Alexey Titarenko‘s time-lapsed photos produce images of a city inhabited by ghosts.

Hat tip to Cory Doctorow.

Larry Lessig:

What I mean by “the Kozinski mess” is the total inability of the media — including we, the media, bloggers — to get the basic facts right, and keep the reality in perspective. The real story here is how easily we let such a baseless smear travel – and our need is for a better developed immunity (in the sense of immunity from a virus) from this sort of garbage.

Here are the facts as I’ve been able to tell: For at least a month, a disgruntled litigant, angry at Judge Kozinski (and the Ninth Circuit) has been talking to the media to try to smear Kozinski. Kozinski had sent a link to a file (unrelated to the stuff being reported about) that was stored on a file server maintained by Kozinski’s son, Yale. From that link (and a mistake in how the server was configured), it was possible to determine the directory structure for the server. From that directory structure, it was possible to see likely interesting places to peer. The disgruntled sort did that, and shopped some of what he found to the news sources that are now spreading it.

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Eugene Volokh, who clerked for Judge Kozinski, is even more indignant.

A lawyer (Cyrus Sanai) who has long had a grudge against Judge Kozinski finds out that the Kozinski family has a network server with various files on it. The controversial files on that server aren’t linked to from the Web, and aren’t indexed on search engines. They are generally meant only for family members and a few other people who get specific pointers to them.

But the lawyer figures out the private server’s internal directory structure, rummages around, finds some of the files, and downloads them. And some of the files contain what is basically — if what I saw at Patterico’s site is representative — visual sexual humor. There are some spoofs, for instance of the MasterCard commercials, some puns, some absurdities. Kozinski, or someone in his family, apparently got them sent to him, and decided to save them alongside a bunch of other stuff he found interesting or amusing.

Now the fruit of this disgruntled lawyer’s rummaging through someone else’s personal files somehow becomes a national news story. Why? Because Kozinski is presiding over an obscenity trial? All this stuff — the sort of sexual humor that gets circulated all the time — is not remotely in the same league as what the defendant is being criminally prosecuted for. Recall that the defendant is being prosecuted precisely because his sex-and-defecation movies are so far out even by modern standards of actual pornography. Sanai’s discoveries are similar to someone’s finding that a judge who’s presiding over a drunk driving trial has some screw-top bottles of rosé wine in his cupboard at home, shamelessly displayed in a way that the whole world can see them, if the whole world stands on its tiptoes and peers through a back window. The news value of that would be what, exactly? (Yes, I know screw-tops are becoming legit, but pretend it’s ten years ago.)

OK, people are saying, it was careless of Kozinski not to make sure that the site (which was apparently managed by one of Kozinski’s grown sons) was properly secured. Sure, in retrospect, whenever something leads to this sort of media circus, by definition one would have been wise to take more care to prevent it. But surely even otherwise reasonable people might fail to plan for their enemies’ rummaging around through the files on a private family server.

It’s kind of like your parking your car on the street, locking it, but forgetting to close a back window — or like your throwing out something in the trash without shredding it and leaving the trash cans by the curb. Then someone who has a grudge against you comes by and starts using the open window to rummage around in the stuff you have piled up in the back seat, or starts rummaging through your trash. (Note that to my knowledge such rummaging probably isn’t even a crime in many places.)

Lo and behold, one of the items your enemy finds is a notebook in which you’ve pasted some visual sex jokes that people have sent you. He takes pictures of all the pages and then runs to the newspaper; because of your high-profile job, the newspapers all cover this. Should you have closed the back window? Should you have shredded the stuff before putting in the trash? In retrospect, sure. But how many of us live like that in everything we do?

Jeez, folks, Kozinski has a quirky sense of humor, and keeps some joke pictures and videos on his computer rather than throwing them away. I’m sure they aren’t the kinds of things some people would enjoy seeing. But he wasn’t trying to show them to those people! He was just minding his own business, keeping some files on his own private server. And now it’s a national news story.

Robert Samuelson does a nice job of identifying the reality behind the campaign facade.

His campaign is itself a contradiction.

On the one hand, he projects himself as the great conciliator. He uses the metaphor of his race to argue that he is uniquely suited to bridge differences between liberals and conservatives, young and old, rich and poor — to craft a new centrist politics. On the other hand, his actual agenda is highly partisan and undermines many of his stated goals. He wants to stimulate economic growth, but his hostility toward trade agreements threatens export-led growth (which is now beginning). He advocates greater energy independence but pretends this can occur without more domestic drilling for oil and natural gas.

