matt's angry little thoughts

2004-09-12T01:00:00.000-07:00

FINALLY! My new domain and hosting are resolved, I have a pretty functional blogging API, and my archives have finally migrated successfully.

All new content will be at http://mattwhitman.com. Reset your bookmarks (both of you), and see you there!

2004-09-02T21:21:00.000-07:00

SO HERE'S THE DEAL: even though Blogger.com is adding functionality all the time, I will be migrating to my own site shortly (Eric got me my domain, and I found a good hosting deal on my own). So As soon as I get Movable Type up and running, I'll be working there. Watch this space after the holiday weekend (that's September 4 to my non-US readers) for the announcement, and change your bookmarks then.

2004-08-27T16:38:00.000-07:00

I WAS GOING TO WRITE ABOUT THIS PAUL HAMM FIASCO, BUT LINDA DID IT BETTER.

2004-08-27T09:46:00.000-07:00

OK, A POST TO SEE IF BLOGGER CONTINUES TO SCREW UP MY LINKS. I am a regular reader of Penny Arcade, a three-days-a-week online comic that focuses on computer gaming. [I have now established geek cred.] PA's creators, the pseudonymous Gabe and Tycho, are candid are about their goal--money! And theirs is that rare site that actually succeeds at making money on a non-subscription basis (PvP is another). They are expanding their niche and this weekend are hosting a gaming convention in Bellevue. Interesting feature of the piece is a picture of PA's creators Mike and Jerry, who do not bear much resemblance to their comics avatars.

2004-08-23T11:38:00.000-07:00

BLOGGER IS RANDOMLY SCREWING UP MY LINKS. I speculate it might have something to do with its "enhanced" posting engine, but I'm not sure. In any event, some of my links are gorked--they look fine in raw html, but then when clicked they don't got through--blogger appends a blogger referent prefix that leads to a 404. I have complained, but this may be the straw that breaks the camel's back, leading me to get off blogger and onto my own domainname, hosting, usage of MT, etc.

All of which makes me cranky.

2004-08-23T10:50:00.000-07:00

A "NO-DRIVE" LIST, I COULD UNDERSTAND.

2004-08-20T07:37:00.000-07:00

BY POPULAR DEMAND: NAKED MOLE RATS! They were the best exhibit at the Zoo last time I was there, but I see from the website that they now have a display of Matschie's tree kangaroo. The website tells us this:

Birth: usually one joey (about 1 inch at birth) * female isolates herself before birth * Birth position - sitting on base of tail with tail between legs * Takes 2 minutes for joey to crawl to the pouch * pouch contains 4 mammae * joey attaches to nipple for 90 to 100 days, at 250 days joey looks out, at 300 leaves pouch for first time, at 350 leaves pouch permanently * long pouch life compared to other kangaroos

2004-08-19T09:55:00.000-07:00

I AM A FAN OF DAVID FOSTER WALLACE. He is by turns exhilirating, frustrating, and bewildering. Right now I am reading two of his books: Everything and More: A Compact History of Infinity, and Oblivion: Stories. Wallace as a writer is best known for insanely, microscopically detailed digression and discursivity; both these books (so far) are very much "his." The oddest thing about either is that the cover of Oblivion actually qualifies Wallace as "Author of Infinite Jest."

This is bizarre. Infinite Jest was one of the most difficult (and rewarding) reads I have ever encountered. It is 1088 pages (and 2.79 pounds, according to Powells), of which close to 200 pages are fine-print endnotes, of which endnotes some are full-page narratives. I know only one other person who actually completed it, though it was glowingly reviewed. So why use that as a sales point on the book jacket? To entice me and the four other people in the world who read it neither for a literature class nor to write a professional review? Or simply to give prospective Wallace shoppers an alternative? "I heard Infinite Jest was good, and look, here's one by the same guy, and it's way thinner."

2004-08-18T14:47:00.000-07:00

STEM CELLS! STEM CELLS! In the back of the latest issue of Time, Charles Krauthammer has an interesting article on the stem cell issue in which he says:

I would have drawn the line [regarding federal funding of stem cell research] differently. I would have permitted the conduct of all research using cells drawn from the discarded embryos of fertility clinics (unused and ultimately doomed) but not from embryos created purposely and wantonly for nothing but use by science.

Krauthammer then bashes Kerry for "politicizing" the issue. There are real and justified critiques of the bandwagoning that is happening on the left, whicha re cogently laid out here by Will Saletan, but it's just silly to say that the politicization of this particular line of scientific inquiry started with Kerry, rather than Congress' 1996 ban on federal funding of research that involves the destruction of embryos, or indeed Bush's 9/9/01 announcement of his stem cell executive order.

There are at least three problems with Krauthammer's little exercise. Breaking them down:

1. The "line" Krauthammer proposes is the one many people suggested at the time Bush should have drawn. Krauthammer's "politicizing" started when Bush announced his affirmative step of ending federal funding on new stem cell lines. The problem lots of folks have with Bush's position is the one Krauthammer lays out: in the course of every successful fertility treatment, embryos are created which are discarded. Under Bush's line, those embryos, which would otherwise by shitcanned, cannot be used in research. (Bear in mind that according to extreme right-to-lifers, every embryo has a human soul, and discarding an embryo is murder.) But I haven't heard GWB or any other mainstream Republican dare to criticize fertility treatment as tantamount to abortion (Alan Keyes doesn't count).

2. Krauthammer's "line" lacks moral consistency. What is intrinsically wrong with "embryos created purposely and wantonly for nothing but use by science"? How is a scientist working on a cure for cancer morally inferior to a woman who wants to have a baby? As Michael Kinsley says here better than I could anywhere, "How can you restrict embryonic stem-cell research because it encourages the creation and destruction of embryos, and yet praise the fertility industry that creates and destroys embryos by the thousands (and would supply the embryos for stem-cell research, if that were allowed)?"

3. Krauthammer wraps up with this:

There's nothing less compassionate than to construct a political constituency of sufferers (and their loved ones) by falsely and cruelly intimating that their disease is on the very cusp of cure if only the President would stop playing politics with the issue... When I was 22 and a first-year medical student, I suffered a spinal-cord injury. I have not walked in 32 years. I would be delighted to do so again. But not at any price.

Pot, meet kettle. That Krauthammer could conceivably benefit from stem-cell research gives his voice no special weight. Similarly, Ron Reagan, who spoke on the importance of the funding of broad-based stem-cell research at the Democratic National Convention, does not get an extra-large vote on this issue merely because his dad died of Alzheimer's. The difference is that Reagan's activism on the stem-cell issue is motivated by his family's experience with a devastating disease, while Krauthammer's injury does not bear on his stem-cell views, which derive from his more diffuse views on the sanctity of life, etc. So his relating his sad story is a mistaken attempt to run up his credibility.

4. And this isn't about Krauthammer's piece, but a frequent meme of anti-abortion folks is that embryonic stem cell therapies are unproven, and we're doing a lot with adult stem cells. This is pure look-at-my-thumb diversionary dopeyness. AIDS therapy has come a long way, with multidrug "cocktails" letting many HIV-infected people live normal lives. Does that mean we abandon other research efforts? Does that mean we don't look for a vaccine? Of course not.

