teachers. I recall a statistic to the effect that in 1968, when controversy erupted over African American demands for "local control" of New York public schools, about 80% of New York City schoolteachers were Jewish. In the days when whole white-collar industries such as banking, insurance, and more were closed to Jews, civil service desk jobs were open, and Jews vestigially remember the relative lack of discrimination in government with fondness.

Nor is Jewish attachment to the civil service completely a thing of the past. When I was still on the dating market, I was amazed to notice on JDATE that an extremely large percentage of Jewish women (at least in the D.C. area) work for the government as either teachers or social workers. Jewish friends of mine who also have recently participated the dating market have confirmed this observation. [Update: What this means for the overall percentage of Jews in the civil service I'm not sure; sociologist Gabriel Rossman writes in to point out that at least in L.A. as of 1990, Jews were slightly less likely than other whites to be civil servants. But the point is that there are still a lot moroe Jewish mid-level civil servants than all the talk of Jewish entrepreneurialism would suggest.]

Thus, for every story of a Jewish family that made its way to the middle class and beyond through entrepreneurship, there are likely several, even many, who would attribute their success rather directly to the government. And that doesn't make for an economically conservative political culture.

Note to Orin (see post above): I'll address your point about the left-wing Eastern European influences in due time; as I wrote, this is an occasional series, and I'm not going in any particular chronological or other order. Nor am I arguing that propensity to work for the civil service [or to benefit from government educational largesse] is the most important cause [edit: or even an important cause] of American Jews' liberalism. Rather, I'm simply responding to the suggestion I've heard so often that Jews should "naturally" be economically libertarian because of their success as entrepreneurs. As discussed, the overall Jewish economic experience in American may actually influence things in the opposite direction, [i.e., if Jews' overall economic experience with government affects their political views, it may more likely be in the direction of statism than libertarianism. Perhaps I confused matters by throwing in a family anecdote suggesting more of a causal relationship than I meant to, and which I've now removed.]

Comments Policy:

Readers may have noticed that I have left the Comments "off" on recent posts. I enjoy readers' comments, and have learned much from them. On the other hand, I find that comments add to my "costs" for each post--I spend time reading the comments, monitoring them for at least token compliance with VC posting guidelines, and responding to them. I find that this extra time commitment dissuades me from posting to begin with. So, while I will sometimes turn comments on, I'll probably leave them off most of the time. I know that this will frustrate some of you who have interesting things to say (or, for that matter, who just want to vent), so apologies in advance.

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Next time you hear someone criticizing Israel's "checkpoints"

for Palestinians, think about this: a surprise checkpoint set up Thursday prevented an Islamic Jihad terrorist from blowing up a children's Hanukkah party in Tel Aviv. The checkpoints have many harsh consequences on innocent Palestinians, but the blame for these hardships lies with the terrorists who try to infiltrate Israel to murder innocents. And it shouldn't need pointing out, but it unfortunately does, that before Palestinian terrorists starting using suicide bombings in response to the Oslo peace agreement West Bank and Gaza Palestinians could come and go from Israel and within the territories rather freely, with over 100,000 Palestinians working in Israel proper (for much better wages than they could receive at home) daily.

Ride Them Hard--You Can't Say That!

In case you missed reports of this $450,000 "hostile environment" settlement, based on a misunderstanding, via Overlawyered:

Two secretaries will share a settlement of around $450,000 from the Atlantic City, N.J. school district and its insurer after filing sexual-harassment charges. Carol Lee and Jennifer Torres sued following a comment Assistant Superintendent Thomas J. Kirschling made to them and two others in July 2002. At some point mid-month, Kirschling said "I ride them hard and put them away wet." The two secretaries sent him a memo saying they were outraged. He later explained and apologized, according to a subsequent memo. Kirschling was apparently using a rural idiom that means someone is tired or worked hard. The phrase is taken from the need to cool down a horse after strenuous exercise. Only a mistreated horse is stabled while it is still sweating. After the women complained, the district assigned an outside attorney to investigate, but that probe inadvertently lapsed....

This reminds me of a case I wrote about in You Can't Say That!, in which a black woman won a large settlement after receiving a joke certificate designating her an "honorary coonass" (I recount the episode here.) She thought this was a racial slur, when it's actually a mildly derogatory slang word for "Cajun." The Coonass case was a bit more egregious, however, in that the complainant in that case actually won a jury verdict; the complainant's in the "Ride Them Hard" case won a settlement, apparently largely because the school district's lawyer was thought to have mishandled the investigation, and the distict was afraid this would make them look bad before a jury. (Also, the "coonass" case was decided in federal court, where it should have been easily dismissed by the judge under current hostile environment doctrine, even if it was a slur; New Jersey, in contrast, allows hostile environment complaints based on a single remark, making much more difficult to get a case dismissed.) Regardless, this might just win my vote for the most ridiculous case of the year.

