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Saturday, March 29, 2003


NOT THE MOST EVENHANDED SORT OF POLL QUESTION: Here it is, from a Washington Post poll:
15. As you may know, Bush has proposed a 726 billion dollar tax cut over the next 10 years. The Senate has voted to reduce that to 350 billion dollars in order to help pay for the war, reduce the deficit and shore up the Social Security fund. Do you support or oppose this reduction in Bush's proposed tax cut?
The result was 65% support and 29% oppose -- but might this have been influenced by the fact that the question provided the argument for the reduction -- complete with three appealing-sounding subarguments -- but didn't provide the argument against it? After all, the tax cut's backers must have some reasons why the reduction should take place as planned; might it have been worth mentioning those reasons, given that the Post seemed to think it was worth mentioning the reasons for the other side?

     Incidentally, here's how the Post story itself characterized the poll:
The survey found that 65 percent of the public favors the Senate-passed plan to reduce Bush's $726 billion tax cut by more than half in order to pay for the war, shore up Social Security and reduce the deficit -- a view shared equally by Republicans as well as by Democrats and political independents.
Now a highly skeptical reader might have read this and inferred that the respondents were prompted with the possible reasons to support the reduction. But I suspect that many readers wouldn't have drawn this inference; they would probably have thought that the question simply asked "do you favor the Senate-passed plan to reduce Bush's $726 billion tax cut by more than half?" or some such, and the "in order to . . ." clause was the Post's way of explaining to readers (not to the poll's respondents) why the Senators supported such a reduction. And I strongly suspect that the great majority of readers did not think that the question only gave the reasons for the reduction and not the reasons to oppose the reduction. Fortunately, on the Web people can click on the small link labeled "Complete Poll Results" on the right-hand side of the screen and see the text of the questions; but I doubt that readers of the print edition saw the question text reported anywhere.

     Is this the way that supposedly impartial media organizations ought to conduct and report on polls?

     (Thanks to lawprof David Bernstein for spotting this and passing it along.)


ONE REASON MANY IRAQIS SEEM PRO-SADDAM: This is from the Arab News, not exactly a mouthpiece of the Bush Administration:
When we finally made it to Safwan, Iraq, what we saw was utter chaos. Iraqi men, women and children were playing it up for the TV cameras, chanting: “With our blood, with our souls, we will die for you Saddam.”

I took a young Iraqi man, 19, away from the cameras and asked him why they were all chanting that particular slogan, especially when humanitarian aid trucks marked with the insignia of the Kuwaiti Red Crescent Society, were distributing some much-needed food.

His answer shouldn’t have surprised me, but it did.

He said: “There are people from Baath here reporting everything that goes on. There are cameras here recording our faces. If the Americans were to withdraw and everything were to return to the way it was before, we want to make sure that we survive the massacre that would follow as Baath go house to house killing anyone who voiced opposition to Saddam. In public, we always pledge our allegiance to Saddam, but in our hearts we feel something else.”

Different versions of that very quote, but with a common theme, I would come to hear several times over the next three days I spent in Iraq.

The people of Iraq are terrified of Saddam Hussein. . . .
(Thanks to Kathryn Lopez at NRO's The Corner for the pointer.)


SLIDESHOW OF PHOTOS OF OUR KILLED IN ACTION / MISSING IN ACTION SOLDIERS: The Spokesman-Review (Spokane and Couer d'Alene) put it together.

Friday, March 28, 2003


WE SHOULD BE SLOW TO COMPARE PEOPLE TO HITLER, but when they do it themselves, it seems fair to quote them:
At the state funeral of one of his cabinet ministers, [President Robert Mugabe of Zimbabwe] said: "I am still the Hitler of the time. This Hitler has only one objective, justice for his own people, sovereignty for his people, recognition of the independence of his people, and their right to their resources.

"If that is Hitler, then let me be a Hitler tenfold. Ten times, that is what we stand for."

Hours later members of the Zimbabwe National Army, including Mr Mugabe's elite force, the Presidential Guard, began a pre-dawn rampage in revenge for the opposition general strike last week.

The attacks left more than 250 people injured, scores of them seriously, but victims remained defiant yesterday. Patricia Mukonda, 27, a secretary at the head office of the opposition Movement for Democratic Change, needed hospital treatment.

Up to 60 members of the Guard and other soldiers . . . attacked under cover of darkness. . . .

"They beat me all over," she said, adding that she was sexually assaulted with a baton while her six-year-old son was forced to watch. . . .
Yup, sounds like Mugabe is a man with a role model. Also check out Doris Lessing's article about Mugabe. (Thanks to Jesse Walker at Reason's Hit & Run for the pointer to the Hitler piece, and InstaPundit for the pointer to the Lessing piece.)


MIGHT HELP EXPLAIN WHY FEWER PEOPLE ARE CHEERING US THAN WE EXPECTED: It's hard to tell for sure whether this is true -- but it's certainly quite plausible, and it should be a reminder that we can't right now accurately gauge many things, from the true Iraqi attitudes today to the likely Iraqi attitudes when we win to the likely European or American attitudes when we win:
Civilians who greet US and British troops are being executed on President Saddam Hussein's orders, according to a former chief scientist of the Iraqi Atomic Energy Commission, Dr Hussein Shahristani.

The most recent outrage was carried out in the small town of Khidr, between Nasiriyah and Samawa, where some families were accused of cheering the US soldiers who drove through their locality, Dr Shahristani who is now chairman of the Iraq Refugee Aid Council, told

Their executions started as soon as the US soldiers left, the scientist, who is now based in Kuwait, said.

"These [coalition] troops pass through local towns and villages and do not stop for long enough to clean up Saddam's terror apparatus.

"When they depart, the civilian families are left to the mercy of Ba'ath party officials and the thugs in charge of Saddam's fidayeen militia.

"Those Iraqis who refuse to serve on the frontline are also being shot," he said.

Dr Shahristani said he had been informed of the killing of a tribal leader, Rahim Karim, who was late by five minutes for a meeting with Saddam's cousin and local governor, Aly Hasan Al Majeed.

Karim had come to discuss how members of his tribe could be mobilised for frontline duty, but Majeed lost his temper and had him shot.

Perhaps, the execution of Karim and others goes some way in explaining British army reports of a civilian uprising against Saddam in the city of Basra.

The reports are yet to be confirmed.

Earlier this week, civilians were reported to be coming out of Basra to inform coalition forces about the whereabouts of Saddam's supporters and assist in directing air and artillery strikes against their own city.

British military officers said the locals are telling them about the movements of the paramilitaries local to the regime.

This is proving crucial in identifying targets for British and American warplanes carrying out sorties.

One British official said, "Most of it [information] is coming from Iraqi people who are fed up with the regime and who are sneaking out across the bridges to tell us what is going on in the city.

"It is very risky, but the fact that so many people are prepared to do this indicates the level of opposition that there is to Saddam within Basra."
Thanks to The Command Post for the pointer.


TIMING: From Victor David Hanson in National Review Online:
We should recall that in the first Gulf War we bombed for over 44 days. Critics in 1991 by day 10 were complaining because after the first few nights’ pyrotechnics, Saddam’s army had not crumbled. In turn, earlier swaggering air-advocates had promised victory in three weeks -- only to be unjustly slandered that they had failed to end the war in six. Gulf War I is considered a great victory; it required 48 days of air and ground attacks by an enormous coalition to expel the Iraqi army from Kuwait. Our present attempt, with half the force, seeks to end Saddam Hussein altogether -- and on day 7 already had him cut off, trapped, and besieged.


A POEM ABOUT THE WAR From Cathy Seipp, an echo of Westron Wind:
Westron wind, when wilt thou blow?
The smart bombs down do rain
Inshallah, that my love were in my arms
And Michael Moore in Saddam Hussein's


Sheryl Crow Unsuccessful; War On Iraq Begins

WASHINGTON, DC -- In spite of recording artist Sheryl Crow's strong protestations, including the wearing of a "No War" guitar strap, the U.S. went to war with Iraq last week. "Making the decision to go to war is never easy, but it's that much harder when you know Sheryl Crow disapproves," White House press secretary Ari Fleischer said at a press conference Monday. "It is this administration's sincerest hope that it can one day regain the support and trust of the woman behind such hits as 'All I Wanna Do' and 'Soak Up The Sun.'" Fleischer issued similar apologies to Martin Sheen, Janeane Garofalo, and Nelly.
Thanks to Andrew Sullivan for the pointer.


A HIT-STORM AT ANOTHER SITE: Phil Carter, whom I'm fortunate enough to have as a student in my free speech law class this semester, has had 11,000 visits this morning alone. I saw that there was a surprising number of users coming to the Conspiracy from his site's blogroll link to us, and decided to check the trackers. Very impressive; if you haven't yet checked Phil's site, you should -- he's a former Army officer who writes calmly and thoughtfully about many issues related to the war.


DENMARK DEPLOYS TROOPS AGAINST IRAQ: "It's Now Official -- We're at War." Thanks to the Command Post for the pointer.


SPEECH ON PUBLIC PROPERTY: Sadly, I find myself forced to disagree with Eugene on a small aspect of his recent post concerning speech on public property. Towards the end of the post, Eugene writes that "the government does have nearly unlimited power to express its own views on its own property (setting aside the constraints that the Establishment Clause imposes on religious speech by the government). " The constraints on government's power to engage in so-called government speech, at least where it involves allocation of public funds for such speech, remains a decidedly open question. While the Supreme Court certainly has considerable dicta on the subject, it has never endorsed the government speech doctrine in an actual holding. While there are many types of government speech that are plainly permissible, that is a far cry from saying that the government's power to engage in such speech is unlimited. The better view, that I have proposed in various briefs, is that government may speak and convey its own viewpoints so long as such speech is "germane" to the conduct of some government program other than speech. That is the same rule applied to government compelled support for third-party speech, which, as Justice Scalia recognized in his opinion in NEA v. Finley, is not materially different from government speech and may in fact be less of an offense to the First Amendment than is government speech.


At an anti-war "teach-in" this week, a Columbia University professor called for the defeat of American forces in Iraq and said he would like to see "a million Mogadishus" -- a reference to the Somali city where American soldiers were ambushed, with 18 killed, in 1993.

"The only true heroes are those who find ways that help defeat the U.S. military," Nicholas De Genova, assistant professor of anthropology at Columbia University told the audience at Low Library Wednesday night. "I personally would like to see a million Mogadishus."

The crowd was largely silent at the remark. They loudly applauded De Genova later when he said, "If we really believe that this war is criminal . . . then we have to believe in the victory of the Iraqi people and the defeat of the U.S. war machine."
De Genova also said (I quote here from the Columbia Spectator):
U.S. patriotism is inseparable from imperial warfare and white supremacy.
Tell that to the patriotic black, Hispanic, Asian, and American Indian soldiers who are fighting and dying in the war alongside their white comrades. Oh, no, wait, I understand -- they must all be fools who don't really understand the deeper wisdom that you have arrived at (unless their grades are good enough):
Many of the professors explicitly discussed the responsibilities of academics to act against the war. Kevorkian Professor of Iranian Studies Hamid Dabashi called them "'A' students," in contrast to the "'C' students" who he says are running the government . . . .

"Tonight," [Dabashi said,] "we think for ourselves.

Revenge of the nerdy 'A' students against the stupid 'C' students with their stupid fingers on the trigger."
At least two of the speakers who followed De Genova distanced themselves from his comments. One of them was teach-in organizer Eric Foner, a history professor, who disagreed with De Genova's assertion that Americans who called themselves "patriots" also were white supremacists.

In a telephone interview Thursday, Foner went further in his criticism, calling De Genova's statements "idiotic."

"I thought that was completely uncalled for," Foner said, referring to De Genova's allusion to the Mogadishu ambush and firefight, portrayed in the film "Black Hawk Down" and known for the graphic image of a slain American soldier being dragged through the streets. "We do not desire the deaths of American soldiers."
Here are some thoughts from the Columbia Spectator editorial about the event:
The goal of the event, presumably, was to spark intellectual, scholarly discussion about the war in Iraq. But last night's event was not a serious debate. It was a forum where professors could express their views unopposed.

Even if the event was designed for the very legitimate purpose of advocating only an anti-war perspective -- and not, as Professor Ira Katznelson suggested at the beginning of the evening, "to teach" -- one of the surprising things about the teach-in was the assumption on the part of several speakers that no one in favor of the war (or even anyone ambivalent) was present. Professor Jack Snyder said he felt comfortable speaking at Low last night because he knew there would be little opposition. The speakers were not out to change anyone's mind about the war; instead, they reveled in an atmosphere of intellectual conformity. . . .

Even when some professors distanced themselves from the more emotionally charged opinions, such as when Professor Eric Foner explicitly stated his disagreement with DeGenova, the overall intellectual atmosphere remained ideologically uniform. There was little explicit acknowledgement that advocates of the war were anything other than "stupid" or "shameless liars and hypocrites."

While Professor Alan Brinkley claimed he respected those who disagreed with him, he still only referred to his opponents as a vague political "Right" in the service of "corporate interests" when talking about the origins of the U.S. government's current stance.

The audience at the forum seemed equally unwilling to entertain the idea of reasonable dissent. When Professor Todd Gitlin told students the energy of protest must eventually be used in more pragmatic ways, like working to ensure that President Bush is not reelected, he was greeted with some hisses. By contrast, even the most stridently radical claims of previous speakers, like DeGenova, were met only with cheers.

Billed as a change of pace from the anti-war rally that occurred just hours earlier near the sundial, the teach-in should have been a tremendous opportunity for Columbia students to learn about the war, and good reasons for opposing it, from experts from widely varied disciplines. While some professors did present articulate and sophisticated reasons for disagreeing with the war, the possibility of disagreement was never taken seriously; no "teaching" took place. Too many students left the teach-in feeling intimidated not by the overwhelming opposition to the war, but to the way an academic forum became a fervid presentation of an exclusive viewpoint. In the future, the University should be wary of advertising a "critical" forum that is so uncritical of its own perspective.
A quick search also revealed similarly interesting statements from some professors at a different event last year:
Professor of Middle Eastern Languages and Cultures Joseph Massad decried Israel as "a Jewish supremacist and racist state," and stated that "every racist state should be threatened."

"The heritage of the victims of the Holocaust belongs to the Palestinian people. The state of Israel has no claim to the heritage of the Holocaust," claimed Professor of Latino Studies Nicholas De Genova.
(A later letter to the editor by him stresses that he also said "The heritage of the oppressed belongs to the oppressed -- not the oppressor.") Apparently, though Iraq, despite its racist slaughter of the Kurds -- or for that matter other Middle Eastern states who had attacked their Jewish (or other) minorities -- "should [not] be threatened"; nor have I seen a discussion of whether the gassed Kurds have any claim to the heritage of the Holocaust. Oh, and Prof. Dabashi makes an appearance in that article there, too:
Others, like Professor of Middle Eastern Languages and Cultures Hamad Dabashi, canceled their late morning and afternoon classes altogether, which caused concern among students planning to attend class as usual.

One of Dabashi's students opposed having class cancelled because, in his opinion, such action encourages overpoliticization of Middle Eastern culture courses.
No, really?

     Finally, for whatever it's worth, here's the paragraph blurb about De Genova from when he was teaching at Stanford:
Nicholas De Genova’s doctoral dissertation, entitled Working the Boundaries, Making the Difference: Race and Space in Mexican Chicago, explores socio-cultural processes implicated in the mutually constitutive productions of racialized difference and urban space in the experiences of Mexican migrant factory workers in Chicago. De Genova’s research posits a Mexican Chicago as a standpoint of critique from which to interrogate the U.S. nation-state, political economy, racialized citizenship, and immigration law. . . .


COST-BENEFIT RANKINGS OF LAW SCHOOLS: Reader Joe Socher pointed me to a ranking of law schools by financial cost and likely return on investment (taking into account the cost of living). I'm not sure this framework is entirely sound, for various reasons; but I thought I'd pass it along.


POEMS: I thought I'd mention again the Shards: Poems from the War project that I started up a while back. We've only published a few poems, but that's the beauty of putting stuff out for free -- you can publish only what you like, and at your own pace. Here are the submission guidelines:

     Please send submissions to volokh at A few tips:
  1. Poetry is a tremendously subjective field; the material here is chosen solely based on our subjective and often erroneous judgment.

  2. Because of our quirky tastes, please submit only formal verse, which generally means at least metered, and preferably both metered and rhymed. Free verse can be wonderful -- but it's just not our cup of tea.

  3. We prefer poems that are 20 lines or shorter. We may make exceptions, but shorter is better (even in the under-20-line zone).

  4. We generally like poems that are subtle but not opaque, that are neither over-the-top nor passionless, and that use language that is elegant but simple. How's that for precise guidelines?

  5. By submitting the poem, you are agreeing to let us distribute it indefinitely on this Web site, and also on the Volokh Conspiracy site. You are also agreeing to let us include your name and e-mail address, unless you expressly tell us otherwise.

  6. We are happy to republish work you've already published elsewhere. Please do not, however, send us work that you love but that was written by others; please ask them, if you know them, to submit it themselves.