UPDATE: I am once again late to the party--Kinsley deconstructed this whole issue better a long time ago.</a>

2004-08-18T12:34:00.000-07:00

THE MCGREEVEY THING. I'm late to the party, but, as always, have opinions.

First: he's gay, fine. Devastating to his family (including kids and wife #2), but his newly-public status certainly doesn't per se impair his ability to do his job. I have a problem with his cynicism. He's corrupt--he appointed his no-qualifications boyfriend to be New Jersey's Homeland Security director, when Louis Freeh would have done it for free. That's scumminess of the highest order, and if you buy the notion that the NJHSD is other than a sinecure, it meant that he jeopardized the safety of folks in New Jersey. The cynicism comes in when he outs himself pre-emptively, and by draping himself in the rainbow flag, picks up sympathy points (the whole "I have a lived a lie, and it has cost me my family, and my political career" thing).

Second: the decision to resign November 15, and therefore ensure that his appointed successor has a year of incumbency, is brilliant. As a partisan, I think it's brilliant. I hope McGreevey sticks to his guns on the date, because otherwise Jon Corzine might leave his Senate seat to run for NJ governor in a special election, and I like Corzine where he is.

Third: Golan Cipel is getting outed against his will, which serves him right, being an extortionist and all.

2004-08-17T14:03:00.000-07:00

SOME SAY I HAVE ECLECTIC INTERESTS. SOME SAY I HAVE ADD. It's not lost on me that if I ever wanted to actually generate mass readership for this blog, rather than aiming it only at Josiah and Eric, that I would have to specialize more. I could concentrate only on beers made in the Portland area, and write the definitive Portland beer journal, for example. Or I could start the only team ahndball blog based in the Pacific NW. Either of these could earn small but cultlike followings, which of course is the best kind of following to have.

I guess I'm not that hungry for attention--I think I'd do this even if I got zero page views. Of course, I never read my traffic reports, so maybe I am typing into the void. But without further ado, Browns rookie tight end Kellen Winslow Jr. has, after one week of training camp, asked his defensive coordinator to give him some pass-rushing snaps as a defensive end. I'll be drafting this guy for my Fantasy team for sure.

2004-08-17T01:11:00.000-07:00

ACTUAL TOPIC SUMMARY OF A BOOK I JUST PLACED ON HOLD AT THE LIBRARY:

* Puppets -- Fiction.

* Taxidermy -- Collectors and collecting -- Fiction.

* Television programs for children -- Collectibles -- Fiction.

mmmmm...up too late. Insomnia.

2004-08-16T16:53:00.000-07:00

I HEARD ABOUT I LOVE BEES FROM PENNY ARCADE. It is a rewarding and trippy time-waster--especially for those of us who wear our tinfoil hats while gaming.

2004-08-16T16:02:00.000-07:00

JOHN KERRY: MOST LIBERAL HUMAN BEING EVER? Most of us by now have heard the GOP talking point that "John Kerry is the most liberal member of the US Senate." This article contains an explanation and partial debunking.

Of course, he isn't nearly liberal enough for me.

UPDATE: link fixed.

2004-08-12T15:37:00.000-07:00

THIS IS THE FIRST GMAIL INLINE AD LINK I EVER CLICKED, and I can't understand what the commercial motivation is.

2004-08-10T15:28:00.000-07:00

WHEN IS GETTING SUED A GOOD THING? When you're Kobe Bryant. That's the third-level subtext of the civil lawsuit his "Jane Doe" accuser has filed against him. Why? because when she testifies in the criminal case against him, Bryant's lawyer Pamela Mackey will get to cross-examine her at length about any factor other than the alleged rape that might be affecting her testimony, including financial interest. E.g., "Isn't it true, Ms. Doe, that you have filed a lawsuit against Mr. Bryant seeking money? Millions of dollars, in fact?"

Now, lots of commentators have said that Pam Mackey and Hal Haddon, Bryant's lawyers, would have to "walk a fine line" in dealing with the alleged victim--in other words, make it clear to the jury that she is a gold-digging little psycho while making it seem that they don't want to smear her, that they wish they didn't have to point out that she is an unbalanced money-hungry slut, but that justice requires them to tell these painful truths. The civil complaint just widened that fine line into one that a cross-eyed drunk could stagger easily (though I'm not implying that Pam or Hal touches the sauce, ever). Further, the complaint opens a couple of doors that she should have left shut:

As a direct and proximate result of the sexual assault and rape perpetrated by Defendant Bryant upon her, Plaintiff has been subjected to public scorn, hatred and ridicule and has suffered threats against her life and physical safety.
***
As a direct and proximate result of the sexual assault and rape perpetrated by Defendant Bryant upon her, Plaintiff has incurred special damages, including medical and legal expenses.

Let's break this down a little. First, as kids learn their second day of law school, the words "direct and proximate result" don't mean to lawyers the same thing they mean to real humans. "Direct and proximate result" means (and sorry, lawyers, for the lack of citation--Palsgraf, perhaps?) a result of a given course of tortious conduct that is both closely related and foreseeable enough that it is appropriate to hold a civil defendant liable for that result. In other words, assume Bryant raped Doe. Should he have contemplated that Doe would have been damaged by the rape itself? Of course, and he should be liable for her damages--her pain and suffering, the emotional trauma, etc. Those things are caused directly by his actions. Should Bryant be liable for the "public scorn, hatred, and ridicule [and] threats against her life and physical safety"? Should he be liable for the lawyers' fees she has incurred in trying the rape case in the press?

This is overreaching, legally speaking, and hurts Doe's civil case against Bryant as well as the criminal case against him. Remember that there is no evidence or allegation that Bryant sought to intimidate or threaten Doe after the night in question--that was the work of crazed Laker fans. And remember that the exposure of Doe's real name and details of her personal life has been the result of zealous tabloids, incompetent court staff, and the statements of the accuser herself and her lawyers. This is bad news for the prosecution, because Mackey and Haddon will get to point out that Doe is trying to blame Bryant for the incompetent, intentional, or insane conduct of other people. It is bad news for Doe's civil lawsuit, because you can bet that Bryant's civil lawyers are already planning the motions to dismiss that will gut many of her allegations before the civil case ever goes to trial. It is bad news for Doe, herself, because while the burden of proof a plaintiff must satisfy in a civil case is lower, so is the threshold of discoverability and admissibility of things like Doe's sexual history, mental health, etc. If she thinks she has lost her privacy now, just wait: this is a high-stakes gamble that Bryant's tolerance for pain is lower than her own.

This lawsuit also plays perfectly into the theme that should be central in Bryant's defense--that whatever happened in that Eagle County hotel room is unknowable, that the legal system is utterly inadequate to determining the truth or falsity of these "acquaintance rape" accusations, and that everything since that night is not the result of the interaction between Bryant and Doe, or of Bryant's flawed moral judgment, but are cultural. The Bryant case is a perfect storm (to borrow Dahlia Lithwick's analogy) of sex, fame, money, media, and ambition. The only thing excluded from the mix is justice.