Thursday, December 29, 2005

Just Arrived from Amazon: John Yoo, The Powers of War and Peace: The Constitution and Foreign Affairs After 9/11. Lots of folks say that the Article II argument is based heavily on Yoo's scholarship, so I figured I should read his new book.
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The Color Line in Israel:

During my recent visit, I was pleased to see that Ethiopian Jews seem substantially more integrated into Israeli society than even a few years ago, a product, I suspect, of the fact that the first generation to grow up in Israel is coming of age. I saw Ethiopian shopowners, fashionable teenagers, and quite a few Ethiopian security guards. Perhaps most heartingly, I saw an Ethiopian contestant on the Israeli equivalent of "American Idol" ("A Star is Born"). Her cousin represented her family in the studio audience rooting for her, and they both had white (and, indeed, Ashkenazic, by appearance) boyfriends, something that seemed highly unusual to my American eyes (although I have relatives with black wives, it still seems pretty rare to see white men with black women).

Now if I could only get one of the organizations dedicated to helping Ethiopian Jews adjust to life in Israel to encourage the opening of a few good Ethiopian restaurants in Tel Aviv.

[Right now there are NO Ethiopian restaurants in the entire country, [update: a corresopndent tells me that contrary to my sources, there are two in Jerusalem, Shegar and Ansara. The former is on Agrippas Street and the latter on Yafo Street. Still none in the Tel Aviv area, though] except a derelict takeout place for foreign workers, despite the presence of over 100,000 Ethiopian Jews Oddly, in Israel "ethnic food" is considered something one eats at home, while to go out Israelis tend to favor routine Israeli food: humus/falefal/schwarma, dairy, shipudim ("skewers"), and schnitzel, plus hamburgers and pasta. What a crime that in a country with immigrants from over 100 countries that so few nations' cuisines are represented on the restaurant scene, especially since the Jewish cuisines of those countries were often unique! Someone send (ethnic food maven and occasional VC contributor) Tyler Cowen over there to straighten things out.

Advice for Government Litigators:

When a federal court is considering your case, and the court clerk asks you for a relevant document, don't respond that the clerk should file a Freedom of Information Act request. Here's an excerpt from yet another Judge Posner opinion slamming the federal government's immigration bureaucracy:

The lawyer [for the asylum seeker] filed a written brief, but because he failed to attach the required certificate (see 8 C.F.R. § 1003.3(c)(1)) stating that he had served the brief on the Department of Homeland Security, the Board refused to consider it. (The record is silent on whether he served the department. The brief is not in the record, and when the Clerk of our court asked the Board for a copy of it he was told that he would have to file a request for it under the Freedom of Information Act!) The Board, or rather a single member authorized to act for the Board, went on to affirm the immigration judge’s decision without opinion.

Bad litigation tactics on the government's part, it seems to me. (Note that Judge Posner does not use exclamation points often.) The rest of the opinion has more substantive criticisms of the government's actions, including the immigration service's use of what the opinion calls "junk science."

UPDATE: Whoops -- forgot to include a link to the opinion; just corrected it. Thanks to How Appealing for the link, and to commenter Edward A. Hoffman for the reminder.

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The NSA Surveillance Program and the Article II Argument: In yesterday's Wall Street Journal, Professor Robert Turner advances the argument that the President's Article II authority trumps FISA, and that therefore the NSA surveillance program as we know it is probably legal. Although Article II is not my area of expertise, I have different instincts on these issues. I thought I would quote from Turner's piece paragraph-by-paragraph and explain my questions and why I tend to disagree. To be clear, I'm not intending my questions and comments to be the last word on any of these issues. Rather, I hope they'll help advance the conversation and sharpen the debate; if my instincts are wrong, I hope commenters or other bloggers will carefully explain why.

