The Volokh Conspiracy

In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records.  As Orin notes, the Justice Department has special rules for this sort of thing.  Yet there are reasons to doubt whether the government followed these rules.  Among other things, the government is required to take “ all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.

This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported.  The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary  information through other means were not undertaken.

Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required.  If so, there might not be cause for outrage.  But that would hardly make this a “non-story.”

UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.

SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though I suspect I’m more inclined to see this particular seizure as overbroad), but that does not mean that the threat of such seizures does not have the potential to chill investigative journalism. In my view, the federal government should, insofar as is possible, focus more on the leakers than on those who receive the leaks.

The AP reports:

The Justice Department secretly obtained two months of telephone records of reporters and editors for The Associated Press in what the news cooperative’s top executive called a “massive and unprecedented intrusion” into how news organizations gather the news.

The records obtained by the Justice Department listed outgoing calls for the work and personal phone numbers of individual reporters, for general AP office numbers in New York, Washington and Hartford, Conn., and for the main number for the AP in the House of Representatives press gallery, according to attorneys for the AP. It was not clear if the records also included incoming calls or the duration of the calls.

In all, the government seized the records for more than 20 separate telephone lines assigned to AP and its journalists in April and May of 2012. The exact number of journalists who used the phone lines during that period is unknown, but more than 100 journalists work in the offices where phone records were targeted, on a wide array of stories about government and other matters.

The Justice Department notified the AP on Friday.  More reporting from The Hill and ThinkProgress explains why DoJ wanted these records.

UPDATE: More from BLT here. It’s important to note that this is not the first time the federal government has obtained phone records in this manner.  It is, however, one of the few (if only times) the seizing of such records has become public.

UPDATE: And be sure to see Orin’s post above.

National Security Law in the News: A Guide for Journalists, Scholars, and Policymakers is a new book published by the ABA’s Standing Committee on Law and National Security and Northwestern’s Medill School of Journalism. Despite the title, the book should be of interest to a general audience, as it offers a concise, broad plain-language overview of the many timely issues at the intersection of domestic and international law. I wrote the chapter on piracy. Congratulations to the editors, Paul Rosenzweig, Timothy J. McNulty, and Ellen Shearer.

Here is the overview:

Written by seasoned experts, each chapter contains a summary of legal and policy issues of significance and is accompanied by an annotated bibliography for further reading. The book is divided into four parts:
Part I provides an overview of the basic issues of constitutional and international law including discussion of the scope of the president’s authority, the meaning and effect of the First Amendment, and the role of international law in American courts.
Part II turns the focus to the military and explores questions about military organization and operations.
Part III looks at the world of domestic law enforcement and counterterrorism.
Part IV covers homeland security issues.
An added bonus: a list of experts to contact for additional background information is included in chapter.

Some early journo reactions:

Every reporter on the national security beat should keep this book within reach.”

– Jane Mayer, Staff Writer, The New Yorker Magazine

Finally, we now have a clear-eyed primer on national security law that can serve as an essential reference for journalists as they try to cut through the spin and get to the truth.”

– James Risen, author, State of War: The Secret History of the CIA and the Bush Administration

“Syria is Iran’s only ally in the Arab world. It’s their route to the sea.” So said Mitt Romney at the Monday debate. The Associated Press, The Guardian, The Telegraph, New York, U.S. News,  Brad DeLong, Rachel Maddow’s Maddowblog,  Comedy Central, and The Daily Kos promptly seized the opportunity to show off their superior geographical knowledge, pointing out that Iran has a coastline. The explicit or implicit explanation was that Romney does not even know basic geography. “Romney Flubs Geography” announced the A.P. headline on the Washington Post website. Readers in search of more sophisticated coverage  might have turned to Yahoo! Answers:

Q. Why did Romney say that Syria is Iran’s “route to the sea”? ...when 1) Iraq stands between Syria and Iran, and 2) Iran already has the Persian Gulf, not to mention the Indian Sea?

A. Romney was speaking in the context of the debate topic on foreign policy and the sanctions restricting the finances and trade of Iran. Although Iran is indeed located on the seacoast of the Indian Ocean and the Persian Gulf, the international trade sanctions have restricted and impeded its ability to transport armaments and other goods through its own seaports. To defeat these trade sanctions, Iran has resorted to using its air transportation to transport goods through an air corridor in Iraqi airspace into Syria and its seaports, such as Latakia.

Fact-checkers who actually investigate the facts might have started with expert websites such as StrategyPage. A 2006 article titled Syrian Delivery System for Iranian Nukes details the extensive seaborne smuggling operations carried out by Syrian companies operating out of Syrian ports. The article concludes:

Iran was generous with its “foreign aid” because Syria provided support for terrorists Iran backed. Now Iran is keen on getting nuclear weapons. The first ones Iran will get will be large and delicate. The only feasible intercontinental delivery system will be a ship. A ship that is accustomed to moving illicit goods.

Stratfor, which is an outstanding site for the collection and analysis open source intelligence, has the following reports involving Syria/Iran sea-related collaboration: An Iranian ship at the Syrian port of Tartus (also spelled “Tartous”) picked up Syrian oil for delivery to China, to evade the economic sanctions on Syria (Mar. 30, 2012). Iran warships docked at the port of Latakia in early 2012 (Feb. 18, 2012), and in early 2011 (Feb. 22, 2011; Feb. 24, 2011). During the 2011 visit, the Iranian navy’s commander, Admiral Habibollah Sayyari, announced that Iran was ready to help Syria improve its port facilities, and to collaborate on technical projects with Syria. (Feb. 26, 2011). (All the Stratfor articles are behind a paywall.)

So in short, Syria is Iran’s route for the projection into the Mediterranean Sea (and from there, the Atlantic Ocean) of conventional naval power, and, perhaps soon, of nuclear weaponry.

Post-debate, the Washington Post‘s Glenn Kessler at least made a start towards a serious factcheck of the Romney quote. He published an updated and condensed version of a longer piece he had written last April about Romney’s repeated use of the phrase.

