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.

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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.
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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.

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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.

The Morning Call reports:

Five Bethlehem (Pennsylvania) police officers used excessive force to restrain a man high on crack cocaine who killed a drug dealer with a samurai sword and set him on fire, a federal jury ruled Tuesday night.

The verdict, after four hours of deliberation, stunned officers Matthew Crenko, Matthew Lazur, David Strawn, William Kissner and Louis Csaszar, and surprised Senior U.S. District Judge John P. Fullam, who called it ‘’remarkable.’’

Sonny Thomas claimed he didn’t resist police efforts to handcuff him, but jurors found the officers violated his constitutional rights when they punched and kicked him that night in January 2005.

Thomas, 50, who testified he suffered bruises and recurring migraine headaches as a result of the violent scuffle, sought $35 million in damages but was awarded $1.

The jury found that five other officers named in the suit — Jeremy Alleshouse, John Iatarola, Mark DiLuzio, Moses Miller and Ronald Brazinski — did not use aggressive force or violate Thomas’ Fourth, Fifth and 15th Amendment rights of due process and freedom from unreasonable searches and seizures.

It’s impossible to sympathize with the defendant’s claims of “bruises and recurring migraine headaches.” And the judge’s comment on the jury’s verdict (“remarkable”) seems to indicate that he disagreed with their decision.

But they awarded the defendant a mere $1, which has to be interpreted as indicating that they believed the police behaved improperly, and felt obliged to rule accordingly, but had no inclination to do anything meaningful for the defendant whatsoever. I would say that Mr. Birkbeck has misreported the story completely. He immediately arouses our indignation at the defendant’s actions, supplies no information supporting the jury’s decision, and simply treats the whole affair as a “man bites dog” bizarre incident. But there was clearly a bit more going on here.

US District Judge James Munley yesterday issued a temporary restraining order blocking enforcement of the Pennsylvania Anthracite Region city of Hazleton’s pair of anti-Illegal Immigration ordinances:

Illegal Immigration Relief Act

Ordinance 2006-13

Jurist, University of Pittsburgh School of Law summary

But, even so, Hazleton’s ordinance is driving people and businesses away from what would otherwise be rapidly turning into a mining ghost town.

On Wednesday, a tough, first-of-its-kind law targeting illegal immigrants was to take effect in this small hillside city in northeastern Pennsylvania. A federal judge on Tuesday blocked the measure for at least two weeks, but the evidence suggests many Hispanics illegal or otherwise have already left.

That, in turn, has hobbled the city’s Hispanic business district, where some shops have closed and others are struggling to stay open.

“Before, it was a nice place,” said Soto, 27, who came to the United States from the Dominican Republic a decade ago. “Now, we have a war against us. I am legal but I feel the pressure also.

Read the whole thing.

Earlier posting.

Paul Mulshine, in the Star-Ledger, notes, as we did ourselves, that if you try to find the reference to “equal protection” in the Article 1, Paragraph 1 of the New Jersey State Constitution (mentioned as the basis of its ruling requiring Gay Marriage by the New Jersey Supreme Court), you will seek in vain. And he adds:

You will note that the words “equal protection” do not appear in it. They couldn’t have. That article first appeared in the New Jersey Constitution of 1844. But it wasn’t until 1868 that the concept of equal protection came into being, and that was in the 14th amendment to the U.S. Constitution. The 14th amendment doesn’t apply here, but if it did, the state Supreme Court would almost certainly be re versed in the federal courts. That was the case with the court’s last ruling on the question of gay rights. The U.S. Supreme Court reversed a New Jersey ruling in which our high court ordered the Boy Scouts to accept a gay scoutmaster. That decision was also based on the nonexistent “equal protection” clause in Article 1, Paragraph 1 of the state constitution.

The seven justices of the New Jersey Supreme Court have a habit of putting words into the Constitution—and of taking them out.

If a court made up of liberals was working on the basis of a Constitution whose only text was the Second Amendment’s provision That the Right to Keep and Bear Arms Shall Not Be Infringed, I have no doubt they could find Equal Protection, a Right to Abortion, Gay Marriage, Affirmation Action, Forced Busing to Achieve Racial Integration, and Confiscation of Private Firearms all mandated by the same text.

British Police warned a jeweller not to distribute to neigboring jewellers pictures of a thief captured on the shop’s video camera, because doing so would infringe the woman’s human rights.

Ann Althouse this morning, quotes a colleague asking rhetorically (and disingenously): What is the rational basis for banning same-sex marriage?

It’s perfectly possible to propose a rational debate on this kind of question, but when one finds that the debate’s proposer has already engineered the grammar of the proposition around so as to make the ordinary status quo appear in the guise of some intended innovation and aggression against the rights of others, it is apparent that there is a certain effort underway to fix the outcome of the debate before it has begun. “How dare some people suddenly compel the legislature and the courts to ban Gay Marriage!”

Of course, we all know that the precise opposite is the case.

Marriage is a human institution existing immemorially, even from times preceding the organization of the state itself, long prior to the creation of individual American states or the United States. The state never created marriage, but merely recognizes marriage as an estate, i.e., as a recognizable status conferring a number of customary privileges and immunities.

That marriage consists of the union of one man and one woman has been its definition for at least the entirety of the Christian era, some two thousand years. The innovation consists of the revolutionary demand that the definition of this most fundamental of human institutions must be modified to confer equality of status on homosexual relations in accordance with the wishes of a contemporary minority.

The increased popularity of monogamous homosexual relationships over the two decades following the arrival of the AIDS epidemic seems to many of us a positive development, but it is far from clear that the fashion would survive the removal of the health threat. Is two decades of anything a sufficient basis to modify the most fundamental institution of human society?

Liberalism has triumphed in the jurisprudential debate about the law’s treatment of homosexuality since the time of the Wolfenden Report. The consensus of opinion these days holds that Mill was correct. Absent some demonstrable harm to others from private action, the state has no right to interfere with the private conduct of consenting adults. Homosexuals have a right to do as they like in private, and the rest of us are obliged to respect that right. We owe them our tolerance.

We do not, however, owe homosexuals our applause and approval.

Just as it is possible to be a law-abiding and unoffending member of the community, and indulge in homosexual acts with another consenting adult in private, it is also perfectly possible to subscribe to religious or other opinions which take a negative view of homosexuality.

Alteration of the definition of marriage to include homosexual liaisons would, in fact, confer both public recognition and approval upon those liaisons in a form which the majority of American are not voluntarily willing to concede.

There is nothing coercive in declining to consent to the adoption of a new and revolutionary definition of marriage. But the forced participation of an unwilling national majority in the public recognition and celebration of unconventional liaisons would be indubitably coercive.

No one is “banning Gay Marriage” by prohibiting homosexuials from conducting whatever private ceremonies or taking whatever personal and private view of their own relationships they like. It is simply the case that a majority of Americans are declining to share those particular views or to recognize those particular ceremonies as meaningful to themselves in the same way.

I obviously disagree with the proposed “state interest” approach to analysis. But if I were compelled to argue in that form, I would observe that a state constitutional amendment defining marriage as it is traditionally understood, as the union of a man and a woman, should be perfectly constitutional. States obviously have a right to define legal concepts and institutions. They have a particularly good right to do so, when they are making no change whatsoever, but merely identifying what has always been understood to be the case.

The obvious line of attack for the left will be via the Equal Protection Clause. But there is no inequality to it. Everyone has just as much right to marry anybody else as he ever did. Arguing that you want to do something different and call it marriage, and you want everyone else to call it marriage, too, and they won’t, and you don’t like it, does not mean you have been treated unequally.

Andrew McCarthy refutes some of the allegations made by critics from the left:

1) That the bill deprives prisoners of habeas corpus.

First, Congress cannot “suspend” habeas corpus by denying it to people who have no right to it in the first place. The right against suspension of habeas corpus is found in the Constitution (art. I, 9). Constitutional rights belong only to Americans — that is, according to the Supreme Court, U.S. citizens and those aliens who, by lawfully weaving themselves into the fabric of our society, have become part of our national community (which is to say, lawful permanent resident aliens). To the contrary, aliens with no immigration status who are captured and held outside the territorial jurisdiction of the United States, and whose only connection to our country is to wage a barbaric war against it, do not have any rights, much less “basic rights,” under our Constitution.

2) Habeas corpus is required to permit prisoners to defend Geneva Convention rights.

it remains a settled principle that treaties are compacts between sovereign nations, not fonts of individual rights. Alleged violations are thus grist for diplomacy, not litigation. Treaties are not judicially enforceable by individuals absent an express statement to the contrary in the treaty’s text. By contrast, Geneva’s express statements indicate that no judicial intervention was contemplated.

This, no doubt, is why the Geneva Conventions, qua treaties, have never been judicially enforced. Consequently, if Congress had actually denied al Qaeda detainees a right to use Common Article 3 to challenge their detention in federal court (and, as we’ll soon see, Congress has not done that), that would merely have reaffirmed what has been the law for over a half century.

If the political representatives of a nation believe one of its citizens is being unlawfully held at Gitmo, the proper procedure is for that nation to protest to our State Department, not for the detainee to sue our country in our courts. In fact, several nations have made such claims, and Bush administration has often responded by repatriating detainees to their home countries … only to have many of them rejoin the jihad. In any event, though, there would be nothing wrong with declining to allow habeas to be used for the creation of individual rights that detainees do not in fact have under international law.

Angilo Freeland bolted from his rental car in the midst of a routine traffic stop last Thursday in Lakeland, Florida.