  I'll skip over the first part of Turner's piece, which is more historical argument than a legal one, and start in with the fourth paragraph:
For nearly 200 years it was understood by all three branches that intelligence collection--especially in wartime--was an exclusive presidential prerogative vested in the president by Article II, Section 1 of the Constitution. Washington, Madison, Jefferson, Hamilton, John Marshall and many others recognized that the grant of "executive power" to the president included control over intelligence gathering. It was not by chance that there was no provision for congressional oversight of intelligence matters in the National Security Act of 1947.
  I don't have a reason to doubt that, but I'm not sure how it's relevant: Attitudes changed after the Nixon presidency, and the issue is the legality of post-Nixon legislative restrictions on executive power.
Space does not permit a discussion here of the congressional lawbreaking that took place in the wake of the Vietnam War. It is enough to observe that the Constitution is the highest law of the land, and when Congress attempts to usurp powers granted to the president, its members betray their oath of office. In certain cases, such as the War Powers Resolution and the Foreign Intelligence Surveillance Act, it might well have crossed that line.
  I think everyone agrees that the Constitution reigns supreme. Of course, the question is whether and why a law like FISA might violate the Constitution.
Keep in mind that while the Carter administration asked Congress to enact the FISA statute in 1978, Attorney General Griffin Bell emphasized that the law "does not take away the power of the president under the Constitution." And in 1994, when the Clinton administration invited Congress to expand FISA to cover physical as well as electronic searches, the associate attorney general testified: "Our seeking legislation in no way should suggest that we do not believe we have inherent authority" under the Constitution. "We do," she concluded.
  I'm not sure of the context of Bell's comment — I couldn't find it on westlaw, and it doesn't come up on google. But I think it's important to note what Gorelick was and was not arguing. As I understand it, Gorelick wasn't claiming that Congress couldn't regulate the President's authority to conduct physical searches. As the transcript of her testimony at that time suggests, she was arguing that absent statutory regulation, the executive had that power (as several circuit courts had held). In other words, Gorelick was using the phrase "inherent authority" to mean "not needing Congressional authorization," rather than "unable to be subject to Congressional regulation." And of course, whether past DOJ officials have claimed this power is much less relevant than whether courts have agreed.
I'm not saying that what the president authorized was unquestionably lawful. The Supreme Court in the 1972 "Keith case" held that a warrant was required for national security wiretaps involving purely domestic targets, but expressly distinguished the case from one involving wiretapping "foreign powers" or their agents in this country. In the 1980 Truong case, the Fourth U.S. Circuit Court of Appeals upheld the warrantless surveillance of a foreign power, its agent or collaborators (including U.S. citizens) when the "primary purpose" of the intercepts was for "foreign intelligence" rather than law enforcement purposes. Every court of appeals that has considered the issue has upheld an inherent presidential power to conduct warrantless foreign intelligence searches; and in 2002 the U.S. Foreign Intelligence Surveillance Court of Review, created by the FISA statute, accepted that "the president does have that authority" and noted "FISA could not encroach on the president's constitutional power."
  There are two separate issues here, I think. With the exception of the 9 words of dicta from the 2002 FISA court decision, all of those precedents were dealing with the Fourth Amendment's warrant requirement. Specifically, the issue was whether the Fourth Amendment requires a warrant when the government engages in foreign intelligence surveillance. That's not the issue here, I think, as most people seem to be focused on FISA rather than the Fourth Amendment.

  As for the 9 words of dicta from In re Sealed Case — "FISA could not encroach on the president's constitutional power" — I find it hard to know what to make of it. In that case, the government was arguing that the statutory warrant requirement of FISA made monitoring pursuant to that requirement constitutionally reasonable. Was the court claiming that Congress could not impose a warrant requirement where a warrant would not required under the Fourth Amendment? That would reverse the usual role of the Fourth Amendment: it would transform the Fourth Amendment from a floor on privacy protections into a ceiling. Or is the Court merely saying that if FISA were repealed, the President's constitutional power from pre-FISA days would still exist? I'm not entirely sure, and unfortunately the opinion doesn't carefully explain it. If this phrase stands for the view that Article II powers trump FISA's restrictions, then I would certainly want more authority than that; Congress thought it was binding the executive when it passed FISA, and it would be news justifying more than 9 words of dicta if this weren't the case.
For constitutional purposes, the joint resolution passed with but a single dissenting vote by Congress on Sept. 14, 2001, was the equivalent of a formal declaration of war. The Supreme Court held in 1800 (Bas v. Tingy), and again in 1801 (Talbot v. Seamen), that Congress could formally authorize war by joint resolution without passing a formal declaration of war; and in the post-U.N. Charter era no state has issued a formal declaration of war. Such declarations, in fact, have become as much an anachronism as the power of Congress to issue letters of marque and reprisal (outlawed by treaty in 1856). Formal declarations were historically only required when a state was initiating an aggressive war, which today is unlawful.

