Thoughts from
San Diego on Law, Politics, and Culture

 
Rendition news
By Tom Smith

So let's get this straight. Under the Clinton administration, terrorist suspects were rendered to places like Egypt, where they really were tortured, but under Bush, they are put in camps, where they are "tortured lite". So they are actually treated better under Bush than under Clinton? Now that's a secret the MSM can keep. (via instapundit.)

posted by thomas at 12/31/2005 10:12:00 PM

 
A must read, and I really mean it
By Tom Smith

A marvelous essay from Heritage about how Ronald Reagan won the Cold War. (HT to VC.)

The basic principles that guided President Reagan's foreign policy -- peace through strength, "trust but verify," tyranny is evil, and evil must not be allowed to triumph -- proved more effective, concludes political scientist Andrew Busch, than the rationalizations and moral equivocation offered by many academics and liberal policymakers during the 1980s.28 Margaret Thatcher has recounted a private conversation with President Reagan in 1983 in which he expressed his conviction that if the United States built up its armed forces as far as necessary, the Soviets would have to change their attitude because "they knew they could not keep up the pace."29

There were many important actors -- and actions -- in the 1980s that led to the collapse of communism first in Eastern and Central Europe and then in the Soviet Union, including the leadership of Margaret Thatcher and Pope John Paul II, the rise of Solidarity and the impact of the Velvet Revolution, valiant dissidents in the Soviet Union and elsewhere behind the Iron Curtain, but the United States led by President Ronald Reagan was the central player. And a turning point in the decade was President Reagan's eloquent and prescient address to the British Parliament in June 1982, a carefully designed rhetorical volley in a strategy calculated to take full advantage of fundamental Soviet weaknesses and bring an end to the Cold War on terms favorable to the forces of freedom.

Historical lessons don't get any bigger than this. Those of you too young to remember this have to understand, the consensus of virtually all of the smart people, the experts, the academics, the tenured professors, the whole lot, was that Reagan was a simpleton, a dangerous crackpot, a B movie actor and a joke. And yet, he was right, and they were wrong. I count it as one of the things I am most proud of that I quit my tenure track job at politically correct UC Davis to go work in the Reagan White House. He saw what the professors, in all their wisdom and profound learning, did not. Not only did he see one of the gigantic truths of the 20th century, both historical and moral, that freedom not only could but should triumph, but he acted upon it. And he acted upon it against every bit of resistance his enemies could muster, not only those in the USSR, Cuba, Nicaragua and elsewhere, but many in Congress and the press as well. They would have sent Casper Weinberger, as responsible as anyone but Reagan for winning the Cold War, to jail, had not Bush pardoned him. William Casey had to die to get out of his troubles. If the US had orders of nobility, they should all have gotten Dukedoms.

Instead, of course, the academics are busy constructing revisionist histories of how the USSR would have collasped anyway, and/or it's bad that it did collaspe, really, or whatever. How odd that Reagan could defeat perhaps the most powerful and evil (as measured by number of victims) empire in human history, and yet not win the battle for favorable treatment by historians and the intelligensia. But then, this is not really so mysterious. A dock worker in Poland has much more to be grateful for in freedom than a tenured professor at Harvard, especially one whose whole discipline has been discredited.
posted by thomas at 12/31/2005 06:31:00 PM

 
Schell weighs in
By Tom Smith

It can be soothing to read other people's hysterical rantings, because it makes you feel so calm by comparison. It makes me wonder if we should pass the hat to pay for Schell to go to law school, or at least take a class on constitutional law. But then, at most law schools, that would do little good, since so little time is spent on anything but the first ten amendments.

I think of Mr. Schell as one of those nuclear winter guys, back when he had to hurry up and disarm, or at least not put Pershing missiles on European soil, lest the Soviets be provoked. (Happy anniversary, Jonathan!) Good thing we didn't listen to him back then. But then I suppose there is some complicated story in which our failure to prop up the Soviet empire has led to global warming or something. First the US wins the cold war, and now it looks like we might actually win the war in Iraq as well. Hard times for America hating socialists. It must annoy them greatly that we have a President actually determined to defend the country, and willing to use his powers to do it.

Schell avers that the NSA program is "indisputably" illegal. Indisputably? As in, not able to be disputed? But lots of people do dispute that it is illegal. In fact, it probably is legal. We would have a very silly constitution if it were illegal. What we do have is quite a few law professors who think it is illegal, many of whom no doubt also believed that the law of the Florida Supreme Court must hold.

I have a new theory. I think it has something to do with a certain tendency on the Left to think that if you wish it hard enough, it will be so. Sort of a Disney view of the world. Under this theory, if you wish it be that we don't really have
to monitor phone calls from Afghanistan to Florida to stop a dirty bomb from going off in a US city , then a dirty bomb won't go off. It's like wishing upon a star. Or maybe they think we deserve it anyway? No doubt some of them do think this. Or maybe it is just intention based morality, where if your intentions are pure, the consequences don't matter. Which I must admit puzzles the hell out of me, since most of these folks are contemptuous of religion, which strikes me as the only good reason to be a thorough going non-consequentialist.
posted by thomas at 12/31/2005 05:28:00 PM

 
Latin America turning Protestant?
By Tom Smith

An interesting post at an interesting blog (which I just visited for the first time).

Some of the people at my fundamentalist Christian dojo go periodically to Peru to evangelize, or witness or whatever they call it. Be missionaries, would be the Catholic word. It is interesting how they speak of the Catholicism of Latin America, as merely superficial, insincere, a matter of habit, not conviction. No doubt this is true in many cases. I wonder how much of the Protestantization of Latin America comes from North American missionaries heading south. While there, they often do go works, it seems, such as setting up dental clinics and the like, no doubt much needed. The poverty I witnessed in Peru was terrible, especially among urban children.
posted by thomas at 12/31/2005 11:49:00 AM

 
Chicken related name changes
By Tom Smith

PETA activist changes his name to "Kentuckyfriedcruelty.com." Pamela "Chick" Anderson supports his decision.

posted by thomas at 12/31/2005 09:18:00 AM

 
Those darn Justices
By Tom Smith

Scalia leads in the joke department.

posted by thomas at 12/31/2005 09:14:00 AM

 
The Bush Medicare Benefit
By Gail Heriot

Ok, maybe we're not on the verge of the Singularity. If so, perhaps it's a pity. But living to be really old is still something I've always rather fancied. And until recently I had taken the optimistic view that great strides might occur in my lifetime that would allow some members of my generation (or perhaps the next) to live significantly longer and healthier lives than the previous generation.

I am less optimistic today. And, perhaps paradoxically, part of the reason is the extension of Medicare benefits to include pharmaceutical products. I'd love to be persuaded that I'm wrong, but I suspect that one of the effects of the program will be to take money out of research and development for drugs designed to extend the ordinary human life span and to put that money into other areas.

Here's how my armchair musings have gone so far: If the average human life span is going to increase significantly, it will be because of a technological breakthrough brought to us by the nice folks in the pharmaceutical industry. Some expensive research project--whether initiated by a large or small player in the industry--will pay off big time. As a result, many of us will be able to live to be 110. Or thereabouts.

But the Bush Medicare benefit will almost certainly result in price controls of some sort. It's inevitable. You can't have a system in which a single behemoth with almost limitless political power buys all or nearly all the drugs for seniors without that behemoth insisting upon paying a price that is below what the price would be under current conditions (in which the pharmaceutical industry players have monopoly power on account of patents and sell their products to a large number of buyers, none of which has the amount of market clout or political power that the United States of America will have when it is acting on behalf of the over 65 set).

The marginal cost of producing another capsule of an established drug is tiny. There's already a lot of political pressure on drug companies to provide their drug at marginal cost or below to those who might otherwise have difficulty paying for it. (And I'm not an opponent of those pressures--at least not in all contexts.) Imagine how much stronger that pressure will be once the new Medicare benefit goes into effect.

The pharmaceutical industry stands to both gain and lose here. On the one hand, pharmaceutical manufacturers will be selling more established drugs than ever, because more seniors will be able (and willing) to pay for more drugs. On the other hand, research and development into new drugs will be riskier. If the United States uses its market clout to refuse to pay more than marginal cost for a pharmaceutical product ... or even if it uses that clout to refuse to pay more than average price for that product, the effect will be to discourage research and development into areas that will most likely be of use to the elderly. Some of that research money will likely go elsewhere--where the possibility of "winning the lottery" by making an important breakthrough is greater.