Polk County, Florida Sheriff’s Deputy Vernon Williams pursued Freeland into a wooded area, accompanied by another deputy and a German shepherd. Freeland killed Deputy Williams, wounding him in the ensuing gunfight, and evidently finishing him off execution-style with two gunshots to the head. The police dog (named Diogi) was also killed, and the other deputy wounded.

Police officers from all over West Central Florida turned out for the manhunt. The murderer was located hiding under a fallen oak tree in the woods. Seeing a gun in his hand, police officers opened fire. Autopsy results found that Freeland had been shot 68 times by the time the shooting stopped.

“That’s all the bullets we had, or we would have shot him more,” Polk County Sheriff Grady Judd told the Orlando Sentinel.

Deputy Vernon Williams left behind a wife and three children. His death in the line of duty occurred on his wife’s birthday.

The Telegraph today contains an item featuring European Union Pecksniffery at its worst.

A band of seven well-grown judicial imbeciles, sitting in Strasbourg, has ruled that “the law’s delay” in attending to the efforts of Mr. (excuse me, former KGB, now SVR Colonel of Foreign Intelligence) George Blake, convicted traitor, prison escapee, and resident (since 1966) of Moscow, to reclaim frozen royalties to his autobiography on Britain’s part had breached the EU’s Human Rights Convention. The EU judges concluded that Blake suffered distress and frustration thereby, and ordered Britain to pay him âu201a¬5,000 in damages and âu201a¬2,000 in costs.

The dozens? of MI6 agents betrayed by Blake (he was rumored to have received an unprecedentedly severe 42 years sentence, representing one year for every agent killed as the result of his treachery) were not compensated.

How Neal Katyal expresses his gratitude to the US:
Defending Osama bin Ladin’s driver, Salim Ahmed Hamdan

This month’s Yale Alumni Magazine interviews celebrity alumnus Georgetown Law Professor Neal K. Katyal, ‘95JD Yale Law, preening over his victory in Hamdan v. Rumsfeld, which challenged the authority of the President to consign illegal combatants to trial by military courts, and which elicited the absurd majority opinion, written by Justice Stevens, which erroneously applies the language of Article 3 of the Geneva Convention, viz.,

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each party to the conflict shall be bound to apply, as a minimum, the following provisions (to):

1. Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause…

to illegal combatants and terrorists captured outside the territory of the United States.

Katyal shares with the Yale Alumni Magazine the heart-warming story of his moving reply to Hamdan, when the imprisoned jihadi asked: “Why do you want to help me?”

So I paused for a long time, and then I said that I was doing this because my parents came to America to give their children better opportunities, and I couldn’t imagine another country on earth in which I would be able to do what I have been able to do. My parents came here from India, literally with eight dollars in their pockets, each of them. And what bothered me the most about the president’s order is that it said only foreigners would get this military justice system. If you were an American citizen, then you got a civilian trial. But if you were a green-card holder or a foreigner, then you got something really inferior. That was the first time that I felt our country was so fundamentally on the wrong path—and I had to do something.

I can relate to Mr. Katyal’s strong feelings of gratitude and appreciation toward the United States, as I come from immigrant background myself. My grandparents arrived here from Lithuania in the 1890s.

Professor Katyal and my father have a lot in common. Both were of the first generation brought up and educated in the United States. Both were grateful for the opportunities offered by the United States, though my father was not so quite so fortunate as Professor Katyal, who attended Dartmouth and Yale Law School.

Because his own father was dying of miner’s asthma, my father had to quit school after 8th grade and go to work in the coal mines to help support the family. But he was still grateful to grow up in the United States, rather than in Russian-occupied Lithuania, grateful for both America’s political freedom and for her economic opportunities, even though he had much less access to the latter than some others.

Despite the things they have in common, still, I cannot help reflecting that my father’s gratitude toward this country expressed itself in forms distinctly different than Professor Katyal’s, forms more recognizable as gratitude. I feel sure that my father left America better off by his relatively obscure contributions, a lifetime of hard labor and wartime military service, when he died in 1997. If Professor Katyal passed away tomorrow, I’m afraid I would find it very difficult to say the same of his more celebrated ones.

I do agree with Professor Katyal on one thing, though. I too cannot “imagine another country on earth in which (he) would be able to do what (he) ha(s) been able to do.”

How my father expressed his gratitude to the US:
Serving in the Marine Corps in the South Pacific

Jim Dunnigan’s Strategy Page reports the Judge Advocate General Corps’ military lawyers have grown far more numerous and influential, and that far too many of its members are on the wrong side:

Big brawl going on in the Pentagon between the JAGs (Judge Advocate General, the lawyers) and the operators (combat and intelligence types.) JAGs have become more important, decade by decade, over the last sixty years. This has happened in parallel with the growing influence of lawyers in civilian society. However, lawyers doing what they do has brought them into conflict with the operators. For example, the war on terror has created a murky legal area for captured terrorists. Many JAGs want to give the captured terrorists most of the privileges of civilians, or even soldiers, accused of criminal acts. This creates a conflict with the combat and intel officers, who do not want to give the terrorists access to the identity of informants within terrorist organizations, or other information they have on the terrorists, and how they got it. In the civilian world, the prosecution has to let the defense know all this stuff. That’s why there’s a witness protection program, or cases where the government will not prosecute in order to preserve valuable intel. But such procedures don’t work when most of your witnesses are living in a combat zone, and many of your intelligence collection techniques will be worthless if the enemy knows what they are, putting your own troops at greater risk.

On top of all this, the size of the JAG force has grown some ten percent since the end of the Cold War, while everyone else has shrunk by about a third. As a result, the senior JAGs in each service wants to be three star generals, instead of the current two star.

Now the JAGs are aware of the circumstances under which U.S. troops are fighting, and the importance of OPSEC (Operational Security, keeping info about your activities from the enemy). Even so, many JAGs seem to lose their perspective, and advocate strongly for giving the terrorists the information. Operators believe the JAGs are grandstanding, especially by saying one thing to uniformed people, and something else to the media and Congress. The situation has divided the JAG community as well, and it’s getting ugly.

David Warren, of the Ottawa Citizen, notes that the hatred which fuels militant Islamic acts of terrorism often has little to do with Islam really, and less with real grievances. Its real animating engine is the ideology of resentment created within the West itself, and promulgated unceasingly by the Western intelligentsia.

Mr Blair’s answer to a question about British home-grown terrorists donged the bell:

“It’s not necessarily what have we done wrong, because part of the problem of what you have in Western opinion is that Western opinion always wants to believe that it’s our fault and these people want to have a sort of, you know, grievance culture that they visit upon us and say it’s our fault. And so we have a young British-born man of Pakistani origin sitting in front of a television screen saying I will go and kill innocent people because of the oppression of Muslims, when he has been brought up in a country that has given him complete religious freedom and full democratic rights and actually a very good job and standard of living. Now, that warped mind has grown out of a global movement based on a perversion of Islam which we have to confront, and we have to confront it globally.”..

We have a huge fifth column in the West, and it is not the Muslim immigrants. They become radicalized only because our “victim culture” encourages them to nurture their grievances. Yet most, despite temptation, remain good, decent people, doing their share of the West’s work.

Our real enemy is within us, in the immense constituency of the half-educated narcissists pouring from our universities each year—that glib, smug, liberal, and defeatist “victim culture” itself, that inhabits the academy, our media, our legal establishment, the bureaucratic class. The opinion leaders of our society, who live almost entirely off the avails of taxation, make their livelihoods biting the hands that feed them, and undermining the moral order on which our solidarity depends.

Ted Frank, at Overlawyered, reports the delightful case of Thomas Joseph Bentey, a first year student at St. Thomas University School of Law, who was dismissed (over his own objection) in May of 2006 for failing to maintain a 2.5 GPA.

The astute Mr. Bentey responded by bringing a federal class action lawsuit against St. Thomas Law School, the Catholic Archdiocese of Miami (owner & operator of the law school), and a variety of school officials and administrators for accepting large numbers of students only later to cull out nearly 30% of first- and second-year students for low GPAs, in order to improve the law school’s bar examination passing percentage. Mr. Bentey alleges that the school is “culling” students it should not have admitted in the first place, since they should not be accepting students who do not have a reasonable prospect of completing law school. So, in essence, he’s suing his law school for admitting as poor a student as himself in the first place.

Bentey is also suing the American Bar Association Section of Legal Education and Admission to the Bar and the United States Department of Education for failing to adequately oversee the school by not detecting the alleged scheme and by not taking the necessary action to enforce the ABA accreditation standard which requires that law schools admit only applicants who appear capable of completing their programs and being admitted to the bar.

He got 2 B’s in Torts. They should certainly upgrade those to A’s.

Bentey’s complaint

Ted Frank, at Overlawyered, demonstrates that you don’t have to go all the way to Lebanon to find the mainstream media failing to apply the slightest critical standards to news items originating from the kinds of sources to whom they are sympathetic. Hezbollah and liability lawyers have a friend in the MSM. Read the whole thing.

Douglas R. Burgess Jr. makes the argument again that Islamic terrorists should be being viewed legally as a contemporary species of pirate.

