Guess Who's Back...

And there was much rejoicing, like we just ate Brave Sir Robin's minstrels.

Anyway, for those of you who didn't know, my extended absence was occasioned by...the occasion of the Alaska Bar Exam. In an effort to minimize my online time, and therefore maximize the studying, I rather cut myself off from the internet.

I didn't check email, I didn't surf, I didn't read or write blogs/comments. Heck I barely answered the phone...(thanks for the kind wishes those of you who provided them...) And for some reason, bar exam and studying therefore aside (how was the play, Mrs. Lincoln?) this was kind of awesome. Except for the 600+ emails I have to sift through now...anyway, a lot happened while I was gone, but I can only review so much:

• The Departed was not the best movie of last year. I think we all know that. The problem is, can anyone think of a movie that was worhty of being called "the best"? For all intents and purposes, I thought "Little Miss Sunshine" was the betterest movie of 2006, but calling it "the best" is a bit like drafting Andrew Bogut #1 overall. Is that all there is? Reese Witherspoon should have won something, just so she could have come onstage again. Al Gore is not running, he was funny, twice, and no politician actually running is going to risk that.

• That Texas-Texas A&M game was all kinds of awesome. Acie Law yelling "That's what I Do!" at his teammates after making some ludicrous game saving three is why I love college hoops. Reminiscent of Cat Mobley telling Dickie V. of the guy guarding him "I'm busting that ass..."

• Tyler Hansbrough needs to stop letting himself be compared to Eric Montross. He should probably transfer to avoid it, at this point. Big gangly white kid? Check. Star for UNC? Check. Bleeds easily against Duke? Check. Vastly overrated pro prospect? Transfer, young man, transfer.

• I liked "The Black Donnellys" better the first time when it was called "The Godfather".

• Immediate post-exam observation: There is nothing worse than waking up smelling like last night's cigarettes. I spent most of the weekend in the shower trying to wash the smell off. That, and I couldn't really complete the thought required to turn it off and get out...
  

Mas Bookblogging

Finished #40 over the weekend (and it was a doozy), but need to get caught up after the quickies from last week.

#32 "In the Shadow of the Law" by Kermit Roosevelt: Probably this year's winner of the "Wolf" memorial "all setup, no payoff award." Continuing my trend of doing unwise things before a big life change, (like viewing "The Paper Chase" the night before my first day of law school...and then my torts prof turns out to look just like Kingsfield. Of course, he turned out to be a real sweetheart, but I was yet to know that and was thoroughly terrified...) I read this legal thriller (use of term is advised) the weekend before starting the new job.

From what I can tell, Roosevelt gets BigLaw culture pretty right on. There's the superstar, the striver, the frat-boy, the burn-out, the old coot, etc.

And then, well, it gets silly. I won't spoil it for you because describing the various plot set ups would take too long, but suffice it to say that there is not one, but two ridiculous deus ex machina reversals that would have John Grisham himself shaking his head and saying "no f'in way." Not quite as cringe-worthy as Dan Brown's hand held parachute in Angels and Demons, but close.

#33 "Assassination Vacation" by Sarah Vowell. If only "Killing Yourself to Live" had been as witty, fun, and oh yeah about the advertised topic as this one. A meandering journey through the twists and turns of the Lincoln, Garfield and McKinley assassinations, and the motley cast of characters each seemed to throw up. Most intriguing and tragic was the story of Lincoln's son, who, Forrest Gump-like was more or less present for all three. Just the right dose of modern politics for my liking as well (Vowell, unsurprisingly considering her oeuvre, is decidedly, though not viciously, left-of-center.)

#34 "What's My Name, Fool? Sports and Resistance in the United States" By Dave Zirin. Is it odd to be a Marxist sportswriter? It would have to be - I can't imagine a more perfect "opiate of the masses" than spectator sports. In some places *cough*NotreFreakinDame*cough*, football really is religion. But anyway, Zirin is in fact a Marxist sportswriter. Unfortunately for this reader, he spent a little too much time in the Rick Reilly School of Overwrought Simile. Combined with his decidedly Leftist politics, there are some profoundly silly passages. I'm all for more Dick Cheney jokes. But just not bad ones.

Anyway, some parts of the book are actually decent - the historical sections dealing with Jackie Robinson, Ali, and the Carlos/Smith black power salute. Easy enough where events have shown the protagonists to be on the Right Side of History, as they say. The more recent stuff, not so much. Too often, he confuses "wit" (advisedly used) with substance. Further, sports seen through a completely political lens is uh, lame. He can't decide whether the players are the avenging angels or class traitors. I get confused.

That said, there are some decent bits in the more recent stuff. He takes a nice healthy run at George Foreman, and actually had two very thought-provoking essays defending Barry Bonds. Overall, too much vinegar, not enough...(huh?)


More soon...

Another Slice of Pooh

My favorite libertarian recently posted an article on FoxNews (how do they still let him post there? He's clearly an apostate. But I digress...) about the sillyness, both substantive and political of the GOP's decision to ban online gambling (read: poker):

The people who are going to be affected by the ban are the millions of Americans who play online poker recreationally — and responsibly. But that $12 billion per year is going to simply dry up. Problem gamblers and minors will still be able to find places online to make wagers.

Any attempt to prohibit consensual activity is going to create black and gray markets. The legitimate, law-abiding gaming sites may now be out of reach for Americans, but that'll create a niche for truly unregulated sites. These sites will be far more prone to fraud, won't much care about the age of their customers, and customers who are defrauded will have no recourse.

There's also no telling who's behind them. But it's probably a safe bet (pardon the pun) to say that the people operating black market, blatantly illegal gambling sites will include a significant criminal element.