Prosecution spokeswoman Krista Flannigan said the civil lawsuit changes nothing for the criminal trial. ``We are still moving forward,'' she said. She declined to comment when asked whether the civil case could complicate the effort to win a conviction.

Yeah, right. Kobe Bryant isn't going to trial, much less to jail.

2004-08-10T12:43:00.000-07:00

ITEMS FROM THE DOOM 3 MANUAL WHICH MAY AMUSE ONLY ME:

Health - The amount of damage you can take. You are completely healthy when the number reads 100. As you're shot or injured, this number decreases. If the number reaches 0, you will die and the demons will feast on your lifeless body.
[page 4]

So that we can better help you, please have the following information ready:
...
Your computer's processor type and speed (e.g. Pentium 200 MHz).
[page 20]

2004-08-10T10:54:00.000-07:00

GOOD NEWS ON THE PURE SCIENCE FRONT IS RARE THESE DAYS. In January, NASA said that it would discontinue space-shuttle based maintenance of the Hubble Space Telescope. (Gregg Easterbrook has made convincing arguments for twenty-plus years for why the space shuttle project should be abandoned in its entirety, but that's another conversation.) So it is with some relief and joy that we hear that NASA will in fact continue to maintain the Hubble with robotic missions. The Hubble, of course, has been hailed as one of the single greatest tools ever for expanding our cosmological knowledge, so it would have been sad indeed to watch it fall into dilapidation.

2004-08-06T11:45:00.000-07:00

I'M BACK--TANNED, RESTED, AND READY. We had a great time in the Gulf Islands, which really are a lot like the San Juans, except that they don't accept good ol' Amurrican greenbacks. A two-dollar coin? Please! But we slept and ate and drank and kayaked and suffice it to say that most of our wedding-related stress just melted away. Oh, and the wedding was good, and successful, too.

Which brings us back to the news of the day, which happened in my absence (the nerve!): the 11th Circuit upheld an Alabama ban on the sale of sex toys. It's not illegal to possess them in Alabama, or buy them out of state or over the internet, but Alabamians can't go to Billy Bob's House of Phallus and buy a latex artificial member. Dahlia Lithwick gives the legal whys and wherefores, and Thrasymachus details the Alabama legislature's deliberations over the issue.

I'm waiting for David Brooks to approvingly cite this issue as one of the good and proper differences between "red" and "blue" states.

2004-07-22T09:41:00.000-07:00

OK, SERIOUSLY, LAST POST FOR A WHILE. The titles say it all.

Underneath Their Robes: Big Swinging Gavels: The Male Superhotties of the Federal Judiciary!

Underneath Their Robes: Bodacious Babes of the Bench: The Female Superhotties of the Federal Judiciary!

2004-07-21T22:08:00.000-07:00

ACTUALLY, LET'S MAKE THIS MY LAST POST. Barbara Ehrenreich writing about abortion. Reading her fearless writing makes me think most of our political discourse is just chickenshit.

2004-07-21T22:02:00.000-07:00

A. O. SCOTT ON CATWOMAN:

"But the picture, full of moody, oversaturated colors, twisty camera moves and stroboscopic editing, does have a certain decadent visual flair and a louche, sneering sense of humor. Watching it is like paging through a fat European fashion magazine at high speed in the lobby of a sleek hotel. Through the haze of moody color, you can occasionally glimpse the flicker of an idea about female sexuality or the manufacture of beauty, but these themes are ornamental flourishes in the pretty, kinetic emptiness."

This is nice prose, and a well-developed simile, but I thought "What Would Elvis [Mitchell] Have Written?"

This is probably my last post in some time. Tomorrow is a short day at work, as I take off for Saturday's festivities: marrying uber-sweetie Trina. Then two weeks off--my first stretch that long in eight years--as we honeymoon in the Gulf Islands. I have been telling people our destination for months now, and still am no wiser about where the "Gulf Islands" really are. I think that if you keep paddling north from the San Juans, eventually you cross the invisible Canadian border and are then in the Gulf Islands. But as I frequently complain, they don't teach geography in the schools anymore. I'll report back when it's over, and I promise my time away won't be as long as Jack B's.

P.S. The Bourne Supremacy is getting much better advance reviews than Catwoman.

2004-07-19T13:59:00.000-07:00

MMMMM...MODERN TRIBALISM. I too am in the QWERTY tribe--and you can have my keyboard when you pry it from my cold dead fingers.

Although William Gibson's novels feature little gloves, nay, fingertip sheathes, that, wired to little miniputers, read your fingertip inputs. Yup, the guy who gave the world the word ""microsoft" believes the future will feature typing.

2004-07-16T16:58:00.000-07:00

THE FIRST AMENDMENT IS A GOOD THING. And being an Article III (federal, life tenure) judge is a good thing too.

Washington state tried to ban videogames that depicted acts of violence against police. See, e.g., Grand Theft Auto: Vice City, where a player can while away an afternoon beating, shooting, blowing up and setting afire the men in blue who otherwise would be protecting said metropolis from evildoers. The state legislature figured that the tender minds of Washington's youths (again e.g., post-Columbine male teenagers) were being warped by such media.

Judge Lasnik, a federal judge in Seattle, just declared that statute unconstitutional. This kind of judicial language is usually referred to as a "sharp rebuke" of the losing side, here the state:

Defendants acknowledge that the Act does not regulate works that depict sexual conduct. Undaunted by the dear pronouncements of the Supreme Court regarding the limited
scope of materials that are subject to regulation as obscene, defendants argue that the Court should expand the definition of obscenity to include graphic portrayals of violence. No court has aocepted such an argument, probably because existing case law does not support it.
***
Even if one accepts the basic premise that interactive games involving repetitive actions "teach" the player certain skills, the evidence as it currently exists suggests only that players are taught improved reaction time, eye/hand coordination, and how to score points in the game. Dr. Provenzo's concern that a person playing Grand Theft Auto: Vice City will learn how to shoot a police officer is little mere than conjecture: a proven ability to manipulate a controller and push buttons will not teach a person to load, aim, or fire a gun.

It's enough to make a good bleeding-heart liberal into a libertarian.

2004-07-16T10:52:00.000-07:00

SO I DISCOVERED THAT GOOGLE THINKS I'M A RODEO RIDER. That was funny. But while this blog remains the first result of a Google search for "matt whitman", this disturbing and unfunny page is the top result for "matthew whitman."

Um, just to be clear, that's not me. I am neither a rapist of virgins, nor a drug addict, nor dead. And that's not a picture of me. Golly.

2004-07-15T09:42:00.000-07:00

GMAIL RULES. You want it. You want to be part of it. And I have three invites left. First three people to email me at matthew dot whitman at gmail dot com get invites. I need a return email address and first and last names (the invite form requires them).

2004-07-13T16:55:00.000-07:00

JOSH MARSHALL LAYS A SMACKDOWN ON REPORTERS WHO BUY ADMINISTRATION SPIN ON PLAMEGATE. Specifically, this article by Susan Smith in the Post, which featured this paragraph:

The report may bolster the rationale that administration officials provided the information not to intentionally expose an undercover CIA employee, but to call into question Wilson's bona fides as an investigator into trafficking of weapons of mass destruction. To charge anyone with a crime, prosecutors need evidence that exposure of a covert officer was intentional.

