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Saturday, August 12, 2006

New Brief Lebanon Media Notes:

Little Green Footballs reports that photographer Bryan Denton was an eyewitness in Lebanon to, in Denton's words, "the daily practice of directed shots, one case where a group of wire photogs were choreographing the unearthing of bodies, directing emergency workers here and there, asking them to position bodies just so, even remove bodies that have already been put in graves so that they can photograph them in peoples arms."

And Tim Rutten, media columnist for the L.A. Times, thinks that the MSM is not paying sufficient attention to bloggers' revelations that many photos from Lebanon were digitally manipulated, staged, posed, captioned incorrectly, or were otherwise fraudulent. He concludes:

That brings us to the most troubling of the possible explanations for these fraudulent photos, which is that some of the photojournalists involved are either intimidated by or sympathetic to the Hezbollah terrorists. It's a possibility fraught with harsh implications, but it needs to be examined thoroughly and openly. [Charles] Johnson [of LGF] and his colleagues have done the serious news media a service. Failure to follow up on it would be worse than churlish; it would be irresponsible.

UPDATE: Washington Post photographer Michael Robinson-Chavez, who was there, says of Qana: "Nothing was set up. There was no way photos could have been altered with a dozen photographers there." Yet we have video of "Green Helmet" apparently directing photographers and rescue workers, an AP report (in a puff piece) of Green Helmet holding up a dead body for the cameras, and some pretty persuasive (warning: and gory) circumstantial evidence from EU Referendum. Even the Post ombudsman thinks that one photo from Reuters looks staged. I guess it depends on what Robinson Chavez means by "set up", and also exactly where he was and how much of everything he witnessed (given that only a few images out of hundreds, maybe thousands, shot at Qana are at issue).

[UPDATE: A reader points out that, read in context, Robinson-Chavez may only be denying that the children were trucked in from somewhere else, or that some of the "dead" bodies really weren't, both allegations circulating on the internet. The full quote is "Everyone was dead, many of them children. Nothing was set up. There was no way photos could have been altered with a dozen photographers there." As the reader points out, this falls rather short of a direct denial of "staging.")

Meanwhile, Robinson-Chavez "explained why readers don't see pictures of suspected Hezbollah guerrillas, whose stronghold is southern Lebanon. They are recognizable because they're young and bearded and have walkie-talkies — and don't want to be photographed. He said they intentionally are not armed when photographers are around. He was detained by several one day and then released." Personally, if I were "detained" by an anti-American terrorist group, I'd be scared out of my wits, and would go out of my way not to make nice to that group so long as I was in the territory they controlled. And that would include what photos and reporting I chose to send to my bosses back in the U.S.

87 Comments
In Which Publication and Which Year Was This Cartoon Printed?



Why, in 2006, as the editorial cartoon in the alt-weekly Sacramento News & Review. I should note that Si Frumkin, who alerted me to this, reports that the News & Review responded to a complaint with this:

We have received your letter to the SN&R; thank you for your input. As a result of the outpouring of Emails that have come to us related to the Kloss cartoon of August 3rd, we'll be running a special full page of letters on the topic in our issue of 8/17/06, as well as an editorial statement about the decision to publish the cartoon.
Should be interesting to see what that editorial statement says.

Related Posts (on one page):

  1. Sacramento News & Review Cartoon:
  2. In Which Publication and Which Year Was This Cartoon Printed?
104 Comments
Scientific Error Spreading:

A McDonald's wrapper informs us, "In space, you can jump six times higher." Only in those parts of space (which are often not even thought of as quite "in space," though I suppose under some definitions they qualify) where the gravitational field is quite right.

Thanks to this site for confirming the text (I failed to save the wrapper, so I'm working from a two-day-old memory), and for getting there first.

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Odd Sort of Security Rule?

American Airlines tells us — and my sense is that this is the general TSA policy — that

All liquid and gel items must be placed in checked baggage only....

Exception: Baby formula or breast milk if a baby or small child is traveling; prescription medicine with a name that matches the passenger's ticket; and insulin and essential other non-prescription medicines.

I must be missing something here: Seems to me that a terrorist who wants to smuggle aboard explosives precursors just needs to fake a prescription label, no? Or if that's somehow too hard (I can't imagine how it can be), he can fake some symptoms, get a prescription for a liquid or gel medicine (granted, that might involve a day's delay), empty it out and refill it with the bad stuff.

Or is it that the prescription-bottles-only rule will diminish the number of bottles to be checked, and TSA will actually check each one to make sure that it's not filled with explosive precursors? That's the one sensible explanation I can see for the "no liquids and gels, but prescription bottles are OK" rule — but is TSA really geared up to perform this sort of checking?

Incidentally, I can see the prescription-bottles-only rule working for a few hours, if it's not announced — that way, if terrorists are then trying to execute a plan, they might be foiled because they hadn't anticipated the need to use a prescription bottle. But once we're talking about plans that are even a few days or perhaps even several hours away, and the prescription-bottles-only policy is announced, the terrorists can easily adapt themselves to that change, it seems to me. What am I missing here?

UPDATE: Some commenters suggest that it would take some pretty large bottles to make enough explosives to bring down a plane. My understanding from press accounts is that it only takes a little of the right kind of explosive, and a prescription bottle or two of cough syrup could fit what's needed. But if that's not so, or if the TSA is actually closely examining all the many prescription bottles that it's likely to run across, then the policy may make more sense than I thought — though I'd still wonder about the breast milk / baby formula exception (necessary as it is), plus also the ability to smuggle liquids and gels in various other ways (not hard in body cavities, I'd guess, though again that depends on how much you need).

FURTHER UPDATE: Perhaps the breast milk / baby formula exception might work because it's limited to people traveling with small children; I expect that even some would-be suicide bombers wouldn't find it easy to find babies whom they could enlist in their suicide squads. As to one commenter's note that mothers are being asked to taste their children's milk, I can say that Thursday morning we flew with a bottle of milk in our carry-on, and no-one said a word; maybe they just didn't notice it, or maybe they didn't have a tasting requirement to enforce.

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Fauxtography in the Service of Hezbollah Propaganda:

Over the past two weeks, David Bernstein has been bringing VC readers some of the story about the staging and posing of photos of supposed "civil defense workers" and dead children at Qana, Lebanon. My media column today for the Rocky Mountain News/Denver Post also looks at the issue, and reports some of the evidence, brought forward by the blogosphere in the last two weeks, about the many faked, dishonest, or staged photos from the war in Lebanon.

Conclusion: "Notwithstanding the media critics, Hezbollah has, in the war for Western public opinion, sometimes succeeded in subverting Western news organizations into organs of its own propaganda. At Qana at least, it appears that the media may have been complicit in the production of controlled, staged images using dead children as props, which were falsely presented to the public as authentic, spontaneous photos of a rescue operation."

Some commenters on Prof. Bernstein's posts have raised the argument "who cares about staging; all the matter is that the Israelis killed the children." That argument is wrong on two levels: first it is a gross violation of journalistic ethics to present a posed/staged photo as if it represented spontaneous activity; there is little doubt, at this point, that the media at Qana perpetrated this violation, and have been attempting to cover it up ever since.

Second, we don't really know how/why the children died. Some bloggers have suggested that they were hauled into the scene for the rescue. The Lebanese newsmagazine Libanoscopie quotes a source that Hezbollah placed handicapped children and a rocket launcher in the same building, hoping that the children would be killed, and that the media would use the incident against Israel.

We do know, as my article details, that the media were forbidden to examine or inspect the building where the children were allegedly killed; A.P. spokeswoman Linda Wagner, in response to a question from me, did not deny this fact, but instead sidestepped the question.

The question of why the western media at Qana are passing off Hezbollah propaganda as the truth is a question which I leave to other analysts; I suspect that there are several answers, not just one explanation.

81 Comments

Friday, August 11, 2006

Incompetent Ehud Olmert?:

Word from Israel, from both the English-language media and my relatives there, is that folks are very unhappy with various aspects of the cease-fire deal that the U.N. Security Council has just passed, to wit (I haven't seen the final version of the resolution, but this is what I picked up from the media):

(1) The operative U.N. resolution before now, still in force, required all Lebanese armed factions to disarm. The new resolution does not require the Party of God (Hezbollah) to disarm, except below the Litani River.

(2) The new resoultion does not call for the immediate release of the kidnapped soldiers.

(3) The new resolution states that the Shaaba Farms controversy, which provided the Party of God with a pretext to fight Israel by claiming Israel was "occupying" Lebanese land, is to be resolved soon. The old resolution confirmed that Israel had pulled out completely from Lebanon, because according to the U.N. Shaaba Farms, captured from Syria in 1967, was part of Syria, not Lebanon.

(4) The Israeli government had sworn it would not accept U.N. peacekeepers to separate itself from the Party of God. The U.N. itself is incredibly hostile to Israel, and U.N. peacekeepers on Israel's borders have proven themselves to at best be ineffective, and at worst in league with Israel's enemies. The new resolution provides only for U.N. peacekeepers, albeit with some enhanced powers (which they can, theoretically, use as much against Israel as against the Party of God. I wouldn't wager on the more likely target.)

(5) The U.N. resolution calls for the Party of God's fighters to withdraw behind the Litani River. But given that the Party's fighters are nonuniformed and most have day jobs, how can this possibly be enforced?

(6) The resolution puts the issue of Lebanese prisoners in Israel, another POG pretext, and the most prominent of whom are brutal terrorist murderers, on the table.

(7) Is the U.N. and/or the Lebanese government really going to stop Iran and Syria from resupplying the Party of God? Hard to imagine.

All of this seems like strong evidence that the Olmert government is incompetent. So many lives lost, so many wounded, so many displaced, so much political capital used, all for a diplomatic "solution" that seems very likely to lead to another war rather soon, except that U.N. enhanced peacekeepers will be there to interfere with Israel's freedom to act.

But perhaps Olmert has one of two tricks up his sleeve: (1) Once the U.N. resolution is passed and enforced, the Lebanese government will face severe U.S. and French pressure to sign a peace treaty with Israel, which would be a huge blow to the Party of God/Syria/Iran axis; or (2) The U.S. has promised Israel that it will not allow Iran to get nukes, but the price of this is having to agree to this resolution, to retain French support for pressure on, and potentially military action against, Iran.

Perhaps. But meanwhile, the Olmert government looks way beyond its depth, having launched a war [yes, the Party of God provoked it, and Israel had every moral right to escalate] to "finish off" the Party of God that it was not prepared militarily, psychologically, or diplomatically to fully execute.

[I should add that the fact that the Olmert government announced its military moves in advance, giving the Party of God notice to prepare for them, that the squabbling at extremely important and secret cabinet meetings was leaked all over the media, that leading generals were openly questioning the government's strategy, and various politicos were making important public pronouncements well outside their authority (in what other country does the "Justice Minister" announce the government's military strategy?), hardly has created an aura of competence around the government.]

UPDATE: Here is the text of the resolution. I'm running out for the day, but a quick looks suggests that the resolution does call on the Party of God to disarm entirely, but that U.N. forces will only help enforce disarmament below the Litani River. And one more quick note, I've mostly refrained from commenting on Olmert's military strategy; as a law professor, I can speculate on these things, but I don't really know anything about them, nor do I have access to the kind of information that Olmert does. But it did strike me from my ignorant vantage point that going around Party of God fortifications and surrounding from the North made more sense than directly attacking them from the South. According to this interesting article, the IDF did have such a strategy (and more) in mind but it was vetoed by Olmert. Also of interest: the claim that the U.S. gave Israel the go-ahead to go after Syria, even at the potential risk (and potential payoff) of a face-off with Iran, but Olmert rejected this.

FURTHER UPDATE: The IDF is FINALLY airlifting soldiers behind Party of God lines. It is now racing against time to pull a military victory out of what, at best, was a diplomatic draw, if not defeat.

Related Posts (on one page):

  1. More Evidence of Israeli Government Incompetence:
  2. Incompetent Ehud Olmert?:
100 Comments
Italian Law Student Stabbed and Killed in Jerusalem.--

YNETNEWS reports that an Italian law student and peace activist was stabbed and killed in Jerusalem:

Angelo Frammartino, a 24 year-old [law] student from Italy who arrived in Israel as a human rights organization activist, was stabbed to death Thursday by an Arab knifeman.

"He believed in what he did and was always ready to help others," a friend described him.

The website of Italian newspaper Corriere Della Sera reported that Frammartino was working for the setting up of a children's supper camp for Palestinians in Jerusalem's Old City, and was supposed to return to Italy on Friday.

The youth was stabbed in the back while walking with four friends in the Sultan Suleiman street in the capital, near the Prahim Gate.

The attacker left the knife at the scene of the crime and fled. Police set up checkpoints in the area and arrested three suspects for suspected involvement.

It is believed that the attack was . . . not an attempted robbery. . . .

Frammartino was a law student. "He was very interested in politics and in the issues of society, like his father," said [his hometown] Mayor, Anonino Lopi. "Something so beautiful ended in such a tragic way," he added.

In a letter sent a few months ago to a local newspaper, Angelo expressed his world view:

"We must recognize that in a situation with no violence is a luxury in many parts of the world, but we are not seeking to prevent legitimate self defense operations. I never dreamt of condemning the resistance, the blood of the Vietnamese, the blood of nations under colonial occupation, or the blood of Palestinian youths from the first intifada."

Poignant--and like so many deaths in the Middle East today--very sad.

32 Comments
Another Important Ninth Circuit Case on the Fourth Amendment and Computers: The Ninth Circuit has handed down a slew of important cases in recent weeks applying the Fourth Amendment to computer searches. The latest case was handed down just today; I blog about it here at my solo blog.
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Interesting Developments in Williams Case:

From today's Sun-Herald:

Attorneys for the estate of Jessie Lee Williams Jr. have filed a motion asking a federal judge to determine if the Harrison County jail has presented false reports to the U.S. Justice Department and, if so, that the federal government temporarily take over the jail.

The motion, filed early Thursday evening, alleges the jail has filed false reports to the Justice Department regarding the fatal beating of Williams. The jail has been under a federal consent judgment since 1995 and must submit quarterly reports to the Justice Department to show how the jail is run and what happens in the jail.

The motion claims the quarterly report for January through March contains "intentionally misleading and possibly fraudulent reports" involving Williams' beating in the jail booking room Feb. 4.

The motion also claims Monday's guilty plea of ex-jailer Regina Rhodes to criminal acts stemming from the beating is "further evidence... as active efforts to cover up blatant abuses and illegal activities" and that the report "failed to identify all of the individuals known to it at the time the report was filed."

The full story is here. The Sun-Herald has also posted the text of the motion and accompanying press release.

UPDATE: More here.

Related Posts (on one page):

  1. Interesting Developments in Williams Case:
  2. Jesse Lee Williams Case Update:
  3. Show Us the Tape:
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Appeasement from Israel's Religious Right:

This kind of appeasement mentality towards radical Islamist terrorism is usually associated with the more myopic elements of the political Left. In this case, however, it has emerged from within Israel's version of the religious right:

Shas mentor Rabbi Ovadia Yosef and Rabbi Yehuda Leib Steinman, a leading Ashkenazi haredi spiritual leader, have given their blessing to a meeting with Hamas aimed at reaching a hudna (Arabic for cease-fire) that could save Jewish lives.

The plan approved by Yosef and Steinman calls for three rabbis representing Sephardi, Ashkenazi and religious Zionist Orthodoxy to meet with Hamas representatives. The three rabbis are: Rabbi Shmuel Jakobovits, son of former chief rabbi of Britain Immanuel Jakobovits; Rabbi Zion Cohen, rabbi of the Sha'ar Hanegev region; and Rabbi Menahem Fruman of Tekoa, a veteran interfaith dialoguer who is the driving force behind the initiative . . .

The proposed hudna would be between Hamas and the Jewish people - not with the state of Israel - to circumvent Hamas's refusal to recognize the Zionist entity . . .

[According to Rabbi Jakobovits], "[t]he Islamic world has deep concerns about the penetration of liberal, secular values and lifestyles into the Middle East. A major factor in the conflict between radical Islam and the Western world is Islam's opposition to secular lifestyle and ideology.

"The haredi community understands their sensitivities and mentality and feels threatened by the same phenomena. The haredi community could play a key role in dialogue between the West and Islam because we live in two worlds, one deeply religious and the other liberal and pluralistic. We understand that the secular mind is different from the religious mind.

"Today in the West the assumption in dealing with Muslim extremism is that moderation and tolerance are the keys. But what the West does not understand is that there is something threatening in that approach, both to the haredi mind and to a deeply Islamic mind. Both haredim and Muslims see multicultural society as an anathema.

"The West, which has the power, needs to assure Islam that no one is going to try to force a multicultural worldview on them. Otherwise the clash with Islam will only get sharper and sharper," Jakobovits said.

For those VC readers who may not know, the haredim are a highly traditionalistic branch of Orthodox Judaism. Some of them do not recognize the legitimacy of the state of Israel part because they consider it to be excessively secular, and not governed by their interpretation of Jewish religious law.

These particular haredi rabbis have clearly deluded themselves about the nature of Hamas and other radical Islamist terrorist groups. Among other things, there is absolutely no reason to believe, as the rabbis seem to, that radical Islamists are any less hostile to highly traditional Jews than they are to more secular Jews and Westerners. Hamas and other terrorists have repeatedly made it clear that their goal is to kill all Jew - especially all Israeli Jews - without distinction (see, e.g., here). As the Hamas Charter says:

The Prophet, Allah bless him and grant him salvation, has said:

The Day of Judgement will not come about until Moslems fight the Jews (killing the Jews), when the Jew will hide behind stones and trees. The stones and trees will say O Moslems, O Abdulla, there is a Jew behind me, come and kill him.

Other parts of the Charter blame the Jews (again without distinction as to religiosity) for virtually all the problems of the world, including the French Revolution and the outbreak of both world wars (Article 22), and make clear that Hamas intends to expel all Jews (again without distinction) from all parts of "Palestine," including pre-1967 Israel.