Section 1811 of the FISA statute recognizes that during a period of authorized war the president must have some authority to engage in electronic surveillance "without a court order." The question is whether Congress had the power to limit such authorizations to a 15-day period, which I think highly doubtful. It would be akin to Congress telling the president during wartime that he could attack a particular enemy stronghold for a maximum of 15 days.
  What is the best case for the view that Congress cannot limit monitoring to 15 days? And is domestic surveillance really the same as attacking a particular enemy stronghold? It seems to me that you can analogize the surveillance program in different ways, depending in part on details we don't yet know, and I'm not sure the "enemy stronghold" analogy is the best. For example, I gather that some critics would say that limiting surveillance monitoring is more like blocking the President from seizing steel mills to avoid a wartime stoppage of much-needed steel production. The Supreme Court held that this power exceeded Article II in Youngstown Sheet & Tube v. Sawyer; why isn't this a better analogy? Does it matter how widespread the monitoring was? When it was conducted? How it was conducted?
America is at war with a dangerous enemy. Since 9/11, the president, our intelligence services and our military forces have done a truly extraordinary job--taking the war to our enemies and keeping them from conducting a single attack within this country (so far). But we are still very much at risk, and those who seek partisan political advantage by portraying efforts to monitor communications between suspected foreign terrorists and (often unknown) Americans as being akin to Nixon's "enemies lists" are serving neither their party nor their country. The leakers of this sensitive national security activity and their Capitol Hill supporters seem determined to guarantee al Qaeda a secure communications channel into this country so long as they remember to include one sympathetic permanent resident alien not previously identified by NSA or the FBI as a foreign agent on their distribution list.
  First of all, the motives of the leakers and people on Capitol Hill obviously aren't relevant to the legality of the NSA program. But even as a political argument, it seems really unfair; I am also very uncomfortable with the leaks here, but I don't know how we can lump the leakers together with unnamed "Capitol Hill supporters." I gather this was meant to be exagerrated for effect, but the idea that "Capitol Hill" opponents of the program "seem determined to guarantee al Qaeda a secure communications channel" under any circumstances is preposterous.
Ultimately, as the courts have noted, the test is whether the legitimate government interest involved--in this instance, discovering and preventing new terrorist attacks that may endanger tens of thousands of American lives--outweighs the privacy interests of individuals who are communicating with al Qaeda terrorists. And just as those of us who fly on airplanes have accepted intrusive government searches of our luggage and person without the slightest showing of probable cause, those of us who communicate (knowingly or otherwise) with foreign terrorists will have to accept the fact that Uncle Sam may be listening.
  But "the courts" in question were all deciding cases under the Fourth Amendment, right? "The test" mentioned here was the Fourth Amendment test, not the test for legality. I agree that the program probably passes Fourth Amendment muster; it's the prohibitions of FISA that are the issue.
Our Constitution is the supreme law, and it cannot be amended by a simple statute like the FISA law. Every modern president and every court of appeals that has considered this issue has upheld the independent power of the president to collect foreign intelligence without a warrant. The Supreme Court may ultimately clarify the competing claims; but until then, the president is right to continue monitoring the communications of our nation's declared enemies, even when they elect to communicate with people within our country.
  Again, I think this claim confuses two different powers: powers to conduct surveillance absent congressional authorization, and powers to conduct surveillance in the face of congressional prohibition.

  Finally, if the issue is how the Supreme Court would rule, I don't think there is much doubt as to what the Supreme Court would do with the Article II argument. I think you would probably get an 8-1 vote against an expansive reading of Article II powers, and it's really hard to see where the Administration could get 5 votes for the claim. That's my ballpark guess, at least. We may find out as early as this summer, too; if the Court grants cert in Padilla, which it probably will, there may be some interesting opportunities for opinions that shed more light on these issues.

  To be clear, I think the legality of the NSA surveillance program is a very difficult question, and it depends on details we mostly don't yet know. But in constrast to the difficult issues involving FISA and the AUMF, I don't see the Article II claim as a close one based on existing law. Am I wrong? If you think so, please consider leaving a comment explaining why. I am particularly interested in case citations and arguments based on existing legal authorities.
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"First the Saturday people, then the Sunday people."

In a January 1976 article in Commentary, titled "The Return of Islam," Bernard Lewis wrote, "In the period immediately preceding the outbreak of the Six-Day War in 1967, an ominous phrase was sometimes heard, 'First the Saturday people, then the Sunday people.'"

Today, on many pro-Israel websites and blogs, there are claims that the phrase is common in Arab grafitti, or as a placard in street demonstrations. I am curious about whether these claims are correct, or whether they might be recycled versions of Lewis's statement about 1967.

If you have information about the subject, please supply it in the comments. (Or e-mail it to me from the e-mail link on www.davekopel.org, if you prefer.) Comments are open only for the purpose of information about the quote "First the Saturday people, then the Sunday people." If you have personally seen such graffiti, or know of sources which have seen such grafitti, please supply the information. Conversely, if you have actual knowledge that the phrase is rare or non-existent in the Arab areas (particularly, areas near Israel) about which you have first-hand knowledge, please supply that information.

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Computers and Conspiracies:

Sorry for the trouble with the blog yesterday; everything should be well now, and David Bernstein's post on Iran and Israel is back, too, in its original spot; that was the last item that needed fixing.