Um, wrong. As Marshall puts it, "a conversation with a lawyer may have been more helpful than one with a [Republican] staffer."

[waves hand in the air frantically]

Me! Me! I'm a lawyer! Call on me!

"Intent," when we're talking about criminal acts such as outing covert CIA personnel, does not refer to the intent to achieve a specific end. It matters not at all that White House flacks outed Plame with the intent to discredit Joseph Wilson rather than to burn Plame. It is the act -- the burning of a CIA spook -- that is criminal, and it doesn't matter if you see the motivation -- the attack on Wilson -- as being pure of heart. Schmidt's quote above implies the nonsensical corollary, "if it's routine political dirty tricks, it's not criminal." Imagine the Watergate burglars saying "hey, officer, it's ok, we're just here as political operatives!"

2004-07-13T14:55:00.000-07:00

APPRENDI! AND BLAKELY! NOW POSNER, OH MY! Law geeks only past this point. Maybe the most far-reaching decision of this just-past Supreme Court term was its holding in Blakely v. Washington that every element affecting a criminal sentence must be found by a jury or admitted by the defendant. In other words, if, like Mr. Blakely, you pled guilty to a given charge (and thereby admitted its underlying facts) a judge cannot find "aggravating factors" (e.g., propensity to violence, halitosis, voting Libertarian) and increase your sentence based on those factors. Those factors must be established beyond a reasonable doubt, either through trial or admission.

Enter Freddie Booker, a crack dealer, and his new best friend Richard Posner, the former Chief Judge of the 7th Circuit Court of Appeals and probably still the most influential non-Supreme Court jurist in all the land (though Alex Kozinski would have something to say about that). Last Friday, in United States v. Booker, Judge Posner wrote the opinion for a 2-1 panel (Frank Easterbrook, brother of the tastefully named Gregg Easterbrook, dissenting) declaring the federal sentencing guidelines "doomed" in light of Blakely. The sentencing guidelines, of course, are the despised-by-judges but beloved-by-prosecutors matrices that dictate sentence length depending on the offense, the defendant's criminal history, and specific regulatory factors as found at sentencing.*

For us law geeks, this stuff is manna. Let's review why:

1. Important policy issue: the sentencing guidelines have been a thorn in the side of the federal judiciary since their enactment (and the parallel state guidelines that states have adopted have similarly made state court judges wrathful in their impotence). And because the guidelines manifest and are a product of the Reaganite get-tough-on-crime attitude, especially for drug offenses, they are one cause of the imprisonment paradox in this country: not only do we have a far higher percentage of our population incarcerated than any other Western nation, but that incarcerated fraction is disproprtionately black and Hispanic. This is ironic, because one of the stated purposes of the guidelines was to level the sentencing playing field, making term of incarceration a metric dictated by the defendant's conduct, rather than his race or other cultural factors. The decision over the sentencing guidelines is therefore a proxy fight over our whole sociolegal approach to punishment on the one hand and the drug war on the other. So it's noteworthy that Posner has written at length, from his niche at the top of the "law and economics" food chain, on the failure of incarceration as a primary component of our penal system. See also Posner's dissent in United States v. Poff, 926 F.2d 588, 593 (7th Cir.) (en banc), cert. denied, 111 S. Ct. 96 (1991).

2. Important jurisprudential ideology issue: The first paragraph of Easterbrook's dissent ends, "This is the wrong forum for such a conclusion [that judicial application of the sentencing guidelines violates the post-Blakely Sixth Amendment]; and whatever power we may possess should not be exercised to set at naught a central component of federal criminal practice." (italics added) This is judicial pragmatism at its highest. Easterbrook cares about the practical consequences of the decision. Posner doesn't. All he cares about is clarity, clarity, clarity. So he answers all the questions: (a) Does an "upward enhancement" under the guidelines violate the Sixth Amendment after Blakely? Yes. (b) Is it OK to use the guidelines after Blakely when all the factors going into the matrix have been either found by a jury or admitted? Yes, unless the guidelines are utter toast. See next question. (c) Are the guidelines utter toast? You didn't ask before so we didn't decide it; ask again later. (d) How are factors that may affect a sentence but are not part of the offense charged to be decided? By a sentencing jury, of course. (e) And again, what if the guidelines are toast? The sentencing judge should make alternative sentences, on based on the guidelines using factors as found by a sentencing jury, the other based on the statutory maximum sentence and common law.

Both the US Attorney's Office and Booker's attorney must have thought they lucked out when they drew this panel: they had a clean presentation of a significant issue, presented in an influential circuit before a panel that was guaranteed to make waves whatever the outcome. In other words, here's a writ of certiorari on a silver platter! Posner: "[W]e cannot avoid the duty to decide an issue squarely presented to us. If our decision is wrong, may the Supreme Court speedily reverse it." Easterbrook: "Today's decision will discombobulate the whole criminal-law docket. I trust that our superiors will have something to say about this. Soon."

3. Meaty appellate procedure issue: the case turns on whether a 1998 (so pre-Apprendi) Supreme Court case, Edwards v. United States, already decided the issue of whether the sentencing guidelines violated the Sixth Amendment. The Supreme Court in Edwards affirmed a 7th Circuit opinion written by....Easterbrook. In that 1997 opinion, Easterbrook did not mention any constitutional claim made by any defendant. Nor did the Supremes mention the words "Sixth Amendment" in their 1998 opinion affirming Easterbrook's opinion. Nevertheless, in Booker, the new case, Easterbrook argues that Posner oversteps because Edwards is yet-to-be-overruled Supreme Court precedent rejecting a Sixth Amendment challenge to the guidelines.
As Posner wrote elsewhere: "[Judges] are timid about speaking in their own voices lest they make legal justice seem too personal and discontinuous. They are constantly digging for quotations and citations to support positions they've adopted on grounds other than the compulsion of precedent."

* For more on the guidelines and judicial frustration therewith, check this essay, specifically the section from footnote 206 onward.

UPDATE: Dahlia Lithwick talks about the decision generally on NPR's Day to Day.

UPDATE 2: Dahlia Lithwick argues here that notwithstanding the turmoil, all is well, and the judges will get this hashed out. Utah federal District Court Judge Paul Cassell agrees. This shows how important this issue is: there's even a whole blog about it!

2004-07-07T17:09:00.000-07:00

LOOK, I'M A RODEO RIDER!

2004-07-07T15:29:00.000-07:00

FOR THOSE OF YOU WHO THOUGHT SADDAM'S TRIAL WAS A CHARADE, YOU WERE WRONG. But it does involve hand gestures.

Not as funny or as topical as Allahpundit's Dean-O montages, but those just distracted us from AP's basic scary freeperness.