More than 2,000 years ago, Marcus Tullius Cicero defined pirates in Roman law as hostis humani generis, “enemies of the human race.” From that day until now, pirates have held a unique status in the law as international criminals subject to universal jurisdiction—meaning that they may be captured wherever they are found, by any person who finds them. The ongoing war against pirates is the only known example of state vs. nonstate conflict until the advent of the war on terror, and its history is long and notable. More important, there are enormous potential benefits of applying this legal definition to contemporary terrorism…

Until 1856, international law recognized only two legal entities: people and states. People were subject to the laws of their own governments; states were subject to the laws made amongst themselves. The Declaration of Paris created a third entity: people who lacked both the individual rights and protections of law for citizens and the legitimacy and sovereignty of states. This understanding of pirates as a legally distinct category of international criminals persists to the present day, and was echoed in the 1958 and 1982 U.N. Conventions on the Law of the Sea. The latter defines the crime of piracy as “any illegal acts of violence or detention, or any act of depredation, committed for private ends.” This definition of piracy as private war for private ends may hold the crux of a new legal definition of international terrorists…

TO UNDERSTAND THE POTENTIAL OF DEFINING TERRORISM as a species of piracy, consider the words of the 16th-century jurist Alberico Gentili’s De jure belli: “Pirates are common enemies, and they are attacked with impunity by all, because they are without the pale of the law. They are scorners of the law of nations; hence they find no protection in that law.” Gentili, and many people who came after him, recognized piracy as a threat, not merely to the state but to the idea of statehood itself. All states were equally obligated to stamp out this menace, whether or not they had been a victim of piracy. This was codified explicitly in the 1856 Declaration of Paris, and it has been reiterated as a guiding principle of piracy law ever since. Ironically, it is the very effectiveness of this criminalization that has marginalized piracy and made it seem an arcane and almost romantic offense. Pirates no longer terrorize the seas because a concerted effort among the European states in the 19th century almost eradicated them. It is just such a concerted effort that all states must now undertake against terrorists, until the crime of terrorism becomes as remote and obsolete as piracy.

But we are still very far from such recognition for the present war on terror. President Bush and others persist in depicting this new form of state vs. nonstate warfare in traditional terms, as with the president’s declaration of June 2, 2004, that “like the Second World War, our present conflict began with a ruthless surprise attack on the United States.” He went on: “We will not forget that treachery and we will accept nothing less than victory over the enemy.” What constitutes ultimate victory against an enemy that lacks territorial boundaries and governmental structures, in a war without fields of battle or codes of conduct? We can’t capture the enemy’s capital and hoist our flag in triumph. The possibility of perpetual embattlement looms before us.

If the war on terror becomes akin to war against the pirates, however, the situation would change. First, the crime of terrorism would be defined and proscribed internationally, and terrorists would be properly understood as enemies of all states. This legal status carries significant advantages, chief among them the possibility of universal jurisdiction. Terrorists, as hostis humani generis, could be captured wherever they were found, by anyone who found them. Pirates are currently the only form of criminals subject to this special jurisdiction.

Second, this definition would deter states from harboring terrorists on the grounds that they are “freedom fighters” by providing an objective distinction in law between legitimate insurgency and outright terrorism. This same objective definition could, conversely, also deter states from cracking down on political dissidents as “terrorists,” as both Russia and China have done against their dissidents.

Recall the U.N. definition of piracy as acts of “depredation [committed] for private ends.” Just as international piracy is viewed as transcending domestic criminal law, so too must the crime of international terrorism be defined as distinct from domestic homicide or, alternately, revolutionary activities. If a group directs its attacks on military or civilian targets within its own state, it may still fall within domestic criminal law. Yet once it directs those attacks on property or civilians belonging to another state, it exceeds both domestic law and the traditional right of self-determination, and becomes akin to a pirate band.

We previously cited Mackubin Thomas Owens’ Detainees or POWs?, which identifies Sir Michael Howard as making the same point in 2001:

The real reason the detainees are not entitled to POW status is to be found in a distinction first made by the Romans and subsequently incorporated into international law by way of medieval European jurisprudence. As the eminent military historian, Sir Michael Howard, wrote in the October 2, 2001 edition of the Times of London, the Romans distinguished between bellum, war against legitimus hostis, a legitimate enemy, and guerra, war against latrunculi — pirates, robbers, brigands, and outlaws — “the common enemies of mankind.”

The present governments of Britain and the United States have vast military resources and enormously large cabinet departments filled with trained attorneys. It speaks eloquently of the decay of our educational system internationally that this fundamentally important aperçu needs to be advanced in the remoter reaches of the blogosphere five years after 9/11.

Ann Althouse, law professor and often acerbic blogger (who notoriously does not tolerate fools gladly), lowers the boom on Judge Anna Diggs Taylor in the Times.

As long as we’re appreciating irony, let’s consider the irony of emphasizing the importance of holding one branch of the federal government, the executive, to the strict limits of the rule of law while sitting in another branch of the federal government, the judiciary, and blithely ignoring your own obligations.

So often, we’ve heard complaints about “activist” judges. They’re suspected of deciding what outcome they want, based on their own personal or ideological preferences, and then writing a legalistic, neutral-sounding opinion to cover up what they’ve done. That carefully composed legal opinion makes it somewhat hard for a judge’s critics to convince people — especially anyone who likes the outcome — that the judge did not decide the case according to an unbiased legal method of analysis.

So perhaps the oddest thing about Judge Taylor’s opinion in the eavesdropping case is that she didn’t bother to come up with the verbiage that normally cushions us from these suspicions. Although the first half of the opinion, dealing with the state secrets doctrine and the first part of the standing doctrine, has the usual detail and structure one expects in a judicial opinion, the remainder of her text dispenses with the formalities.

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations … much of it incomplete and some of it simply incorrect.”

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

It is a serious argument, and judges need to take it seriously. If they do not, we ought to wonder why a court gets to decide what the law is and not the president. After all, the president has a sworn duty to uphold the Constitution; he has his advisers, and they’ve concluded that the program is legal. Why should the judicial view prevail over the president’s?

This, of course, is the most basic question in constitutional law, the one addressed in Marbury v. Madison. The public may have become so used to the notion that a judge’s word is what counts that it forgets why this is true. The judges have this constitutional power only because they operate by a judicial method that restricts them to resolving concrete controversies and requires them to interpret the relevant constitutional and statutory texts and to reason within the tradition of the case law.

This system works only if the judges suppress their personal and political willfulness and take on the momentous responsibility to embody the rule of law. They should not reach out for opportunities to make announcements of law, but handle the real cases that have been filed.

This means that the judge has a constitutional duty, under the doctrine of standing, to respond only to concretely injured plaintiffs who are suing the entity that caused their injury and for the purpose of remedying that injury. We trust the judge to say what the law is because the judge “must of necessity expound and interpret” in order to decide cases, as Chief Justice John Marshall wrote in Marbury. But Judge Taylor breezed through two of the three elements of standing doctrine — this constitutional limit on her power — in what looks like a headlong rush through a whole series of difficult legal questions to get to an outcome in her heart she knew was right.

If the words of the written opinion reveal that the judge did not follow the discipline of the judicial process, what sense does it make to take the judge’s word about what the law means over the word of the president? If the judge’s own writing does not support a belief that the rule of law has substance and depth, that law is something apart from political will, the significance of saying the president has gone beyond the limits of the law evaporates.

There’s irony for you.

Oh, sure.

The ACLU, a little jurisdiction shopping, and a Jimmy Carter-appointed ultra-liberal ideologue judge with a record of partisan political judicial conduct, a cooperative MSM, and voila! you have headlines shouting U.S. Judge Finds Wiretapping Plan Violates the Law.

In reality, Anna Diggs Taylor’s ruling will simply go on to the Circuit Court of Appeals and on to the Supreme Court, where the arguments will be evaluated by more serious and responsible judges.
——————————-
MaggieCarta on Free Republic provides the song of the hour.

My Law School Told Me You Better Shop Around.
(Tune: My Momma Told Me You Better Shop Around)

Just because you’ve briefed a big case now
There’s still some things that you must understand now
Before you step into court with demands now
Make your choice nonrandom as you can now
My law school taught me:
You better shop around

There’s some knowledge I want to bestow now
Know which way that the wind’s gonna blow now
Judgments come and judgments are gonna go now
The more you look, you’ll find one apropos, now
My law school taught me:
You better shop around

You must use your all best jargon, son
Don’t stay stuck with the very first one
Hard working judges come a dime a dozen
Try to find you one with a verdict you’re lovin’
Presume you got no standing to sue, now
Find one who’s in bed with ACLU now
My law school taught me:
You better shop around

Ruling against a defense motion to dismiss in the case of US v. Steven J. Rosen, Keith Weissman, District Court Judge Thomas Selby Ellis, III held that, under the federal Espionage Act private citizens can be prosecuted for unauthorized receipt and disclosure of classified information.

Although the question whether the government’s interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government [i.e. not holding security clearances] is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.

The government must… prove that the person alleged to have violated these provisions knew the [restricted] nature of the information, knew that the person with whom they were communicating was not entitled to the information, and knew that such communication was illegal, but proceeded nonetheless.

Finally, with respect only to intangible information [as opposed to documents], the government must prove that the defendant had a reason to believe that the disclosure of the information could harm the United States or aid a foreign nation…

So construed, the statute is narrowly and sensibly tailored to serve the government’s legitimate interest in protecting the national security, and its effect on First Amendment freedoms is neither real nor substantial as judged in relation to this legitimate sweep.

It is to be expected that this ruling will be tested at the Appeals Court and Supreme Court levels, but Judge Ellis’ reasoning is sound, and there is distinct cause for a nervous evening on the part of several reporters working for the Washington Post and the Los Angeles and New York Times newspapers.
——————-

Steven Aftergood reports at Secrecy News.

AP reports:

Federal prosecutors investigating a leak about a terrorism funding probe can see the phone records of two New York Times reporters, a federal appeals court ruled Tuesday.

A panel of the 2nd U.S. Circuit Court of Appeals overturned on a 2-1 vote a lower court’s ruling that the records were off limits unless prosecutors could show they had exhausted all other means of finding out who spoke to the newspaper…

The case involved stories written in 2001 by Times reporters Judith Miller and Philip Shenon that revealed the government’s plans to freeze the assets of two Islamic charities, the Holy Land Foundation and the Global Relief Foundation.