Of course, these things are complicated, and there is probably a lot that I'm not seeing here. But all this tells me that perhaps I shouldn't wait before I try to write the Great American Novel. Time is nobody's friend.
posted by Gail at 12/30/2005 08:28:00 PM

 
More on the NSA program and Article II
By Tom Smith

Orin Kerr has another interesting post on the NSA controversy. It is difficult to tell exactly what his position is, since he is responding to the Turner piece in the Wall Street Journal. And since Turner was being rather over-cautious, I thought, a reaction to it in turns tends to be somewhat circuitous.

But since I have no reputation as a constitutional scholar to lose, I can afford to be much more direct. So let me make a few points. First, I think Orin is wrong to characterize the "nine words" in Sealed Case 02-001 acknowledging the existence of an inherent Article II power to engage in surveillance of foreign powers in wartime, as dicta. What it is more precisely is an assumption the court makes in its argument. That's quite a big difference. Dicta (it seems to me) is something the court says that does not bear on its ruling or the reasoning it uses to get to its ruling. But an assumption is part of the reasoning the court uses to get to its ruling. So I don't think it can be dismissed as dicta.

Second, it strikes me that there is an important distinction between limitations imposed on searches by the Fourth Amendment and limits on the President's Article II powers as commander in chief during wartime. In many discussions, including Orin's, these appear to me to be frequently muddled. I would like to be corrected here if I am wrong, but it strikes me as just wrong, and very counter-intuitive, to think of the Fourth Amendment as limiting the President's Article II wartime powers at all. If this were the case, it would mean something like the President's powers to wage war against those US citizens who had decided to fight for the enemy, had to be conducted within something like the proscriptions of constitutional criminal procedure. Surely, that can't be right. This is not to say the President's Article II powers are unlimited. That is what, I take it, the Youngstown Steel case is about. But if FISA really does subject Article II wartime powers to the procedural rigamarole in FISA, then it would be unconstitutional. But this very issue is one the FISA appeals court discusses in some detail in Sealed Case. It says, reasonably enough it seems to me, that FISA should be interpreted so as not to be unconstitutional. (Which, BTW, is another reason for thinking that the court's assumption that inherent Article II powers to surveil is not merely dicta.) So where that leaves us, it seems to me, is fairly clear. The President did not violate FISA, as that statute has been interpreted by the highest court other than the Supreme Court that has has the power to interpret it, and indeed specializes in interpreting it, so presumably is due some deference for that, and thus, for the President's action to be illegal, it would have to have exceeded his Article II powers. That I take it, is the position of David Cole, which he explained somewhere or other, and which I am too lazy to link to, and which is too annoying to deserve the link, in any event. While it is logically possible that the NSA program exceeded the Article II powers, it strikes me as a very implausible claim. We are not talking here about nationalizing the steel industry, or interring all Muslims or something of that sort. We are talking about data-mining calls and emails which have an elevated probability of being connected to terrorism, because they are within a network anchored by phone numbers or email addresses found in al Qaeda phones or computers, or because of charateristics of the calls or emails. If anyone thinks (as Cole apparently does) that doing that is outside the President's Article II powers, they have a ludicrously narrow conception of those powers, a conception simply inconsistent with the President's discharge of his duty to prevent future catastrophic terrorist attacks on the people of the United States. That alone suggests it is an incorrect conception of those powers, a fact even the Supreme Court is likely to notice.

All the arguments about AUMF strike me icing on the cake. But icing is still good, so why not. The issue of FISA's constitutionality does not have to arise if the President has authorization by statute to conduct the surveillance, and so the question is does AUMF in its authorization of military force include the authorization to conduct surveillance. Well, it would certainly be odd if it did not. Presumably, the President could order fighter planes to shoot down an airliner headed for the Capitol building. One would think he should also be able to attempt to intercept phone calls about the plot, so he can stop it before the plane is commandeered. It would probably be impossible to come up with a war where spying on the enemy did not play a major role. And what the President has told us, plausibly enough, is that the NSA program could not be conducted effectively if he had to run it through the FISA process, which, if AUMF was statutory authorization, he wasn't legally required to do, anyway. So he was supposed to undermine the effectiveness of the NSA program by running it before the FISA court for what, his health?

Perhaps the Democrats should not be attacked too much for this latest absurdity. Let them march off the cliff. I speak now as a partisan, not a distinguished, if unconstitutional, legal scholar. My guess is the reaction of three quarters of non-crazy Americans to the whole NSA thing is -- "We can do that? Cool."
posted by thomas at 12/29/2005 05:30:00 PM

 
A cute baby
By Tom Smith

This is, in fact, an unusually cute baby. Most newborns look much more like ET than this creature. All my children were uglier than this, especially Patrick, who looked like a combination of Sting and the Buddha. Yet all are quite handsome now. So don't worry.
posted by thomas at 12/29/2005 03:48:00 PM

 
Hollywood the strange
By Tom Smith

It is odd. As Hanson observes, they get everything just exactly wrong. How do they manage it?
posted by thomas at 12/29/2005 03:15:00 PM

 
Those darn Clintons
By Tom Smith

Hillary's revenge.

posted by thomas at 12/29/2005 10:54:00 AM

 
Family life update
By Tom Smith

A dear friend of ours calls them "desert babies". The last of your bunch, had just because you like them, and tending to be very sweet. Ours is Mark, and I will spare you the details of incredible cuteness. The problem is, as the littlest and cutest, they tend to get a little spoiled. They rule the roost, bossing every one else around, even though only two. Mark has a few bad habits. One of them is throwing things. Not out of pique, but for the joy of throwing. And you have to admit, throwing things is fun. It probably goes back to the Pleistocene. I hate to discourage him, because who knows, he may have an arm. He certainly seems to. He can land a matchbox toy in a wine glass from across the room. He is, however, somewhat dangerous. On the way back from the east coast this time, he flung a matchbox toy, and caught the lady in the row behind us neatly in the middle of the forehead. I wasn't there, since I was visiting my aged parents in Idaho, but I asked Luke if he saw the incident. "No," he said, "but I heard the impact." The lady was so furious, she refused to accept my lovely wife Jeanne's apology, even though she offered it three times, somewhat biblically. I don't blame the lady. I have been beaned by the little beggar, and it really hurts. "Well," said LWJ, looking on the bright side, "at least it was sort of a lob. If he'd really thrown it, he might have killed her." (This incident is also described here, on my son Patrick's somewhat quirky blog.)

I am way past thinking unruly children are cute, and we keep ours in pretty good order, especially in public. But the youngest, especially with a gap of six years, is a challenge. Plus, I don't want him to get the idea that power and accuracy are bad things. God knows, I could stand to have one child who wants to play little league, which in my area is best avoided if your kid isn't pretty good.

posted by thomas at 12/29/2005 09:49:00 AM

 
Donald Justice
By Tom Smith

I was looking last night through the Collected Poems of Donald Justice, an American poet who died in 2004. Here is one of his best known poems.

Men at Forty

Men at forty
Learn to close softly
The doors to rooms they will not be
Coming back to.

At rest on a stair landing,
They feel it
Moving beneath them now like the deck of a ship,
Though the swell is gentle.

And deep in mirrors
They rediscover
The face of the boy as he practices tying
His father's tie there in secret

And the face of that father,
Still warm with the mystery of lather.
They are more fathers than sons themselves now.
Something is filling them, something

That is like the twilight sound
Of the crickets, immense,
Filling the woods at the foot of the slope
Behind their mortgaged houses.
posted by thomas at 12/29/2005 06:46:00 AM

 
Senate Hearings on Supreme Court Nominees Are a Modern Innovation
by Gail Heriot

I don't know about you, but I'm getting a bit restlesss waiting for the Alito hearing. Perhaps I shouldn't be so eager for an event that is overwhelmingly likely to be less than illuminating. But when you remember that Alito is actually replacing Sandra Day O'Connor, who announced that she was retiring in June, it's really been a long wait ....

Supreme Court nominations didn’t used to take so long. As recently as the 1920s, it was still possible for a member of the Supreme Court to resign on a Monday, the President to nominate his successor on a Tuesday, and the Senate to confirm the nominee later that afternoon. One, two, three. The process couldn’t have been carried out with any more deliberate speed.