Given that radical Islamists are intolerant even of devout Muslims from sects other than their own, they are hardly likely to warm to the rabbis merely because both "see multicultural society as an anathema."

Finally, at the risk of belaboring the obvious, "liberal values,""tolerance," and a "multicultural society" are among the most important of the principles that the West should be fighting for in the struggle against radical Islamism. Sometimes, even the most shopworn of cliches is appropriate: to sacrifice these values in order to make a deal with the enemy is truly to let the terrorists win.

The misguided thinking of these rabbis would be insignificant were it not for the fact that some of them are major figures in Israeli politics and society. Rabbi Yosef, for example, is a key leader in the Shas Party, which holds 12 of 120 seats in the Israeli parliament and is part of the current Israeli coalition government.

UPDATE: To avoid misunderstanding, I should make it clear that by "multicultural society," I mean a society where people from a wide range of backgrounds and cultures can find acceptance and coexistence. I do not mean a radically relativistic society under which any and all cultural practices, including those that go against fundamental liberal principles are considered "equal." I suspect however that the haredi rabbis are opposed to this limited formulation of multiculturalism and not just to the extreme moral relativist version.

18 Comments
Are Courts Getting Rapanos Wrong?

Yesterday, the U.S. Court of Appeals for the Ninth Circuit decided Northern California River Watch v. Healdsburg, the first case in which a federal appellate court has applied the Supreme Court’s decision in Rapanos v. United States. In Healdsburg, the Ninth Circuit upheld the U.S. Army Corps of Engineers’ assertion of regulatory jurisdiction over “Basalt Pond,” a rock quarry alongside the Russian River in California. This outcome was not a surprise, but the ruling seems to rest on a misreading of Rapanos.

As readers may recall, in Rapanos the Court split 4-1-4 on the scope of federal regulatory jurisdiction under the Clean Water Act (CWA). Due to the unusual nature of the split, there is some uncertainty as to how courts should apply the decision. Justice Anthony Kennedy wrote the solo opinion concurring in the judgment, so his opinion should be controlling, insofar as it provides the narrowest grounds upon which the Court’s judgment may be upheld.

The core of Kennedy’s opinion is that wetlands must have a “significant nexus” to navigable-in-fact waters in order to be included in the definition of “navigable waters,” and thereby subject to federal jurisdiction, under the CWA. The key to determining the scope of federal jurisdiction post-Rapanos is untangling what this "significant nexus" test requires.

The Ninth Circuit sought to follow Justice Kennedy’s opinion in upholding federal jurisdiction over the Basalt Pond. It was undisputed that the Russian River is a navigable water, and, the court noted, “the district court made substantial findings of fact that the adjacent wetland of Basalt Pond has a significant nexus to the Russian River” due to various physical, hydrological, and ecological connections. This analysis was required, according to the Ninth Circuit, because “the mere adjacency of Basalt Pond and its wetlands to the Russian River is not sufficient for CWA protection.” Admittedly, Justice Kennedy’s concurring opinion in Rapanos is hardly a paragon of clarity, but it seems to say the precise opposite.

Justice Kennedy’s opinion explains that the federal government can presume that wetlands adjacent to actual navigable waters have a “significant nexus” to such waters, and that additional evidence of an ecological connection is unnecessary for CWA jurisdiction.

As applied to wetlands adjacent to navigable-in-fact waters, the Corps' conclusive standard for jurisdiction rests upon a reasonable inference of ecologic interconnection, and the assertion of jurisdiction for those wetlands is sustainable under the Act by showing adjacency alone.
This, Justice Kennedy noted, was “the holding of Riverside Bayview, and he took pains to stress that he sought to base the Court’s holding on its prior precedents in Riverside Bayview and SWANCC. It is only where wetlands are adjacent to non-navigable waters, as was the case for the wetlands at issue in the Carabell case, that additional evidence is required.

Healdsburg is not the only post-Rapanos decision. On June 28, the U.S. District Court for the Northern District of Texas held, in United States v. Chevron Pipe Line Co., that Chevron Pipe Line was not liable for the discharge of oil into a nearby creek and stream bed that lacked a “significant nexus” to navigable waters of the United States. Interestingly, the district court largely relied on pre-Rapanos decisions within the Fifth Circuit for its holding:

Because Justice Kennedy failed to elaborate on the ‘significant nexus’ required, this Court will look to the prior reasoning of this circuit. The Fifth Circuit . . . has interpreted “waters of the United States” narrowly . . . . Without any clear direction on determining a significant nexus, this Court will . . . feel its way on a cases-by-case basis. . . . Thus, as a matter of law in this circuit, the connection of generally dry channels and creek beds will not suffice to create a “significant nexus” to a navigable water simply because one feeds into the next during the rare times of actual flow. . . . [A]bsent actual evidence that the site of the farthest traverse of the spill is navigable-in-fact or adjacent to an open body of navigable water, the Court finds that a “significant nexus” is not present under the law of this circuit.
As with the Ninth Circuit’s decision, I believe the result is defensible under Rapanos. What is odd, however, is the district court’s explicit reliance on pre-Rapanos case law without any attempt to harmonize those cases with Rapanos (something that is likely possible to do).

These two cases are two of the first interpretations of Rapanos (the Middle District of Florida also applied Rapanos in U.S. v. Evans, issued August 2), but they won’t be the last. Courts, regulators, and litigants will be sorting through this one for a while.

For those who want more on the meaning of Rapanos, I testified on this subject before the Senate Environment Subcommittee on Fisheries, Wildlife and Water, August 1. My written statement is here. The remaining written testimony from the hearing is here.

Related Posts (on one page):

  1. Are Courts Getting Rapanos Wrong?
  2. Testifying on Rapanos:
1 Comments
George Scialabba profiled in Inside Higher Ed.--

At Cliopatria, Ralph Luker points us to Scott McLemee's profile of George Scialabba (and his newly published book of essays) in Inside Higher Ed.--and to what Rick Perlstein calls Scialabba's "masterpiece": "Message from Room 101."

In reading the essay Message from Room 101, I agree that it is indeed powerful and well written, marred only by its naive views about how easily redistributive economics can work.

Scialabba fans: Is there another essay of his that is both online and worth reading?

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Reactions to Espionage Act Ruling:

This Los Angeles Times article quotes some reactions to Wednesday's ruling that individuals who receive and retransmit classified national security information may be prosecuted under the Espionage Act.

"It's a momentous ruling with radical implications," said Steven Aftergood, who heads the Project on Government Secrecy for the Federation of American Scientists. "A lot of people who are in the business of gathering information, such as reporters and advocates, are now going to have to grapple with the potential threat of prosecution. The dividing line has always been between leakers, who may be prosecuted, and the recipients of the leak, who have never been. Now that dividing line has been erased." . . .

Prosecutors have said that for the espionage law to be invoked, an individual possessing secret information must intend to cause harm to America. But they have not ruled out the possibility of charging journalists.

Some legal experts are skeptical of the judge's reasoning that safeguards are sufficient to prevent abusive prosecutions.

"It is predicated on an idea that the executive and judicial branches will operate with rectitude and only prosecute cases where there is a genuine risk of harming national security" rather than political considerations, said Jane Kirtley, a professor of media ethics and law at the University of Minnesota. "It presumes a degree of honest government that, sadly, does not always exist."

Aftergood and Kirtley said they knew of no other case where the United States was seeking criminal charges against someone other than a government employee who clearly violated a nondisclosure agreement.

The story also notes that there is a federal grand jury looking into the leaks relating to NSA surveillance activities reported in the press. Howard Bashman rounds up more press coverage here.

48 Comments
Update on Ohio Arrests:

The Associated Press reports that the two men will face an additional charge for committing acts supporting terrorism. Meanwhile, the Columbus Dispatch provides more information on their arrest and their defense:

The men were stopped while driving for failure to signal a turn Tuesday after a clerk at a RadioShack called deputies to report the two acting suspiciously while buying three disposable, prepaid TracFones. The men bought six more phones from a Wal-Mart at the same strip mall near I-77.

Inside the car, deputies found nearly $11,000 in cash, a dozen cell phones, instructions on accessing and altering computerized passenger and baggage information from Royal Jordanian Airlines, and some airline-flight manifests.

Assistant Prosecutor Susan Vessels accused the men of "very serious crimes" in detailing the suspicious items found in their car and their admission that they bought 600 cell phones in the last month and were after another 300 on a trip south from Dearborn, Mich.

Attorneys for the two men said authorities are overreacting to a legal purchase of phones by two men who are working for a legitimate businessman. He resells the cheap phones at a profit and has been cleared of any terrorism links by the FBI, the attorneys said.

Agent Dawn Clenney, spokeswoman for the FBI in Detroit, could not confirm what the lawyers said. The Marietta case is a matter for Ohio lawenforcement agencies, she said.

The airline-related documents found in the car owned by Houssaiky’s mother belong to her, the men’s attorneys said. She works for a company that provides ground support for Royal Jordanian Airlines and others at the Detroit airport, they said.

The attorneys suggested the men were stopped and arrested as targets of racial profiling.

UPDATE: Police are looking into more mass cell phone purchases here and here.

55 Comments
Wall Street Journal Editorial on Controversial Forms of Surveillance.--

Friday's Wall Street Journal editorial:


'Mass Murder' Foiled
A terror plot is exposed by the policies many American liberals oppose.

As we approach the fifth anniversary of 9/11 without another major attack on U.S. soil, now is the right moment to consider the policies that have protected us--and those in public life who have fought those policies nearly every step of the way.

It's not as if the "Islamic fascists"--to borrow President Bush's description yesterday--haven't been trying to hit us. . . .

British antiterrorism chief Peter Clarke said at a news conference that the plot was foiled because "a large number of people" had been under surveillance, with police monitoring "spending, travel and communications."

Let's emphasize that again: The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs.

And almost on political cue yesterday, Members of the Congressional Democratic leadership were using the occasion to suggest that the U.S. is actually more vulnerable today despite this antiterror success. Harry Reid, who's bidding to run the Senate as Majority Leader, saw it as one more opportunity to insist that "the Iraq war has diverted our focus and more than $300 billion in resources from the war on terrorism and has created a rallying cry for international terrorists."

Ted Kennedy chimed in that "it is clear that our misguided policies are making America more hated in the world and making the war on terrorism harder to win." . . . And if the Iraq war is a diversion and provocation, just what policies would Senators Reid and Kennedy have us "focus" on?

Surveillance? Hmmm. Democrats and their media allies screamed bloody murder last year when it was leaked that the government was monitoring some communications outside the context of a law known as the Foreign Intelligence Surveillance Act. FISA wasn't designed for, nor does it forbid, the timely exploitation of what are often anonymous phone numbers, and the calls monitored had at least one overseas connection. But Mr. Reid labeled such surveillance "illegal" and an "NSA domestic spying program." Other Democrats are still saying they will censure, or even impeach, Mr. Bush over the FISA program if they win control of Congress. . . .

The real lesson of yesterday's antiterror success in Britain is that the threat remains potent, and that the U.S. government needs to be using every legal tool to defeat it. At home, that includes intelligence and surveillance and data-mining, and abroad it means all of those as well as an aggressive military plan to disrupt and kill terrorists where they live so they are constantly on defense rather than plotting to blow up U.S.-bound airliners.

As the time since 9/11 has passed, many of America's elites have begun to portray U.S. government policies as a greater threat than the terrorists themselves. George Soros and others have said this explicitly, and their political allies in Congress and the media have staged a relentless campaign against the very practices that saved innocent lives this week. . . .

Terrorist was "always very naughty."--

The Sun has a series of stories on the backgrounds of the terrorists arrested yesterday. As I read the accounts, for some reason I kept thinking that Mark Steyn (or someone with his satirical skills) could write a great column on the quotes from family and friends.

Again and again, family or friends expressed surprise that the suspects could be terrorists because they liked football or cricket.

And one of the suspects who had converted from Christianity was described as "always very naughty" (he had been expelled from school):

“His mum is a PE teacher who regularly attends a local Methodist church. She is going to be devastated.

“He married recently but we don’t know much about the wife and hardly ever saw her.

“She would appear in the street from time to time wearing a scarf round her head.” . . . The owner of a nearby restaurant who has known Stewart-Whyte since he was a boy added: “He went to school with my daughter. He was always very naughty.”

Among the other suspects arrested may have been a mother (along with a young child):

Among those arrested was a woman in her 20s who was taken into custody with her baby, claimed Muslim community leader Imtiaz Qadir last night.

He said: “A young Muslim lady was arrested and they have taken the child too, because it needs to be with its mother.”

He added that he expected “an uproar” among the local community, once news of her arrest became known. . . .

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Sun Reports: Arrested London Bombing Suspect Met Often With MP George Galloway.--

The British press is reporting the arrest of a prominent student Muslim leader, Waheed Zaman.

Minutes later plain-clothes cops swooped on nearby 104 Queens Road and arrested biochemistry student Waheed Zaman, 23.

He had been watching TV with elder sister Safeena minutes before being led to a van in handcuffs.

The devout Muslim, who prayed five times a day, is well known in the Islamic community.

He was the head of the Islamic Society of Metropolitan University, London, and regularly spoke at Muslim rallies.

Last night Safeena, 24, said her brother was proud of being British and being born in Britain.

She said: “He loves fish and chips and Liverpool Football Club and his favourite TV programme is Only Fools And Horses.

“He even wanted to join the police as a forensics expert.

“As part of his work with the Islamic Society at university he would organise Muslim events and would often give talks. He is a great believer in the importance of integration between our community and the Western world.”

But pal Nasser Fazal, 23, revealed: “I spoke to Waheed about the September 11 attacks a few times. He told me he was convinced it was all a Jewish conspiracy.” The suspect has a part-time job at world-famous toy store Hamleys in London’s Regent Street. He prays at the Masjid-e-Umer mosque opposite his home, along with several others of those arrested.

The Sun is also reporting that the London bombing suspect met often with MP George Galloway (who was reportedly involved financially in the Saddam's Oil-for-Palaces program):

TERROR suspect Waheed Zaman met controversial MP George Galloway many times, his sister said last night.

Safeena, 24, said of her 23-year-old brother: “He saw it as his duty to stand up for his community and that’s what led him to know George Galloway. He has a lot of respect for him and has met him many times.”

A spokesman for MP Galloway . . . said: “Waheed Zaman is not a name that George is familiar with. He is not known to him on a personal level.”

[There is no suggestion Galloway is an associate of Zaman.]

24 Comments

Thursday, August 10, 2006

Kopel on NRA News, discussing the British airline terror plot:

Airs at the top of the hour, at 9 p.m. Eastern, 6 p.m Pacific. Available on Sirius Satellite channel 144, and on the Internet. The show remains on the web for listening for the 24 hours after broadcast.

Gov't May Prosecute Recipients of Leaked Information:

The federal government may prosecute private citizens who illegally receive and retransmit classified information, held federal district court Judge T.S. Ellis III yesterday in United States v. Rosen. Judge Ellis denied a motion to dismiss filed by Steven Rosen and Keith Weissman, two former employees of the American Israel Public Affairs Committee (AIPAC), who are being prosecuted under the Espionage Act for obtaining classified information and communicating it to third parties, including members of the media. According to Judge Ellis:

both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

Any violation of the statute must be both knowing and willful, Judge Ellis ruled, narrowing the implications of the decision.

the government must . . . prove that the person alleged to have violated these provisions knew the nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless. . . . [And] with respect only to intangible information, the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation, which the Supreme Court has interpreted as a requirement of bad faith.

While allowing the government's prosecution to proceed, Judge Ellis made clear he was not passing on the wisdom of the government's proseuction, just its contitutionality.

The conclusion that the statute is constitutionally permissible does not reflect a judgment about whether Congress could strike a more appropriate balance between these competing interests, or whether a more carefully drawn statute could better serve both the national security and the value of public debate. . . . the time is ripe for Congress to engage in a thorough review and revision of these provisions to ensure that they reflect both these changes, and contemporary views about the appropriate balance between our nation’s security and our citizens’ ability to engage in public debate about the United States’ conduct in the society of nations.

Steven Aftergood on the Secrecy News blog notes that Judge Ellis' decision could have distubing implications for press freedoms.

the classified 2004 report of Maj. Gen. Antonio Taguba on prisoner abuse at Abu Ghraib prison clearly fit the court's description of national defense information that is closely held by the government. Moreover, its unauthorized disclosure was likely to, and did in fact, harm the United States. And yet that disclosure also served an important national purpose in prompting a public debate over U.S. policy on prisoner detention and interrogation.

But under Judge Ellis' new interpretation, those reporters and others who communicated this information to the public could apparently be prosecuted under the Espionage Act.

Under Judge Ellis' interpretation, it also seems the federal government could prosecute reporters at the Washington Post and New York Times for their reports on secret prisons, NSA surveillance, and other classified counter-terrror activities.

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Proof of the staging of photos of dead children by "Green Helmet"--

On August 1, Orin Kerr suggested that, if David Bernstein's claims of staged Qana photos were correct, then some evidence might show up on the video that was shot at the scene.

Now German TV (with English subtitles) has a short report being shown on YOUTUBE that shows just the sort of evidence that Orin wanted to see (tip to Malkin and LGF). The character who has been dubbed "Green Helmet" is shown directing a scene for the benefit of cameras at Qana.

First, the body of a child is put in an ambulance. Then "Green Helmet" is shown directing the video photographer to "Keep on filming!" and insisting that "better images must be shot."

Then (after an apparent splice in the tape) the body of what may or may not be the same child is removed from the ambulance, apparently so that "better images" can "be shot" of the body. Instead of covering up the face with a blanket, the "workers" pull the blanket to just under the chin of the dead child and manipulate the angle of the child's head so that the video photographer can get the right closeup shot of the dead child's face.