Prosecutors claimed the reporters’ phone calls to the charities seeking comment had tipped the organizations off about the government investigation.

Charles Johnson has a few choice words about the New York Times’ culture of disloyalty.

Can anyone imagine a photographer employed by an American newspaper happily collecting pictures of a Jap sniper firing at US forces in WWII? (There is even worse at the beginning of the slideshow.)

The Canadian would-be buyer of a three-bedroom, two-bath house in Jasper County, South Carolina discovered the developers had neglected to inform her of one little detail.

(The local reporter has a few problems with the English language, but one gathers that:)

In 1998, the then-owner of the 1700-acre Delta Plantation, Henry E. Ingram Jr. (a man of decidedly Southern irredentist opinions) when he sold his acreage to Bluffton Home Builders, inserted a few small covenants in the deed.

Mr. Ingram’s covenants stipulated that the property, or subdivisions thereof, could not be sold or leased to:

1. Yankees.

2. Persons bearing the last name Sherman (vide: General William Tecumseh Sherman).

3. Persons bearing last names whose letters could possibly be rearranged to spell Sherman.

Ms. Legare, the would-be buyer (who, being Canadian, would not be personally impacted by Mr. Ingram’s covenants, but who obviously might like to be able resell her house some fine day) and Bluffton Home Builders are now working with Mr. Ingram’s son, Mr. Ashley Ingram, a local attorney (who probably has some personal interest in the matter) to get those covenants removed. But Henry Ingram, now a resident of Corpus Christi, Texas disagrees. The older Mr. Ingram wants his covenants defended and enforced, and is planning to move to Costa Rica, presumably to get further away from those damned Yankees.
———————————-

FOLLOW-UP

Alfred L. Brophy tells us he covered the Ingram covenants back in 1998. (Did blogs exist in 1998?)

Mr. Brophy also provides addiional detail: Yankees are defined as people who’ve lived north of the Mason-Dixon line for more than a year or were born north of the Mason-Dixon line. But Ingram also included an exemption: if a Yankee takes a Southern loyalty oath and whistles Dixie as a sign of loyalty, then he is permitted to buy the property.

Paper by Messrs. Brophy & Ghosh on the Unconstitutionality of the Ingram Covenants offers excellent historical background and legal detail; but, alas! the authors do take an unsound view of the desirability of enforcing such covenants.

The American Spectator has learned from Treasury and Justice Department officials more scarifying details about the US Government’s attempts to persuade both the New York Times and the Los Angeles Times to refrain from publishing the SWIFT story.

According to Treasury and Justice Department officials familiar with the briefings their senior leadership undertook with editors and reporters from the New York Times and Los Angeles Times, the media outlets were told that their reports on the SWIFT financial tracking system presented risks for three ongoing terrorism financing investigations. Despite this information, both papers chose to move forward with their stories.

“We didn’t give them specifics, just general information about regions where the investigations were ongoing, terrorist organizations that we believed were being assisted. These were off the record meetings set up to dissuade them from reporting on SWIFT, and we thought the pressing nature of the investigations might sway them, but they didn’t,” says a Treasury official.

In fact, according to a Justice Department official, one of the reporters involved with the story was caught attempting to gain more details about one of the investigations through different sources. “We believe it was to include it in their story,” says the official….
“We thought that once the reporters and editors understood that one, these were not warrantless searches, and two, that this was a successful program that had netted real bad guys, and three, that it was a program that was helping us with current, ongoing cases, they would agree to hold off or just not do a story,” says the U.S. Treasury official. “But it became clear that nothing we said was going sway them. Whomever they were talking to, whoever was leaking the stuff, had them sold on this story.”

To that end, the Justice Department has quietly and unofficially begun looking into possible sources for the leak. “We don’t think it’s someone currently employed by the government or involved in law enforcement or the intelligence community,” says another Justice source. “That stuff about ‘current and former’ sources just doesn’t wash. No one currently working on terrorism investigations that use SWIFT data would want to leak this or see it leaked by others. We think we’re looking at fairly high-ranking, former officials who want to make life difficult for us and what we do for whatever reasons.”

The fact that this last especially outrageous violation of national security appears likely to motivate the Justice Department to get serious about catching the Pouting Spooks responsible, and bringing them to justice, sheds a single ray on sunshine on the appalling situation. The truth of the matter is, all they need to do is get one cowardly squealer to talk, and they can probably bag the whole lot. In that company, too, cowardly squealers are probably a dime a dozen.

I wasn’t born early enough to read Walter Duranty lying about famine in the Ukraine, and otherwise shilling for Joe Stalin, but I was around in the late 1950s, when Herbert L. Matthews helped Fidel Castro “get his job through the New York Times.”

I still vividly remember (with cold anger) the Times’ Sunday Magazine’s cover the week Saigon fell. It displayed a napping Vietcong guerilla sitting in a folding lawn chair, Kalashnikov assault rifle across his knees. The Times’ headline read: “THE BLESSED PEACE.”

And I remember the Times spectacularly studied silence, which went on and on and on, when news of the holocaust in Cambodian began appearing in the Western Press.

But it was undoubtedly, too, another grand landmark in the New York Times’ long-standing, much-celebrated tradition of dishonest journalism, when the inveterbrate sycophant Byron Calame timorously succeeded (leaving a glistening trail behind him) to the supposed Times-Ombudsman position of Public Editor.

Time Executive Editor Bill Keller’s pathological hatred of the Bush Administration recently led him to ignore bipartisan requests from government officials and proceed to publicize a key international Counterterrorism financial surveillance program. In the minds of most Americans, Keller earned himself a place on the jury in some future Broadway production of The Devil and Daniel Webster that day.

And the American public’s watchdog Byron Calame is on the job, speaking truth to power. “You were absolutely right, boss!” brave Sir Byron wrote this Sunday.

The Times, in the course of a remarkable response from its readers, heard from more than a thousand, and Calame concedes “about 85 percent of them (were) critical of the decision to publish the story and a large fraction venomous.”

But the Public Editor reflected long and hard about who paid his salary, and went right to work typing out an editorial telling the public to get lost, Bill Keller had behaved perfectly correctly, and Eric Lichtblau is a true patriot.

You see, there was no wrongdoing on the part of the New York Times at all, since everyone (including all the terrorists) already knew all about the SWIFT program. There was no news here, after all.

But, it was necessary for the Times to defy government requests and print this story, you see, because it was terribly important that the public learn of the program, so that it could receive public scrutiny. So there was vitally important news, which had to be reported, after all.

(Isn’t it great being a liberal? You have no problem simultaneously accepting as true two completely contradictory propositions.)

And, finally, you and I may have skipped over that part of the Constitution, but The (unelected) Times, a privately-owned business organization which makes its money selling processed wood-pulp and advertising, you see, has its own Constitutional function: monitoring and oversight.

You and I waste our time going out to the polls and voting to elect presidents, and congressmen and senators, but the real bosses are Bill Keller and Eric Lichtblau, who are Constitutionally empowered to supervise all of their work.

If Keller and Lichtblau feel those mere elected officials’ work isn’t up to par, their approach questionable, or their manners distasteful, it is up to the Times to decide whether efforts to apply surveillance to International Terrorism shall be permitted to continue.

If the Times dislikes the elected administration; or if the Times isn’t selling enough woodpulp that week and needs a big story; or if it’s the wrong time of the month, and the Times is just feeling a bit cranky, obviously the Times (meaning Mr. Bill Keller) is perfectly entitled to don its robes of Constitutional Authority, assert its powers as “Monitor of Government in Chief,” and disclose any national security information it pleases.

(Wasn’t General Eisenhower lucky that Bill Keller was not around at the time of the D-Day Invasion? Keller might have decided that the Pas-de-Calais was a much better landing site, or might just have taken a dislike to FDR.)

Mr. Calame finally concludes, these kinds of decisions are a judgement call, and

The best judgment of these two editors (Keller and Lichtblau) served their readers well in the case of the Swift story. In the face of intense administration pressure in a country that’s unusually polarized politically, they correctly decided to make sure their readers were informed about the banking-data surveillance.

And I’m properly grateful. I had, of course, like any other normal American citizen, been planning to transfer a large sum of money to my favorite personal charity, an illegal terrorist organization of Lithuanian fly fishermen and fox-hunters. Now that I know all about that nefarious Bush Administration SWIFT program, I’ll simply tie hundred dollar bills to the legs of migrating Houbara bustards, which will be taken by Kazakh falconer allies, and forwarded via European Eagle Owls to those fiendish Baltic fly fishers. (Thank you, New York Times!) Aren’t you glad that you too can covertly support the terrorist movement of your choice with no interference from the authorities?

Cicero in response to Hamdan v. Rumsfeld:

IV. atqui, si tempus est ullum iure hominis necandi, quae multa sunt, certe illud est non modo iustum verum etiam necessarium, cum vi vis inlata defenditur… insidiatori vero et latroni quae potest inferri iniusta nex?

quid comitatus nostri, quid gladii volunt? quos habere certe non liceret, si uti illis nullo pacto liceret. est igitur haec, iudices, non scripta, sed nata lex, quam non didicimus, accepimus, legimus, verum ex natura ipsa adripuimus, hausimus, expressimus, ad quam non docti sed facti, non instituti sed imbuti sumus, ut, si vita nostra in aliquas insidias, si in vim et in tela aut latronum aut inimicorum incidisset, omnis honesta ratio esset expediendae salutis. silent enim leges inter arma nec se exspectari iubent, cum ei qui exspectare velit ante iniusta poena luenda sit quam iusta repetenda.

etsi persapienter et quodam modo tacite dat ipsa lex potestatem defendendi, quae non hominem occidi, sed esse cum telo hominis occidendi causa vetat, ut, cum causa, non telum quaereretur, qui sui defendendi causa telo esset usus, non hominis occidendi causa habuisse telum iudicaretur. quapropter hoc maneat in causa, iudices; non enim dubito quin probaturus sim vobis defensionem meam, si id memineritis quod oblivisci non potestis insidiatorem interfici iure posse.