Part of the reason for the change is the Senate hearing itself. It was not until 1925 when the Senate Committee on the Judiciary held its first hearing on a Supreme Court nominee. And it was not until the 1950s that hearings became routine–perhaps not coincidentally around the same time many Americans were buying their first television set. When Harry Truman nominated Sherman Minton in 1949, Minton actually refused to appear before the Senate committee. He considered it undignified and unnecessary given his record of judicial service. The Senate confirmed him anyway.

The Senate’s willingness to confirm Minton despite his refusal to appear speaks louder than any words. Senate hearings occasionally help to clarify issues about a nominee’s fitness for judicial office. But those occasions are rare. Most hearings are just glorified photo opportunities. And on the occasions on which they are used as a "gotcha"--an opportunity to catch a well-qualified nominee in some innocent mistake or unfortunate turn of phrase–hearings are worse than a frivolous use of time.

The real work of the Senate--scrutinizing the nominee's legal and judicial career and reading every word he or she has ever published-- is done behind the scenes. (In Alito’s case this work is largely already done and seems to have yielded little fodder for Alito's opponents). By the time the hearing rolls around, it would take a lot to divert members of the Senate away from the opinions they have formed based on the record. And that is the way it should be. A nominee should be judged on a lifetime of achievement rather than his or her performance during a day of grilling under the glare of the television lights. Great judges are not always great television performers.

So why am I restlessly looking forward to the Alito hearing? My alternative is to grade exams ....
posted by Gail at 12/28/2005 05:15:00 PM

 
I know that goes on in Montana
By Tom Smith

But you're not supposed to talk about it.

posted by thomas at 12/28/2005 01:56:00 PM

 
Thank you, David and Lee
By Tom Smith

A lucid summary of the President's power to gather wartime intelligence, which easily covers the NSA program.

And another thing. Here is a point I have not seen made. Does anybody seriously think that the Supreme Court, given the chance, would say to the President, "sorry, the NSA program is illegal; you have to stop it until you get permission from the FISA court or Congress." That is not going to happen. What might happen is that two or three, or perhaps even four justices might stake out that position once they are sure they would be in the minority. The reason the Court will not do that is that, feckless as they can be, they do not want to be responsible for a dirty bomb going off in Tampa, Seattle or Fort Worth. Just a little bit of accountability goes a long way. They do not want to go down in history as the court that destroyed the lives of a million people. One way or another, the White House would make the point to them that, you know, this really is one of the most important things between us and the murderous nutcases. As much as I am usually underwhelmed by the statesmanship on most Justices, I simply don't believe they are that irresponsible or stupid. For various Senators and Congresspersons, the story is different, unfortunately. But even there, I am not aware of any serious move to stop the program, merely to investigate it, with all the opportunities for posturing and political point making that offers. And notice the press is playing nicely. You don't see reporters asking, "Senator, are you saying the programs should be stopped until a warrant is granted?" And faced with such a question, Senator Reid would probably come back with a bunch of evasions and calls for more investigation.
posted by thomas at 12/28/2005 08:04:00 AM

 
Memo to Post: Check pants; appear to be on fire
By Tom Smith

Post attempts to discredit blogger who embedded in Iraq, and gets caught with inaccuracies and generally bad reporting. MSM really has to learn that the blogosphere has strong kung fu.
posted by thomas at 12/28/2005 07:18:00 AM

 
Article II Authority to listen in to Al Qaeda phone calls
by Tom Smith

I may be I'm missing something, but I don't see how the following language in the AG's letter to Congress regarding the NSA catastrophic terrorist attack prevention program (my name for it) does not rely at least in part on the Article II argument, as Orin Kerr suggests here. That is, it sure seems to invoke Article II power to me. I quote from the letter liberally below because (1) I think it is a good argument, and correct, as far as I can see and (2) the letter musters a fair bit of authority for the proposition, and deserves more blogospheric prominence:

Under Article 11 of the Constitution, including in his capacity as Commander in Chief, the President has the responsibility to protect the Nation from further attacks, and the Constitution gives him all necessary authority to fulfill that duty. See, e.g., Prize Cases, 67 U.S. (2 Black) 635, 668 (1 863) (stressing that if the Nation is invaded, "the President is not only authorized but bound to resist by force . . . . without waiting for any special legislative authority"); Campbell v. Clinton, 203 F.3d 19,27 (D.C. Cir. 2000) (Silberman, J., concurring) ("[Tlhe Prize Cases . . . stand for the proposition that the President has independent authority to repel aggressive acts by third parties even without specific congressional authorization, and courts may not review the level of force selected."); id. at 40 (Tatel, J., concurring). The Congress recognized this constitutional authority in the preamble to the Authorization for the Use of Military Force ("AUMF") of September 18, 2001, 115 Stat. 224 (2001) ("[Tlhe President has authority under the Constitution to take action to deter and prevent acts of international terrorism against the United States."), and in the War Powers Resolution, see 50 U.S.C. 8 1541(c) ("The constitutional powers of the President as Commander in Chief to introduce United States Armed Forces into hostilities[] . . . [extend to] a national emergency created by attack upon the United States, its territories or possessions, or its armed forces.").
This constitutional authority includes the authority to order warrantless foreign intelligence surveillance within the United States, as all federal appellate courts, including at least four circuits, to have addressed the issue have concluded. See, e.g., In re Sealed Case, 310 F.3d 7 17, 742 (FISA Ct. of Review 2002) ("[AIII the other courts to have decided the issue [have] held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence
information. . . . We take for granted that the President does have that authority. . . ."). The Supreme Court has said that warrants are generally required in the context of purely donrestic threats, but it expressly distinguished,foreign threats. See United States v. United States District
Cotrrt, 407 U.S. 297,308 (1972). As Justice Byron White recognized almost 40 years ago, Presidents have long exercised the authority to conduct warrantless surveillance for national security purposes, and a warrant is unnecessary "if the President of the United States or his chief
legal officer, the Attorney General, has considered the requirements of national security and authorized electronic surveillance as reasonable." Katz v. United States, 389 U.S. 347, 363-64 (1967) (White, J., concurring).
The President's constitutional authority to direct the NSA to conduct the activities he described is supplemented by statutory authority under the AUMF. ... [Copied from PDF but not proofed]

The original letter is here.

I think the letter is saying pretty clearly that the President has authority under Article II, independent of any congressional enactment, to defend the country. Congress recongnizes that authority in AUMF, but it is not as if that authority has to flow through AUMF to authorize defensive actions.
posted by thomas at 12/27/2005 09:48:00 AM

 
Those darn dirty bombs
By Tom Smith

Did you know al Qaeda probably already has a dirty bomb? (see last entry)

Did you know dirty bombs have already been found, but disarmed before they went off? (But only in Russia so don't worry.)

Did you know that if we were not on the lookout for dirty bombs, we would be incredibly stupid?
posted by thomas at 12/26/2005 10:50:00 PM

 
Hugh Hewitt gets mad
By Tom Smith

HH does to LA Times Tim Rutten what I have seen a coyote do to a rabbit. It's not pretty, but it is part of the order of nature.
posted by thomas at 12/26/2005 10:50:00 PM

 
Kuttner gets squished
By Tom Smith

This can happen. You write your column, makes some glib historical comparisons, tie them in to trendy, if silly and dangerous opinions of the day, and someone out there in the blogosphere who knows a lot more than you do, patiently and politely shows you don't know what you are talking about.
posted by thomas at 12/26/2005 03:17:00 PM

 
A scotch drinker reconsiders
By Tom Smith

I prefer scotch to all other distilled spirits. I have always disliked bourbon, but now I am wondering if perhaps I have tried the wrong stuff. This Christmas, I tried of little of this stuff. It was pretty darn good, smooth, a little sweet, none of the heavy, headachy taste I associate with relatively cheap bourbon. It's 100 proof, so it packs a whallop, but it tastes good enough to drink straight. Please kill brain cells responsibly.
posted by thomas at 12/26/2005 10:52:00 AM

 
Father of Mother of All Bombs dies
By Tom Smith

Public service with a bang.

posted by thomas at 12/26/2005 10:50:00 AM

 
Singularity update
By Tom Smith

Update here on the coming singularity. I am spending Christmas with my parents, aged 87 and 84 (dad and mom respectively). As I have said before, this whole business of getting old and sick, and then dying, needs to be seriously rethought. My father spends most of the day in bed, is quite deaf, can't see well enough to read or even watch TV very well, and is often in a fairly ornery mood. But he is very grateful that I am here, which is touching since I'm not doing much. My mother is one tough lady. Last night she prepared a Christmas feast, turkey, stuffing, mashed potatoes, gravy, asparagus, and local Idaho wines. My brother and I helped some, but the conversation was along the lines of, "Mom, sit down and let me do that;" "Mom, sit down right now, and let me do that!" "MOM, SIT DOWN and let me do that!!" [Mom physically seized, dragged to chair, sat down, and largish man lifts heavy turkey or whatever.]