All this reflects Obama’s legislative record. From 2005 to 2007, he voted with his party 97 percent of the time, reports the Politico. But Obama’s clever campaign strategy would put him in a bind as president. Championing centrism would disappoint many ardent Democrats. Pleasing them would betray his conciliating image. The fact that he has so far straddled the contradiction may confirm his political skills and the quiet aid received from the media, which helped him by virtually ignoring the blatant contradictions.

And what does the straddle tell us of him? Aside from ambition — hardly unique among presidential candidates — I cannot detect powerful convictions in Obama. He seems merely expedient in peddling his convenient conflicts. He strikes me as a super-successful graduate student: the brightest, quickest, most articulate guy in the seminar. In his career, he has advanced mainly by talking and writing — not doing — and may harbor a delusion common to the well-educated: that he can argue and explain his way around any problem.

The head of the Brady Campaign told ABC News he expects to see the Supreme Court throw out DC’s handgun ban.

The nation’s leading gun control group filed a “friend of the court” brief back in January defending the gun ban in Washington, D.C. But with the Supreme Court poised to hand down a potentially landmark decision in the case, the Brady Campaign to Prevent Gun Violence fully expects to lose.

“We’ve lost the battle on what the Second Amendment means,” campaign president Paul Helmke told ABC News. “Seventy-five percent of the public thinks it’s an individual right. Why are we arguing a theory anymore? We are concerned about what we can do practically.”

While the Brady Campaign is waving the white flag in the long-running debate on whether the Second Amendment protects an individual’s right to bear arms or merely a state’s right to assemble a militia, it is hoping that losing the “legal battle” will eventually lead to gun control advocates winning the “political war.”

“We’re expecting D.C. to lose the case,” Helmke said. “But this could be good from the standpoint of the political-legislative side.”

Hilzoy thinks she can, but her arguments amount only to extravagant assertions that everyone, everywhere, and at all times, in peace and in war, tra la! has the same judicial rights and the same access to US courts as a US civilian accused of a domestic crime in peacetime residing in the United States.

who has habeas rights? And where do they extend? The court’s answer to the first question (who?) is, basically: everyone has them. (Meaning: if you are detained by the US government, in circumstances in which habeas rights would normally obtain, your lack of citizenship is no obstacle.)

Shooting at US forces in Afghanistan or conspiring in Karachi to arrange attacks on the civilian populations of US cities are the kinds of circumstances in which people normally enjoy the protections of US citizenship and the protection of US courts? Apparently that’s what Hilzoy, a graduate of Princeton, thinks.

Hilzoy:

if we accept the government’s argument, we would concede that it can legally do what it has tried to do in fact: to create a legal black hole in which it can act outside the law and the Constitution. We cannot do that.

This is, to my mind, the most important holding in the opinion. It defends the separation of powers against an attempt by the Executive to free itself from the constraint of law. That is immensely important.

From Hilzoy’s perspective, there is no legal distinction whatsoever between the United States and foreign soil, no issues of distance, remoteness, or lack of US sovereignty matter. There is no difference between US citizens and aliens, and there is no difference between peace and war.

One expects Hilzoy (and perhaps Justice Kennedy, too) to leap in front of the muzzle of some frontline marine’s rifle, crying out: “Don’t you shoot that chap in the turban (the one firing the AK47)! He’s entitled to counsel, a fair trial, and a full course of appeals before he can be punished. Don’t you go violating his rights, you brute.

In JOHNSON v. EISENTRAGER, 339 U.S. 763 (1950), the Supreme Court ruled:

1. A nonresident enemy alien has no access to our courts in wartime.

2. nonresident enemy aliens, captured and imprisoned abroad, have no right to a writ of habeas corpus in a court of the United States.

3. The Constitution does not confer a right of personal security or an immunity from military trial and punishment upon an alien enemy engaged in the hostile service of a government at war with the United States.

observing:

We are here confronted with a decision whose basic premise is that these prisoners are entitled, as a constitutional right, to sue in some court of the United States for a writ of habeas corpus. To support that assumption we must hold that a prisoner of our military authorities is constitutionally entitled to the writ, even though he (a) is an enemy alien; (b) has never been or resided in the United States; (c) was captured outside of our territory and there held in military custody as a prisoner of war; (d) was tried and convicted by a Military Commission sitting outside the United States; (e) for offenses against laws of war committed outside the United States; (f) and is at all times imprisoned outside the United States.