(Translation, JDZ:)

IV. But if there is any occasion on which it is proper to slay a man, and there are many, surely that occasion is not only just, but even necessary, when violence is offered, and must be repelled by violence… And what death can be unjust when inflicted on a secret plotter and outlaw?

Why do we have an army, why do we own swords? Surely it would not be justifiable for us to have them at all, if it were never justifiable to use them. There is, therefore, a law, O judges, not written, but born with us, which we have not learnt, nor received by tradition, nor read, but which we have taken in and imbibed from Nature herself; a law which we were never taught, but for which we were made, which we were never trained in, but which is ingrained in ourselves: namely, that if our life is in danger from plots, or from open violence, or from the weapons of brigands or enemies, every means of securing our safety is honorable. For the laws are silent in the midst of the clash of arms, and do not expect themselves to be waited upon, when he who waited would be obliged to bear an unjust injury rather than exact a just punishment.

The law very wisely, and tacitly, gives a man the right to defend himself, and it does not merely prohibit homicide, but forbids anyone carrying a weapon for the purpose of murder. It is the intended purpose, not the carrying of the weapon, which constitutes the offense. The man who used a weapon to defend himself would not be deemed to have armed himself with the intention of committing murder. Let this principle then be remembered by you in this trial, O judges; for I do not doubt that I shall make good my defense before you, if you only remember, that which it is impossible to forget: that a plotter against oneself may be lawfully slain.

-Marcus Tullius Cicero, PRO T. ANNIO MILONE ORATIO, [In Defense of Titus Annius Milo], X:IV.

The Supreme Court ruled on Thursday that President Bush did not have authority to set up the war crimes tribunals at Guantanamo Bay, Cuba, and found the “military commissions” illegal under both military justice law and the Geneva convention.

Fox News & AP

Andrew McCarthy wrote an earlier post-mortem predicting the Court would rule wrongly, but it appears that the decision will be worse than expected.

If the Supreme Court of the United States really takes it upon itself to extend Geneva Convention Rights to terrorists and illegal combatants, George W. Bush ought to take Andrew Jackson’s position, and tell Justice Stevens to go enforce his own ruling.

The Republican Administration, at the present time, clearly needs to be reminded that it is the Party of Lincoln.

On August 15, 1861, a grand jury was convened in New York to investigate the conduct of a number of opposition newspapers.

The records of that grand jury state:

There are certain newspapers within this district which are in the frequent habit of encouraging the rebels now in arms against the federal government by expressing sympathy and agreement with them, the duty of acceding to their demands, and dissatisfaction with the employment of force to overcome them…

The grand jury are aware that free governments allow liberty of speech and of the press to the utmost limit, but there is, nevertheless, a limit…

The conduct of these disloyal presses is, of course condemned and abhorred by all loyal men; but the grand jury will be glad to learn from the Court that it is also subject to indictment and condign punishment.

On August 22, the newspapers named by the grand jury were suspended from the mail by order of the New York postmaster.

When their next issues were delivered to Northern cities by train, the United States marshall for the Eastern District seized all the copies, in accordance with the War Department’s General Order No. 67.

That order specified that “all correspondence and communications” which put the public safety at risk should be confiscated, and that, in future, the punishment for creating such correspondence and communications would be death.
—Robert S. Harper, Lincoln and the Press, 1951, pp.114-116.

History professor Joyce Lee Malcolm discusses, in the Weekend edition of the Journal, the unwillingness of the British government to defend its subjects against crime rising comcomitantly with its determination to prevent their defending themselves.

With Great Britain now the world’s most violent developed country, the British government has hit upon a way to reduce the number of cases before the courts: Police have been instructed to let off with a caution burglars and those who admit responsibility for some 60 other crimes ranging from assault and arson to sex with an underage girl. That is, no jail time, no fine, no community service, no court appearance. It’s cheap, quick, saves time and money, and best of all the offenders won’t tax an already overcrowded jail system.

Not everyone will be treated so leniently. A new surveillance system promises to hunt down anyone exceeding the speed limit. Using excessive force against a burglar or mugger will earn you a conviction for assault or, if you seriously harm him, a long sentence. Tony Martin, the Norfolk farmer jailed for killing one burglar and wounding another during the seventh break-in at his rural home, was denied parole because he posed a threat to burglars. The career burglar whom Mr. Martin wounded got out early.

Using a cap pistol, as an elderly woman did to scare off a gang of youths, will bring you to court for putting someone in fear. Recently, police tried to stop David Collinson from entering his burning home to rescue his asthmatic wife. He refused to obey and, brandishing a toy pistol, dashed into the blaze. Minutes later he returned with his wife and dog and apologized to the police. Not good enough. In April Mr. Collinson was sentenced to a year in prison for being aggressive towards the officers and brandishing the toy pistol. Still, at least he won’t be sharing his cell with an arsonist or thief.

How did things come to a pass where law-abiding citizens are treated as criminals and criminals as victims? A giant step was the 1953 Prevention of Crime Act, making it illegal to carry any article for an offensive purpose; any item carried for self-defense was automatically an offensive weapon and the carrier is guilty until proven innocent. At the time a parliamentarian protested that “The object of a weapon was to assist weakness to cope with strength and it is this ability that the bill was framed to destroy.” The government countered that the public should be discouraged “from going about with offensive weapons in their pockets; it is the duty of society to protect them.”

The trouble is that society cannot and does not protect them. Yet successive governments have insisted protection be left to the professionals, meanwhile banning all sorts of weapons, from firearms to chemical sprays. They hope to add toy or replica guns to the list along with kitchen knives with points. Other legislation has limited self-defense to what seems reasonable to a court much later.

Although British governments insist upon sole responsibility for protecting individuals, for ideological and economic reasons they have adopted a lenient approach toward offenders. Because prisons are expensive and don’t reform their residents, fewer offenders are incarcerated. Those who are get sharply reduced sentences, and serve just half of these. Still, with crime rates rising, prisons are overcrowded and additional jail space will not be available anytime soon. The public learned in April that among convicts released early to ease overcrowding were violent or sex offenders serving mandatory life sentences who were freed after as little as 15 months.

And the slackening of law enforcement continues to stimulate the Labour Government’s erosion of the ancient liberties which were always England’s pride.

...a host of actions have been initiated to bring about more convictions. At the end of its 2003 session Parliament repealed the 800-year-old guarantee against double jeopardy. Now anyone acquitted of a serious crime can be retried if “new and compelling evidence” is brought forward. Parliament tinkered with the definition of “new” to make that burden easier to meet. The test for “new” in these criminal cases, Lord Neill pointed out, will be lower than “is used habitually in civil cases. In a civil case, one would have to show that the new evidence was not reasonably available on the previous occasion. There is no such requirement here.”

Parliament was so excited by the benefits of chucking the ancient prohibition that it extended the repeal of double jeopardy from murder to cases of rape, manslaughter, kidnapping, drug-trafficking and some 20 other serious crimes. For good measure it made the new act retroactive. Henceforth, no one who has been, or will be, tried and acquitted of a serious crime can feel confident he will not be tried again, and again.

To make the prosecutor’s task still easier, he is now permitted to use hearsay evidence—goodbye to confronting witnesses—to introduce a defendant’s prior record, and the number of jury trials is to be reduced. Still, the government has helped the homeowner by sponsoring a law “to prevent homeowners being sued by intruders who injure themselves while breaking in.”

It may be crass to point out that the British people, stripped of their ability to protect themselves and of other ancient rights and left to the mercy of criminals, have gotten the worst of both worlds. Still, as one citizen, referring to the new policy of letting criminals off with a caution, suggested: “Perhaps it would be easier and safer for the honest citizens of the U.K. to move into the prisons and the criminals to be let out.”

Just last week, the BBC was reporting on the success of a “knife amnesty.”

Legalization of polygamy following legalization of gay marriage already happend in the Netherlands. It could happen here. Stanley Kurtz, in a must read article, identifies the fundamental connections between monogamy and democracy.

Alexis de Tocqueville, that great nineteenth-century student of America, pointed to the abolition of primogeniture (exclusive property inheritance by first-born sons) as the social key to American democracy. Once American children inherited equally, said Tocqueville, landed estates were dispersed, and the ethos of kin unity and hierarchy was replaced by a spirit of democratic equality. Yet America’s abolition of primogeniture was only the culmination of a process begun centuries earlier by the Christian Church. Muslim families arrange marriages to cousins and other kin, thereby reinforcing couples’ identification with family and tribe. But from the fourth century through the Middle Ages, the Church fought to protect individual choice in marriage, while prohibiting marriage between cousins and other relatives. That undercut social forms based on kinship and collective identity, ultimately leading to the triumph of democratic individualism in the West.

Yet the weakening or even disappearance of extended kinship groups from family life in the West poses a problem. If families aren’t going to be held together by collective honor, mutual obligation, and shared economic interest, how will they cohere? The answer is love. Exclusive affection for a unique individual is the structural foundation on which Western families are built. In polygamous societies, where marriages are arranged and wives and children live collectively, too much individualized love (for spouses or children) endangers group solidarity. Yet in a democratic society, individualized love is praised and cultivated as the foundation of family stability. So take your pick. You can have a love-based democratic culture of monogamy, or an authority-based hierarchical culture of polygamy. But—as the Reynolds Court knew—you can’t have both.