2004-07-07T15:10:00.000-07:00

IN ONE OF HIS LAST PRE-SABBATICAL POSTS, JACK SUGGESTED the Multnomah County Commissioners' decision to give marriage licenses to gay folks looking to wed might, by driving high conservative voter turnout (in favor of the "Defense of Marriage" state constitutional amendment), also swing Oregon, and possibly the nation, to the Rs in November. That "butterfly effect" is an ugly possiblity, but seems farfetched. I tend to agree with b!X, who argues convincingly (that is, using a flowchart) that Basic Rights Oregon was going to force a showdown on this issue no matter what, which in turn would put us precisely where we are now--looking down the barrel of a ballot measure that will carry every OCA vote plus those of some Beaverton soccer moms too.

UPDATE: I posted too fast; Jack was merely echoing a prediction made by Worldwide Pablo.

2004-07-07T11:07:00.000-07:00

TOM FRIEDMAN IS ON SUMMER SABBATICAL AT THE TIMES, AND BARBARA EHRENREICH IS SPELLING HIM. Ehrenreich is a fine writer, but who knew she could be this good? I can't even excerpt it without doing a fundamental injustice. Tim Noah is trying to generate support for a "Draft Ehrenreich" movement, to keep her on board and jettison Herbert, Dowd or Kristof. More power to him! And her!

2004-07-06T23:31:00.000-07:00

I DON'T HAVE MUCH USE FOR CHRISTOPHER HITCHENS. Usually. But in this piece in Slate he illustrates well the difference between the Anglophile "fuck off" and the plebeian mid-American "fuck you." It's the difference between the transitive and the intransitive, y'see.

2004-07-06T08:18:00.000-07:00

SO KERRY PICKS EDWARDS, thrilling the plaintiffs' bar and relieving those of us who feared the Liebermanesque debacle of a Gephardt pick.

People talk a lot about intelligence as differentiating Kerry from Bush (or for that matter, Bush from most anybody). But education is something different, and something that Kerry definitely has, and Bush doesn't, notwithstanding Andover and Yale. Check the rigor and rhythm of this Kerryism, from his announcement speech today:

"'I have worked with John Edwards side by side and sometimes head to head. I've seen John Edwards think, argue, advocate, legislate and lead for six years now. I know his skill, I know his passion, I know his strength, I know his conscience. I know his faith."

mmmm....delicious rhetorical structure.

2004-07-01T15:07:00.000-07:00

MARRIED GAY FOLKS AREN'T PAYING THEIR FAIR SHARE! I'm on a lawyers' listserv that recently went off-topic with a foray into the hot issue of gay marriage. One (straight) poster was supportive of same-sex marriage, saying "let them share in the misery." He was flogged for his pessimistic impertinence, of course. But the Congressional Budget Office has done an analysis about the fiscal consequences of recognizing gay marriage. Remember that notwithstanding legal (under state law) marriages in Pennsylvania and Oregon, the 1996 Defense of Marriage Act precludes the federal government, including the IRS, from recognizing any marriages except those between one man and one woman. The result, according to the CBO, is that the feds are short-changed, because gay couples will continue to file single tax returns rather than the married/joint reutrns which would have some of them paying the infamous "marriage penalty." The CBO explains the concept:

For almost all married couples, filing jointly rather than separately results in lower tax liability. Depending on the division of income between spouses, marriage can lead to either higher income tax liability (a "marriage penalty") or lower liability (a "marriage bonus"). The greater the similarity in the two spouses' earnings, the more likely the couple is to incur a marriage penalty. Conversely, the greater the disparity in earnings, the more likely the couple is to receive a marriage bonus. When one spouse earns all of a couple's income, the couple always gets a bonus.

Together, EGTRRA [the 2001 tax legislation] and JGTRRA [the 2003 tax legislation] will reduce the number of couples incurring marriage penalties and increase the number receiving bonuses between now and 2010. JGTRRA provided relief from marriage penalties for 2003 and 2004 in the form of a higher standard deduction and broader 15 percent tax bracket for married couples. For 2005 through 2010, that relief is first reduced and then reinstated under the provisions of EGTRRA. Because of those changes and rising real (inflation-adjusted) incomes, marriage penalties would dominate during that period, and same-sex marriages would increase revenues by between $200 million and $400 million each year. After 2010, the expiration of all of EGTRRA's provisions would raise marriage penalties further, and revenues would be $500 million to $700 million higher each year than they would be if same-sex marriages were not recognized. (Permanently extending the marriage-penalty provisions in EGTRRA would reduce those revenue gains to less than $400 million per year after 2010.)

2004-07-01T10:39:00.000-07:00

MMMM...COOL NEW TECHNOLOGY. The thin-air touchscreens Tom Cruise used in Minority Report looked neat, but this just seems so....practical. We'll always have desks and walls, after all--now they can be functional parts of our workspace, rather than mere platforms.

2004-06-30T07:01:00.000-07:00

I'VE BEEN USING MOZILLA'S"FIREFOX" BROWSER EXCLUSIVELY FOR MONTHS. It's great--no popups, lotsa speed, tabbed browsing, etc. But yesterday I discovered something that makes it, oh, so much better. Get this: in every subfolder in your bookmarks menu, the bottom-most option in the folder is "open in tabs." I always ignored this option. But if you click it, it will open -- simultaneously -- every link in that subfolder, in a separate tab. Read five blogs every day? Put 'em in a subfolder, and read them in quick succession without worryong about load times. Read online comics? Same deal. Wanna check the headlines on Google News, CNN.com, the Free Republic, and al-Jazeera? Done.

It's been a long time since I was this excited about a minor feature. Firefox rules. Did I mention it's free?

UPDATE 06.30.04 2:58 PM PST: 3 hours after my post, Paul Boutin, writing in owned-by-Microsoft Slate, advised switching to Firebird, largely because it does not have IE's security vulnerabilities.

2004-06-29T08:08:00.000-07:00

ELVIS MITCHELL HAS LEFT THE BUILDING. I knew I hadn't seen many Mitchell reviews in the Times lately, but I chalked it up to vacation, perhaps, or some dizzying run at a series of obscure film festivals that produced reviews that went beneath my radar. When I saw that A.O. Scott had reviewed Spider-Man 2, a plum I expected to go to Mitchell, I figured something was up. The Google search tok 0.17 seconds: He has left the Times for uncertain destinations. I know him only from his reviews, in the Times and on NPR, so the NY Metro piece linked above, which recounts as old news Mitchell's rep for big expense accounts and hobnobbing with Hollywood types, was an interesting surprise. I guess Manhattanites are more used to knowing details about the personalities of their journalists.

Anyway, I hope he shows up to write regular reviews elsewhere, maybe spelling Kenneth Turan at the LA Times.

2004-06-25T13:37:00.000-07:00

NBA DRAFT YESTERDAY. The Blazers picked Sebastian Telfair. I won't be the first to say this, but I don't blog often about sports (except football): this is a major failure, another draft pick Portland will regret.

2004-06-25T10:06:00.000-07:00

FOR THE THIRD YEAR IN A ROW, Dahlia Lithwick of Slate and constitutional law guru Walter Dellinger are doing a breakfast table post-mortem of the big Supreme Court decisions this year. Reminds me that no matter how dissatisfied I might be with my practice, I love being a law geek. Though uber-sweetie Trina would remind me that law geekiness is just a subset of overall geekiness, despite which she still loves me.

