The Right Coast

December 31, 2005
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.)

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.

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.

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.

Chicken related name changes
By Tom Smith

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

Those darn Justices
By Tom Smith

Scalia leads in the joke department.

Blood and Fire
By Maimon Schwarzschild

Roy Hattersley was a Labour Party politician in England from the late 1940s until he retired in the 1990s. He wasn't, perhaps, the world's most inspiring politician, but he has blossomed as a writer in the past few years. He has written a biography of William and Catherine Booth, the founders of the Salvation Army, and although Hattersley is a socialist and an atheist, he is impressed by the Army. Writing for the left-wing Guardian, he points out that "the unpleasant tasks that relieve the pain and anguish of the old, the sick and the homeless [are] the tasks in which the Salvation Army specialise", that in fact almost all the groups doing this kind of work "have a religious origin and character", and that when it comes to practical help for the people who need it most -- well:
Notable by their absence are teams from rationalist societies, free thinkers' clubs and atheists' associations - the sort of people who not only scoff at religion's intellectual absurdity but also regard it as a positive force for evil.

Civilised people [i.e. Guardian readers] do not believe that drug addiction and male prostitution offend against divine ordinance. But those who do are the men and women most willing to change the fetid bandages, replace the sodden sleeping bags and - probably most difficult of all - argue, without a trace of impatience, that the time has come for some serious medical treatment. Good works, John Wesley insisted, are no guarantee of a place in heaven. But they are most likely to be performed by people who believe that heaven exists.

The correlation is so clear that it is impossible to doubt that faith and charity go hand in hand. The close relationship may have something to do with the belief that we are all God's children, or it may be the result of a primitive conviction that, although helping others is no guarantee of salvation, it is prudent to be recorded... as "one who loves his fellow men". Whatever the reason, believers answer the call, and not just the Salvation Army. When I was a local councillor, the Little Sisters of the Poor - right at the other [i.e. Catholic] end of the theological spectrum - did the weekly washing for women in back-to-back houses who were too ill to scrub for themselves.

It ought to be possible to live a Christian life without being a Christian... Yet men and women who, like me, cannot accept the mysteries and the miracles do not go out with the Salvation Army at night.

The only possible conclusion is that faith comes with a packet of moral imperatives that, while they do not condition the attitude of all believers, influence enough of them to make them morally superior to atheists like me. The truth may make us free. But it has not made us as admirable as the average captain in the Salvation Army.
Hattersley's reflections might be worth keeping in mind when considering whether Christian ideas -- or ideas with even the slightest whiff of having been inspired by Christianity -- are so uniquely toxic that they (alone of all ideas that you might think silly or uneducational) should be hunted down and extirpated by judicial decree from the public schools.

As a Labour politician, by the way, Roy Hattersley used to be on the receiving end of British political satire, which takes few prisoners. Wikipedia's shrewd bio of Hattersley reports that, having "a slight problem with sibilants", Hattersley was was routinely "portrayed on the satirical television puppet programme Spitting Image as someone who showered his audience with saliva each time he spoke".
Hattersley was also attacked by the satirical television programme Have I Got News For You in 1993. He was booked several times to appear on the show, but after his repeated failures to honour the booking his place was taken by a tub of lard, to which the other participants addressed comments and questions as though it were Hattersley himself.
Christian charity is one possible response to that sort of thing.

December 30, 2005
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.

December 29, 2005
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."

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.

Hollywood the strange
By Tom Smith

It is odd. As Hanson observes, they get everything just exactly wrong. How do they manage it?

Those darn Clintons
By Tom Smith

Hillary's revenge.

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.

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.

December 28, 2005
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 ....

I know that goes on in Montana
By Tom Smith

But you're not supposed to talk about it.

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.

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.

December 27, 2005
Campos on ID and the Spanish Inquisition
By Maimon Schwarzschild

Paul Campos, a friend of several of us RightCoasters, and law professor at the University of Colorado, in his column this week:
[W]e have just been treated to the remarkable spectacle of liberals shouting hosannas to the heavens in praise of a federal court ruling that makes it illegal to even mention the existence of a dissenting point of view in a public school classroom. The court held that a Dover, Pa., school board violated the Constitution when it mandated that a short statement be read at the beginning of the school year to ninth-grade science classes.

