Eugene Volokh explains how legislation banning sexual orientation discrimination in Masasachusetts, Vermont, and California was then taken by their highest courts to constitute a new basis for interpreting their state constitutions. The California decision notes:

This state’s current policies and conduct regarding homosexuality recognize that gay individuals are entitled to the same legal rights and the same respect and dignity afforded all other individuals and are protected from discrimination on the basis of their sexual orientation.

The London Times reports, 4/26, on another ethical breakthrough in the home of the cuckoo clock.

Under a new Swiss law enshrining rights for animals, dog owners will require a qualification, anglers will take lessons in compassion and horses will go only in twos.

From guinea-pigs to budgerigars, any animal classified as a “social species” will be a victim of abuse if it does not cohabit, or at least have contact, with others of its own kind.

The new regulation stipulates that aquariums for pet fish should not be transparent on all sides and that owners must make sure that the natural cycle of day and night is maintained in terms of light. Goldfish are considered social animals, or Gruppentiere in German.

The creator of this animal Utopia is the Swiss federal parliament, the Bundesrat, which adopted a law this week extending to four legs the kind of rights usually reserved for two. The law, which comes into force from September 1, is particularly strict over dogs: prospective owners will have to pay for and complete a two-part course — a theory section on the needs and wishes of the animal, and a practice section, where students will be instructed in how to walk their dog and react to various situations that might arise during the process. The details of the courses are yet to be fixed, but they are likely to comprise about five theory lessons and at least five sessions “in the field”.

The law extends to unlikely regions of the animal kingdom.

Anglers will also be required to complete a course on catching fish humanely, with the Government citing studies indicating that fish can suffer too.

The regulations will affect farmers, who will no longer be allowed to tether horses, sheep and goats, nor keep pigs and cows in areas with hard floors.

The legislation even mentions the appropriate keeping of rhinoceroses, although it was not clear immediately how many, if any, were being kept as pets in Switzerland.

Also in Switzerland: Rights for Vegetables

Happy new rights-holder in the Helvetic Republic

Wesley J. Smith, in the Weekly Standard, reports on Europe’s latest ethical breakthrough which extends liberal egalitarianism not merely beyond our own species, but beyond our own Kingdom.

You just knew it was coming: At the request of the Swiss government, an ethics panel has weighed in on the “dignity” of plants and opined that the arbitrary killing of flora is morally wrong. This is no hoax. The concept of what could be called “plant rights” is being seriously debated.

A few years ago the Swiss added to their national constitution a provision requiring “account to be taken of the dignity of creation when handling animals, plants and other organisms.” No one knew exactly what it meant, so they asked the Swiss Federal Ethics Committee on Non-Human Biotechnology to figure it out. The resulting report, “The Dignity of Living Beings with Regard to Plants,” is enough to short circuit the brain.

A “clear majority” of the panel adopted what it called a “biocentric” moral view, meaning that “living organisms should be considered morally for their own sake because they are alive.” Thus, the panel determined that we cannot claim “absolute ownership” over plants and, moreover, that “individual plants have an inherent worth.” This means that “we may not use them just as we please, even if the plant community is not in danger, or if our actions do not endanger the species, or if we are not acting arbitrarily.”

The committee offered this illustration: A farmer mows his field (apparently an acceptable action, perhaps because the hay is intended to feed the farmer’s herd—the report doesn’t say). But then, while walking home, he casually “decapitates” some wildflowers with his scythe. The panel decries this act as immoral, though its members can’t agree why. The report states, opaquely:

At this point it remains unclear whether this action is condemned because it expresses a particular moral stance of the farmer toward other organisms or because something bad is being done to the flowers themselves.

What is clear, however, is that Switzerland’s enshrining of “plant dignity” is a symptom of a cultural disease that has infected Western civilization, causing us to lose the ability to think critically and distinguish serious from frivolous ethical concerns. It also reflects the triumph of a radical anthropomorphism that views elements of the natural world as morally equivalent to people.

Why is this happening? Our accelerating rejection of the Judeo-Christian world view, which upholds the unique dignity and moral worth of human beings, is driving us crazy. Once we knocked our species off its pedestal, it was only logical that we would come to see fauna and flora as entitled to rights.

Complete article.

“Carrot Juice is Murder” 4:29 video

From Glenn Reynolds via Bird Dog.

Another satisfied customer of Shearman & Sterling LLP

International Herald-Tribune:

Al-Arabiya television reports that a former Guantanamo detainee carried out a recent suicide bombing in the northern Iraqi city of Mosul.

A cousin says Abdullah Saleh al-Ajmi, a Kuwaiti released from Guantanamo in 2005, was reported missing two weeks ago and his family learned of his death Thursday through a friend in Iraq.

The cousin, Salem al-Ajmi, told Al-Arabiya on Thursday that the former detainee was behind the latest attack in Mosul, although he did not provide more details.

Three suicide car bombers targeted Iraqi security forces in Mosul on April 26, killing at least seven people.

Mosul is believed to be the last urban stronghold of al-Qaida in Iraq.

His Wikipedia entry lists the US Military’s Administrative Review Board’s Summary of Evidence

A Summary of Evidence memo was prepared for Abdallah Salih Ali Al Ajmi’s Combatant Status Review Tribunal, on (redacted) . The memo listed the following allegations against him:

The detainee retreated to the Tora Bora region of AF and was later captured as he attempted to escape to Pakistan.

On September 2, 2003 (just under two years after 9/11), four of Shearman & Sterling’s finest Thomas Wilner, Neil H. Koslowe, Kristine A. Huskey, and Heather Lamberg Kafele filed a Petition for writ of Certiorari on behalf of Al Ajmi and eleven others.

Mr. Wilner wrote:

All these prisoners have asked for is a fair hearing, one in which they have the chance to learn the charges against them and to rebut the accusations before a neutral decision maker.”

Subsequently, the prisoner denied everything:

Al Ajmi denied participating in Jihad.

Al Ajmi stated he went to Pakistan to learn and memorize the Koran—he never traveled to Afghanistan.

Al Ajmi denied any contact with the Taliban. He acknowledged that he had previously confessed to the allegations he was being asked to comment on—but those were false confessions:

“These statements were all said under pressure and threats. I couldn’t take it. I couldn’t bare [sic] the threats and suffering so I started saying things. When every detainee is captured they tell him that he is either Taliban or Al-Qaida and that is it. I couldn’t bare [sic] the suffering and threatening and the pressure so I had to say I was from Taliban [sic] .”

Al Ajmi denied participating in military operations against the coalition.

Al Ajmi denied being placed in a defensive position by the Taliban:

“I am not an enemy combatant. I said this only because I was under pressure and threats and suffering.”

In response to the allegation that he admitted spending eight months in the front line at the Aiubi Center in Afghanistan, Al Ajmi responded:

“I never entered Afghanistan. I never fought with anyone. My intentions were to stay four months only but under the circumstances I had to stay for eight months. I never fought. My intentions were never to go to Afghanistan my intentions were to go to Pakistan.”
————————————————————————-

Appearing again before an Administrative Review Board, he responded to board member questions:

Al Ajmi My role was [sic] in this Tabligh [sic] to call people to pray, to do good. To let people know that there is an end to this world so they can pray and do well.

Board Member Is it a religious organization?

Al Ajmi Yes it is.

Board Member Al Ajmi I believe that your dedication to your religion is genuine, what direction or path will that dedication take should you be released?

Al Ajmi For peace.

————————————————————————-

Al Ajmi was repatriated to Kuwait November 3, 2005, where he was freed on bail, while he awaited trial. His trial began in March 2006, and he and five others were acquitted on July 22, 2006.

On April 26, in Mosul, seven members of the Iraqi security forces were killed by suicide car bombing, thus proving the excellence of the legal services provided by leading American law firms like Shearman & Sterling.

————————————————————————-

Hat tip to Major DRH.

How the Royal Navy Dealt with the Pirate Blackbeard

The London Times reports on the latest case of Pecksniffery from Britain’s Labour Government: Asylum for Pirates!

The Royal Navy, once the scourge of brigands on the high seas, has been told by the Foreign Office not to detain pirates because doing so may breach their human rights.

Warships patrolling pirate-infested waters, such as those off Somalia, have been warned that there is also a risk that captured pirates could claim asylum in Britain.

The Foreign Office has advised that pirates sent back to Somalia could have their human rights breached because, under Islamic law, they face beheading for murder or having a hand chopped off for theft.

Hat tip to Walter Olson (who reminded me of this one).

Baltimore Sun:

Part 1

Part 2

Sample (from Part 1): On why Due Process is not applicable to war-time military operations:

The strictures that bind the Executive in its role as a magistrate enforcing the civil laws have no place in constraining the President in waging war:

Soldiers regularly in the service have the license of the government to deprive men,the active enemies of the government, of their liberty and lives; their commission so to act is as perfect and legal as that of a judge to adjudicate …. Wars never have been and never can be conducted upon the principle that an army is but a posse comitatis ofa civil magistrate..

Military Commissions, 11 Op.Att’y Gen. 297, 301-02 (1865) (emphasis added); see also The Modoc Indian Prisoners, 14 Op. Att’y Gen. 249, 252 (1873) (“it cannot be pretended that a United States soldier is guilty of murder if he kills a public enemy in battle, which would be the case if the municipal law was in force and, applicable to an· act committed under such circumstances”).. As Attorney General Speed conciuded, the Due Process Clause has no application to the conduct of a military campaign:

That portion of the Constitution which declares that ‘no person shall be deprived… of his life,liberty, or property without due process of law,’ has such direct reference to, and connection with, trials for crime or criminal prosecutions that comment upon it would seem to be unnecessary. Trials for offences against the laws of war are not embraced or intended to be embraced in those provisions…. The argument that flings around offenders against the laws of war these guarantees of the Constitution would convict all the soldiers of our anny of murder; no prisoners could be taken and held; the anny could not move. The absurd consequences that would of necessity flow from .such an argument show that it cannot be the true construction-it cannot be what was intended by the framers of the instrument. One of the prime motives for the Union and a federal government was to confer the powers of war. If· any provisions of the .. Constitution are so in conflict with the power to carry on war as to destroy and make it valueless, then the instrument,instead of being a great and wise one, is a miserable failure “a felo de se.”

I thought it was a fine piece of work, placing the issues in the correct historical perspective, citing proper precedents, and arriving at just and accurate conclusions. The Bush Administration ought to have released it immediately upon its production, and staunchly publicly defended it.

Serena Kozakura, a 38-year-old Japanese Bikini Model, was able to get her conviction for vandalism overturned by persuading the Tokyo High Court her most prominent assets precluded her entry to the scene of the crime.

Mainichi Daily News

In the American Scholar, David Bosco traces the roots of today’s Geneva Conventions to “Lieber’s Code” adopted by the US Army during the American Civil War from a paper on the treatment of insurgents and guerillas by Francis Leiber (1798-1872) a professor at Columbia University.