We have pointed out that the privilege of litigation has been extended to aliens, whether friendly or enemy, only because permitting their presence in the country implied [339 U.S. 763, 778] protection. No such basis can be invoked here, for these prisoners at no relevant time were within any territory over which the United States is sovereign, and the scenes of their offense, their capture, their trial and their punishment were all beyond the territorial jurisdiction of any court of the United States. …

To grant the [339 U.S. 763, 779] writ to these prisoners might mean that our army must transport them across the seas for hearing. This would require allocation of shipping space, guarding personnel, billeting and rations. It might also require transportation for whatever witnesses the prisoners desired to call as well as transportation for those necessary to defend legality of the sentence. The writ, since it is held to be a matter of right, would be equally available to enemies during active hostilities as in the present twilight between war and peace. Such trials would hamper the war effort and bring aid and comfort to the enemy. They would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home. Nor is it unlikely that the result of such enemy litigiousness would be a conflict between judicial and military opinion highly comforting to enemies of the United States.

Moreover, we could expect no reciprocity for placing the litigation weapon in unrestrained enemy hands. The right of judicial refuge from military action, which it is proposed to bestow on the enemy, can purchase no equivalent for benefit of our citizen soldiers.

So how does Justice Kennedy arrive at a different conclusion?

at least three factors are relevant in determining the Suspension Clause’s reach: (1) the detainees’ citizenship and status and the adequacy of the process through which that status was determined; (2) the nature of the sites where apprehension and then detention took place; and (3) the practical obstacles inherent in resolving the prisoner’s entitlement to the writ. Application of this framework reveals, first, that petitioners’ status is in dispute: They are not American citizens, but deny they are enemy combatants; and although they have been afforded some process in CSRT proceedings, there has been no Eisentrager–style trial by military commission for violations of the laws of war. Second, while the sites of petitioners’ apprehension and detention weigh against finding they have Suspension Clause rights, there are critical differences between Eisentrager’s German prison, circa 1950, and the Guantanamo Naval Station in 2008, given the Government’s absolute and indefinite control over the naval station. Third, although the Court is sensitive to the financial and administrative costs of holding the Suspension Clause applicable in a case of military detention abroad, these factors are not dispositive because the Government
presents no credible arguments that the military mission at Guantanamo would be compromised if habeas courts had jurisdiction. The situation in Eisentrager was far different, given the historical context and nature of the military’s mission in post-War Germany.

The only readily comprehensible distinctions Justice Kennedy makes are Bush has shilly-shallied around too long. There should have been more timely military trials and the Guantanamo Naval Station is somehow more under “the absolute and definite control” of the US Government than a prison operated by the US Army in Germany in 1950 was, while WWII involved a different historical context and mission, i.e. was the “Good War.”

(1) perhaps has some merit. (2) simply amounts to a rationalization.

Justice Kennedy’s arguments are weak, and they are clearly self-interested. What this is really all about, as in Rasul, is plain Judicial Branch imperialism and overreaching, the refusal to accept limits to jurisdiction or the supremacy of the Executive in time of war.

Justice Kennedy has produced a very irresponsible opinion, which will surely result in the release of some dangerous and fanatical enemies of the United States, very probably leading to further loss of American lives. Members of today’s American intelligentsia, even those sitting on the Supreme Court, are commonly incapable of seeing what was obvious even to the Ancient Romans, who closed the Temple of Janus in time of war to symbolize the fact that inter arma enim silent leges.

Justice Anthony Kennedy opined, awarding Habeas corpus protection to illegal combatant non-citizens captured overseas bearing arms against the United States in violation of the laws and customs of war.

Justice Kennedy’s ruling will undoubtedly open a Pandora’s box of legal argument and judicial obfuscation which will effectively paralyze the Bush Administration’s hesitant and overly scrupulous efforts to bring mass murderers operating entirely outside the law to justice.

Five of eight members of the Supreme Court have demonstrated themselves to be self-important nincompoops determined to assert judiciary authority over the executive and to strike poses, while demonstrating a truly horrifying obliviousness to legal and historical precedent and common sense.

All this is, of course, the fault of the Bush Administration, which carelessly also overlooked all precedent, and then tried to invent new forms of military justice conformable to the whims, notions, and fantastical scruples invented by its opponents in the establishment media. President Bush and the rest of the civilian administration should simply have avoided injecting themselves into the matter, and thereby allowing entry to lawyers and courts, at all. The administration should have relinquished all authority connected with prisoners captured overseas to the military authorities.

Those military authorities should have authorized local commanders quickly and on the spot by drumhead courtmartial to establish the status of these kinds of prisoners as illegal combatants required to be condemned to death by military custom and law, and those local commanders should have been instructed upon such determination to hang them.

I bet you didn’t even know that there was a National Oceanic and Atmospheric Administration or that it had a National Marine Fisheries Service. I didn’t myself.

There’ve been so many complaints about the weather recently that you can tell they’ve been doing a lousy job of administering the oceans and the atmosphere, and that Marine Fisheries Service has never once delivered fish and chips to my house. But it is clear those federal bureaucrats in charge of the waters and the air and lords of the fish that swim in the sea have other ways of occupying their time.