In the April piece, Kessler wondered what difference Syria made, since Iranian ships can enter the Mediterranean via the Suez Canal. True, but anyone with even a mild knowledge of naval affairs could explain the utility of a Mediterranean port, as a opposed to a Persian Gulf port, for ships operating in the Mediterranean. In April and in October, Kessler wrote:

We also checked with other experts, many of whom confessed to being puzzled by Romney’s comments.  [DK: Kessler should have named all the "other" experts, and should also have included the explanation of at least one of the experts who was not among the "many" were were confused.] Tehran certainly uses Syria to supply the militant groups Hezbollah and Hamas, but that has little to do with the water. The relationship with Syria could also effectively allow Iran to project its power to the Mediterranean and the border with Israel. But does that really mean, “a route to the sea”?

The last two sentences are really the buried lede of the story: Romney is raising a very important issue (Syria as the base for the projection of Iranian naval power), but Romney is not explaining himself in a manner which the less well-informed members of the public (e.g., the sources linked in the 1st paragraph of this post) can understand. If Romney were a better communicator, he would have laid out the facts in greater detail, as Ronald Reagan and Winston Churchill did in their own time, when warning their countrymen about the military dangers of aggressive totalitarian regimes. As Kessler wrote in April, “If Romney is elected president, he will quickly learn that words have consequences. Precision in language is especially important in diplomacy, and here Romney used a phrase that left people befuddled as to his intent and meaning, especially since he did not even make a distinction between the Mediterranean and Arabian seas.”

If you’re a journalist or a commentator, there’s no reason be ashamed just because a Washington Post writer reported a story much better than you did. But when you find yourself being outclassed by Yahoo! Answers, perhaps it’s time to rethink your assumptions that you’re much smarter and better informed than Mitt Romney.

After an investigation commissioned by the Pacific Institute, Peter Gleick has been reinstated as its President.  The Institute released a carefully worded statement saying that the investigation supported what Gleick had said “regarding his interaction with the Heartland Institute.”  Gleick had eventually admitted that he had pretended to be a board member of Heartland to obtain non-public materials from them.  Once Gleick confessed to this, that much was not in dispute.

But the part that was still open to dispute involved the fake document that was not obtained through Gleick’s “interaction with the Heartland Institute.”  Gleick claimed that someone anonymously sent it to him “in the mail.”  Thus, he was not claiming that it came through “his interaction with the Heartland Institute.”

Remember: based on the language, content, and document properties, Gleick was identified by some commentators as the likeliest author of that fake document even before Gleick came forward to admit his role in feeding both the real and the disputed (i.e., fake) Heartland documents to bloggers.  What a coincidence that the author of the fake document used some phrases that Gleick favors, that the document inflated Gleick’s importance, and that Gleick admitted passing the document to others, but yet he didn’t write it (or so he claims)!

So what does the Pacific Institute have to say about the fake document that everyone agrees did not come from Gleick’s interaction with the Heartland Institute?  Absolutely NOTHING!

 PACIFIC INSTITUTE BOARD OF DIRECTORS STATEMENT

The Pacific Institute is pleased to welcome Dr. Peter Gleick back to his position as president of the Institute. An independent review conducted by outside counsel on behalf of the Institute has supported what Dr. Gleick has stated publicly regarding his interaction with the Heartland Institute. This independent investigation has further confirmed and the Pacific Institute is satisfied that none of its staff knew of or was involved in any way.

Dr. Gleick has apologized publicly for his actions, which are not condoned by the Pacific Institute and run counter to the Institute’s policies and standard of ethics over its 25-year history. The Board of Directors accepts Dr. Gleick’s apology for his lapse in judgment.

You’ve heard of non-denial denials. This is a non-confirmation confirmation.  Any lawyer worth his salt would read the Pacific Institute’s statement and assume that, while the investigation supported Gleick on the issue that no one disputed (“regarding his interaction with the Heartland Institute”), it probably did not support (or was silent) on the issue on which the Heartland Institute seemed to have the more likely explanation.

So there are two possibilities: EITHER (1) the report did not support Gleick on the origin of the fake document and the Board of the Pacific Institute is now trying to mislead the public with an evasive press release, OR (2) the Board of the Pacific Institute is extremely incompetent at writing press releases.

If the Pacific Institute were to release the report, not only would we be able to determine which alternative is true, but we would be able to assess the report’s plausibility—in particular, what the supposed original document and envelope to Gleick looked like and where they came from, and whether Gleick’s computers could have produced the document.

It is instructive to compare the gullibility of Felicity Barringer at the New York Times Green blog to the proper skepticism of her Times colleague Andrew Revkin at his Dot Earth blog.

 Barringer:

Nancy Ross, a spokeswoman for the Pacific Institute, declined to release specific details on the findings of the investigation, saying it was an internal personnel matter.

By saying that its investigation . . . confirmed Dr. Gleick’s account, the institute was implicitly backing the scientist’s claim that he was not responsible for cobbling together a document labeled a fake by Heartland, which he disseminated along with other genuine ones.

The bogus document spoke of effective ways for “dissuading science teachers from teaching science” and of “cultivating” respected writers on climate issues. Dr. Gleick said he had received it “in the mail.”

Revkin:

Here’s the troubling part: The Pacific Institute described its investigation as “a confidential personnel matter” and said for that reason no details on the process or findings would be released. Most notably, the group and its board declined to elaborate on the finding that the investigation, conducted by Independent Employment Counsel, “supported what Dr. Gleick has stated publicly regarding his interaction with the Heartland Institute.”

Does that mean the group expressly confirmed that a particularly provocative, and disputed, document was in fact produced by the Heartland Institute and not by Gleick himself or someone else?

No answer.

It’s fine to have an internal personnel investigation, but if you’re going to then release the finding publicly, but not any other details, it’s hard to see that carrying much weight in discourse outside the organization itself.

That’s why I see little merit in descriptions of the reinstatement as an exoneration — a word used by Michael E. Mann, a University of Pennsylvania climate scientist who, like Gleick, has become a prominent campaigner for action on curbing greenhouse gases. Here’s how Mann was quoted on the Gleick affair in Politico:

“I’m very pleased to learn that Peter has been exonerated,” Michael Mann of Penn State told ME. “He’s been a tireless champion for an informed discussion about how we deal with the challenges of climate change and diminishing access to clean water. I, for one, welcome him back to that discussion.”

Revkin concludes that “the big questions about the Heartland incident [are] still unresolved.”