This being a topic on which I have some interest (former lives and all that...), I fired off an email, which he was good enough to publish:

Good article. I have two points to make in response - the first is that this is incredibly tin eared on the part of the GOP. My guess would be that poker professionals *should* be solidly in the GOP base - there is no more naked a form of capitalism then the ruthless meritocracy of poker. Yet, as you suggest, in a single move, the GOP has decided to jettison this group (a group with both visibility and money to spare to contribute to candidates who won't try and kill their livelihood.)

My second point relates to the notion that this is simply leaving tax revenues on the table. Yes, the operators of poker rooms won't pay taxes, but neither will the professional players. I subsidized grad school with online poker, and I always paid taxes on my winnings. Now? No way would I expose myself to criminal sanction by declaring "Other Gambling Winnings." And I don't think I'm the only one. Given the size of the market, that's significant tax revenue simply being left on the table so that state lotteries (or, as most poker players refer to them "taxes on stupid people")
and Indian casinos can maintaint their monopolies and we can "save the children."

North Starr

Ken Starr, and all the panty-sniffing, moral scolding that comes with him, has arrived in the the great north to inform us that drugs are bad, m'kay:

Former Whitewater special counsel Kenneth Starr petitioned the U.S. Supreme Court to take up Alaska's "Bong Hits 4 Jesus" case, a dispute involving a high school student, a banner and a tough school policy.

I hear what you're saying. "Bong Hits 4 Jesus? I'd drink to that!" But for the uninformed, a little background:

As the Olympic torch relay passed by Juneau-Douglas High School in 2002, then-high school senior Joseph Fredrick was looking to catch the attention of television cameras converging on the event.

So he held up a banner that read "Bong Hits 4 Jesus."

Fredrick's message also caught the eye of the high school principal, and it earned him a 10-day suspension. School District officials said his banner violated the school's anti-drug policies.

Thought-crime, anyone?

Fredrick, then 18, sued the school but lost in federal District Court.

On Friday, a three-member panel of the 9th U.S. Circuit Court of Appeals overturned the lower court order and said school officials violated Fredrick's free-speech rights. . . Superintendent Peggy Cowan said the school had to respond to the banner or risk sending a message that the school condoned illegal drug use.

On Jan. 24, 2002, the day of the torch relay, Fredrick was standing across the street from the school with other students who'd been let out of class for the event. Then-principal Deb Morse spotted his sign, crossed the street and told him to take it down. When he asked her about his freedom of speech, she said the message violated school policy against material that advertises or promotes the use of illegal drugs.

Morse grabbed the banner from him, crumpled it up and suspended him, according to the lawsuit. . .[T]he 9th Circuit Court said that even if the banner could be construed as a positive message about marijuana use, the question came down to whether a school may punish or censor a student's speech because it promotes a social message contrary to one the school favors.

"The answer under controlling, long-existing precedent is plainly 'No,'?" Judge Andrew Kleinfeld wrote in an 18-page opinion.

Enter Starr, who apparently has nothing better to do than to make sure that Juneau teens aren't encouraged to toast Jesus with a toke. I guess this means that nothing untoward has happened in our nation's capital in the last six years.

Anyway, not only is this extremely silly, the lawsuit itself is doing more to "promote" the, er, religious use of cannabis than anything Fredrick did:

If the Juneau School Board, in its infinite stubbornness, is so worried that the message waved on a banner four years ago at a nonschool event will lead high school kids down the path to illegal drug use, why does it insist on giving the message such tremendous exposure?

Google "Bong Hits 4 Jesus" and you'll get 14,100 hits. Included among them is proof positive that the message has become part of the vernacular: It has its own Wikipedia entry.

(And so it does.)

And forgive me for my cynicism, but I wonder how much of Starr's underlying reason for involving himself is the "Bong Hits" part and how much is the "4 Jesus" bit? (Further, I wonder how much of the original principal's, [about whom I know nothing aside from this case] hissy-fit about the sign was the drugs, and how much was Jesus on drugs...)

Cross-posted at Kakistocracy

Col. Jessop Revisited - Means and Ends

As if by kismet, Andrew Olmsted, the new frontpager at ObWi dives into a topic I've been noodling over recently. Rewatching "A Few Good Men" for the umpteenth time, I was struck by the question of where Jessop goes irretrievably off the rails? In the dramatic context of the film, Jack Nicholson's Jessop is unquestionably the primary villain (with an assist from Bauer-in-training Kiefer Sutherland), but it's safe to say that his larger worldview has a certain degree of acceptance. First, consider the speech in question:

"You can't handle the truth! Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it? You? You, Lt. Weinberg? I have a greater responsibility than you can possibly fathom. You weep for Santiago and you curse the Marines. You have that luxury. You have the luxury of not knowing what I know: that Santiago's death, while tragic, probably saved lives. And my existence, while grotesque and incomprehensible to you, saves lives...You don't want the truth. Because deep down, in places you don't talk about at parties, you want me on that wall. You need me on that wall.We use words like honor, code, loyalty...we use these words as the backbone to a life spent defending something. You use them as a punchline. I have neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very freedom I provide, then questions the manner in which I provide it! I'd rather you just said thank you and went on your way. Otherwise, I suggest you pick up a weapon and stand to post. Either way, I don't give a damn what you think you are entitled to!"

Andrew, a military man himself, is conflicted:

While I am a fan of the film and I believe the outcome was the correct one, I am not alone among military personnel in acknowledging that while COL Jessup was wrong not to accept responsibility for his actions, the points he makes in the above speech are nonetheless valid.