As best we can tell, the problem was caused by a random hardware failure, and not -- as commenter Mary at SCOTUSblog suggested -- governmental oppression:

Speaking of the Government's manipulation of Padilla, has anyone here tried to get on Volokhs Conspiracy blog today? Over there, several heated discussions were in progress on Hamdi, Padilla, the domestic surveillance, Supreme Court Dockets No. 05-7287 & 05-7771 (Day-Petrano), and The Vessel Mistress surveillance vessel. Now it appears Volokh may be offline. I tried to access that blog to check in on this important national topic on a number of different computers, including the one at the local Courthouse law library, and all that comes up is the web page cannot be displayed. Is anyone else having this problem? If so, I wonder of the Government has taken down Volokh. Anyone know anything? For those interested in the Government's manipulation of Padilla, please note, my cases have been manipulated also. My cases arise in the civil rights context.

As Orin pointed out in the comments to the same SCOTUSblog post, "No conspiracy other than the Volokh one." (Thanks to Eric Freedman for alerting us to the original SCOTUSblog comment.)

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More on Iran and Israel:

The VC site was down for a while, and meanwhile seems to have "lost" my Tuesday post predicting Israel will soon attack Iran. Here is most of the post, rescued from another blog that excerpted it:

This is hardly an original insight, but I predict that Israel will strike Iran within the next few months, with the goal of disrupting or terminating Iran's nuclear program... I just returned from Israel, and I found a remarkable consensus in favor of doing whatever is necessary to stop Iran (a consensus no doubt solidified by Iranian threats to annihilate Israel, and recent vicious anti-Semitism emanating from the highest rank of the Iranian government). One leftist member of my wife's family told me that the IDF will do whatever is necessary. When I expressed concern that Iran will retaliate through Hizbullah, he replied that the Lebanese government will stop any large-scale retaliation, or the ramifications will be disastrous in and for Beirut. Other leftists of my acquaintance were equally inclined to support vigorous action against Iran, and equally confident of the government's ability to manage the situation. Given that the anti-Iranian consensus is so solid even on the Left, I would be very surprised if the Israeli government fails to follow through on its promise to prevent Iran from acquiring atomic weapons--assuming, of course, that Iran isn't stopped by other international forces.

There's been a lot of reaction in the blogosphere, most of it supporting Israel's right to preemptively defend itself, but wondering whether Israel has the capacity to send enough long-range bombers to wipe out enough secret enrichment locations against a prepared enemy to truly put a dent in Iran's program. I wonder about this, too, which also makes me wonder if Israel will do something less predictable, but perhaps ultimately more effective, than what everyone has been talking about. I don't know what this might be, but neither do the Iranians.

Fed Soc Discussion of NSA Surveillance: Sorry we've been down for the last day or so -- we're gradually coming back up, but it may be a bit before we're fully functional. In the meantime, check out this interesting exchange on the legality of the NSA surveillance program between two Federalist Society members -- Bob Levy of Cato and David Rivkin of Baker & Hostetler. I think Levy is basically right and Rivkin is basically wrong; more on some of these issues later today, assuming that we come back on line. Thanks to Marty Lederman for the link.
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Tuesday, December 27, 2005

Prediction: Israel Will Strike Iran This is hardly an original insight, but I predict that Israel willstrike Iran within the next few months, with the goal of disrupting orterminating Iran's nuclear program. My contribution is that I justreturned from Israel, and I found a remarkable consensus in favor ofdoing whatever is necessary to stop Iran (a consensus no doubtsolidified by Iranian threats to annihilate Israel, and recent viciousanti-Semitism emanating from the highest rank of the Iraniangovernment). One leftist member of my wife's family told me that the IDFwill do whatever is necessary. When I expressed concern that Iran willretaliate through Hizbullah, he replied that the Lebanese governmentwill stop any large-scale retaliation, or the ramifications will bedisastrous in and for Beirut. Other leftists of my acquaintance wereequally inclined to support vigorous action against Iran, and equallyconfident of the government's ability to manage the situation. Giventhat the anti-Iranian consensus is so solid even on the Left, I would bevery surprised if the Israeli government fails to follow through on itspromise to prevent Iran from acquiring atomic weapons--assuming, ofcourse, that Iran isn't stopped by other international forces.
Hanukkah:

Today is the second day of Hanukkah, with the third day of Hanukkah beginning at sunset. Today is also the third day of Christmas, so I hope that the 96% of Americans who celebrate Christmas, as well everyone who celebrates Hanukkah, are continuing their festivities.

Last year while guest-blogging for Glenn Reynolds on MSNBC.com, I wrote the essay "Armed Jews Week," about how the Jews who fought the Nazis embodied the spirit of Hanukkah. A previous essay for NRO told the story of the original Hanukkah--how an informal Jewish militia led a successful revolution against the Syrians who were trying to wipe out the Jewish religion, and how the Jews--then as now--were brilliant military innovators who defeated a much larger force dedicated to their extermination.