Unfortunately, the prospects for another “Lieber moment” appear slim. Many American leaders feel estranged from recent developments in international humanitarian and criminal law. The bewildering network of international conventions, courts, and commissions that is so inspiring to activists often appears menacing to those officials responsible for security policy. The ICC’s birth, for example, occasioned far more handwringing than applause in the Pentagon and the State Department. The pride Lieber felt about being part of the international effort at codification has all but dissipated in government circles.

This change of tone and tactics has much to do with the geometry of power. Lieber’s United States was weak, divided, and struggling to assure foreign observers that it could contribute to the civilizing goals of international law. Today’s United States has unparalleled power, and the international law that once signified membership in a rarefied club now threatens to hinder its freedom of action. Lieber also operated in a simpler legal age. His code, we should not forget, was a unilateral declaration; it was not negotiated with the Confederacy, let alone the rest of the world. The prospect today of amending the international rules governing warfare via negotiations with dozens of countries—some of them hostile—is daunting.

Yet the unwillingness to take up the task has had painful consequences. As the United States conducts its global campaign against terrorism, the Bush administration has often preferred to operate in the murky spaces between vague provisions of existing law. Bush officials have sometimes grumbled about the inadequacy of the existing framework but have proffered little to take its place. The effect on American legitimacy and reputation has been grievous; many foreigners, including close allies, have concluded that the world’s superpower now operates outside the law.

Thanks to Karen Myers.

This legal case raises intriguing issues of the meaning of the law in new technological contexts.

I think the judge is probably right.

The federal government is asking a U.S. District Court in Vermont to order a man to type a password that would unlock files on his computer, despite his claim that doing so would constitute self-incrimination.

The case, believed to be the first of its kind to reach this level, raises a uniquely digital-age question about how to balance privacy and civil liberties against the government’s responsibility to protect the public.

The case, which involves suspected possession of child pornography, comes as more Americans turn to encryption to protect the privacy and security of files on their laptops and thumb drives. FBI and Justice Department officials, meanwhile, have said that encryption is allowing terrorists and criminals to communicate their plots covertly.

Criminals and terrorists are using “relatively inexpensive, off-the-shelf encryption products,” said John Miller, the FBI’s assistant director of public affairs. “When the intent . . . is purely to hide evidence of a crime . . . there needs to be a logical and constitutionally sound way for the courts” to allow law enforcement access to the evidence, he said.

On Nov. 29, Magistrate Judge Jerome J. Niedermeier ruled that compelling Sebastien Boucher, a 30-year-old drywall installer who lives in Vermont, to enter his password into his laptop would violate his Fifth Amendment right against self-incrimination. “If Boucher does know the password, he would be faced with the forbidden trilemma: incriminate himself, lie under oath, or find himself in contempt of court,” the judge said.

The government has appealed, and the case is being investigated by a grand jury, said Boucher’s attorney, James Boudreau of Boston. He said it would be “inappropriate” to comment while the case is pending. Justice Department officials also declined to comment.

Mlaw has announced its annual wacky warning label awards:

A label on a small tractor that warns, “Danger: Avoid Death,” has been chosen as the nation’s most obvious warning label in M-LAW’s annual Wacky Warning Label Contest.

The Wacky Warning Label Contest, now in its eleventh year, is conducted by Michigan Lawsuit Abuse Watch, M-LAW, to reveal how lawsuits, and fear of lawsuits, have driven the proliferation of common-sense warnings on U.S. products. ...

second place: “Do not iron while wearing shirt.” ...

third place: a label on a baby-stroller featuring a small storage pouch that warns, “Do not put child in bag.” ...

Honorable mention for a warning label on a letter opener that says: “Caution: Safety goggles recommended.” ...

Another honorable mention for a warning found on Vanishing Fabric Marker which cautions users:
“The Vanishing Fabric Marker should not be used as a writing instrument for signing checks or any legal documents.”

LA Times:

A D.C. ban on home handguns may not be constitutional, the solicitor general tells the Supreme Court, but rights are limited and federal firearm restrictions should be upheld.

In their legal battle over gun ownership and the 2nd Amendment, gun- control advocates never expected to get a boost from the Bush administration.

But that’s just what happened when U.S. Solicitor General Paul D. Clement urged the Supreme Court in a brief Friday to say that gun rights are limited and subject to “reasonable regulation” by the government and that all federal restrictions on firearms should be upheld.

Reasonable regulations include the federal ban on machine guns and other “particularly dangerous types of firearms,” he said in the brief. Moreover, the government forbids gun possession by felons, drug users, “mental defectives” and people subject to restraining orders, he said.

“Given the unquestionable threat to public safety that unrestricted private firearm possession would entail, various categories of firearm-related regulation are permitted by the 2nd Amendment,” Clement said. He filed the brief in a closely watched case involving Washington, D.C.’s ban on keeping handguns at home for self-defense.

The head of a gun-control group said he was pleasantly surprised by the solicitor general’s stand.

Paul Helmke, president of the Brady Campaign to Prevent Handgun Violence, said he saluted the administration for recognizing a need for limits on gun rights.

Disgusting.

The Wall Street Journal notes a certain irony in the characteristic choice of pro bono activity expressive of today’s cultural values at an elite institution like Yale Law School.

John Yoo can be forgiven if he’s having second thoughts about his career choice. A Yale Law School graduate, the Berkeley professor of law went on to serve his country at the Justice Department. Yet last week he was sued by convicted terrorist Jose Padilla and his mother, who are represented by none other than lawyers at Yale. Perhaps if Mr. Yoo had decided to pursue a life of terrorism, he too could be represented by his alma mater.

Padilla is the American citizen who was arrested in 2002, and detained as an “enemy combatant” in a military brig in Charleston, S.C., under suspicion of plotting to set off a radioactive “dirty bomb” in a U.S. city. Padilla fought his detention on Constitutional grounds, losing his case in the Fourth Circuit Court of Appeals.

In January 2006, the feds transferred him out of military custody to be tried in civilian court in Miami. The dirty bomb charge was never filed because the military hadn’t read him his Miranda rights or provided him a lawyer when he was interrogated. A jury nonetheless took a day and half last August to convict him of conspiracy to murder, kidnap and maim people overseas. Padilla could get life in prison.

Mr. Yoo is the former deputy assistant attorney general who wrote memos laying out some of the legal parameters in the war on terror. Those memos most famously pertained to interrogation techniques, some of which were used against such enemy combatants as Padilla. Mr. Yoo long ago returned to Berkeley, and we are happy to say he sometimes writes for us.

Now, years later, Mr. Yoo is being harassed by a lawsuit claiming he is personally liable for writing those memos as a midlevel government official. “Defendant Yoo subjected Mr. Padilla to illegal conditions of confinement and treatment that shocks the conscience in violation of Mr. Padilla’s Fifth Amendment Rights to procedural and substantive due process,” the complaint asserts.

But Padilla’s rights weren’t violated, and certainly not by Mr. Yoo, whose legal arguments at the time were accepted by his superiors, including Attorney General John Ashcroft. The decision to hold Padilla as an enemy combatant was made by President Bush, and defended in court by executive branch lawyers. They won that case in the most senior court in which it was heard, in an opinion written by then-Judge Michael Luttig of the Fourth Circuit. The Bush Administration later transferred Padilla to be tried in the Miami court, and the Supreme Court declined to hear an appeal. Padilla got his day in court—on both Constitutional and criminal grounds—and lost.

What we really have here is less a tort claim than a political stunt intended to intimidate government officials. Nothing in the claim will change Padilla’s future, and the suit asks for only $1 in damages, plus legal fees. Instead, the suit seeks “a judgment declaring that the acts alleged herein are unlawful and violate the Constitution and laws of the United States.” In short, the Yale attorneys are using Padilla as a legal prop in one more attempt to find a judge willing to declare that the Bush Administration’s antiterror policies are illegal. And if it can harass Mr. Yoo with bad publicity and legal costs along the way, so much the better.

This is nasty business and would have damaging consequences if it worked. Government officials have broad legal immunity (save for criminal acts) precisely so they can make decisions without worrying about personal liability. If political appointees can be sued years later for advice that was accepted by their superiors, we will soon have a government run not by elected officials but by tort lawyers and judges.

The antiwar left has failed to overturn U.S. policies in Congress, or by directly challenging the government in court. So its latest tactic is suing third parties, such as the telephone companies that cooperated on al Qaeda wiretaps after 9/11. And now it is suing former government officials, hoping to punish them and deter future appointees from offering any advice that the left dislikes.

Which brings us back to Yale. The real litigant here is the National Litigation Project at the Lowenstein International Human Rights Clinic at Yale Law School. That sounds august, but this is really a leftwing bucket shop using Yale’s sponsorship to achieve antiwar policy goals via lawsuit. We trust the dean of Yale Law, Harold Koh, is proud of suing an alumnus on behalf of a terrorist, and that Yale’s other alumni know how their donations are being used.

Liberal legal blog QuizLaw has pulled slightly ahead of conservative legal blog Overlawyered in the polling for ABA Journal’s best general law blog contest ending today. Evidently, the liberals have been beating the bushes for votes to win this won.

Ruin a trial lawyer’s week, vote for Walter Olson’s Overlawyered for best general legal blog.

Vote here.

BBC:

A rare copy of the Magna Carta has been sold for $21.3m (£10.6m) in an auction at Sotheby’s in New York. The copy dating from 1297, one of only 17 still in existence, was bought by US businessman David Rubenstein.

The auction item had been owned by American billionaire Ross Perot’s Perot Foundation since 1984 and was on view at the National Archives in Washington.

The original Magna Carta was sealed by King John of England in 1215 and enshrined civil rights in English law.

Mr Rubenstein, co-founder of private equity firm The Carlyle Group, wants to put the document back on display at the National Archives.

He said: “I have always believed that the three most important documents were the Constitution, the Declaration of Independence and the Magna Carta.

“This document stands the test of time. There is nothing more important than what it represents.

“I am privileged to be the new owner, but I am only the temporary custodian.

“This is a gift to the American people. It is important to me that it stays in the United States.”

The auctioned copy, the only one in private hands, had been expected to fetch $20m when it went under the hammer.

The Magna Carta was not confirmed as English law until the version sealed by Edward I in 1297.

pdf version of Sotheby’s 56-page catalogue by Nicholas Vincent (Professor of Medieval History at the University of East Anglia in the UK), including introduction, Latin text and English translation, and discussion of related documents and the history of the sold copy.

Earlier posting -12/7

Hat tip to Dominique Poirier.

Roger Kimball describes how Western courts are being successfully used to suppress criticism of Islamic extremism.