(Read the whole post, it certainly deserves the attention.) In the very enlightening comments which follow, he adds

The passage of the speech I consider accurate is the opening: "Son, we live in a world that has walls. And those walls have to be guarded by men with guns. Who's gonna do it?" That is a fact. Is his current assignment vital to national security? I don't think so, but even a Colonel doesn't get to make that call. His orders are to hold Guantanamo and to protect his Marines, and he is attempting to do so. . . But in the bigger picture, until humanity decides it's 'not gonna study war no more' military personnel will remain a necessary evil. The rest of the speech I do not generally agree with, but as I noted above, I can sympathize with Jessup's position. It can be frustrating to be judged by people who have no idea what military service is like. But, I'd rather live under that system than any other.

While dramatic convention demands to Jessop be portrayed as a unapologetic twirly-mustache type, the real-world proponents of an authoritarian, "get tough" attitude are not. By many accounts, John Yoo is quite personable, funny even. Aside from VP Penguin and Karl Rove, there is no one involved who is as individually loathsome on a personal level. No one fills the archtypical "lead baddie" role.

"You want me on that wall, you need me on that wall," he says. A lot (I'd say most) of Americans probably see it that way, though the advent of blogging has probably put the lie to the "deep down in places you don't talk about at parties" portion - we talk about it all the time. At times it seems like it's all we talk about.

But it's not enough to simply "stand the post", I don't think - Jessop himself uses "words like honor, code, loyalty" but his actions subvert their very meaning. He himself lies about his conduct, ignores orders and shows an appalling lack of loyalty to Dawson and Downey.

In reading Gaddis's "Cold War", I wrote that one of the author's key points was the extent to which living up to one's ideals (or at least making the attempt) matters. Obviously, he's a fictional character, so it's unwise to draw too strong a message, but Jessop is an object lesson. When means become an end to themselves what happens to the original goal? In this case, what started out as the productive and noble goal of providing a strong defense of his country got hijacked by the personal agenda to show just how badass he could be - yes being a badass probably helps the original aim, but they aren't the same thing, and in losing sight of this, Jessop lost his claim to nobility of purpose.

To draw a broader lesson, which I also alluded to earlier, it's easy to lose sight of the end goal (which is not "winning" unless you are actually playing a sport) - I don't espouse liberal ideology because Hillary Clinton has a right (divine or more likely otherwise) to be President in 2009, but because I think that certain things like civil liberties, respect for empricism, and the social safety net are 'Good Things' - to the extent I get sidetracked from these things to focus on merely 'winning,' it had better be instrumental rather than simple boosterism. Otherwise, what am I about?

(Cross-posted at Kakistocracy)

Breakin' The Law, Breakin' The Law

(Cross-posted at Kakistrocracy)

I first found Glenn Greenwald in the immediate aftermath of the NYT's story on what has become known (question beggingly) as Bush's "Terrorist Surveilance Program". With his careful legal analysis and forceful rhetorical style, Greenwald demolished one 'defense' aftrer another. Unsurprisingly, he quickly became a star of the left blogosphere. To a degree, this proved his undoing - as I noted in my review of his book, his authoritativeness on legal matters has been obscured by his work on seperate, though related, topics.

However, in the wake Judge Anna Diggs Taylor's ruling (.pdf) that the TSP is not only illegal, but unconstitutional, Greenwald is back on his firmest footing.

In response to crticism of the ruling lack of factual underpinnings (specifically, see Publius for a series of excellent posts, critical of the reasoning,) Greenwald makes some key points based on the procedural status of the case. Money Graf:

[A] principal reason why Judge Taylor was somewhat conclusory in her analysis of some issues, and the reason she repeatedly said that certain propositions were "undisputed," is because the Bush administration either failed or chose not to dispute them. Specifically, the Justice Department was so intent on telling the Judge that she had no right to even rule on these issues (because the NSA program is a "state secret," the legality of which the court cannot adjudicate without damaging national security and/or because the plaintiffs lack "standing"), that it basically chose not to address the merits of the plaintiffs' case at all.

To a great extent, this is the chickens coming home to roost - if the first rule of Fight Club TSP is that you don't talk about TSP, your silence can be used against you. Despite multiple rulings to the contrary:

the DoJ twice tried to convince Judge Taylor not to rule on the substance of the ACLU's claim, but instead to rule first on the DoJ's "state secrets" argument. Twice, the court refused this request, ordering the DoJ to address the merits of the case . . . But the DoJ essentially refused to do so, and devoted almost all of its brief (.pdf) to arguing why the court lacked the power to adjudicate these issues, and almost none of its brief to arguing about the issues themselves. As Marty Lederman put it once he read the DoJ's Brief: it "did not quite advance or support in any detail that argument -- or any other merits argument, for that matter."

As this excellent Comment to [law Professor Orin] Kerr's post reflects, the Bush administration's refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

In a seperate post, Greenwald (along with Professor Laurence Tribe) points out what should be obvious - all the focus on the "quality" of Judge Taylor's (often from the same parties who had significantly, uhm, fewer problems with the "quality" of Bush v. Gore) is a distraction from the:

most unpleasant issue that Democrats and Republicans alike have sought to avoid.

Here it is: If this program is unlawful, federal law expressly makes the ordering of surveillance under the program a federal felony. That would mean that the president could be guilty of no fewer than 30 felonies in office. . .The question of the president's possible criminal acts has long been the pig in the parlor that polite people in Congress refused to acknowledge. (emphasis Greenwald's)

As satisfying as such a finding of criminality might be, there is a big question over the horizon - what then?

Of course, the easy answer is "Impeach! Impeach! Impeach!" but that presupposes A) a Democratic landslide in the upcoming midterms and probably B) a willingness to put everything else aside. Incidentally, there is also a concern about not making this into Monica Lewinsky II: Electric Boogaloo - for me, this can not be a partisan witch hunt.