Another essay for NRO looked at the religious issues surrounding the Maccabean revolt against the Syrians. The essay explained that the new independent Jewish state survived for only about a century, because its leaders abused two ethnic groups in the state: Idumeans (who followed the Jewish religion), and Samaritans (who did not observe that standard Jewish religion, but who did observe a very similar faith, based on the five books of the Torah, without the additional holy books which are part of mainstream Judaism).

The 2004 essay on "Armed Jews Week" led to many interesting e-mails. While the majority of e-mails were positive, the negative responses fell into two broad categories. One was composed of Jews who (displaying precisely the types of attitudes which the Zionist movement was intended to overcome) were offended at the idea that Jews have been (and still are) among the world's greatest warriors.

The second type of negative response ran along the lines of "don't you agree that Israel is doing the same thing to the Palestinians which the ancient Syrians did to the ancient Jews?" To which my answer is: not at all.

Unlike the Syrians, the Israelis are not attempting to eliminate another religion. The Israelis are not trying to wipe out the practice of Islam or Christianity in the disputed territories. (Although the Palestinian Authority has done a great deal to drive Christianity out of the West Bank). Nor was Israel's response to the Intifada the creation of a ancient-Syrian-style plan to ethnically cleanse the entire area by selling the whole Palestinian population into slavery. (Even though Sudan, Libya, Mauritania, and some other nations still have an active, public slave trade.)

Rather, Israel appears to have learned the lessons from the mistakes of its Maccabean kingdom. Today, any Jew--regardless of ethnic ancestry--who wishes to live in Israel is entitled to full and equal Israeli citizenship. To the extent that non-Jewish citizens of Israel are treated differently from Jewish citizens, they nevertheless enjoy much greater civil and political rights than almost anywhere in the Arab world. How many places besides Israel and Iraq can an Arab freely exercise the right to strong criticism of the ruling government? Or vote in an election in which the national government might lose power?

As for the West Bank and Gaza, Israel has voluntarily relinquished control over the latter, and the former came under Israeli control as a result of Jordan's decision to attack Israel in 1967. On this very date in 1995, Israel gave Yasser Arafat and his Palestinian Authority control over 90% of the West Bank, with the expectation that there would eventually be an independent Palestinian state living in peace with Israel. Arafat and his gang of terrorists gave only lip service to peace, and continued to teach anti-Semitism and the destruction of Israel in their schools (funded by the United Nations), and to wage a terrorist campaign against Israel.

The Maccabeans, as long as they could rule themselves, were willing to live in peace with Syria. If the Palestinians ever choose leaders who are willing to live in peace with Israel, then the independent Palestinian state will include not just Gaza, but also the West Bank.

In the meantime, the Israelis--with the support of freedom-loving people of all faiths all over the world--are not going to submit to the demands of evil-doers who seek to destroy the Jewish people and their nation. That is one of the eternal themes of Hanukkah.

Update: A commentator makes a very important point. Although many Jewish accounts refer to the Maccabees' opponents as "Syrians," the Jews were fighting the Selucid Empire (sometimes called the Greco-Syrian empire); the Empire, at its heights, extended from Afghanistan to the Aegean Sea. Although the Empire had controlled parts of Arabia, the Empire was, unlike modern Syria, neither culturally nor ethnically predominantly Arab.

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Congratulations to Bill Kovacic:

Since Orin didn't get there first, I get to be the first to wish Bill Kovacic congratulations on being confirmed by the Senate to serve as an FTC Commissioner. Bill, of course, is Orin's current colleague at GW, and my former colleague in senior management at the FTC. Congratulations Bill!

No Monarchy Here: I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)

  Armando writes (with excerpts of my posts in italics):
  Some conservatives, it appears, favor a little bit of monarchical powers for the President. Orin Kerr, a respected conservative lawyer who blogs at Volokh Conspiracy, appears to be one of those:
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.
  Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief? Well, contradictorily, not according to Kerr:
I have been unable to find any caselaw in support of this argument [that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power] Further, the argument has no support from the cases cited in the government's brief. . . . .
  So how does this work Mr. Kerr? Congress has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President? Even though the violation of FISA is a crime? Come again? Ahhh, a little bit of monarchy I suppose.
  Nope, no monarchy, and no contradiction. Let me explain a bit more. The legality of the NSA surveillance program raises two different questions: 1) Does the NSA's surveillance program violate a provision of the Constitution?, and 2) Does the NSA's surveillance program violate any constitutionalily valid statutes? The two are quite separate issues: Whether executive branch action violates a statute is different from whether it violates the Constitution. See Dalton v. Specter. (Hat tip: Madisonian)

  In my post, I argued that the monitoring probably didn't violate the Constitution (and in particular, the Fourth Amendment), but that it probably did violate FISA. This doesn't mean that the monitoring was legal; it only means that of the two possible grounds that it could be illegal, I think it was probably illegal on one ground but not the other ground.