  7. We will try to respond within one week of your submission, and we will usually succeed.

  8. If we find that we lack the taste or the heart to uncover enough gems in what we're sent -- or, for that matter, if we're not sent anything at all -- we reserve the right to quit having published nothing.
Finally, something that is surely not news to most writers and readers: A poem is not (or at least not necessarily) a political slogan. It need not be a forthright declarative or imperative sentence. Its meaning ought not be cloaked in too much indirection, but neither does it require the straightforwardness of reportage or instruction. A phrase may reflect ambivalence as well as certainty. The narrator is not always to be trusted. Words of triumph can cloak despair, and vice versa.


50,000 UNIQUE VISITS PER DAY: The Command Post hit counters show that it's been getting roughly 50,000 unique visits per day over the last several days -- on a money budget of, I suspect, next to nothing. (The time budget, on the other hand, is doubtless huge.) Those airy platitudes about the glories of the market, viral marketing, flexibility and dynamism, and the Internet seem to be absolutely true here.


Yellow ribbons and all other war memorials have been banned from public property here . . . .

The Fieldsboro Borough Council approved the ban last week, but Mayor Edward "Buddy" Tyler said it does not prohibit residents from placing memorials on their own property. He said that while town officials "certainly recommend" that residents show their support for the troops, there were other concerns that must be recognized.

"Where would you draw a line if you started allowing the use of public property to exhibit whatever cause anyone wanted?" Tyler told The Trentonian of Trenton for Friday's editions. "Suppose someone wants to tie pink ribbons, or black flags, or a Confederate flag or a Nazi flag on public property?"
This is a very plausible concern, especially given court decisions such as this one from the Ninth Circuit, which hold -- again, quite plausibly -- that once the government opens up public property to patriotic private speech (such as flags, in that case), it must open it up to other viewpoints, including ones that many might find offensive.

     In general, there's a lot to be said for the courts' position on such cases, a position that is probably dictated by the Supreme Court's caselaw. Once the government opens up public property to private speech, there's good reason to require that the government be evenhanded in the sorts of speech that it allows there. It may be appealing to say "it's the government's property, so the government has full control over what's said there"; but when the government controls 35% of the GNP, and therefore controls a vast range of property (tangible and otherwise), letting the government have unlimited say about the sorts of private speech that are allowed on its property would give it tremendous control over public debate.

     At the same time, the government does have nearly unlimited power to express its own views on its own property (setting aside the constraints that the Establishment Clause imposes on religious speech by the government). As the Ninth Circuit flag decision recognized, if the government chooses to speak itself -- whether in favor of patriotism, racial equality, abstinence from drugs, or what have you -- it may do so without providing an equal forum to others.

     So here then is the puzzling consequence: Fieldsboro could put up American flags and yellow ribbons itself on city property, and exclude private speech from it (government agencies routinely do put up American flags on government property, after all, and this doesn't require them to also allow Iraqi flags on the same property); but it probably can't leave it up to citizens to put up their own flags and ribbons on city property. That might be a sensible distinction; or it might be an odd result of a distinction that's sensible more broadly, even if it reaches strange results in particular cases (many legal rules work well in most cases but yield surprising results in some situations); or it might show that the broader distinction is indeed mistaken, and that either the government should be severely constrained in its own speech, or the government should be free to open up property to some privately expressed viewpoints and not others. But in any event, I thought I'd point it out.

     Thanks to the Command Post for the pointer to the AP story.


IRAQIS THREATENING THEIR OWN SOLDIERS: A message from a reader reminds me that it's important to make clear the significance of points such as this one:
[Eugene Volokh, 10:56 AM]
. . . ONE REASON WHY THE IRAQIS ARE FIGHTING: They or their children may get shot by the regime if they don't.
In part, I was saying this to illustrate the brutality of the regime, which is willing to threaten to kill children in order to coerce their parents. But I don't want to claim that the same argument entirely holds for threatening to kill the soldiers themselves -- threatening to kill soldiers (volunteers or draftees) for failing to fight the enemy (the general military justice term, I think, is "cowardice," though sometimes it might just be good sense) is, unfortunately, more defensible. It may still be cruel, especially if the fighting seems pointless; and the moral questions involved here are nontrivial. But I'm not willing to rest much of an argument on the assertion "Look how evil the Iraqis are -- they're threatening their soldiers with death if they fail to obey orders."

     Rather, the point there is quite different: Many people are saying "Look, the Iraqi soldiers are fighting us, rather than surrendering to us -- this means that average Iraqis really do hate us for invading." Reports such as the one I cite provide an alternate explanation: Maybe the soldiers, or at least many of them, really would like to surrender, but they fear instant death from their own discipline enforcers if they try. So we shouldn't draw much of an inference about average Iraqi attitudes from the actions of likely coerced soldiers.

     This, I think, is an important point, because the views of average Iraqis towards the invasion are indeed significant, since they will influence what happens after Saddam is removed. But I agree that we shouldn't draw too much from the evidence of coercion -- and in particular that we shouldn't suggest that coercion of the soldiers themselves (even with threat of death) is uncommonly or shockingly brutal.


UPDATE: Yesterday, I asked, quoting an unknown author:
If Saddam loses a leg, but survives the U.S. bombing, how upset will his body doubles be?
Reader Jerry Huling replies:
Why, they'd be hopping mad!


OZ CONTINUED: I'm told that my TNR column was reprinted in today's dead-tree The Australian.


THE LOGIC OF THE EXTREME SELF-DEFENSE-ONLY ARGUMENT: Many people, such as my correspondent a couple of posts done below, argue that of course war is sometimes justified -- when it's fought in self-defense against a foe that "directly attack[s]/inavde[s] us," and that this shows that they would have indeed been in favor of America fighting the Nazis in World War II, though not most other wars. War in self-defense, they reason, is justified, though unfortunate; but if there's no self-defense justification, then it's wrong to kill innocent civilians and trespass on other nations' sovereignty. What's more, they generally reason, the government must explore all possible alternatives to war, and use war just as a last resort.

     The trouble, though, is that the Nazis didn't actually attack or invade us in World War II. They did declare war on us, pursuant to their treaty with Japan; but unless I'm mistaken, there were comparatively few military confrontations between the Germans and the Americans (mostly fairly small scale submarine warfare, largely aimed at our supplying the British and the Russians) until the U.S. actually attacked in the European theater in late 1942.

     Roosevelt did announce in 1943 that the U.S. intended to fight until an unconditional German surrender; but he didn't have to. If he really thought war was only permissible in self-defense, and as a last resort, he could have told the Nazis in Dec. 1941, shortly after they declared war, that America had no quarrel with Nazi Germany, and the Germans should have no quarrel with us. We wouldn't help the British or the Russians, the Germans wouldn't really help the Japanese -- think of it as an immediate ceasefire. And by the time the tide turned in mid-1942 in favor of the U.S. in the Pacific, the Germans would probably have been quite happy to make peace with the likely winner, especially if they would still have been having real trouble on the Eastern Front. After all, the Germans hadn't really attacked Americans. There really was no need for self-defense. There was surely no need for Americans to kill innocent German civilians, which any American war against the Germans would have necessarily led to. And of course the Roosevelt Administration had an obligation to exhaust all possible alternatives before going to war. Surely the ceasefire with the Nazis would have been a perfectly sound alternative from the pure self-defense perspective.

     Of course, this only rebuts the pure self-defense-only argument; perhaps some other versions of the argument might be more defensible. Perhaps Roosevelt's decision to fight the Nazis was justified on the grounds that had the Nazis won in Europe, they would be a serious threat to us, which might explain why Roosevelt did feel that fighting the Nazis was indeed our business -- but that's the very anticipatory self-defense theory that the anti-war forces generally condemn. Perhaps Roosevelt's decision is justified because we're also entitled to go to war to defend others, though that would justify a great many wars (my correspondent wrote that only three wars that the U.S. fought had fit the self-defense criterion, which means the correspondent was not accepting the defense-of-others rationale). Or perhaps there's some mixed theory: one may not enter a war first until the other side attacks or declares war, but once they declare war, then one can continue the war even when the need for immediate self-defense vanishes, or when other alternatives (such as a separate peace) arise. The rationale here would be that the other side has irrevocably waived its right not to be attacked by declaring war, though it's hard to see why (under the broad antiwar logic) this waiver should apply to the rights of innocent German citizens, who were no threat to the U.S. in late 1942, and who never voted to declare war.

     But while some such arguments might work -- as I've stressed repeatedly, there certainly are plausible arguments against this war -- they can't try to trade on the moral purity of the "[only] if the U.S. was directly attacked/invaded" / self-defense-only / no-war-unless-all-diplomatic-alternatives-are-exhausted argument. And if one does accept this argument, then I think the conclusion is that the U.S. should have fought it out with Japan (though only until Japan promised not to touch Hawaii or the Philippines again) but have promptly concluded a separate peace with Germany. If one accepts that conclusion, then that's fine; but those who don't accept it must therefore reject the pure self-defense-only view.


FIREBALL! Space Weather News, one of my favorite sites, reports the following:
Sky watchers in several US states were startled around midnight on March 27th when a brilliant fireball streaked across the sky and exploded. It was a small (perhaps less than a few meters wide) rocky asteroid with a mass of about 10 metric tons. Some 500 fragments scattered over a 10-km wide zone in the suburbs south of Chicago. Meteorites struck houses, cars, roads--but no people. Such fireballs are surprisingly common: Researchers expect an asteroidal object one meter in diameter or larger to strike Earth's atmosphere about 40 times per year. Few are seen, however, because they usually appear over unpopulated areas.

A rock "a few meters wide" might not sound like something that can light up the sky -- but when you consider that the "shooting stars" one sees on occasion are each made up of microscopic dust particles exploding on contact with the atmosphere, you can imagine what kind of conflagration results from a particle many millions of times larger.


My current issue of the AALS Newsletter has a curious article in it containing the text of a speech by the incoming President, Prof. Mark Tushnet of Georgetown U Law Center, about "the role of the Association as the scholarly association for law professors."

     The context, or sub-text, for those of you who are not law professors and therefore unfamiliar with the narrow issue, is this: the AALS has never quite been able to figure out whether it is a "trade association" or a "scholarly association" -- whether, for example, the primary focus of its annual meetings will be on the business of law schools (seminars on new teaching methods, student-faculty relationships, admissions policies, relationships with other university components, curriculum, etc.) -- or legal scholarship. Trying to satisfy all constituents, it has usually come down right in the middle -- not a good place to be, IMHO, neither fish nor fowl, and all that.

     So Prof. Tushnet, the incoming President, announces that this is the theme that he has chosen for the year -- how to enhance the society's standing as a scholarly association, a true "learned society," for the legal academy.

     I'm with him so far. I happen to have spent, before my law professor incarnation, time as a physical anthropologist, and I know the value of scholarly associations and the role that they can play within academic disciplines, and it has always amazed me that the legal academy didn't really have such a thing -- one of the (many) things that keeps legal scholarship stuck in a rather primitive state.

     So I read on, expectantly. The next six paragraphs in Tushnet's speech -- the "most important" of the topics bearing on this question of the AALS's status as a learned society -- concern "the Association's activity in connection with the pending Supreme Court affirmative action case." The Association, Tushnet points out, has "long supported affirmative action," and has filed an amicus brief in the case "which draws the Court's attention to the specific benefits of affirmative action for legal education"; he then goes on to discuss the ways that "[o]ur experience as legal educators has demonstrated to us the benefits of the diversity that affirmative action, and only affirmative action, produces."

This is pretty amazing stuff, it seems to me. Inadvertently (I assume!), Tushnet demonstrates precisely why the AALS is not, and probably never will be, a true scholarly association. Affirmative action, for legal scholars (unlike, say, for microbiologists, or geophysicists, or astronomers) is a matter of a great deal of scholarly debate within the discipline; the constitutionality of the Michigan program is a subject on which legal scholars can and do hold different views. For the Association to take a "position" on this would be like the American Physical Society taking a "position" on whether string theory is correct, or the Paleontological Society of American taking a "position" on the theory of punctuated equilibium and genetic drift, or the American Economics Association taking a "position" on the efficient capital market hypothesis. It's absurd, really -- a scholarly association lets the scholars debate the scholarly issues without pre-determining the direction in which the scholarly inquiry should go. If Prof. Tushnet wants to understand why the AALS isn't filling the role of a scholarly society, he might want to re-read his speech.

Thursday, March 27, 2003


GOERING QUOTE: A reader writes:
I think you have missed the boat here with your comments on the anti-war activists use of the Goering quote. There is a critical distinction between Germany and the Allies in WWII -- the Allies acted in self defense.

The moral equivalance alluded to by the anti-war crowd is one of offensive military action that is not taken in self-defense. The great majority of them would support a war if the US was directly attacked/invaded as was the case in WWII. But [this is not so here] . . . . Therein lies the rub, and this is why I believe your logic fails.
All of this is a plausible argument, though one I disagree with. (Among other things, imagine Hitler had not declared war on the U.S. following Pearl Harbor; if the "anti-war crowd" really take the view that attacking Hitler would have been wrong then, that illustrates their error.)

     All plausible except for the use of the Goering quote, because the "critical distinction" that my correspondent points to is precisely the distinction that Goering was denying. Goering is saying that all decisions to go to war are frauds perpetrated by conniving politicians on a gullible public -- the German decision to start the war and the Russian, British, and American decisions to fight it. Goering is equating the Allies acting in self-defense to the Nazis' actions, not distinguishing the two.

     So if the antiwar activists want to make the argument that the war against Iraq is improper because it's not in self-defense -- or even that the government is deluding the complacent public into believing that it's proper, something that wouldn't be so in a defensive war but is so here -- that's fine. But the Goering quote offers no support for this supposedly "critical distinction." As might be expected, Herman Goering proves not to be a font of moral or political wisdom.


MARK STEYN'S LATEST ON THE WAR is excellent -- definitely worth reading. Thanks to Tim Blair for the pointer.


BENIGNI ALERT: From Bob from Accounting, by way of Planet Proctor:
Terror Alert: New Wave of Roberto Benigni Movies on U.S. Soil "Inevitable"

by Tyler Reisinger

Washington, DC - Newly appointed Homeland Security Director Tom Ridge told a Senate Subcommittee today that a new wave of Roberto Benigni movies in the United States was "inevitable."

"For a long time Roberto Benigni movies were a far away problem," Ridge testified."They occurred in distant European theatres, only affecting the Italians. But now the threat of future Benigni films on the homefront is very real."

Already a huge star in Europe, Benigni was recently allowed to release a live-action version of the classic story "Pinocchio in the U.S, causing fear and anxiety among a nation of already jittery American children. . . .

Ridge answered questions posed by members the Subcommittee on the possible European backlash over the new alert. Ridge dismissed the entire continent and their filmmaking skills as "irrelevant," saying we must focus on finding the sources of these films and freeze their funds immediately.

"Sometimes we have to protect America at great cost, but as long as there are pushy foreign distributors who don't even speak English, we will be vulnerable."

Ridge has offered to create a new coded system to gauge the threat of future U.S. released Benigni movies -- low level threat occurs when Benigni is safely making non-subtitled movies in Italy, a mid-level threat occurs when American studio executives meet or discuss future projects with Benigni's agent over lunch. In the rare case that an English-language Benigni movie be complete with a domestic movie release date set, "we immediately go to DEFCON 1. But let's pray it never comes to that." . . .


If Saddam loses a leg, but survives the U.S. bombing, how upset will his body doubles be?
(Author unknown.) Unfortunately, we can't be sure that it's just a joke.


BE CAREFUL WHEN RELYING ON HERMAN GOERING: I recently saw on an antiwar colleague's door this quote -- purportedly from Herman Goering at the Nuremberg Trials -- and then a couple of days later a reader passed it along as well; a google search found dozens of references. According to it's essentially genuine, though Goering said it to an interviewer during the trial, and not at the trial itself:
Of course the people don't want war. But after all, it's the leaders of the country who determine the policy, and it's always a simple matter to drag the people along whether it's a democracy, a fascist dictatorship, or a parliament, or a communist dictatorship. Voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked, and denounce the pacifists for lack of patriotism, and exposing the country to greater danger.
Here, though, is the of a broader excerpt from the interviewer's book:
We got around to the subject of war again and I said that, contrary to his attitude, I did not think that the common people are very thankful for leaders who bring them war and destruction.

"Why, of course, the people don't want war," Goering shrugged. "Why would some poor slob on a farm want to risk his life in a war when the best that he can get out of it is to come back to his farm in one piece. Naturally, the common people don't want war; neither in Russia nor in England nor in America, nor for that matter in Germany. That is understood. But, after all, it is the leaders of the country who determine the policy and it is always a simple matter to drag the people along, whether it is a democracy or a fascist dictatorship or a Parliament or a Communist dictatorship."

"There is one difference," I pointed out. "In a democracy the people have some say in the matter through their elected representatives, and in the United States only Congress can declare wars."

"Oh, that is all well and good, but, voice or no voice, the people can always be brought to the bidding of the leaders. That is easy. All you have to do is tell them they are being attacked and denounce the pacifists for lack of patriotism and exposing the country to danger. It works the same way in any country."
This broader passage, I think, provides some important context, though one can see it in the original version, too: Goering is trying to justify what happened -- what the regime he ran did -- by suggesting that all the regimes are the same. England, America, Russia, Germany; democracy, Parliament, fascism, communism; it's all the same; all war is just regimes manipulating their foolish citizens. The German decision to start World War II, by this logic, is the same as the British and American decisions to resist the Germans.