American pioneers, like Daniel Boone and Davy Crockett, made a practice of moving whenever a neigbor settled close enough that they could see the smoke from his chimney. Those old boys were smart.

In today’s metropolitan suburbs, regulation has burgeoned like kudzu. One pays more in taxes per annum than most members of my dad’s generation paid for their house. Those taxes are high enough and increase reliably enough that retirement and a fixed income will require moving for most people.

You get to pay something in the neighborhood of a million bucks for a lot of suburban properties these days, and then you need to get (almost impossible to obtain) permissions to remodel or build anything on your (so-called) own property.

Myself, I’m keeping my 300 acre farm in a rural township of Pennsylvania, where I can shoot guns, remodel my house, or erect a 200 foot replica of the Statue of Liberty painted fuchsia, and nobody can stop me.

Just read this eye-opening account from the Washington Post of life in today’s suburban hell:

Marianne and Marc Duffy say their dream home renovation in Chevy Chase has turned into a suburban nightmare. Their neighbors say the Duffys intentionally flouted building rules when they expanded their $725,000 house on Thornapple Street and have no one to blame but themselves.

Yesterday, a Montgomery County appeals board reaffirmed an earlier ruling that the Duffys had rebuilt their house too close to the street and to neighbors. The Duffys say the decision leaves them two choices: Move the house a few feet at a cost of $100,000 or continue an expensive battle in court….

The dispute has shed new light on the inner workings of the county’s Department of Permitting Services, which reversed course at least five times in the case, the Duffys said. The agency issued renovation permits to the couple last year but later pulled them back and ordered work stopped after neighbors complained that the Duffys had actually demolished and rebuilt the house. The couple are renting a house nearby.

The case has pitted the Duffys, both securities lawyers, against a group of prominent opponents, including two journalists—Mayer, a writer for the New Yorker magazine, and her husband, William Hamilton, a Washington Post editor—as well as lawyer Michael Eig and his historic preservationist wife Emily Hotaling Eig, former ABC News reporter Jackie Judd and real estate agent Kristin Gerlach. Both sides had lawyers but recently decided to represent themselves.

Neither side has signaled a willingness to give up the fight, while acknowledging the strain the protracted battle, including six days of hearings, has put on their lives.

The dispute has roiled the neighborhood, sparked contentious discussions at Town Council meetings, generated letters to local newspapers and debates on talk radio, and fueled discussions about liberal conspiracies.

Moral? Don’t live near pretentious suburban liberals.

President Bush intervened in the conflict between the Justice Department and Congress, ordering the material taken from Rep. William Jefferson’s office sealed for 45 days, obviously in order to provide time for judicial review.

The president deserves commendation for acting responsibly on the occasion of a conflict in the Constitutional balance between federal branches. I think myself that a number of usually extremely perspicacious commentators on the Right went off half-cocked on this one.

Readers will recall that the FBI searched Rep. Jefferson’s office on Saturday and Sunday, and that the US Constitution, Article 1, Section 6, says:

The Senators and Representatives shall receive a compensation for their services, to be ascertained by law, and paid out of the treasury of the United States. They shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.

——————
In evaluating these kinds of issue, I think that a good starting point is always Justice Joseph Story (Y 1798)’s Commentaries on the Constitution of the United States (1833).

On Article 1, Section 6, Justice Story decidedly notes the importance of legislative immunity :

§ 856. The next part of the clause regards the privilege of the members from arrest, except for crimes, during their attendance at the sessions of congress, and their going to, and returning from them. This privilege is conceded by law to the humblest suitor and witness in a court of justice; and it would be strange, indeed, if it were denied to the highest functionaries of the state in the discharge of their public duties. It belongs to congress in common with all other legislative bodies, which exist, or have existed in America, since its first settlement, under every variety of government; and it has immemorially constituted a privilege of both houses of the British parliament.

It seems absolutely indispensable for the just exercise of the legislative power in every nation, purporting to possess a free constitution of government; and it cannot be surrendered without endangering the public liberties, as well as the private independence of the members.

§ 857. This privilege from arrest, privileges them of course against all process, the disobedience to which is punishable by attachment of the person, such as a subpoena ad respondendum, aut testificandum, or a summons to serve on a jury; and (as has been justly observed) with reason, because a member has superior duties to perform in another place. When a representative is withdrawn from his seat by a summons, the people, whom he represents, lose their voice in debate and vote, as they do in his voluntary absence.

The legislative immunity in Britain, Story notes, was confined to intervals only modestly longer than the actual sessions of Parliament.

§ 858. The privilege of the peers of the British parliament to be free from arrest, in civil cases, is for ever sacred and inviolable. For other purposes, (as for common process,) it seems, that their privilege did not extend, but from the teste of the summons to parliament, and for twenty days before and after the session. But that period has now, as to all common process but arrest, been taken away by statute.

The privilege of the members of the house of commons from arrest is for forty days after every prorogation, and for forty days before the next appointed meeting, which in effect is as long, as the parliament lasts, it seldom being prorogued for more than four score days, at a time.

In case of a dissolution of parliament, it does not appear, that the privilege is confined to any precise time; the rule being, that the party is entitled to it for a convenient time, redeundo.

In today’s United States, when it ordinarily takes a year or more to go to trial, one would expect legislators to be able to claim very long intervals of immunity.

Even in Britain, Story notes, that Spirit of Modernity has tended to curtail the principle of legislative immunity short of the point where it might benefit the contents of Rep. Jefferson’s office.

§ 859. The privilege of members of parliament formerly extended also to their servants and goods, so that they could not be arrested. But so far, as it went to obstruct the ordinary course of justice in the British courts, it has since been restrained.

In the members of congress, the privilege is strictly personal, and does not extend to their servants or property.

Note that Justice Story accords Congress only a lower case “c.” The American principle of Republicanism was decidedly stronger and more keenly felt in 1833 than it is today, when presidents are accompanied routinely by a complement of bodyguards and functionaries the Sultan of Byzantium might envy. I think Justice Story’s observations are informative, as always, but I think an able attorney would not have the least difficulty in arguing either side of Rep. Jeffeson’s claim to the application of Article 1, Section 6 privileges to his office papers (and bags of currency).

Prominent Appeals Court Judge J. Michael Luttig has resigned his $171,800 per annum judicial position, and accepted the position of senior vice president and general counsel of Boeing.

Judge Luttig’s new job will probably feature compensation including both an annual salary in seven figures range and substantial stock options.

Some judges do willingly sacrifice their family’s financial well being in order to pursue public service, but the astonishing gap between what state and federal judges are paid in the United States and the kind of money attorneys of equivalent calibre can command in the private sector really ought to provoke reflection.

Do we want the best qualified people on the bench? Or is it more important to limit the compensation of public officials to figures easily defensible to the general public?

These days, one has only to enter an ordinary state court to see talented attorneys, the partners of major firms, and distinguished graduates of top national law schools, strugging to explain cases and the law to much less well-informed judges, the graduates of the humblest law schools, to whom the meagre judicial salaries are actually attractive. When lawyers are normally conspicuously better qualified than judges, we are clearly not paying judges enough.

Michelle Malkin is posting this morning opposing amnesty for illegal aliens. Sorry, Michelle, I don’t agree with you for once.

Immigration policy is a classic example of the kind of issue America simply cannot handle rationally.

It’s just like Prohibition and Drug Control. Nice people want to have a drink themselves before dinner, but you know what problems result from letting those workingmen waste their paychecks on beer down at the saloon. Of course, we all smoked a little weed in our day, but how could we walk the streets safely if we didn’t imprison vast numbers of poor minority group members for drugs? Besides, we don’t want our children’s academic success compromised by experimenting with marijuana. They might become pothead slackers. Of course, we want our lawns mowed, and we naturally enjoy the low prices resulting from the availability of cheap labor, but we don’t want all those Mexicans all over the place. Can’t they just go home to Guadalajara when they’ve finished the yard work?

We have a fine tradition of hypocrisy in this country going right back to the Pilgrim Fathers who settled Massachusetts Bay. Americans want to have it both ways. We all want the hard work and the stoop labor done by somebody else. (We’re certainly not going to do it.) And we want affordable services from cheap labor. We just don’t want all those funny-looking riff raff foreigners hanging around spoiling our views. So we demand that the politicians get to work, and pass some laws, which we still really don’t want enforced.

When—as happened with Prohibition—the law proves impossible to enforce, and the law becomes a joke, the answer is to get rid of the law we’re all collaborating in breaking, not redouble our efforts to enforce the inconvenient law.

Illegal Latin Americans working in the United States are illegal because we have unrealistic immigration quotas (which fail to recognize our national need for labor), and the barrers are just too high. What Bush thinks in private, and at present doesn’t dare say out loud, is perfectly correct. We need to legalize the status of everybody already here, and we need to change the rules to make immigration easier to do legally. And don’t give me any of that sanctimonious statist stuff about how it’s wrong to “reward breaking the law.” We Americans have lots of stupid laws, and we break them all the time. Do you always drive 55 mph, Michelle?

This is a country that has major public debates over how we handle the Korans we supply to incarcerated terrorists, and you think we’re going to kick in doors, handcuff, and forcibly expel millions of hard-working people who are here doing all of our most unpleasant jobs at the lowest wages? It’s never going to happen, and – of course – it shouldn’t happen.

A three judge panel of California’s “Ninth Circus,” as Rush Limbaugh likes to call the United States Court of Appeals for the Ninth Circuit, has preposterously decided that the enforcement by the City of Los Angeles of a municipal ordinance, which states that “no person shall sit, lie or sleep in or upon any street, sidewalk or public way,” violates the constitutional prohibition against cruel and punishment by criminalizing “the status of homelessness by making it a crime to be homeless.”