They’re now proposing to license sport fishing in the ocean. They don’t even really want the money. The states get to keep it in return for selling the licenses. But that way, they can keep better track of us, you see.

The Boston Globe has the story.

The only thing anyone’s ever needed to sportfish off New England’s coast is a rod, reel, and good luck.

Now, the more than 2.5 million people who fish for fun here will probably need a license.

The federal agency that manages fishing announced yesterday that it intends to require most saltwater anglers to register before fishing begins in 2009 and plans to start charging for the privilege by 2011.

Fishery officials have grown increasingly concerned about how many fish the nation’s recreational fishermen reel in from the ocean each year.

“This will lead to better stock assessments and more effective regulations to rebuild and manage these valuable fish,” said Jim Balsiger, acting assistant administrator for the National Oceanic and Atmospheric Administration Fisheries Service.

The rule will mean most fishermen – whether fishing from a dock, beach, or a boat – will have to have a permit. State waters within 3 miles of shore aren’t normally covered by federal rules. But the new regulation would apply to fishermen who might catch any species that travels between fresh and saltwater, such as striped bass, one of the most popular New England sportfish.

Progressive states, like California, have already thought of this.

Don Surber observes Congress cannot run a restaurant, but it still wants to run America’s $2 trillion-a-year health care industry.

Via Bird Dog.

Dennis Prager remembers the good old days, when we baby boomers were kids, and America was still a free country and Americans were basically sane.

With the important exception of racial discrimination — which was already dying a natural death when I was young — it is difficult to come up with an important area in which America is significantly better than when I was a boy. But I can think of many in which its quality of life has deteriorated.

When I was a boy, America was a freer society than it is today. If Americans had been told the extent and number of laws that would govern their speech and behavior within one generation, they would have been certain that they were being told about some dictatorship, not the Land of the Free. Today, people at work, to cite but one example, are far less free to speak naturally. Every word, gesture and look, even one’s illustrated calendar, is now monitored lest a fellow employee feel offended and bring charges of sexual harassment or creating a “hostile work environment” or being racially, religiously or ethnically insensitive, or insensitive to another’s sexual orientation.

The Clinton-Obama nomination battle viewed from a Star Wars perspective.

4:59 video

Barack Obama must be giving very serious consideration to Virginia Senator James Webb for his Vice Presidential running mate.

Talk about balancing the ticket.

Webb is a Southern redneck, and a former Marine Corps officer and genuine (not like John Kerry) war hero who received the Navy Cross, the nation’s second highest award for valor. Webb is also a former Republican who served as Secretary of the Navy under Ronald Reagan.

With Webb, Obama has a chance to match McCain’s war record and stronger defense policy background. He also becomes able to make a strong play for precisely the white, working class, and rural constituencies where he himself is weakest.

Selecting Webb, of course, would be fraught with ironies. It seems highly doubtful that the two men could stand each other, and the combination of their personal images would be just a tad incongruous, kind of like the late Bayard Rustin running for president with John Wayne as his running mate.

Webb has moved startlingly to the left since suddenly launching his electoral political career by running over the broken body of Republican George Allen into a Senate seat for Virginia. There is reason to wonder if Webb’s apparent ideological conversion is the result of a third marriage to a youthful wife of Asian background whose political philosophy is now in ascendance in the Webb household or whether Webb has been being cynical and insincere in pursuit of still higher office.

Webb’s Born Fighting, a history of the Scots Irish published in 2005 just as he was commencing his political career, contained enough political asides to read like a version of Mein Kampf written by Pat Buchanan.

Though he ran for the Senate as anti-war liberal, the Webb who speaks in Born Fighting is populist, nativist, and protectionist. In essence, that Webb is every bit as much an ethnically aggrieved and partisan member of some hypothetical Trinity Evangelical Church of Hillbilly Snake-Handling as the loudest and noisiest whitey-denouncing, racist-US-Government-accusing member of Barack Obama’s Trinity Evangelical Church of Black Nationalist Liberation Theology in Chicago.

If Obama goes with Webb, it will be amusing to watch, at the very least.

I mention all this, because I was noticing this morning that efforts are afoot on the political left to scuttle such a mesalliance.

David Mark, at the Politico, is waving the bloody shirt with a vigor not seen in American national politics since the time of James G. Blaine.

He is joined by Stale’s Timothy Noah, who finds Webb “awful” and clearly much too butch. (The man carries a gun. Shocking!)

McCain supporters better hope these limp-wristed lefties succeed at exposing Webb’s awfulness and arousing the ire of the democrat base. He would make Obama’s ticket a lot stronger.