Last summer, Cambridge University Press announced that it would pulp all unsold copies of its 2006 book Alms for Jihad: Charity and Terrorism in the Islamic World by Robert O. Collins, a professor emeritus of history at the University of California, and J. Millard Burr, a retired employee of the State Department. Why? Because Khalid bin Mahfouz, a Saudi banker, filed a libel claim to quash the book. According to a story in The Chronicle for Higher Education [reg req’d], Cambridge instantly capitulated, paid “substantial damages” to Mr. Mahfouz, and even went so far as to contact university libraries worldwide to ask them to remove the book from their shelves. They seem to have been successful in their request: I have searched high and low for the book in academic libraries and public libraries and have found that, although it is listed as “not checked out,” it is nowhere to be found.

Suppressing books he doesn’t like seems to be a hobby of Mr. Mahfouz’s. His web site lists successful actions against three other books Reaping the Whirlwind: The Taliban Movement in Afghanistan, Forbidden Truth: U.S.-Taliban Secret Oil Diplomacy and the Failed Hunt for Bin Laden and Funding Evil: How Terrorism Is Financed—and How to Stop It. As Robert Spencer explained in The Washington Times, one notable feature of Mr. Mahfouz’s legal actions is that he has sued various American authors in Britain, where libel laws favor the plaintiff.

Glenn Reynolds offers, in the New York Post, his view of the Supreme Court’s options in the DC Gun Ban case.

It can find that the Second Amendment doesn’t really do anything – that it’s merely a relic of an older era. But that’s a rather dangerous approach: What other parts of the Constitution might be considered relics? And can a judicial approach that leaves a tenth of the Bill of Rights meaningless possibly be sound?

It can find that the Second Amendment doesn’t grant individual rights, but only protects the right of states to arm their militias (or “state armies,” as some gun-control advocates put it). This would make the DC case go away, but at some cost: If states have a constitutional right, as against the federal government, to arm their militias as they see fit, then states that don’t like federal gun-control laws could just enroll every law-abiding citizen in the state militia and authorize those citizens to possess machine guns, tanks and other military gear.

Other consequences of “state armies” seem even more drastic. As Tom Lehrer put it:

We’ll try to stay serene and calm /

When Alabama gets the bomb.

Finally, the court can find – in accordance with the views of law professors as diverse as Harvard’s Laurence Tribe and, well, me – that the Second Amendment supports an individual right on the part of law-abiding citizens to possess firearms of the sort that are in ordinary use. As with other rights, such as freedom of speech, this is subject to reasonable regulation that stops well short of a ban.

This last would be the least radical approach, as it’s consistent with public opinion (most Americans think the Second Amendment gives them a right to own a gun) and with the 40-plus states whose own constitutions already provide for a right to arms. It would probably be the easiest to implement, too, as federal courts could (to a degree at least) look to state law for some guidance on how to implement it.

Finding otherwise would be ticklish for the court in another way. In recent decades, the Supreme Court has found many rights that aren’t specifically spelled out in the Constitution – rights to things like abortion, contraception or sodomy. If the court now follows up by denying a right that does seem to be spelled out, it would put its own legitimacy in the public eye at grave risk.

David Kopel explains that it also violated the 1987 Constitution of the state of “New Columbia,” adopted by the District’s Council to serve in a desired condition of future statehood, which included in its Bill of Rights, a Sec.102 whose text was identical to the federal Second Amendment.

Accordingly, when DC lawyers argue to lower federal courts, and to the U.S. Supreme Court, that the language of the U.S. Second Amendment is not an ordinary individual right, they are making an argument which is decisively contradicted by the very constitution adopted by the government whom the lawyers are representing.

Second, DC’s cert. petition makes the novel argument that the District of Columbia (an entity over which the U.S. Constitution grants Congress plenary power) is somehow already a sovereign state for purposes of the Second Amendment; they claim that the 1886 Supreme Court decision in Presser v. Illinois, which held that under the 14th Amendment Privileges and Immunities clause, none of the Bill of Rights are enforceable against states, immunizes D.C. today from the enforcement of the Second Amendment. Yet the New Columbia Constitution shows that D.C. wants to be a state and wants the exact language of the Second Amendment to be enforceable against D.C.

Alberto Fujimori saved Peru from a bloodthirsty communist terrorist movement, the Shining Path, of which the British editorialist Theodore Dalrymple wrote:

The worst brutality I ever saw was that committed by Sendero Luminoso (Shining Path) in Peru, in the days when it seemed possible that it might come to power. If it had, I think its massacres would have dwarfed those of the Khmer Rouge. As a doctor, I am accustomed to unpleasant sights, but nothing prepared me for what I saw in Ayacucho, where Sendero first developed under the sway of a professor of philosophy, Abimael Guzman.”

So, naturally, we read in today’s New York Times that Alberto Fujimori is being extradited by the socialist government of Chile (a country which was itself saved from Marxist totalitarianism by the late General Augusto Pinochet, who was also internationally hounded by leftist attempts at judicial vengeance) to Peru to stand trial on “human rights and corruption” charges.

Save a country from Marxist totalitarianism’s reign of terror, and you’ll be indicted and internationally extradited to be tried as an enemy of “human rights.”

But, if you take US diplomats hostage, and become head of a major terrorist regime which stones people to death, wages covert war against the United States, and bends every effort at acquiring nuclear weapons, why! then, you get to give a speech at Columbia.

The United States Court of Appeals for the Second Circuit has reversed a district court decision, ruling against Yale Law School in Burt v. Rumsfeld thereby upholding the Solomon Amendment which denies certain federal funding to a college or university if any part of the college or university refuses military recruiters equal access to its students and campuses.

Scott Johnson notes the nobility of the University administration’s commitment to the interests of “the world at large.”

I happened to be at Yale in October 2003 when Navy Judge Advocate General recruiter Brian Whitaker was scheduled to meet with students interested in serving as Navy lawyers. Virtually all Yale law students had signed a petition vowing not to meet with Whitaker or other JAG recruiters. The petition was publicly posted inside the law school as part of a protest display that included black and camouflage wall hangings. The one law student scheduled to meet with Whitaker cancelled the interview.

The ostensible cause of the consternation occasioned by Whitaker’s visit was the military’s compliance with the federal “don’t ask/don’t tell” law on homosexual conduct in the armed forces. Law schools across the country had hindered military recruiters from meeting with law students because the military’s adherence to the “don’t ask/don’t tell” law violates nondiscrimination policies enforced by the schools against on-campus recruiters.

Whitaker’s putative right to visit Yale Law School despite its nondiscrimination policy was attributable solely to the Bush administration’s enforcement of the Solomon Amendment requiring federally-funded universities to open their doors to military recruiters or risk losing federal funds. After 9/11 the Defense Department began to threaten enforcement of the amendment, and law schools began to comply. At Yale, for example, the law school has waived its nondiscrimination policy in order to preserve the university’s annual $350 million in federal funding only since the fall of 2002. Then-law school Dean Anthony Kronman explained:

We would never put at risk the overwhelmingly large financial interests of the University in federal funding. We have a point of principle to defend, but we will not defend this—at the expense of programs vital to the University and the world at large.

Dean Kronman paid a backhanded tribute to the “money talks” impetus behind the Solomon Amendment. The Kronman Doctrine provides: For the good of the world, Yale must retain access to your money.

Yale Daily News

Richard Munday, in the London Times, notes the impact of bien pensant gun control policies on British crime.

We are so self-congratulatory about our officially disarmed society, and so dismissive of colonial rednecks, that we have forgotten that within living memory British citizens could buy any gun – rifle, pistol, or machinegun – without any licence. When Dr Watson walked the streets of London with a revolver in his pocket, he was a perfectly ordinary Victorian or Edwardian. Charlotte Brontë recalled that her curate father fastened his watch and pocketed his pistol every morning when he got dressed; Beatrix Potter remarked on a Yorkshire country hotel where only one of the eight or nine guests was not carrying a revolver; in 1909, policemen in Tottenham borrowed at least four pistols from passers-by (and were joined by other armed citizens) when they set off in pursuit of two anarchists unwise enough to attempt an armed robbery. We now are shocked that so many ordinary people should have been carrying guns in the street; the Edwardians were shocked rather by the idea of an armed robbery.

Hat tip to Frank A. Dobbs.

Bryan Fischer points out one little detail which we in the blogosphere and the MSM both absentmindedly overlooked. And he’s quite right.

As word comes of Sen. Larry Craig’s reconsideration of his announced resignation from the U.S. Senate, it turns out that his best ally in getting rid of his guilty plea for his conduct in a Minneapolis airport restroom may be the United States Constitution.

If the senator had been a better student of the U.S. Constitution, his arrest may never happened at all, and if the U.S. Constitution is followed, as of course it should be, the senator’s arrest and guilty plea will have to be vacated.

This is because the Constitution, in a straightforward and unambiguous manner, states in Article 1, Section 6 that “Senators and Representatives. shall. be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same.” (emphasis mine) The only exceptions are for treason, felony and breach of peace, and the senator, of course, was charged with a misdemeanor.

Since the senator was on his way to Washington, and did in fact cast a vote on the evening of the day on which he was arrested, his arrest and subsequent questioning were, technically speaking, unconstitutional.

If the senator had flashed the Constitution at the officer as soon as the officer flashed his badge at him, the officer would have had no choice but to release the senator to go on his way.

This little detail (which I should have remembered, having discussed it myself in relation to the FBI search of Congressman Jefferson’s office) provides quite a plot twist.

It is difficult to imagine a court seeing any alternative to throwing out that Minneapolis misdemeanor on Constitutional grounds. Senator Craig, therefore, winds up with no conviction, and does not need to resign. The State of Idaho, and the rest of America, gets to retain the services of a senator with a 96 ACU rating. A happy ending for all but the democrats.

David Kurtz, at leftist Talking Points Memo, quotes a commenter who signs himself LS who doesn’t think so, and I agree.

Look at the police report. Did he directly ask a cop for sex? No. Did he expose himself lewdly (as opposed to exposing himself to use the facilities)? No. Did he do anything that was unambiguously sexual? No.

All he did was tap his foot, reach down (possibly to pick up a piece of TP), wiggle his fingers, and put his bag in front of him when he sat down. Oh, and he waited in front of an occupied stall. Even if he did everything the cop said he did, where was the lewd conduct? No actual sex happened. No actual sex was discussed. And if it wasn’t for the sheer embarrassment of the situation, you’d be writing about the overzealous cop who arrested a sitting US Senator for no apparent reason. ...

The issue here is, why is the Minneapolis Airport PD arresting people for such flimsy reasons? Why do judges and prosecutors still accept these cases? Why, in 2007, 43 years after LBJ’s chief of staff, Walter Jenkins, got busted in the men’s room YMCA in DC, have we apparently moved no further in our analysis of these situations?

Where does anyone put his or her suitcase in a public lavatory stall if not in front of the door?

Unless the divider between the stalls featured a hole, I don’t see how any meaningfully lewd act was even possible.

And, like those gay leftwing guys, I too thought the days when cops were busting queers for soliciting sex in public lavatories were ancient history.