So this business of super high tech medicine to give us nannite reinforced bodies with titanium skeletons and positronic brains does have its appeal, even if it is fairly evidently a crock. A more achievable goal is to keep exercising until you are like one of those 80 year olds you see in the fitness magazines, who look like a more leathery, wrinkled version of Golum in LOTR. "89 years old and still running trails!" or whatever. It wasn't lack of exercise that got my dad, but cancer and arthritis, both of which clearly suck.

I spent part of the morning combing through the apartment building's dumpster, looking for my dad's dentures, which my mom had thrown away. This was not senility; My mom has been throwing things away, plane tickets, Mickey Mantel baseball cards, etc. for years. There was some trepidation as to what the Judge would say when he discovered this had happened. Fortunately his reaction was measured; "The damn things didn't fit right anyway. I just get some new ones. No big loss." In the future, we will have nannites to find our dentures for us.
posted by thomas at 12/26/2005 09:53:00 AM

 
Don't interrupt your enemies when they're digging themselves into a hole
By Tom Smith

A Karl Rove conspiracy.
posted by thomas at 12/26/2005 09:44:00 AM

 
Note to Professor Bainbridge
By Tom Smith

Everything is relative. USD is nipping at the heels of some nationally very prestigious law schools. And has a significantly higher passage rate and SSRN download rate than UC Davis for example, and a higher SSRN download number than UC Hastings. This is very good, way ahead of where USD was, say, five or ten years ago. Who knows what the future may hold?
posted by thomas at 12/25/2005 03:23:00 PM

 
Merry Christmas
By Tom Smith

God's Grandeur

THE world is charged with the grandeur of God.
It will flame out, like shining from shook foil;
It gathers to a greatness, like the ooze of oil
Crushed. Why do men then now not reck his rod?
Generations have trod, have trod, have trod;
And all is seared with trade; bleared, smeared with toil;
And wears man's smudge and shares man's smell: the soil
Is bare now, nor can foot feel, being shod.

And for all this, nature is never spent;
There lives the dearest freshness deep down things;
And though the last lights off the black West went
Oh, morning, at the brown brink eastward, springs --
Because the Holy Ghost over the bent
World broods with warm breast and with ah! bright wings.

-- Gerard Manley Hopkins

posted by thomas at 12/25/2005 08:59:00 AM

 
E.J. Dione remembers Father Duffy
By Tom Smith

Catholic liberals and conservatives both loved him.
posted by thomas at 12/25/2005 08:35:00 AM

 
Student stabs professor, fails class
By Tom Smith

Never argue with an armed student.

posted by thomas at 12/24/2005 09:33:00 PM

 
Kaus almost completely correct
By Tom Smith

Kaus is correct on all points except where he says that the NSA wiretapping was probably illegal.

I am afraid this has gotten to the point where it is really quite annoying. There are people who to all appearances are serious legal scholars evidently saying that even if the only way to stop terrorists from detonating a nuclear bomb in an American city is to data mine emails and phone calls so we can get ahead of the plotters, and even if it were not possible to do that in a timely way if you had to get a warrant from the FISA court, then it is just too bad. A million people will just have to die, too bad, so sad. And then, we are supposed to take that absurd claim seriously.

In the meantime, even if it were not a completely ridiculous position to take on its face, there is clear precedent that is directly on point. Not Harry Truman nationalizing the steel industry, hardly an analogous case anyway, but the FISA appeals court in Sealed Case 02-001 stating that they take it for granted that the President has the inherent power to wiretap for national security purposes, as in, of course the President doesn't have to get a warrant if he's trying to stop terrorists from blowing up Denver or something like that. Duh! Most of that case is about whether you can use the product of national security searches in criminal proceedings. But that federal appellate court never doubts for a moment that the President can tap al Qaeda's phone calls, nor would anyone with any sense. Thank goodness for Posner and Sunstein, or else Americans would be forced to conclude that most of us law professors were entirely out to lunch. There seems to be a pervasive confusion between the necessity of getting a warrant in most circumstances if you want to use the evidence in a criminal prosecution (and there are exceptions even in this case) and searching for terrrorists and their weapons who happen to be inside your borders. The latter is a national security function which the President has the authority to conduct without the permission of any judge. Are we seriously supposed to think that if the Canadian Army invaded Montana and then hid themselves in all those summer homes dotting the landscape, the Army would have to get search warrants to ferret them out? I don't think so. The proposal is idiotic on its face. Similarly, if the President finds out that sleeper cell 500 (which obviously would just never be in a Muslim neighborhood, because we all know the terrorists just could not conceivably be Muslim) has an atom bomb in a white house with green shutters in Detroit, and it's set to go off in three hours, he does not need to waste a minute getting some judge to say the Green Berets can kick down the door of every such house in Detroit until they find the bomb. Nor could Congress pass a law, say the Ineffectual and Ridiculous Anti-Defense Act of 2005, requiring that he do so. It has nothing to do with enforcing the law, or gathering evidence, and he doesn't need Congress's permission to defend the country against nuclear bombers; it's all about keeping Detroit from becoming a radioactive crater.

But here's an idea. Let some Republican Congressman and Senator propose resolutions demanding that the President immediately cease the NSA data mining and nuclear or dirty bomb radiation detection programs, as it is the sense of Congress that they are illegal. Let the brave critics go on the record as voting to stop them now. Of course they would not, because they would be afraid Detroit might be destroyed, and then their precious careers would be vaporized along with Motor City, and it is important to keep one's priorities straight. But if they are not willing to take responsibility for their position, then maybe they should just shut up, and let the President try to stop the people who are trying to murder us, a job he will be lucky enough to succeed at as it is.
posted by thomas at 12/24/2005 08:25:00 PM

 
Papa Christmas
By Tom Smith

Pontiff makes bold fashion statement.

posted by thomas at 12/24/2005 04:24:00 PM

 
The expectation of privacy in nuclear weapons
By Tom Smith

Here is one account of what the smallest nuclear weapon exploded in a US city would do. Dirty bombs here.

As I have mentioned before, I am not a constitutional lawyer. But I cannot escape the feeling that the various constitutional scholars commenting on the radiological surveillance issue are missing the point or else they are making the point that interpretation of the constitution has reached a reductio ad absurdum.

Here are some things I take to be self-evidently true. You have no expectation of privacy in a nuclear bomb. If you have a nuclear bomb, the Army, the Marines, the salvation army, whoever, should be able to go and take it from you. They should be able to shoot you if you try to stop them. I mean, pardon me, but is it not just a little insane for some law professor to say, as at least one has, oh, well, you can check for gamma rays from the street, but don't you dare drive into the parking lot, because that's invading somebody's privacy. Privacy of what? The right to emit deadly, high energy radiation into your parking lot? Did a right to emit gamma rays sneak into the constitution when nobody was looking? I mean, seriously. Let's look at what we are talking about here in literal terms. This is a van, like a UPS truck, that drives around on the streets, and occassionally pulls into parking lots and such places. Inside is some kind of meter, and if a little red light goes off, that means, holy shit, they seem to have a nuclear bomb in there. If anybody has an expectation that they can keep their nuclear bomb private, at least until they kill thousands or millions of people with it, and condemn many others to slow, horrible death, not to mention the thousands of babies who will be born with heartbreaking defects, I would suggest they change their bloody expectations.

Just from the outside, I get the impression that reasoning backwards from the conclusion they have already decided they like is a large part of what constitutional scholars do. Here, therefore, I would suggest they just start with the proposition that you just can't have a nuclear bomb in your house or your mosque or your synagogue or church or place of work, or even in the sacred precincts of your innermost marital cozy love room. No nuclear bombs. That's just it.