Kudos to Andrew Revkin of the Times for knowing how to read a press release.

Note: This is the second of two book “reviews” I’ve been hoping to do since about August, but my fall got so busy with actual paying work that they were both pushed off until the delightfully slow week between Christmas and New Years.  “First Thing We Do, Let’s Deregulate All the Lawyers” was the first, but Jonathan kinda beat me to that.  This is the second.

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We’re all lawyers here, right?

If you’ve ever regretted your career choice, I have the antidote:  Paul B. Spelman’s “Even Worse Than We Had Hoped: A Journey Through The Weird Wild World Of Local TV News,” the memoir of a former local TV news reporter who is now a lawyer at the Federal Trade Commission (and until 2010 was an associate at my firm).

After leaving the truly small time as a radio reporter in Telluride, Colorado—where Christie Brinkley made a donation to his station in gratitude for Spelman’s lack of killer instinct in investigating the story of her ski accident, Spelman’s first assignment as an on-air TV reporter was in the perfectly named Whiteville, North Carolina, where he found a sign outside one of the 86 (no joke) local churches reading “Let Jesus Fix Your Achy Breaky Heart.” Spelman is “something of a curiosity” to the townsfolk as a “half-Jewish New Yorker whose only religious experiences came from attending classmates’ bar mitzvahs.” (I am confident that many Whiteville residents are, like you, puzzling over whether that should have been “B’nai Mitzvah.”) There, Spelman gains experience operating a one-man news “bureau,” or “one-man band” in industry argot, simultaneously serving as his own cameraman as he videotapes himself reporting from the scene day after day. Spelman explains how local reporters work to turn mundane events into seemingly hard-hitting stories—the book’s title comes from a statement a local anchor supposedly made to the reporter covering a story about how an accident had been worse (and thus more newsworthy) than expected.

One sample grab comes describes how Spelman, by then working in East Tennessee, was dispatched to get footage of the farm of a former judge who had been arrested for growing marijuana there. By this point, Spelman had achieved the seniority necessary to warrant having an actual cameraman, Dan, accompany him to cover his stories. Because of delays in finding the farm, the judge had posted bond by the time they got to the scene, and Spelman’s admirable efforts to explain his rights to collect footage from a public roadway came to naught when the judge pulled a rifle case from his truck. Recognizing that the judge had the better of the argument,

We drove off, but unfortunately, we drove in the wrong direction, heading farther down a windy back road that didn’t seem to lead anywhere. So with a sinking feeling, we realized we’d have to turn around and head back to the farm. We decided that if we were going to get shot, we should try to get it on video, so I drove and Dan got in the back seat with the camera. I generously allowed that if the guy started shooting Dan was permitted to duck. “But keep rolling,” I said, “if we survive it’ll be good footage.”

When a highlight of your career is deciding how to caption your response to a sur-reply brief, that is infotainment. Spelman’s book is filled with this kind of gentle, self-deprecating humor, the observations of a person who in many ways is a visitor in his own country. Spelman spares no details, even (or especially) when it is embarrassing; his account of one evening when he spent so long in a courthouse bathroom that he arrived late to cover an aviation mishap ends with the memorable phrase, “luckily for me, it’s unwieldy to remove plane wreckage.” (His account of how he got the story anyway, maybe better than his speedier competition did, is illuminating.)

Admittedly, I grew up in Peoria, Illinois. My standards for a good time may not be the same as for some of you swells who grew up where “entertainment” consisted of something more sophisticated than listening to AM radio in the back of a Plymouth Belvedere as you drove out to a strip mine to shoot beer cans with BB guns. But as I read this book, I kept thinking, “There is a movie in this.”

When I was in my second year at law school, I went to go see the movie Black Robe, about a Jesuit priest trying to make converts in 17th Century Canada. There is a scene where the priest has been captured by hostile Iroquois and he stands waiting, hand held fast to a post, as the Iroquois chief impatiently sorts through clam shells to find one suitably dull to maximize the pain when he uses it to sever his guest’s finger. I left that movie thinking that, even though I had chosen to be a lawyer, life could be worse. Reading Paul Spelman’s book, I had the same feeling. But I laughed a lot more.

According to the New York Times, the answer seems to be “yes.” An article in yesterday’s Times by Michael Luo collects some anecdotes about misbehavior by a few licensees in North Carolina. The Times article has some numbers in it, and it provides the number of North Carolinians with carry permits (240,000). After a thorough search of North Carolina records, the Times finds that about 1% of permitees were convicted of something, other than a traffic offense, over the past five years. Of these 2,400 convictions, by far the largest group is “nearly 900 permit holders were convicted of drunken driving, a potentially volatile circumstance given the link between drinking and violence.”

“Drunk driving” (which, I would guess, the Times uses as a shorthand for lesser offenses such as driving while impaired) is a serious crime in itself. But just because a woman has three glasses of wine with dinner at a restaurant, and then gets caught in a police checkpoint, doesn’t make her some “potentially volatile” person who is going to murder somebody in an inebriated rage.

In any large population (e.g., 240,000) there will be at least a small percentage who over a period of time are found guilty of some crimes. This does not mean that that population as a whole is dangerous. It would have been useful to compare the conviction rates of North Carolinians who have carry licenses with the convictions rates of those who do not. I suspect that the non-licensee crime rate would be much higher, especially for violent gun crimes.

In a 2009 article in the Connecticut Law Review, I collected data from Minnesota, Michigan, Ohio, Louisiana, Texas, and Florida. (The state data begin on page 564 of the article.) The data show that concealed carry licensees are much more law-abiding than the general population, and that the rate of gun misuse of any sort (let alone having something to do with violence in  public place) is less than one in one thousand.

Instapundit collects some other responses to the Times‘ effort to foment hysteria and prejudice against the persons who exercise the constitutional right to carry firearms for lawful protection.

[This post was corrected in response to reader comments, including the fact that I wrongly wrote that the Times had not reported the total number of licensees.]

Although on-line reading continues to grow, many people still enjoy old-fashioned printed periodicals. In the spirit of gratuitous advice, here are some suggestions for print subscriptions.