     So that, I think, is the problem facing those who use the quote: Their proposed moral equivalence between Goering's Nazi Germany and America only works if they are also willing to accept Goering's moral equivalence of Nazi Germany and Roosevelt's America and Churchill's England. And if they are, like I am, repelled by the latter moral equivalence -- if they think that Americans really did deliberately endorse a war against Germany, or that, even if they were influenced by their elected representatives, their elected representatives were properly doing their job by exercising such leadership -- then what's the point of citing as authority a man (a monster) who was asserting it?


LAW SCHOOL FACULTY RANKINGS: Here's another list of law rankings, this one of law school faculties -- I just got an e-mail about it a few minutes ago. Take it with the usual grains of salt, as you would other subjective ranking schemes.


CITATION COUNTS FOR LAW JOURNALS: There's a list here -- potentially useful if you're trying to infer how influential a journal is, and what sort of reputation it has.

     For law schools' general interest journals (e.g., the UCLA Law Review), the citation counts seem to end up being not that different from U.S. News & World Report rankings, though there are some differences; but in any event, with the general-interest journals the reputation of the school may actually be more relevant (for instance, if you're choosing which journal to publish in) than the actual citation count of the journal. But it's long been quite hard to estimate the reputations of specialty journals -- this list might help. Thanks to fellow lawprof David Bernstein for alerting me to it, though I suppose I should have known about it long ago!


FUNNY: Amidst all of today's bloggery, Eric Muller has the funniest post. (I had the same thought Eric did when I read about Scalia's comment, but Eric went to the trouble to illustrate the point.)


"WHEN JOHNNY APPLE SAYS WE'RE THWARTED, WE MUST BE ON THE VERGE OF WINNING": Jack Shafer, in Slate's Pressbox points out some recurring errors of war coverage. Johnny Apple, incidentally, is the author of "Military Quagmire Remembered: Afghanistan as Vietnam," N.Y. Times, Oct. 31, 2001 (the headline, of course, isn't his, but it summarizes his piece nicely), and now of "Iraqis Learn the Lessons of How U.S. Fights Wars," N.Y. Times, today.


"UNCLE SAM'S JIHADISTS": Deanne Stillman, writing in Slate, has what seems to me to be a sober and balanced view of this troubling problem. The overwhelming majority of Muslims in the military are doubtless extremely loyal, and they ought not be punished because of their religion. But some are disloyal -- and while there are some bad folks of all religions in the military, those whose evil flows from a religious and political belief system (Islamofascism) that sides with our enemies are particularly threatening. The tough part, of course, is figuring out what to do about this without being unfair to the many loyal Muslim soldiers, and without causing all sorts of practical problems for America inside the military, in American society, and in the world at large. But it seems to me that we can't ignore that this is indeed a potential problem, though its precise magnitude is not yet known, and might end up being relatively small.

     And just to preempt people trying to raise this objection, of course I'd say the same if, heaven forbid, the U.S. ever got into a war against Israel and there was evidence that some Jewish soldiers were on the Israeli side. Religious, political, and even ethnic loyalties are a reality; we shouldn't overreact to them, and we should be conscious of the danger of overreacting to them -- but we shouldn't pretend they don't exist, either.


MICKEY KAUS ON SENATOR MOYNIHAN: A fine tribute, unusually substantive for obituaries, but particularly effective as a result.


The United Nation's chief weapons inspector has defended his team over suggestions they failed to do their job in Iraq.

US officials have found thousands of chemical protection suits at an Iraqi military base in Nasiriya, along with a chest full of the nerve gas antidote atropine.

Chief weapons inspector Dr Hans Blix says the coalition forces are at an advantage compared to weapons inspectors in Iraq:

"The Americans have one advantage over UNMOVIC, in discovering things and that is as they go around the country and more areas are under their control it seems likely that people scientists engineers military will be more ready to speak to the Americans, than they were to us because when we were there they still had the formidable police apparatus that would scare them from saying the truth, if the truth was any different from what the government said."
Uh, yeah. Thanks to The Command Post for the pointer.


be looked at on the face value of what it is, and it really does very little.”).
But it turns out that these arguments aren't as implausible as all that -- apparently the legitimatization of homosexuality in some contexts has indeed led to its legitimization in others. In the discussions about this very case, people have argued that Texas's allowing gays to adopt (it has already apparently done so, Erik says below, at least to some extent) and Texas's adding sexual orientation to the list of hate crime categories undermines its case for criminalizing gay conduct. And in the Vermont case that mandated the legislature to allow homosexual civil unions, the Vermont Supreme Court used the legalization of sodomy -- together with the legalization of gay adoptions, the prohibition of sexual orientation discrimination, and the sentence enhancements for sexual-orientation-based hate crimes -- as part of its justification:
[1.] The State asserts that [the goal of promoting child rearing in a setting that provides both male and female role models] . . . could support a legislative decision to exclude same-sex partners from the statutory benefits and protections of marriage. . . It is conceivable that the Legislature could conclude that opposite-sex partners offer advantages in this area, although we note that . . . the answer is decidedly uncertain.

The argument, however, contains a more fundamental flaw, and that is the Legislature’s endorsement of a policy diametrically at odds with the State’s claim. In 1996, the [Legislature removed] all prior legal barriers to the adoption of children by same-sex couples. At the same time, the Legislature provided additional legal protections in the form of court-ordered child support and parent-child contact in the event that same-sex parents dissolved their “domestic relationship.”

In light of these express policy choices, the State’s arguments that Vermont public policy favors opposite-sex over same-sex parents or disfavors the use of artificial reproductive technologies, are patently without substance.[169] . . .

[2. W]hatever claim [based on history and tradition] may be made in light of the undeniable fact that federal and state statutes --including those in Vermont -- have historically disfavored same-sex relationships, more recent legislation plainly undermines the contention. [In 1977, Vermont repealed a former statute that criminalized fellatio.] In 1991, Vermont was one of the first states to enact statewide legislation prohibiting discrimination in employment, housing, and other services based on sexual orientation. Sexual orientation is among the categories specifically protected against hate-motivated crimes in Vermont. Furthermore, as noted earlier, recent enactments of the General Assembly have removed barriers to adoption by same-sex couples, and have extended legal rights and protections to such couples who dissolve their “domestic relationship.

Thus, viewed in the light of history, logic, and experience, we conclude that none of the interests asserted by the State provides a reasonable and just basis for the continued exclusion of same-sex couples from the benefits incident to a civil marriage license . . . .
Now maybe the Vermont Supreme Court's arguments here were just makeweight, and the Justices would have reached the same result even had none of the first steps been taken; but I'm not sure that's so, and even if it is so, presumably the Justices made these arguments because they thought that at least some readers would buy them.

     I discuss all this in detail in my Mechanisms of the Slippery Slope piece, starting near footnote 164; and my conclusion is that decisions such as this one can indeed have such slippery slope effects -- decriminalizing gay sex can indeed indirectly increase the likelihood that gay marriage will be recognized, too. "It might lead to gay marriage" is thus a not implausible argument against decriminalizing gay sex.

     Now this having been said,
  1. I think criminalization of gay sex is very bad,
  2. I think gay marriage would probably be good, though my views on this are more tentative, and
  3. I think that the slippery slope effect here, while possible, isn't very likely -- decriminalizing gay sex may increase the likelihood that gay marriage will be recognized, but not by much.
So I think that gay sex should be decriminalized without regard to the slippery slope risks (though I realize that this is a separate question of whether the Constitution mandates such decriminalization). But the slippery slope argument is more sensible than might at first appear.


DAN DREZNER ON ONE REASON WHY THE IRAQIS ARE FIGHTING: They or their children may get shot by the regime if they don't.


Natural Law and Favored Relationships: Jacob's post offering the natural law theory still does not explain the exception for bestiality -- unless we also wish to encourage relationships with various animals -- and begs the question to some degree by framing it as a "marriage" issue alone. If instead we frame it as a "stable family relationship" argument, whether or not sanctioned by the legal institution of marriage, then there is an equivalence between homosexual and heterosexual sodomy. I am informed that Texas allows at least one member of a gay couple to adopt children, hence presumably encouraging relationship stability for such adoptions is a goal; homosexual sodomy would serve an equal, if not greater, role in maintaining homosexual relationships than heterosexual sodomy plays in a heterosexual relationship. (Heterosexuals have another significant sexual option to maintain intimacy and hence may not need to rely on sodomy to do so, whereas homosexual couples necessarily lack that option.)

And if we are going to drag marriage into this, then we should at least be specific about why the state generally encourages marriage and ask whether those underlying interests are served or disserved by disallowing a partial category of homosexual sex acts and whether such treatment is consistent with other rules running counter to the policy interests behind marriage. Finally, the quote from Bradley and George's brief also begs the question of why sodomy within marriage is constitutionally protected, as opposed to merely favored as a legislative policy matter. Justice Scalia at oral argument expressly refused to concede the point -- and rightly so, because it is based on substantive due process cases using a non-historical mode of analysis that he refuses to apply today. You can't have it both ways.


MAGIC: Three related items:
  1. Check out The Flash Mind Reader.

  2. Contemplate Arthur C. Clarke's Third Law: "Any sufficiently advanced technology is indistinguishable from magic."

  3. Observe: To some people (and, in my experience, to many lawyers), algebra constitutes such a "sufficiently advanced technology."
UPDATE: Just to make it clear, yes, I know the trick . . . . Oh, no, wait, it's not a trick -- it's magic!


CANADA: Good heavens. My post yesterday about the United States' succession of slights and worse to our northern neighbor brought forth a torrent of unexpected e-mails from Canadians. "Cellucci delivered a needed wake-up call" is the upshot of all of them (and the wording of several). My correspondents are angry at the Chretien government for its persistent mishandling of the relationship with the United States. F'r'instance, a self-described "government lackey" who asks for anonymity writes:
You're telling half a story, not the whole story.

Mostly, while it may be correct to say that Celluci is undiplomatic, when our Prime Minister goes on national TV on the anniversary of 9/11 to imply that the US was 'asking for it' by being rich and proud; when he says there is nothing wrong with his communication director having referred to President Bush as a "moron", when the anti-American bigotry in his party is not "a backbencher", as Drezner put it, but instead a much larger wing that includes cabinet ministers past and present.... It is not an uncommon thing in Parliament to see a Liberal member use 'American' as a synonym for 'wrong', and really hasn't been for a decade or more.

All I'm saying is, well... I know we've helped you guys a time or twelve, just as you've helped us. And I can't really speak for anyone but myself. But if I helped a friend out, and then he overheard me referring to him as a moron, well, I wouldn't be at all surprised if he didn't take the time to express his gratitude for the original help.

As a side note, I wonder if part of the problem in relations is that Bush's administration pays more attention to what other leaders say for domestic consumption than past administrations. There's some evidence that he's more aware of other leaders playing up anti-Americanism in their home countries than any other President before him; at the minimum, he is more bothered by it.

Finishing the ramble... the Alliance, at least, is unlikely to mind Cellucci taking Chretien to task, because his speech is direct proof of their arguments that the bigots on Chretien's team are sabotaging Canada's relations with the US, and risking our relationship. Stephen Harper could have written Cellucci's speech for him. The usual suspects like Svend Robinson will complain, but he'd complain no matter what the US did.
To all of which I guess I'll say: fair enough. But just as they want their government to be polite and respectful to the United States, I want mine to be polite and respectful to Canada. None of the U.S. actions except for Cellucci's speech can be construed as being in response to Canadian provocation; and a public ambassadorial rebuke isn't the way to respond even to provocation from an ally and friend.

Dan Simon and Chris Lawrence respond, and David Frum has more.


SUPPORTING THE TROOPS: Tom Palmer, who articulates the reasonable position that the war was a mistake to begin with but that having started it we must properly finish it, posts here and here about how to send notes of support to American, British, and Australian troops in the field.


NATURALNESS Reader Michael Williams writes:
Good post on unnaturalness. It's a purposely vague argument generally used to appeal to pseudo-religious or -emotional feelings that the speaker believes he shares with the listener. It allows them to agree on these feelings without having to actually deal with the details behind the feelings, on which they may disagree (different religious backgrounds, or whatever).

I think that similar arguments can be made in another realm: environmentalism. It's not "unnatural" to eat animals, or cut down trees, or dig oil and metal out of the ground.
Quite right. In both fields, other arguments other than unnaturalness can of course be made -- I don't really buy them as to homosexuality, and I buy some but not others as to environmental questions (though I leave the details to Sasha and Juan), but at least they're plausible. But arguments about whether something is "natural" or not just hide the true questions.


IRRATIONAL TEXAS: An observation with respect to Erik's post and Dahlia Lithwick's Slate commentary on the bizarre rationale for the Texas statute. according to Andrew Sullivan's TNR piece on sodomy and the evolution of natural law thought about it (NB: not a subscription-only link; Sullivan's put the piece up on his own site), the stated Texas position tracks the current position of natural law scholars Gerard Bradley and Robert George. (George was one of my favorite profs at Princeton-- a wonderful and a very smart scholar who defends abhorrent positions with a smile.) They submitted an amicus brief articulating the rationality of distinguishing between even premarital heterosexual sodomy (because it could conceivably lead to marrital procreative intercourse, someday-- but what about extramarital heterosexual sodomy?) and all homosexual sodomy.

I don't believe that George has it in him to alter their understanding of natural law for the strategic purpose of trying to make the Texas statute look coherent. But the implicit defense of all those heterosexual practices that aren't marital procreative intercourse is obviously strained, and is at odds with what I had previously thought their position to be. Sullivan's quotes their brief as follows:
The critical difference upon which the legal distinction rests is not the raw physical behavior but the relationships: same sex deviate acts can never occur within marriage, during an engagement to marry, or within any relationship that could ever lead to marriage. Physically similar sexual acts between married persons are constitutionally protected. Physically similar acts between unmarried persons of different sexes occur within relationships which Texas may wish to encourage, either as valuable in themselves, or because they could mature into marriages, or both."
From what I've read, this is the position Texas went forward with in court-- yes?

For what it's worth, George and John Finnis have, at various times, offered much more compelling accounts of the meaning, and the relevance, of the "naturalness" standard in natural law theory.


CRIMES AGAINST NATURE: I realize this is a pretty banal point by now, but one argument that I've never understood against homosexuality is that it's "unnatural," and therefore "wrong." What exactly does "unnatural" mean, and why does it tell us anything about what is proper?

     1. "Unnatural" might mean "not found in nature." Well, that's a bit odd, because humans are a part of nature. I suppose "unnatural" might mean "found only in humans," but even if that's true, then homosexuality isn't unnatural: bonobo chimpanzees, who I doubt have been influenced by any alleged homosexual propaganda, do it, too (I almost wrote "do it as well" but that would have been ambiguous).

     2. "Unnatural" might mean "flowing from conscious design rather than human's physiological nature." That, though, would be pretty odd, too. First, the Bonobos are relevant even to this; but, second, millions of people do it, and they seem to have the same sort of emotional and physical drive towards it as heterosexuals do towards heterosexual sex. I haven't seen the studies, but I'm quite sure that homosexual stimuli yield physical reactions -- arousal, hormonal flow, and so on -- in homosexuals just as heterosexual stimuli yield them in heterosexuals. If heterosexual lust is "natural" in the sense that it's part of the nature of heterosexuals, I've seen no reason to doubt that homosexual lust is natural, too.

     3. "Unnatural" might mean "not done by most humans in the state of nature," which is to say before civilization and the imposition of large-scale social structures which may have led people to deviate from the practices in which they engaged for tens of thousands of years. This is the way "unnatural" seems to be often used in some discussions of natural lifestyles, though rarely focused on sex. But even if the "most humans" proviso makes homosexuality unnatural, then it's unnatural in the same sense that bathing, toothbrushing, and representative government are unnatural. Under this definition, "unnatural" has little to do with "morally proper." We don't measure the morality of most of our other practices by what most humans did in the state of nature -- why should we measure sexual practices that way?

     4. "Unnatural" might mean "not done by most humans today, which suggests that it isn't consistent with human nature." This, though, assumes that human nature is monolithic: If most people don't have some trait, then it's not part of human nature. Are redheads, then, unnatural? Or people with blue eyes? Or, shifting away from the clearly genetically linked (for purposes of this discussion, I don't need to enter the debate over whether homosexuality is genetically linked, though my understanding is that separated-at-birth twin studies do support such a link), is being a religious Jew unnatural? How about liking to run 26 miles at a stretch? Either these aren't unnatural -- because human nature might consist of different groups of people with different traits -- which disposes of another reason why homosexuality might be "unnatural"; or they are unnatural, in which case there's nothing wrong with being unnatural.

     5. "Unnatural" might mean "not contributing to the propagation of the natural phenomenon of a reproducing species." Heterosexual genital intercourse contributes to the propagation of the species, but homosexual genital intercourse doesn't. (Heterosexual oral intercourse, which I believe most Americans engage in at one time or another, isn't reproductive, but, the theory goes, "one thing leads to another.") But that's a strange definition of unnatural, and a stranger still definition of "unnatural and therefore wrong." First, human beings in society seem to appreciate art and music (of at least some sorts); that seems to be part of human nature, and though it doesn't directly lead to the propagation of the species (except insofar as artists and musicians tend to get a lot of, er, attention), we don't find it unnatural. And, second, if we do conclude that art, music, abstract mathematics, and so on are all unnatural in this sense, no-one would say that they're therefore bad.