  The distinction is a little tricky in this context because some are arguing that Article II renders FISA unconstitutional in some ways. But when I said that the monitoring was probably constitutional, I only meant that the monitoring probably didn't violate the Fourth Amendment; I didn't mean that the Constitution invalidates a statute that makes the monitoring illegal. As Armando notes, I rejected that argument. (And I'm glad to see that the Administration isn't relying on the Article II argument any more, at least if its letter to the Hill last week is an indication. Also, while we're on the topic, check out Joe Onek's very interesting response to the DOJ letter at ACSBlog.)

  Finally, I've been meaning to post another write-up on the legality of the NSA program now that we seem to have more facts about what the program actually entailed. My quick skim of the Times' latest piece from Saturday suggests that the legal issues may be different from what I thought they were — or at least, that there is another set of legal issues to work through in addition to the ones I wrote about last week. I'm stuck fighting my way through enjoying reading a set of exams right now, but I hope to write another analysis sometime this week.

  UPDATE: Thanks to Armando for posting an update.
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Monday, December 26, 2005

Real Censorship of Reading, Research, and Writing in Libraries and Universities.--

The Standard-Times (apparently from the New Bedford, MA area) reported that a UMASS student was questioned by the government for having checked out Mao’s Little Red Book. The Standard-Times then reported that it had been duped: the story was a hoax (tip to Tim Blair). Many people were outraged by the idea that the government was asserting the right--or the power--to inquire into what a student, a member of a university community, was reading.

I have been surprised by the reaction to the story because there is a massive, active program of government-sponsored censorship on campuses that is much broader than merely allowing you to check out a book and then asking you questions about it afterward.

Imagine that I want to write a research article about government abuses of power. I plan to visit a library to look at the public papers of a living person (or a dead person whose papers might embarrass a living person). In most universities, I would be prohibited by federal law--as aggressively interpreted by the federal government--from going to that library without getting PRIOR APPROVAL of a committee set up under federal law, populated with some people outside my university, deciding whether I was allowed to visit the library and read the papers I want to read. If the government had only the desire to check into where I went and what I read after the fact, that would be a serious, though comparatively minor, restriction. No, I am required to get prior approval.

That is the system of Institutional Review Boards (IRBs, formerly called human subject committees) that operates at most major universities. If the government were checking up on me only after I went somewhere or after I read something in a library or after I talked to someone or asked people questions, that would be a big improvement over the current system. The federal government has interpreted its censorship power so broadly that, even for research that is supposed to be exempt from coverage under the federal statute, the federal government has insisted that a researcher get prior approval from an IRB that the work is indeed exempt. At one university for which I’ve seen data, even exempt research requires over a month on average before approval is granted to do the work (in the form of an official certification that the work is exempt). The universities keep records on the research proposals and projects they approve and disapprove and submit those records to the “audits” of government officials. For non-exempt research, such as the example I gave of studying embarrassing information about living people, review would take several months on average before I could BEGIN the research. And retroactive approval is prohibited.

Ironically, as Philip Hamburger documents, the current system is much like the English 17th century censorship system that the US Constitutional framers wanted to prohibit when they adopted the First Amendment. In late 17th century England, people had to get the permission of censors before publishing books. But in most fields, the 17th century crown did not do the censorship itself; much like today, the government delegated the task to the universities. But 17th century censorship was not as far-reaching as the current system, since only publication without permission was prohibited, not the research itself (as in the current system). And it appears that 17th century censors may have been less intrusive than current-day IRBs. It was precisely to prevent a censorship system such as we have today that the First Amendment was passed.

How this massive system of goverment-sponsored censorship got going with little attention from Constitutional scholars (before Philip Hamburger) is a mystery to me. It is time for the courts to declare the IRB system what it is: unconstitutional.

UPDATE:

In comments below, James Fulford links to an excellent article on the efforts by Elizabeth Loftus and Mel Guyer to research and write about some questionable research on recovered memories of childhood sexual abuse:

The irony is that if Loftus and Guyer were journalists, they would have done precisely the same investigation unhampered and fully supported by their employer. But because they are university professors, they were subjected to a secret, shadowy investigation of their legal right to do what good reporters do every day. And their respective universities, far from supporting their intellectual inquiries and their tenured (indeed American) right to free speech, obstructed and harassed them. Some of these obstructionist efforts linger in the articles they wrote in this magazine ["Who Abused Jane Doe?" May/June and July/August 2002]. . . .

After reading David Corwin's account of Jane Doe in the journal Child Maltreatment in 1997, Loftus and Guyer decided to examine his alleged evidence of a recovered memory of sexual abuse. The stakes were high for their work as scholars, teachers, and expert witnesses, because the case was already being used in court as evidence that recovered memories of sexual abuse in childhood are reliable.