First of all, if you’re conscientious about registering for the frequent flyer program every time you step on an airplane, you may accumulate a few thousand points on various airlines which you fly only occasionally. You’ll never get to the level of a free ticket, but the points expire if you don’t use them. So use them for magazine subscriptions. I’ve been enjoying the daily Wall Street Journal that way for several years, and have used low-level points for dozens of other year-long or half-year subscriptions over the past decades.

Second, there’s a lot to be said for trying many different periodicals with one-time subscriptions. You may find a magazine that becomes indispensable for you (as The New Republic was for me, for about 15 years), but just reading something for a year or a half-year can broaden your knowledge, and then you can move on to something else.

Some category recommendations:

Newsweeklies: Back in the olden days of the 1970s, these were truly great. Then, the daily New York Times wasn’t available outside of the New York area, and the Wall Street Journal was sparse on non-business news. Time and Newsweek, and to a lesser extent U.S. News & World Report, provided in-depth, thoroughly-reported stories of the major issue of the week, the deep inside of presidential campaigns, and so on. These days, it’s hard to make a case for reading the remnants of those once-important magazines.

The Economist is still probably the most influential periodical in the world. If you read its U.S. coverage, you’ll quickly discover that the analysis is not nearly so sharp and insightful as the omniscient tone would imply, and that the coverage has numerous blind spots and biases. Knowing how flawed the U.S. coverage is makes me question The Economist‘s accuracy on topics for which I don’t know enough to judge the coverage. So in a sense, the less you know about something, the more useful The Economist is. For example, the latest issue had an article explaining that Poland is going full speed ahead with natural gas development via fracking. Because I previously had never thought about Polish natural gas, I learned a lot by reading the article. Overall, The Economist is still a strong source for weekly world news, as long as you don’t take its editorial judgements too seriously.

If you read French, Courrier International is definitely worth a trial subscription. This Paris-based weekly takes stories from newspapers all over the world, and translates them into French. You’ll get acquainted with many fine newspapers. I ultimately gave up on Courrier because their story and source selection leaned so heavily to the official left. If the choice is between a particular nation’s version of The Guardian vs. The Telegraph, Courrier almost always goes with the former. Their special issues were particularly tendentious and one-sided. But since tastes vary, I’d recommend that people who read French give it a try.

Le Figaro, one of the leading French daily newspapers, publishes a weekly edition for a U.S. audience. It’s well-written, and has good coverage of all the Francophone world, including African analysis that is hard to find in U.S. papers. As with The Economist and Courrier International, there’s also plenty of European news that you won’t find in the U.S. dailies. Le Figaro is right-wing by French standards, which places its approximately in the same zone as the New York Times. Le Monde, which is left-wing by French standards, also has a weekly; I’ve read occasional issues, but never subscribed, and, ideology aside, Le Figaro has bigger print and better layout.

Business and Finance: If you’re a law student, or in the same general age group, the time to start learning about business and investing is now. Don’t wait until you’ve saved $50,000 in a 401(k)  and have to figure out where to put it. The sooner you start reading and thinking about investing and business, the more you’ll see fads and bubbles come and go, and the less likely you’ll be to invest foolishly 25 years from now, or to allow yourself to be led around by a self-dealing financial advisor. Besides, whatever kind of lawyer you become (or whatever other career), you’ll almost certainly be more useful to clients and yourself if you have some background knowledge of business–whether you’re serving as a volunteer on the Board of a small non-profit, or urging your friend not to spend his life savings on program trading.

Forbes, Fortune, and Business Week remain the big three of the business magazines. Give each of them a try, and pick your favorite. I life Forbes, for excellent writing, and its pro-capitalist orientation. Barron’s is worth a trial subscription. It’s purely about investing, not about business in general. For a person just starting to think about the stock markets and other financial investments, Barron’s is a good choice. You may not want the avalance of daily information that comes in the Wall Street Journal or Investor’s Business Daily. Rather, in the learning stage, you may be better off with the weekly perspective. Especially useful are the big articles which provide the viewpoints of numerous experts on a major topic (e.g., how will the economy perform in the next 12 months?). As you’ll find, experts, even well-qualified and sincere ones, are often wrong about economic predictions. One of the reasons to start reading the business/finance press early in life is to develop a healthy skepticism about following any single expert’s advice.

Money is OK if you know absolutely nothing about money, and have to start at the very beginning.

New York City:  If you’ve ever lived there, it’s fun to stay in touch. Of course the New York Times takes care of this for plenty of readers who used to live in The City, but there are other options. New York magazine is lively and interesting, and captures the NY feel in a way that the Times doesn’t. It also sometimes has strong reporting on national politics. Also worth trying is the weekly New York Observer newspaper, which has great coverage of state and city politics. As with New York, the political slant is firmly to the left, but the factual reporting can sometimes be very good. The New Yorker remains, for eight decades running, the best cartoon magazine in the world. It has, unfortunately, also become a favorite vehicle for character assassination–sort of a highbrow version of ProgressNow. I’d trust its non-fiction articles only on topics which don’t involve U.S. politics.

Legal newspapers: Especially if you can get a law student discount subscription, the National Law Journal (general national news), Legal Times (D.C. focus), and American Lawyer (corporate lawyers) are all worth trying. The same goes for any local/regional law paper in your area, such as New York Law Journal. Because of the Internet, none of these are probably as influential as they were 20 years ago, but they’re still a good way to diversify your diet of legal news.

Daily newspaper: Coverage of legal issues in the mainstream daily press is typically horrible, with stories tending to concentrate only on who won or lost, while leaving the reader in the dark about the precise legal issue in dispute. But for general coverage of the state where you live, there is still nothing that comes remotely close to the daily newspaper. So if you live in the Denver area, you ought to be a daily reader the Denver Post; in Dallas,  the Dallas Morning News, and so on. Yes, those papers can be biased and selective, but they’re still far superior to any other single source for state and local coverage.

On top of that, I’d recommend a high-quality national newspaper. In other words, the Wall Street Journal or the New York Times. The Times has a much larger “news hole,” except for business news. But the Journal‘s new stories are much less likely to be DNC opinion essays misplaced in the news section. While both papers are well-written, the Journal is better-written. And the Journal‘s Friday/Saturday culture and leisure coverage has gotten quite good. For the Times, I’d recommend a partial weekly subscription (e.g., Monday to Friday), rather than the Sunday paper. You’ll get a better variety of stories in the weekday editions, and the weekly special section on Science and Technology is sometimes excellent.  The Sunday Times does have the Book Review, which is now more important than ever, given the harsh cutbacks in book reviews at almost every other newspaper. But you can always subscribe to the Book Review separately, if it’s important to you.