29 days until wedded bliss. Woo!

2004-06-25T09:58:00.000-07:00

TED OLSON IS TOAST! Ding, dong, the witch is dead...

2004-06-25T09:56:00.000-07:00

MARK AMES ON ANN COULTER: An excerpt, but please, read the whole thing:

Last week, Ann Coulter appeared on Hannity & Colmes looking haggard and clinically insane. The Night of the Living Dead circles underneath her eyes, the lifeless hair—it looks like she's been living on canned foods for the past two months. Ann looked like she should be pushing a shopping cart, not politicking for Bush. It wasn't just what she said—like repeatedly accusing Holocaust survivor George Soros of being an anti-Semite—it was how she said it. She laughed insanely after every sentence fragment she uttered, a clear symptom of late-stage paranoid-schizophrenia.

The saddest part was when Hannity flashed the cover of Coulter's upcoming How to Talk to a Liberal. There she is, posing full-length in a tight black mini, a childless MILF-wannabe trying to pass herself off as a 40-something far-right pin-up. Ann's star is sagging, and apparently her handlers don't have the heart to tell her.

2004-06-23T12:10:00.000-07:00

LYNNE STEWART IS ON TRIAL. Stewart is a criminal defense lawyer who represented "the Blind Sheik," Sheik Omar Abdel Rahman, in his criminal trial relating to the bombing of the World Trade Center in 1992. Stewart is now accused of violating administrative restrictions on the Sheik's communication with the outside world from prison, and by doing so facilitating terrorism. This long transcript contains the opening statements of Christopher Morvillo, on behalf of the Department of Justice, Mike Tigar, on behalf of Stewart, and David Ruhnke, on behalf of Mohammed Yousry, a translator who is a codefendant. This is an important case because, as Lynne Stewart's website proclaims, "This is an obvious attempt by the U.S. government to silence dissent and install fear in those who would fight against the U.S. government's racism, seek to help Arabs and Muslims being prosecuted for free speech and defend the rights of all oppressed people." The transcript is long, very long, but it isn't just us law geeks and news junkies who should read it. Everyone should.

2004-06-22T12:48:00.000-07:00

ERIC DEMANDED THAT I BLOG. So, several random items:

How much would I give to havethis app for the PC? So much for having twelve different online comics bookmarked! I haven't found anything close yet. Note the difference between this "scraper" app and subscription-based services that do the same thing, such as ucomics.com (not dignified with a link). App good, subscription bad. Repeat.

Barack Obama, a Dem running for an open Senate seat from Illinois, got a boost this week when records from his opponent's divorce/custody case were unsealed. Jack Ryan's ex, hottie actress Jeri Ryan, said in an affidavit that Jack took her to sex clubs and tried to pressure her to have public sex, etc. etc., sordid details crossed out. I agree with MarKos: we shouldn't judge politicians on the basis of sex scandals except to they extent that they moralize and preach.

Jack is going to take a hiatus from blogging to deal with "real life." I don't see this a some sort of bellwether--Jack is compulsive enough that he'll be back. But it's bittersweet. Jack is my blogfather, which I guess makes him Eric's grandblogfather.

So Linda linked to some famous blogger I've never heard of describing her poignant experiences Googling old friends, to one great result. So I should share my Google story: in high school, I had a torrid and tormented relationship (it was high school. Is there any other type?) with one Trina. I broke up with her, being s terrible and loathsome 15-year-old, and she and I did not get along well for the balance of high school, occasional hook-ups in the auditorium balcony being the exception. College came, and we went our separate ways. I found a girlfriend in my freshman dorm, and married her for a short time after college. I went to law school, met a fellow las student, and was with her for a few years. Meanwhile, no contact with Trina.

I went through a (not a phase) change--I decided that I had known many people that had probably turned out to be pretty neat, but with whom I had lost touch just by passage of time. So I called up Jim, and he and I had a pleasant evening of it. He mentioned that that very same Trina was in fact living here in Portland, and working as an urban planner. That was enough for me--a little bit of Googling revealed that she had done a triathlon in Washington the previous year (one in which my ex-wife had competed. Eeeks!); that she had worked on a paper co-authored with folks from Livable Oregon, then one of my firm's suite tenants; and that she had graduated from U of P. She wasn't in the phone book, but a quick peoplefinder search gave her phone number. I called and left a message. She called back. We met for a drink.

So uber-sweetie Trina and I are getting married in 32 days exactly. Google rules.

2004-06-15T12:44:00.000-07:00

RALPH WILEY DIED YESTERDAY. He was 52.

Wiley was a writer. He was a sports journalist by trade. Sports Illustrated, ESPN, espn2.com, several books. He had a strong and personal voice. I read his columns religiously. I will miss him. To know why, read these remembrances from his colleagues.

2004-06-14T13:47:00.000-07:00

FIRENINJA IS ONE OF THE MOST INTERESTING LAWYERS I KNOW. [note to self--great sentence. evocative, intriguing.] This post from him last week is an example of why the internet is a good, good thing.

2004-06-11T08:21:00.000-07:00

REAGAN'S FUNERAL IS ABOUT TO BEGIN. Remember Republican outrage over the politiczation of Paul Wellstone's memorial service? Any bets? Anyone?

2004-06-10T17:48:00.000-07:00

The New York Times > International >FROM THE NEW YORK TIMES:

"[t]he Army said Tuesday that a G.I. was discharged partly because of a head injury he suffered while posing as an uncooperative detainee during a training exercise at Guantanamo Bay, Cuba.

"The Army had previously said Specialist Sean Baker's medical discharge in April was unrelated to the injury he received last year at the detention center, where the United States holds suspected terrorists.

"Mr. Baker, 37, a former member of the 438th Military Police Company, said he played the role of an uncooperative prisoner and was beaten so badly by four American soldiers that he suffered a traumatic brain injury and seizures. He said the soldiers only stopped beating him when they realized he might be American."

2004-06-10T17:29:00.000-07:00

"I THINK THE BUSH ADMINISTRATION KNOWS WHAT CONTEMPT OF CONGRESS IS ALL ABOUT." I've got a few cases where I'll be filing writs like the ones Jon Stewart is talking about...

2004-06-09T08:46:00.000-07:00

HERE IS THE DEPARTMENT OF DEFENSE "TORTURE MEMO." Surprised props to the Wall Street Journal for breaking this story. The other big papers are taking the WSJ's lead. If there is justice in this world, we will see Bush appointees tried for war crimes.

2004-06-03T07:58:00.000-07:00

GEORGE TENET IS TOAST. Interestingly, this shows up in the Times under "International/Middle East" reporting.

2004-06-01T14:18:00.000-07:00

THE TRANSPORTER WAS BAD ENOUGH TO GET A SEQUEL. I like Jason Statham, but hated this movie. Not as much as Skot did, though.