Clinton appointee Kim McLane Wardlaw wrote in her decision:

(this) case stands for “the proposition that the Eighth Amendment prohibits the state from punishing an involuntary act or condition if it is the unavoidable consequence of one’s status or being.”

Wardlaw scoffed at the position Los Angeles officials took in the case.

“The City…apparently believes that [the plaintiffs] can avoid sitting, lying and sleeping for days, weeks, or months at a time to comply with the City’s ordinance, as if human beings could remain in perpetual motion. That being an impossibility, by criminalizing, sitting lying, and sleeping, the City is in fact criminalizing [the plaintiffs] status as homeless individuals.”

The judge said that evidence introduced in the case, entitled Edward Jones v. City of Los Angeles, showed the plaintiffs “are not on the streets of Skid Row by informed choice.”

The notion that the framers intended to ban municipal prohibitions against public dormition (or vagrancy) as “cruel or unusual” is patently ridiculous. Sturdy beggars were publicly flogged for idleness in most states at the time of the adoption of the Bill of Rights.

Even farther-fetched is Judge Wardlaw’s notion of non-volition. If an individual ceases attempting to lead a responsible life, declines employment, and chooses to devote his waking hours to the cheapest possible forms of drug or alcohol-induced intoxication, funded by crime or begging, and neglects to make provision for his own shelter, he didn’t have a choice? When exactly was it that choice vanished?

One of the most apt commentaries on Judge Wardlaw’s absurdly indulgent philosophy can be found in Fritz Lang’s 1931 film M.

In M, the crimes of a child-murderer have paralysed both ordinary life and criminal activity in Berlin, as the police furiously search for the pedophile serial killer. The criminal underworld decides to take matters into its own hands, in order to remove the extraordinary police surveillance and get back to normal profitable business. Finally, Hans Beckert (played by the young Peter Lorre), the murderer of small children, is trapped by the criminals in a basement, and hailed before an informal underworld tribunal, which has every intention of ordering his immediate extermination.

“Ich kann nicht anders,” (I cannot do otherwise) Lorre screams pathetically, pleading for mercy (which is not forthcoming).

(Ironically, Beckert is quoting Martin Luther’s response, April 1, 1521, to the efforts of the Emperor Charles V at the Diet of Worms to persuade him to reconcile with the Catholic Church, and avoid dividing the Christian Church.)

Liberals, like Judge Wardlaw, confuse the existence of the involuntary impulses with having no choice about complying. Lots of people, probably almost everyone, feels an inclination to behave completely irresponsibly, in a fashion which could—in the end—lead to a life spent sipping Thunderbird in the gutter, and panhandling for quarters, but not everyone gives way to that particular impulse. I daresay there must be in the world people who feel sexual temptations involving children, who don’t choose to implement them, as well. It is difficult to see how one can excuse Willie the Wino for having no choice (Ich kann nicht anders!), and not excuse Hans Beckert and Ted Bundy too.

Harvard Law Professor William J. Stuntz in New Republic has a provocative essay on the history of privacy (both that private citizens and that of government), attitudes of the left and right toward both, and considers the contemporary impact and proper limits of the right to privacy of the individual and exposure to public scrutiny of government operations.

Convicted terrorist Ilych Ramirez Sanchez, known world-wide as “Carlos the Jackal,” though serving a life sentence, was permitted by the enlightened government of France to give an interview in 2004 broadcast by French M6 television.

In that interview, Sanchez argued that his crimes were justified and that there were no innocent victims of terrorism. He also expressed satisfaction over the September 11 attacks in the United States and allegedly laughed that “the Great Satan got it up the arse.”

French prosecutors sought a fine of E20,000 ($34,022) for these remarks. But, at the end of the judicial proceedings, French courts only fined him E5000 ($8505), finding that his arguing that terrorism was justified did constitute a crime under French law, but his expressions of pleasure at the Al Qaeda attacks on the United States represented only a personal reaction, and were not justiciable.

Guardian – Telegraph (Australia) – Reuters

There has been an increasing volume of criticism in recent years of the strange double-standard of contemporary American universities in which diversity consisting of the presence on campus of representatives of recognized victim groups is esteemed as of essential educational value, but diversity of faculty political opinion is conspicuous by its absence, and not valued at all.

Adam Liptak, in yesterday’s Times, has a great deal of fun noting the astonishing unanimity of law professors from prestigious schools on the right of American universities receiving money from the federal government to exclude military recruiters. Last Monday’s Supreme Court decision in Rumsfeld v. Forum for Academic and Institutional Rights produced a highly embarassing rebuke.

Hundreds of law professors at the nation’s finest law schools, representing the all-but-unanimous views of the legal academy, filed a series of briefs last year on one side of a Supreme Court case. On Web sites and in lecture halls, the professors spoke out about the case, which they called a crucial test for gay rights and free speech.

Marshalling their collective intellectual firepower and moral outrage, the professors, from Harvard, Yale and elsewhere, made it sound obvious: Universities should be allowed, they said, to take government money but oppose the military’s policies on homosexuality by restricting military recruiting on campus.

On Monday, the best minds in the legal business struck out. The vote was 8-to-0 against them — a shutout, a rout, a humiliation. It is one thing for liberal academics to fail to persuade conservative justices like Antonin Scalia and Clarence Thomas. But the law professors did not produce so much as a sympathetic word from liberal justices like Ruth Bader Ginsburg, David H. Souter and John Paul Stevens. (The newest justice, Samuel A. Alito Jr., did not participate.)And if the result was not embarrassing enough, there was also the tone of the court’s unanimous decision, written by Chief Justice John G. Roberts Jr. In patient cadences, the kind you use in addressing a slightly dull child, the chief justice explained that law students would not assume that their schools supported the military’s “don’t ask, don’t tell” policy if they saw military recruiters on campus.

So traumatic was the unanimous SCOTUS decision that, already, a variety of theories accounting for the discrepancy of opinion have been articulated:

There is the reactionary Supreme Court hypothesis. William N. Eskridge Jr., a Yale law professor who helped shape the losing side’s arguments, said the defeat demonstrates the “ridiculously obvious” point that the Supreme Court is “a justificatory instrument” for military policy.

Then there is the clueless law professor theory.

Peter H. Schuck, a Yale law professor who thought the law schools’ legal position was misguided, said that many professors were so indignant about the military’s treatment of gay men and women and so scornful of the military itself that their judgment became clouded.

“There is often a feeling that if something is morally wrong it must be legally wrong and that clever arguments can bring those two things into alignment,” Professor Schuck said.

The elite law schools have for decades been overwhelmingly liberal, Professor Schuck said, and that may have blinded professors to problems with their arguments. Only one law school brief, organized by members of the faculty of George Mason University School of Law, supported the military.

“If you put together a Vietnam legacy, a gay rights ideology, the idea that courts can solve all problems and the legal academy’s echo chamber, you get this result, ” said Joseph Zengerle, an adjunct professor at George Mason who helped write the brief.

We’ll vote for the latter. Uniformity of opinion allowed to thrive too long insulated from challenge inevitably breeds subjectivity and self indulgence.

David Schmidtz at Cato discusses which forms of inequality matter, i.e., which deserve intervention and redress. Replies from Peter Singer, Tom G. Palmer, and Jacob Hacker will be forthcoming. The essay is excerpted from his new book, The Elements of Justice.

The key philosophical point: that there is a prior moral question about which inequalities are ours (i.e., society’s) to arrange, lies outside the specific scope of this essay’s focus.

Hat tip to Glenn Reynolds.

Eric at Classical Values identifies the typical maneuver employed by statists to expand the definition of crime:

Existing laws don’t “work”! New laws are needed! I’m confused about what seems to be a recurrent pattern in this country. When there are laws against something, and these laws are not enforced, instead of enforcing the existing laws, there’s always a demand for new laws.Tougher laws.

It’s as if there’s some magical belief system that the tougher the law is, the stronger it is, and the more likely that human conduct will be deterred. Enforcement of existing laws never seems to enter anyone’s mind.

The point here is not whether I happen to agree with the laws. It’s just a recurrent pattern. The drug laws started as a tax measure in 1914, and ever since, they have become ever more draconian. Examples aren’t really needed, although the latest trend (now that they’ve run out of drugs to make illegal) is to criminalize precursor ingredients. So Americans are no longer allowed to buy cold medicine over the counter—all because it might be used to manufacture illegal drugs. What’s next? Glassware which might be used to cook drugs…

The pattern seems to be pass laws, ignore them, wait until the problem is huge, then pass draconian laws, plus new laws against conduct which resulted from the previous climate of non-enforcement.

It has long been illegal for felons to buy or possess guns, and to buy, sell, or transfer a gun to a felon. But felons buy guns all the time illegally. Which means that we need a crackdown on what? On perfectly legal purchases of guns by ordinary citizens.

Add to this the trend of sending in SWAT teams to perform routine law enforcement, and it’s fair to wonder whether the goal is to create a police state.

I hate police states—and I’m just wondering whether neglecting to enforce the law is one of the precursor ingredients.

Ben Shapiro listened to Al Gore’s wild accusations, made in a speech in Saudi Arabia, alleging that the US had comitted atrocities against Arabs, and wondered why, in time of war, this kind of activity is not prosecuted.

At some point, opposition must be considered disloyal. At some point, the American people must say “enough.” At some point, Republicans in Congress must stop delicately tiptoeing with regard to sedition and must pass legislation to prosecute such sedition.