     6. "Unnatural" means "contrary to the nature of the sexual act." Wait, someone might say, the argument in the previous paragraph is irrelevant, because art and music aren't supposed to reproduce the species. Sex is supposed to reproduce the species -- in the sense that this is its chief biological function -- so while nonprocreative art is fine, nonprocreative sex is unnatural and therefore wrong. This theory really would mostly condemn heterosexual nongenital intercourse, and heterosexual intercourse among the infertile and those who use birth control; but, the theory would go, those things are more likely to indirectly lead to reproduction, either by the couple or by others who follow their social example.

     But do we really think that our conduct should follow the chief biological function of the items, traits, or organs involved? The chief biological function of food is nutrition. Does it follow that it's not only unnatural but wrong to eat food for the sake of enjoyment, when you're not hungry? (I'm not talking about eating to excess, but about any eating that goes beyond the biological function of food.)

     The chief biological function of wood is to maintain a tree. Does it follow that it's unnatural and therefore wrong to build houses or furniture out of trees, or to burn them for warmth? The chief biological function of hair is -- well, I'm told that it's complicated, but surely the function is not served by braiding hair or dying hair. Perhaps braiding and dying serves a secondary biological function of hair, which is to make the person sexually attractive. But once we accept secondary biological functions, surely one can accept that sex is chock full of them as well, such as giving pleasure and fostering social relationships (and social relationships are very much a part of human nature, and for that matter of bonobo nature). Homosexual sex fits those secondary functions.

     7. "Unnatural" means "contrary to the will of God as expressed in nature." That, it seems to me, doesn't work well for most of the reasons given above. Nature contains homosexual desire just like it contains red hair and blue eyes.

     8. "Unnatural" means "contrary to the will of God, who created nature, as expressed in certain authoritative religious works." Now with that I can't argue -- theologians debate about how various religious works should be interpreted on this score, and people also debate, of course, about which works are the correct ones. I have no expertise in those debates, and not much interest.

     But it seems to me that this argument really has next to nothing to do with nature as such. Killing, stealing, and adultery seem natural under virtually any definition of nature; the religious objection to them may turn on them being contrary to the will of God, but I don't think it really has anything to do with naturalness. Likewise for homosexuality.

     And this is an important point, because when people say "homosexuality is wrong because it's unnatural," it seems to me that they are trying to assert more than just "homosexuality is wrong because it's contrary to my contested interpretation of contested religious texts" -- they are trying to call on a more objectively defined, uncontroversial authority called "nature," which is why they say "unnatural" rather than "ungodly." (Some do say "ungodly," but that's not the argument I'm confronting here.) The trouble is that this call fails: Whatever one's definition of natural, either homosexuality is natural, or it's unnaturalness says nothing at all about its propriety.


Lawrence v. Texas: I saw the argument yesterday and let's just say that it was some of the best evidence of the lack of a rational basis behind the Texas homosexual sodomy law. If I understood the gist of the State's argument -- not an easy thing to understand given the incoherence of the presentation -- it is that Texas is OK with heterosexual sodomy because it might lead to marriage and procreation; it is OK with heterosexual sodomy among infertile couples for no reason in particular; it is OK with both heterosexual and homosexual bestiality for no reason in particular; it is OK with a homosexual who is living with (though perhaps not having sex with) a same-sex partner adopting children; it has just passed a hate-crime law that covers crimes committed because of sexual orientation; and it generally has no objection to homosexuals who do not have certain types of sex (but who can apparently engage in some limited forms of sexual activity that I leave it up to the indelicate to parse out and articulate). So, to summarize: We don't mind "deviate" sex acts so long as it is between heterosexual or interspecies couples, and we don't mind homosexuals so long as they do not engage in deviate sex acts. Let's just say the two ends of the rope are a bit off. At least Justice Scalia is consistent in his moral arguments -- his moral objection is to homosexuality, period. That objection may be unconstitutional for a variety of reasons, but at least it has internal consistency. Texas is unwilling to go that far, and the incoherence showed in the argument.

Two small additional points: First, why didn't Texas send somebody who was prepared for the argument? One wonders about the State's commitment to defending the law given yesterday's showing. Second, Justice Souter raised the point that most moral judgments typically have gone hand-in-glove with other harms-based rationales regarding particular behavior, and then asked whether once the harm-based claims are abandoned shouldn't we be a bit more skeptical of the vestigial moral argument? I think he is correct, and have made a similar point in an amicus brief in the case, with thanks to SCOTUSblog for the initial posting of that brief.


ANOTHER NEW YORK TIMES CORRECTION: From March 11, 1975: "In yesterday's issue, The New York Times did not report on riots in Milan and the subsequent murder of the lay religious reformer Erlembald. These events took place in 1075, the year given in the dateline under the nameplate on Page 1. The Times regrets both incidents."


LAW BLOGS AGGREGATOR: Check out the Daily Whirl, an aggregator for RSS feeds coming out of various law blogs.

     When you read that, did you read it as "a framastatologist for bletchitysmacks coming out of various law blogs"? It's too hard to explain -- though it basically lets you see the subject lines from a whole bunch of blogs at once -- but just visit the site and you'll see.

Wednesday, March 26, 2003


O, CANADA: Dan, Henry, Matt, and Kevin on the latest undiplomatic U.S. diplomacy: a public complaint speech by Paul Cellucci, the ambassador to Canada. Matt notes two of the items that have left Canadian nerves raw: the softwood lumber dispute and the failure to ever properly apologize for having accidentally killed four Canadian soldiers in Afghanistan. There's more, though. Canada was omitted from the list of countries thanked by the President in his post-9/11 address-- even though Canada allowed hundreds of planes to land (not knowing whether they were filled with terrorists) after the U.S. shut down its skies and airports, and then offered the grounded passengers generous lodging for several days. The border remains partially jammed with post-9/11 security measures. And a naturalized Canadian citizen was shipped off to Syria (from which he had long since fled) by U.S. INS officials when he tried to enter the country-- rather than being, say, returned to Canada, if the U.S. really regarded him as inadmissable.

That there's so much support among the Canadian opposition and the Canadian public for the U.S. anyways is remarkable. Let's see how much of that goodwill Cellucci just blew.


NICE DIG: From the ever-sharp Cathy Seipp, writing about the Oscars and the lack of real expressions of support for the troops:
The New York Daily News's Rush & Molloy did report that Brittany Murphy, who co-starred with Eminem in "8 Mile" and is the wonderfully dopey voice of sexy Luanne on Fox's "King of the Hill," said "Thank you to the troops and their families. . . . Semper Fi!" at one of the post-Oscars parties. But that was a long way from the podium.

A more typical festive celebrity moment came when Tim Robbins, who along with mate Susan Sarandon is prominently against the war in Iraq, gave The Washington Post's Lloyd Grove what for after the Academy Awards ceremony.

The actor was angry that Grove had dared to interview Sarandon's mother, who in contrast to her daughter is a conservative Republican. "If you ever write about my family again . . . I will (bleeping) hurt you!" Grove reported Robbins yelling. Hey, Tim, give peace a chance!
Sweet. The rest of the piece is also much worth reading.


D.C. METRO BLOGGER MAP: Pretty cool idea, and well-implemented. Realspace meets cyberspace.


WHY THE FRENCH, GERMANS, AND RUSSIANS OPPOSE THE WAR, according to Egyptian economist Khalil Al-'Anani, on Al-Jazeera (source is MEMRI, thanks to The Command Post for the pointer):
France's opposition to the war in Iraq, rather than being based on political considerations, its historical ties with the Arab world, or an attempt to challenge America's role as superpower, is motivated by pure economic interests. Despite France's attempts to portray its stance against the war as a political one, it is difficult not to imagine the economic benefits to France if the war had not occurred. The consequences of war on the weak French economy will be palpable primarily in the oil and commercial sectors. . . .

The German economy is going through difficult times with a GDP growth in 2002 of 0.2% and unemployment of 11.3% which translates into 4.06 million unemployed workers. The reduction in taxes collected, coupled with rising unemployment benefits, could drive German deficits above the 3% ceiling established by the European Union, which would invite punitive measures. The war in Iraq could result in two immediate negative consequences for the German economy: first, a decline in German exports which is the main engine for German economic growth; and second, higher oil prices could intensify the German economic slow-down. . . .

Not unlike the case of France, it is difficult to overlook the extent and depth of the economic relations between Russia and Iraq which extend over 40 years. Here, again, economic considerations drive the Russian position vis-ŕ-vis the war on Iraq. . . .
I obviously can't personally speak to whether this is accurate, but given al-Jazeera's normal slant against the war, it seems noteworthy. Of course, it's also possible that this is just a manifestation of a broader cynicism that takes the view that everyone, whether American, English, French, German, Russian, or Arab, only cares about more or less direct financial benefit.


FOREIGNERS SEEM TO LIKE BAD PUNS AS MUCH AS WE DO: Check out Swe-Dish Satellite Systems.


SPEAKING OF SHORT JOKES: My two favorite limericks:
  1. There once was a man from Peru
    Whose limerick stopped at line two.

  2. There once was a man from Verdun.


MY NEW LAW JOURNAL ARTICLE: The Journal of Legal Education agreed to take it; I'm particularly proud of it because, setting aside the title and the author, it's nine lines long. (It's a joke piece, as you might imagine -- the JLE often runs such in its "etc." section -- and shorter is usually funnier.)


MATTHEW YGLESIAS ASKS, I ANSWER: Responding to my post about the Oregon "life for trespassing" bill, Matthew Yglesias writes:
[T]he bill as written will almost certainly fail. But that seems to be dodging the bigger question: What if the bill is amended so as to be more narrowly-tailored to the purpose of targeting anti-war demonstrators? Isn’t it pretty likely that, given the current climate of anti-anti-war sentiment being whipped-up, a law like that could pass? Would he support a law like that? . . .

First, I think a law of the sort I’m envisioning could pass constitutional muster. There’s no constitutional right to block traffic (indeed, it’s already illegal) and I don’t see why the constitution would prohibit handing out punishments differentially on the basis of what motivated the traffic-blocking. Indeed, punishments are handed out differentially on this basis all the time.

Second, I’m pretty sure that Prof. Volokh would oppose the sort of law I’m talking about, but I’d like to [hear] him say it. It’s all well and good for folks like Atrios to criticize this, but what actually makes a difference is when principled, pro-war, conservative folk speak up.
A few quick responses:
  1. I'm of course very flattered by the last sentence.

  2. I don't see any real basis for assuming that a law imposing life imprisonment for blocking traffic in order to protest the war, or interfere with the war effort, or what have you, would indeed be enacted. Sure, if one assumes that the majority of Americans utterly loathe antiwar demonstrators and want to punish them more than, say, rapists or armed robbers -- which means that the majority of Americans are both radically intolerant of dissenters and utterly lack moral proportion -- then one could infer that such a law would be passed. But I just don't make that assumption, and I wonder what foundation there is for making it.

  3. I would of course oppose any law that imposed life imprisonment for people who blocked traffic in order to interfere with government, education, commerce, or assembly in an anti-war cause. I'm pretty sure that nearly all other "pro-war, conservative folk" would take the same view, just as I'm pretty sure that (for instance) nearly all "pro-choice, liberal folk" would oppose life imprisonment for people who block abortion clinics in order to interfere with abortions.

  4. However, if such a proposal is made -- or for that matter if someone proposes even mild increases in penalty for illegal traffic blocking aimed at interfering with the war effort -- a big part of the defense of the proposal would be by analogy to hate crimes laws, which often turn misdemeanors (including, for instance, "disorderly conduct," defined among other things as the doing of "any act in such unreasonable manner as to alarm or disturb another and to provoke a breach of the peace," see Illinois stats. ch. 720 sec. 5/12-7.1) into felonies when they're done for reasons that the legislature finds particularly heinous. I think these laws are constitutional, but I think they're bad ideas for many reasons. One of the reasons is that they do in part run the risk of interfering with constitutionally protected (albeit morally contemptible) political speech by threatening very serious penalties if the speaker steps even slightly out of line.


"DAY OF PRAYER AND FASTING": The House of Representatives is considering this resolution asking the President to declare a day of "prayer and fasting." (I've heard it said that they're planning to vote on it today, but I've seen no confirmation.) I think such a resolution would be constitutional, even under the Court's current caselaw, precisely because of the tradition that the resolution cites; it does endorse religion, but such endorsement was seen as permissible by the Framers and the generations that followed, and I'm willing to say (given Marsh v. Chambers (1983), which upheld legislative prayer on these grounds) that it therefore doesn't violate the Establishment Clause.

     But I don't like it; it seems to me that these resolutions are neither good government nor good religion. First, I think the American people are themselves perfectly good judges of what they should pray about and when, and they don't need the President to instruct them in this. Moreover, while in a former time these resolutions might have helped bring the nation together, I don't think this is actually likely today (though I do think that more personalized religious symbolism in a President's own speeches given in time of crisis may still have that effect, for complex reasons).

     Second, the very details of this resolution demonstrate how government involvement in these matters ends up verging on the ridiculous. The Congress urging the President to urge the people "to seek guidance from God to achieve a greater understanding of our own failings and to learn how we can do better in our everyday activities"? "Do better in our everyday activities"? This is what we need a Presidential proclamation for? That this is the prayer that politicians are trying to write for us just shows how bad politicians are at writing prayers, especially by committee.

     Moreover, a day of prayer and fasting? Yes, I know that this is part of the historical tradition to which the House is appealing, but unless I'm mistaken very few Americans today, even the most devout, actually see fasting as the proper response to national crisis. Many people do fast on certain days (such as Yom Kippur, Lent, or Ramadan) dictated by religious tradition; but I think very few fast outside these traditions, even in times that call for prayer and reflection. I doubt that President Bush, or the majority of the House of Representatives, would actually fast (though they may well pray) in response to this resolution, even if they vote for it.

     The suggested "recogni[tion of] the public need for fasting and prayer" is therefore not, I think, an actual recognition of public need for fasting and prayer -- rather, it's a sort of dramatic gesture aimed at symbolically tying us to a centuries-old American tradition (which I take it originated in a time when people did take fasting seriously in this situation). These dramatic gestures may be fine in politics, but I don't think they're right in religion: If you call for a sacred observance, it seems to me that you should really seriously want the sacred observance to take place.

     The standards of sincerity ought to be higher in religion than in political gestures. But such high standards are hard to maintain when Congress gets involved in religion, even symbolically.

     Again, I don't think this is unconstitutional, or some sort of travesty. But I also think that the text of this very resolution demonstrates the flaws in resolutions of this sort.

     Here's the resolution itself:
H. RES. 153

Recognizing the public need for fasting and prayer in order to secure the blessings and protection of Providence for the people of the United States and our Armed Forces during the conflict in Iraq and under the threat of terrorism at home. . . .

March 20, 2003
Mr. AKIN (for himself, Mr. GOODE, Mr. BARTLETT of Maryland, Mr. JONES of North Carolina, Mr. KING of Iowa, Mr. HAYES, Mrs. JO ANN DAVIS of Virginia, Mr. BEAUPREZ, Ms. CORRINE BROWN of Florida, Mr. MANZULLO, Mr. ADERHOLT, Mr. TIAHRT, Mr. PITTS, Mr. RYUN of Kansas, Mrs. MYRICK, Mr. WELDON of Florida, Mr. BISHOP of Utah, Mr. BARRETT of South Carolina, Mr. MILLER of Florida, Ms. ROS-LEHTINEN, Mr. GINGREY, Mr. TERRY, and Mr. SOUDER) submitted the following resolution; which was referred to the Committee on Government Reform



Recognizing the public need for fasting and prayer in order to secure the blessings and protection of Providence for the people of the United States and our Armed Forces during the conflict in Iraq and under the threat of terrorism at home.

Whereas the United States is currently engaged in a war on terrorism in response to the attacks of September 11, 2001;

Whereas the Armed Forces of the United States are currently engaged in a campaign to disarm the regime of Saddam Hussein and liberate the people of Iraq;

Whereas, on June 1, 1774, the Virginia House of Burgesses called for a day of fasting and prayer as an expression of solidarity with the people of Boston who were under siege by the enemy;

Whereas, on March 16, 1776, the Continental Congress, recognizing that the `Liberties of America are imminently endangered' and the need `to acknowledge the overruling Providence of God', called for a day of `Humiliation, Fasting and Prayer';

Whereas, on June 28, 1787, during the debate of the Constitutional Convention, Benjamin Franklin, convinced of God's intimate involvement in human affairs, implored the Congress to seek the assistance of Heaven in all its dealings;

Whereas, on March 30, 1863, in the midst of the Civil War, Abraham Lincoln, at the bequest of the Senate, and himself recognizing the need of the Nation to humble itself before God in repentance for its national sins, proclaimed a day of fasting, prayer and humiliation;

Whereas all of the various faiths of the people of the United States have recognized, in our religious traditions, the need for fasting and humble supplication before Providence;

Whereas humility, fasting, and prayer in times of danger have long been rooted in our essential national convictions and have been a means of producing unity and solidarity among all the diverse people of this Nation as well as procuring the enduring grace and benevolence of God;

Whereas, through prayer, fasting, and self-reflection, we may better recognize our own faults and shortcomings and submit to the wisdom and love of God in order that we may have guidance and strength in those daily actions and decisions we must take; and

Whereas dangers and threats to our Nation persist and, in this time of peril, it is appropriate that the people of the United States, leaders and citizens alike, seek guidance, strength, and resolve through prayer and fasting: Now, therefore, be it

Resolved, That it is the sense of the House of Representatives that the President should issue a proclamation--

(1) designating a day for humility, prayer, and fasting for all people of the United States; and

(2) calling on all people of the United States--

(A) to observe the day as a time of prayer and fasting;

(B) to seek guidance from God to achieve a greater understanding of our own failings and to learn how we can do better in our everyday activities; and

(C) to gain resolve in meeting the challenges that confront our Nation.
UPDATE: There apparently was some debate about this in the House today (see here for the evidence, though not the text), and "further proceedings on the motion [were] postponed."