Francisco Linares of Rolling Hills Estates, California will be going to jail for six months. His crime? Getting into an argument with the authorities enforcing the Kafka-esque system of construction permits in his California town over a termite-infested fence on city property.

DailyBreeze:

The 51-year-old bought the nearly 1-acre property in the 4600 block of Palos Verdes Drive North in 1998. After tearing down an adobe house on the site and building a 3,000-square-foot French-style home, he began landscaping.

When Linares asked the city to repair the white three-railed fence behind his house, he was told it was on his property and his responsibility. So he replaced the termite-infested planks. Then the city reversed itself and said Linares had illegally built the fence on city property.

In October 2004, the city charged Linares with three misdemeanors: for not taking down the fence, having a retaining wall built higher than a 2-foot restriction and for erecting stone columns without a neighborhood compatibility analysis. Later inspections found eight other violations, including a lack of permits for plumbing and grading.

“He’s had a couple of years to correct the problems,” said Dean Pucci, a Fullerton attorney contracted as the city’s prosecutor. “His options were to obtain final permits or remove all of these structures built without permits.”

Linares lives in the house with his wife and three daughters. He contends that he didn’t remove the structures because he believed the permits would be approved.

However, Pucci said no permits are pending, since Linares failed to resubmit an application that was deemed incomplete.

At the sentencing, Hamar said his client was a good Christian man who has never committed a crime and who worked diligently – 142 hours – to try to resolve the issues with the city.

And the only reason he was not able to complete the stipulations of the plea agreement, he said, was because of the city’s confusing building codes and negligence in rendering a decision on his permit applications.

“We established that he did everything that was humanly possible to comply. And the un-rebutted evidence is that (the city) hasn’t ruled on the permits.”

AP reports, at the victims’ request.

Two 13-year-old boys accused of slapping girls’ bottoms and poking or cupping girls’ breasts at school apologized on Monday as a judge dismissed charges against the two, ending a six-month case that drew national attention. ...

Four girls listed as victims by the prosecutors had asked the judge to drop the charges against Cory Mashburn and Ryan Cornelison.

Yamhill County Judge John Collins did so on Monday, saying it was in the “interest of justice.”

A number of young girls were in the courtroom during the hearing. They included at least some of the four who asked that the charges be dropped, attorneys said.

During the brief hearing, the two boys faced the girls and apologized. ...

The News-Register newspaper of McMinnville reported that a “civil compromise” reached by prosecutors and the defense called for both boys to apologize, to pay each of the four girls $250 and to complete a “boundaries education” program.

Prosecutors and defense attorneys said they could not comment on the newspaper report or release details of the settlement because they are confidential.

Pressure has been building on prosecutors to drop the charges, with critics saying they had blown the matter out of proportion and were overzealous.

The boys, apparently inspired by the movie “Jackass,” were accused in police reports of swatting girls on the bottom in a school corridor, grabbing girls’ breasts on at least two occasions, teaming up to “dry hump” girls, poking girls’ breasts and engaging in what’s known as “party boy” dancing mimicking sexual intercourse.

They were originally charged with felony and misdemeanor sex abuse charges in February. Amid growing public opposition to sending the boys to prison and putting them on a sex offenders’ registry, prosecutors dropped the felony sex abuse charges and added misdemeanor harassment charges, then later dropped all sex abuse charges, leaving only the harassment counts.

The judge dismissed the final charges following negotiations between prosecutors and the defense, and discussions with the four girls about whether they wanted the case dismissed.

Now let’s hope the people out there in Oregon go on to remove that county prosecutor from office and to fire the school officials and cops involved in embarrassing their state, county, and community. Somebody should start a “morons who should never be allowed to hold any office or position of responsibility” list.

Earlier posting.

Inside Higher Ed:

Yale University Press on Wednesday announced that a libel suit against it and one of its authors has been dropped, without any changes being made in the book or any payments to the plaintiffs. The book in question is about Hamas and comes just weeks after Cambridge University Press settled a libel case against it over a book about Islamic terrorism by promising to destroy remaining copies of the book.

The cases are notably different in that Cambridge was sued in Britain (where libel protections for authors and publishers are much weaker than those in the United States) and Yale was able to file motions in California courts, which have stronger libel protections for authors and publishers than much of the United States. But the fact that Yale took a strong legal stance on a book about Hamas is likely to cheer scholars of terrorism, some of whom have been deeply concerned that the Cambridge settlement would prompt other presses to back down if sued.

The book over which Yale was sued is Hamas: Politics, Charity, and Terrorism in the Service of Jihad, by Matthew Levitt, who is director of the Stein Program on Terrorism, Intelligence and Policy at the Washington Institute for Near East Policy. While some observers have distinguished between Hamas’s terrorist activities and the group’s social service activities with Palestinians, Levitt’s argument is that they are in fact intertwined. Yale’s description of the book says: “Levitt demolishes the notion that Hamas’ military, political, and social wings are distinct from one another and catalogues the alarming extent to which the organization’s political and social welfare leaders support terror. He exposes Hamas as a unitary organization committed to a militant Islamist ideology, urges the international community to take heed, and offers well-considered ideas for countering the significant threat Hamas poses.”

The libel suit was filed in California in April by KinderUSA, a nonprofit group that says it raises money for Palestinian children and families, and Laila Al-Marayati, the chair of the group’s board. They sued over two passages and related footnotes in the book about charitable groups in the United States that the author believes are linked to terrorist groups. The U.S. government has investigated some Muslim charities in the United States for such links, but also said that such probes do not suggest that all Muslim charities have such links. The lawsuit specifically objected to this passage: “The formation of KinderUSA highlights an increasingly common trend: banned charities continuing to operate by incorporating under new names in response to designation as terrorist entities or in an effort to evade attention. This trend is also seen with groups raising money for al-Qaeda.”

According to the suit, suggesting that KinderUSA “funds terrorist or illegal organizations” was “false and damaging” and libelous. The suit also alleged that Yale “did not conduct any fact-checking” for the book. KinderUSA asked the court for an injunction on its request that distribution of the book be halted, and also sought $500,000 in damages.

Since the suit was filed, Yale has indicated that it and its author stood behind the book. (Levitt was out of town Wednesday and could not be reached.) But in July, Yale raised the stakes by filing what is known as an “anti-SLAPP suit” motion, seeking to quash the libel suit and to receive legal fees. SLAPP is an acronym for “strategic lawsuit against public participation,” a category of lawsuit viewed as an attempt not to win in court, but to harass a nonprofit group or publication that is raising issues of public concern. The fear of those sued is that groups with more money can tie them up in court in ways that would discourage them from exercising their rights to free speech. Anti-SLAPP statutes, such as the one in California with which Yale responded, are a tool created in some states to counter such suits.

In Yale’s response, it noted that KinderUSA has been reported to be the subject of investigation by federal authorities, that these investigations have received detailed press coverage (prior to the book), and that the views of the book were legitimate and contained no errors of fact that meet the test for libel. Yale noted that the book was subject to peer review and copy editing and that the author verified that he had fact-checked the book. A Yale editor certified that he had no knowledge that anything in the book was incorrect. Yale’s brief called the suit a “classic, meritless challenge to free expression,” and sought the suit’s dismissal and legal fees. While Yale’s motion was not heard in court, the suit was withdrawn shortly after it was filed. ...

Todd Gallinger, a lawyer for KinderUSA, confirmed that the suit had been withdrawn. He said that his clients decided to do so not because of “anything we perceive in weaknesses in the actual case,” but out of a desire to focus the group’s “limited resources” on its mission of helping “Palestinian children in need.” Asked if Yale’s anti-SLAPP motion influenced the decision, Gallinger said that “Yale came at us hard.”

Contemporary American society is afflicted with an epidemic of metastatic growth in the self importance of petty officials at a time in which ordinary common sense has taken a vacation from American life.

One noteworthy result, especially common on America’s liberal coasts, has been the expansion of zero tolerance policies to include ordinary childhood behavior.

The Canadian Mark Steyn is deservedly appalled at a case in Oregon.

Do you know Cory Mashburn and Ryan Cornelison?

If you do, don’t approach them. Call 911 and order up a SWAT team. They’re believed to be in the vicinity of McMinnville, Ore., where they’re a clear and present danger to the community. Mashburn and Cornelison were recently charged with five counts of felony sexual abuse, and District Attorney Bradley Berry has pledged to have them registered for life as sex offenders.

Oh, by the way, the defendants are in the seventh grade.

Messrs Mashburn and Cornelison are pupils at Patton Middle School. They were arrested in February after being observed in the vestibule, swatting girls on the butt. Butt-swatting had apparently become a form of greeting at the school – like “a handshake we do,” as one female student put it. On “Slap Butt Fridays,” boys and girls would hail each other with a cheery application of manual friction to the posterior, akin to a Masonic greeting.

Don’t ask me why. ...

So, upon being caught butt-swatting, Mashburn and Cornelison were called to the principal’s office, where they were questioned for several hours by vice principal Steve Tillery and McMinnville Police officer Marshall Roache. At the end of the afternoon, two boys who’d never been in any kind of trouble before were read their Miranda rights and led off in handcuffs to spend five days in juvenile jail.

Tough, but I guess they learned their lesson, right?

Ha! The state of Oregon was only warming up. After a court appearance in shackles and prison garb, the defendants were charged with multiple counts of felony sexual abuse, banned from school and forbidden any contact with their friends. ...

Having had no previous prolonged exposure to the American justice system, I was interested to see whether the techniques used by U.S. Attorney Patrick Fitzgerald were particular to that case or more widely applied. The Oregon butt psychos make an instructive study. ... once the authorities had decided on their view of the case, other parties were leaned on to fall into line and play the role of “victims.” Of 14 other students interviewed by officer Roache, seven (boys and girls) told him they had engaged in bottom-swatting themselves. Two of the “victims” said they had done it to others. At the initial hearing, a couple of female students spontaneously testified that they’d felt very much pressured to conform during their interviews with the vice principal and the police officer. “Well, when the principal asked me stuff, I kind of felt pressured to answer stuff that I was uncomfortable, and that it hurt, but it really didn’t,” said one girl.

What does hurt? Attracting the attention of the district attorney. The prosecutor’s office reduced the counts from felony sexual assault (with which he’d successfully charged a couple of other middle-school students a year ago) to five misdemeanor counts of sexual abuse and five counts of sexual harassment.

With the boys’ respective parents already in the hole for $10,000 apiece in legal fees, the D.A. used the most powerful weapon in the prosecutor’s armory: Cop a plea, and we’ll make all the pain go away. In this instance, that would mean pleading guilty in return for probation. The terms of probation would prevent Mashburn and Cornelison from contact with younger children, which would mean they couldn’t be left with their younger siblings.