If this is what it appears to be, then it is just the smoking gun that skeptics asked for. It's interesting how much can be done when the blogosphere and the MSM (even the German MSM) work together.

Now that proof has surfaced, this story of Hezbollah manipulating the bodies of dead childen to get good propaganda photos should be a big one in the MSM over the next few days--but it probably won't be. It's amazing how anti-US and anti-Israeli propaganda can be run routinely by the American media, but when shocking and truthful stories undercut that propaganda, there's really no story worth covering.

UPDATE: Zombietime has a fairly thorough account of the various sorts of allegations being made against Reuters:

It's important to understand that there is not just a single fraudulent Reuters photograph, nor even only one kind of fraudulent photograph. There are in fact dozens of photographs whose authenticity has been questioned, and they fall into four distinct categories.

The four types of photographic fraud perpetrated by Reuters photographers and editors are:

1. Digitally manipulating images after the photographs have been taken.

2. Photographing scenes staged by Hezbollah and presenting the images as if they were of authentic spontaneous news events.

3. Photographers themselves staging scenes or moving objects, and presenting photos of the set-ups as if they were naturally occurring.

4. Giving false or misleading captions to otherwise real photos that were taken at a different time or place.

2D UPDATE: AP has identified "Green Helmet" as Salam Daher, the head of civil defense for the Tyre region of Lebanon. More commentary here.

3D UPDATE: Solomania details how Daher was the source for the inflated casualty claims coming out of Qana. EU Referendum is attacking the factual claims in AP's story.

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Fun Little First Amendment Puzzle:

Here's a new Oklahoma statute, 21 Okla. Stats. sec. 839.1A:

Any person, firm, or corporation that uses for the purpose of advertising for the sale of any goods, wares, or merchandise, or for the solicitation of patronage by any business enterprise, the name, portrait, or picture of any service member of the United States Armed Forces, without having obtained, prior or subsequent to such use, the consent of the person, or, if the person is deceased, without the consent of the surviving spouse, personal representatives, or that of a majority of the adult heirs of the deceased, is guilty of a misdemeanor. This section applies to the name, portrait, or picture of both active duty members as well as former members of the Armed Forces of the United States. Every person convicted of a violation of this section shall be punished by a fine of not to exceed One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for not to exceed one (1) year, or by both said fine and imprisonment.

Consider three possible applications of the statute: (1) Advertising of nonspeech products that isn't misleading -- i.e., doesn't suggest an endorsement that isn't there -- for instance if someone sells "Jarhead Beer" with a picture of some generally unknown marine on the label.

(2) Advertising of books, movies, or newspapers, e.g., an unauthorized biography of Colin Powell that has his name and likeness on the cover.

(3) T-shirts, bumper stickers, pins, prints, and the like that contain a servicemember's name or likeness (either an anonymous servicemember's or a more famous one's, such as Powell's or McCain's), and that are used to advertise themselves (for instance, when the T-shirt is hanging in a store window or sitting on the shelf).

And in considering them, ask two questions:

(A) Could a general right of publicity law, which purports to impose civil liability on the use of people's names and likenesses for commercial purposes, be constitutionally applied in these cases? Many states do indeed have right of publicity laws that differ from the Oklahama statute chiefly in that (i) they impose civil liability, not criminal, and (ii) they don't limit themselves to soldiers.

(B) Even if such a general law would be constitutional, would this narrower law still be impermissible, either because its narrowness makes it impermissibly underinclusive under the relevant standard of scrutiny (Central Hudson scrutiny for commercial advertising or strict scrutiny for otherwise fully protected speech), or because of R.A.V. v. City of St. Paul?

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Another Terror Plot Foiled?

The terror plot foiled in the U.K. is the big news of the day. Closer to home, there are reports that two Michigan men were arrested in southeast on Ohio on charges they engaged in money laundering to support terrorist activities.

Deputies stopped the two on a traffic violation Tuesday and found the flight documents along with $11,000 cash and 12 phones in their car, Sheriff Larry Mincks said.

It wasn't clear what significance the airline information might have. Assistant County Prosecutor Susan Vessels declined to comment on whether the manifests were for upcoming flights or those that already had flown. She also would not give the origin or destination of the flight or flights. . . .

[The two men, Osama Sabhi] Abulhassan and [Ali] Houssaiky admitted buying about 600 phones in recent months at stores in southeast Ohio, said sheriff's Maj. John Winstanley. They sold the phones to someone in Dearborn, Winstanley said.

Vessels declined to say how the phones, cash or flight information involved terrorism.

UPDATE: More on the story:

Twenty-year old's Ali Howssaiky and Osama Abulhassan are facing charges of money laundering to aid terrorism. This comes after a traffic stop Tuesday led police to thousands of dollars in cash, several disposable cell phones and instructions of how to obtain private flight information. Police also found a list of flight passengers in the car.

"It also had information about airport checkpoints, and what would be accomplished there, so this is a little bit unusual," Washington County Sheriff Larry Mincks says.

Sheriff Mincks also says the disposable cell phones are especially important, because it appears their final destination was supposed to be overseas.

"They are digital and can be used to detonate car bombs," he says.

This story links the suspects to Hezbollah, while another account says the two are college students and claim they were on a business trip.

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"Fewest Dropped Calls" Somewhere Else:

On my usual route home from work, I pass a Cingular billboard on I-271 south (just before exit 23) proclaiming Cingular has the "fewest dropped calls" of any cell carrier in the nation. This claim might or might not be true. Either way, I find the billboard's placement quite amusing, as Cingular's cell coverage is spotty on that stretch of 271, and my phone drops calls there all of the time. I would have thought Cingular would be more careful not to advertise where its ad claims would be so inconsistent with consumer experience.

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No Forced Cheers in Court:

The Associated Press reports that the Washington State Commission on Judicial Conduct admonished Pierce County Superior Court Judge Beverly Grant for ordering those present in her courtroom to cheer "Go Seahawks" in anticipation of the Seattle Seahawks appearance in the Super Bowl. The action apparently offended a crime victim's relative who was in court.

Grant, who was appointed to the bench in 2003, apologized the following Monday. She eventually filed the formal conduct complaint against herself.

"Although my intentions were to defuse the courtroom situation, I realize now the inappropriateness of my opening comments," Grant told the commission.

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The Foiled Plots: Like a lot of people, I've been spending a lot of time this morning trying to piece together what we know about the foiled plots to hijack and blow up planes bound for the U.S. from the UK. This report seems to be the most detailed so far:
More than 20 suspected terrorists were arrested in England by early Thursday morning, in an operation that involved British intelligence, Scotland Yard and assistance by a number of other law enforcement and intelligence agencies, including those in Pakistan.

ABC News has learned that two "significant arrests" in Pakistan in recent days may have significantly accelerated the pace of the investigation.

Many of the alleged terror plotters appeared to be of Pakistani descent. It appears that they were probably "homegrown" terrorists with strong links to al Qaeda and Pakistani operatives. This new generation of terrorists have figured significantly in plots in the U.S., London and Canada in recent months.

In this case, the plotters apparently intended to assemble small but powerful bombs in flight and use them to take down flights from England to the United States. * * *

According to a Department of Homeland Security briefing to the aviation sector, the terrorists appear to have planned to use multiple persons aboard each flight to assemble peroxide-based liquid or gel high explosives. The bomb-making materials could easily be concealed in small containers -- water bottles, tooth paste tubes, juice boxes and any of the other numerous person items passengers traditionally take into the passenger compartment of commercial flights.

At least nine transcontinental flights from American, United and Continental airlines were targeted in the plot. ABC News has learned that terrorists planned to attack the planes three at a time, waiting an hour between each attack.

According to federal authorities, two or three bombers would each carry a separate portion of the bomb onto the plane to avoid detection. Once onboard the bomb would be assembled and then detonated by using heat or friction.

British authorities had been tracking some of the suspects for several weeks but stepped in to round up the plotters when they began to book flight reservations.
It's always hard to know what to make of stories of foiled plots, but this one sure sounds like a biggie. It sounds like the group was being tracked for a while, too, and (I would assume) pretty comprehensively; if investigators knew that the plotters "began to book flight reservations," and had a sense of the particular flights at risk, it seems safe to assume that at least a portion of the overall group was identified and UK investigators were tapping their phone/Internet connections. But of course it's hard to tell from the outside, especially just from early reports like this, and it's unclear when (if ever) we'll know the real details.
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Moral Question re Civilian Casualties Revisited:

Having suffered grievous losses in recent battles, IDF soldiers wonder why they are being sacrificed in ground combat, when bombings could have cleared the villages of Party of God hideouts, which also happen to be civilian homes: "What really bothered us is that in all of the villages we passed through the houses are standing and are untouched. The IDF's morality during war is exacting a very high price. We can flatten the territory, without ground forces, but from the air."

Thinking about my prior post on this issue, and again putting practical, as opposed to purely moral, concerns aside, it strikes me that military commanders should think of themselves as agents for their soldiers. Instead of looking at things from a collectivist perspective (how many soldiers should be sacrificed for how many civilians?),the question, perhaps, is, "what risk of losing your own life would an average soldier take in return for what reduced risk of killing civilians." The answer would depend, in part, on how complicit the civilian population is aiding and supporting the government--perhaps a different answer in occupied Belgium than in Dusseldorf in WWII. No easy answers, but I think at minimum it's safe to say that most soldiers in a civilized country would be willing to take something more than a non-zero risk to avoid a very high chance killing purely innocent civilians, but would not be willing to take a very high risk (or perhaps any risk at all) to avoid a small chance of avoiding harm to those who, e.g., purposely serve as human shields.

Again, this question is arising specifically in the context of the Lebanon situation, but it has implications for any modern war for any civilized nation, so please avoid using your comments to vent on other issues concerning Israel/Party of God/Lebanon.

Related Posts (on one page):

  1. Moral Question re Civilian Casualties Revisited:
  2. Moral Question re Civilian Casualties:
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Mike Wallace Buddies Up to Iranian President Mahmoud Ahmadinejad:

Wallace has interviewed Ahmadinejad for Sixty Minutes. According to the Hollywood Reporter, "The 88-year-old Wallace, who has interviewed almost every notable person in his nearly 40 years on '60 Minutes,' said Wednesday that he wasn't going to let a little matter such as retirement stop him from doing a story about one of the biggest gets these days."

So what does he think of the man whose agents are killing scores of Americans in Iraq, not to mention thousands of Iraqis, and who also is the world's leading Holocaust denier and most dangerous anti-Semite [relevant aside: Wallace is Jewish], currently engaged in a devastating proxy war with Israel and threatening to wipe out the country entirely? "He's actually, in a strange way, he's a rather attractive man, very smart, savvy, self-assured, good looking in a strange way.... He couldn't have been more accomodating. He had a good time doing the interview." These comments are not balanced out by any negative impressions from Wallace, except to note that his interview subject is "very, very short" but, he added immediately, "he's comfortable in his own skin." If Wallace doesn't feel revulsion at meeting the likes of Ahmadinejad, it really makes me wonder. [This can be dangerous stuff. I was going to post something along the lines that I'm sure Stalin was quite charming, too, but then I remembered that Stalin actually charmed the pants [actually the Poland] right off of FDR.]

UPDATE: Powerline has similar thoughts.

UPDATE: I guess I shouldn't have wondered. Wallace apparently has no moral sense beyond a belief that he should "get the story." Outside the Beltway recounts this hypothetical posed to Wallace:

With Jennings in their midst, the northern soldiers set up a perfect ambush, which will let them gun down the Americans and Southerners, every one. What does Jennings do? Ogletree asks. Would he tell his cameramen to "Roll tape!" as the North Kosanese opened fire? What would go through his mind as he watched the North Kosanese prepare to ambush the Americans? Jennings sat silent for about fifteen seconds after Ogletree asked this question. "Well, I guess I wouldn’t," he finally said. "I am going to tell you now what I am feeling, rather than the hypothesis I drew for myself. If I were with a North Kosanese unit that came upon Americans, I think that I personally would do what I could to warn the Americans." Even if it means losing the story? Ogletree asked.

Even though it would almost certainly mean losing my life, Jennings replied. "But I do not think that I could bring myself to participate in that act. That’s purely personal, and other reporters might have a different reaction." Immediately Mike Wallace spoke up. "I think some other reporters would have a different reaction," he said, obviously referring to himself. "They would regard it simply as a story they were there to cover." "I am astonished, really," at Jennings’s answer, Wallace said a moment later. He turned toward Jennings and began to lecture him: "You’re a reporter. Granted you’re an American"-at least for purposes of the fictional example; Jennings has actually retained Canadian citizenship. "I’m a little bit at a loss to understand why, because you’re an American, you would not have covered that story." Ogletree pushed Wallace. Didn’t Jennings have some higher duty, either patriotic or human, to do something other than just roll film as soldiers from his own country were being shot? "No," Wallace said flatly and immediately. "You don’t have a higher duty. No. No. You’re a reporter!" Jennings backtracked fast. Wallace was right, he said. "I chickened out." Jennings said that he had gotten so wrapped up in the hypothetical questions that he had lost sight of his journalistic duty to remain detached.

UPDATE: A commenter notes that Chris Wallace says his dad has "lost it." In December, Wallace said that if he had the chance to interview President Bush, he'd ask: "What in the world prepared you to be the commander in chief of the largest superpower in the world? In your background, Mr. President, you apparently were incurious. You didn't want to travel. You knew very little about the military. . . . The governor of Texas doesn't have the kind of power that some governors have. . . . Why do you think they nominated you? . . . Do you think that has anything to do with the fact that the country is so [expletive] up?" Somehow, I doubt Wallace will be as hostile to the President of Iran!

Related Posts (on one page):

  1. Kos Readers Reactions to Wallace Interview With Ahmedinejad:
  2. Mike Wallace Buddies Up to Iranian President Mahmoud Ahmadinejad:
144 Comments

Wednesday, August 9, 2006

Those Resolute, Incorruptable Journalists?:

Kathleen Carroll, senior Vice President of AP: "I also know from 30 years of experience in this business that you can't get competitive journalists [note that she doesn't limit herself to AP photographers] to participate in the kind of (staging) experience that is being described."

Anderson Cooper of CNN, via The Corner:

While on the Hezbollah side, it's really interesting — I was in Beirut, and they took me on this sort of guided tour of the Hezbollah- controlled territories in southern Lebanon that were heavily bombed. They are much cruder, obviously. They don't have the experience in this kind of thing. But they clearly want the story of civilian casualties out. That is their — what they're heavily pushing, to the point where on this tour I was on, they were just making stuff up. They had six ambulances lined up in a row and said, OK, you know, they brought reporters there, they said you can talk to the ambulance drives. And then one by one, they told the ambulances to turn on their sirens and to zoom off, and people taking that picture would be reporting, I guess, the idea that these ambulances were zooming off to treat civilian casualties, when in fact, these ambulances were literally going back and forth down the street just for people to take pictures of them.

Looks to me like "competitive journalists" were participating in staging. [UPDATE: And if you look around the blogosphere, many bloggers are examining varioius Lebanon photos that show signs of staging.] I wonder if any news outlet actually ran these shots?

Now that the fraudulent photos at Reuters have been exposed, I hope Carroll and others take their heads of the sand, and not just regarding the Lebanon situation. From what I've read, a major problem seems to be reliance on local stringers who may sympathize with one side of a conflict, and who may face personal or familial consequences if they report something the local authorities don't like. Local stringers also seem to have little supervision, while at the same time needing to get good "shots" and stories if they want to get paid, which creates incentives for cheating.

UPDATE: Strong evidence that "Green Helmet" staged photos for the media at Qana here. Via EU Referendum, Stern magazine credulously indentifies "Green Helmet" as an innocent rescue worker name Salam Daher. But he called himself "Abdel Qader" on Arabic t.v., and the footage linked above hardly suggests a typical rescue worker. The mystery deepens.

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More Chutzpah:

From Yates v. City of New York, 2006 WL 2239430 (S.D.N.Y. Aug. 4):

The word chutzpah, despite not debuting in a reported judicial opinion until 1972, [citing Kozinski & Volokh] is now vastly overused in the legal literature. Yet in a case such as this -- in which an individual, after being mauled by the 450-pound Siberian tiger he had been raising inside his fifth-floor apartment along with an alligator, sues the city and the police who entered the apartment in an effort to rescue the animals for doing so without a search warrant -- it is a most appropriate term to use....

In the early afternoon of October 1, 2003, Antoine Yates was mauled by his pet 10-foot-long, 450-pound adult male Siberian tiger named Ming that Yates had been raising inside his fifth floor Harlem apartment.... An anonymous caller twice dialed 911 and said that a man had been "bitten by dog" at Yates's address .... Police officers responded to the apartment building, which was owned and operated by the New York City Housing Authority, and found Yates "lying face-up on the floor" near the fifth story elevators "screaming and crying in pain." His wounds included a gash below his right knee that exposed the bone and a half-inch cut to his right forearm. Yates told the officers he had been bitten by "a large brown and white pit bull." EMS personnel arrived on the scene and took Yates to Harlem Hospital; all the while, Yates continued to insist that a "pit bull" or "dog" had bitten him.

Two days later, on October 3, the New York City Police Department ... received an anonymous tip that a tiger was living inside 2430 Seventh Avenue, Apartment 5E, and that the tiger had mauled a man who was recuperating at Harlem Hospital. Officers responded to the location but did not enter the apartment because no one answered the door. Later that evening, the police returned to the building and interviewed one of Yates's neighbors, who said that there was "a large wild animal," apparently a "full-grown tiger," living in Yates's apartment. The neighbor said that Yates had shown the animal to her daughter and that "large amounts of urine" sometimes cascaded from Yates's window down into the window of her apartment. The police also went to Harlem Hospital to speak with Yates, who insisted that he had been bitten by a pit bull in the stairwell of his residence and that he did not own a tiger.