For a change of pace, London’s Financial Times can sometimes be obtained with airline points. Like the Wall Street Journal, it’s a business newspaper which covers lots of regular news, and some culture. And of course plenty of U.K. news. The editorial viewpoint might, roughly speaking, be considered somewhat similar to The Economist: supportive of free markets and globalization in general, but not at all afraid of big government activism.

Gun Week: Despite the title, published tri-monthly by the Second Amendment Foundation. Pre-Internet, the indispensible source of news on the firearms industry and the gun control issue. Even today, the best single source for people who follow the topic closely.

Bonus on-line reading: One of the big differences between the Wall Street Journal and the New York Times is reporting on the United Nations. The Journal has done excellent investigative reporting on the U.N. The Times has also done some good work, as in coverage of the “peacekeeping” fiasco in the Democratic Republic of the Congo. But Times coverage of U.N. HQ often consists of running p.r. interference on behalf of the U.N. For daily coverage of the U.N., by far the best source in the world is the indefatigable Matthew Lee, of the on-line Inner City Press. Lee’s personal viewpoint is definitely from the Left, but he is relentless at digging into the corruption, lies, and human rights abuses perpetrated by an organization which too often escapes serious journalistic scrutiny, all the more so because of budget cuts in international coverage in most of the rest of the media. To his credit, the United Nations Development Programme temporarily convinced Google News to disappear Inner City Press.

p.s.: In response to some of the comments: Legal Times and National Law Journal merged last year; all the more reason for law students to give NLJ a chance, I guess. The above periodicals are only a small fraction of the periodicals to which I subscribe, and those to which I’ve subscribed in the past. Not included are categories including public affairs (e.g., Mother Jones, Natonal Review, Reason), Congress (National Journal etc.), hobby/lifestyle (Sky & Telescope), sports (Field & Stream), or scholarly journals. I’ll write about some of those when mood strikes.

I regret that I must report that USA Today refuses to correct the misrepresentation of my views about the individual mandate litigation that I pointed out in this post. I pointed out the mistake in e-mails to Joan Biskupic, the author of the article in question, and the editors of USA Today. Both refused to issue any correction. They did invite me to state my view in a letter to the editor. However, after I sent in the letter, they refused to print it on the grounds that “[i]t is the paper’s policy not to disguise corrections as letters to the editor.” They were only willing to print a heavily redacted version that didn’t clearly indicate the nature of the error that Ms. Biskupic made in her characterization of my supposed “prediction” about what the Court will do. I refused to let them publish the letter under such absurd restrictions. The whole point of the letter was to point and out and correct her mistake.

Here is the original unexpurgated letter:

To Whom it May Concern:

In her April 14 article on the the Obama health care plan individual mandate litigation, Joan Biskupic incorrectly wrote that I had predicted that “the Constitution’s ‘original meaning,’ along with recent cases, would lead a majority of the [Supreme] court to reject the law.”

In reality, I never said any such thing. In the past, I have several times publicly written that the Court is more likely to uphold the law than strike it down, though the anti-mandate side also has a significant chance of prevailing. Ms. Biskupic also erred in stating that I predicted that Justice Anthony Kennedy would necessarily vote to strike down the mandate. I did not say that either.

Finally, Ms. Biskupic omitted crucial context in quoting my statement that “There is no logical way to uphold this mandate.” What I actually said was that “[t]here is no logical way to uphold this individual mandate except by a chain of reasoning that would allow Congress to impose any mandate of pretty much any kind.” The full context shows that I was making a statement about what the Court should do, not what it actually will do.

Sincerely yours,

Ilya Somin
Associate Professor of Law
Editor, Supreme Court Economic Review
George Mason University School of Law

The only one of my statements at the ACS debate (video available here) that Ms. Biskupic cited in in support of her interpretation of my words is the following:

While it is certainly true that Thomas is willing to go farther in rolling back federal power than the other conservatives on the Supreme Court, I don’t think you have to go as far as Thomas to want to do so. Moreover, people like Scalia and also Kennedy, in recent cases, such as in the Comstock case, and Alito have gone out of their way to signal their commitment to the idea of limiting federal power. … As to Roberts, it’s hard to predict his position on this. I do not think it would be predicted by the preemption cases.

Nothing in the above passage predicts that Kennedy will vote to strike down the mandate. And even if I somehow predicted that Kennedy would do so, I certainly did not predict that the Court as a whole would.

Ms. Biskupic also tried to defend her misrepresentation of my views by noting that she quoted me as saying that Chief Justice Roberts’ vote is difficult to predict. That, however, does not offset her error in stating that I predicted that the Court as a whole would “reject the law.” The reasonable reader of her article is left with the impression that I predicted that the Court would strike down the law, regardless of the fact that Roberts’ individual vote may be hard to predict.

As I said in my previous post on this subject, I don’t blame Joan Biskupic too much for the original mistake. We all make such errors occasionally, especially under the pressure of deadlines. It is much more reprehensible for her and her superiors to refuse to correct an error after it has been pointed out to them in great detail.

Over the last few years, I have often been quoted in the media about both the individual mandate and other issues. To my knowledge, this is the first time that anything I said has been seriously misrepresented. In my experience, most reporters and editors try hard to get the facts right and to correct any errors they might inadvertently commit. Unfortunately, this case is an exception.

One of the dangers of commenting on hot-button legal issues is that reporters will sometimes misquote you. That happened to me in today’s front-page USA Today story on the individual mandate litigation by prominent legal reporter Joan Biskupic, which cited me as follows:

George Mason University law professor Ilya Somin argued at a recent forum sponsored by the American Constitution Society that the Constitution’s “original meaning,” along with recent cases, would lead a majority of the court to reject the law.

“There is no logical way to uphold this mandate,” Somin said, predicting that Justices Thomas, Scalia, Kennedy and Alito would be inclined to strike down the law. Somin said the vote of Chief Justice Roberts is more difficult to predict based on his record.