But how far am I willing to go? Won't we be torturing children to get them to tell us where their parents put the bomb, when really there is no bomb, it's just another paranoid Republican fantasy? Dude, calm down. We are talking about a van, driving around the street. And just one more thing. No one seems to have pointed out that, even before you detonate it, keeping a nuclear or radiological bomb in your rec room is a public health hazard. You may well be emitting particles that will make your neighbors sick. It is routine for the sheriff's department to drive up to house where there is a noisy party and measure the decibles coming off of it, but I suppose they can't measure the rays that give people cancer, rather than merely annoy them? Yes, I suppose there will be hard questions down the line, such as how sure we have to be there is a nuclear bomb ticking out there before we attach the electrodes to the suspected terrorist. But driving a van around, "invading" whatever "privacy" you may think you have in the invisible portion of the electromagnetic spectrum in the public spaces (and parking lots) around your place of residence, worship, and possibly weapon of mass destruction storage, is not one of them.
posted by thomas at 12/23/2005 07:37:00 PM

 
More on NSA program legality
By Tom Smith

This analysis of an important set of distinctions in FISA is interesting.

posted by thomas at 12/23/2005 05:25:00 PM

 
On the First Day of Kwanzaa, My True Love Tortured Me ... (Reprise)
By Gail Heriot

This post has become a holiday tradition at the Right Coast:

If you visit a card shop at your local shopping mall these days, chances are you will see Kwanzaa cards. It's big business. (Well, maybe it's just medium-sized business, but it is evidently lucrative enough for card companies to bother with.) And if you go to swanky private schools like the one attended by the children of my fellow Right Coaster Chris Wonnell, you may well receive instruction on this traditional African-American holiday. Taking Kwanzaa seriously is all part of the spirit of multiculturalism.

Except, of course, Kwanzaa isn't traditional at all. It was invented in the late 1960s by convicted felon Ron Everett, leader of a so-called black nationalist group called United Slaves. I use the word "so-called" because United Slaves' veneer of black nationalism was very thin; most of its members had been members of a South Central Los Angeles street gang called the Gladiators, just as the Southern California chapter of the Black Panthers had been members of the Slauson gang.

In the early 1960s, these gangs were mostly concerned with petty and not-so-petty crime in the Los Angeles area, including the ever-popular practice of hitting up local merchants for protection money. By the late 1960s, however, they discovered that if they cloaked their activities in rhetoric of black nationalism, they could hit up not just the local pizza parlor, but great institutions of higher learning as well, most notably UCLA. Everett re-named himself Maulana Ron Karenga ("Maulana" we are told is Swahili for "master teacher"), donned an African dashiki, and invented Kwanzaa. And the radical chic folks at UCLA went into paroxysms of appreciation.

In theory, Kwanzaa is a Pan-African harvest holiday, except that it is not set at harvest time. And in theory, it celebrates the ties of African Americans to African culture, except that it purports to celebrate those ties using the East African language of Swahili when nearly all African Americans are descended from West African peoples.

But those are just details. Many of the best-loved holidays in the Christian calendar have traditions connected to them that don't quite fit if you examine them too closely. But those rough edges have now been smoothed over by the long passage of time. No one really cares if the Christmas tree was once used to celebrate pagan holidays; many generations of credible Christians have earned the right to claim it as their own.

Kwanzaa is different. It has connections to still-living violent criminals. It is an insult to the African American community, very few of whom celebrate Kwanzaa and even fewer of whom would celebrate it if they knew the full story of its recent history, to suggest that it is an "African American holiday."

UCLA soon found that a bunch of street thugs calling themselves United Slaves can dress themselves up in colorful clothing, learn a few words of Swahili but they will still be ... well ... street thugs. The beginning of the end for United Slaves as an organization came with a gun battle fought on the UCLA campus against the Black Panthers over which group would control the new Afro-American Studies Center (and its generous budget). In the end, two Black Panther leaders--Alprentice "Bunchy" Carter and John Jerome Huggins--were dead. Two members of United Slaves were convicted of their murder. (Under UCLA's High-Potential Program, which admitted politically-active minority students during the late 1960s, often regardless of their academic credentials or even whether they had graduated from high school, many members of the Black Panthers and United Slaves were registered as students at UCLA.)

No, Maulana Ron Karenga was not among them. But not long after the incident, Karenga proved himself to be every bit as brutal as his followers when he was charged and convicted of two counts of felonious assault and one count of false imprisonment.

The details of the crime as reported in the Los Angeles Times (and quoted last year by Paul Mulshine in an article for FrontPage magazine) are horrific. The paranoid Karenga began to suspect that the members of his organization were trying to poison him by placing "crystals" in his food and around the house. According to the Los Angeles Times:

"Deborah Jones, who once was given the Swahili title of an African queen, said she and Gail Davis were whipped with an electrical cord and beaten with a karate baton after being ordered to remove their clothes. She testified that a hot soldering iron was placed in Miss Davis' mouth and placed against Miss Davis' face and that one of her own big toes was tightened in a vise. Karenga, head of US, also put detergent and running hoses in their mouths, she said."

The Los Angeles Times went on the state that "Karenga allegedly told the women that 'Vietnamese torture is nothing compared to what I know.' "

Karenga spent time in prison for the act. But if you are worried are what has become of him, you needn't be. He served only a few years. When he got out, he somehow convinced Cal State Long Beach to make him head of the African Studies Department. Happy Kwanzaa.
posted by Gail at 12/23/2005 12:46:00 PM

 
USD kicks butt on bar results
By Tom Smith

This from taxprof. USD does even better on the SSRN download score.

CA Bar Rank	School	US News Overall CA Rank	US News Peer CA Rank	SSRN CA Rank
1 (88.7%)	UCLA	3	3	2
2 (88.0%)	Stanford	1	1	1
3 (87.0%)	Boalt	2	2	4
4 (84.3%)	Hastings	6	6	9
5 (81.7%)	USC	4	4	3
6 (80.0%)	USD	8	7	5
7 (75.0%)	Loyola	7	8	6
8 (74.4%)	USF	Tier 3	10	13
9 (73.8%)	Davis	5	5	7
10 (72.6%)	Pepperdine	9	10	16
11 (66.4%)	Southwest.	Tier 3	13	10
12 (63.9%)	McGeorge	10	12	15
13 (62.5%)	Santa Clara	Tier 3	9	12
14 (59.5%)	Chapman	Tier 4	17	11
15 (57.7%)	Cal-Western	Tier 4	14	14
16 (43.8%)	Golden Gate	Tier 4	14	18
17 (39.7%)	Whittier	Tier 4	16	17
18 (38.4%)	T. Jefferson	Tier 4	17	8
19 (24.6%)	Western St.	Tier 4	19	19

Stanford's result does not include their dean's efforts presumably.

A NOTE TO PROFESSOR BAINBRIDGE. Everything is relative. USD is nipping at the heels of some nationally very prestigious law schools. And has a significantly higher passage rate and SSRN download rate than UC Davis for example, and a higher SSRN download number than UC Hastings. This is very good, way ahead of where USD was, say, five or ten years ago. Who knows what the future may hold?
posted by thomas at 12/23/2005 12:40:00 PM

 
Oh, No! Not Marshall Field's!!!
By Gail Heriot

I know, I know, it's a mistake to orient one's life around retail establishments. They are not the foundations of stone that wise men urge us to build upon. Perhaps, if we are very lucky, the United States of America will still be with us 500 years from now. And the Roman Catholic Church. But don't count on Pottery Barn. Or Applebee's Restaurants.

At some level of abstraction, I know that's not a terrible thing either. Retail establishments survive as long as they serve the needs of the consumer. The moment the competition can make it better--whether that's cheaper, faster, bigger, prettier or whatever--they are history. And we shouldn't shed too many tears over them.

BUT NOT MARSHALL FIELD'S. I draw the line there. In my lifetime, I have seen the demise of seemingly countless department stores: Franklin Simon, Landburgh's, Joseph R. Harris, Raleigh's, Garfinckel's, Woodward & Lothrop, Goldblatt's, Wieboldt's, Lytton's, Buffum's, Chas. A. Stevens, The Broadway, I. Magnin, Bullock's and many others. Most of these I took without batting an eyelash--although I have to admit that I was sad to see Garfinckel's and Woodies go (especially in view of the baffling survival of Hecht's, the least interesting of the home-grown D.C. area department stores). But Marshall Field's is different. It's a traditon that for a lot of Chicagoans, former Chicagoans, children of Chicagoans, and grandchildren of Chicagoans runs very deep. Everyone has a story about how Uncle Charlie bought Aunt Madge a fur coat at Marshall Field's for Christmas that was so beautiful that she would cry like a baby every time she put it on.