The statement noted that students are required to learn Darwin's theory of evolution; that there are gaps in the evidence for this theory; that an alternative theory called intelligent design exists; that the school library contains a book that students may consult if they wish to learn about this dissenting point of view; and that they are encouraged to keep an open mind about theories in general.

Judge John E. Jones ruled that reading this statement violates the Establishment Clause of the First Amendment because doing so advances "a particular version of Christianity." Let's be clear about what this ruling means. According to Jones, it's against the law for a public school science teacher to mention that intelligent design theory exists, except, one supposes, for the purpose of immediately declaring it to be "not science, but religion."


[An] interesting feature of orthodoxy is that it tends to cause a species of mental retardation in otherwise intelligent people. Consider some of the justifications put forward for the proposition that it's a great day for truth, justice and the American way when a federal court makes it illegal for teachers to mention the existence of a dissenting point of view to their students:

• Science has refuted theories such as intelligent design, because science is based on the postulate that theories such as intelligent design cannot be true. It says a great deal about the power of orthodox thought that many people of normal intelligence are apparently incapable of seeing what's wrong with this argument. To quote the philosopher Bertrand Russell: "The method of 'postulating' what we want has many advantages. They are the same as the advantages of theft over honest toil."


[P]reposterously, it's asserted that requiring one particular form of metaphysical orthodoxy to be presented in public schools as The Truth allows the government to maintain "neutrality" toward religion.

But, as has been noted in another context, no one ever expects the Spanish Inquistion.
Read the whole thing.

More on Munich
By Mike Rappaport

Paul Horwitz recommends Edward Rothstein critique of "Munich" in the New York Times. And rightly so. The piece is quite excellent. Paul suggests that we at the Right Coast are perhaps unduly harsh on the Times, since after all they published Rothstein's piece. Well, I am perfectly happy to admit that the Times sometimes publishes good stuff. The problem is that it much more often publishes biased stuff. But do read Rothstein's piece, which is part of the much rarer former category.

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.

December 26, 2005
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?

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.

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.

The Real Munich
By Mike Rappaport

Although I am concered that I will hate Spielberg's new movie, I am planning to see it anyway. His movies are good enough and the subject is compelling enough to make it worthwhile. Nonetheless, I already know enough about the movie's motivations and theme to recognize that I will certainly have some problems with it. Spielberg seems to think that a response to a terrorist attack leads to a Hatfields and McCoys situation -- a cycle of violence, if you will -- and so it may. But that does not change the fact that the side that engages in the initial attack, especially when it constitutes terrorism, is the wrong one. Moreover, while the responder may have to expect a further retaliation, if he fails to respond, he can expect an even stronger attack in the future. Sadly, terrorists typically perceive restraint as weakness rather than as principle and an opportunity for peace.

What really frustrates me about Hollywood movies concerning historical events is their tendency to play fast and loose with the facts. It is bad enough when liberal scholarship portrays history through a distorted lens; but Hollywood adds to that the intentional myopia of artistic license.

But forewarned is forearmed. So take a look at this Slate piece correcting what it sees as the movie's mistatements of the record:

The assassins in Munich are presented as quintessential everyday guys—patriots who want to defend their country and who gradually grow disillusioned, guilt-ridden, and paranoid. The Mossad teams did draw from the ordinary Israeli population, but they were well-trained professionals intent on their missions. In the movie, a Mossad agent gingerly asks a target if he "knows why we are here?" That's farfetched. In interviewing more than 50 veterans of the Mossad and military intelligence, I found not a single trace of remorse. On the contrary, Mossad combatants thought they were doing holy work.

The Munich Massacre triggered a fundamental change in Israel's approach to terrorism—a "Munich Revolution" (the phrase was used by the Mossad) that endures as a mindset and an operational protocol today. Finding and killing the perpetrators of the Munich Massacre was a part of that campaign only insofar as the men involved were deemed likely to act again. Revenge was the atmosphere—but preventing future attacks by networks that Israel saw as threatening its citizens was the goal.

But Spielberg has bought into one of the myths of the Mossad—that after Munich they staged a revenge operation to hunt down and assassinate everyone responsible. Israelis, too, bought into this myth (myself included, at one time) which a shocked public demanded—but that doesn't make it true.

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.

Father of Mother of All Bombs dies
By Tom Smith

Public service with a bang.

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.

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

A Karl Rove conspiracy.

December 25, 2005
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?