Mashburn and Cornelison do not believe they’ve committed a crime, so they would like to exercise their right to the presumption of innocence – a bedrock principle of the English legal tradition now in great peril from American prosecutorial excess. Instead of letting the state bully them into a grubby, shaming deal, the boys would like it to do what justice systems in civilized societies are required to do: prove the crime. It’s a gamble: Those 10 charges each command a one-year sentence, plus lifelong sex-offender registration.

District Attorney Berry told reporter Susan Goldsmith of the Oregonian that his department “aggressively” pursues sex crimes. “These cases are devastating to children,” he said. “They are life-altering cases.”

No, sir. The only one devastating children’s lives is you. If you “win,” and these “criminals” are convicted, 20, 30 years from now – applying for a job, volunteering for a community program, heading north for a weekend in Vancouver and watching the Customs guard swipe the driver’s license through the computer – there’ll be a blip, something will come up on the screen, and for the umpteenth time two middle-age men will realize they bear a mark that can never be expunged. Because decades ago they patted their pals on the rear in a middle-school corridor.

A world that requires handcuffs and judges and district attorneys for what took place that Friday in February is not just a failed education system but an entire society that’s losing any sense of proportion. Without which, civilized life becomes impossible. So we legalize more and more aspects of life and demand that district attorneys prosecute ever more aggressively what were once routine areas of social interaction.

A society that looses the state to criminalize schoolroom horseplay is guilty not only of punishing children as grown-ups but of the infantilization of the entire citizenry.

AP:

Three men who dug up a young woman’s corpse to have sex with it after seeing her obituary photo cannot be charged with attempted sexual assault because Wisconsin has no law against necrophilia, an appeals court ruled Thursday.

A judge was correct to dismiss the charges against twin brothers Nicholas and Alexander Grunke and Dustin Radke, all 21, because lawmakers never intended to criminalize sex with a corpse, the District 4 Court of Appeals said in a 3-0 ruling.

The three men went to a cemetery in Cassville in southwestern Wisconsin on Sept. 2 to remove the body of Laura Tennessen, 20, who had been killed the week before in a motorcycle crash.

The men used shovels to reach her grave. They abandoned their plan and were eventually arrested after a vehicle drove into the cemetery and reported suspicious behavior, authorities said.

They said the men had seen an obituary of Tennessen with her photo and wanted to dig up her body to have sexual intercourse. ...

The men were charged with attempted third-degree sexual assault and misdemeanor attempted theft charges. But Grant County Circuit Judge George Curry dismissed the sexual assault charges in September, saying no Wisconsin law addressed necrophilia. Prosecutors appealed his ruling.

But there remain some limits to tolerance in Massachusetts.

AP:

No pair of pants is worth $54 million. A judge rejected a lawsuit Monday that sought that amount by taking a dry cleaner’s promise of “Satisfaction Guaranteed” to its most litigious extreme.

Roy L. Pearson became a worldwide symbol of legal abuse by seeking jackpot justice from a simple complaint _ that a neighborhood dry cleaners lost the pants from a suit and tried to give him a pair that were not his.

His claim, reduced from $67 million, was based on a strict interpretation of the city’s consumer protection law which imposes fines of $1,500 per violation as well as damages for inconvenience, mental anguish and attorney’s fees for representing himself.

But District of Columbia Superior Court Judge Judith Bartnoff ruled that the owners of Custom Cleaners did not violate the consumer protection law by failing to live up to Pearson’s expectations of the “Satisfaction Guaranteed” sign once displayed in the store.

“A reasonable consumer would not interpret ‘Satisfaction Guaranteed’ to mean that a merchant is required to satisfy a customer’s unreasonable demands,” the judge wrote.

Bartnoff wrote that Pearson, an administrative law judge, also failed to prove that the pants the dry cleaner tried to return were not the pants he took in.

Bartnoff ordered Pearson to pay clerical court costs of about $1,000 to defendants Soo Chung, Jin Nam Chung and Ki Y. Chung. A motion to recover the Chungs’ tens of thousands of dollars in attorney fees will be considered later.

Earlier post 1

Earlier post 2

Dorothy Rabinowitz, in the Wall Street Journal, compares Duke student prosecutor Nifong with Scooter Libby prosecutor Fitzgerald in A Tale of Two Prosecutors.

It was a noteworthy week on the justice front. Even as Mr. Nifong was facing ethics hearings in North Carolina, Scooter Libby’s attorneys came before trial Judge Reggie Walton, in Washington, to plead for a delay in the beginning of the 30-month sentence the judge had handed down. Special prosecutor Patrick Fitzgerald’s project—the construction of a major case of obstruction of justice out of a perjury rap against Mr. Libby—had come to a satisfactory conclusion.

For Mr. Fitzgerald, whose prosecutorial zeal and moral certitude are in no small way reminiscent of Mr. Nifong’s, the victory was complete with those two final judgments: the severe sentence for Mr. Libby, and the judge’s refusal, last week, to allow its postponement pending appeal. The prosecutor’s argument for a heavy sentence emphasized Mr. Libby’s alleged serious obstruction of justice—a complicated effort, considering that there was no underlying crime, or evidence thereof, and that this case, which had begun in alleged pursuit of the leak of a covert agent’s identity was, as the prosecutor himself would finally contend, not about that leak at all.

Just what serious obstruction of justice Mr. Libby could have been guilty of, then, was, at the least, a heady question, though not one, clearly, that raised any doubts in the judge. Neither did Mr. Fitzgerald’s charge—also in pursuit of a heavy sentence—that the defendant had caused, by his obstruction, no end of trouble and expense in government effort.

The obligation to truth, the prosecutor argued, was of the highest importance, and one in which Mr. Libby had failed by perjuring himself. It would be hard to dispute the first contention. It is no less hard to avoid the memory of Mr. Fitzgerald’s own dubious relation to truth and honesty—as, for example, in his failure to disclose that he had known all along the identity of the person who had leaked the Valerie Plame story. That person, he knew, was Richard Armitage, deputy to Colin Powell. Not only had he concealed this knowledge—in what was, supposedly all that time, a quest to discover the criminals responsible for the leak of a covert agent’s name—he had instructed both Mr. Armitage and his superior, Colin Powell, in whom Mr. Armitage had confided, not to reveal the truth.

Special prosecutor Fitzgerald did, of course, have a duty to keep his investigation secret during grand jury proceedings, according to the rules. He did not have the power to order witnesses at those proceedings not to disclose their testimony or tell what they knew. Instead, Mr. Fitzgerald requested Messrs. Armitage and Powell to keep quiet about the leaker’s identity—a request they understandably treated as an order. Why the prosecutor sought this secrecy can be no mystery—it was the way to keep the grand jury proceedings going, on a fishing expedition, that could yield witnesses who stumbled, or were entrapped, into “obstruction” or “lying” violations. It was its own testament to the nature of this prosecution—and the prosecutor. ...

The prospects for Mr. Libby’s success in an appeal hinge on three points, two concerning the court’s refusal to allow the defense to present certain witnesses. The other potentially powerful issue relates to Mr. Fitzgerald. The Special Prosecutor was given, on his appointment (by his long-time friend, acting Attorney General James Comey) a remarkable freedom from accountability to any higher authority or Justice Department standards. This unique freedom was made explicit in his appointment letter. Such unparalleled lack of control, the appeal will argue, is a violation of the principle of checks and balances.

However it comes out, both the case mounted against Mr. Libby, and the sentence delivered, have plenty of parallels. It is familiar stuff—the fruits of official power run amok in the name of principle and virtue—and it’s an ugly harvest. Mr. Libby is another in the long line of Americans fated to face show trials and absurdly long sentences—the sort invariably required for meritless prosecutions.

There was at least one bright spot in the events of the last week, specifically, Mr. Nifong’s removal from office—a case, at long last, of a prosecutor called to account. It will be some while we can guess, before any such wheels of justice grind their way to the special prosecutors.

How can a prosecutor be permitted to convict a defendant of obstruction of justice without first proving any crime had ever been committed? How can a defendant be possibly be convicted of perjury for allegedly misleading the prosecutor about the identity of Robert Novak’s informant which the prosecutor already knew and did not need to inquire about?

AP reports that Judge Walton has turned down Lewis Libby’s attorneys’ request for a prison delay to allow for appeal.

A federal judge said Thursday he will not delay a 2 1/2-year prison sentence for I. Lewis “Scooter” Libby, a ruling that could send the former White House aide to prison within weeks.

U.S. District Judge Reggie B. Walton’s decision will send Libby’s attorneys rushing to an appeals court to block the sentence and could force President Bush to consider calls from Libby’s supporters to pardon the former aide.

No date was set for Libby to report to prison but it’s expected to be within six to eight weeks. That will be left up to the U.S. Bureau of Prisons, which will also select a facility.

Now we will have a chance to see what George W. Bush is made of. Will he allow a loyal subordinate to serve actual prison time as the result a ridiculous, purely partisan criminalization-of-policy-disputes affair which he himself could have, and should have, prevented ever occurring in the first place?

If he does that, conservative Republicans should withdraw their support from such a president.

Richmond’s 4th Circuit Court of Appeals has ruled that the Bush Administration cannot do what Abraham Lincoln and Franklin Delano Roosevelt (1 and 2 ) did in time of war, that the Bush Administration cannot detain as a military prisoner one Ali Saleh Kahlah al-Marri, an individual arrested in the United States, who had trained at Osama bin Laden’s terrorist training camp in Afghanistan, who met with Khalid Shaykh Muhammed, the mastermind of the September 11th attacks, in the Summer of 2001, and then entered the United States just before September 11th attacks to serve as an Al Qaeda sleeper agent.

The opinion was written by Judge Diana Motz and joined by Judge Roger Gregory, both Clinton appointees.

Al-Marri v. Wright

The ineffable David Broder thinks Scooter Libby’s 30 month sentence may have been the result of an unreasonable prosecutorial vendetta, but he still believes that this kind of injustice is nonetheless salutory in affirming the principle that anyone—at least any Republican—can be a victim of our legal system, and as a warning to inner city youth to avoid public service.

Quick! someone on the left tell me again why Bill Clinton’s perjury should not have served as an occasion for the reaffirmation of the universality of the Rule of Law and as an edifying and instructive example of crime and punishment for the young.

And exactly what lesson does the comparison of Sandy Berger’s wrist slap of a $10,000 fine, increased to $50,000 by the judge + two years probation and 100 hours of community service to Scooter Libby’s $250,000 fine + 30 months teach?

Despite the absence of any underlying crime, Fitzgerald filed charges against Libby for denying to the FBI and the grand jury that he had discussed the Wilson case with reporters. Libby was convicted on the testimony of reporters from NBC, the New York Times and Time magazine—a further provocation to conservatives.

I think they have a point. This whole controversy is a sideshow—engineered partly by the publicity-seeking former ambassador Joseph Wilson and his wife and heightened by the hunger in parts of Washington to “get” Rove for something or other.

Like other special prosecutors before him, Fitzgerald got caught up in the excitement of the case and pursued Libby relentlessly, well beyond the time that was reasonable.