HISTORY: Matthew Yglesias points to an interesting discussion that's started up. What event in the world marks the beginning of your effective memory of "current events," with events prior to that time counting intead as "history"?

I'm 31. I remember my parents voting in the 1976 election, and having a bit of a conversation with them about who they were voting for and why-- but I was five and didn't understand very much. Watergate and Vietnam definitely occupy the category of "history" for me, and 1976 I still mostly remember just for the Bicentennial. The Iranian Revolution and the subsequent hostage crisis, the invasion of Afghanistan, the late 70s energy crisis, and double-digit inflation are the earliest things I remember being particularly conscious of and thinking (kind of) my own thoughts about. The 1980 presidential primary season (I'm from New Hampshire) is the first campaign I really remember. By late '81 I was reading my hometown newspaper daily and my mother's copy of Newsweek weekly; in '82 for the first time I sat up late watching election night returns.

Matt's a full decade younger than I am, and is the same age as my students. It's always tricky to try to remember what's current and what's history for one's students, but I find it unsettling that Matt doesn't have memories of his own of the Berlin Wall falling...


WHY AUSTRALIA? My new TNR column, on why Down Under is Over There when almost no other country is-- remember that before the war started Spain was treated as the third member of a Big Three alliance, but no Spanish troops are fighting-- is now online. Political scientists like puzzles of the form "Why a and not b?" This is my contribution: Why Australia and not New Zealand or Canada? Why Poland and not Spain or India?

Further thoughts and elaborations (some of which will be familiar to longtime readers):

Robert Kagan's argument, of course, can be found in his book Of Paradise and Power, as well as in many magazine and newspaper extracts and profiles over the past few months, and in the Policy Review article of which the book is an expansion.

For an example of the quick move from the Kagan thesis to images of unofficial alliances with states such as India, see Daniel Pipes.

The Anglosphere has been a favorite blogospheric topic for a while. See James Bennett's Anglosphere primer, as well as frequent discussion on (and between) Iain Murray's and Chris Bertram's blogs. This post from Kieran Healy is a good place to start.

The most recent major restatement of IR realism is
The Tragedy of Great Power Politics,
by my colleague (and prominent opponent of the war) John Mearshimer.

One semi-explanation that doesn't get mentioned in the column is the Great Men of Wartime. A country's willingness to stand up and fight is attributed to its luck in happening to have a leader who will face responsibilities and do what must be done; it's lack of willingness to do so is explained by its being led by a weasel. Even though political scientists don't much like the substitution of hagiography for explanation, the image of great wartime statesmen rising to the moment--Churchill, Lincoln, Blair--is sometimes hard to resist. But it's not so hard in the case of John Howard. Howard's finest moments have been his steadfastness in East Timor and since 9/11. But other than that, his political career is remarkable primarily for its longevity: Whenever one or another more promising and exciting leader has failed the Liberal Party in some way, Howard has always been there to fall back on. His domestic politics have been marked by a cramped and narrow vision, succeeding only at defanging the once-threatening racist right One Nation party by co-opting its issues.

The Australian opposition to the war really has been intense. The three left-leaning parties have a joint majority in the Australian Senate, and passed an unprecedented Senate motion of no confidence in the government. Of course, this was "unprecedented" mostly because it was constitutional nonsense, akin to the U.S. Senate passing a bill of impeachment against the President or the U.S. House voting to confirm a Supreme Court justice. Motions of no confidence belong to the House of Representatives. The Australian Senate does have an in extremis power to bring down the government, but an emotive "no confidence" motion isn't it. Still, it appears that the opposition is genuinely, seriously, bitterly against the war. Last week two protesters climbed the Sydney Opera House and scrawled "NO WAR" on it in giant red letters.

My interest in the Australian-American military friendship dates to 1993-94, the year I spent as a Fulbright scholar in the School of Politics at the Australian Defense Force Academy. I mostly interacted with the civilian grad students, some officer postdocs, and the civilian faculty, but I got to know a few of the undergrad officer cadets well and many more casually. That year makes it oddly probable that I've met more Australians currently serving in Iraq than Americans. (My time there wasn't devoted to security studies, which lie well outside my area of expertise. I was studying Australian multiculturalism and Aboriginal land rights, especially the then-recent Mabo decision; that research found its way into The Multiculturalism of Fear several years later. But my time there did spark an ongoing amateurs' interest, which I've treid to supplement with political science along the way.)

The text of the ANZUS pact is here, along with some celebratory commentary. The reason John Howard was in Washington in September 2001 was to commemorate the 50th anniversary of the treaty's signing. Australia invoked the mutual self-defense clause of that treaty almost immediately, sooner even than NATO did the same.

Australian war news can be found at Tim Blair's blog in addition to The Australian and The Sydney Morning Herald.

One of the best Australian reflections on the relationship I know comes from Owen Harries, founder of The National Interest and a senior fellow at one of my favorite think tanks, the Centre for Independent Studies.

Google produces no hits for the sentence "Australia is from Mars, New Zealand is from Venus," so I hereby claim it for my own.

More to come...

UPDATE: James Bennett responds to my TNR piece. I should note that I didn't attribute the Anglosphere-determines-alliances view to Bennett. Andrew Sullivan has put a view like that forward, and so have sundry NR commentators.


ANOTHER NEW YORK TIMES CORRECTION: Nov. 14, 2001, at H36, quoting a correction published July 17, 1969 (remember what was happening right around then):
On Jan. 13, 1920, "Topics of the Times," an editorial-page feature of The New York Times, dismissed the notion that a rocket could function in a vacuum and commented on the ideas of Robert H. Goddard, the rocket pioneer, as follows:

"That Professor Goddard, with his 'chair' in Clark College and the countenancing of the Smithsonian Institution, does not know the relation of action to reaction, and of the need to have something better than a vacuum against which to react -- to say that would be absurd. Of course he only seems to lack the knowledge ladled out daily in high schools."

Further investigation and experimentation have confirmed the findings of Isaac Newton in the 17th century and it is now definitely established that a rocket can function in a vacuum as well as in an atmosphere. The Times regrets the error.


VAST OVERREACTION IN OREGON LEGISLATIVE PROPOSAL: This is such a clearly wrongheaded move that I'm pretty sure it'll be promptly defeated, but it's still worth watching out for. It's from the Oregon Legislature site (PDF here, text here; thanks to reader Shorge Sato for the pointer):
Senate Bill 742

Sponsored by Senator MINNIS

Be It Enacted by the People of the State of Oregon: . . .

(1) A person commits the crime of terrorism if the person knowingly plans, participates in or carries out any act that is intended, by at least one of its participants, to disrupt:
(a) The free and orderly assembly of the inhabitants of the State of Oregon;
(b) Commerce or the transportation systems of the State of Oregon; or
(c) The educational or governmental institutions of the State of Oregon or its inhabitants.

(2) A person commits the crime of terrorism if the person conspires to do any of the activities described in subsection (1)
of this section.

(3) A person may not be convicted of terrorism except upon the testimony of two witnesses to the same overt act or upon
confession in open court.

(4)(a) A person convicted of terrorism shall be punished by imprisonment for life.
(b) When a person is convicted of terrorism under this section, the court shall order that the person be confined for a minimum
of 25 years without possibility of parole, release to post-prison supervision, release on work release or any form of temporary
leave or employment at a forest or work camp.
(c) [Describes procedures for possible release after the term provided in (b).] . . .
Any act aimed at disrupting assembly, commerce, transportation, education, or government would lead to life imprisonment. Even if you set aside constitutionally protected speech, this would cover any constitutionally unprotected conduct (blocking traffic, blocking the entrances to abortion clinics or government buildings, violating anti-noise ordinances, trespassing, the pettiest of vandalism, and so on) in the context of most picketing and protesting, which after all is often aimed at mildly disrupting various institutions.

     This, incidentally, helps explain why I'm sure the law will be defeated: First, I think that few people would want to impose such draconian penalties even on those who are seen as demonstrating in favor of bad causes (and I'm not even sure that this is why it was proposed, since it was introduced on Feb. 27, before the San Francisco-style protests started happening). Second, it will likely be opposed by a broad and politically powerful coalition including labor unions, the pro-life movement, and a wide variety of other organizations that routinely employ public protests and civil disobedience would strongly oppose it. Again, not much to worry about as a practical matter; but Sen. Minnis's office ought to be told that this is not good legislative draftsmanship.


GOOD QUESTION: Josh Chafetz at OxBlog asks:
CAN SOMEONE EXPLAIN THIS TO ME? A sizeable chunk of Republican Guard troops are apparently heading south, towards US troops. Are they that dumb? Open fields are where our technological advantage is strongest -- our weapons are more accurate from a longer distance than theirs are, and we can bomb them from the air in the middle of the desert. Why aren't they retreating into Baghdad, instead, where our technological advantage is reduced by our desire to minimize civilian casualties?

Do they have something up their sleeves? Or are they just profoundly incompetent?
(Links available at OxBlog.)

UPDATE: Several people suggested that the Republican Guard is hoping for cover from the sandstorm. That's probably the likeliest explanation, but I'm skeptical that this will help them much.

FURTHER UPDATE: Maybe I'm mistaken; see the ABCNews story.

STILL FURTHER UPDATE: On the fourth hand, maybe the Republican Guard miscalculated:
It is thought Iraqi commanders decided sandstorms around Baghdad would provide cover for the elite troops to journey to the area of the heaviest fighting of the war so far.

They may have believed the appalling weather conditions would protect their troops from being decimated by allied air power, much of which has been grounded by sand-storms.

But military intelligence had spotted 3,000 Republican Guard moving from the capital to the city of Al Kut, and a further 2,000 were seen to the south of Al Kut.
And as a result, "Harriers and Tornados flying out of Kuwait attacked the armoured convoys." Let's hope so.


ASKING AND TELLING: Andrew Sullivan and David Adesnik note that "don't ask, don't tell" discharges were down a third last year. The study identifies two possible causes: 1) the military stops acting so foolishly toward gay and lesbian soldiers during wartime, when it needs its trained personnel the most; 2) military supervisors are increasingly willing to tolerate openly gay members of the services and not to discharge them.

I think (1) is almost certainly the primary explanation. But I should note that there are much less pleasant possibilities as well. The number of discharges is a product of the number of gays and lesbians in the military, the rate of detection, and the rate of discharge of those detected. Explanations (1) and (2) are both about discharge. But consider:

(3) After almost a decade of "don't ask, don't tell," the military has succeeded in hounding out so many gays and lesbians that there are fewer left to discharge, and gays and lesbians are now staying out of the military to begin with. If there's a roughly constant rate of detection and discharge, then a fall in the number of gays and lesbians in the services will result in a fall in the number of discharges.

(4) What has changed isn't the rate of discharge or the number of gay and lesbian soldiers but the rate of detection. The "don't ask, don't tell" norms have been successfully transmitted to gays and lesbians in the services, and the techniques for avoiding "telling" have become more and more successful.

(3) and (4) might both be true: the numbers of gays and lesbians in the services has fallen, and those who are left are those who have been best able to avoid detection, so the detection rate is going down over time.

So we don't know for sure that the decline in the number of discharges is good news. We'll know we have good news for sure when the rule is abolished...


BOOK WORLD: Henry Farrell has a thoughtful post on Hernando de Soto's important book The Mystery of Capital. And, prompted by Micah Schwartzman (permalinks FUBAR, search for "Adam Swift") Chris Bertram provides an overview of survey texts in political theory. One new one that Chris might not know about is The Moral Foundations of Politics, by Yale's Ian Shapiro. UPDATE: Russell Arben Fox chimes in.


RUMSFELD AND UPRISINGS: Christopher Lansdown has some thoughts on Rumsfeld's recent comments realted to the riskiness of civilian uprisings against the Baathists.


INHABITED PLACES THAT HAD NEVER BEEN RULED BY A EUROPEAN NATION: I asked last Friday what inhabited places had never been ruled by a European nation, and I got nearly 50 responses over the last few days; some of the answers were pretty easy, and many people got them -- some were hard, and I specially note those who got the very hardest ones. Here they are, by area:
  1. Asia. This is where the Europeans ruled least. Some people, incidentally, asked whether the Russians (either Czarist or Soviet) count as European; absolutely -- what we call Asian Russia today (Russia east of the Urals) is just a part of territory conquered by a culture that first flourished in Europe, west of the Urals. The Soviet Union was likewise really the Russian empire. Here are the places which weren't ruled by the Russians or any other European power:
    • Japan. The Americans, of course, did rule it after World War II, but while America is in many ways a European culture, it isn't a European country.
    • China (including Tibet), outside some of the areas (mostly on the coast) that were ruled by the Europeans.
    • South Korea. North Korea was controlled by the Russians for several years following World War II.
    • Thailand.
    • Nepal. The British ruled India, but not Nepal.
    • Bhutan, in part; part was controlled by the British. Only ten people got this one. UPDATE: A message from reader Eric Stone leads me to elaborate a bit further: Bhutan did permit England to manage its foreign affairs -- which made it a British protectorate, under one definition of protectorate -- but it did this in exchange for cash, which makes it sound like less of a surrender of sovereignty (though that's a judgment call, of course), and which is why I included it on the list.Saudi Arabia.
    • Northern Yemen (what was called North Yemen until it was united with the rest of Yemen).
    • Possibly Qatar, more or less, though the British exercised some control, though not other parts of the Arabian Peninsula, which were generally ruled by the British, or were at least British protectorates -- yes, I realize that it depends on what "rules" means, but I get to make the rules. Christopher Cha and Robin West got Qatar, but I deduct points for their getting various other places that had been even more heavily controlled by the British.
    • Possibly Mongolia, though various Russian regimes -- Czarist, White Russian, and Soviet -- were involved in ways that suggest something less than total Mongolian independence.
    • Not Taiwan, which was ruled by the Dutch in the early to mid-1600s; I did not know that, but my coblogger Jacob Levy did.
    • Not Turkey, though some suggested it -- it was ruled by Alexander the Great and the Romans. Some people suggested that the ancient cultures don't qualify as Europeans, but I don't see why not. I realize there might be some ambiguity as to "nation" when we're talking about Alexander the Great's transitory conquests, but not as to the Roman conquests.
    • Not Iran, which was very briefly conquered by Alexander, though query whether the conquest was long enough or pervasive enough to constitute Macedonian rule.
    • Not Afghanistan, which was ruled -- more or less -- by the Russians in the 1980s.
    • Not Sikkim, which was a British protectorate for a while.

  2. Oceania.
    • Hawaii. UPDATE: Reader Chris Lawrence passes along this link, which says that the British ruled Hawaii for a few months in 1843, with some noises being made even earlier, in 1794; if that's so, then Hawaii would be off the list.
    • American Samoa. Eric Stone, Mark Kleiman, H. Koenig, and Duncan Frissell got this (and I hadn't thought of it).
    • Easter Island. Points to Andrew Lloyd for being the only one to find this (again, I hadn't thought of it, or of the next one).
    • Galapagos Islands. Likewise, Andrew Lloyd got it. I suspect there might be a few other islands now run by some of the Latin American countries that had never been governed by the Spanish.
    • Some people suggested Tonga, but it was a British protectorate for much of the 20th century, albeit one that apparently enjoyed considerable self-government.

  3. Africa.
    • Liberia. It was founded by freed American slaves in the early 1800s, and wasn't snapped up in the scramble for Africa in the late 1800s. A tough one; only nine people got it.
    • Not Ethiopia or Eritrea, which were ruled by Italians (Ethiopia under Mussolini, Eritrea since the late 1800s).

  4. Atlantic Ocean.
    • Not Iceland, even if you don't view it as itself being a European nation; it was formally united with Norway and Denmark for much of the last millennium, and, as best I can tell, in some measure ruled by Denmark for part of that time.

  5. North America.
    • Much of the Louisiana purchase, Oregon, Washington, and Idaho, and neighboring areas -- these may have been claimed by the Spanish and French, or, in the case of Oregon, Washington, and Idaho, ostensibly jointly controlled by the British and the U.S. from 1818 to 1846, but they weren't really meaningfully ruled by those governments. The same may well be said of some parts of the British zone of what is now the U.S., and some of the Spanish Southwest, which wasn't meaningfully ruled by non-Indian people until after the U.S. and Mexico took over. Also, under this definition, the same might be said as to some parts of the rest of the world, though fewer, since Europeans ostensibly controlled them into the 1900s, by which time European technology enabled realistic rule over a much larger part of the hinterland.

  6. South America.
    • Patagonia, which wasn't really taken over from the indigenous peoples until the late 1800s, when Argentina and Chile rather than Spain ruled the area. The same might, I suspect, be said in some measure of some of Amazonia. Karl Narveson was the only one (besides me) to get it.
So there it is. If you think I'm wrong on any of these -- not just that things could be interpreted differently, but that I was provably wrong -- please e-mail me URLs of sources that support your theory.