Marshall Field's wasn't (and isn't) just any department store. It was once the largest and most glamorous department store in the world (and it is still second). Along with Wanamaker's in Philadelphia, it inspired the department store method of doing business around the world. When I worked there as a sales clerk during college, its State Street Store had an Antique Silver Department, a Stamp Collection Department, and a magician who worked in the Toy Department. They made their own chocolates and marzipan in a hidden candy kitchen upstairs. They sold antique maps, exotic cheeses, and the best deli sandwiches this side of the galaxy. (I would tell you about the 28 Shop--which was Field's very exclusive dress department--but it seemed so special to this young sales clerk that I was too shy to go in it.)

Of course, the grand lady of State Street is not exactly closing its doors. It was simply bought up a few months ago and not for the first time. For more than two decades, Field's has been owned by somebody else. It flipped, and flipped again. In the last round, it wound up in the hands of Federated Department Stores (as part of Federated's acquisition of May Department Stores). But unlike the previous owners, Federated plans to take down the "Marshall Field's" sign and put up a "Macy's." (This appears to be part of a general plan to turn every department store in the country into a Macy's. Bullock's in Southern California became Macy's years ago. And Joske's of San Antonio is now Macy's. Field's and the rest of the May Department Stores family--Hecht's, Robinsons-May and several others--are scheduled to go Macy's next fall.

Federated contends that it will save operating expenses by homogenizing its stores. And I'm sure that it's true. The movement toward standard issue department stores has already taken its toll on Marshall Field's. Many of the specialized departments--like Antique Pewter and Fine Arts--that made it such a magical place to go are long gone. Much of the merchandise is the same as Macy's now anyway.

But why does it have to change that Marshall Field's name? Can't we at least keep the name that reminds us of the store's illustrious history? Again, Federated's answer is that it will save money. The cost of bags and boxes is lower if everything can be ordered in Macy's red rather than Field's green. More significantly, the cost of advertising decreases if all the advertisements can be identical across the country.

I can't help but believe, however, that Federated is making an enormous mistake, and that its management is suffering from a "New Coke" moment. The Marshall Field's name is worth a lot more than they apparently realize. And if they don't believe me I would happily mortgage my home to buy the trademark from them. Federated may save on operating expenses by throwing away that name, but they will lose loyal customers.

I, for one, always rush to Marshall Field's State Street Store whenever I'm in Chicago and buy an armload of provisions. They're usually not unique things (except the Frango mints). I could have purchased them at Nordstrom or Neiman Marcus or Saks (or sometimes even Macy's) here in San Diego, but I buy them at Marshall Field's because I used to work there. And because I used to sing "Silver Bells" in front of the store at Christmastime. And because I love it--just like every Chicagoan and former Chicagoan in the country. There are millions and millions of us.

I won't do that when Field's becomes a Macy's. And it's not that I'm trying to be difficult. But my heart is only so big and there can only be so much territory in it for department stores. Marshall Field's staked out its little corner thirty years ago and there's no room for Macy's.

By the way, if you're interested, here's a petition. If you're from Chicago or your grandmother was from Chicago or you just like Marshall Field's, please take a look.
posted by Gail at 12/23/2005 10:08:00 AM

 
It's not just a kilt; it's freedom
By Tom Smith

A brave teen takes a stand for an important freedom. More and more people must to the same. Eventually it will become accepted, and my lovely wife will let me wear one.
posted by thomas at 12/22/2005 12:45:00 PM

 
An army of Davids, literally
By Tom Smith

Archeologists find evidence of massive assaults by an army of sling-users flinging clay projectiles, circa 3500 BC, near the Syria Iraq border.

A LOYAL reader points out, "still figuratively", which is correct of course. The slingers were not actually Davids, though a few of them might have been so named.
posted by thomas at 12/21/2005 11:03:00 PM

 
More on ID
By Tom Smith

I've received a couple of thoughtful emails objecting to my post on ID, so I thought I would try to clarify it. First, my claim that some version of ID would count as a scientific hypothesis. It strikes me as a perfectly coherent claim that we live in a universe that was designed by some intelligent entity. I don't see anything logically problematic about such a claim at all. Imagine that you had been abducted by aliens as a baby and raised by androids in some giant terrarium which the aliens tried to make as natural as possible, like the San Diego Wild Animal Park for humans. Assuming you grew up to be intelligent, you would look around the world you lived in, and you very well might find evidence that you lived in a world that had been created for you by beings superior to you, in at least some respects. I can at least imagine a version of ID that would say something similar about the universe we live in.

I don't see any good argument for saying that a hypothesis that says that about the universe we live in simply cannot count as science. I grant there is a distinction between this version of ID and what I have read some versions of ID claim, which is that we must believe some ultimately mysterious, i.e., incapable-of-being-explained-by-science force must be the cause of certain observed phenomena. That is not science, I concede.

What would count as evidence that the universe is designed? I think a cool example comes from Carl Sagan's novel Contact (unless I am confusing it with some other trashy SF book I read 15 years ago). The astronomer discovers an extra solar system source broadcasting the digits of pi. The she discovers that the digits of pi itself have encoded in them instructions for the worm hole travel device. Granted, this is a really weird idea, but it is not logically impossible. Suppose someone discovered that the digits of pi after the ten to the twentieth power -th digit had encoded in it all the books of the Bible (but no other books). And everyone checked it and it held up. That would be really weird, but I would sure take it as evidence that someone had designed the universe and that the Bible had some special role in it.

I gather from critics of ID that what it now consists of is pointing out various gaps in evolutionary explanations that are not really gaps at all, and then asserting that therefore God must have created various species of animals. I grant this is not science. I am making another point, which is that there is nothing inherently unscientific about the claim that we live in a created universe. Lots of scientists over the centuries have believed that.

For people interested in the general idea of ID, much more sophisticated discussion of the notion of design and creation can be found in scientific and philosophical discussion around the anthropic principle in cosmology, which I don't want to explain now. One aspect of it, however, is the observation that we live in a universe that appears in a sense to be extremely finely tuned to make intelligent life possible. Two possible positions are possible here. It is just an accident, and, it was tuned up this way on purpose. Both sides of this debate, if that's what it is, include some very serious thinkers, and I don't think either side can be dismissed. Of course, the idea that the universe was tuned up, with certain physical constants and so forth, by the Creator(s) is perfectly consistent with the origins of species by variation and natural selection, as far as we know.

If you want to read more about this, try this, this, this or (sort of) this. Disclosure: all of these books are hard, and I haven't read all of all of them, nor understood all of what I have read, unlike the dumb ox.
posted by thomas at 12/21/2005 10:47:00 AM

 
Judge Posner on the NSA story
By Tom Smith

As usual, Posner brings a much needed intelligence to this story.

This is also good.
posted by thomas at 12/21/2005 08:32:00 AM

 
More on tech angle of NSA story
By Tom Smith

Very interesting. (scroll down when you get there.) One thing we are seeing here is the ability of the blogosphere to bring together clues and various technical expertises to figure out what is going on. The picture that seems to be emerging (and which could be completely wrong) is monitoring of a high volume of traffic, probably with sampling techniques used, and sifting of calls using algorithms, with increased scrutiny where indicated.

Among other things, it makes a lot of sense; a way to fight enemies who are hiding in your society by blending in, but still making phone calls. You can also see why the FISA warrant process would not work. "Your honor, we need a warrant to tap for an average of 4 seconds each, one million calls that we expect will be made from the following 300,000 numbers over the next two weeks. We don't know whom the numbers belong to. They were selected by a combination of using networks built out from captured numbers, and statistical models of several kinds." Good luck even trying to explain that to a judge.
posted by thomas at 12/20/2005 09:21:00 PM

 
In Re Sealed Case 02-001
By Tom Smith

This looks like authority for the proposition that the President does have inherent constitutional authority to gather foreign intelligence inside the US.