Screw the politics for a moment, the most destructive aspect of the TSP scandal (as well as related issues of torture and rendition) has been the revelations of the manner in which "the system" has been subverted, the protections and procedures enscribed in the Constitution overrun with certain classes cheering all the way, either not knowing or not caring (or in the case of the Cheney/Addington/Yoo authoritarians actively desiring) the destruction wrought upon the carefully checked-and-balanced scheme which has served this country pretty well, thank you. And using this incident as a chance to say "gotcha!" rather than repairing and reinforcing our institutions is both short-sighted and irresponsible.

Nailing this liar to the wall would feel fantastic in a playground revenge sort of way, but we also have to remember that this is not a game, there are real concerns both foriegn and domestic, and focusing on shredding what's left of the the Bush legacy allows that legacy's main aspect, the destruction caused by his brand of incurious incompetence to grow and grow.

5 Quick Points

I don't want to say too much about the London terror arrests, because what the hell do I know about anything? But I do have a few quick reactions.

• Good. Phew. Well done, etc.
• A useful reminder that, to paraphrase Catch-22, just because our current leadership is cynical and manipulative re: "GWOT" (or, more generously, woefully misguided as to strategy and completely largely incompetent as to execution) doesn’t mean that bad people aren’t out to get us.
• Relatedly, I think in the race between bigger bombs and better armor, the bombs always win. If enough people want to kill us, some will succeed. A strategy that reduces that desire is, ceteris paribus*, better than one which increases it. Similarly, reducing the capability to do us harm is good. Under this framework Afghanistan = good, Iraq (certainly as executed) = bad, Iran = lunacy.
• This is legitimately terrifying. [Update: Reader Bill (no, not that one) reminds me that this was bombs, not gas - I should have linked more clearly that I think as a general threat that that is pretty nasty rather than speculating that today's plot involved poison gas. Mea culpa.]
• Finally, just saying...

  Makes you wonder, doesn't it? Most of the big victories in "the war on terror" have been racked up by cops, not by soldiers. Why, it's almost as if terrorism is a law-enforcement problem -- and less of a threat when it's handled well in that fashion.

  I don't agree 100% - to the extent that terrorism is a 'state' activity, (see, again, Afghanistan) the bluntness of military force is probably useful and effective. In its non-state guise, I suspect that the conventional military "cure" may actually worsen the disease.

* All other things being equal. Though there is a certain level of "people wishing us ill" that we have to if not tolerate, than accept and expect, else we've granted a more deadly version of a Heckler's Veto.

The Pen Is Mightier...

Since I'm on record as enjoying a good judicial bench-slap, I'd be remiss in not passing this (.pdf) along:

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.

But, they are extremely cuddly, enjoy long walks on the beach, like teddy bears and ice cream and always tell their mothers that they love them. Sadly, for the offending Esquires, the court was not done with them just yet...

After this remarkably long walk on a short legal pier, having received no useful guidance whatever from either party, the Court has endeavored, primarily based upon its affection for both counsel, but also out of its own sense of morbid curiosity, to resolve what it perceived to be the legal issue presented. Despite the waste of perfectly good crayon seen in both parties' briefing (and the inexplicable odor of wet dog emanating from such) the Court believes it has satisfactorily resolved this matter. . .

At this juncture, Plaintiff retains, albeit seemingly to his befuddlement and/or consternation, a maritime law cause of action versus his alleged [employer]. However, it is well known around these parts that [employer's] lawyer is equally likable and has been writing crisply in ink since the second grade. Some old-timers even spin yarns of an ability to type. The Court cannot speak to the veracity of such loose talk, but out of caution, the Court suggests that Plaintiff's lovable counsel had best upgrade to a nice shiny No. 2 pencil or at least sharpen what's left of the stubs of his crayons for what remains of this heart- stopping, spine-tingling action.

DEEP IN THE HEART OF TEXAS (clap clap clap clap)

This last bit may be offsides:

In either case, the Court cautions Plaintiff's counsel not to run with a sharpened writing utensil in hand--he could put his eye out.

He'll be crying himself to sleep tonight on his huge pillah...

(via Unfogged and LGM. As a commenter at Unfogged added:

All your motion are belong to us. Counsel for both parties are pwned. It is so ordered.

Good god, I'm a dork sometimes...)

CleanFlicks (Or, "How I Learned to Love the Puritanical Censor")

I have great sympathy for the arguments espoused by the Director's Guild of America concerning the 'scrubbing' and reselling of their films:

"Directors put their skill, craft and often years of hard work into the creation of a film," added [DGA President Michael] Apted, whose own repertoire includes the 1999 James Bond adventure The World Is Not Enough and Gorillas in the Mist. "These films carry our name and reflect our reputations. So we have great passion about protecting our work...against unauthorized editing."

As a legal matter, I think the judge probably reached the 'correct' ruling, given extant copywrite law. So in that aspect, I'm not sure I agree with XWL that this decision will, in fact, get overturned (given the Eldred decision, and that the Court certainly hasn't become less friendly to The Mouse and co. since then...)

That said, I do agree with the Immodest Proposer (and Reason's Nick Gillespie) in that this is bad as a policy matter:

As for the case just decided in Denver: I have no problem with gratuitous nudity (is there any other kind in a movie?), foul language, and graphic violence; but I'm squarely on the side of the easily offended CleanFlicks' customers. They are doing precisely what technology is there for: to create the sort of art, music, video, and text that an individual or group of individuals wants to consume.

Just so, especially, given that

[b]y all accounts, the CleanFlicks-type outfits weren't ripping off Hollywood in any way, shape, or form—they were paying full fees for content—and they weren't fooling anyone into thinking their versions were the originals; (emphasis mine)

(Though I'm not willing to fully buy the argument that "they weren't fooling anyone." That proves too much - I'm not fooling anyone with my Hong Kong made bootleg either, but I don't think that's kosher...)