RSS FEEDS: Reader reports suggest that the Blogger RSS feed is highly unreliable, but so far I've heard nothing but good stuff about David Janes' RSS scraper, also available behind the second "XML" box on the upper left-hand side of this page, or here. Thanks again to Janes for all his work on this, and on other blogosphere tech projects.


"BECAUSE OF THE NAME I CARRY": Reader Sean Cox writes:
Mr. Akbar's mother's protest reminds me of an old joke:

Q: Who was the greatest German General of WW II?

A: Eisenhower.

It's not who you are -- it's what you are.


NYT SPIN WATCH. Today's New York Times has an article titled "Opinions Begin to Shift as Public Weighs War Costs." It's a report of a new poll the newspaper has run. Given the headline, what would you expect such an article to say? The implication, it seems to me, is that support for the war is declining as the costs of it become more evident. But as you read the article, you see that it focuses instead on (a) public perceptions about how well the war is going and how soon it will be over; and (b) whether support for the war is the same among blacks and whites. It is made very clear that opposition to the war among the former group runs high. And there is mention that opinions about the war generally are in "flux" in part because "many Americans say they remain unsure of Mr. Bush's rationale for the conflict." Okay, okay, but what about the basic overall question of whether Americans are supporting the war?

     Not to worry; that question is discussed as well -- in the eighteenth and last paragraph of the story: "Support for Mr. Bush and the war remains high. By 70 percent to 24 percent, Americans believe that the United States did not make a mistake getting involved in Iraq."


Tuesday, March 25, 2003


BOOKMARK LAW: It turns out that over 100 articles published in law reviews since 1998 contain the text "Bookmark not defined." (And all you people at name-brand law schools, quit sneering; the most recent entry on the list is from the Yale Law Journal.) I never knew that legal academics were that interested in writing about the law of bookmarks . . . .

UPDATE: Actually, this might well be a WESTLAW/LEXIS glitch, at least in many instances, though it's still something that journals should be looking into and trying to get fixed, since many readers read just the WESTLAW/LEXIS version. But I have seen in print items such as "[CC: NEED CITE]" (top 10 law review, 1985), "Need cite" (top 20 law review, 1990), "[Author: please verify degrees, dates, and institutions]" (top 10 law review, 1997), "Source not in yet -- needs cite-checking" (1994), "author -- check source" (1990), and more. I even have one such item (though a bit more subtle) in a recent article of my own, to my shame (both the editors and the authors are responsible for this sort of thing).


"JUST 38 PERCENT [OF AMERICANS] SAID THE CONFLICT WAS GOING WELL ON MONDAY," says the first paragraph of an Associated Press story, citing a Pew poll. Uh, no. As the story says about ten paragraphs down, that's the fraction who said the conflict was going very well.

     The Pew summary of the poll seems to say that 41% said it was going fairly well; there's a bit of ambiguity in how the summary describes this, but I think that's what they're saying. Thus, about 80% think it's going well -- in the sense of fairly well to very well -- and "[o]nly 8% went as far as to say the war effort was not going well." Surprisingly, none of this made its way into the AP story. (Thanks to the Command Post for pointing to the story.)


"SADDAM'S PARAMILITARY SEWS MORE CONFUSION": Yup, that's the AP headline (on the Newsday site, but my contacts tell me that the AP wrote it). Fortunately, as Saddam's paramilitary sew, so shall they rip.


ACADEMIC LEGAL WRITING PROOFREADING DONE: Sending them to the publisher today; there'll be one last round of final proofs, and then it will be published, I'm told some time in mid-April. It'll be great to finally have it out.


ALCOHOL MANUFACTURERS IN TROUBLE: (I posted this Sunday morning, but it somehow inexplicably vanished; someone asked me about it, so I thought I'd repost it.)

     Apparently there are some industry insiders who will testify that alcohol manufacturers were actually aware that some of their products end up in the hands of drunk drivers and others who criminally abuse alcohol, contributing to the 10-15,000 deaths of innocent bystanders caused by alcohol each year in the U.S. (from drunk driving and alcohol-involved murders), and to an even great amount of nonfatal injury.

     What's more, alcohol manufacturers have reason to know that alcohol sold by some dealers -- for instance, those in college towns -- ends up being disproportionately bought illegally, for instance through "straw purchases" by underage consumers. And yet despite this, alcohol manufacturers continue to sell in college towns, even though they could easily stop all shipments to dealers in those locales, or at least cooperate with one another to reduce sales to those towns to the levels that seem necessary to satisfy only lawful demand. Even more nefariously, alcohol manufacturers do not stop selling (directly or indirectly) to liquor stores even after a liquor store has been found to violate liquor sales laws; the manufacturers appear to negligently leave enforcement of those laws entirely to law enforcement.

     OK, actually this isn't really quite right -- no-one is suing alcohol manufacturers over this, yet. (I have, however, seen a law review article urging product liability lawsuits against alcohol manufacturers.) But these are the theories being promoted in the lawsuits against gun manufacturers; and if you think they're wrong as to alcohol -- as I think they are -- they are equally wrong against guns. Alcohol and guns are dual-use products; manufacturers surely know that some of the products that they make are going to be used illegally, though most will be used lawfully. They also know that in some particular areas, the proportion of illegal use is higher than in others. But that, it seems to me, doesn't justify imposing this sort of liability, as to alcohol, guns, cars (after all, 10-15,000 innocent bystanders die yearly in car accidents, and car manufacturers recklessly keep selling fast cars, and utterly fail to police whether their distributors sell cars to people who seem likely to be reckless), or other products.

     In any event, though, I think this provides a useful check on gun liability arguments: Replace "gun" in each claim with "alcohol," and see whether the anti-gun-manufacturer argument makes sense. Generally, I think you'll find that it doesn't.

UPDATE: Walter Olson's excellent has many links on this, and a bit of commentary.


HOW TO AVOID EMBARASSMENT: Before forwarding friendly warnings to all your friends, colleagues, and acquaintances -- warnings about viruses, about cell phones starting gas station fires, and so on -- google some of the key terms, either by themselves or together with the words "myth" or "hoax." You'll often find that the original e-mail you got is a hoax; and you'll thus spare yourself a bit of mortification, and your friends a bit of annoyance.

UPDATE: A couple of people e-mailed me to point out that does a great job of checking for hoaxes, and I agree; but in my experience, google will find more stuff than snopes, in part because it usually finds snopes pages. And while I think it would be great if people checked several sources before forwarding "warnings," my sense is that we're lucky if people just check one source; google is probably the best candidate for that one.


NEW YORK TIMES CORRECTION: It's from 150 years ago (July 18, 1859), but I just ran across it (quoted in the Nov. 14, 2001 edition of the paper) while cite-checking my book draft, and thought I'd pass it along:
By a confusion of manuscripts, sent up at a late hour on Friday night, our leading article of Saturday on the Austrian Defensive Square was rendered perfectly unintelligible. As our extremely ridiculous blunder afforded matter for much legitimate and good-natured merriment to our contemporaries of the Sunday press, and a happy occasion for airing a little envy, malice and uncharitableness to the less respectable among the daily journals, the newspaper world is indebted to us for making it, and our apology is addressed to the world of readers alone.


BUT OF COURSE. Evidently Al-Jazeera has found a managing editor for its new English-language site, and she has ideal credentials: she's a former BBC journalist.


HOWARD STAYS HOME: The U.S. hurt the domestic standing of Australian Prime Minister John Howard by not inviting him to the Azores summit-- even though Australia, unlike summit participant Spain, is a full military partner in the coalition. This time the administration remembered to invite Howard (to the summit with Blair later this week), which is good. But Howard's remaining in Oz, the significance of which I cannot evaluate.

via Tim Blair, check out the contortions of a former leader of the Aussie opposition who's trying to praise Blair's heroics while trashing Howard for getting involved in the war.

One more Australian item that doesn't seem to have made it into American papers: a day before the airstrikes on Baghdad started last week, two protesters climbed the "sails" of the Sydney Opera House and vandalized it, writing "No War" in 16-foot high red letters. The Opera House has been cleaned, and the protester who is British is getting his visa cancelled. Many folks, including John Howard, publicly worried that this showed a laxness in security that could be exploited by terrorist attackers.

Much more on Australian military participation, the contrast with Spain, and related matters coming later this week...


PRETTY LONG LIST OF U.S. MILITARY OPERATIONS, WITH NAMES AND DETAILS: It's here, and some of the names are doozies. I like "Operation Intense Look" and "Operation Nimrod Dancer." (Thanks to the Command Post for the pointer.)


RUMSPEAK: SOME COMIC RELIEF. Today's news conference from the Department of Defense reminded me that fans of Donald Rumsfeld (I am one; I have been wanting him to run for president since the 1970s) will enjoy this piece if they missed it last summer. I realize it's a little racy by Conspiracy standards, but, well, it's funny.


WAR MONKEYS: Read the Command Post on this.


"UK TROOPS BACK 'BASRA UPRISING'": From the BBC (with thanks to the indispensable Command Post for the pointer):
UK troops 'back Basra uprising'

British troops are firing in support of what they believe is a civilian uprising in the southern Iraqi city of Basra, it is reported.

Artillery fire was being used to knock out loyalist Iraqi mortar positions which were attacking civilians, ITV news reported, quoting intelligence officers with the Scots Dragoon Guards.

The size of the insurrection is currently unknown, said GMTV reporter Richard Gaisford. Loud explosions have been heard coming from the city.

There has been confusion over whether many civilians in Basra and the Shia south welcome the arrival of coalition forces, but still fear pro-Saddam troops and agents.

British forces spokesman Colonel Chris Vernon said there were estimated to be about 1,000 Fedayeen irregulars in the city, with Iraqi regular army strength unknown.

UK troops had indicated they were changing their tactics as they preyed on Iraqi forces in the southern city of Basra. . . .


FIG UPDATE: For those interested in that rude Russian gesture -- which also at least used to be a more common European gesture -- here's a photo (thanks to reader Glenn Bowen). Also, reader Melissa Davis writes that this gesture "is called a 'figa' in some Latin American countries (I think particularly in Brazil)" -- so far, consistent with the other things we've mentioned about it -- but it has a different meaning there:
It's a good luck sign, according to my aunt who was born in Brazil. My Peruvian grandmother had a large wooden wrist and hand in this position as a doorknocker for years, and I have a small one made of stone that I use as a pendant.
She even provides further evidence. Go figa.


ANTI-ROTC SENTIMENT: InstaPundit writes, quite correctly in my view:
SOMEBODY VANDALIZED THE ROTC OFFICE at the University of Iowa. But the response seems to me exactly wrong:
An act of vandalism against a symbol of the U.S. military on the UI campus over Spring Break prompted leaders Monday to stop requiring cadets to wear uniforms to class.

Authorities are looking for a person who smashed two glass doors at the Reserve Officer Training Corps office in the South Quadrangle building and spray-painted such slogans as "Stop U.S. military research" and "Fuck all wars" on four other UI buildings between March 20 and 21, UI police records show.

"I am not concerned for the safety of the cadets, but I worry that their uniforms may provoke attention from a person who is looking to aim his antiwar sentiments at someone," said Lt. Col. Carol St. John, a professor of military science.
I think they should wear their uniforms every day. It's funny to me that a University that would never respond to racist speech by asking minority students to "try not to be so noticeable" would respond to this kind of behavior in such a meek fashion.


GROUP SCHOLAR-BLOG EXPANSION: Oxblog has a new teammate. On a different note-- since by now this post is about half a mile down the page-- I've updated the oil, democracy, and federalism post.


THIS IS SO COOL: You can now search through census data for censuses from 1790 to 1960. Want to know the population in 1790? Or maybe the number of slaveholding families? Or maybe the number of slaveholding families who are themselves black? Or of Jews? By state? And by county? Or maybe literacy rates (self-reported, of course) in various states in 1900? Or the number of people born in China, or in Russia? Want to see the states sorted by the percentage of the 1900 population that was foreign-born males? Just go to the United States Historical Census Data Browser -- just mind-blowing (OK, for those data junkies whose minds get blown by this sort of thing, but I'm one of them).

     The questions varied from census to census, so information that's available for one decade may not be available for others. Also, always remember GIGO -- garbage in, garbage out. There may well be a variety of problems with the original data, and unless you're an expert in the field you might not even realize what they are. (If you're interested in some sense of what these problems might be, check out Clayton Cramer's Black Demographic Data, 1790-1860: A Sourcebook, especially chapter 1, "Limitations of Census Data," available here.) Still, that's always the risk with historical data; and it really is incredible that all of us can now have all this information at our fingertips. Wow.

Monday, March 24, 2003


RUSSIAN TECHNOLOGY: The Command Post quotes this Australian Broadcasting Corporation story:
The Pentagon says it has seen no indications that Russian-made anti-satellite equipment is having a negative effect on US operations on the ground in Iraq. . . .

Pentagon spokesman Major General Stanley McChrystal says there is no evidence the satellite jammers are affecting US operations.

"What we found is through testing and actual practice now, that they are not having a negative effect on the air campaign at this point," Major General McChrystal said. . . .
Oh, how many Soviet jokes does this remind me of? (I'd hope that more modern Russian technology is better than the Soviet, but perhaps not by that much.) My favorite is actually partly an Arab joke and partly a Soviet joke -- in 1967, Nasser writes to Brezhnev: "Stop giving us surface-to-air missiles; give us surface-to-aircraft missiles."


SHE MAY BE A STALINIST, BUT SHE SURE BRINGS IN THE HITS: Thanks to Andrew Sullivan, InstaPundit, Mickey Kaus, and The Corner (K-Lo) -- all to "Frida and Stalin" -- we're already up over 10,000 unique visits today, and we'll quite likely set a new record. (Our usual traffic has been at about 5000-5500 per weekday.) Woo-hoo!

UPDATE: The total count for this day was a titch over 13,000 unique visits.


FRENCH'S ISN'T FRENCH, AND THEY WANT YOU TO KNOW THAT: Thanks to reader David Kaufman for passing along this press release:



Recently there has been some confusion as to the origin of French’s mustard. For the record, French’s would like to say, there is nothing more American than French’s mustard.

Born in New York by the R. T. French company, French’s Cream Salad Mustard made it’s debut in 1904 at the St. Louis World’s Fair along with it’s side kick, the hot dog. Both were an instant success! By 1915 the French’s pennant became the brand’s official logo, symbolizing French’s affiliation with baseball and American celebration.

Throughout the years consumers have professed their lifelong love of America’s number one mustard. “For many Americans, French’s mustard IS Americana. It’s all about baseball, hot dogs, family and fun,” says Elliot Penner, president of French’s mustard. . . .
For the record, I love French food, and will continue to eat it, whatever the name, no matter how the French government (or even the French public) behaves. Nonetheless, I thought I'd pass this along.

UPDATE: But wait! I forgot to quote something hidden conveniently near the bottom of the press release:
The Seed Story: French’s uses only the highest quality mustard seeds. The milder white mustard seed is used for its Classic Yellow and honey mustard and the smaller, more assertive brown seeds for its Bold ‘n Spicy and Napa Valley style Dijon varieties.
"Dijon," eh? Not so not so French after all, it seems . . . .


[Eric Alterman] acknowledged that "most big-city journalists are liberal. I personally don't know . . . well, I don't have to my house for dinner anyone who's not pro-choice, pro-gun control . . . pro-campaign finance reform."
On the other hand, according to Orville Schell's review of Alterman's book in the New York Times this month (Mar. 20, 2003):
Liberals, on the other hand, do not tend to see themselves as representatives for any ideological movement. Rather than emphasizing discipline, organization and uniformity of message, Mr. Alterman suggests, they favor self-criticism, diversity and fairness, which makes them weaker competitors, especially on the kind of sound-bitten yelling contests that increasingly characterize radio and television.
You don't suppose that people might also become "weaker competitors" when they never have to engage in personal conversation with friends whom they like and respect, but whose views they disagree with?


USE OF HUMAN SHIELDS AS TERRORISM: William Saletan writes about this, with this conclusion:
The killers of Sept. 11 exploited the fact that they were willing to shed the blood of civilians and we weren't. The killers of Basra, An Nasiriyah, and Baghdad are exploiting the same difference. While ruthlessness in attack is worse than ruthlessness in defense, the logic of asymmetry binds them together. I don't know whether Saddam's henchmen should go to The Hague for sponsoring terrorism. But they certainly ought to go there for using human shields.


OIL AND DEMOCRACY: In the course of John Judis' TNR article about the resource trap (the incentives toward autocracy and corruption, and away from democracy and the rule of law, that afflict states whose potential wealth is disproportionately in the form of subsurface resources, especially though not only oil, diamonds, and gold), he makes an observation about the distribution of oil, and federalism.
Ask pessimists why Iraq will never be a democracy, and they most often cite its ethnic and religious divisions. A post-Saddam Hussein Iraq, they warn, could devolve into an Arab Yugoslavia, with open warfare between the Sunnis, Shia, and Kurds, and with Iran, Turkey, and Saudi Arabia taking sides. Optimists like The New Republic's Lawrence F. Kaplan respond that a federation could manage these divisions. Except that federations don't work well in countries where mineral wealth is concentrated in potentially secessionist regions, as the experiences of Nigeria, Sierra Leone, and the former Belgian Congo attest. And most of Iraq's oil lies away from Baghdad, near the Kurdish North and in the Shia South.
For now just let me note that this is a real issue, and something I haven't mentioned in my various comments on federalism in Iraq. The Kirkuk problem is the best-known indicator of the danger. On the other hand, the concentration of oil in the south isn't a particular problem, since any even-loosely democratic Iraq will see Shiites in control of the central government.