In reality, I never predicted that a majority of the Court would “reject the law.” I actually said that the case could go either way, and that Kennedy and Roberts were likely swing voters. I also noted that some things Kennedy has said in recent opinions suggest that he wants to enforce limits on the scope of federal power. But I did not say that means that it’s clear he will vote to strike down. He could, I think, go either way.

I have on several occasions publicly said that the case could go either way, that the plaintiffs face an “uphill struggle” and that a victory by the pro-mandate side is more likely than the opposite. I think the Court should invalidate the mandate, but the justices do not always get these issues right, and sometimes go against logic.

At the same time, I believe that the anti-mandate side has a real chance to win and that the case is far from a slam dunk for the federal government. To put it in sports terms, I think the federal government is the favorite to win the case, but only a narrow favorite. Everything I said at the ACS forum was completely consistent with these long-held views.

I am certain that Ms. Biskupic’s error was inadvertent. Perhaps she misremembered what I said at the ACS event (which was held back in February), or took it down incorrectly. She apparently did not have an opportunity to check the accuracy of her summary with me before publishing it. I have sent her an e-mail urging her to correct the error. But I also wanted to correct it here, in case USA Today does not get around to it in a timely fashion.

UPDATE: Having listened to the tape of the debate, I also noticed that that Biskupic omitted some relevant context from my statement that “There is no logical way to uphold this mandate.” What I actually said was that “[t]here is no logical way to uphold this individual mandate except by a chain of reasoning that would allow Congress to impose any mandate of pretty much any kind.” I should in addition note that, contrary to my memory, I didn’t say that Justice Kennedy was a swing voter, but also did not predict that he would vote to strike down the mandate.

Jared Bernstein (Politico photo)

Jared Bernstein, chief economist for Vice President Joseph Biden, served in 2008 as an economic adviser to the Obama campaign. At the same time, he was a member of JournoList, the controversial progressive email list.

Bernstein’s bio at Politico, which appears not to have been updated since 2008, states: “He is an economic adviser to the Obama campaign.”

He was known to many for his regular appearances on the financial channel CNBC. His primary employer in 2008 was the Economic Policy Institute, a pro-labor progressive think tank, but according to his bio when appointed to the Obama-Biden Administration, he also was a member of the Panel of Economic Advisers of the Congressional Budget Office.

Reached today at the Office of the Vice President, Bernstein revealed that his position with the Obama campaign was as something called a “surrogate.” “I was not paid by the campaign,” he explained. “They would call me from time to time to represent their positions, that side of the debate.”

Asked when he left JournoList, Bernstein replied, ‘‘I think I left the list around the time I came here.” Bernstein was announced as Chief Economist and Economic Policy Adviser to the Vice President-elect on December 8, 2008.

One question that has arisen in the last week is how closely JournoList members, not only discussed how to shape the news to advance the fortunes of Barack Obama, but coordinated with the Obama campaign. Jared Bernstein’s position as an unpaid adviser and surrogate shows that there was at least one direct link between JournoList and the Obama campaign.

Bernstein’s serving on the Economic Advisory Panel of the CBO is less worrisome, though it appears to violate Ezra Klein’s first rule for JournoList:

At the beginning, I set two rules for the membership. The first was the easy one: No one who worked for the government in any capacity could join.

It would appear that Bernstein’s presence on the list violated Klein’s first rule, since he met the test of working “for the government in any capacity.”

Yet note Klein’s careful wording here. People who worked for the government in any capacity couldn’t join, but could they stay on the list if they took a government job after joining?

Were there other campaign advisers or part-time government officials who participated on JournoList?

UPDATE: Here is an example of Bernstein’s humorous political writing at the Huffington Post.

2D UPDATE: I have an anonymous source who has shown me an email thread that appears to be from JournoList. From his search of the JournoList archives, he believes that Bernstein’s last direct email to the list was on December 5, 2008, a charming farewell sent 3 days before he was introduced as Biden’s chief economist. Indeed, months later there were several emails to the list from members who wondered how to contact Bernstein.

I hope to have a lot more in the next few days.

Late Monday afternoon, I received a one-sentence email from Liz McMillen, Editor of the Chronicle Review:

I just wanted to let you know that we are looking into the questions you have raised in your blog post Friday about Michael Bellesiles’s article for us.

Here is some background on Bellesiles’s June 27th article.

Here is some background on Bellesiles’s problems in 2000-2002.

In its June 27, 2010 issue, the Chronicle of Higher Education published an essay by Michael Bellesiles, Teaching Military History in a Time of War:

Yet the reality of teaching in wartime, most particularly at a working-class college such as Central Connecticut State University, is that war has touched the families of many of our students, and it is a tragic error to think that they have not experienced the staggering blow of loss and personal sacrifice.

That lesson came home to me with great force this last semester. . . . On the first day of my military-history class, after a discussion of the concept of democratic warfare, I asked my usual question about veterans or National Guard members present, and if any students had family members serving in the military. Ernesto (I have changed names out of respect for this family’s privacy), a shy but exceedingly bright student, smiled with evident pride as he mentioned that his brother Javier had recently enlisted in the Army. We discussed his brother’s reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.

Two weeks later, the class discussed Baron von Steuben’s training of the American Continental Army . . . . Afterward, Ernesto told me that his brother had been sent to Iraq. He admitted he was worried about Javier’s safety, but had read several articles indicating that the war was winding down.

Then, after a class . . . [on the Mexican War], Ernesto told me that Javier had called him the day before and described his first encounter with enemy fire, which had been chaotic and without consequence. A few days later, Ernesto gave an amazing paper on a woman who had disguised herself as a man so that she could join the Union Army . . . . In the minutes before the very next class, during which we explored Ulysses S. Grant’s strategy of attrition, Ernesto came to me and said that he could not attend class, as his brother had been shot in the head by a sniper and was in critical condition.

Sorrow was written across Ernesto’s young face. Here was a student I relied on for an astute observation and a ready smile; now he looked on the verge of tears. I told him to give no further thought to the class, but to devote himself to his family. Ernesto missed the wars against the Plains Indians and the Spanish-American War, but showed up in time for the Philippine Insurrection. I hoped that Ernesto’s presence meant that his brother had recovered, only to be surprised to hear that Javier was still in danger, his condition so serious that the doctors feared moving him to the military hospital in Germany. When I asked him why he had come to class, Ernesto insisted that he hoped his studies would take his mind off his worries for his brother.