RIA sez:

I'm of the opinion that with Art, you take it or leave it. You don't get to take someone else's vision and remake it into your own image for resale. Or at least shouldn't be able to, without permission.

Well first of all, why not? I'm serious here, Saving Private Ryan without the Normandy Beach scene is not the same movie - in my aesthetic judgment, it is miles worse, and I think most film consumers would agree. Can't we be trusted to make that decision?

Further, this leads to all sorts of imponderables such as when is use of a 'vision' a 'remake' and when is it an 'inspiration?' Also, I think RIA is mistaken, as a legal matter, here:

There are plenty of technologies to help me skip past the parts I find unnecessary.

To which technologies, by the way, the court decision does not apply, as noted in the article, nor do I argue that they should, as used by individual consumers. Nor do I buy the argument that the ruling opens the door, much less sets up a slippery slope, leading to forced commercial-watching or banning of TIVO, etc.

Actually, that is precisely what overly strong copywrite protections threaten with regards to broadcast media - the network 'owns' the content, and it can argue that the commercial breaks are integral to their artistic vision. Who are you to question that? Of course it isn't true, but prove it. Because that's what we want - a court deciding what does and does not belong as part of a performance...

LeMew has more - a taste:

Matt is also right that it's important not to be diverted by distaste for the CleanFlix enterprise. First of all, what the company is doing is not terribly unusual; various forms of content that the mass audience might find objectionable are systematically removed to show movies on broadcast TV and airlines(*), for example, and the former further bowlderizes films to fit time slots and include commercials. Being a snooty civil libertarian aesthete with no kids, I find all of this silly, and in fact I pretty much never watch movies on broadcast TV or airlines, do not think that random bad words or stray nipples on TV present a massive cultural crisis, think that film would probably benefit from more nudity and eroticism (although probably could do with less movies about blowing stuff up) etc. etc. But the puritanism of CleanFlix is also essentially harmless--as opponents of puritan busybodyism often note, nobody's forcing you to watch their products--and of course ex post facto changes are infinitely preferable (for both artists and audiences) to preventing the work from being done in the first place. Instinctive hostility to middlebrow "family values" groups shouldn't compel one to fall into the trap of advocating terrible copyrights laws. It's also worth reiterating that where Congress' copyright powers are concerned, consequentialist analysis is not merely useful but required; the Constitution specifically does not hold that copyrights are a sacrosanct abstract right, but are designed to advance the public interest, which decisions like this manifestly fail to do. (emphasis mine)

FWIW, I think the bolded point goes a long way to answering RIA's 'take it or leave it' viewpoint - and I can see (in a better world, perhaps) where allowing CleanFlix, etc. allows for more content - where this is allowed I can certainly see the arbitrary influence of the MPAA waning, and that's never a bad thing.

BookBlogging #12: How Would A Patriot Act?

Where, as here, no emergency prevents consultation with Congress, judicial insistence upon that consultation does not weaken our Nation’s ability to deal with danger. To the contrary, that insistence strengthens the Nation’s ability to determine—through democratic means—how best to do so. The Constitution places its faith in those democratic means. Our Court today simply does the same. (emphasis added)
- Justice Breyer, concurring in Hamdan v. Rumsfeld (.pdf)

Regular readers must know that I'm a huge fan of Glenn Greenwald's work, so naturally I had to peruse his new book rather quickly after it's release. And given the good news of the Hamdan decision, now seems as good a time to post on it as any.

I was not disappointed, "HWAPA" is essential reading for anyone trying to make sense of the legal issues surrounding various recent stories of the Bush administration's will to power. Greenwald concisely and elegantly demolishes the Yoo/Addington doctrines invoked in support of everything from 'coercive interogation' to the NSA scandal.

Though it has been largely lost in the wake of Greenwald's rise to liberal-blogospheric prominence, he doesn't see the arguments over executive powers as a partisan issue, but rather a matter of fundamental principle. The title, (in addition to the word play at work) is demonstrative - in Greenwald's view, patriotism is almost synomous with a defense of such founding principles as limited, divided government, and individual civil liberties.

In a way, Greenwald's ascension has diminished his authority on the subject - before (understandably) becoming the NetLeft's go to guy on debunking Unitary Executiveisms, he presented very compelling, well-researched positions. And he still does, but he is wholly preaching to the choir: he is an anti-Bush blogger, for better or for worse. The fact that he has repeatedly and consistently presented his case for opposing the present administration is far less important than that he has adopted that position.

And far be it for me to criticise, but his blog covers a much wider swath then simply his areas of expertise. It is always dicey for one to attempt to transpose authority between venues (the best example is Cindy Sheehan, who had moral authority as a simple grieving mother, but far less so as a 'movement leader,') and though I tend to agree with Glenn much more often than not, his broader base serves to reduce his persuasive power to the unconvinced. "You would say that" is a fairly powerful rhetorical dismissal.

Despite these concerns, however, the book is crisply executed. Greenwald's writing is always superbly constructed, and given the greater time for reflection a book allows over a blog has only served to fine tune this quality. It is also concise - a perfect airplane read perhaps, to serve as a primer for one of the more important issues we face.

While I've Been Away Watching Too Much Soccer

So, during the extended dance mix of World Cup '06, it appears one or two things have popped off in the opposable-thumb using world. Some may be worthy of fuller blogging, some may not, but...