2004-06-01T12:34:00.000-07:00

THE SMOKING GUN HAS THE DOJ SUMMARY OF JOSE PADILLA'S ACTIVITIES. It is required reading for those of us who have been critical of the administration's detention of Padilla and his fellow US citizen detainee, Yaser Hamdi. If you disagree with how the adminstration has handled this case, the summary will not necessarily make you change your mind. However, this press conference with James Comey, a deputy attorney general who has handled much of the Padilla procedings for the DOJ, is at least refreshing propaganda. Comey admits that because Padilla was denied counsel, criminal proceedings against him in the future are iffy. And he gives thoughtful, candid answers to questions, without vilifying people who have questioned the decisions made by the FBI and DOJ in this case:

"QUESTION: You said that if you had picked him up under criminal charges that he would have gotten a lawyer, would have clammed up and would have walked free. But couldn't you have done what the Justice Department does thousands of times every year and offered him a plea agreement to work with you?

"COMEY: All the time we offer plea agreements and people cooperate if we have a hammer over them. The challenge of the Padilla case, for me as the United States attorney, was the absence of a hammer. If I can't credibly threaten criminal charges, no lawyer in the world is going to tell their client to talk to me, because a good lawyer would know, what I'm sure Mr. Padilla's lawyers knew, that if you just clam up, they can't do anything with this.

"QUESTION: So does that suggest that possibly he was picked up too soon, because you didn't have enough on him to pick him up on charges where you could actually bring criminal charges?

"COMEY: I don't think he was picked up too soon. I think it would have been derelict to allow him to come into the country and to hope to follow him. We have a wonderful FBI and they follow people every day, and well. But only on TV do they do it 24 hours a day, seven days a week, without losing someone."
***
"QUESTION: Last week, the attorney general received some criticism for the announcement that he made regarding terror concerns. Is there a reason why it's you up there today and not him?

"COMEY: I asked for this assignment. With the support of the attorney general, this has been my mission, in part because I was the United States attorney who had Padilla two years ago and in part because of my frustrations of the questions -- good questions from good people about Padilla -- that I could not answer. And a speak a lot of public fora [sic in transcript] and speak privately to a lot of folks.

"I very much wanted to see if I couldn't push forward, with the attorney general's backing, an effort to get this information out to the public.

"People are right to question when the president of the United States orders the military detention of an American citizen in the United States. And I very much wanted to have some of the answers for folks. And now we do."

italics mine. This is a skillfully-done news conference. It gets the message out that the paramount objective is to save US lives, and that traditional law enforcement tools could not serve that goal adequately. Comey stresses both the good intentions of the administration and confesses the weakness of traditional approaches. If Bush could do a news conference like this, reelection would be a lock. Thankfully, he can't.

ADDENDUM 6/3/04: Many people, including Dahlia Lithwick, have pointed out that the Padilla information has been released in a cynical attempt to both draw attention from and downplay coverage of the abuses at Abu Ghraib and also to manipulate the Supreme Court's decision in Padilla's own case. True, true. I didn't mean by this post to endorse the DOJ's actions or signify belief in the content of the documents detailing the gov't's "case" against Padilla. However, I give props to extrememly effective spin, which this is, and I was also surprised at the relatively even-handed tone of Comey's remarks, in which he did not vilify those who disagree with or question the administration. This last part is a departure from the norm.

2004-05-28T10:37:00.000-07:00

THIS UNBELIEVABLE LINK IS A WORKAROUND TO THE SHEDDING PROBLEM. "Chiengora"?

How does one get to a link like this? Thinking about "Cthulhu in 2004--Why Settle for the Lesser Evil" bumper stickers to go with my "Republicans for Voldemort" t-shirt, I hit the wikipedia entry for Cthulhu, which links to the entry for User Friendly, which links to a site devoted to the praises of chiengora. Go figger.

2004-05-27T17:36:00.000-07:00

I DON'T LIKE CHRISTOPHER HITCHENS. He's the nominal lefty Slate columnist who's been a huge proponent of the Iraq war. Today her serves up an "ain't he misunderstood" apologia for the reviled leader of the INC actually titled "Ahmad and Me - Defending Chalabi". Check this black-is-white money quote:

"As to the accusation that Chalabi has endangered American national security by slipping secrets to Tehran, I can only say that three days ago, I broke my usual rule and had a 'deep background' meeting with a very 'senior administration official.' This person, given every opportunity to signal even slightly that I ought to treat the charges seriously, pointedly declined to do so. I thought I should put this on record."

[italics mine]

2004-05-27T12:08:00.000-07:00

AL GORE GAVE A GREAT SPEECH YESTERDAY. Read the whole thing.

2004-05-27T11:31:00.000-07:00

GET YOUR WAR ON IS REQUIRED READING. David Rees is a trooper--he has enough righteous indiganation to take up the slack of those of us who are tired, so tired, of being righteously indignant.

2004-05-27T11:08:00.000-07:00

GREAT ARTICLE ON THE PSYCHOLOGY (PATHOLOGY?) OF BLOGGING TODAY IN THE NYT. In fact, expect the article itself to be exhaustively blogged. An excerpt:

"Sometimes, too, the realization that no one is reading sets in. A few blogs have thousands of readers, but never have so many people written so much to be read by so few. By Jupiter Research's estimate, only 4 percent of online users read blogs.

Indeed, if a blog is likened to a conversation between a writer and readers, bloggers like Mr. Wiggins are having conversations largely with themselves."

2004-05-25T11:24:00.000-07:00

THE RNC OUTSOURCED REPUBLICAN FUNDRAISING AND PUSH POLLS. To India, no less.

2004-05-21T15:37:00.000-07:00

CELEBRITY CRIMINAL TRIALS ARE BITTERSWEET FOR LAWYERS. On one hand, when a celebrity goes on trial, resources are devoted to the cause which dwarf the investment made in most cases. In other words, the best lawyers work on these cases, they have the benefit of huge budgets and plenty of time, and the actual work is usually done at a very high level. On the other hand, because the public's understanding of and interest in legal issues is so shallow, the media coverage of such trials is usually along the lines of "Kobe Bryant, nattily attired in a single-breasted navy pinstripe suit with crisp silk pocket square, pled innocent to rape charges in Eagle County Circuit Court this afternoon. His voice rarely raised above a whisper, he answered 'yes' repeatedly as the judge asked him if he understood each charge against him. His wife Vanessa was silent, watching from the front row of a gallery crowded with media and hangers-on. She wore a sedate Versace long-sleeved dress with a shallow scoop neck."

The Martha Stewart case was all that, and more. But Henry Blodget, a smart guy and himself a former (and successfully prosecuted) securities analyst, kept a running diary of the Martha Stewart prosecution at Slate. It was insightful and lucid; Blodget was honest about his biases, and just as honest about his own surprise when the guilty verdicts were announced. Now it turns out not only that the prosecution's star "ink expert," a Secret Service agent who testified about marks made by broke Peter Bacanovic on a summary of Steart's portfolio, lied at trial. And he's been charged by perjury by the same office that obtained convictions of Stewart and Bacanovic. Needless to say, lawyers for Bacanovic and Stewart are screaming about the need for a new trial.