UPDATE: Left in the West writes:
And there is a real question as to why the Kurds, if in a safe, pluralistic, federalist democracy would want to attempt to secede if it meant a civil war against a rich, Baghdad-based Iraqi government and an invasion from Turkey. Baghdad could guarantee the Kurds protection. That, in itself, is a pretty good reason to stay inside the whole federation.
Well, yes and no. In the first place, it will be a long time before Iraq is both a "safe, pluralistic, federalist democracy" and a guaranteed bet to stay that way. Sometimes a legitimately fearful minority wants to secede just at the moment of democratization-- it's safe to do so then, and there's no guarantee that the moment will last very long. Eritrea and East Timor are the clearest examples; but it's also true that secessionist activity in the then-Soviet Union picked up in direct proportion to political liberalization. The democratizers at the center typically view this as irrational-- why leave at precisely the moment when things are getting better?-- but it's not, not really, not without perfect foresight and a certainty that repression will never ever pick back up again. Moreover, there are fixed reasons in the modern world for big territorially-concentrated linguistic minorities, in particular, to want to secede even from stable pluralist federalist democracies (Canada, Belgium). (For my full argument on this score, see my chapter in Kymlicka and Patten, eds.,
Language Rights and Political Theory.
) At a minimum, one shouldn't ever count on a prediction that liberalization or democratization will dissipate secessionist sentiment entirely. It does seem less likely that Kurds would take up arms against a stable liberal federal democracy headquartered in Baghdad, and that such a government would have the best (the only) chance of attracting real Kurdish loyalty. But it's no guarantee, especially not in the short term.


TIME COLUMNIST ON MOORE'S SPEECH: James Poniewozik gets it right (thanks to the Howard Owens's excellent war news blog, InsideVC's War Blog):
Michael Moore had not only every right but every legitimate qualification to make an antiwar speech . . . Agree with him or not, he is, unlike Susan Sarandon, nothing if he is not a professional commentator; and thus it was not inherently stupid for him to make his speech.

No. His speech was stupid for entirely different reasons.

The first is that -- and this is a characteristic flaw of Moore's movies -- it was a shrill harangue that would make a person ashamed even for agreeing with it. By starting off his screed by attacking the legitimacy of George W. Bush's election, he committed the same mistake as too many leaders of the antiwar movement, such as the leaders of ANSWER: he couldn't resist the temptation to lump his antiwar stance in with the rest of his portfolio of grievances. As a result, he made a speech guaranteed to alienate even many people who are also against the war.

If Moore really wants to end the war -- and not just boost the spirits of his Upper West Side neighbors -- then mightn't he also want to win over people who oppose the war and yet don't believe that Bush is an illegimate president swept into office by skullduggery? . . .

That's the really annoying thing about Moore's speech. Moore often casts himself as a populist, and sometimes he's even convincing. . . . But Moore's own clubby, we-all-know-Bush-is-a-liar attitude suggests that he's not interested in a broad-based antiwar movement. . . .

[And] there's a special reason to resent a political speech at the Oscars -- and it's not just bias against Hollywood liberals. . . . [A] proselytizing celeb like Moore is essentially hijacking our attention, saying that if you want to find out who won Best Director, you're damn well going to sit there and hear me out on world affairs. All the more reason for him to be, if not apolitical, reasonable and respectful of people who disagree with him, or agree with him only, say, 60%. . . .
Great piece, worth reading in its entirety.


MORE ON THUMBS UP: Reader Mostafa Sabet writes:
I'm an Egyptian-American immigrant (moved here when I was 1, but still semi in the know) and I've heard nothing about the thumbs up sign. I figured if there was an issue with it, I would've gotten it during one of my many, "This stuff is ok at home, but you'd better not do it here," speeches that my parents gave my siblings and I before one of our biannual trips back to Egypt. At the very least, they should recognize it as the American signal of "all good", a la the "Ok USA" guy in Bloodsport. Hand signals may vary from culture to culture, but you can always read facial/body expressions. Those people don't look like they're giving us, the equivalent of, the finger. Of course, I wouldn't take this as gospel, since my cultural ties are pretty loose nowadays, but it seems not to be something that we need to be too concerned about.
Interesting point, and further evidence that we can't infer too much from the thumbs alone. (Though since we're sharing cultural data, let me just advise people who go to Russia not to make a fist with the thumb sticking out between the index and middle fingers. This probably isn't necessary advice, since Americans don't normally do that -- except, as reader Dan Shmikler pointed out, when stealing children's noses -- but I pass it along just in case.)

UPDATE: Reader Michelle Dulak points out that the gesture has a long history in Europe; it's mentioned in Dante and Shakespeare, where it's called a "fig" or "figo," which is still its name in Russia.

FURTHER UPDATE: Pejman provides Persian perspective. (If you don't get the right post, it's because of a Blogger bug; go here and find the "THUMBS IN YOUR EYE" post.)


WHAT WOULD STALIN THINK: Matthew Yglesias writes:
Good point from Slate:
The Frida contingent said that Frida Kahlo herself would have opposed the war. Folks, Frida was a Stalinist, whose famous line about painting her reality and not her dreams was partly a sop to reassure the Communists that she wasn't a gulag-worthy Surrealist.
Nevertheless, she was a hell of an artist. I do kind of wonder what Stalin would think about the world today.
"That wimp Gorbachev -- what an idiot. The Chinese at least looked for a while like they knew how to handle this, but even they're making the same mistake, though more slowly. There was nothing wrong with the Soviet Union that a couple more million killed in the gulag wouldn't cure." Seriously, isn't that about the only thing that would be on Stalin's mind -- the ruin of his life's work? What would he care about the U.S. fighting Iraq?


The mother of Hasan Akbar, the Army sergeant who is being held in connection with an attack ing on soldiers in Kuwait, expressed disbelief at reports implicating her son.

Quran Bilal said Sunday that no one in the military had informed her of the accusations against her son. In a phone interview from her home in Baton Rouge, La., she said she thinks her son has been accused simply because he is a Muslim.

''He's not like that,'' she said. ''He said the only thing he was going out there to do was blow up the bridges. He was never like that.''

Akbar, whose first name has been spelled Asan by the military, is being held as a suspect in the grenade attack that killed one 101st Airborne Division soldier and wounded more than a dozen others early Sunday morning in Kuwait. The dead soldier was identified as Capt. Christopher Scott Seifert, 27. . . .

[Akbar] expressed his concerns about being a Muslim in the Army to his mother in the past.

''He said, 'Mama, when I get over there, I have the feeling they are going to arrest me just because of the name that I have carried.'"

Akbar did not participate in the first Persian Gulf War because his religion created a ''conflict of interest,'' she said. . . .
Well, if Akbar is indeed the killer, then here's the striking thing: Not only was he not arrested "just because of the name that [he] carried" -- but if he had been arrested just because of his name (or even just discharged, or perhaps just not stationed in the Middle East, though that's harder to tell), Capt. Seifert would probably be alive today.

     I think that we are right to accept Muslim soldiers in a war that does indeed, as a practical matter, array us in large measure against the world Muslim mainstream. It is a sign of our strength and our principles, and I think it will ultimately help us both at home and abroad.

     But there is a cost to this tolerance, as well as a benefit. And that cost isn't just paid by abstractions such as "society" or "military efficiency" -- sometimes it's paid by particular people, such as Christopher Scott Seifert.



     From the Politburo, who, judging by their name, ought to know about such things:
[W]e would like to guide your attention to an overlooked quote from Mexican actor Garcia Bernal, star of Y Tu Mama Tambien.

"The necessity for peace in this world is not a dream but a reality. And we are not alone. If Frida (Kahlo) was alive, she would be on our side against war." . . .

[A]llow us to quote from a Washington Monthly article on the real Frida Kahlo . . . [:]

". . . Kahlo turned on Trotsky because she had become a devout Stalinist. Kahlo continued to worship Stalin even after it had become common knowledge that he was responsible for the deaths of millions of people, not to mention Trotsky himself. One of Kahlo's last paintings was called "Stalin and I," and her diary is full of her adolescent scribblings ("Viva Stalin!") about Stalin and her desire to meet him."
     A quick google search seemingly corroborates the Washington Monthly assertion -- see, for instance, this article in a Socialist publication, and this piece on the World Socialist Web site. As the World Socialist article says, "In one of her last paintings (Frida and Stalin, c 1954), Kahlo depicts herself seated contemplatively beneath an enormous portrait of a benign and fatherly Stalin. As a political testament it speaks volumes." (I found the painting, which I include above, here.)

     So remind me: Why exactly should we care which side Frida would be on (unless we want to be on the opposite side, an admittedly imperfect heuristic)? Even if one somehow concludes that Kahlo was ignorant of Stalin's crimes (in the early 1950s, mind you), and was thus merely foolish as opposed to morally corrupt, is a "What Would Frida Do?" approach really very wise?


Suspected Islamic militants dressed in army uniforms gunned down 24 Hindus in Indian-administered Kashmir, police said yesterday, as the troubled region reeled from a new upsurge in violence. . . .

The gunmen rounded up the villagers before spraying them with automatic weapons and fleeing into nearby forests, he said. Among the dead were 11 women and two children. . . .

The massacre is the latest in a series of mass killings in the disputed state in the past year. The most serious incident, the killing of Indian soldiers and their families in Kaluchak on May 14, brought India and Pakistan to the brink of war. . . .

The violence has intensified since the onset of spring, with police saying routes used by militants to infiltrate Indian Kashmir from the Pakistani zone of the divided state which had been snowbound were now opening up again. . . .

Some 200,000 Hindus fled Kashmir in 1990, soon after the insurgency began. India says more than 37,500 people have been killed in the unrest since 1989.


FLAGS IN CITY OFFICES: The Richmond Times-Dispatch reports the following:
[Gary Burton] and a friend hung his 5-foot by 8-foot American flag in their [City Hall] office this morning. . . .

But Burton's boss, Claude G. Cooper, ordered him to take it down about eight hours later. Three coworkers in the Bureau of Permits and Inspections complained to Cooper throughout the day, saying the flag amounted to an endorsement of the war. . . .

"The gist of [their complaints] is the flag is an attempt to make a political statement in support of the war. And they were opposed to the war," said Cooper, the city's building commissioner. "Emotions are running strong on both sides of the fence right now."

While ordering Burton to take it down, Cooper pointed to a city regulation that prohibits the "solicitation of city officers and employees for any unauthorized purpose, including but not limited to the sale or purchase of property, goods or services, contributions, membership, dues check off, political contributions or support . . . "

The regulation does not refer to flags of any kind. . . . Cooper said the flag will remain until [the City Attorney's] office makes a decision tomorrow.
John Jenkins e-mailed me to ask whether the city's attempt to take down the flag is constitutionally permissible. As a general matter, government employers may not restrict their employees' speech on matters of public concern unless the speech causes -- or seems likely to cause -- some disruption that outweighs the value of the speech (the so-called Pickering test). That means the government acting as employer has much greater authority over its employees' speech than does the government acting as sovereign, but the authority is not complete.

     Furthermore, the government acting as proprietor has a pretty broad hand in restricting speech on government property (outside government-owned public fora such as parks, sidewalks, and places that the government has voluntarily opened up for speech purposes), whether that speech is by employees or by others. Such restrictions must be viewpoint-neutral, but they may be content-based. (Restrictions by the government as employer may be viewpoint-based, when certain viewpoints create enough disruption; when the government is acting both as employer and as proprietor, as it is here, it can claim the extra authority that it has under either theory.)

     So if the flag indeed seemed likely to cause disruption, it might be restrictable, depending on how the notoriously vague Pickering balance comes out; and if the city's policy has generally been understood to prohibit the posting of prominent materials that have a political message, then the flag may be properly covered by this policy. (Naturally, the city has doubtless posted speech of its own on city property, but it's entitled to say that only the city's own messages may be posted on office walls, and that individual employees may not post their own political messages.) On the other hand, both the facts and the law seem vague enough here that it's impossible to tell for sure. And quite likely, this case will never come to court, but will be resolved politically -- either through the employee concluding that it's better internal politics not to insist on a right to put up the flag, or through management concluding that it's better external politics not to insist on the power to take it down.


THUMBS UP: The Agonist reports that the "thumbs up" gesture is actually an insult in Arabic, and that Arabs giving American soldiers the "thumbs up" is therefore not what we might think it is. A seemingly official military site -- apparently aimed at introducing American soldiers to possible peacetime misunderstandings caused by cultural differences -- confirms this, saying:
Hand Gestures: By and large Bahrain is cosmopolitan enough that most of its inhabitants have been exposed to Western ways. Still, there are several hand gestures used in the U.S. which could have a different meaning if used in the Middle East. There are the "thumbs up", "peace (or victory), and the "okay" signs.

Thumbs up, meaning "everything is great" or "I’m Okay" to the West can be equated to the "middle finger" by Middle Easterners. Of note, hitch-hikers do not "thumb a ride", rather they hold their hand horizontal to the road and wave it up and down as though telling motorists to "reduce speed".

Peace or the victory sign is generally understood when the pads of the fingers are pointed away form the person making the sign (in other words, palm out.) When the sign is made with the knuckles facing away from the person making the sign (palm in) the sign may be taken for a "devil sign" or "the middle finger extended."

Okay, the circle made with the thumb and index finger, the other three fingers extended can be misunderstood to be the sign of "the evil eye"
Now this doesn't tell us for certain what the thumbs-up Iraqis mean. They may well be aware that the thumbs-up signal is seen as positive by Westerners (Western TV makes that clear enough), and might thus be practicing some cultural understanding of their own. They may be trying to say "fuck you," either not realizing that westerners will misunderstand it, or not caring, because they're just doing it for their own sake or the sake of their Arab friends who don't like the allies. Or they may just be enjoying the mild absurdity of the mismatch in meanings; these things can be a bit funny to some people, just like some people enjoy saying foreign words that sound dirty in English but are perfectly normal in other languages. But in any case, it is probably worth remembering that the gesture may have multiple meanings, and its likely meaning may be hard to figure out without considering the other cues that one is seeing -- e.g., are the people cheering, smiling, or the like? -- though of course some of those cues can be unreliable in certain ways as well.


LOOK AGAIN: It may be premature to claim that Coalition forces have found a chemical weapons plant in Iraq (as suggested here). U.S. military command has downplayed news stories claiming a large chemical plant was found over the weekend. Nonetheless, reports of possible discoveries continue. I doubt we will be able to sort out what has and has not been found for a while.


MONDAY MORNING: And still no functioning hard drive, which will continue to constrain my posting. If I only have a few minutes at a terminal, I'd rather check out my must-reads (have I plugged them lately? In addition to my current co-conspirators, my core roundup includes Oxblog, Matthew Yglesias, Chris Bertram, Lawrence Solum, Dan Drezner, Kieran Healy, Mark Kleiman, and Julian Sanchez) than write a quickie post. I'll also be constrained by Kieran's sage advice; indeed I didn't feel much like posting after the war began for reasons much like those Kieran adduces. On matters military I can't add much to what everyone else already knows by following the news. But a few items:

The Virginia Tech policy I've blogged before, prohibiting campus lectures by anyone who has"advocated" terrorism at any time, has, correctly, been held to be unconstitutional by the Virginia AG. (Chronicle subscription required.) I received a surprising number of quite irritated e-mails for stating the (legally straightforward) view that this rule was obviously unconstitutional.

Via Chris Bertram, a Financial Times piece by political science and ethnopolitics specialist Brendan O'Leary about federalism and the protection of Kurdish autonomy in postwar Iraq (one of my favorite topics, as regular readers know). See also Tim Noah's ongoing Kurd Sellout Watch.

I spent part of the weekend reading Quentin Skinner on R.G. Collingwood (a chapter from
The History of Political Thought in National Context
that offers Skinner the opportunity to, mostly, critique postmodernist views of interpretation), got to work this morning, and found that Roderick Long had posted a paper on Collingwood and Mises. I look forward to reading it...

New blogger Micah Schwartzman has started a series of posts on right-leaning think tanks, left-leaning foundations and universities, and the comparison between the two. (Thanks to Chris Bertram and Matthew Yglesias for pointers.) I suppose it might be the case that, as a non-leftist academic, I could have something to add to this discussion. For a variety of reasons I don't feel comfortable doing so. I will say that I think Micah and Matt underestimate the intellectual influcence of academia relative to think tanks and overestimate the political effectiveness of think tanks; that the production of "big ideas" seems to me a strange way to characterize, say, the Heritage Foundation, which is very focused on day-to-day DC minutae; that IHS and Liberty Fund aren't particularly similar to the think tanks in any way relevant to Micah's discussion; and that the relationships between the ostensibly programmatic focus of the big left-leaning foundations and the propogation of political ideas is a great deal more complicated than the Alterman quote suggests. I think the discussion is an interesting one, and I encourage others to take part, but I'm mostly going to hold back.