At midnight, NYPD Captain Michael Polito interviewed Yates's brother Aaron, who said that Yates had both a fully-grown tiger and a large alligator living inside his apartment. Aaron also said that on the night before, he had opened the door to his brother's apartment, thrown in several pieces of raw chicken and watched as the tiger came toward the food....

Oddly enough, despite Yates' chutzpah, the court acknowledges that the legal question -- whether the warrantless search was justified by the "exigent circumstances" exception to the warrant requirement -- is quite difficult, though it ultimately concludes that the police officers are shielded by qualified ammunity "because it was objectively reasonable for them to believe they were complying with the law." (I myself am puzzled why they didn't get a warrant, given that they ultimately didn't enter the apartment until more than twelve hours after they were pretty sure that there was a tiger inside.) But that is a story for another day.

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Lieberman's Independent Candidacy:

I was wondering just how Lieberman can run as an Independent and win, rather than throwing the election to the Republican. In 2000, he did 64% of the vote, so he might expect that if the Republicans can't beat the 35% figure in 2000, he could win 40-24 over Lamont. But Connecticut is far from a 65% Democratic state — the Republican governor seems likely to be reelected — and my guess was that the Republicans would be energized by the chance of winning over the divided Democrats-plus-Independents.

Yet a bit of digging suggests that the Republican candidate seems very weak. Rasmussen Reports says:

[Republican candidate] Alan Schlesinger, viewed favorably by only 31%, loses badly no matter how the election is sliced. In yet another curve ball thrown into the race, Schlesinger has even been pressured by some to drop out because of questions about his past as a gambler. Conceivably, the GOP could then hand the nomination to Lieberman, and a rumor has been circulating to that effect. Let's just say this is one race that won't be over 'til it's over.

Doesn't say much about the Connecticut Republican party, sorry to say.

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Public University in West Virginia Abandons Officially Racially Segregated Courses:

The Foundation for Individual Rights in Education reports:

Marshall University has ... removed racial restrictions from an orientation course for first-year students. Last year’s listing for University Studies 101 (UNI 101) stated that certain sections were limited to “African American Students Only.” Thanks to FIRE’s intervention, several sections of UNI 101 this coming fall will focus on “African American Student Issues,” but will not exclude any student based upon race or ancestry....

Last October, FIRE won a similar victory at Arizona State University (ASU), where a professor had limited his English class to “Native Americans only.” ...

9 Comments
"Ernie" from Sesame Street in Hebrew:

There is something a bit surreal about watching Ernie (Arik in Hebrew) singing "Rubber Ducky" and "If I knew your were coming I'd have baked a cake," two of my all-tme favorite Sesame Street numbers, in Hebrew.

6 Comments
World Happiness Map,

with attached data. Cool to look through, though I surely can't vouch for either the concept or the execution. It does seem odd to say "UK [at 41st] doing better than most of our similar neighbours and competitors (France 62nd, Italy 50th, Spain 46th, Japan 90th, Chine 82nd, India 125th)," though "other counties did do better (Germany 35th, USA 23rd, Ireland 11th)," when (1) the raw scores for the UK, Spain, and Germany were 236.67, 233.33, and 240, and (2) the underlying phenomenon is so subjective and hard to measure that it's hard to imagine a 2% variation being remotely significant.

Thanks to Victor Steinbok for the pointer.

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Dispatch from Moscow:

While strolling through Smolensk Square, en route to the Arbat (for an indication of the importance of the Arbat, see here, here, here, here, etc., if you know Russian, as well as (on a different note) here), I ran across a book vendor with the following book: Harry Proglotter and the Magic Shawarmatrix. The blurb goes like this (my loose translation on the fly):

Woe, as it happens, crept up unnoticed. Harry Proglotter, a student in the magic school Hobotast, carelessly ate a Magic Shawarma, which contains the roots and offshoots of Universal Evil. And this Evil is growing inside the young wizard, threatening universal catastrophe. Harry must set out on a risky, distant expedition for the healing antidote. He is helped by his friends James Barahlow and Molly Kozazel, and also by master Yoda, who in those days wasn't yet a Jedi teacher.

If you like this, check out the official site of Tanya Grotter.

UPDATE: A commenter asks about Tanya Grotter in English -- the official site is in Russian only, but here's an English description of the character. Another commenter says the book wasn't published in the Netherlands but was available in Belgium -- maybe the commenter is talking about Harry Proglotter, but the Wikipedia site I link to in the previous sentence says that this was true of Tanya Grotter.

However, the "magic shawarma" plot (Perhaps we can have sequels with an enchanted falafel or a cursed baba ghanoush? But there's something cool about a "shawarmatrix" that couldn't be reproduced with other Middle Eastern foodstuffs.) reminds of W.S. Gilbert's infamous magic lozenge plot.

Related Posts (on one page):

  1. Movie recommendations:
  2. Dispatch from Moscow:
8 Comments
Old Testament Parenting,

for the Father and the Son (I'll leave the Holy Ghost aside) -- I hadn't heard of it until Todd linked to it, but I've just read it and loved it. Much worth a read.

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Ninth Circuit Mostly Eliminates Private-Sector Workplace Privacy Rights in Computers: This is a very long blog post in response to a troubling new Fourth Amendment decision handed down by the Ninth Circuit yesterday, United States v. Ziegler. It's a long post because the issues are both very important and very complicated, and the only way to show the problems with the decision is to do it in a fairly detailed way. I think the post is worth the payoff; the stakes of the case are potentially enormous, so the court's wrong turn is worth explaining in depth.

  First, some background. One of the tricky aspects of Fourth Amendment law is the distinction between the Fourth Amendment protection of government employees and private sector employees. The basic rule for the private sector is that employees have privacy rights at work unless their work space is completely open to the public, with the caveat that their employer can consent to a search of spaces that are not open to the public.

  The rules for government employment are totally different, thanks to the Supreme Court's somewhat odd decision in O'Connor v. Ortega. In that case, the Supreme Court created a sui generis, split-the-baby-in-half regime for government employee Fourth Amendment rights (announced in a plurality opinion by, you guessed it, Justice O'Connor). Under the O'Connor framework for government employee privacy, Fourth Amendment protections in the government workplace hinge on whether the workspace is shared with other employees, or whether the employer has enacted legitimate workplace policies that define privacy rights. The result is that government employees have much less Fourth Amendment protection than private sector employees, with the caveat that government employers cannot consent to a search while private sector employers can. (For more on this, and all the relevant case citations, see the chapter on it in the Justice Department manual on Searching and Seizing Computers that I wrote in '99-'01.)

  With that background in mind, it's a little painful to read yesterday's opinion by the Ninth Circuit in United States v. Ziegler. Ziegler was an employee of a company called Frontline Processing, described in the opinion as "a company that services Internet merchants by processing on-line electronic payments" in Bozeman, Montana. Ziegler downloaded some child pornography to his computer at work, and his employer, in an effort to help out the FBI, went into Ziegler's office and copied his computer to give to the FBI. The computer contained child pornography, leading to charrges. Ziegler then filed a motion to suppress, arguing that he had a reasonable expectation of privacy on his workplace computer that was violated by the government-directed search.

  The correct way to resolve this case would have been to say that of course Ziegler had a reasonable expectation of privacy in the contents of his private-sector office, see Mancusi v. DeForte, 392 U.S. 364 (1968), including the computer in his office. Then the court should have turned to whether the search was either a private search or else a reasonable warrantless search pursuant to the employer's valid third-party consent. Unfortunately, however, it seems that no one realized that private-sector Fourth Amendment privacy rights are so different from public-sector Fourth Amendment privacy rights. The defense attorney apparently didn't notice the difference, and it seems that the AUSA didn't either. (I couln't find the briefs on Westlaw, but the opinions summarize the parties' positions.) [UPDATE: I have now read the appellant's brief. It has all of five pages of analysis, and it didn't see the public/private distinction at all.] And the failure to understand this basic distinction in Fourth Amendment law then worked its way up the line, with apparently no one stepping back and noticing that you couldn't rely on the public sector Fourth Amendment cases to analyze whether a private-sector employee has a reasonbable expectation of privacy at work.

  The unfortunate result is an opinion that makes a quite clearly incorrect conclusion that private-sector employees do not have a reasonable expectation of privacy in the workplace computers in their offices when the employer has access rights to the machine. The Court based its holding primarily by analogy to United States v. Simons, a Fourth Circuit case imvolving a federal government agency search:
  In United States v. Simons, the case upon which the district court relied, the Fourth Circuit reasoned that an employer’s Internet-usage policy—which required that employees use the Internet only for official business and informed employees that the employer would "conduct electronic audits to ensure compliance," including the use of a firewall— defeated any expectation of privacy in "the record or fruits of [one’s] Internet use." 206 F.3d at 395, 398. A supervisor had reviewed "hits" originating from Simons’s computer via the firewall, had viewed one of the websites listed, and copied all of the files from the hard drive. Id. at 396. Despite that the computer was located in Simons’s office, the court held that the "policy placed employees on notice that they could not reasonably expect that their Internet activity would be private." Id. at 398.
  As the government suggests, similar circumstances inform our decision in this case. Though each Frontline computer required its employee to use an individual log-in, Schneider and other IT-department employees "had complete administrative access to anybody’s machine." As noted, the company had also installed a firewall, which, according to Schneider, is "a program that monitors Internet traffic . . . from within the organization to make sure nobody is visiting any sites that might be unprofessional." Monitoring was therefore routine, and the IT department reviewed the log created by the firewall "[o]n a regular basis," sometimes daily if Internet traffic was high enough to warrant it. Upon their hiring, Frontline employees were apprised of the company’s monitoring efforts through training and an employment manual, and they were told that the computers were company-owned and not to be used for activities of a personal nature. Ziegler, who has the burden of establishing a reasonable expectation of privacy, presented no evidence in contradiction of any of these practices. Like Simons, he "does not assert that he was unaware of, or that he had not consented to, the Internet [and computer] policy." Simons, 206 F.3d at 398 n.8.
  There are a bunch of problems in this section. To begin with, this is a very unpersuasive reading of Simons. The court conveniently doesn't mention this, but in Simons the Fourth Circuit held that the employee did have a reasonable expectation of privacy that was violated by physical entry to the office to get the physical machine. The court only permitted the search of the computer after holding that it was a reasonable search under the "special needs" exception as adopted by O'Connor v. Ortega. The part mentioned above was only about remote monitoring that preceded the physical entry. Here's what the Simons court said about the phsyical entry to Simons' office:
Here, Simons has shown that he had an office that he did not share. As noted above, the operational realities of Simons' workplace may have diminished his legitimate privacy expectations. However, there is no evidence in the record of any workplace practices, procedures, or regulations that had such an effect. [FN: The Internet policy did not render Simons' expectation of privacy in his office unreasonable. * * * ] We therefore conclude that, on this record, Simons possessed a legitimate expectation of privacy in his office.
Simons, 206 F.3d at 399.

  The Ziegler court seems to say in a footnote that this case is different because it involved a computer. In footnote 9, the court suggests that entering the office to search a computer is a search of the computer but not a search of the office. ("Although an employee may have a legitimate expectation of privacy in his office, here the Frontline employees did not actually search Ziegler's office.") This makes no sense, as everything in an office is an item separate from the office; if this rationale were valid, then you could never search an office, just stuff in an office.

  But I digress, so let me get back to the really important stuff. The Ziegler court seems unconcerned that Simons was a government search decided under O'Connor v. Ortega, rather than a private sector search that should be analyzed under Mancusi v. DeForte. So the Court makes its (unpersuasive) analogy to a decision that rested on the framework of government employee rights, apparently applying the low-protection government framework to what used to be the higher-protection private-sector framework. The end-result: the relatively high level of protection that private sector employees have in their computer hard drives are dropped to the low level of protection that government employees have. Not good.

  There is one paragraph in the Zeigler opinion that at least suggests an awareness that there might be some difference between public and private employee Fourth Amendment rights. Here it is:
  Other courts have scrutinized searches of workplace computers in both the public and private context, and they have consistently held that an employer's policy of routine monitoring is among the factors that may preclude an objectively reasonable expectation of privacy. See Biby v. Bd. of Regents, 419 F.3d 845, 850-51 (8th Cir. 2005) (holding that no reasonable expectation of privacy existed where a policy reserved the employer’s right to search an employee’s computer for a legitimate reason); United States v. Thorn, 375 F.3d 679, 683 (8th Cir. 2004), cert. granted and judgment vacated on other grounds by 543 U.S. 1112 (2005) (holding that a public agency’s computer-use policy, which prohibited accessing sexual images, expressly denied employees any personal privacy rights in the use of the computer systems, and provided the employer the right to access any computer in order to audit its use, precluded any reasonable expectation of privacy); United States v. Angevine, 281 F.3d 1130, 1133-35 (10th Cir. 2002) (holding that the employer’s computer-use policy, which included monitoring and claimed a right of access to equipment, and the employer’s ownership of the computers defeated any reasonable expectation of privacy); Muick v. Glenayre Electronics, 280 F.3d 741, 743 (7th Cir. 2002) ("Glenayre had announced that it could inspect the laptops that it furnished for the use of its employees, and this destroyed any reasonable expectation of privacy . . . ."); Wasson v. Sonoma County Jr. Coll. Dist., 4 F. Supp. 2d 893, 905-06 (N.D. Cal. 1997) (holding that a policy giving the employer "the right to access all information stored on [the employer’s] computers" defeated an expectation of privacy).
  Notably, however, almost all of the cases in this strong cite are public sector cases, not private sector cases. The one private sector case on the list is Judge Posner's opinion in Muick v. Glenayre Electronics. But Muick is a bit of an analytical disaster. Here is an excerpt from a case summary I wrote on the case soon after it came out:
With all due repect to Judge Posner, his breezy opinion largely ignores the applicable law on several fronts, and although he reaches the right result, he does so for the wrong reasons. First, Posner gets the agency inquiry pretty clearly wrong. The FBI's request for the store to hold the computer on its behalf almost certainly makes the store a state actor for 4th Amendment purposes: the fact that the employer was acting "selfishly" doesn't mean it wasn't acting at the FBI's behest.

Second, Posner ignores the fact that all of the cases he relies on for his third rationale are government employment cases, and that the store was not a government employer. The Supreme Court in O'Connor v. Ortega created a special 4th Amendment standard for the government workplace, and under that standard notice alone can eliminate a "reasonable expectation of privacy." However, these cases aren't applicable to private employers such as the store, so notice alone should not be enough to eliminate privacy rights there.

* * * [T]he court should have stopped after the first rationale and not offered confusing and misleading alternative holdings on the Fourth Amendment when it didn't need to do so to resolve the case.
  Finally, just to add to the confusion here, the Ziegler court has a long discussion analyzing and ultimately endorsing a California appellate court decision, TBG Ins. Services Corp. v. Superior Court, 117 Cal. Rptr.2d 155, 96 Cal.App. 4th 443 (Cal. Ct. App.2002), which had a long involved discussion of expectations of privacy and social norms in computers. But the Ziegler opinion once again seems not to notice a doctrinal category error: the TBG Ins. Services Corp. case is not a Fourth Amendment opinion. Rather, it is a decision under Article I, section I, of the California Constitution, which provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." It turns out that the California courts use the "reasonable expectation of privacy" framework in that context, too, but it seems to have a different meaning than the same phrase has in the Fourth Amendment context. (This is not uncommon, actually. The phrase "reasonable expectation of privacy" is used in the context of privacy torts, as well as in the legal ethics area in the context of attorney-client privilege, and it has a different meaning in each context. As a result, you can't lift the interpretation of "reasonable expectation of priuvacy" from one context and use it in another context.)

  Okay, so by now you're wondering, what difference does it make? If you analyze this case under the private-sector framework, you still will reach the same result because the employer had "common authority" to search the computer, right? Off the top of my head, yes, I think that's right. But the framework announced in Ziegler will still make an enormous difference in lots of other cases. Under the Fourth Amendment, private-sector employees have traditionally enjoyed Fourth Amendment protection in the contents of their offices, including in their office computers. The police can't just barge in to your office and rifle through your desktop computer. Instead, the police need either to get a warrant or to go your employer and ask for the employer's permission to conduct the search. But if private-sector employees have no reasonable expectation of privacy in the hard drives of their office computers, it means that the police don't need to get the boss's permission first. The police can pick an office known to have a computer access policy and simply barge in and grab any computers they want. And they can do this even over the objection of all the employees and the boss. The boss might have a civil claim against the government, but the employee won't have any rights at all; under the Ziegler opinion, the employee has no reasonable expectation of privacy in the contents of his computer.

  The Supreme Court created a special framework for public-sector searches because in that context there's no Fourth Amendment difference between the boss and the police: they're all "the government" for Fourth Amendment purposes. But I think it's important not to let that different framework created for the specific needs of public-sector workplaces bleed over into the private sector. As tricky as these doctrinal distinctions are (and they really are pretty tricky, I think), a great deal of privacy protection hinges on keeping them straight.
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Scott Adams's Parenting Advice:

As a novice parent--Claire celebrates her first birthday in just two weeks--I am always attuned to parenting advice. Scott Adams provides his response to why his kid can't have two video games from the store (via Joe Malchow).

Which brought to mind the classic Old Testament Guide to Parenting. I'm sure many of you have seen this before, but for those who haven't, I still laugh whenever I stumble across it.

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Nice Present for Incoming or Returning Law Students:

I thought I'd take the liberty to pitch again my Academic Legal Writing: Law Review Articles, Student Notes, Seminar Papers, and Getting on Law Review (2nd ed. 2005), as a nice back-to-school present for your law student friends or relations (or for yourself):

  1. First-year students can use it to help them get onto a law journal, and can also use some of the tips in the Writing section for their first-year writing class.
  2. Second-year students can use it to write a law journal note.
  3. Both second-year and third-year students can use it to write seminar papers, and to do independent writing projects.
You can find reader reviews at amazon, and some other unsolicited messages from readers here. Here are a few more than have come in since then:

Matt Carlson: "Your Academic Legal Writing book is excellent — I read it before trying out for law review recently and found it to be extremely helpful. I am happy to say that I made the law review as a 1st year staff member, and will definitely continue to use your book in writing my articles this summer."