I don't know where the Foreign Intelligence Court of Appeals sits in the precedential food chain. Equivalent to a US Circuit Court of Appeals?
posted by thomas at 12/20/2005 05:53:00 PM

 
That darn Stalin
By Tom Smith

Not really all that funny when you think about it. Trying to create a breed of super-warriors with grotesque breeding experiments, I mean. Via instapundit. Part of an ongoing theme here at the RC -- Evil: not to be underestimated.
posted by thomas at 12/20/2005 05:28:00 PM

 
Unbelievable
By Tom Smith

So the President of the United States asks the publisher of the New York Times not to publish the existence of a highly classified signals intelligence operation, that has actually allowed the country to thwart planned terrorist attacks, because it will undermine our ability to do so in the future. But the Times decides, nope, they will publish it anyway, because they think they should, and the publication just happens to come on the brink of an important vote on the PATRIOT act, and just in time to help promote the sales of a new book by a NYT writer. And while fair minds can differ about the legality of the NSA program (though I think any President who really felt the burden of defending this country from such things as WMD attacks on our cities, for God's sake, would have done exactly the same thing), there is no doubt whatever that the leaks from which this story came are serious felonies, not to mention shameful acts, as the President called them. This is not some run of mill DC leak. This was a leak that very well might compromise a program that for all we know is the only reason some attacks that would have been successful, failed. I mean, did it cross the minds of any of the geniuses at the Times that people, possibly thousands of people, might die because of their decision? I feel anxious that I might give a student a C+ if he deserves a B, because it might conceivably affect his legal career. Who just glibly decides to kick the legs out from under a major intelligence operation, that appears to be working, because they disagree with the President politically? Outrageous does not cover it. Shameful is an understatement. It is in that category of Nazis marching in Skokie, except much more consequential -- a moral crime we decline to make illegal for the sake of constitutional values, but still an utterly despicable act. If Times reporters end up sitting in jail, it will be richly deserved.

Others have already said this, but it bears repeating. DOJ should investigate these leaks aggressively. The way to do that is to swear in a special prosecutor, some red meat, hardened, arrow straight US attorney type, impanel a grand jury, subpoena the NYT reporters, ask them under oath who all of their sources were, and if they don't promptly answer, put them in jail to ponder the true meaning of patriotism. What would be more just would be to put them on a burial detail in Iraq, so they could see the handiwork of the monsters they abetted with their Watergate nostalgia fantasy. The leakers themselves should be prosecuted to the full extent of the law. The ten year maximum sounds about right.
posted by thomas at 12/20/2005 04:57:00 PM

 
Tech side of NSA story
By Tom Smith

Mostly speculative, but still interesting.(via instapundit.)

To pile speculation on speculation, NSA may be using sophisticated network algorithms to identify nodes in the terrorist network (or the network, some of the nodes of which they are sure are terrorists) that look promising, and then tap in on them. Or it may be they take the numbers gotten from terrorist cell phones or notebook PCs to begin with, then move out some degrees of separation from there, so they still have something when the original numbers go dead. Then they may sift through all that chatter, looking for patterns with the algorithms their math geeks come up with (and they have some of the very best in the world). If that is what they are doing, there may not be much invasion of privacy involved, rather like having your email scanned by Gmail. If you send lots of emails to Pakistan asking when the "package" will arrive, maybe someone will take a look, and establish you really do seem to be talking about rugs.

There probably is a law review article here (though one a top 20 review would never publish, because they would not be able to understand it) about how to adapt the law of search to technologies that depend on much more sophisticated treatments of probability than "probable cause." So for example, if there is only a one in one hundred chance that an email pertains to terrorism, but it is very cheap to scan it, then shouldn't you scan it, given that only a robot is peeping, and it will get more scrutiny only if that scan leads to increase the probability that the message pertains to terrorism. And lots of other stuff much more complicated than that.

NOW this is both cool and fascinating. It says inter alia no one at the NSA would have talked, because they are so committed to secrecy, unless they thought something very big and very wrong was going on. Maybe they have some kind of sampling technology that allows them to monitor say, all calls going to Pakistan, and pull out those that are marginally more suspicious, subject those to more filters, and so on, until you have a good probability, at least in a cost justified sense, that you are listening to somebody who knows something useful. And since lots of other bloggers are expressing their emotional reactions -- it's all so creepy, so scary, so disturbing, what do I tell little Sally about her email messages, etc. etc. -- let me just express briefly my irrelevant, emotional reaction, which is that I hope we use our vast technological superiority to crush the terrorists like the little dung beetles they are.

CLUES as to the maybe new technology NSA may be using. Jay Rockefeller released this CYA letter, as his heroic contribution to the war effort. He notes he is neither a technician or a lawyer (nor indeed a particularly bright bulb in any sense), but that the project described reminded him of TIA.
posted by thomas at 12/20/2005 11:01:00 AM

 
My pet peeve about the ID debate
By Tom Smith

New decision out here.

According to MSNBC (so who knows if it's true), the federal district judge reached the issue and opined that ID is "not science." This strikes me as confused, and confused in an important way.

ID is science, or at least attempted science. It may be bad science, but it definitely is science in that it hypothesizes an explanation of phenomena we can observe out in the world, and a hypothesis that can be tested against evidence. Just because a scientific theory is unproven, or even false, does not mean it is not science. A great deal of the work of science is done by failed hypotheses.

ID certainly seems to be religiously motivated. So what? Newton was motivated by his own, extremely peculiar hermetical, alchemical views, Stephen Hawking is motivated by his own militant atheism, Einstein was motivated by his own vision that God must have made the universe orderly, not random, and so on. Everybody has motivations, and wanting to disprove the theory of natural selection because you think it's inconsistent with Christianity or whatever, is as fair a motivation as any. Motivations frequently interfere with making science good, as with Stephen Jay Gould's Marxism interfering, in the view of many biologists, with his view of how evolution worked.

My view is that ID should not be taught in biology class because science is already taught badly enough in public schools. Take a look at your kids' science textbooks sometime. It's no wonder we have to import so many scientists from China and India. These books manage to make things like earthquakes, volcanoes and tsunamis boring. Natural selection involves animals figuring out ways, often incredibly sneaky, or violent, or just unbelievably complex, to eat each other, or have sex with each other, or in the case of spiders, have sex with then eat each other. I mean, for heaven's sake, female mantids bite off the heads of males while they are in mid-sex act, apparently because without its little brain, the male does an even better job giving mama mantid what she wants. That's boring? Disgusting maybe, but not boring.

I do not know enough about ID to know how bad it is as science goes. I suspect pretty bad. In principle, however, one can imagine a theory that would hypothesize that the mechanism of random mutation and natural selection could not produce organisms of some observed level of complexity. It would be very hard to show that, because you would need to have a very clear idea of what the design limits of the natural selection process are, and I don't think we know that yet. I suspect we may still discover some very weird things going on in the development of life on earth; I don't know what. I just have faith in the ongoing ability of real science to astonish; well, not science actually, but the really quite bizarre universe we live in.
posted by thomas at 12/20/2005 08:57:00 AM

 
Yale Law Journal kerfuffle
By Tom Smith

Somehow I managed to miss this tempest over a (very young) author who used the "N word" in a property outline he posted on a website (??) while the youngest student ever at Harvard Law School, and the campaign to get the Yale Law Journal to rescind its offer to publish a symposium piece by him. Corporate law may have found its Bobby Fischer, and nobody was even looking.
posted by thomas at 12/20/2005 08:31:00 AM

 
Classic George Will
By Tom Smith

Will weighs in on the NSA flap, and takes us back 500 years, and gets a plug in for his pal Harvey Mansfield's book. It's about the Prince, and the Pauper, the tall and the short, good and not so good, power, the abuse of power, and those who just wish he would shut up.

posted by thomas at 12/19/2005 11:38:00 PM

 
Orin Kerr on the legality of the NSA program
By Tom Smith

Orin Kerr's post, which some of us have been anticipating eagerly, is up, and it is well worth reading.

It is erudite, but in my view, not all that persuasive. But then, I am no constitutional lawyer, and a lot of constitutional law strikes me as of a sort any reasonable President would, let's say, take with a grain of salt. So, for example, any President who would fail to take some action truly necessary to defend the country because the most plausible reading, on balance, of an O'Connor opinion, says he may not, deserves to be impeached, and then probably shot. If the constitution is a suicide pact, we should find a more dignified way to go than according to O'Connor's instructions.