At Dan Drezner's Oscar party, my wife and Dan tied for first in the accuracy of their predictions. I voted with my heart rather than my head, and didn't do so well. The Independent Spirit Awards, shown on Bravo earlier in the day, did a nice job of showcasing some of the best movies of the last year, including many that Oscar overlooked entirely. (You had to wait through some annoying antiwar speeches and endless awards to the overrated Far From Heaven, but the attention given to other nominees was gratifying.) I largely agree with the other commentary I've seen: glad Moore got booed; entertained by Martin but eventually kind of creeped out by his focus on the looks of the actresses; pleased with the overall level of political restraint but unsettled that no one could bring themselves to offer a even a subdued hope for a speedy victory rather than simply a speedy "end to war," a hope for the freedom of the Iraqi people rather than simply a hope for peace with them (Peter O'Toole's elegant and restrained speech was a sort-of exception); and really, really amused by the look on Halle Berry's face after Adrien Brody liplocked her.

I've updated yesterday's post about minimizing enemy military casualties.


THE DEATH PENALTY: A review in the New York Review of Books, cowritten by the very prominent historian Edmund Morgan, describes The Death Penalty: An American History as a "remarkable book," "narrate[d] with extraordinary objectivity and insight"; the author "sticks to the facts and takes no sides."

     The author, I'm happy to report, is my own UCLA Law School colleague, coblogger, and fellow Kozinski/O'Connor alumnus Stuart Banner. Though the New York Review of Books review is quite clearly anti-death-penalty, the book itself is indeed scrupulously objective, and extremely readable and interesting to boot. Buy it! (Thanks to How Appealing for the pointer to the review, since Stuart was too modest to mention it himself.)

Sunday, March 23, 2003


CRUISE MISSILES: I'm not sure whether these were among the banned weapons that the inspectors were searching for, but it sounds like they might be. From The Guardian:
British troops mopping up Iraqi opposition outside Basra have discovered cruise missiles hidden in bunkers abandoned by Saddam Hussein's disintegrating southern army. . . .

[T]he most disturbing find was two Russian-made Harith cruise missiles, each six metres (20ft) long, and nine warheads hidden in two enormous, reinforced-concrete bunkers.

Another missile, as yet unidentified, was found still in its crate.

The scale and possible implications of the weapons find took British forces by surprise and raised fresh questions about the extent of the Iraqi war machine and the ability of weapons inspectors to cope with the task of scouring such a vast country for prohibited ordnance. . . .
Thanks to Yeechang Lee at The Command Post.


DANNY DEEVER: Rudyard Kipling, as is so often the case, has something apropos. (Thanks to John Derbyshire on National Review's The Corner for the pointer; I'm not sure if his reaction to the poem is quite the same as mine, but he's right to point us to it.)
"What are the bugles blowin' for?" said Files-on-Parade.
"To turn you out, to turn you out", the Colour-Sergeant said.
"What makes you look so white, so white?" said Files-on-Parade.
"I'm dreadin' what I've got to watch", the Colour-Sergeant said.
     For they're hangin' Danny Deever, you can hear the Dead March play,
     The regiment's in 'ollow square -- they're hangin' him to-day;
     They've taken of his buttons off an' cut his stripes away,
     An' they're hangin' Danny Deever in the mornin'.

"What makes the rear-rank breathe so 'ard?" said Files-on-Parade.
"It's bitter cold, it's bitter cold", the Colour-Sergeant said.
"What makes that front-rank man fall down?" said Files-on-Parade.
"A touch o' sun, a touch o' sun", the Colour-Sergeant said.
     They are hangin' Danny Deever, they are marchin' of 'im round,
     They 'ave 'alted Danny Deever by 'is coffin on the ground;
     An' 'e'll swing in 'arf a minute for a sneakin' shootin' hound --
     O they're hangin' Danny Deever in the mornin'!

"'Is cot was right-'and cot to mine", said Files-on-Parade.
"'E's sleepin' out an' far to-night", the Colour-Sergeant said.
"I've drunk 'is beer a score o' times", said Files-on-Parade.
"'E's drinkin' bitter beer alone", the Colour-Sergeant said.
     They are hangin' Danny Deever, you must mark 'im to 'is place,
     For 'e shot a comrade sleepin' -- you must look 'im in the face;
     Nine 'undred of 'is county an' the regiment's disgrace,
     While they're hangin' Danny Deever in the mornin'.

"What's that so black agin' the sun?" said Files-on-Parade.
"It's Danny fightin' 'ard for life", the Colour-Sergeant said.
"What's that that whimpers over'ead?" said Files-on-Parade.
"It's Danny's soul that's passin' now", the Colour-Sergeant said.
     For they're done with Danny Deever, you can 'ear the quickstep play,
     The regiment's in column, an' they're marchin' us away;
     Ho! the young recruits are shakin', an' they'll want their beer to-day,
     After hangin' Danny Deever in the mornin'.




NEW YORK TIMES VS. BOWLING FOR COLUMBINE: Ken Layne pointed to this New York Times review of Bowling for Columbine that I haven't seen mentioned much, even though it's been out for several months. Layne also links to many other criticisms, but for obvious reasons the Times review should be particularly persuasive. It doesn't have a lot on the specific inaccuracies in Bowling (David Hardy has collected plenty), but it does aptly condemn the general reasoning, and the location makes it especially credible. (Thanks to reader Gerald Dearing for the pointer to Layne's piece.)


LOOKEE HERE: FoxNews reports on suspected chemical weapons facility in Iraq. You decide.

UPDATE: The Jerusalem Post has more.


WAR & THE ENVIRONMENT: Greenblogger has some interesting posts on the environmental aspects of war and the reign of Saddam Hussein here and here. Environmental damage is one of the many negative consequences of war (though it is not, in itself, a reason not to go to war). In the case of the war against Iraq, however, the United States is fighting a regime that seems willing to engage in wanton environmental destruction for its own sake -- torching wells, spilling oil into the gulf, lighting rivers of crude, to say nothing of Husseins' campaign to commit "ecocide" against the Marsh Arabs. It seems to me that Hussein's actions -- both in this war and the last -- might provide the basis for the first international criminal prosecution for ecological war crimes.


To Steve Martin for putting Michael Moore in his place.

To Kirk Douglas for saying "And the winner is . . . " and

To the Academy for not giving the Best Picture Oscar to "Gangs of New York." While Scorsese is deserving, Gangs was quite possibly the most overrated film of the year.


THE COMMAND POST, an excellent war-news blog, has now moved to


IN A RARE DISPLAY OF GOOD EDITORIAL JUDGMENT, Frank Rich's bi-weekly hatchet job on the Bush administration has been moved from the editorial page of the New York Times to the Arts & Leisure section. Kudos! I have some additional suggestions for reorganization if they are interested.


INNOCENT SOLDIERS: Quoth Princeton economist Uwe Reinhardt:
CNN recently showed a Marine chaplain admonishing the platoon assembled before him: Pray not only for yourself, he told them, but for your enemies as well. After all, they are just soldiers, like you, doing what they are ordered to do.

What a refreshing departure these words were from what I've been hearing from the civilian sector, where the talk is mainly of minimizing coalition casualties or, in more generous moments, innocent Iraqi civilian casualties as well. I wince every time I hear that kind of talk, especially the reference to innocence. Should not the proper minimum in any war be loss of human life, period — which in this case includes Iraqi soldiers, too?...Perhaps many of the Iraqi soldiers, too, find themselves where they are because they have no other choice.
Replieth Oxblogger David Adesnik:
Nonetheless, I find it hard to accept that American strategy should focus on minimizing Iraq's military casualties. Were that our approach, fighting a war would simply become impossible. While minimizing opposition casualties is a noble goal, it is one best achieved through the swiftest possible victory.
First of all, I think Reinhardt badly misstates the American position. Aiming to minimize civilian casualties has been a defining feature of our campaign. Whta has been new and almost unprecedented is the level of energy that has been placed on avoiding Iraqi military casualties as well. In other words, the "more generous moments" are already where he wishes policy was, and the protection of civilians doesn't await those generous moments.

The U.S. is deliberately not bringing all of its force to bear on the regular Iraqi army. It is differentiating between divisions of mostly-to-all conscripts and the Republican Guard.

Under jus-in-bello rules, the crucial distinction is not, and rightly is not, between the guilty and the innocent. It is between combatants (including the chain of military command) and non-combatants. As Michael Walzer argues in Just and Unjust Wars, even the innocent conscript is a perfectly legitimate target once there is a war. The way to protect innocent enemy soldiers, as David suggests, is by no longer being in a state of war-- which may demand winning the war. While hostilities are in place, it is indeed legitimate to intend to maximize enemy combatant casualties, subject to moral constraints about limiting collateral damage to civilians. To hold otherwise, as a principled matter, is to renounce the possibility of morally legitimate conduct in warfare. Pacifism is an honorable position, but is not the only moral argument around.

And yet... Walzer's defense of attacks on morally innocent enemy combatants rests on an elaborate kind of self-defense argument. If it's the case that one side's military forces are more or less invulnerable to the other's, that defense may weaken. Soldiers aren't required to risk their own safety to take and hold POWs-- but if the marginal increase in risk is low, and one really has the choice between tens of thousands of enemy POWs and tens of thousands of enemy deaths, things begin to look different. In short, it may be that in a war with such a dramatic power imbalance, there is a moral obligation to take some pains to avoid enemy combatant casualties. (None of this applies to the case of WWII invoked by Reinhardt; the deaths of German conscripts was a cause for some moral regret, but the Allies were justified in seeking to maximize such deaths until the war was over.) Even in this war it wouldn't violate the rules of war to try to kill as many Iraqi soldiers as possible; but this might be a case in which the rules of war don't completely describe the moral obligations of the combatants. And it is certainly wise and prudent for the coalition to be acting as it is, in order to make very clear to Iraqis and the world alike what the aims of the conflict really are, and are not. In the case of this war, I don't think David is right. (UPDATE: David says he's persuaded.) Minimizing enemy combatant deaths is both moral and prudent, in this case, and it doesn't seem to be dramatically impairing our conduct of the war. There is no question that there is some cost to doing so; some surrendered Iraqi troops are reported to have re-commenced combat. And it's not the case that coalition forces are invulnerable to Iraqi attacks. But they are sufficiently more powerful that some marginal risk is justified in the pursuit of a strategy that could reduce enemy deaths by tens of thousands compared with the al ernatives, such as bombing all Iraqi military units at shock-and-awe or 1991 levels.

UPDATE: D.S. Monoclonius disagrees. Dan Simon has more. I don't think I disagree with Dan in any general way. It can't become a rule of jus in bello that combatants must seek to minimize enemy combatant casualties, and the combatant-noncombatant distinction must remain fundamental, not be replaced by an attempted "innocent-guilty" distinction. And if the false-surrenders turn out to be a widespread Iraqi strategy then it may prove impossible, even in this particular war, to do what the coalition has been attempting and intending to do. But, unless that turns out to be the case, I still think that the strategy has been both prudentially and morally correct in this case. It is something of a luxury to be able to try to protect the lives of enemy soldiers. That luxury depends on a certain imbalance of power. But it seems to me that it is a luxury that the coalition can, and therefore ought to, afford. And this does not depend on the thought that the Iraqis will do the same; indeed, if I'm right about the character of the moral obligation here, it will necessarily only be held by one side, at most, in any given conflict. Iraq obviously intends coalition combatant deaths. But then, Iraq doesn't have a stake in the postwar reconstruction of the United States, or in building up an image as an especially careful and humanitarian force. Nor does it depend on Iraqi soldiers killing their officers, or hoping before the fact to surrender. If it can be done, if they can be held in check while this is going on, it is desirable to expend effort trying to persuade them to surrender (where "persuasion," obviously, includes psychological operations, descriptions of the overwhelming coalition firepower, and so on), trying to save their lives even against their own inclinations.

I don't think this is a simple matter of tender western feelings that are incompatible with the realities of war. No one argued for minimizing Taliban and Al Qaeda combatant casualties; and, unlike Reinhardt, I'm not offering an argument that the Allies ought to have minimized casualties among Axis combatants (innocent conscript or otherwise).


NO MORE MR. NICE GUY? Some of the current reporting suggests that we may be losing soldiers to ruses in which Iraqi soldiers pretend to surrender and then either turn on their captors or run away in civilian clothes while keeping their guns for later use. This is extraordinarily unfortunate, not only because of the obvious loss of American lives it may be causing but because it is likely to raise the death toll all the way around. Like many others, I have been warmed by the care our country has taken to encourage surrender for the sake of saving lives. But if gestures of surrender can't be trusted, our second-best option will be a quicker recourse to the Warthog. The false surrender is one of those tricks that tends to work only once; abuse of the white flag is a perilous thing.

     Now of course this may come as no disappointment to those soldiers who are involved in the false-surrendering tactics. If they believe the right thing for all of their colleagues to do is fight to the death, perhaps they like the fact that their tactics will simply make it harder for the cowardly among them to surrender -- even if it does also increase the number of their own countrymen who are killed. But anyone who thinks this way had better be sure that they themselves are in this thing to the death. There can come a time for just about anyone when surrender turns into an attractive option -- if not yet, then when they and their comrades find themselves unarmed or inadequately armed and surrounded by heavily armed enemy combatants. But if our troops in those circumstances can't be sure that the Iraqis in front of them really are unarmed and that it isn't a trap, it seems likely that they will be inclined to err on the side of caution. False surrenders thus amount to a very striking case of a military "burning its bridges."


UNITY AND DIVERSITY: The International Herald Tribune ran this cartoon:

Uh, folks, remember all that stifling of dissent by the U.S. government? It turns out that it never actually happened. Remember all the people praising diversity? It turns out that American democracy does indeed protect diversity of opinion. That means the minority is free to protest. But it also means that the majority -- and the majority of Americans does support the Administration's actions -- is entitled to go ahead without waiting for a "united nation," since our toleration of dissent and diversity makes a truly united nation quite unlikely. (Thanks to The Politburo.)


ALCOHOL MANUFACTURERS IN TROUBLE: Apparently there are some industry insiders who will testify that alcohol manufacturers were actually aware that some of their products end up in the hands of drunk drivers and others who criminally abuse alcohol, contributing to the 10-15,000 deaths of innocent bystanders caused by alcohol each year in the U.S. (from drunk driving and alcohol-involved murders), and to an even great amount of nonfatal injury.

     What's more, alcohol manufacturers have reason to know that alcohol sold by some dealers -- for instance, those in college towns -- ends up being disproportionately bought illegally, for instance through "straw purchases" by underage consumers. And yet despite this, alcohol manufacturers continue to sell in college towns, even though they could easily stop all shipments to dealers in those locales, or at least cooperate with one another to reduce sales to those towns to the levels that seem necessary to satisfy only lawful demand. Even more nefariously, alcohol manufacturers do not stop selling (directly or indirectly) to liquor stores even after a liquor store has been found to violate liquor sales laws; the manufacturers appear to negligently leave enforcement of those laws entirely to law enforcement.

     OK, actually this isn't really quite right -- no-one is suing alcohol manufacturers over this, yet. (I have, however, seen a law review article urging product liability lawsuits against alcohol manufacturers.) But these are the theories being promoted in the lawsuits against gun manufacturers; and if you think they're wrong as to alcohol -- as I think they are -- they are equally wrong against guns. Alcohol and guns are dual-use products; manufacturers surely know that some of the products that they make are going to be used illegally, though most will be used lawfully. They also know that in some particular areas, the proportion of illegal use is higher than in others. But that, it seems to me, doesn't justify imposing this sort of liability, as to alcohol, guns, cars (after all, 10-15,000 innocent bystanders die yearly in car accidents, and car manufacturers recklessly keep selling fast cars, and utterly fail to police whether their distributors sell cars to people who seem likely to be reckless), or other products.

     In any event, though, I think this provides a useful check on gun liability arguments: Replace "gun" in each claim with "alcohol," and see whether the anti-gun-manufacturer argument makes sense. Generally, I think you'll find that it doesn't.


CREATIVE DIFFERENCES: It really isn't my way to air the reasons for these sorts of things publicly, but it does seem that there are enough differences in style and approach between Clayton and us that we ought to amicably part. (I assure readers that this is not because of anyone's support for Focus on the Family, opposition to some antidiscrimination laws, or views on child molestation, but again I don't think it would be helpful to publicly go into the subtle evaluations of style and substance that go into subjective judgments about what it takes to be effective coauthors.) I much appreciate Clayton's posts this past week, and I hope you have as well; if you have, please check out his excellent personal blog -- I know that I certainly will continue to read it myself. Likewise, I hope that those of Clayton's readers who have visited this blog this past week have liked what the other contributors have to offer.

     As I mentioned in the past, this sort of thing is an experiment -- like the blog itself is an experiment. Sometimes the experiments work out great: For instance, I'm delighted that Jacob Levy has joined us, and I hope that he is as well; and I'm likewise very happy with the input of the other cobloggers (though since I personally know all the other nonanonymous cobloggers, other than Jacob and Clayton, our deciding to work together was less experimental). Sometimes it turns out that people end up being incompatible in certain ways, so things don't work out as well. But I'm glad I tried this, and I hope to conduct similar experiments in the future. My apologies for troubling all of you with these nonsubstantive internal details; now, back to our regularly scheduled programming . . . .


"I WAS A NAIVE FOOL TO BE A HUMAN SHIELD FOR SADDAM": A remarkable essay via Instapundit.

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