B.A. Cooper: "Last Fall, I approached one of my professors, and told her that I was interested in academia, and that I would like to begin my legal writing career immediately. She told me, in no uncertain terms, that your book 'Academic Legal Writing' was a must. I ordered a personalized copy soon after that, and I am happy to report that my first article has already been accepted as an 'essay' in the upcoming Fall issue of the Regent University Law Review. I just wanted to say thank you for providing such a wonderful resource." Update some months later: "[P]erhaps in part part because I was published as a first year student, I have now been accepted to the University of Texas as a transfer student. In addition, my most recent article has made it past the initial screening at [a well-regarded specialty journal], and will soon be peer reviewed .... So thanks again for your book!"

Steven R. Obert: "Thank you for the legal writing and publishing advice contained in your book. I followed it exactly, and recently found out that my paper, 'Public Prayer in the Navy: Does It Run Afoul of the Establishment Clause?' will be published in the next issue of the Naval Law Review."

Jason Watson: "I was just writing to let you know how helpful your book on academic writing has been. I'm a 1L at Valparaiso Law and we have our case comment assignment approaching, as well as Law Review tryouts after finals. My writing teacher ... recommended your book and, being a dedicated fan of the website, I picked it right up. It's been a great resource, I wish I'd had it while writing my Appellate Brief. I hope I'm the only one here at Valpo to get it, I NEED an edge to get on Law Review!" Update some months later: "I made Law Review. I'm sure your book played a big part. I wrote on, too, which I'm strangely proud of. I'm in the top third of my class but my grades didn't get me the spot."

Roman Goldstein: "Allow me to thank you for writing an excellent chapter on how to make law review. True, I think it's especially excellent because I followed your advice and made law review. But even had I not made law review, I would have thought the chapter was good: you provided a road map that made the competition manageable and even enjoyable. Also, I'd like to thank you for demystifying a bit of law school. Too much of law school is hide-the-ball, especially when it comes to grades and exams. Your chapter on law review (and indeed the book as a whole), on the other hand, made the expectations and objectives of the competition clear. I will of course use your book when I write my note."

Guy Carmi: "I read and implemented your tips in your 'Academic Legal Writing' book. I got more than 20 offers ... [and] finally accepted offers from the University of Pennsylvania Journal of Constitutional Law and the Oxford University Comparative Law Forum, also thanks to your tips regarding copyright management of the piece. This is going to be my third publication, but I feel that had I read your book earlier, I could have done better with the two previous pieces. I simply felt a need to thank you personally for the indispensable advice you share in your book."

The book should be available from amazon. Make sure you order the Third Edition (that's the link to which I just pointed). For the Third Edition, the publisher is no longer sending me author's copies for signing and resale; but if you'd like me to send you a free personalized bookplate (basically just a label) to be pasted inside the book, just e-mail me at volokh@law.ucla.edu and tell me (1) the name and address to which you want the bookplate sent, and (2) the inscription you'd like me to use.

The book should be available from Legal Books Distributing and from amazon. You can also get a personalized copy from me; the publisher was good enough to send me a few dozen. Just send to volokh@mail.law.ucla.edu a paypal draft for $27.99, which is what amazon charges (given the cover price and shipping). Please include (1) the name and address to which you want the book sent, and (2) the inscription you'd like me to use. Or, if you prefer snail-mail, just send a check and those two all-important pieces of information to:

Eugene Volokh
UCLA School of Law
405 Hilgard Ave.
Los Angeles, CA 90095

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Hey, I Published First!

CNN reported in May:

It's a question that has baffled scientists, academics and pub bores through the ages: What came first, the chicken or the egg?

Professor John Brookfield, a specialist in evolutionary genetics at the University of Nottingham, told the UK Press Association the pecking order was clear....

The living organism inside the eggshell would have had the same DNA as the chicken it would develop into, he said.

"Therefore, the first living thing which we could say unequivocally was a member of the species would be this first egg," he added. "So, I would conclude that the egg came first."

The same conclusion was reached by his fellow "eggsperts" Professor David Papineau, of King's College London, and poultry farmer Charles Bourns.

Well, that learned journal The Volokh Conspiracy actually published the same results a good two years earlier:

Which came first -- the chicken or the egg? People ask that as if it's the quintessentially unanswerable question. But of course the answer is clear: The egg.

Why? Well, here's the literal solution: There were eggs -- for instance, dinosaur eggs -- long before there were chickens. QED.

Enough of these lawyer tricks, Volokh, you say. Of course the question means "Which came first -- the chicken or the chicken egg?" (where "chicken egg" means an egg containing pretty much the same genes that an adult chicken would have).

Well, then we have the biological solution: A chicken egg will always produce a chicken, since species changes happen at the time of conception, not at the time of birth. If the genes in the fertilized egg made it a chicken egg, then it will produce a chicken. But two non-chickens could produce a chicken egg. That's the way species change operates -- the mixing of genes from two individuals, likely coupled with mutation and other genetic changes, produces an individual with a new genetic pattern that can be said to belong to a new species.

Of course, this is something of an oversimplification: Species change probably can't be delineated this precisely ("previous generation, nonchickens; this generation, chickens"). But the question itself assumes that we can somehow distinguish chickens from nonchickens, and that some change will be treated as being enough to make the resulting organism into the first chicken. Biology tells us that this change, whatever it is, will only happen at the time the egg is produced, not at the time the chicken is produced (i.e., the egg is hatched).

But doesn't that assume the truth of the theory evolution, some might ask? If that bothers you, I propose a religious solution: In my experience, most creationists are also pro-life -- in which case, the egg is a chicken.

Beat you to it, Dr. English Professor Sir.

Thanks to David Smallberg for alerting me to the Johnny-come-latelies.

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Domesday Book Online.

Cool.

Thanks to Glenn Wright Bowen for the pointer.

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Tuesday, August 8, 2006

More Lebanon Media Notes:

I've got to hand it to Howard Kurtz and CNN's Reliable Sources. This weekly program has by far provided the best insight into press coverage of the Israel-Party of God conflict that I've seen (e.g., see this post). On this week's program:

(1) Party of God threatens to kill reporters. Richard Engel of NBC news admits:

"They've not tried to stop us filming other events while we're in the field, but they have, on several occasions, threatened reporters here in Tyre, south Lebanon. From the location where we're standing right now, we've been able to see, today and on other days, outgoing Katyusha rockets. And on more than one occasion people from Hezbollah have come and said, "Do not film the locations of these rockets when they're being launched."

At one time, when we were talking and having a conversation with this Hezbollah representative, he said, "Look, we're serious, we will kill you if you film these outgoing rockets." So it is a threat, but when we've been out in the field, we've not had situations where they told us to stop filming.

Combine that with previous coverage (see link below) that the Party of God has been taking the media on controlled tours of damaged areas, and also that "The Party of God has a copy of every journalist's passport, and they've already hassled a number of us and threatened one," and a picture of an intimidated, at-least-somewhat controlled media in Hezbollahland begins to emerge.

(2) The only "compelling stories" in Lebanon involve besieged civilians. Engel again: "There are very few people left in the villages now. The only people, when we went recently, and found were just young military-age men, most likely Hezbollah or Amal Party fighters. So it is difficult to continue to find compelling stories, but every day the conflict is changing." Terrorists, apparently, are boring, or, at least, are not willing to appear on camera.

(3) Prominent reporter susceptible to loony conspiracy theory. The Washington Post's Tom Ricks, author a bestseller on the Iraq war, shows a susceptibility to incredibly loony hypotheses when he claims that "according to some military analysts, ... Israel purposely has left pockets of Hezbollah rockets in Lebanon, because as long as they're being rocketed, they can continue to have a sort of moral equivalency in their operations in Lebanon." Governments do sometimes do crazy things, but this would be so against the Israeli ethos, and so hard to hide in a country with hundreds of thousands of reservists, most of whom are armchair (or real!) generals, that Ricks's repeating of this rumor tells us a lot more about Ricks than about what's going on in Israel. (For more on this story, see here).

(4) Repressed anger at the Party of God. Brett Sadler of CNN:

it's fair to say that many Lebanese have been exercising a form of political correctness here. In the interests of national unity they're trying to speak with one voice. That's why you're hearing the government rejecting, basically, the resolution, the draft resolution to end the conflict in a phase one resolution. But really now, people are beginning to talk out about the way the Hezbollah rocket fire and the eruptions of this conflict is destroying this country. I think we're going see far more people, if you like, coming out of the woodwork condemning those that don't agree with the Shia hard-liners, like those who don't support Hezbollah.

UPDATE: Party of God using hospital to fire rockets: Sonia Verma reporting in the National Post:

When Dr. Fouad Fatah emerged bleary-eyed from the ruins of his hospital during a pause in Israeli air strikes last week, it felt like the first time in forever. He counted himself as the last living soul in the five-room clinic, the only hospital serving this devastated swath of Lebanon's south. His surviving patients had already been evacuated. The surgeon led a group of journalists over what remained: mangled debris, shredded walls and a roof punched through by an Israeli shell. "Look what they did to this place," Dr. Fatah said, shaking his head. "Why in the world would the Israelis target a hospital?" The probable answer was found a few hours later in a field nearby. Hidden in the tall grass were the burned remnants of a rocket-launcher. Confronted with the evidence, Dr. Fatah admitted his hospital could have been used as a site from which to fire rockets into Israel. "What choice to we have? We need to fight back from somewhere," he said, tapping his foot on the ground. "This is Hezbollah's heartland." .... During a pitched battle in his village of Bint Jbeil last Thursday, the 48-year-old dentist watched from his kitchen window as Hezbollah fighters dragged a rocket launcher across the torn street in front of his house. A few minutes later, he heard four successive blasts. Kareem barely managed to cover his four-year-old son's ears before the rockets were fired. His own ears are still ringing. "Five minutes after they fired the rockets, the Israelis started bombing," he recalled from the safety of a shelter in Beirut."They are making us magnets for the Israelis," he said. .... Anger boiled over last week when a shelter in Qana was hit, killing 29 people, most of them children. "What have they done to deserve this? Is this a military target?" wept Mohamad Chaloub, clutching the lifeless body of his daughter. Local officials said there were no weapons or rockets in the house where the children slept in Qana, no warning before the bomb fell. But the next day, the same Lebanese Red Cross team that dug out the children's bodies stumbled across the shreds of more rocket launchers in a village nearby. One was found deep inside a fruit orchard. Another was found wedged between two houses.

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Another Death Penalty Division on the Sixth:

Today the U.S. Court of Appeals for the Sixth Circuit affirmed a district court's denial of a capital defendants petition for post-conviction relief under Section 2254 in Slagle v. Bagley. As we've come to expect on the Sixth, the panel was divided. Judge John Rogers wrote the majority opinion, joined by Chief Judge Danny Boggs. Judge Karen Moore dissented.

Defendant Billy Slagle was convicted of the aggravated murder of Mari Anne Pope.

Slagle broke into his neighbor Pope’s house on August 13, 1987, because he wanted to steal something for the following day’s drinking. Pope was babysitting two neighborhood children. Ultimately, Slagle went into Pope’s bedroom and, after she woke up, stabbed her seventeen times in her chest with her sewing scissors. The two children escaped, called for help, and identified Slagle. The police found Slagle at the scene holding the bloody scissors, and Slagle later described his actions that night indetail. Although Slagle admitted at trial that he killed Pope, he argued that, due to his voluntary intoxication from alcohol and marijuana, he did not have the requisite intent for aggravated murder. The jury, nevertheless, sentenced him to death for aggravated murder.
The primary issue in the case was whether Billy Slagle's death sentence should be overturned due to prosecutorial misconduct. In particular, Slagle argued, the prosecutor's repeated improper statements prevented him from receiving a fair trial. According to the majority opinion, the issue was not whether the prosecutor made improper statements, but whether the statements "so infected the trial with unfairness as to make the resulting conviction a denial of due process." A prosecutor's improper actions should not void an otherwise valid verdict if the trial was fair despite the prosecutor's misconduct. This is particularly so where the evidence of the defendant's guilt is sufficiently strong that the prosecutor's actions are unlikely to have affected the outcome. Judge Moore, on the other hand, thought the prosecutor's improper statements were sufficiently pervasive to render the trial fundamentally unfair, despite the strength of the evidence against Slagle.

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Who Killed the Electric Car?

Professor Bainbridge has an idea. Hint: It wasn't General Motors.

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Plagiary -- "Cross-Disciplinary Studies in Plagiarism, Fabrication, and Falsification" --

a new online scholarly journal. Here's the call for papers:

Areas of Research Represented: Call for Papers

A refereed online journal, Plagiary features research articles and reports addressing general and specific issues related to plagiarism, fabrication, and falsification. Authors are invited to submit papers for publications consideration in the following areas:

Discipline specific misconduct (i.e. journalism, history, science . . .)

Controversial decisions and pending decisions/litigation

Historical instances and views

Development of modern conventions for referencing and source acknowledgement

Popular genres of discourse

Literary traditions and conceptualizations of plagiarism

Legal issues (i.e. copyright infringement, federal regulations)

Case studies (modern or historical; inter-/intra-lingual)

Plagiarism/fraud detection and prevention

Pedagogical approaches and student perspectives at the university level (cheating & academic integrity)

Technical reports on related phenomena (i.e. cryptomnesia)

Correlations of plagiary with other forms of fraudulent behavior and scholarly misconduct

Other topics of clear relevance to the study of plagiary, fabrication, and falsification (i.e. mimicry, parody, forgery . . . )

Book reviews

Responses to published articles

Launch Date: January 2006. Papers accepted for publications consideration on an ongoing basis. Initial queries to the Editor are welcome.

Here are the current articles (links to the full text here):
Cases of Plagiarism Handled by the United States Office of Research Integrity 1992-2005, by Alan Price

The Google Library Project: Both Sides of the Story, by Jonathan Band

Copy This! A Historical Perspective On the Use of the Photocopier in Art, by John A. Walker

On Campus: Author Discusses the "Cheating Culture" With College Students, by David Callahan Plagiarism Is Easy, but Also Easy To Detect, by Caroline Lyon, Ruth Barrett and James Malcolm

Bureaucratic Plagiarism, by Gavin Moodie

A Case of "Gray Plagiarism" From the History of the History of Computing, by Michael Davis

Love and Madness: A Forgery Too True, by Ellen Lévy

Did the U.S. Army Distribute Smallpox Blankets to Indians? Fabrication and Falsification in Ward Churchill's Genocide Rhetoric, by Thomas Brown

Thanks to Jim Paine for the pointer.

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ABA House of Delegates Passes "Diversity" Accreditation Standard That Requires Law Schools to Act Unlawfully:

[Readers can find most of my previous posts on this issue, which contain lots of background information, here and here.]

The Federalist Society's Barwatch Bulletin reports from the ABA's annual meeting in Honolulu:

Recommendation 106B, concerning revisions to Standards 210-212 regarding diversity and legal education, generated considerable debate. Jose Garcia, representing the Section of Legal Education and Admissions to the Bar, opened discussion by heralding the merits of the proposal: "Fostering diversity in legal education is a core goal and value of the ABA and this section for many years. Indeed this Association and this section is at the forefront of the effort. The commitment to law school diversity represents a broad consensus expressed in legal education and higher education generally regarding the educational value of diversity in the classroom." According to the sponsor, the U.S. Supreme Court has recognized the importance of diversity in Grutter vs. Bollinger. Law schools in some circumstances would be permitted to use racial standards in admissions in the context of the law the Supreme Court has used. The sponsor noted that it considered input from many sources. One amendment was made in June 2006. Revised Standard 211 proposed law schools demonstrate by concrete action a commitment to having a student body that is diverse with respect to gender, race and ethnicity. Law schools would have latitude in this commitment in taking into account their individual characteristics such as their geographic location. Furthermore, if an educational institution is to be successful in enrolling a diverse student body, it must also have a diverse faculty and staff. [Editor: Note that Standard 211's binding interpretation states that law schools will explicitly be judged by "results;" that there is nothing in it about geographical considerations, that there is nothing in Grutter that allows racial preferences for faculty or staff to help recruit students; and that Grutter allows law schools in the exercise of their academic freedom, not the ABA, discretion in whether and how to use preferences--if a law school uses preferences only to satisfy the ABA, it is violating Grutter.] He stated, "Faculty and staff diversity enhance classroom discussion and better prepare students to be professional."

A Wisconsin State Bar delegate questioned the terminology of Section 211. He inquired whether the mandatory language of 211 raises ambiguity. He suggested that the ABA should question whether it is proposing something that violates the rule of law. He moved that Statement 211A and 211B be referred back to the Section of Legal Education and Admission to the Bar as the 'mandatory language as drafted raises an ambiguity as to whether or not the standard complies with the Grutter requirements."

Immediate past president Robert Grey spoke in opposition to the referral. He stated, "We are faced with the responsibility of drafting the accreditation standards and do so in a matter that you will see it in fact encourages compliances with the Supreme Court. It uses the wording [of the Supreme Court’s decision] for law schools to promote diversity [Editor: No, it doesn't. It says that law schools, "consistent with Grutter," may use preferences to promote eqaul opportunity, not just for "diversity," which is contrary to Grutter]...[T]he language that they have adopted comes as close as you can expect it to come."

... The motion to refer failed by a majority, though not unanimous, vote.

The motion to concur in the action of the Council was adopted.

As my editor's notes suggest, the ABA is continuing a pattern of at best disingenuous and at worst blatant dishonesty about what its new standard does, and how it relates to Grutter. Look for several developments now:

(1) Almost certainly, someone is going to sue. I don't know who, and I don't know what the theory will be, but not only have several conservative groups been up in arms about this, but many law school deans would welcome such a lawsuit to stop the ABA from forcing them to admit "diversity" students with LSATs way, way below the law school's median.