That afternoon I asked my teaching assistant, a Marine veteran named Joe, to talk with Ernesto. Over the next several weeks, as we traversed the terrain of the 20th century with the two world wars and Korea, Joe spoke regularly with Ernesto, advising him on his final paper and on dealing with the military bureaucracy. . . . And then, just as we were coming to . . . Vietnam, I received an e-mail from Ernesto letting me know that his brother had died.

Not surprisingly, Ernesto’s attendance became erratic, and he skipped entirely the discussion of our current wars.

In today’s Big Journalism, Dutton Peabody calls Bellesiles’s story “fishy” and asks whether the Chronicle bothered to check the story:

But given Mr. Bellesiles’ last book, unkind minds have fallen back on President Reagan’s “trust, but verify” maxim.

Peabody has trouble finding Bellesiles on the Central Connecticut State University (CCSU) website, but I found him there. Bellesiles taught at CCSU in both the Fall 2009 and the Spring 2010 terms. However, according to the course listings there, he taught his Military History course in the Fall 2009 semester, not the Spring 2010 semester. The Spring term ended in May, so (if the CCSU website is correct) Bellesiles may have been mistaken in describing the events as occurring in “this last semester.”

Peabody also wonders about the fast progression from the brother “Javier” being “recently enlisted” as of the first class and yet seriously wounded only a few weeks later.

But Peabody’s chief problem is this:

Funny: the Hartford Courant keeps careful track of Connecticut casualties, and there has been only one fatality so far this year, reported on April 4th as recently killed. That would seem weeks before Mr. Bellesiles says Javier died in Iraq. And then Lance Corporal Tyler Griffin was a Marine, not Army. And killed by an IED, not a shot to the head. And in Afghanistan, not Iraq. Nor was he an immigrant, as Javier is described. (“We discussed [his] reasons for enlisting, which mostly focused on a sense of gratitude to a country that had given their family refuge.”) And there is no sign of a brother in the Courant obituary.

In my review of several sites, but chiefly ICasualties, I find no Connecticut military killed in Iraq in 2009 or 2010 (and only one in 2008, a Marine who died from a non-hostile cause). If one expands the search to all US military deaths in Iraq from all US states and territories from the beginning of the Fall 2009 semester through the end of classes in the May 2010 semester, I could find no deaths from any state that fit Bellesiles’s account (Iraq War, recent Army enlistee, hostile fire from a rifle or similar weapon, lingering death). Nor did my quick review of all US military deaths in Afghanistan (if one changed the theater from Iraq to Afghanistan) during the last two CCSU semesters turn up any likely prospects (though I would need a closer review to be certain).

Thus it appears that Bellesiles’s account is false in at least some trivial respect–probably in the term he taught the course and in the circumstances of “Javier’s” service or death.

Further, without personal knowledge of Army procedures, I found it strange that a critically injured US soldier would not be brought to Germany for treatment over a period of several weeks. Further, while not suspicious in itself, at this stage of the Iraqi War almost all US deaths occur on the same day as the attack or on the following day. Indeed, this detail alone can be used to exclude most deaths in Iraq and Afghanistan in the last year.

If I had to guess, I would suspect that the story Bellesiles told in the Chronicle is mostly true; after all, it would be too easy for the Chronicle or Bellesiles’s department chair to check the facts with “Ernesto” and with Joe, Bellesiles’s teaching assistant. Yet some things reported by Bellesiles in the Chronicle appear to be false: the term he says he taught Military History is inconsistent with CCSU’s website, and the facts of “Javier’s” Army service and death in Iraq do not match any deaths reported by the Department of Defense for soldiers from any US state or territory.

And note that Bellesiles opens his Chronicle article with a warning that many military stories can’t be trusted, even eyewitness ones. Is this his sly way of warning us that he doesn’t fully trust “Ernesto’s” account himself or that Bellesiles is telling us a tall tale? For his sake, I hope not.

Fourth installment in a five-part series on Silverglate’s book, Three Felonies a Day: How the Feds Target the Innocent.

In a discussion on WAMU Radio yesterday, host Kojo Nnamdi noted that vagueness in the federal criminal law has recently made “strange bedfellows” of the political left and right. This same “emerging consensus” was also the subject of an insightful November 23 article by Adam Liptak, The New York Times’ Supreme Court reporter.

What has occasioned this coming together? As I mentioned here on Monday, individuals and organizations of all political stripes are realizing the danger to all when prosecutors are empowered with exceedingly broad and—worse—hard-to-define federal laws. A diverse coalition of groups—including the Heritage Foundation, the Federalist Society, the Cato Institute, the National Association of Criminal Defense Lawyers, and the ACLU, among others—have been sounding a clarion call against this species of executive expansion. They have pointed out that, from webmasters to fund managers, no segment of civil society is safe.

But this phenomenon is not new. As I document in Three Felonies a Day, the proliferation of vague laws—and prosecutions under them—began in the mid-1980s. Why has widespread recognition, especially from the American public, taken so long?

For one thing, the Department of Justice has a very effective public relations machine. With every major indictment, there is a press release and, not infrequently, a press conference that major national media typically attend with bated breath. Flanked by FBI, IRS, DEA, SEC, and members of the other myriad supporting agencies, prosecutors feed reporters the government’s side of the case, often a matter of hours after a hapless defendant has been rousted out of bed and paraded in the infamous “perp walk” (much to the delight of press photographers who have been tipped off in advance). At the end of this prejudicial circus-like performance, prosecutors often refuse to answer media questions on the ironic ground that they are bound by the federal court’s rules against pre-trial publicity and, in any event, they do not want to cause the public (especially potential jurors) to prejudge the case!

But the press corps itself is ultimately responsible for the one-sided coverage of what I call “three-felonies-a-day” cases (a reference to my new book, Three Felonies a Day: How the Feds Target the Innocent). The fact is that there is an unseemly relationship between the Department of Justice and much of the news media. While in some areas the press and the DOJ have developed an appropriately adversarial, or at least skeptical relationship, by and large the DOJ plays the press corps like a fiddle.