• The Sawx have won 11 straight. During the streak Papi has 3 walkoff's. Or one more than the number of goals the U.S. team scoredacquired during that same period. Pedro got cheered, got shelled, got gone. Thanks for the memories Petey. If we see you in October, there's more where that came from, buddy.
• The NBA had it's Draft. FreeDarko, per usual, killed it.
• Speaking of FD, Kaiser and friends have gone similarly all grad-studenty on the Minnesota Twins - it's Tuesday's With Torii.
• For the last sports related tidbit, Fletch is not best pleased (or especially impressed) with the Weekly Standard's anti-soccer missive, which truth be told, sucks enormously - consider the central conceit:

  Soccer is the perfect game for the post-modern world. It's the quintessential expression of the nihilism that prevails in many cultures, which doubtlessly accounts for its wild popularity in Europe. Soccer is truly Seinfeldesque, a game about nothing, sport as sensation.

  More cringe-worthy than an Italian 'earning' a penalty.
• Ezra Klein says not nice things about The West Wing (and here). It hurts because it's a little true.
• And finally in unquestionably good news, SCOTUS reversed then Judge Roberts' ruling in Hamdan v. Rumsfeld. Apparently, laws matter again. Not only laws, but legal and legislative process matter as well:

  nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching. Given this Administration's history, that's not necessarily a bad thing.

  In other words, as I, among others have said all along, if the administration thinks it is too constrained by the Law, as written, go through the proper process and get it changed. All that said, though, at 177 pages of opinion, the decision does raise many of the concerns about the inaccessability of Court pronouncement voiced by Publius (and here). I'm sure to have more to say about this later, but right now, all I can say is 'score one for law and democracy'.

Til You See the Whites of Their Eyes

Is that what they are waiting for? When exactly is it time to start pushing back?

It's becoming harder and harder to identify myself as a Democrat. I no longer know if my preferences for political action match the Party's. No, I'm not hopping on the "party without a message" bandwagon. There is a message, but the evidence is mounting that the establishment Dems have internalized the wrong lessons from the current administration - my distaste Bush and Co.'s problem always been less about the rhetoric than about the actions taken in support of that rhetoric. Or to my view the actions taken inconsistent with the 'message,' as well as the "creating . . . new realities" BS - a different symptom, but the same disease.

But if the proof is in the pudding, what the hell do the Dems really believe? They mouth off from time to time about this or that outrage and promise things, but when it comes time to actually do things, the best they can manage is phones calls from Switzerland. "Wait, wait," they tell us "the time isn't right yet." Why not, Atrios has been posting ponies (for new lows in approval polls) several times a week for a month or more. And still nothing.

First they absolutely cave on the Hayden CIA nomination. As Chef might say, "Why Bad?" Well:

The reason for Democrats not to support the nomination was to avoid (accurate) lead paragraphs like this one, from a Reuters article today reporting on Hayden's confirmation by the full Senate by a vote of 78-15:

The U.S. Senate on Friday confirmed Air Force Gen. Michael Hayden as CIA director in a vote that gave a broad bipartisan endorsement to the architect of President George W. Bush's domestic spying program.

And, by pretty logical extension, tacit support of said program. Certainly gives at least the appearance of "playing politics with national security" (if not substance, which I'm becoming more open to being convinced.) I've always thought that charge was Rovian horseflop, but all but 15 are indeed quacking like ducks.

Then there is the William Jefferson FBI raid 'scandal'. While the Dems' response hasn't been as catastrophic as Hastert, et al's, it has still been half-a-loaf (and I understand where the Congressional Black Caucus is coming from - why is Jefferson's the first office raided? But the answer is not to defend him, but rather to say "please, have a look around at the chambers of Messrs Delay, Ney, etc. while you're in there") and an enormous missed opportunity to both put the 'culture of corroption' in contrast and to expose GOP hypocrisy on the executive power issue.

And the final capitulation was today's confirmation of Brett Kavanaugh for the D.C. Appellate court. Generally speaking, I'm deferential to executive privilege in terms of nominating jurists - that's up front a part of what people are voting for. However, my two conditions are non-extremism and competence. Kavanaugh fails both tests, pretty badly:

Brett Kavanaugh has no judicial experience and, at 38, would be one of the youngest members in the history of the Court of Appeals for the Washington, DC, Circuit--the bench that sent Antonin Scalia and Clarence Thomas directly to the Supreme Court. Kavanaugh is the principal author of Ken Starr's prurient final report to Congress on President Clinton. He drafted the grounds for impeachment and, after leaving the independent counsel's office, went to work at Starr's law firm, Kirkland & Ellis.

Kavanaugh has never participated in a trial. In his Judiciary Committee questionnaire, he was asked to list his ten most significant cases; four of those he cited did not even involve a courtroom appearance, and in two he merely filed a Supreme Court amicus curiae brief for a third party. Most recently, Kavanaugh has worked in the White House selecting Bush's judicial nominees, coordinating the unsuccessful nominations of Estrada and Priscilla Owen.

When he worked for Ken Starr, Kavanaugh spent a lot of his time trying to challenge President Clinton's assertions of executive privilege. But one of his jobs in the Bush White House has been to defend claims of executive privilege. Kavanaugh has blocked a Senate committee from getting to see Enron-related documents, and he wrote the executive order that blocked the release of presidential papers, despite a federal law requiring that they be made public after twelve years.

So, if ever there was a guy to filibuster - even more so than Alito (who, for whatever extremism he embodies in the real of Executive Powers, had impeccable credentials as far as competence and temperment) - this is it. But instead, the predictable people made the predictable noise, probably raised some PAC money, and then when it came time for some action...well stop me if you know how this one ends.

I always get riled up when people start talking about the "party of no" and obstructionism and so on and so forth. Seldom have I actually wished it to be true. Better to say "No!" then to say "No...well, let me think about it. Okay, try not to screw it up too badly. But we'll give you a second chance even if you do."

Events like these make me wonder if it's all just a big Kabuki as more and more power and influence vests with the corporate elite who pull the (purse) strings of both paries. An apropo aside, interesting how a charismatic, unmuzzled rank outsider, Paul Hackett got pushed aside by the Democratic leadership with a variation of the "Angry Left" theme. can't upset the apple cart, now can we?