(2) The federal Department of Education put off reaccrediting the ABA as the official body that decides which law schools are eligible for federal programs such as student loans, pending a vote on Standard 211. It will be interesting to see what the Department of Eduation will do.

(3) The U.S. Civil Rights Commission (which has no enforcement authority) will come out with a report on Standard 211 soon.

(4) Most important, I think the ABA may have just cost pro-affirmative action forces their victory in Grutter. Grutter, of course, was a 5-4 ruling in favor of allowing "diversity" admissions higher education. Justice O'Connor's deciding vote was based on the view, first articulated by Justice Powell in Bakke, that courts should give leeway to academic institutions to engage in affirmative action when those institutions believe it to be essential for educational reasons. The reaction of the establishment institutions, such as the ABA (among others), to Grutter has not been to allow, or even encourage universities, in their exercise of academic freedom, to use racial preferences to admit a diverse class. Rather, it's been to try to force all academic (and other) institutions to use preferences, regardless of whether any particular institution thinks it's valuable, irrelevant, or, as in the case of many law schools that see most of their minority students never passing the bar, completely counterproductive.

Next term, the Supreme Court will reconsider Grutter in two affirmative action cases arising at the grade school level. The choice can no longer honestly be presented as either requiring race-neutrality or merely allowing preferences under limited circumstances. Rather, and unfortunately, the choice, in practice, is between forbidding preferences on the one hand and allowing quasi-governmental actors like the ABA (which has government-sanctioned authority over who gets to take the bar) to require everyone to engage in preferences on the other. I don't think even O'Connor would have voted for the latter, and I seriously doubt that Justice Alito will.

22 Comments
Ex-Atheist Larry Darby Accepts God and Jesus. Jews? Not So Much:

Larry Darby — who got 43.5% of the Democratic primary vote for Alabama Attorney General, though I hope because of voters' lack of knowledge rather than enthusiasm for the views I describe below — seems to have had a conversion on the road to Malibu.

His views about Jews (also Zionists and Israelis, but in the context of his statements about Jews, it seems hard to deny that the criticism of Zionists and Israelis is pretty closely linked to his views about Jews) seem the same as before:

Whether the [9/11] attacks were planned or caused by Muslims or, as some evidence and logic suggest, by Israelis and disloyal Americans in high positions of government, the motivation for the attacks surely had a religious nexus ....

[I]nsidious forces are at work destroying the remnants of the Framers’ Republic and even our national memory or history of our forefathers and their achievements. Currently, these societal forces or their work product are variously referred to as political correctness, cultural diversity or multiculturalism, all of which are ways to describe the foreign ideology (or its effects) that has always threatened our nation. This ideology is now popularly called Neo-Conservatism and is primarily advocated by Zionists, including Christian Zionists or evangelicals who promote the interests of Israel to the detriment or destruction of the United States and the influence of the posterity of the Framers.

Neo-Conservatism is an outgrowth of a form of Communism called Trotskyism, named for Leon Trotsky, the alias of Lev Bronstein, who was one of the several Jewish masterminds of the 1917 October Revolution that led to the establishment of the Soviet Union. Communism employs socialist ideas of another Jew, Karl Marx, who is known as the founder of modern Communism. The related terms of Marxism, modern Communism, Neo-Conservatism and Zionism are rooted in the Old Testament and Talmud, wherein Jews are deemed to be the master race and to whom Gentiles are to be submissive.

Every U.S. president since Jimmy Carter effectively has made Jewish Supremacism a rule of law by way of “Education Day” proclamations that are based on congressional resolutions that advance the Noahide Laws, Jewish laws that subjugate Gentiles to Jews; Carter also began the tradition of the lighting of the United States “National Menorah” even though Jews allegedly comprise a very small percentage of the U.S. population. Such actions impose foreign ideology on citizens as a matter of law and usurp the authority of the U.S. Constitution.

Other aspects of Jewish Supremacism advanced by powerful government officials or condoned by the federal government that were challenged by the Atheist Law Center include the placement of Jewish idolatry in government buildings and the reciting of prayers to a [nameless] god or moments of silence in government schools, all of which are consistent with the de facto establishment of Judaism as our national or state religion.

Regarding Jewish idolatry, the Atheist Law Center consistently spoke against Chief Justice Roy Moore’s efforts to maintain a monument to Jewish law in the rotunda of the Alabama judicial building in Montgomery....

Consistent with its activism in opposition to Communism or Neo-Conservatism and Jewish Supremacy, the Atheist Law Center also challenged the taboo in Alabama and the United States that thou shalt not question the marvelous or incredible tale that Six Millions Jews were systematically exterminated by Adolf Hitler or the German Third Reich, 1933-1945....

The Atheist Law Center hosted [David] Irving at the Prattville Holiday Inn on July 6, 2005. Attendees heard first-hand from the foremost authority on the Third Reich and author of “Hitler’s War.” Mr. Irving is a genuine historian in that his works are based on original research of documents and interviews with persons who actually knew and worked for Adolf Hitler or the German government or otherwise had first-hand knowledge of the subject matter, as opposed to the recycling of oft-unverifiable assertions put forth as history and recycled by conformist historians that serve the preeminence of Jewry in the United States and elsewhere.

Agents of Judeo-Marxism or enforcers of the politically correct version of the Holocaust and other Jew-related taboos ....

Contrary to expectation, many atheist member organizations or many groups that allegedly represent free thinkers were quick to jump on the Judeo-Marxist bandwagon and dissociate themselves from me, simultaneously demonstrating hypocrisy or rejection of principles of freedom of religion and freedom of speech or freedom to criticize the religion of Judaism. To put it another way, those groups hold that it is OK to criticize Christianity but not Judaism or its influences on American society. The Atheist Law Center held no such sacred cows or taboos....

[Various incidents of] yellow journalism and malicious attacks [details omitted -EV] are just a few examples of how the media or press really works, as described in the Protocols of the Learned Elders of Zion (Marsden translation from the Russian of Nilus, 1934): “[The press] serves to excite and inflame those passions which are needed for our purpose or else it serves ends of parties. It is often vapid, unjust, mendacious, and the majority of the public have not the slightest idea what ends the press really serves.” ...

But here's the kicker, in the last paragraph:

I no longer categorically deny the existence of God. My views have changed based on experiences or understanding of the world around me. I appreciate the wisdom of Thomas Jefferson who, in the Declaration of Independence, spoke of the laws of nature and of nature’s God. I agree with moral precepts put forth by Jesus of Nazareth and I am Christian in a sense that Jesus of Nazareth would approve.

I should certainly hope that Jesus of Nazareth would not approve of some of Mr. Darby's quite vocally announced moral precepts, though I regret to say that there are some who do not share my view. Thanks to David Weinstein for the pointer.

The human comedy is an endless source of amusement. If Larry Darby didn't exist, we'd have had to invent him. Oh, wait -- I shouldn't have said that ....

12 Comments
Listing Bird Induces Cutting:

One of the perverse effects of the Endangered Species Act is that it encourages private landowners to make their land inhospitable to potentially endangered species. This effect is well known (as I've written about here and here). Further evidence comes from Boiling Spring Lakes in North Carolina as reported in the News-Observer:

Since word got around this spring that owners could face problems selling land or building houses where the birds lived, people have been rushing to clear undeveloped lots of pine trees and yanking the woodpecker welcome mat.

More than anywhere else in North Carolina, Boiling Spring Lakes is a place where the coastal development boom and the federal Endangered Species Act have collided.

"People are just afraid a bird might fly in and make a nest and their property is worth nothing," said Joan Kinney, mayor of Boiling Spring Lakes in Brunswick County. "It is causing a tremendous amount of clear-cutting." . . .

The urgency for those clearing lots is that federal wildlife officials are drawing a new set of woodpecker nest maps, due any day. The revised maps will increase the identified woodpecker nests from about 15 to 25 and will greatly expand the number of lots where clearing or tree removal is restricted or banned without federal review. . . .

Lea Anne Werder, a real estate agent, said the woodpeckers had scared off several interested land buyers, and she'd lost two sales.

"I have a client whose property I listed," Werder said. "That was two weeks before we knew anything about the woodpeckers. It so happened that it had an active nest in the middle of it. He was told he wouldn't be able to develop his property. He yelled and screamed and called Fish and Wildlife to complain. Until they get this issue resolved, it's basically worthless."

Werder said there still is property in town for people who are ready to build a house, but that buying property as investment in certain areas is more risky until the issue is settled.

Bonner Stiller, a state lawmaker from Brunswick County, has owned a pair of lots as an investment here for more than 20 years. He cleared them recently. Stiller said he was sorry to lose the trees but wanted to protect his investment.

"You had to get in line to get somebody with a chain saw," Stiller said. "I have not a single pine tree left. Folks around here are terrified of the prospect of losing their property. That causes people to get out there and find out what they can do to protect themselves."

Related Posts (on one page):

  1. More on ESA-Induced Habitat Loss:
  2. Listing Bird Induces Cutting:
25 Comments
Jesse Lee Williams Case Update:

The Sun-Herald reports more details on the plea agreement Regina Rhodes made with federal prosecutors concerning her role in the beating death of Jesse Lee Williams, Jr. while he was in the custody of the Harrison County, Mississippi sherriff's department.

Regina Lynn Rhodes, 29, faces up to 13 years in a federal prison and a $500,000 fine for violating the civil rights of Jessie Lee Williams Jr. under color of law and withholding information. She will be sentenced Oct. 16 at 9 a.m. by U.S. District Judge Louis Guirola Jr.

Rhodes pleaded guilty Monday, admitting she injured Williams on Feb. 4 with repeated blows to his neck, back and legs while he was restrained in the jail booking room.

Her admission of guilt came through a plea agreement, read in court, which also states she failed to mention the use of unnecessary force in a report the next day and then lied to state and federal investigators during interviews on Feb. 8 and June 19. Rhodes was fired, her resignation effective April 11.

The plea agreement, dated July 26, documents Rhodes' claim that an unnamed deputy in a supervisory position and other corrections officers "regularly encouraged other corrections officers" to assault inmates "in circumstances that did not justify use of force." The agreement also claims the jailers "submitted false, incomplete and misleading jail reports" to cover up the incidents and that while Rhodes was aware of their actions, she failed to report them.

A copy of the plea agreement is available here.

Related Posts (on one page):

  1. Interesting Developments in Williams Case:
  2. Jesse Lee Williams Case Update:
  3. Show Us the Tape:
1 Comments
Fraudulent Claims in Mass Tort Litigation:

Writing in the N.Y. Sun, AEI's Ted Frank notes that of the eleven Vioxx trials so far, there is reason to at least suspect that plaintiffs were untruthful about their exposure to Vioxx in five of them. Fraudulent claims in mass tort litigation have ample precedent, as in the fen-phen settlement, and the silicosis litigation, the latter of which had a strong precedent in the asbestos litigation.

33 Comments
Is it Appropriate to Hold a Class Lecture at an Ideological "Teach-In"?

No, it's not. Is there a plausible argument on the other side? This issue arises from an article about the feud between Joel Beinin and David Horowitz:

[Horowitz] is incensed that in 2003 Beinin held a class lecture at a "teach-in" against the Iraq war in Stanford's quad. The lecture that day on the Gulf War happened to be relevant, Beinin said, but was "definitely an act of solidarity with the teach-in." "This is as close to the line of putting politics in the classroom that I've ever done," he said. "I don't hide my opinion."

But I don't think the issue here is whether, or to what extent, a professor should hide or express his opinion in class. The question is whether it's appropriate to require students to attend an ideological event to see the professor's own scheduled class lecture. Put another way, Beinin may not have put politics in the classroom, but he put the classroom in politics.

31 Comments
Bush v. Federalism (Again) - Expanding Presidential Power Over the National Guard:

Both Republican and Democratic Governors are opposing a provision in a Bush Administration-supported appropriations bill that would greatly expand presidential power over the National Guard, as the Washington Post explains here:

The nation's governors on Saturday launched a bipartisan drive to block a move to expand the president's authority to take over National Guard troops in case of natural disaster or homeland security threats.

At a closed-door luncheon on the opening day of the annual summer meeting of the National Governors Association, the chairman, Arkansas Gov. Mike Huckabee (R), told colleagues that a provision in the House-passed defense authorization bill would end the historic link between the states and their Guard units.

Huckabee and the association's vice chairman, Arizona Gov. Janet Napolitano (D), plan to ask all the governors at the session to sign a letter of protest Sunday aimed at killing the provision when House and Senate conferees meet next month on the bill.

Huckabee told reporters that the move to shift control of the Guard to the president during national emergencies "violates 200 years of American history" and is symptomatic of a larger federal effort to make states no more than "satellites of the national government."

Iowa Gov. Tom Vilsack, the senior Democrat, called the proposal "one step away from a complete takeover of the National Guard, the end of the Guard as a dual-function force that can respond to both state and national needs....."

Under the provision, the president would have authority to take control of the Guard in case of "a serious natural or manmade disaster, accident or catastrophe" in the United States.

Huckabee said he does not know if President Bush wants that authority, but said "the administration is supporting this."

For the text of the National Governors' Association official letter to Congress opposing this provision, see here.

As I have pointed out in my forthcoming article on the Raich medical marijuana decision, the Bush Administration has promoted numerous initiatives to expand federal power at the expense of the states, including in the No Child Left Behind Act, the Federal Marriage Amendment, the Terri Schiavo case, assisted suicide, medical marijuana, and other policies. This has caused a number of liberal academics, pundits, and politicians (see the article for cites) to rethink their traditional support for a high degree of political centralization. The opposition of liberal Democratic governors to Bush's plan to expand federal control of the National Guard is an extension of the trend.

There are two key questions about the Administration-supported plan to expand federal authority over the National Guard: is it constitutional, and is it a good policy?

The first question is easier to answer. Under Gonzales v. Raich, Congress' constitutional power to regulate "Commerce . . .among the several States" has been interpreted to include virtually any activity that has even a remote connection to or effect on the national economy (detailed explanation in my article linked above). The National Guard surely has substantial economic effects, so Congress has the right to regulate it under Raich.

What if, however, you believe as I do that Raich was wrongly decided? Congress probably still has the power to enact this legislation, but the answer is less clear. Article I, Section 8, Cl. 15 of the Constitution gives Congress the power "To provide for calling forth the militia to execute the laws of the union, suppress insurrections and repel invasions." Section 8 Clause 16 gives Congress the power "To provide . . . for governing such part of the [militia] as may be employed in the service of the United States," which presumably includes the power to put them under presidential control.

Dealing with a "serious natural or manmade disaster, accident or catastrophe" does not count as suppressing insurrections or repelling invasions. It often will, however, involve "execut[ing] the laws of the union," as any "serious" disaster is likely to be accompanied by lawlessness of the type that we saw last year during Hurricane Katrina. To be sure, most of the crimes that occur in the wake of natural disasters are likely to be state rather than federal offenses (e.g. - the looting and assault that occurred in the first few days after Katrina). Enforcing these laws does not count as "executing the laws of the union," which refers to federal law. In practice, however, a mass outbreak of lawlessness over a wide area is likely to involve violations of federal law as well as state law. For example, looters might damage federal property, interfere with the delivery of the U.S. Mail, and so forth. Thus, I tentatively conclude that the proposed National Guard bill is likely to be Constitutional, at least as applied to most real-world "serious natural or manmade disasters."

Is it, therefore a good idea? On that score, I have serious doubts. Presidential control over National Guard units engaged in combat makes good sense in the case of an attack by a foreign enemy, since it is important for all our forces to be under a unified command. As the text of the Constitution suggests, it also makes good sense in the case of large-scale "insurrections," especially if local authorities actually support the rebellion (as during the Civil War) or if they are using the National Guard to obstruct the enforcement of federal law (as when John F. Kennedy nationalized the Alabama Guard to prevent Governor George Wallace from using it to obstruct desegregation). Finally, presidential control may be preferable to state control in cases where a natural disaster effects a large number of different states simultaneously; if state governors are left in control in such a situation, each will prefer to keep his Guard troops in his own state rather than allocate them to where they may be most needed.

In the case of a disaster that primarily affects just one state, or a small number of neighboring states, however, the case for presidential control is much weaker. State governors have stronger incentives to address such local disasters effectively than the president does and they are likely to be more familiar with local conditions. Mishandling a major natural disaster within his own state will be politically very costly to a governor, while similar mistakes will have much less impact on the president's political career, since most of his constituents will not be affected, and in any event the public judges presidents on a much wider range of issues than governors.

Things are a bit more complicated if the disaster affects 2 or 3 neighboring states rather than just one. However, in such cases neighboring state governments will have strong incentives to make joint plans ahead of time in order to optimize the use of their resources. Unlike in cases where a large number of states are involved, transaction costs and negotiation costs are likely to be relatively low, or at least no higher than those imposed by federal control.

A final troubling aspect of the National Guard provision before Congress is that it seems to leave it up to the president himself to decide what counts as a sufficiently "serious" disaster to justify federalizing the Guard. This makes it all too easy for the president to declare the existence of a "disaster" on the basis of flimsy evidence and then take control of Guard units in order to punish state governments who oppose his political agenda. To be clear, the danger is not that the President would use the Guard to attack state governments militarily, but that he could use control of the Guard as a political weapon in order to force states to adhere to his agenda or risk losing control of their Guard units.

If you are a liberal Democrat, would you really want President Bush to have this power? If you are a conservative Republican who believes that Bush wouldn't abuse such authority, ask yourself how you would feel about Hillary Clinton having the same power if she gets elected president in 2008.

For these reasons, I think that the measure goes too far, even though it is probably constitutional. It is also unfortunate that it is part of a broader pattern of subordinating federalism concerns to advance the Administration's political agenda. In this case, unlike most of the others, Bush's policy is under attack from many in his own party, and hopefully that will persuade him to desist.