Nonetheless, on the fundamental point, Walton and Fitzgerald have it right. Libby let his loyalty to his boss and to the administration cloud his judgment—and perhaps his memory—in denying that he was part of the effort to discredit the Wilson pair. Lying to a grand jury is serious business, especially when it is done by a person occupying a high government position where the public trust is at stake.

Knowing Judge Walton a bit, I was certain that he would never be party to allowing a big shot to get off more easily than any of the two-bit bad guys who used to show up in his courtroom for sentencing. When he goes to his next school session, he wants to be able to tell those young people that no one is above the law—and mean it. You see, Walton is not just in the business of enforcing the law. He is also committed to steering youths in the right direction. This case will help.

Over at National Review’s The Corner, those jolly little tricoteuses Andrew McCarthy and John Derbyshire were having a pleasant time chatting yesterday as Scooter Libby’s tumbril rolled by.

McCarthy was conflicted because he has friends on both sides (!), and besides he just wasn’t sure that Libby wasn’t really guilty after all. After all, the prosecutor, the New York Times, many of his friends, and a DC jury all said so.

Witnesses have varying recollections, and juries sort it out. The evidence that Libby lied, rather than that he was confused, was compelling.

And class-warrior John Derbyshire just couldn’t see getting bent out of shape over the fate of somebody like Libby.

..compare the likely plights of Libby and the two Border Agents.

When state power rolls over little people like Compean and Ramos, my sympathies are stirred. Libby’s not a little person. He’s rich and terrifically well-connected. He’s not going to get beaten up in jail (as Ramos has been). He’ll have plenty of lucrative work opportunities after release. He will… be all right.

I wish the world were free of wrongs, but it isn’t, and never will be. In the scale of wrongs, and consequent suffering, that I read about every day, this one doesn’t seem worth bothering with.

Meanwhile Susan Estrich, speaking from the left, no less, took a considerably more intellectually and morally responsive position.

I suppose I should be pleased about the tough sentence handed down by Judge Reggie Walton, sentencing the vice president’s former Chief of Staff Scooter Libby to serve 30 months in prison. After all, he’s a Republican, and I’m a Democrat; I’m an opponent of the war, and he worked for one of its architects. I’m certainly no fan of his boss, Dick Cheney, one of the toughest hardball players to occupy the office of vice president. Former Ambassador Joe Wilson was practically gloating this morning when asked to comment on the sentence, declaring it a victory for the rule of law.

Maybe.

Having taught law for more years than I want to count anymore, and criminal law in particular, I know all the arguments about how the rule of law depends on everyone telling the truth, cooperating with criminal investigations, not trying to protect their bosses or those around them. I understand that people in high places have as much responsibility, or more, than the rest of us to follow the law and give their evidence, and that when they don’t, their years of public service are no excuse.

Being chief of staff for the vice president is a bruising job, but also an exciting one. If Scooter Libby hadn’t messed up, he’d be sitting pretty in a high-priced law firm right now, making a fortune not because his legal skills were better than anyone else’s, but because his contacts and connections were. So with the good goes the bad; with the visibility goes the scrutiny; with the fame comes the price. Valerie Plame’s career has been ruined. Why shouldn’t his be?

The only problem here is that there was no underlying crime. The answer to the question Special Prosecutor Patrick Fitzgerald was initially appointed to investigate — had anyone violated the law in disclosing Ms. Plame’s name in their effort to discredit her husband’s criticism of the administration’s war policy — was no. No one violated what we used to call the “Agents Law.” Dick Armitage, the guy who admits he gave out her name in the first place, isn’t facing time; nor are Karl Rove, Dick Cheney, or any of the reporters or news organizations who didn’t hesitate to disclose her identity.

Libby is in trouble not for what he did, but because he wasn’t as careful as the others during his interviews and grand jury testimony.

If he’d just said, “I don’t recall” a hundred times, or even invoked the Fifth (whether properly or not, following the Monica Goodling approach), he wouldn’t be bankrupt, ruined, disgraced and heading to prison.

There is something troubling about prosecutors using perjury and obstruction of justice to turn into criminals people who haven’t committed any other crime. Instead of using the grand jury as a tool for investigating other criminal activity, it becomes the forum for creating criminal conduct. The role of the FBI and federal prosecutors becomes one of creating criminals instead of catching them. Technically, I know, it’s not entrapment, but it’s still different than the usual business of tracking down those who have violated the law and punishing them for their bad acts. The investigation doesn’t solve the crime; it creates it.

This time it was a pro-war Republican caught in the snare, which is why many liberals are cheering. But what goes around comes around, and I wonder if my friends would feel the same way if this technique were used to indict, convict and imprison one of our friends.

Not a good day for the NR punditocracy.
———————————————
Hat tip to David L. Larkin.

The MSM is reporting that Valerie Plame’s status as a covert CIA agent has been confirmed (and the left blogosphere is howling in triumph), but all that has really happened is that Patrick Fitzgerald reiterated in his sentencing brief the same leap of logic he has been using all along to justify his meritless prosecution.

The relevant law is the Intelligence Identities Protection Act of 1982, which makes it a crime intentionally to reveal the identity of a US covert Intelligence agent.

US CODE TITLE 50 > CHAPTER 15 > SUBCHAPTER IV > § 426 defines the term “covert agent:”

4) The term “covert agent” means—
(A) a present or retired officer or employee of an intelligence agency or a present or retired member of the Armed Forces assigned to duty with an intelligence agency—
(i) whose identity as such an officer, employee, or member is classified information, and
(ii) who is serving outside the United States or has within the last five years served outside the United States.

Fitzgerald’s summary says:

While assigned to CPD [Counterproliferation Division], Ms. Wilson engaged in Temporary Duty (TDY) travel overseas on official business. She traveled at least seven times to more than ten countries. When traveling overseas, Ms. Wilson always traveled under a cover identity—sometimes in true name and sometimes in alias—but always using cover—whether official or non-official cover (NOC)—with no ostensible relationship to the CIA.

Fitzgerald is attempting to conflate a business trip abroad with “serving outside the United States,” and conventional casual procedure with “affirmative measures to conceal her intelligence relationship to the United States.”

Victoria Toensing, who as Deputy Assistant Attorney General at the time helped draft the 1982 Act, has testified before Congress that Valerie Plame was not covert under the definition of the Act.

Pouting Spook Larry Johnson inadvertently reveals the pretext being employed by Fitzgerald:

Valerie Plame was undercover until the day she was identified in Robert Novak’s column. I entered on duty with Valerie in September of 1985. Every single member of our class—which was comprised of Case Officers, Analysts, Scientists, and Admin folks—were undercover.

Everybody employed by the CIA above the rank of janitor is supposed to make modest pro forma efforts to avoid disclosing the identity of his employer and the nature of his employment. That does not make every CIA-employed “Analyst, Scientist, or Administrator” a “covert agent” under the definition of the Intelligence Identities Protection Act. Nor should routine non-disclosure or pro forma use of cover, on the level of James Bond’s supposed employment at “Universal Export,” be considered to rise to the level of the “affirmative measures” meantioned in the Act.

Patrick Fitzgerald is employing a crucial leap of interpretation to get to where he wants to go, and he wants to go there for partisan political advantage, not for reasons having anything to do with National Security or Justice.

The Telegraph reports:

Breaking into the exclusive Highgate property market in north London is notoriously difficult. But yesterday a homeless man apparently did the almost-impossible, managing to secure his very own slice of prime real estate on Hampstead Heath for free.

Harry Hallowes, 70, says he has been given the title deeds to a piece of land on the edge of the heath on which he has been squatting for more than two decades. The 65ft by 131ft plot has been estimated to be worth up to £2 million.

The Land Registry’s decision marks the end of a three-year dispute between Mr Hallowes and the property developer Dwyer.

The developers originally wanted to build on the land, which forms part of the grounds of Althone House. In 2005 Dwyer, which is turning a plot of land including a former nursing home into 25 luxury flats, failed in an attempt to evict Mr Hallowes.

At a court hearing over the eviction, lawyers presented evidence that Mr Hallowes had lived on the plot for 18 years. This later became the basis for his title claim for the land. Possession of the title deeds means the plot could now be sold or passed on.

Adverse possession is a standard principle of British and American Common Law.

In 1998, Congress (influenced by intense lobbying by copyright holders) extended the duration of copyrights for an additional 20 years, from the life of the author plus 50 years, or 75 years in cases of corporate authorship, to the author’s life plus 70 years or 95 years respectively, but Mark Helprin (a novelist) thinks copyright protection should last forever.

No good case exists for the inequality of real and intellectual property, because no good case can exist for treating with special disfavor the work of the spirit and the mind.

Well, if Mr. Helprin cared about the character of his own descendants, he might reflect that it could very well be better for them to live in the real world and make their own way, rather than exist as idle Trustafarians, trying to justify their futile existences via the desultory support of supposedly enlightened causes.

AP reports:

Authorities dropped charges Friday against an aide to Virginia Sen. Jim Webb who carried a loaded gun into the U.S. Capitol complex.

“After reviewing and analyzing all of the evidence in the case, we do not believe the essential elements of the crime of carrying a pistol without a license can be proved beyond a reasonable doubt,” U.S. Attorney Jeff Taylor, top prosecutor in the District of Columbia, said in a short statement.

Well and good, readers probably think.

But Mr. Taylor and the Associated Press are overlooking the fact the Second Circuit struck down the District’s gun law in Parker v. District of Columbia on March 9th. Mr. Thompson was arrested on March 26th.

Charges have been dropped, but you can rest assured that thousands of dollars in defense legal fees were accrued. (Let’s hope Jim Webb is paying them.)

And a record of Mr. Thompson’s arrest and his fingerprints have been retained by the FBI.

Original report

Follow up

Internetnews:

Some of the worst spammers in the United States could be in for a rude surprise shortly, as Unspam Technologies has taken the first steps in tracking them down, with help from the ISPs.

The company filed a lawsuit yesterday in the Eastern District of Virginia seeking the identities of spammers under the U.S. CAN-SPAM Act and the state of Virginia’s own anti-spam statute. The suit seeks damages that could potentially reach $1 billion, but Unspam said it would be happy with driving spammers out of business.

The idea of suing spammers may seem as ludicrous as suing God; where do you deliver the subpoena? But Jon Praed, the lawyer on the case, founding partner of the Internet Law Group and one of the top lawyers involved in spam suits, said not to think that way.

“We cannot fight them by treating them as if they are everywhere, because it lulls us into a false acceptance of the inevitability of the outcome,” he told internetnews.com. “If we focus on what they are using or make it hard to use those tools, we’re going to beat them. We are not fighting Acts of God, we are fighting criminal acts.”

Unspam’s secret for dealing with these non-deities? Project Honey Pot, a trap for spammers. Spammers use crawlers to crawl through every page on a Website for valid e-mail addresses, and then add these addresses to their database.