“Freedom of speech!” the American Civil Liberties Union will protest. Before we buy into the slogan, we must remember our history. President Abraham Lincoln suspended the writ of habeas corpus and allowed governmental officials to arrest Rep. Clement Vallandigham after Vallandigham called the Civil War “cruel” and “wicked,” shut down hundreds of opposition newspapers, and had members of the Maryland legislature placed in prison to prevent Maryland’s secession. The Union won the Civil War.

Under the Espionage Act of 1917, opponents of World War I were routinely prosecuted, and the Supreme Court routinely upheld their convictions. Justice Oliver Wendell Holmes rightly wrote, “When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right.” The Allies won World War I.

During World War II, President Franklin D. Roosevelt authorized the internment of hundreds of thousands of Japanese-Americans, as well as allowing the prosecution and/or deportation of those who opposed the war. The Allies won World War II…

This is not to argue that every measure taken by the government to prosecute opponents of American wars is just or right or Constitutional. Some restrictions, however, are just and right and Constitutional—and necessary. No war can be won when members of a disloyal opposition are given free reign to undermine it.

Pretty much everyone today passes along by email some daily item of of news or amusement (a joke, disaster story, or just an anecdote offering a moment’s entertainment). People also commonly exchange stories of just how rudely people will sometimes behave in business these days in situations when no further profit is to be expected. The combination recently ran amok bringing 15 minutes of unwelcome fame to a naughty little Boston attorney.

Massachusetts Lawyers Weekly

Feb. 19) – Two weeks ago, newly minted young Boston attorney Dianna Abdala e-mailed a prospective employer, William Korman.

“The pay you are offering would neither fulfill me nor support the lifestyle I am living,” she wrote, turning down his job offer.

Korman was not happy.

“You had two interviews, were offered and accepted the job (indeed, you had a definite start date).”

He’d already ordered her stationery and business cards, and set up her office computer and was amazed she conveyed her second thoughts by e-mail.

“It smacks of immaturity and is quite unprofessional,” he wrote.

Abdala’s response? “A real lawyer would have put the contract into writing and not exercised any such reliance until he did so,” she wrote.

“This is a very small legal community,” Korman responded. “Do you really want to start pissing off more experienced lawyers at this early stage of your career?”

Abdala finally answered, “Bla bla bla.”

An ordinary office spat? Nope. Korman forwarded the exchange to a friend … and it spread throughout the Boston legal community—and then to the Boston Globe, to the International Herald Tribune, to ABC News’ “Nightline.”

It was the “bla bla bla” heard round the world—making Abdala the most famous, perhaps notorious, 24-year-old lawyer in America.

asks the Liberator Online in the February issue.

Before you answer, consider:

In January, an Atlanta man was arrested and handcuffed for selling a subway token at face value. Donald Pirone observed another passenger having difficulty with a token vending machine, so he gave him a $1.75 token. After the man insisted on paying him, Pirone was cited by a transit officer for a misdemeanor, since state law prohibits selling tokens—even at face value. A MARTA spokesperson denied that handcuffing a customer for helping another customer was excessive. “There are customer service phones for people who are having trouble getting tokens out of the machine,” she said.

Meanwhile, in late 2005, an Ohio man spent three days in jail because he didn’t put identification tags on his family’s pet turtles and snakes. Terry Wilkins broke a state law requiring owners of native reptiles to tag them with a PIT (personal-integrated transponder). The tags, which are the size of a grain of rice and can be inserted under the animal’s skin, contain a bar code readable by a scanner. Wilkins refused to tag the animals because he said PIT tags cause health problems in small reptiles.

It goes on. In Kentucky, Larry Casteel was arrested for not attending a parenting class for divorcing parents, as mandated by state law. He spent the night in jail. In New Jersey, police are giving tickets to people who leave their cars running for more than three minutes in store parking lots. Stopwatch-wielding police hit the offenders with a $200 fine for violating the state’s anti-idling law. In northwest Georgia, 49 convenience store owners were arrested for selling legal products to customers. The owners—mostly of Indian background—sold cold medicine, baking soda, table salt, matches, and lantern fuel. Police said the ingredients could be used to make methamphetamine. In Burlington, Vermont, police are ticketing people for not removing keys from the ignition and locking their cars. Police said the state law prevents car thefts. Violators are fined $79.

So—are you still sure you can get through a day without violating a law? If so, don’t worry. Legislators are making more things illegal. In New York City, a city council member wants to make it a crime to ride a bike without a registration number tag. Violators would face up to 15 days imprisonment. In Illinois, a state senator wants to make it a crime not to have a carbon monoxide detector installed in your home. In Pennsylvania, a state senator filed a bill to allow police to fine drivers $75 if they don’t clean snow off their car. In Virginia, a state legislator wants to make it illegal to show your underwear in public. Girls (or boys) with low-rider pants would get hit with a $50 fine if their thongs show.

Novelist Ayn Rand once wrote: “There’s no way to rule innocent men. The only power any government has is the power to crack down on criminals. Well, when there aren’t enough criminals, one makes them. One declares so many things to be a crime that it becomes impossible to live without breaking laws.”

Have we reached that point? Is it impossible to live without breaking laws? Before you answer, better check to make sure that your pets have transponder tags, that you didn’t leave the keys in your car, and that your underwear is not showing.

Constitutional originalists shuddered when Justice Stevens exercised his intellectual ingenuity in Kelo v. City of New London to do to the Takings Clause of the 5th Amendment what veterinarians commonly do to tomcats. And Yolo County, California is currently in the process of providing further opportunity for judicial creativity.

New London succeeded in winning the right to take residents’ homes by eminent domain, in order to convey their properties to developers, whose residential and commercial projects would promote the city’s economic development. Yolo County wants to seize the 17,300 acre Conaway Ranch, and operate it itself, precisely in order to preclude economic development.

The county intends to get the money from the spectacularly civic-minded (and casino-owning) Rumsey Band of Wintun Indians. The noble red men might be looking for space for another bingo hall, what do you think?

But all this is taking place in America’s Dystopian Future, California, where nobody misses a trick. The beleagured ranchers have reorganized themselves into a rival preservation organization, the Conaway Preservation Group, complete with wildlife management plan.

1/17 LA Times — 2/5 SF Chronicle

Posner brings lucidity and skepticism to the NSA electronic surveillance brouhaha in New Republic.

Even the Washington Post can see the Democrat Party’s leftwing activist base functions as an albatross around its neck, assuring that it will never get back into power. Fighting the Alito nomination is futile, but the looney-tune left is spoiling for a fight anyway, and the war-drums of the leftwing blogosphere are beating loudly as the vote approaches:

Democrats are getting an early glimpse of an intraparty rift that could complicate efforts to win back the White House: fiery liberals raising their voices on Web sites and in interest groups vs. elected officials trying to appeal to a much broader audience.

These activists—spearheaded by battle-ready bloggers and making their influence felt through relentless e-mail campaigns—have denounced what they regard as a flaccid Democratic response to the Supreme Court fight, President Bush’s upcoming State of the Union address and the Iraq war. In every case, they have portrayed party leaders as gutless sellouts…

“The bloggers and online donors represent an important resource for the party, but they are not representative of the majority you need to win elections,” said Steve Elmendorf, a Democratic lobbyist who advised Kerry’s 2004 presidential campaign. “The trick will be to harness their energy and their money without looking like you are a captive of the activist left.”

For a fine example of moonbat reasoning, written by an author who would never dream of imagining that her political opponents have a point of view representing anything beyond insensate malice, incapable of understanding or respecting any form of process, try Angelica’s If not now, then when? rant.

John Lofton notes some of the ironies of Senator Edward Kennedy of Massachusetts sitting in judgement on Samuel Alito’s ethics and integrity:

Kennedy among other things:

— Was suspended from Harvard because of cheating when he was caught getting another student to take a Spanish test for him.

— Had his father get his Army duty changed to two years from the four years he signed up for. He ended up a guard at NATO headquarters in Paris rather than in Korea where a war was going on.

— Was turned down by Harvard Law School because of poor grades.

— Was arrested four times, while a student at the University of Virginia, for reckless driving, racing with a cop to avoid arrest and for operating a vehicle without a license.

MARY JO KOPECHNE might have been saved if help summoned immediately, according to underwater diver who retrieved her body— Killed a young woman, Mary Jo Kopechne, by driving her off a bridge on Chappaquiddick Island in 1969. Following this “accident,” which was, arguably, negligent homicide, Kennedy made 17 credit card phone calls. But it was not until the 18th phone call, nine hours after his car ran off this bridge, that Kennedy reported this “accident.” The frogman who retrieved the dead girl’s body said that he believed she might have been saved if help had been summoned immediately. Kennedy received a two-month suspended sentence, serving no time in jail.

The streets of the United States may not be paved with gold, but the America culture of complaint can be awfully lucrative.

Two Salvadoran illegal immigrants found themselves confronted in 2003, upon making their way informally into the United States, by pistol-wielding Casey Nethercott, a member of Ranch Rescue, a right-wing volunteer group trying to protect private property along the Southwestern US border from incursions by illegal aliens.

Fatima del Socorro Leiva Medina and Edwin Alfredo Mancia Gonzales accused Nethercott of pistol-whipping them, and he was acquitted of the charge, but (thanks to the intervention of the Southern Poverty Law Center) the lucky Salvadorans get to stay in the United States as “crime victims,” and they are also now property owners.

A Cochise County judge awarded the pair ownership of Mr. Nethercott’s 70 acre ranch near Bisbee, Arizona, when Nethercott, now serving a five year term in Texas for illegal possession of that pistol (having had some sort of previous conviction), failed to contest their lawsuit asking for $500,000 in damages. It appears that no legal do-gooding organization was assisting Mr. Nethercott.

AP — KLTV