UPDATE: Some commenters claim that the National Guard is not part of the state "militia" referred to in Article I, Sect. 8, Cl. 15-16 of the Constitution and is a purely national armed force subject to unlimited federal control. I don't think that this correct. In Perpich v. Dept. of Defense, 496 U.S. 334, 339 (1990), the Supreme Court recognized that National Guard units "maintain an identity as . . . part of the militia described in Art. I, § 8, of the Constitution." For a detailed discussion of the legal status of the Guard, see here.

UPDATE #2: I fully recognize that part of the motivation for this proposal is the reality of state and local government failure in Louisiana during Hurricane Katrina. I have blogged about some of those failures here. On the other hand, President Bush and the federal government also made numerous mistakes. Moreover, state and local officials in Mississippi (which was also hit hard by Katrina) seem to have performed reasonably well (see, e.g., here and here). While there was plenty of blame to go around during the Katrina disaster, it does not prove that federal control of the Guard during emergencies is preferable as a general rule.

26 Comments
Mixing Politics and Atheism:

I blogged recently about Larry Darby, the Alabaman atheist Attorney General candidate with strange views about Jews (not to be confused with the Malibu Catholic with strange views about Jews), and one of the commenters wrote:

It certainly seems that, whenever we mix politics and atheism, we get a lot of crazies, whether they're Americans or Communists. This candidacy might provide another excellent argument for the separation of atheism and state.

Oh, wait, that's not exactly what happened. Rather, I wrote that the "Official Presbyterian Publisher Issues 9/11 Conspiracy Book," a book written by a theology professor; and the ocmmenter wrote:

It certainly seems that, whenever we mix politics and religion, we get a lot of crazies, whether they're Christian or Muslim. This book might provide another excellent argument for the separation of church and state.

Both arguments, though, make about the same (low) amount of sense. There's little reason, to my knowledge, to think that the view that we're living under a "Zionist-Occupied Government" is distinctively or even disproportionately held by atheists; that one atheist holds it is hardly an argument against "mixing politics and atheism," however you define "mixing." Likewise, there's little reason to think that a conspiracy theory about the Bush Administration planning the 9/11 attacks is distinctively or even disproportionately held by religious people; that one theology professor holds it is hardly an argument against "mixing politics and religion."

I realize that one can come up with theories about why religiosity would correlate with various weaknesses of character or judgment. One can likewise come up with similar theories about atheism. Or one can suspect, as I do, that these theories, while not implausible, do not seem correct in practice.

But one way or another, "X is [religious/an atheist] who believes stupid thing Y or does bad thing Z, therefore that's a black mark against [religious people/atheists]" -- with zero explanation for why you think the religious or atheists are especially likely to do Y or Z (except that this one particular religious person or atheist happened to do it) -- is an argument that reveals more about the speaker than it does about the religious or atheists.

41 Comments

Monday, August 7, 2006

For Evidence Junkies--Rule 701 versus Rule 702:

United States v. Maher, (1st Cir. July 6, 2006).

A police officer testified based on his training and experience with numerous narcotics cases that a post-it note found in defendant's van contained a list of customers’ orders; was a "[d]rug distributors' way of being organized;" and that the number four written next to an individual’s name referred to "[f]our ounces of cocaine." The question on apeal was whether the officer's testimony needed to be qualified as expert testimony under Rule 702, or was lay opinion testimony under Rule 701. The First Circuit concluded that "Officer MacVane’s testimony, that based on his experience the Post-It notes were likely notes of drug orders and the number '4' referred to a quantity of the drug found in the van, did not cross the line to become expert testimony."

The problem is that Rule 701 allows opinion testimony as lay testimony only if the testimony is "rationally based on the perception of the witness," and "not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." Rule 702, meanwhile, defines expert testimony as including testimony by "a witness qualified as an expert by knowledge, skill, experience, training, or education." If anyone could look at the post-it note and determine what it meant, it's not at all clear why the testimony would be helpful to the jury, which could look at the note just as easily as MacVane. But the prosecutor in any event disclaimed that anyone could do this, and instead the testimony was admitted, as the court noted, based on his experience. [last two sentences were edited] But that means that when testifying regarding the contents of the post-it note, MacVane was testifying as an expert, and his testimony should have been subject to the much stricter standard of Rule 702.

The First Circuit basically misunderstands Rule 701, stating that it "is meant to admit testimony based on the lay expertise a witness personally acquires through experience, often on the job." Given that Rule 702 applies to experience-based testimony, and that the rules have been amended to ensure that there is no overlap between 701 and 702, I don't see how that can be so, though I acknowledge that there is some ambiguity in the Advisory Committee Note to the 2000 amendment to Rule 701. In particular, the ACN favorably cites a couple of cases in which the basis of "lay" testimony appears to be specialized knowledge based on experience--though even these cases create rather narrow exceptions, allowing business owners to testify regarding the value of their businesses, and drug users to testify regarding the identity of a drug. Assumedly, the average business owner or drug user is inherently qualified to testify on these matters, while the average cop, and perhaps even the average narcotics cop, is not qualified to testify regarding the meaning and significance of post-it note.

My own view, in any event, is that the text of the rules trumps citations in the ACN, and the Rule 701 properly applies only to testimony based on the perception of fleeing events that does not require the witness to apply specialized knowledge. Application of specialized knowledge from whatever source woud bring the testimony within the sphere of expertise. See D.H. Kaye, et al., The New Wigmore: Expert Evidence sec. 1.7 (2004). [In the case at issue, as a commenter below points out, the officer could testify to what was on the post-it notes and wheter, e.g., it looked like a phone number, but once he is applying his specialized knowledge to argue that this was all drug-related, that becomes a 702 issue]

Two asides: First, the First Circuit was making a "plain error" ruling, and given that standard, the decision is likely correct, even if the reasoning leaves something to be desired. Second, police officers seem to testify to some pretty preposterous things. Why are post-it notes "a drug distributor's way of getting organized," as opposed to either any disorganized person's way of getting organized, or, for that matter, just a note written on some yellow paper? Sometimes, a post-it is just a post-it. [Indeed, one advantage of applying Rule 702 to evidence like this is that the officer would have to explain to the judge how he gets from "post it note" to "this is how a drug distributor gets organized."]

21 Comments
"Official Presbyterian Publisher Issues 9/11 Conspiracy Book":

So reports Christianity Today:

The September 11, 2001, terrorist attacks were orchestrated by the U.S. government, according to a book to be released later this month by Westminster John Knox Press -- a division of the denominational publisher for the Presbyterian Church (U.S.A.).

Christian Faith and the Truth Behind 9/11: A Call to Reflection and Action is the third book on the subject by David Ray Griffin, a professor emeritus of theology at Claremont School of Theology who is also a well-published and prominent process theologian.

For more on the publisher, see here.

55 Comments
How the Internet May Help the Accuracy of Legal Scholarship:

As I mentioned last week, I've agreed to write a short essay on how the Internet might affect legal scholarship, and now I have to find something interesting to say (beyond, of course, what I've already written in my Scholarship, Blogging and Trade-offs: On Discovering, Disseminating, and Doing paper). My tentative thinking is to try to limit the question to how the Internet may help the accuracy of legal scholarship -- not necessarily by a vast amount, but at least in some measure. (I define accuracy broadly to focus on helping readers get an accurate view of the world; this can be done by making each article more accurate, by making it easier for readers to see rebuttals to an article, by making it easier for readers to check the article's assertion, and more. I'd be happy to find a clearer term than "accuracy" for this.) Here are a few thoughts I had:

  1. Unpublished sources can now be put online very easily, so readers of an article can check the sources themselves, and thus rely on the original sources rather than on the article's summary of the sources (which, even if accurate, is necessarily incomplete and often inherently misleading despite the author's best efforts). Perhaps law reviews should even insist on this, at least for most sources (setting aside occasional confidentiality or copyright worries), and make sure that the sources are kept in a fixed place so that readers won't need to worry about link rot.

  2. If unpublished sources are indeed put online, this may make authors more careful in their characterizations of the sources.

  3. A more ambitious idea: Now that articles are read mostly in printouts from online sources (whether WESTLAW and LEXIS, where they're just in text, or HeinOnline, where they look exactly like they do printed page), how about having those sources keep track of which later articles respond -- in whole or inpart -- to the article that's being printed or displayed, and link to those articles? Think of that as a Shepard's or a QuickCite for articles.

  4. A related idea: How about trying to develop a norm in which law review editorial boards welcome both corrections and responses to existing articles (or more often parts of the articles), and publish them in a way that anyone reading the original article will see that commentary?

In any event, that's just what I'm playing around with in my head -- I'd love to hear more thoughts that some of you might have along those lines. Thanks!

Related Posts (on one page):

  1. How the Internet May Help the Accuracy of Legal Scholarship:
  2. How the Internet Might Affect Legal Scholarship:
9 Comments
Show Us the Tape:

Radley Balko is outraged by the death of Jesse Lee Williams, Jr. while in the custody of the Harrison County, Mississippi, sherriff's department. Williams was arrested on misdemeanor charges. After his arrest, witnesses claim he was savagely beaten to death of department personnel. The account is quite sickening.

Apparently everything that happened to Williams was caught on video, as there are several cameras where Williams was beaten, but Balko reports tapes have not been released to the media or Williams family. There is no excuse for this. If the police did nothing wrong, they should release the tapes. Their refusal to do so after several months suggests that the tapes show police conduct the county would rather not reveal — or rectify, for that matter. According to Balko, no charges have been filed (though one deputy is no longer employed by the department).

Balko concludes: "If prosecutors held civilians to the same standards they hold police officers, my guess is that there would be a lot fewer people in prison." Sad to say, but if prosecutors held police to the same standards they hold civilians, there also might be more cops behind bars — and crooked, sadistic cops like those who allegedly killed Williams would no longer give honest, hard-working police officers a bad name.

UPDATE: It seems the feds are on the case. As noted in one of the comments below, the Sun-Herald is reporting:

A former Harrison County jailer's guilty plea today for her involvement in the beating of Jessie Lee Williams Jr. includes admission that a pattern of abuse existed at the jail and corrections officers have covered up other acts of unnecessary force.

Regina Lynn Rhodes, 29, pleaded guilty to depriving Williams of his civil rights under cover of law and concealing information about the Feb. 4 beating, which led to Williams' death. Rhodes, in a written statement of facts, also admitted she struck Williams on his neck, bag and legs while he was restrained in blows that caused bodily injuries.

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A Manatee Swims in the Hudson:

The New York Times reports:

Added to the chronicles of great beasts that have descended upon New York City in the year 2006 is one that is arguably the greatest of them all. A beast, upwards of 1,000 pounds and a cousin to the elephant, which dwarfs the coyote, the deer and the dolphin that preceded it. A beast that, at hundreds of miles north of its natural habitat, has most likely made the longest and most arduous journey among them. A beast, with a pudgy-nosed face and a sweet-potato-shaped body, that could even be considered cute: a manatee.

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International Law:

Eugene Kontorovich writes:

The most surprising aspect of international proposals for a ceasefire in the Israel-Lebanon conflict is their endorsement of Hezbollah's demand that Israel give it territory, known as the Sheba Farms, in exchange for a end to rocket attacks on Israeli cities. The merits of the proposal as a diplomatic measure are far from clear. What is certain -- and yet entirely neglected in the discussion of the issue -- is that the proposal violates bedrock norms of international law.

Nations cannot enlarge their borders through the use of aggressive force. There are no exceptions to this non-acquisition principle. The U.N. Security Council, the International Court of Justice, and America itself have consistently affirmed it. In the words of the General Assembly, "no territorial acquisition resulting from the threat or use of force shall be recognized as legal." Moreover, nations are forbidden from recognizing borders secured through illegal war....

I'm not an international law expert, so I can't speak to the merits of this point; but Kontorovich does know a good deal about the subject, so I thought I'd pass it along. If others have pointers to relatively detailed (even just with an op-ed level of detail) arguments to the contrary, please do post them in the comments.

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New York Times and Stand Your Ground Laws:

Yesterday's New York Times contained a very slanted article by Adam Liptak on states reforming their laws regarding self-defense. Below is a response to the article, written by my friend Don Kates:

Among the highly misleading things in this article is that the ordinary reader will probably never realize that the retreat rule has always been the minority rule in the U.S. So instead of a horrible earthshaking change taking place, all that is happening is that the legislatures of at most 15 states have adopted what was already the rule in most states.

(I say "at most 15 states" because it is quite possible that some of those states never had the retreat rule and only adopted the FL statute because they liked other aspects of it, not to make a substantive change in the law of homicide. Note also that buried away in a half sentence in the middle of the article is the disclosure that the retreat rule "has been eroding nationally through judicial decisions.")

Almost as misleading is the quotation in opposition to the law of comments by "Paul A. Logli, president of the National District Attorneys Association." (NDAA). Of course the NDAA opposes any law change that makes it harder to convict defendants – whether the change is justified or not. For instance, the NDAA vehemently opposes the Miranda rule, the 4th Amendment exclusionary rule, and any law change that would make it harder to impose the death penalty. But the Times vehemently supports those things editorially. So you can be sure that any supposed neutral news article it carried about those subjects would be full of quotes from law professors who agree with the Times, not to mention the National Legal Aid and Defender Association, i.e., criminal lawyers and public defenders. Did you see anything like that in this article?

Also misleading, or should I say flatly false, are the fact situations the article presents as being murder under the retreat rule but not under the majority rule or the new Stand Your Ground laws.

1. The garbage dispute – no difference!

The shooting victim claims he knocked on the shooter’s door because the shooter had reported his illegal conduct to the authorities. An angry confrontation ensued and the shooter closed the door. Apparently the victim continued pounding on the door so the shooter opened it and shot him.

If true, the shooting was equally illegal under the retreat rule, the majority rule or Stand Your Ground laws. Under all of them if someone breaks down your door you may shoot. Under none of them can you open the door and shoot someone who angrily pounds on your beyond which you a safe.

Note that there is also complete agreement under each rule if we assume the shooter’s story is correct. If you open the door to talk to someone who then tries to force his way in you may shoot unless it is clear that he cannot get in (e.g., a 110 pound woman tries to force her way into the home of a man who is 6' tall and weighs 185 lbs.)

2. The prostitute

Her story is that her elderly client pulled a gun declaring that he was going to kill her and then himself. She wrests the gun away from him and then shoots him rather than fleeing. Even under the retreat rule one is only required to retreat if ths is clearly possible. Under these circumstances she was privileged to shoot rather than run away taking the chance that this homicidally desperate man can jump on her and get the gun.

See also People v. Riddle, a case from a retreat rule state [47 Mich. 116, 649 N.W.2d 30, 2002]:

[this case upholds the retreat rule in theory but severely limits it. Facts showed that defendant was not attacked at all and court upholds conviction.]

"First, a person is never required to retreat from a sudden, fierce, and violent attack; nor is he required to retreat from an attacker who he reasonably believes is about to use a deadly weapon. In these circumstances, as long as he honestly and reasonably believes that it is necessary to exercise deadly force in self-defense, the actor's failure to retreat is never a consideration when determining if the necessity element of self-defense is satisfied; instead, he may stand his ground and meet force with force. That is, where it is uncontested that the defendant was the victim of a sudden and violent attack, the Court should not instruct the jury to consider whether retreat was safe, reasonable, or even possible, because, in such circumstances, the law does not require that the defendant engage in such considerations See Beard v. United States 158 U.S. 550, 564, 15 S.Ct. 962, 39 L.Ed. 1086 (1895), stating that the victim of a sudden and violent attack is "not obliged to retreat, nor to consider whether he could safely retreat...."

"Second, Michigan law imposes an affirmative obligation to retreat upon a nonaggressor only in one narrow set of circumstances: A participant in voluntary mutual combat will not be justified in taking the life of another until he is deemed to have retreated as far as safely possible. One who is involved in a physical altercation in which he is a willing participant--referred to at common law as a "sudden affray" or a "chance medley"--is required to take advantage of any reasonable and safe avenue of retreat before using deadly force against his adversary, should the altercation escalate into a deadly encounter.

"Third, regardless of the circumstances, one who is attacked in his dwelling is never required to retreat where it is otherwise necessary to exercise deadly force in self-defense. When a person is in his "castle," there is no safer place to retreat; the obligation to retreat that would otherwise exist in such circumstances is no longer present, and the homicide will be deemed justifiable. This is true even where one is a voluntary participant in mutual combat.

"The rules of self-defense as provided in Doe state the obvious: If it is possible to safely avoid an attack then it is not necessary, and therefore not permissible, to exercise deadly force against the attacker. However, one is never obliged to retreat from a sudden, fierce, and violent attack, because under such circumstances a reasonable person would, as a rule, find it necessary to use force against force without retreating. The violent and sudden attack removes the ability to retreat. Where immediate danger to life or great bodily harm is threatened upon the innocent victim, he "cannot be required when hard pressed, to draw very fine distinctions concerning the extent of the injury that an infuriated and reckless assailant may probably inflict." Brownell v. People, 38 Mich. 732, 738 (1878). As Justice Holmes reasoned in Brown v. United States, 256 U.S. 335, 343, 41 S.Ct. 501, 65 L.Ed. 961 (1921), "detached reflection cannot be demanded in the face of an uplifted knife." There, Justice Holmes concluded that "it is not a condition of immunity that one in that situation should pause to consider whether a reasonable man might not think it possible to fly with safety ..." Id., citing Rowe v. United States, 164 U.S. 546, 558, 17 S.Ct. 172, 41 L.Ed. 547 (1896).
(Footnote markers deleted. A Kopel article on the Brown, Beard, and Rowe cases is available here.)

3. The cabbie

His story is that after he got his passenger out of the car, the passenger pulled a knife. Obviously the cabbie was not required to partially turn away and try to get in his cab exposing his side and back to a stab wound. Nor need he have done that even if the passenger had not had a knife. Retreat is required only if it can be accomplished in complete safety.