They began by looking into documents in the public record. They found a public court case of "Jane Doe" who fi[t] the description in Corwin's article, but the court records differed from Corwin's account in significant ways. They eventually met Jane Doe's mother, and became convinced that she had been falsely accused many years before, leading to the loss of custody of her daughter. They decided that this was a story worth pursuing and publishing, ideally in a popular magazine. . . .

[A month after Guyer was initially told by his IRB at the U. of Michigan that this work was exempt because it was not "research,"] Guyer received a letter, with no intervening warning that anything was amiss, telling him that his project was not exempt; in fact, that it was assigned a "disapproval" status; and that the IRB was recommending to the Office of the Vice President of Research that he, personally, be reprimanded. . . .

Appeals, protests, and exchanges ensued for nearly a year. In March 1999, Guyer received a letter from the new chair of the IRB, Stephen Gebarski, telling him that his work was indeed exempt from IRB consideration because it was not "human subjects research." . . .

Encouraged by the green light given to Guyer at Michigan, the two pursued their investigation. Then the University of Washington received an e-mail from Jane Doe, complaining that her privacy was being violated. Considering that David Corwin had published his account of her life and was traveling around the country showing videotapes of Jane at six and seventeen, and considering that no one was making her story public (and hence violating her "privacy") except Jane herself and Corwin, this complaint should have been recognized as a cry from a troubled and vulnerable young woman, and set aside. . . .

On September 30, 1999, having given Loftus fifteen minutes' advance notice by telephone, John Slattery of the University of Washington's "Office of Scientific Integrity" arrived in Loftus's office, along with the chair of the psychology department, and seized her files. She asked Slattery what the charges against her were. It took him five weeks to respond, and when he did he had transformed Jane Doe's "privacy" complaint into an investigation of "possible violations of human subjects research." Loftus later learned that lawyers in another state, who had retained Corwin as their defense expert, were trying to subpoena her personnel file in hopes of finding something there to discredit her as an expert witness for the plaintiffs. Because the University, in the face of her objection, was going forward in complying with this improper subpoena, she was forced to retain her own lawyer to stop them. . . .

In the spring of 2001, the three-member investigating committee, consisting of two clinicians and one sociologist, concluded that Loftus was not guilty of the charge of "scholarly misconduct." But the two clinicians recommended to the dean, David Hodge, that she nonetheless be reprimanded and subjected to a program of remedial education on professional ethics. They instructed Loftus not to publish data obtained by methods they regarded as inconsistent with the "ethical principals" [sic] of psychologists--that is, the methods of a journalistic investigation.

On July 3, 2001, one year and nine months after the University of Washington seized her files, and one month after Loftus won the prestigious William James award from the American Psychological Society for her decades of scientific research . . . Dean Hodge wrote Loftus a letter of exoneration. Her work, he said, "does not constitute research involving human subjects." She did not commit ethical violations or deviate from accepted research practices. She was not guilty of any misconduct. She would not have to undergo remedial education on how to conduct research.

But, oh, one more thing: She was not to contact Jane Doe's mother again or interview anyone else involved in the case without advance approval. Such meetings, he said, would constitute "human subjects research requiring Human Subjects Committee approval." . . .

"I don't see how you can write anything of value," the great anthropologist Marvin Harris told me years ago, "if you don't offend someone." Skeptical inquiry is endangered when those who are offended or threatened by knowledge are able to silence those who have something valuable to say.

Of course, Loftus and Guyer's work challenging the case of Jane Doe should not be restricted to publishing in a semi-popular journal. It should be published as well in a scholarly journal (assuming that it meets the normal standards for evidence). And it is most definitely research on a human subject.

Even professors who were publishing literary essays have have been harassed by IRBs.

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Carter Phillips on Sam Alito: C-Span's "America and the Courts" series has a fascinating interview with Carter Phillips, one of the top members of the Supreme Court bar, about his friend and former co-worker Sam Alito. The interview begins at the 23-minute mark and lasts about 35 minutes. Phillips and Alito were Assistants in the SG's Office together in the early 1980s; as Phillips explains early in the interview, they met when they both interviewed at the SG's Office on the same day, during the tenure of Carter SG Wade McCree.

  Among the interesting tidbits in the interview, Phillips offers his take (at the 28-minute mark) on whether Alito's memos from the SG's office should be read as indicators of how Alito would rule as a Justice. Phillips stresses that the attorneys at the SG's office were advocates, not judges. He suggests that the Assistants in the office saw themselves as civil servants representing the institutional interests of the U.S. rather than "independently judging what [they thought was] the right answer."

  I also thought it was interesting that Alito was hired by and started under Carter SG Wade McCree, not Reagan SG Rex Lee; Alito started in June '81, according to Phillips, two months before McCree departed and was replaced by Lee.
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