Any Website operator can download the Honey Pot software and it will set up a dummy page that gives a fake, unique e-mail address to the crawlers. When spam comes in to that unique address, it’s a double gotcha; both the IP address of the crawler that harvested the fake e-mail address is known, and Honey Pot also scores the IP address of the sender of the spam.

As a result, Honey Pot has collected 2.5 million IP addresses of spam senders and 15,000 IP addresses of crawlers. Now comes the one-two punch. The company has released what it calls the http:BL, a blacklist of the 2.5 million compromised computers.

Most spam today is sent out by a compromised computer with a zombie, or bot (define) installed on the computer. The users of these computers almost always have no idea they are compromised, because they have no antivirus software installed to stop such infection in the first place.

Well, with the http:BL they will find out. The blacklist can be installed on any Apache-based Website, so when one of the 2.5 million IP address with a botnet running on them visits that site, the site can deny them access to the home page and inform the user of their infection.

Punch number two is for the 15,000 IP addresses of crawlers. Those are the people collecting and selling e-mail addresses. Harvesting is a slow process and botnets are expensive to rent by the hour, so the spammers do it themselves, on their own computers with a constant connection, since one is needed.

Gotcha, said Matthew Prince, CEO of Unspam and Project Honey Pot. “Those will be some of the first targets from this litigation,” he said. “We’ve identified very specific targets. In some cases have a good sense of who these people are. Then we can bring the full weight of the law down on these people who are breaking it.”

The worst offender for spam crawlers is the U.S., with 22.7 percent of harvesting coming from U.S. IP addresses. Romania is second and Japan is third, both with less than ten percent of the harvesting addresses.

The lawsuit grants subpoena power, which the ISPs wanted. ...

Russia has the bad reputation for spam and viruses, but Prince said there is a delineation between spam of U.S. and foreign origin. “I would say that in terms of selling physical products, anything that has to be shipped, they tend to be here. Mortgage types are here too. The ones in other countries are committing straight fraud, like the Nigerian princes or fake bank account,” he said. ...

Praed doesn’t expect to squash all spammers but he does hope to make life rotten for a lot of them. “We don’t have to catch them. We just have to make it so costly for them that they move on,” he said. “We know we have limited resources and it’s one lawsuit, but we realize acts of spam are not like Acts of God. By targeting the case on the worst of the worst we think we can have an impact.”

Complete article

The Washington Post reports a tale of spectacularly excessive litigation.

When the neighborhood dry cleaner misplaced Roy Pearson’s pants, he took action. He complained. He demanded compensation. And then he sued. Man, did he sue.

Two years, thousands of pages of legal documents and many hundreds of hours of investigative work later, Pearson is seeking to make Custom Cleaners pay—would you believe more than the payroll of the entire Washington Nationals roster?

He says he deserves millions for the damages he suffered by not getting his pants back, for his litigation costs, for “mental suffering, inconvenience and discomfort,” for the value of the time he has spent on the lawsuit, for leasing a car every weekend for 10 years and for a replacement suit, according to court papers.

Pearson is demanding $65,462,500. The original alteration work on the pants cost $10.50.

By the way, Pearson is a lawyer. Okay, you probably figured that. But get this: He’s a judge, too—an administrative law judge for the District of Columbia.

I’m telling you, they need to start selling tickets down at the courthouse.

Oh, where to start: How about the car? Why should Ki, Jin and Soo Chung—the family that owns Custom Cleaners on Bladensburg Road NE in the District’s Fort Lincoln section—pay Pearson $15,000 so he can rent a car every weekend for 10 years?

The plaintiff, who says he has devoted more than 1,000 hours to represent himself in this battle, says that as a result of poor service at Custom, he must find another cleaner. And because Pearson does not own a car, he says he will have to rent one to get his clothes taken care of.

And somebody made this character a judge!

Read the whole thing.

Urban prosecutors and police departments ignoring state law in Texas has led to the unlikely alliance of the NRA and ACLU, reports the New York Times.

Like many other states, Texas bans the carrying of concealed handguns without a license. Obtaining a license requires a background check and a gun-safety course. By long-established law, however, Texans can cite “traveling” as a defense to possession of an unlicensed handgun. But while traveling was widely understood to denote a journey of some distance, it was never defined. (Travel on planes and other interstate conveyances banning weapons falls under federal jurisdiction.)

In 1997, the State Legislature tried to clarify the law by removing unlicensed carrying of a weapon as an offense while traveling. But it left unresolved whether traveling required making an overnight stop, crossing county lines or other conditions.

In 2005, lawmakers sought to remove the ambiguity by declaring that anyone in a private vehicle who was not engaged in criminal activity or otherwise barred from possessing a firearm was “presumed to be traveling,” and thus exempt from restrictions on concealed handguns.

Terry Keel, a former member of the Texas House of Representatives who sponsored the bill, explained its intent in a statement entered into the record: “In plain terms, a law-abiding person should not fear arrest if they are transporting a concealed pistol in a motor vehicle.”

But the measure hardly ended the controversy.

Almost as soon as it became law in September 2005, the Texas District and County Attorneys Association signaled its displeasure by advising members that the act did not rule out arrests of otherwise law-abiding drivers carrying weapons. The association said it was up to the courts to determine whether a person was, in fact, traveling. “Therefore,” it declared, “officers are still acting within their lawful discretion if they arrest a person who might qualify for the traveling defense or the new traveling presumption.”

Or, as Charles A. Rosenthal Jr., the district attorney of Harris County, which includes Houston, argued, “The presumption of innocence does not make the person innocent.”

If this link causes you to go past the actual web-site to an annoying smiley-face page, just hit back, and you return quickly to the desired location.

There are a lot of dumb laws out there.

Lawrence J. McQuillan and Hovannes Abramyan have done a study of the economic impact of American Tort litigation. Their conclusions are more than a little appalling.

Economists have long understood that America’s tort system acts as a serious drag on our nation’s economy. Although many excellent studies have been conducted, no single work has fully captured the true total costs, both static and dynamic, of excessive litigation.

The good news: We now have some reliable figures. The bad news: The costs are far higher than anyone imagined.

Based on our estimates, and applying the best available scholarly research, we believe America’s tort system imposes a total cost on the U.S. economy of $865 billion per year. This constitutes an annual “tort tax” of $9,827 on a family of four. It is equivalent to the total annual output of all six New England states, or the yearly sales of the entire U.S. restaurant industry.

Anything useful you could do with an extra $9827 a year?

Read the whole thing.

Gary Shapiro, in the New York Sun, discusses Barack Obama’s collaboration with Harvard Law School’s ultra-liberal Constitutional Law Professor Larry Tribe in the production of a 1989 Law Review article employing scientific metaphors to justify bizarre and over-reaching interpretations of the Constitution.

You thought liberal Supreme Court justices’ interpretations of the Constitution were bad enough now? Just imagine new Obama-appointed justices following Larry Tribe’s suggestion of applying a little Heisenberg to Constitutional jurisprudence.

Is Barack Obama a space cadet? The man who would become senator of Illinois and a top Democratic presidential contender was credited for editorial or research assistance in a page-one footnote of what may be the zaniest-titled article ever published by the Harvard Law Review: “The Curvature of Constitutional Space: What Lawyers Can Learn From Modern Physics,” authored by noted legal scholar Laurence Tribe.

The 39-page densely argued treatise — think “The Paper Chase” meets “Star Trek” — argues that constitutional jurisprudence should be updated in a similar way that Einstein’s theory of relativity replaced Newtonian mechanics, a view that would release judges from the original intent of the Founders of America. Published in 1989, with help of the much younger and politically greener Mr. Obama (a few others are also thanked in that footnote), the article is sprawling with references to cultural anthropologist Clifford Geertz and physicists Stephen Hawking and Werner Heisenberg.

In 1990 Mr. Obama became the first black president of the Harvard Law Review. The long-ago article could indicate his views on the Constitution, which, if he is elected, could come into play in such matters as his choice of nominees to the Supreme Court. ...

Mr. Tribe employs this analogy to argue for a more expansive view of what constitutes governmental action. He examines legal cases involving child abuse, suburban white flight from suburbs, and abortion, asking what the state’s role was in shaping the legal environment.

A Yale-trained lawyer who earned his Ph.D. in mathematics at New York University, Elisha Kobre, said Mr. Tribe is “making a reasonable — but debatable — legal point that courts should intervene not only when government directly infringes individual rights but also when people are adversely affected by existing social structures that he asserts have been created or perpetuated by the government.” Mr. Kobre added that while Mr. Tribe’s physics analogy did not particularly add to or enlighten a point that others have made before, it was nice to see a lawyer managing to incorporate ideas of science into legal theory. ...

If Mr. Obama captures the White House, he might not curve space but may settle for setting aside a high-altitude seat on the Supreme Court for his former teacher, Mr. Tribe, who is the Carl M. Loeb University Professor at Harvard.

Whether James Madison and the other Founders would have had such a benign view of Mr. Tribe’s theory is another matter, though.

Read the whole thing.

Michael Barone wrote a column in US News, contrasting the seriousness of the offenses committed by Sandy Berger with the discrepancy between Lewis Libby’s memory and those of Tim Russert and Matt Cooper and noting the irony of Libby facing far more serious penalties than Berger received.

Sandy Berger responded with this defensive email.

“Michael: I screwed up. There was nothing sinister about it. I was under serious pressure to digest the entire Clinton record on terrorism for eight years so that we could testify fully to the 9-11 commission. I spent several arduous days at the Archives looking through the files. This document was interesting to me because I had commissioned it in 2000–a look at what we learned from the millennium terror threats that were avoided. Tired, stressed, I made a very stupid decision–to take the documents home with me so that I could review them in more detail and so that I could compare the apparent differences among versions. Since this document had been widely circulated to all the relevant agencies (State, Defense, CIA, Justice, etc.), I felt certain the commission would get it from one or more of these agencies.

There were no handwritten markings on the documents (which were copies) or anything else unusual. I took no other documents–originals or copies–besides the ones specified in my plea agreement.

The DOJ has stated unequivocally that there is no evidence that I took other documents and that the commission received everything.

That’s the long and short of it. I made a very stupid mistake. I deeply regret it. Top-level career Justice Department prosecutors investigated it aggressively for two years. We reached a plea agreement that they believed was fair. That was two years ago. Now I wish this thing would go away.

Best, Sandy”

John Hinderaker expresses some very appropriate skepticism of Berger’s veracity.

I don’t buy it. Berger didn’t make an impulsive decision—”tired, stressed”—to smuggle documents out of the National Archives. He stole documents on multiple occasions. On one occasion, he sneaked them out of the archives, went to a nearby construction site and hid the documents under a construction trailer, so he could come back later and pick them up. I simply don’t believe that Berger engaged in this kind of cloak and dagger behavior just because he found the documents “interesting” and wanted to study them at home.