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Ruling on "Plaintiff's Motion to Compel Acceptance of Lunch Invitation":

Read it here; it's pretty funny, especially footnote 4. Thanks to Brannon Denning (guest-blogging at Instapundit) for the pointer.

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Anecdotal Evidence of the Mood in Israel:

My father-in-law, who lives in Ramat Gan, Israel, is a leftist of longstanding. Over the years, he mostly has voted for Meretz (further to the left on foreign policy, in Israeli terms, than "McGovernites" are in American terms), sometimes for Labor. He hates Netanyahu, and perhaps his least favorite person in Israeli politics of all time is Ariel Sharon. He came to Israel from Iraq in 1950, part of a mass exodus of Jews forced to leave the country, but he has fond memories of his childhood there, and the many Christian and Moslem friends he had (though his grandfather was murdered in an anti-Semitic pogrom when he was little). He, like many Iraqi Jews, blame (without any hard evidence) Israeli agents for stirring up trouble for the Jewish community in his native land, leading to the ruination of the Jewish community. His favorite leisure-time activity in watching Arabic movies on satellite channels. Religiously, he is completely secular, and I've often heard him blame religion for most of the world's troubles.

In short, he's among the last people one would expect to be hawkish. Much to my surprise, however, he has been busily lambasting the Israeli government for timidity in its prosecution of the war against the Party of God: too much concern for world opinion, too much concern for civilian casualties among the Lebanese, too much reliance on air power. Of all things, he even expressed nostalgia for Ariel Sharon, stating that if he were around, Israeli forces would be on the outskirts of Beirut by now.

Why so bellicose? My own theory is that many in the West see Israel fighting a small, albeit well-trained and armed, group of "militants" who pose little military threat to Israel. Thus, Israeli actions are "disproportionate." Israelis, however, have been treated to months of hearing Iranian officials threaten to destroy the country, while at the same time pursuing nuclear weapons. These threats receive occasional play in the West, but, understandably, they receive much more prominent attention in Israel.

If Iran's proxy army in Lebanon is willing to indiscriminately kill civilians when Israel has no territorial or other dispute with Lebanon, Israelis believe that Iran itself would not hesitate, when the time came, to incinerate Tel Aviv, despite the lack of any extant dispute with Iran. If Israel doesn't display fortitude, and even a certain level of ruthlessness, in dispatching the Party of God, this will only embolden Tehran.

Imagine if the Iranians did get nukes, and were considering whether to use them, or at least threaten to sue them, against Israel. The only deterrence Israel would have would be the threat to retaliate against Iran with its own nuclear weapons. But if Israel, with a fifth of its population displaced by missile atatacks, won't even defend itself vigorously against the Party of God because of fear of hundreds of civilian casualties, what are the odds that Tehran would take a threat of Mutual Assured Destruction seriously? Not to say this means that my father-in-law, or other Israelis, want the government to kill civilians for the heck of it. But neither are the inevitable civilian casualties that accompany urban warfare going to shift Israeli public opinion against the war.

UPDATE: This essay by Ron Rosenbaum soberly discusses the threat of a "Second Holocaust" from Iran, including the disturbing notion that Israel's own nuclear weapons may not serve as much deterrence.

Are Irreconcilable Jury Verdicts Unconstitutional?

Last week the U.S. Court of Appeals for the Sixth Circuit issued another divided opinion in an death penalty case, Getsy v. Mitchell. Writing for the panel majority, Senior Judge Gilbert Merritt held that Jason Getsy’s death sentence was unconstitutionally arbitrary under the Eighth Amendment “because like crimes are not being punished alike in the very same case.” Explained Judge Merritt:

This is a contract murder case with irreconcilable jury verdicts leading one defendant to be sentenced to death and another — the defendant who initiated, contracted for, and paid for the murder — to be sentenced to life imprisonment.
If a jury in one trial did not find the alleged murder-for-hire scheme was a sufficiently aggravating circumstance to justify executing John Santine, the panel reasoned, a second jury could not reasonably find that it was a sufficiently aggravating circumstance to justify executing Getsy.
sentencing Getsy to death, while the arguably more culpable Santine received a life sentence for the very same crime, violates the Eighth Amendment, as construed by the Supreme Court in Furman and Enmund, and its prohibition of arbitrary and disproportionate death sentences.
Judge Karen Nelson Moore joined Judge Merritt’s decision. Judge Ronald Lee Gilman dissented.
In setting aside the death sentence imposed upon Jason Gesty for the murder of Ann Serafino, the majority today reaches beyond the arguments advanced by Getsy and announces a new rule of constitutional law. The majority holds that the Eighth Amendment and the common-law rule of consistency require us to invalidate Getsy’s death sentence because a different jury failed to find the murder-for-hire specification at the later trial of the man who enlisted Getsy as the hired killer. In other words, because John Santine did not receive the death penalty, neither can Getsy.
Judge Gilman shared some of the concerns that motivated the majority opinion, but he rejected their reasoning as a matter of law.
Both the majority and the Ohio Supreme Court have expressed concern over the seemingly incongruous results from the separate trials of Getsy and Santine. I share their concern, recognizing at the same time that reasonable people can disagree over the relative moral turpitude of the instigator of an assassination on the one hand and the killer who he hired to carry out the violent act on the other. Nevertheless, I do not believe that I am empowered to answer this philosophical question by bypassing the limitations that both Congress and the Supreme Court have placed upon this court’s power to grant relief under the circumstances of this case.
Eric Muller and Orin Kerr both think the panel majority got it wrong. As Muller explains:
While it is admittedly uncomfortable — especially in a death penalty case — to see two different juries reach inconsistent conclusions on similar evidence about the same episode, I don't believe that there's any reason to see legal error of any kind in the second jury's verdict. When a single jury reaches logically inconsistent verdicts in a single case, we can be certain from the verdict itself that the jury has somehow erred (in the sense, at least, of not following its instructions), and . . . the legal system ought to do something about inconsistent convictions in this setting (rather than just letting them stand, as the law now does). But when two juries reach logically inconsistent verdicts in separate trials, those verdicts supply no evidence that either jury has erred — let alone that the erring jury was "harsher" one.
I also would concur with Orin’s assessment that this opinion is unlikely to be the last we hear of this case.

[Note: One of the attorneys for petitioner-appellant Jason Getsy is a colleague of mine at Case, but we have never discussed the particulars of this case – and he knows far more about death penalty litigation than I ever will.]

UPDATE: As some of my previous posts on divisions within the Sixth Circuit have prompted heated comment threads, I encourage all to keep their comments civil and substantive. I believe it is possible to analyze and debate the merits of the judges' respective positions without descending into vitriolic and ad hominem attacks on the judges or other commenters.

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More Phony Pictures From Reuters, and one from AP.--

The closer people look at Reuters news photos from Iraq, the more fraud they are finding. See the examples at Powerline, Jawa, and Drinking From Home. The last set linked seems to show more Hezbollah posed pictures for the Western press (and the involvement of the Associated Press).

President Kennedy's Word on Cuba:

Speaking to the American public about the Cuban Missle Crisis on October 22, 1962, President Kennedy concluded with some words which are still relevant:

Finally, I want to say a few words to the captive people of Cuba to whom this speech is being directly carried by special radio facilities.

I speak to you as a friend, as one who knows of your deep attachment to your fatherland, as one who shares your aspirations for liberty and justice for all.

And I have watched and the American people have watched with deep sorrow how your nationalist revolution was betrayed and how your fatherland fell under foreign domination.

Now your leaders are no longer Cuban leaders inspired by Cuban ideals. They are puppets and agents of an international conspiracy which has turned Cuba against your friends and neighbors in the Americas...

But this country has no wish to cause you to suffer or to impose any system upon you. We know that your lives and land are being used as pawns by those who deny your freedom. Many times in the past the Cuban people have risen to throw out tyrants who destroyed their liberty.

And I have no doubt that most Cubans today look forward to the time when they will be truly free, free from foreign domination, free to choose their own leaders, free to select their own system, free to own their own land, free to speak and write and worship without fear or degradation.

And then shall Cuba be welcomed back to the society of free nations and to the associations of this hemisphere.

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Sunday, August 6, 2006

More Media news from the Israel-Party of God War:

By popular demand (lots of emails): Reuters has pulled a photo of Beirut doctored by one of its "photojournalists" to make damage from Israeli air strikes look worse than it was. This photographer was one of the photographers who took somne of the most dramatic of what appear to be staged photos in Qana. Kudos to Charles Johnson of Little Green Footballs for discovering the fraud. And remember how the various news agencies, including Reuters, were shocked at the very suggestion that some photos in Qana might have been staged? Certainly, photographers willing to doctor photos would be willing to stage them.

Meanwhile, according to the IDF, it has destroyed missile launchers that launched the missile that collapsed a building today in Haifa. The launchers were based, according to the IDF, in Qana. One of the sillier, and oddly popular (even among those you would expect to know better), attacks on the IDF I've seen regarding Qana, is that the IDF apparently has acknowledged that no missiles were launched from Qana on the day that the IDF bombed what it believed to be Party of God positions there; as if there is some rule of war that if your enemy fires from a position on Saturnday, you are only allowed to strike back on Saturday.

Finally, I've been checking Informed Comment here and there, and while, as long time readers know, I've never been a Juan Cole fan, he seems to have really lost it lately. Just for example:

Israeli Prime Minister Ehud Olmert on Saturday rejected European criticism of Israel's massive bombing of Lebanon and its killing of hundreds of innocent civilians. He pointed to Kosovo as precedent for what he was doing.

Olmert also said he thought he might just murder Hasan Nasrallah.

Uh, Ehud, you're supposed to be playing NATO in this interview, remember? Not Milosevic. You're getting your precedents for murder, mass or otherwise, mixed up.

Besides, the whole analogy is wrong. Milosevic's forces were ethnically cleansing the Kosovars. NATO was protecting the latter (and the Israeli government of the time supported this effort, given its alliance with Turkey). Who was Hizbullah ethnically cleansing in early July? In fact, it is the Israelis who have behaved in the past two weeks like Milosevic's Serbian troops, who systematically attempted to displace the Kosovars during the war. And then the NATO estimate is that their campaign killed 5000 Serbian military personnel and at most 1500 civilians. Israel's war has killed nearly 700 (maybe 900) civilians and many fewer Hizbullah fighters. So, the argument fails on all counts.

First off, "murder" is Cole's word, not Olmert's, who apparently said that Israeli forces might assassinate Nasrallah. Does Cole really think that targeting the head of a terrorist organiztion that has killed many of one's countries civilians would be "murder?" In the midst of a war against that organization? Bizarre.

Let's assume that Cole's casualty counts are correct (he's still exaggerating the death toll from Qana on his site--claiming without a stitch of evidence that 13 "missing" in Qana, are "almost certainly dead", even though local officials say the opposite--o I don't see any reason to trust him on the other figures.) NATO killed up to 1,500 civilians, and over 6,000 Serbs total. And that was because Serbia was threatening to wipe NATO off the face of the earth. No wait, that was Nasrallah making such threats against Israel, who is allied with Iran, which very much promises to do this to Israel. And as I recall, tens(hundreds?) of thousands of Serbs ultimately had to permanently flee from areas held by the Bosnians, despite NATO "protection," so it's not like NATO didn't exact a far worse price than Israel among "innocent" civilians. Apparently, Israel's big crime in Cole's mind was not to wait until Iran and the Party of God actually began to make significantly more progress on their threat to commit genocide.

UPDATE: I could go on about Cole, but will leave it with one more thought: Cole is trafficking in a conspiracy theory that takes the obvious fact that Iran is an oil-producing country of strategic interest to the U.S. and spins it into an elaborate, economically illiterate theory explaining U.S. and Israeli policy in Lebanon by reference to something called "peak oil." Why care? Last I heard, he was the most popular Mideast policy blogger on the Left.

FURTHER UPDATE: The New York Times online headline this morning blared that Israel killed 40 civilians in Lebanon in an air strike, sourced to Lebanon's Prime Minister. A few hours later, the headline changes to "Death Toll Was Incorrect, Lebanon's leader says." But we don't find out what the death toll actually was until the ninth paragraph of the article. The answer is, allegedly, one.

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Holland Carter's review in the NY Times recently of the new show at the National Gallery of Art in Washington really made my blood boil. The show is "Bellini, Giorgione, Titian and the Renaissance of Venetian Painting," and Carter writes that the show is "very beautiful," a "feast" --

"Renowned paintings from across Europe fill the galleries: a classic Bellini Virgin and Child from Milan; Giorgione's "Three Philosophers" from Vienna; Titian's "Concert Champêtre," visiting the United States from the Louvre for the first time."

But:

But it's a feast with what seems, at first, a too-familiar menu. We know these artists, or think we do. Certain pictures are beyond famous. So what, pleasure aside, is the point? To transport such treasures across the world is an expensive proposition; never mind the cost in physical wear on the objects themselves. Surely such an effort should be grounded in scholarly purpose."

Surely! I mean, just showing people some of the beautiful paintings ever made -- what would be the point of that?

There was an essay recently in the American Scholar (can't remember by whom . . .) about how the scholars in our humanities departments have made it impossible to talk intelligently any more about beauty and the beautiful -- it's rather pathetic, and even shameful. Maybe it's just because I recently returned from 4 months in Italy, where I spent probably a quarter of my time wandering around churches and museums awe-struck by the beauty of what the Italians created in that remarkable burst of creativity between the 14th and 17th centuries. The National Gallery show doesn't need a scholarly purpose -- you should go to feast your eyes on magnificence of a kind that one rarely gets to see.

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Moral Question re Civilian Casualties:

Israel's daring commando raid in Tyre Friday night, reportedly killing several Party of God missile experts in charge of firing on Hadera (near Tel Aviv) in their apartment raises a very interesting moral issue. According to at least one press report I saw, Israel said that it could have simply leveled the building with a bomb, but it wanted to avoid civilian casualties. Let's assume this is true. Meanwhile, two Israeli soldiers were killed in the raid, and eight wounded, two seriously.

Here's the question: let's say you are an Israeli officer in charge of taking out the Party of God commanders in question. Your analysis shows that a bomb is 90% likely to be effective, as is a commando raid. Expected losses from an air attack to your forces are zero. Expected losses from the commando raid are two killed, eight wounded. The only reason to prefer the commando raid is to avoid civilian casualties (this may not be true in this particular case, but play along). How many civilian casualties do you need to avoid to justify the deaths and injuries of your own men? What if five civilians live in the building and would likely die from the raid? Ten? Fifty? One hundred?

Assume also the the target is sufficiently important that even one hundred deaths on the other side would be considered "proportionate" under whatever standard you use for such things. Further assume that the war is a just one. To what extent, if ever is morally justified for a commander to risk the lives of his own soldiers to keep civilians out of harm's way? (Avoid the complicating factor that the Israeli army, despite calumny from many, takes pride in trying to avoid civilian casualties, and this pride may increase the army's motivation. And of course, forget about the p.r. implications. I'm trying to avoid the practical issues here, and focus on the moral dilemma.)

UPDATE: If it helps you focus on the issue at hand, ignore Lebanon completely, and think about, say, the U.S. in WWII. The U.S. is going after an important German military target. The options are air raid or commando raid. How many German civilians need to be saved to justify two dead, eight wounded soldiers in the commando raid?

Related Posts (on one page):

  1. Moral Question re Civilian Casualties Revisited:
  2. Moral Question re Civilian Casualties:
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Sunday Song Lyric: It's not every day that a senior official in a Republican Administration quotes song lyrics from an irreverent, punk-influenced pop band. Then again, Stewart Baker is probably not your average Bush Administration official. Baker is assistant secretary for policy in the Department of Homeland Security. On Thursday, he quoted Bowling for Soup's hit song "1985" in a speech on immigration at the Heritage Foundation, as Kathryn Lopez noted on The Corner.


Bowling for Soup is a fun band. They write catchy rock songs with clever and inventive lyrics. I think of them as a Texas version of Blink 182 with less attitude and a better sense of humor. It also doesn't hurt that they have a song called "Ohio" that talks about Cleveland. In concert they put on quite a good show, mixing strong renditions of their album tracks, substantial audience interaction, and a good bit of humor. "1985" is probably their biggest hit to date (and it is one of their more amusing videos, available here).

Debbie just hit the wall
She never had it all
One Prozac a day
Husband's a CPA
Her dreams went out the door
When she turned twenty-four
Only been with one man
What happened to her plan?

She was gonna be an actress
She was gonna be a star
She was gonna shake her ass
On the hood of Whitesnake's car
Her yellow SUV
Is now the enemy
Looks at her average life
And nothin, has been all right

Since Bruce Springsteen, Madonna
Way before Nirvana
There was U2 and Blondie
And music still on MTV
Her two kids in high school
They tell her that she's uncool
'Cause she's still preoccupied
With 19-, 19-, 1985

She’s seen all the classics
She knows every line
"Breakfast Club", "Pretty In Pink"
Even "St. Elmo's Fire"
She rocked out to Wham!
Not a big Limp Bizkit fan
Thought she'd get a hand
On a member of Duran Duran

Where's the mini-skirt made of snakeskin?
And who's the other guy that's singing in Van Halen?
When did reality become T.V.?
What ever happened to sitcoms, game shows
On the radio was . . .

Springsteen, Madonna
way before Nirvana
There was U2 and Blondie
And music still on MTV
Her two kids in high school
They tell her that she's uncool
'Cause she's still preoccupied
With 19-, 19-, 1985

She hates time, make it stop
When did Motley Crue become classic rock?
And when did Ozzy become an actor?
Please make this stop, stop,
And bring back

Springsteen, Madonna
way before Nirvana
There was U2 and Blondie
And music still on MTV
Her two kids in high school
They tell her that she's uncool
'Cause she's still preoccupied
With 1985
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