As John Cole says, when things like this happen

it briefly makes me want to go apologize to all the Naderites for making fun of their paranoid conspiracy theories.

Very briefly. But still.

Are they interested in regaining power to actually govern effectively or more concerned individually in staying "in power?" Feckless, hopeless or completely, hypocritically cynical? You make the call.

Heads I Win...

So, it is probably impossible to have missed it, but John McCain got, erm, what's a good neutral way to put it...a less than universally approving reception at the New School University Commencement this weekend.

I've already said that I rather liked the McCain speech so far as political speechifying long a rhetoric and short on specifics goes (the New School remarks being pretty much the same as those given at Liberty ten days or so ago.) But I wouldn't want it 'performed' at my graduation either, for several reasons. First, I'm not sure I'd have much desire (or, considering the activities of Senior Week, have much capacity) to be lectured - it's safe to say he went slightly beyond gentle admonitions to Not Forget the Sunscreen - on the rules of substantive discourse. Especially by someone who doesn't always deal well with challenges from the young 'uns. See also this rather bizarre Obama-McCain exchange re: lobbying reform. And let's not forget the erm, less-than-civil response of one of his staffers to Ms. Rohe. Not that any of this makes Sen. McCain more or less faithful to the ideals of open debate than the rest of us, but it is worthwhile to mention that he is providing a salutation rather than precisely leading by example on this front.

But, more importantly, it's my graduation, not your campaign whistle-stop. If, as a group, the student body gets together and decides 'hey let's get Candidate X to come give a stump speech,' that's all well and good. Somehow, I don't think that's what happened here.

More disturbing to me is how yet again, this has turned into an opportunity to hector the 'Angry Left' (with even pretty reasonable types getting in on the act) and lecture about civility, et. seq.

I have several responses - the first is, this is rather how it is supposed to work. McCain says...whatever, at Liberty and plans to say the same at NSU. So a student at NSU who has the floor disagrees. Pointed disagreement, but largely respectful. It's called counterspeech, and is how the vaunted 'Marketplace of Ideas' functions. On the merits, I'm not sure Mr. Rohe is taking McCain's remarks in the spirit intended, but she certainly has a plausible reading, and she at the very least cautions against the more dismissive aspects of McCain's call to temper the passions of youth.

Second, this is pretty clearly exactly what McCain wanted - a gentle scolding to Falwell, which somehow demonstrates his independance (while at the same kissing the ring of the religious right) followed by some controversy at a bastion of liberalism - see, the hippie kids hate me. I must be a true conservative. All the while, the Straight-Talk meme survives and thrives. It's good politics, to be sure. But it's also obvious politics, so spare me the crocodile tears, please.

And my final bone of contention is largely this - the people complaining about this 'lack of civility' the loudest have no real standing to do so. Consider Greenwald, comparing the reaction to McCain at a liberal venue and an anti-war speaker at a conservative venue:

So, to re-cap the rules: (1) When a pro-war politician gives a pro-war speech as part of a graduation ceremony, and students in the audience heckle and boo him, that shows how Deranged the Angry Left is -- because they heckled a pro-war speech. (2) When an anti-war politician gives an anti-war speech as part of a graduation ceremony, and students in the audience heckle, walk out and even riot, that also shows how Angry the Left is -- because they "provoked a near riot" by pro-war students.

(Per usual with GG, Read The Whole Thing.) A neat trick - heads I win, tails you're angry. And next week, we learn how to become rubber and turn the opposition to glue...

As a final note, a vigorous side-discussion has arisen amongst various lefty heavyweights as to whether or not this form of dissent was particularly 'effective', whatever that means. Personally, I don't think it did much, on its own, to damage the well-burnished Straight-Talkin Maverick Express image. BUT, that doesn't mean Rohe was wrong for doing what she did (and if the STME is to be, sorry, derailed it might take a sustained critique of this nature to wake the more mainstream opinion-makers up to the notion that McCain is as ruthlessly political as they come, and 'Straight-Talk' is more of a schtick than a reality. [Update 5/23: Ezra appears to agree that the image of McCain as "Once and future Mavericking" politician might need to be killed by a thousand small cuts...thousand "Rohe's in bloom." His puns, thankfully, not mine...])

Nothing To See Here, Cont.

Just a little...creepy?

The FBI acknowledged late Monday that it is increasingly seeking reporters’ phone records in leak investigations.

“It used to be very hard and complicated to do this, but it no longer is in the Bush administration,” said a senior federal official. . .

Officials say the FBI makes extensive use of a new provision of the Patriot Act which allows agents to seek information with what are called National Security Letters (NSL).

The NSLs are a version of an administrative subpoena and are not signed by a judge. Under the law, a phone company receiving a NSL for phone records must provide them and may not divulge to the customer that the records have been given to the government.

What, me worry?

The Carpetbagger connects some dots:

Way back in January, NBC's Andrea Mitchell was interviewing New York Times reporter James Risen, discussing Bush's warrantless-search program, which Risen helped expose. Mitchell, mid-way through the interview, asked, "You don't have any information, for instance, that a very prominent journalist, Christiane Amanpour, might have been eavesdropped upon?"

It seemed like an odd question, the kind she wouldn't have asked unless she had some reason to believe CNN's Amanpour had been spied on. The story got even more intriguing when the MSNBC website edited the transcript of the Mitchell/Risen interview, removing only the exchange about Amanpour, while leaving the rest of the interview intact.

Shrill, conspiracy mongerers, all of us

Once you set aside the law as your guide for action and view the president's will as a source of legitimacy in itself, then everything becomes possible and justifiable.

What could possibly go wrong?

Update: Ok, very creepy.