Most of all, I don’t see how Berger’s explanation can be reconciled with his own admission that he didn’t just take the documents home; he cut some of them to pieces with a pair of scissors. Why did he destroy the documents if he wasn’t trying to prevent them from coming to light?

Nor am I impressed by Berger’s claim that the Department of Justice “has stated unequivocally that there is no evidence that I took other documents and that the commission received everything.” There is no evidence as to what documents Berger took because the Archives staff let him walk off with them and didn’t try to monitor what he was doing until it was too late. That being the case, the only evidence as to what documents were taken is Berger’s own confession.

Judge Laurence H. Silberman wrote the opinion striking down the District of Columbia’s ban on possession of operable handguns in private homes. The District law required privately owned pistols to be kept unloaded and disassembled or rendered inoperable by a trigger lock.

How Appealing reports and has links.

Investors Business Daily condemns the House democrat leadership’s “slow bleed” strategy

As chairman of the House panel that oversees military spending, (John) Murtha plans to advance legislation next month attaching strings to the additional war funds Bush requested on Feb. 5.

Murtha plans to stop the Iraq War by placing four conditions on combat funds through Sept. 30, the end of the fiscal year. The Pentagon would have to certify that troops being sent to Iraq are “fully combat ready” with training and equipment, troops must have at least one year at home between combat deployments, combat deployments cannot be longer than a year, and extending tours of duty would be prohibited…

It’s not that the Democrats think we’re losing or that the war is unwinnable. They simply don’t want to win it. As House Minority Leader John Boehner said of Murtha’s proposals: “While American troops are fighting radical Islamic terrorists thousands of miles away, it is unthinkable that the United States Congress would move to discredit their mission, cut off their reinforcements and deny them the resources they need to succeed and return home safely.”..

Neville Chamberlain’s naivete may have helped bring on World War II, but at least he supported his country when war began. Norway’s Vidkun Quisling and France’s Vichy government under Marshal Petain may have collaborated with the Nazi enemy, but after their countries’ defeats, not before.

We’d have to go back to Benedict Arnold to find Americans as eager as Murtha & Co. to see an American defeat on the battlefield.

Read the whole thing.

————————————

But Robert Farley argues that these kinds of accusations have serious implications.

IBD seems to be claiming that the vast bulk of the Democratic Party (and no small part of the Republican) are the equivalent of the most notable traitor in American history, a man who undoubtedly would have been hanged or shot if he had been caught. The editorial has been linked to approvingly by Captain’s Quarters, Powerline (sic), Instapundit, and the Gateway Pundit. Reynolds further notes:

To some people, Vietnam wasn’t a defeat, but a victory. To them, the right side won. And lost. Naturally, they’re happy to repeat the experience.

Undoubtedly, the Perfesser and his ilk will claim that they aren’t actually calling for treason trials and executions of members of the Democratic Party. But why not? If Democrats really are the equivalent of Benedict Arnold, and if opposition to the war and the Surge is traitorous, then why shouldn’t we be tried and executed, or at least imprisoned? The rhetoric leads only one place. Either Glenn Reynolds believes that Democrats are traitors, or he doesn’t. If he doesn’t, he should tell us why, and should explain why he so often suggests that Democrats have committed treasonable offenses. If he does believe that Democrats are traitors, then he ought to step up and start calling for arrests. Treason is a capital offense; there’s not really a middle ground. We’re guilty, or we’re not.

Sadly, but perhaps fortunately, Reynolds et al are too gutless to pursue the logical consequence of their accusation. So far, anyway..

The problem is that the current administration has tried to make war while neglecting this particular line of logic. America’s Vietnam experience demonstrated the capacity of the radical peace movement to use its relations with the academic clerisy and the media to turn treason and defeatism into a de rigeur fashion statement of membership in the American elite.

During WWI and WII, the wars which America won during the last century, preaching defeatism and rendering aid and comfort to the enemy were simply not tolerated.

The US Government has the obligation to the members of its armed forces whom it sends into harm’s way to prevent their service and sacrifices being made futile by the domestic demoralization of the American public by a defeatist minority of radical leftists and pacifists.

The entire right-side of the Blogosphere is howling for the blood of Washington Post National and Homeland Security columnist William M. Arkin, who recently vented his irritation at soldiers serving in Iraq who have the temerity to criticize the people Arkin regards as the real heroes and defenders of American freedom: the anti-war opposition operating at home in the United States.

Some highlights from Arkin.

The Troops Also Need to Support the American People…

I’m all for everyone expressing their opinion, even those who wear the uniform of the United States Army. But I also hope that military commanders took the soldiers aside after the story and explained to them why it wasn’t for them to disapprove of the American people…

These soldiers should be grateful that the American public, which by all polls overwhelmingly disapproves of the Iraq war and the President’s handling of it, do still offer their support to them, and their respect.

Through every Abu Ghraib and Haditha, through every rape and murder, the American public has indulged those in uniform, accepting that the incidents were the product of bad apples or even of some administration or command order.

Sure it is the junior enlisted men who go to jail, but even at anti-war protests, the focus is firmly on the White House and the policy. We just don’t see very man “baby killer” epithets being thrown around these days, no one in uniform is being spit upon.

So, we pay the soldiers a decent wage, take care of their families, provide them with housing and medical care and vast social support systems and ship obscene amenities into the war zone for them, we support them in every possible way, and their attitude is that we should in addition roll over and play dead, defer to the military and the generals and let them fight their war, and give up our rights and responsibilities to speak up because they are above society?

I can imagine some post-9/11 moment, when the American people say enough already with the wars against terrorism and those in the national security establishment feel these same frustrations. In my little parable, those in leadership positions shake their heads that the people don’t get it, that they don’t understand that the threat from terrorism, while difficult to defeat, demands commitment and sacrifice and is very real because it is so shadowy, that the very survival of the United States is at stake. Those Hoover’s and Nixon’s will use these kids in uniform as their soldiers. If I weren’t the United States, I’d say the story end with a military coup where those in the know, and those with fire in their bellies, save the nation from the people.

But it is the United States and instead this NBC report is just an ugly reminder of the price we pay for a mercenary – oops sorry, volunteer – force that thinks it is doing the dirty work.

The notion of dirty work is that, like laundry, it is something that has to be done but no one else wants to do it. But Iraq is not dirty work: it is not some necessary endeavor; the people just don’t believe that anymore.

I’ll accept that the soldiers, in order to soldier on, have to believe that they are manning the parapet, and that’s where their frustrations come in. I’ll accept as well that they are young and naïve and are frustrated with their own lack of progress and the never changing situation in Iraq. Cut off from society and constantly told that everyone supports them, no wonder the debate back home confuses them.

America needs to ponder what it is we really owe those in uniform. I don’t believe America needs a draft though I imagine we’d be having a different discussion if we had one.

Mr. Arkin, recognizably a radical leftist extremist, is mistaken in supposing that he and his fringe group, deviant, and perennially protesting ilk constitute the American people or have been authorized in any way shape or form to speak on their behalf.

Go walk into a public place frequented by normal American people, Mr. Arkin, like a bar, and repeat what you wrote for the Post, and you discover very quickly what the American people think of you and your kind. Be sure that your health and dental insurance are in order first would be my advice.
——————————————————-
Who is Arkin?

Hugh Hewitt explains:

Arkin is a veteran of four years in the Army (he served from 1974 to 1978) and many of his bylines from the past two decades described him as a “military intelligence analyst” during his service (his rank and units are not readily apparent). He received his BS from the University of Maryland.

His employment since leaving the service is easier to trace. Arkin cut his teeth with the lefty Institute for Policy Studies, and went from there to positions with Greenpeace, the Natural Resources Defense Council, and Human Rights Watch. He has been a regular columnist for the Bulletin of the Atomic Scientists. In recent years he has taken more mainstream work as a senior fellow at the School for Advanced International Studies at Johns Hopkins University (he appears to do most of his writing not from the SAIS campus, but from his home in Vermont).

He is also the regular military affairs columnist for the Los Angeles Times.

Having become, not altogether surprisingly, after advising US troops serving overseas that they should be grateful that no one is spitting on them, the object of a good deal of criticism, Mr. Arkin today responds with self righteous indignation.

Well, one thing’s abundantly clear about who will actually defend our rights to say what we believe: It isn’t the hundreds who have written me saying they are soldiers or veterans or war supporters or real Americans—who also advise me to move to another country, to get f@##d, or to die a painful, violent death.

Move to another country, get f@##d, and so on, Mr. Arkin.

Glenn Reynolds makes the communitarian case for compulsory arms bearing. Whatever will the editors of Tikkun say?

Ruth Wisse, in the Wall Street Journal, comments on the contemptible exclusion of ROTC programs at the most elite American universities.

Recent surveys confirm that university faculties have been tilting steadily leftward, but I think it is wrong to assume they have been tilting toward “liberalism” as is commonly assumed. Liberalism worthy of the name emphasizes freedom of the individual, democracy and the rule of law. Liberalism is prepared to fight for those freedoms through constitutional participatory government, and to protect those freedoms, in battle if necessary. What we see on the American campus is not liberalism, but a gutted and gutless “gliberalism,” that leaves to others the responsibility for governance, and arrogates to itself the right to criticize. It accepts money from the public purse without assuming reciprocal duties for the public good. Instead of debating public policy in the public arena, faculty says, “I quit,” but then continues to draw benefits from the system it will not protect.

Victor Davis Hanson comments on Patrick Fitzgerald’s prosecutorial overreach in the Libby case.

I doubt the average American is in much danger from some out-of-control government sleuth sending him to the Gulag, or putting her in a camp, or even reading his email.

But there are things to be afraid of—out-of-control prosecutors who can trample all over jurisprudence if their cause is considered to be progressive and politically-correct. The prosecution of Scooter Libby is a travesty. If the federal prosecutor knew he had to select a jury in Omaha rather than Washington DC, he would never bring this non-case to trial.

There are at least four considerations that are troubling about Mr. Fitzgerald’s case: (1) We know that Ms. Plame was not, as originally alleged, a covert, or undercover CIA agent at the time in question, and thus had no secret identity to be exposed; (2) we know the source that leaked the nature of her employment—and it was not Mr. Libby, at least initially and most prominently, but Mr. Armitage who apparently is not to be charged with anything (why not?); (3) we know that Mr. Wilson, as Christopher Hitchens has pointed out, lied about a great deal in connection with his trip to Niger and so far has escaped most accountability and probably will thereby seek to avoid testifying at the trial he once so eagerly demanded; (4) Mr. Libby is therefore being charged with obstruction of justice and perjury—not the original mandate of the prosecutor. Why not shut down the inquiry since it has not fulfilled its mission; then turn over the transcripts and testimony to local prosecutors to see if any feel there is a perjury case to be made? From my limited experience with trials (my late mother was a California Superior and Appellate Court Judge), perjury seems a rare charge, and most DAs do not peruse the testimony of witnesses to find contradictions to establish grounds for such indictments.