By Maimon Schwarzschild

Here is the Queen's Christmas broadcast.

These broadcasts have been a tradition in the UK since the Queen's grandfather George V gave a Christmas address over the radio in 1932 that had been written for him by Rudyard Kipling.

Kipling is no longer on the staff, and these annual broadcasts are now the only public occasion when the Queen speaks for herself, not from a text drafted by the government in office. With varying degrees of affection and irony, the broadcast still has a large audience in Britain.

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

E.J. Dione remembers Father Duffy
By Tom Smith

Catholic liberals and conservatives both loved him.

December 24, 2005
English Christmas
By Maimon Schwarzschild

Here is this year's Service of Lessons and Carols from King's College, Cambridge.

While you listen, you can read more about the service and about King's College here. Note the link to the PDF file of the (elegantly printed and laid out) Order of Service at King's.

On a slightly different note, Christopher Hitchens offers these warm and nostalgic Yuletide thoughts:
[T]he whole business [i.e. Christmas] becomes more vile and insufferable — and in new and worse ways — every 12 months. It also starts to kick in earlier each year: It was at Thanksgiving this year that, making my way through an airport, I was confronted by the leering and antlered visage of what to my disordered senses appeared to be a bloody great moose. Only as reason regained her throne did I realize that the reindeer — that plague species — were back.

Not long after I'd swallowed this bitter pill, I was invited onto Scarborough Country on MSNBC to debate the proposition that reindeer were an ancient symbol of Christianity and thus deserving of First Amendment protection, if not indeed of mandatory display at every mall in the land. I am told that nobody watches that show anymore — certainly I heard from almost nobody who had seen it — so I must tell you that the view taken by the host was that coniferous trees were also a symbol of Christianity, and that the Founding Fathers had endorsed this proposition. From his cue cards, he even quoted a few vaguely deistic sentences from Benjamin Franklin and George Washington, neither of them remotely Christian in tone. When I pointed out the latter, and added that Christmas trees, yule logs, and all the rest were symbols of the winter solstice "holidays" before any birth had been registered in the greater Bethlehem area, I was greeted by a storm of abuse, as if I had broken into the studio instead of having been entreated to come by Scarborough's increasingly desperate staff. And when I added that it wasn't very Tiny Tim-like to invite a seasonal guest and then tell him to shut up, I was told that I was henceforth stricken from the Scarborough Rolodex. The ultimate threat: no room at the Bigmouth Inn.
There is more, of course, much more, from Hitch.

Happy Chanukah!

Student stabs professor, fails class
By Tom Smith

Never argue with an armed student.

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.

Papa Christmas
By Tom Smith

Pontiff makes bold fashion statement.

December 23, 2005
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.

More on NSA program legality
By Tom Smith

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

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.

USD kicks butt on bar results
By Tom Smith

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

CA Bar Rank SchoolUS News Overall CA RankUS News Peer CA RankSSRN CA Rank
1 (88.7%)
2 (88.0%) Stanford111
3 (87.0%) Boalt224
4 (84.3%) Hastings669
5 (81.7%) USC443
6 (80.0%) USD
7 (75.0%) Loyola786
8 (74.4%) USFTier 31013
9 (73.8%) Davis557
10 (72.6%) Pepperdine91016
11 (66.4%) Southwest.Tier 31310
12 (63.9%) McGeorge101215
13 (62.5%) Santa ClaraTier 3912
14 (59.5%) ChapmanTier 41711
15 (57.7%) Cal-WesternTier 414
16 (43.8%) Golden GateTier 41418
17 (39.7%) WhittierTier 41617
18 (38.4%) T. JeffersonTier 4178
19 (24.6%) Western St.Tier 41919

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?

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.

December 22, 2005
Leaks from Judges
By Mike Rappaport

Orin Kerr refers to a New York Times story that has the following in it:

One judge, speaking on the condition of anonymity, also said members could suggest disbanding the court in light of the president's suggestion that he has the power to bypass the court.
I don't believe I have ever seen a judge speaking through an anonymous leak before. The judge might want to be careful. It makes him seem more like an ordinary political actor. The perception that judges are not political in that way is the source of much of their power.

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.

December 21, 2005
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.

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.

Judge Posner on the NSA story
By Tom Smith

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

This is also good.

December 20, 2005
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.

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?

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.

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.

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.

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.