But that's another story. I find everything Orin says sensible enough; it is the conclusions he tentatively draws that seem unpersuasive to me. So here is part of what he says about the applicability of the Authorization to use military force (AUMF) that Congress passed:

So does the AUMF authorize the surveillance? As often happens when you're trying to draw guidance from an O'Connor opinion, it's not entirely clear. Under her opinion, the key question is whether the act is "so fundamental and accepted an incident to war" that it falls within the authorization. But that depends on the level of generality you chose to use to define "the act." Is "the act" spying on the enemy? In that case, perhaps it is a fundamental incident to war. Or is "the act" conducting U.S. domestic surveillance of U.S. citizens? In that case, the answer is no, it's not a fundamental incident to war.

In the end, my best sense is that the AUMF doesn't extend to this. I have three reasons. First, O'Connor's opinion says the following about detention for interrogation: "Certainly, we agree that indefinite detention for the purpose of interrogation is not authorized." It seems to me that surveillance and wiretapping is pretty similar to interrogation: the point of both is getting information about your enemy. Second, it doesn't seem like wiretapping counts as a "use of force." If you read the text of the AUMF, it doesn't seem to me that it authorizes wiretapping. Finally, note that Congress passed the Patriot Act about a month after passing the AUMF; if Congress had intended the AUMF to give the president wide authority to conduct domestic surveillance against Al Qaeda, I don't think they would have spent so much time amending FISA for terrorism investigations. So at bottom, I think the AUMF probably didn't authorize this, although the Hamdi case gives some colorable (if ultimately unpersuasive) arguments that it might.

An important way I think this analysis goes wrong is that it fails to understand the role that communication between al Qaeda and its agents inside the US plays in this war. Against an enemy that uses suicide bombers and unconventional weapons, these communications and their interception is not merely spying, wiretapping, or surveillance. As strange as it sounds, it is quite literally true that these agents are themselves weapons, literally part of the bombs, the guidance systems of weapons directed against the US population. Intercepting these messages is more like dismantling the bomb itself than it is like conventional spying. It would be extremely odd to say that the President did not under the authorization have the authority to order an Army team into a private US residence where he had reason to believe a giant bomb was about to go off. If this bomb had been planted there by enemy agents, doing so would be a direct exercise of his authority under the Congressional resolution, wouldn't it? Yet this is really a closer analogy to what attempting to intercept communications between enemy agents/suicide bombers inside the US and their controllers outside the US is. In other words, it seems to me it is very closely and directly tied to the authorization to use force, much more directly than would be the case if this were a conventional war.

A separate point beyond the scope of this discussion is how much weight a President should even give to a plurality Supreme Court decision that bears only indirectly on the issue, as to the scope of the commander in chief's powers in a time of war, rather than using his own judgment to interpret the authorization himself. My view respecting such a Supreme Court opinion is, not much.

Second, Orin has a very interesting but I think unpersuasive discussion of the claim that the President has inherent power to order the NSA action. He writes

I have been unable to find any caselaw in support of this argument[of inherent presidental power to order the NSA actions]. Further, the argument has no support from the cases cited in the government's brief. In all three of those cases — Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.

From this point, which I take as correct for argument's sake, Orin moves to the conclusion that the Constitution probably does not give the President any such inherent power. But of course, that does not follow at all. It only follows that those cases are not direct authority for that proposition. The question still remains whether Congress could, even if it wanted to, occupy the entire field of what the President can do in the way of surveillanceof suspected enemy agents in the US, or better put, interruption of the terrorist command and control network -- because the terrorist agents inside the US are not spies, but actual illegal combatants. Two points here. First, some magnificently bearded law professor from Georgetown, whose name I did not catch, made a very good point on one of the cable news shows that there is language in the FISA that expressly states it is not intended to impinge on any powers the President may have by virtue of his constitutional powers to conduct surveillance. If that is true, it certainly seems significant. Not least, it would seem to be a recognition by Congress that such powers exist. And well they might, since I gather surveillance directly under presidential power had been taking place for at least 30 years before FISA. But even apart from that, in a war where foreign masters send orders and vital information to actual combatants inside the US, persons who are actually engaged in planning acts of war against the US, not merely spies, it would seem to be a very odd reading of the Presidents' war powers that he could not take action to identify who those agents in the US are, and then move to stop them. It just seems highly doubtful to me Congress could take so much away from the President's power to defend the country as commander in chief. It is very like saying all bombing targets must be approved by the Federal Bombing Agency, as provided for by the Bombing Act of 2005. Why would Congress's attempts to tell the President how to wage war in this respect, that is, identifying the agents and plans of the enemy, be any different than attempting to tell him to invade through Italy rather than France? There are lots of areas where the President cannot act without Congressional authorization, but surely this is not one of them. How could it be, if he is really the "commander"?

Finally, litigation between the President and Congress on war powers is relatively rare, as these sorts of disputes are often "political questions" the Court wisely enough stays out of. So the absence of case law to the effect the President has such power is hardly conclusive. The President has past actions by other Presidents to look to, AG opinions and the counsel of his own lawyers. It is rather stark to put it this way, but in my humble view at least, if Congress passes a law the President in good faith believes unconstitutionally impinges on his power to defend the country in a time of war, of course he should disobey it, and let Congress attempt to enforce the law in court. Perhaps that view is considered extreme in con law circles, but I hope not in the White House. I am not saying Orin is one of these, but plenty of post Vietnam and Watergate lawyers think the Presidency is just a kind of independent agency under the ultimate control of Congress. It ain't.

But no doubt there will be more debate about this, with better contributions made by wiser heads than I. Read Orin's post.

AND what about this caselaw?
posted by thomas at 12/19/2005 10:19:00 PM

 
A good point
By Tom Smith

Powerline makes several good points about the NSA program.

posted by thomas at 12/19/2005 09:37:00 PM

 
Nuclear truck bomb in NYC studied
By Tom Smith

It would be very, very bad. But what scares me more is a President who thinks his war powers include the right to monitor the communications of American citizens with suspected, so-called terrorists abroad. Now that's scary.
posted by thomas at 12/19/2005 04:46:00 PM

 
Alito weighed and found wanting
By Tom Smith

This is so shocking I can hardly breathe. (Thanks to Randy for the link.) A committee headed by Professor Owen Fiss, still of the Yale Law School, who once said in class "I don't even know anyone who voted for Reagan" (a student raised his hand and said "you do now"), has read all of Alito's opinions and found . . . and found . . . can you bear the suspense? are you baffled with the sheer, unfathomable unpredictability of it? You can bear it no longer? Very well! They found

"Judge Alito consistently has used procedural and evidentiary standards to rule against female, minority, age, and disability claimants." And in the workers' rights context, the report discovered that "[t]he employee or union would have prevailed in only five of the 35 employment and labor opinions he wrote." In a number of settings, he tends to deny individuals access to courts.

The report also concluded that at points Judge Alito's opinions appear inconsistent with the prevailing legal thought of other courts. "Judge Alito has held Congress to a more stringent standard than that of the Supreme Court or other appeals courts hearing challenges to the same statutes," the report states.

"A number of Judge Alito's decisions are difficult to reconcile with the general direction of American law," said Brian Deese, a student who worked on the report, "except when viewed in light of the broad philosophical views Judge Alito expressed in his job application of November 1985."

And that's not even counting the long trail of mutilated puppies he has left in his bloody wake. And they want to put this monster on the highest court in the universe.

I find this report incredible on its face. There is no way the law professors on the committee read all 450 opinions. I just don't believe it. Summaries, perhaps. The students, yes, they may have read the opinions. And it probably did them good, since there is little doubt they contained more sound law than they were getting in their classes. There are law students out there who will actually read 450 opinions in order to author a critical report on a Republican nominee, and most of them are at Yale. At Stanford, they are sailing, and USD surfing, and God bless 'em, I say, in most secular sense, of course.

The worst thing about this report is that now we will have to listen to Senator Kennedy read a question like "Judge Alito, in Dinglebird v. Manatee, you held that Eyebrow Challenged Anti-discrimination Act of 1994 did not apply to one-eyebrowed persons in a blatant disregard of legislative intent. Can you explain to us how you reached such a horrible result?" Then we will have to listen to Judge Alito, who in a depressing display of metal powers and resolute preparation, will reply that Dinglebird was actually decided on jurisdictional grounds, and on and on. And Kennedy will just sit there, looking blank, having already forgotten the question he read, and he will be just radiating that desire for a stiff whiskey that way he does, that is so intense you can get a headache if you look at him too long. I think I am going to ask my lovely wife Jeanne not to let me watch the confirmation hearings.
posted by thomas at 12/19/2005 04:10:00 PM