Nothing to See Here

If you don't have anything to hide...

A senior federal law enforcement official tells ABC News the government is tracking the phone numbers we (Brian Ross and Richard Esposito) call in an effort to root out confidential sources.

"It's time for you to get some new cell phones, quick," the source told us in an in-person conversation.

ABC News does not know how the government determined who we are calling, or whether our phone records were provided to the government as part of the recently-disclosed NSA collection of domestic phone calls.

Other sources have told us that phone calls and contacts by reporters for ABC News, along with the New York Times and the Washington Post, are being examined as part of a widespread CIA leak investigation.

Remember, they hate us for our freedoms. Unfortunately, I'm less and less sure who "they" are.

What To Say?

Moussaoui gets life.

As to whether Moussaoui 'deserves' to die, absent such legalistic shennanigans, who knows? From the testimony I've seen, he seems more of a nutball loser who wants to be a martyr then he does a stone killer, but I'm not a juror. I'm ambivalent to a degree. Or at least I was before the prosecution cocked the case up - my opposition to the death penalty is on grounds of implementation rather than moral grounds. And while we have it, the process has to be pristine. Else the rule of law is as much of a joke as the President believes it is. Such blatant witness tampering should have taken the death penalty off the table, period.

Not to mention the ridiculousity of the appeals to emotion over reason involved in then sentancing phase. What the hell does Rudy Giulliani or the United 93 tape have to do with anything? There's a reason that courts don't allow the prosecution to give closing statements against a backdrop of photos of dead puppies - its inflammatory, and designed to short-circuit rather than aid the jurors in executing their proper function as arbiters of fact. Let me repeat that - arbiters of fact. Not morality, not revenge, not geo-political messaging. Fact.

Much like RIA, I find the blood-urge this verdict has aroused disturing. And it's only going to get worse once the usual suspects get involved the bring lather to mouths so-disposed. That said, a moral certitutde that overcomes facts and established legalities to mete out death to those 'deserving' sounds more like the other side than ours.

As to the argument that not killing him makes us look 'weak,' well, bullshit. First that's an infinitely expandable rationale. I mean, we might as well do our literal worst, as anything else could be perceived as weak. Second, it is not what makes us weak, it is what makes us better. (and not some half-baked exceptionalist codswallop about how it is more pure when we do it because our motives are good) to quote Bill Maher from a few years back:

Rule of law is better than autocracy and theocracy. Equality of the sexes - better. Protection of minorities - better. Free speech - better. Free elections - better.

The downside to rules is you have you follow them, even when you don't want to. Of course, that's the only thing that guarantees you're protection under those laws. Perhaps if people took a moment to reflect, they wouldn't be so quick to call for disregarding founding principles for a moment of revengance on what amounts to a single, insignificant and soon to be forgotten loon.

update: Scott Lemieux

A death penalty case requires a level of professionalism that the state manifestly failed to meet here

and the Talking Dog

And we needn't agonize for years more while a death sentence would have kicked around appellate courts. This chapter is over. And Mr. Moussaoui can spend the rest of his life in prison, alone with his hate, and his madness.

Sum it up well.

Chutzpah (Law Day Edition)

Big brass ones:

Law Day, U.S.A., 2006
A Proclamation by the President of the United States of America

America's legal system is central to protecting the constitutional principles on which our Nation was founded. As we observe Law Day, we celebrate our heritage of freedom, justice, and equality under the law.

This year's Law Day theme, "Liberty Under Law: Separate Branches, Balanced Powers," honors the wisdom of the separation of powers that the Framers of our Constitution established for the Federal Government. Delegates to the Constitutional Convention recognized the risks that accompany the concentration of power and devised a system in which the Federal Government's authorities are divided among three independent branches. James Madison highlighted the importance of our Constitution's separation of powers when he wrote, "the accumulation of all powers, legislative, executive, and judiciary, in the same hands . . . may justly be pronounced the very definition of tyranny."

I guess it could be like "Columbus Day", sort of a 'remember when' historical type thing. Remember the quaint days when laws mattered? Those were the days.

He was against law before he was for it?

The statement represented the latest in a string of high-profile instances in which Bush has cited his constitutional authority to bypass a law.

Or maybe since today is 'round up the dirty immigrant day' it's sort of a one-day, blow-out, everything must go, rule-of-law special.

At some point, I almost expect Attorney General Ike Clanton to step to the podium and declare that "law don't go around here, [liberal] law-dog"

I Don't Even Have A Joke Here

I lie, I have many, many jokes. But none are better than telling it straight:

Lucy’s Love Shop employee Wanda Gillespie said she was flabbergasted that South Carolina’s Legislature is considering outlawing sex toys. But banning the sale of sex toys is actually quite common in some Southern states.

The South Carolina bill, proposed by Republican Rep. Ralph Davenport, would make it a felony to sell devices used primarily for sexual stimulation and allow law enforcement to seize sex toys from raided businesses.

A FELONY. And lest ye think that this is just some ridiculous wingnuttery, Texas, Mississippi and Alabama have already gone this rout. (Query, why is it always Texas, Mississippi and Alabama?)

Now, normally, this is the kind of story which would vie for AHW, but given the subject matter, I'm not sure that would be in good taste. Read the whole thing for some Grade A quality snark.

(Via Hit & Run)

Pretzel Logic and the Figure-Four Leg-Lock

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"Strenous" Advocacy

Somehow, I don't think this is what is meant by going to the matt for your client:

COMES NOW counsel for Defendant, through his [sic] and respectfully requests this [c]ourt to Order a fistfight between [] . . . and [Defendant's counsel]

This was actually filed in court, though was later (wisely?) withdrawn. Link via Anderson with more (and darker) info here.

In other law-type news, I received my license today. It's smaller than I imagined it would be...