Consider the Houston Chronicle’s slanted coverage of the arrest, indictment, and trial of former Enron President Jeffrey Skilling, convicted in May 2006 on charges of conspiracy, securities fraud and depriving the now-defunct Houston-based energy company of his “honest services.” Vitriol for Skilling was not limited to the Chronicle’s opinion pages; news articles, sports stories, and columnists vilified Skilling well before his day in court. Despite affirming his conviction, the Fifth Circuit Court of Appeals ruled that the media coverage created a community prejudice against Skilling. The three-judge panel wrote (PDF) that the Chronicle published “nearly one hundred…personal interest stories in which sympathetic individuals expressed feelings of anger and betrayal toward Enron,” and that even “the Chronicle’s ‘Pethouse Pet of the Week’ section mentioned that a pet had ‘enjoyed watching those Enron jerks being led away in handcuffs.’” (Emphasis in original) In Houston, the so-called Fourth Estate played the role of prosecutorial lapdog.

The Supreme Court decided on October 13 to review the Skilling case as part of its trio of honest services cases this term, and one of the issues on appeal is the extent to which jury prejudice affected the verdict. But, if the previous hearing on honest services is any indication, the justices will use the Skilling case to look at the broader constitutional due process question surrounding the infamously vague 28-word fraud provision. Oral argument is set for March 1.

Another public figure, disparaged in the public eye even before he was indicted (much less convicted) will be intently watching the high court’s decisions in all three honest services cases. The prosecutor’s press machine has been so effective that even mentioning his name causes some to chuckle with derision. But the case of former Illinois Governor Rod Blagojevich deserves a closer look.

Illinois U.S. Attorney Patrick Fitzgerald framed the case, from the start, as an altruistic Department of Justice mission to clean up state and local politics. At a December 9, 2008 press conference, held shortly after Blagojevich’s early-morning arrest on a variety of political corruption charges, Fitzgerald announced his most sensational allegation: The governor deprived Illinois’ electorate of his “honest services” when he sought to sell to the highest-bidder the Senate seat vacated by Barack Obama. The headlines were, predictably, nationwide, in large type above-the-fold (or the on-line equivalent).

This discovery from the wiretap and bug planted by Fitzgerald’s agents in the governor’s office and home was deemed so threatening to the public weal that the prosecutors, rather than give the plot time to play itself out and result in an outright sale-and-purchase of the Senate seat, pulled the plug and arrested Blagojevich before any deal was consummated—or so the nation was told. At the press conference, Fitzgerald informed a rapt audience of newsmen that he had to act precipitously to prevent the governor from carrying through this “most appalling conduct” that was the pinnacle of the governor’s “political corruption crime spree.”

So the prosecution is for a “conspiracy,” or plan, to sell the Senate seat, rather than for an accomplished act. Without having to show that Blagojevich actually sold the Senate seat, and with the notoriously vague federal conspiracy law, securing a conviction is much easier. In a sense, no real crime is required. Yet neither the media nor the public questioned Fitzgerald’s motives for failing to wait until the Obama seat was actually sold. (Had such a sale taken place, of course, the Senate would surely not have seated the governor’s nominee. Hence, there was no good reason for Fitzgerald to fail to wait for the completed crime—except, as I suggest, that no such sale was in fact going to take place.)

Blagojevich has some quite different perspectives on his pre-arrest political machinations, which he sets out in a remarkable, even if unbalanced and in some places downright silly, memoir published after his indictment, entitled The Governor. The former governor claims that his motive for choosing Obama’s successor had to do with getting his political enemies out of the way of his legislative agenda. If Blagojevich’s account is to be believed, Fitzgerald pulled the plug prematurely not to serve the people of Illinois, but to save his own case. Had the matter been allowed to play itself out, says the former governor, it might have become increasingly obvious that what Blagojevich was doing was perfectly legal—even if unsavory to some refined sensibilities—Chicago politics. Indeed, Blagojevich tried, without success, to obtain the full, unedited eavesdrop tapes to play at his impeachment trial, claiming they would exonerate him, but was unable to do so due to Fitzgerald’s objection. At the very least, the tapes might have portrayed conduct deemed lawful, or at least acceptable under Illinois state law.

Blagojevich’s benign (even if unrefined) political explanation is lent credence by something Fitzgerald said during the December 2008 press conference. He noted that an Ethics in Government Act was pending in Illinois, scheduled to take effect January 1, 2009 that, according to Fitzgerald, “would bar certain contributions from people doing business with the state of Illinois.” And so, explained Fitzgerald, Blagojevich and his cronies “were working feverishly to get as much money from contractors, shaking them down, pay-to-play before the end of the year.” In other words, Fitzgerald appeared to be conceding that at least some of Blagojevich’s conduct was in accordance with state law as it stood at the time. Not a single reporter, however, pointed out that this “crime spree” was apparently occurring before the new ethics laws were enacted, and that the governor’s actions therefore conformed to and were permissible under state law.

Were these “crimes” the work of an arch criminal, or merely the machinations of a master political opportunist doing what Illinois law allowed? While it is true, of course, that the honest services fraud statute enables the feds to prosecute state officials for conduct allowed under state law—this is one of the statute’s problems that the Supreme Court presumably will rule upon in the upcoming cases—it is, or should be, difficult to brand a politician as on a “political corruption crime spree” if he is scrupulously adhering to the statutes and codes duly enacted by a sovereign state legislature.

Until we have a more skeptical press corps, the public discussion of whether and how federal prosecutions on the basis of vague statutes should be reined in is going to have to be conducted without the essential participation of an educated citizenry. This Fourth Estate cheering gallery is not what Thomas Jefferson envisioned.

Available here. Co-authored by Joseph Olson (Hamline), David Hardy, and Clayton Cramer. Key point: From 1789 to 1860, popular and legal understanding of the Second Amendment became much less militia-centric. Well before Reconstruction, the Second Amendment was considered to be mainly a guarantee of a right to own and carry guns for personal protection. Back in 1998, I wrote a hundred-page article, The Second Amendment in the Nineteenth Century, 1998 BYU Law Review 1359, which focused mainly on cases and treatises. Olson/Hardy/Cramer have gone further, and brought forward extensive evidence about the understanding of the public and of elected public officials. Along the way, the brief also corrects some misunderstandings about the 19th-century Second Amendment which appeared in Justice Stevens’ dissenting opinion in Heller.