And shouldn't they? This is that fun time--post-verdict--where we should step back from considerations of "did the error affect the outcome" and think about the effect of perception of the error. We have a witness whom the government is prosecuting for lying at trial. Do you think this fact, if made known, would affect a reasonable person's perception of whether Stewart and Bacanovic were fairly tried? Many people enjoyed a moment of schadenfreude when Stewart's conviction was announced, but would any of those people have said "I want a conviction, even if the government must suborn perjury to get one?" For the same reason, I never understand when prosecutors resist granting new trials in cases where new DNA testing on old evidence casts doubt on a conviction. I understand that prosecutors, once they have a conviction in hand, want to give nothing away. But at the same time, and especially when we go to war far away on the ostensible ground of spreading the rule of law, why do we lack the courage to say "a doubtful conviction cannot stand." Put another way, I hope that if I were a successful prosecutor and got a letter from Barry Scheck that said "Newly-performed DNA tests cast substantial doubt on whether Joe X., whom you prosecuted for manslaughter six years ago, actually committed that crime," I hope I would put aside pride in that notch on my belt and say, "Well, the public's faith in our system of justice demands that Mr. X receive a new trial."

But I'm hopelessly idealistic in many ways.

2004-05-20T11:35:00.000-07:00

YOU ARE BEING LIED TO. Headline: "GAO: Government's mock Medicare news spots violated law."

2004-05-19T09:26:00.000-07:00

A COUPLE OF WORDS ABOUT GOOGLE. First, I just noticed that Google has an incredibly powerful plain-language calculator. Neat stuff.

Then, on to gmail. As a long-time Blogger user (Blogger having been bought by Google a while ago) I was invited to beta test gmail, which is Google's email service, custom-designed to exterminate hotmail and yahoomail. As you might assume, it's pretty great. But there is a hue and cry, indeed a clamor, of people who desperately want to be in the beta but whom Google did not invite. Luckily, Google gave many of us invite privileges--I was allowed to invite two people. Some enterprising and public-minded soul set up gmailswap, where those with gmail invites to give can meet those willing to give things for invites. It's a barter economy. Great stuff. And maybe, just maybe, the kid who offered me a glass-top cherry humidor for an invite will actually send it. If not, oh well, but if so, golly!

2004-05-19T08:51:00.000-07:00

THE OREGONIAN BITES ASS. Its bias in favor of those people whose current and past offices are in City Hall is well documented. But today's front page headline--"Potter forces runoff"--is surreal. Here is the O's own set of numbers on the mayoral race. Potter 42%, Jim F. 34%. Potter didn't force a runoff, Jim did, and not by much.

And incidentally, if you think that in the runoff any of those votes for Extremo the Clown, the late Jim Spagg, Posey or Busse are going to shift anywhere but to Potter, you are a silly bunny. Put a fork in Jimmy the Schnoz. He's done.

2004-05-17T11:55:00.000-07:00

NEW EXISTENTIALIST COMIC STRIP: BOY ON A STICK AND SLITHER.

2004-05-17T11:34:00.000-07:00

ZELL MILLER COMPARES ABU GHRAIB TORTURE TO SHOWERING IN GYM CLASS:

Senator Zell Miller: 'The two times I think I have been most humiliated in my life was standing in a big room, naked as a jaybird with about fifty others and they were checking us out, now that was humiliating. It was humiliating showering with sixty others in a public shower. It didn't kill us did it? No one ever died from humiliation.'

Imus: 'Whenever I was naked I always felt sorry for the other guys.'

2004-05-13T22:35:00.000-07:00

I'M FINALLY READING THE ENTIRETY OF SY HERSH'S NEW YORKER PIECE ON IRAQ PRISONER ABUSE. The more I read--and the news these days is so fatalistically absorbing that it's impairing my ability to function in daily life--the more it seems that this tragedy was caused by the breakdown in the separation between military police, on the one hand, and military intelligence and OGA (other governmental agency, i.e., CIA) on the other hand.

Check this long excerpt from Hersh's piece:

Major General Geoffrey Miller, the commander of the task force in charge of the prison at Guantánamo, had brought a team of experts to Iraq to review the Army program. His recommendation was radical: that Army prisons be geared, first and foremost, to interrogations and the gathering of information needed for the war effort. “Detention operations must act as an enabler for interrogation . . . to provide a safe, secure and humane environment that supports the expeditious collection of intelligence,” Miller wrote. The military police on guard duty at the prisons should make support of military intelligence a priority.

General Sanchez agreed, and on November 19th his headquarters issued an order formally giving the 205th Military Intelligence Brigade tactical control over the prison. General Taguba fearlessly took issue with the Sanchez orders, which, he wrote in his report, “effectively made an MI Officer, rather than an MP officer, responsible for the MP units conducting detainee operations at that facility. This is not doctrinally sound due to the different missions and agenda assigned to each of these respective specialties.”

Taguba also criticized Miller’s report, noting that “the intelligence value of detainees held at . . . Guantánamo is different than that of the detainees/internees held at Abu Ghraib and other detention facilities in Iraq. . . . There are a large number of Iraqi criminals held at Abu Ghraib. These are not believed to be international terrorists or members of Al Qaeda.” Taguba noted that Miller’s recommendations “appear to be in conflict” with other studies and with Army regulations that call for military-police units to have control of the prison system. By placing military-intelligence operatives in control instead, Miller’s recommendations and Sanchez’s change in policy undoubtedly played a role in the abuses at Abu Ghraib. General Taguba concluded that certain military-intelligence officers and civilian contractors at Abu Ghraib were “either directly or indirectly responsible” for the abuses, and urged that they be subjected to disciplinary action.
***
[T]he pressure on soldiers to accede to requests from military intelligence was felt throughout the system.

Not everybody went along. A company captain in a military-police unit in Baghdad told me last week that he was approached by a junior intelligence officer who requested that his M.P.s keep a group of detainees awake around the clock until they began talking. “I said, ‘No, we will not do that,’” the captain said. “The M.I. commander comes to me and says, ‘What is the problem? We’re stressed, and all we are asking you to do is to keep them awake.’ I ask, ‘How? You’ve received training on that, but my soldiers don’t know how to do it. And when you ask an eighteen-year-old kid to keep someone awake, and he doesn’t know how to do it, he’s going to get creative.’”

There are two lesson here. One is that the Rumsfeld/Cheney scorn for Pentagon formalistic pointyheadedness has several fruits, some bitter. This scorn led to a successful military campapign--fast, light American forces were able to take Iraq quickly and efficiently. This approach didn't work, though, after the conquering was done. Gen. Eric Shiseki famously lost his job for saying the administration was underestimating the number of troops ithat holding Iraw and keeping it safe would take. The same approach sees an efficiency, a synergy, in the detention of citizens of the occupied country. They are also possible intelligence assets. The other is another hallmark of this administration, which is the disregard for any formalism as being simple apparatchik-think. Forgive my analogy, but we see a similar breakdown domestically in the traditional and required separation between law enforcement and intelligence gathering.

2004-05-12T11:19:00.000-07:00

I'D PREFER TO HAVE A BARCODE TATTOOED ON MY FOREHEAD, THANKS. I'm looking into the veracity of this story, which says that a nightclub in Barcelona is implanting RFID chips in clubgoers so as to allow them to pay for their drinks without carrying a wallet.

UPDATE: Yup, it's true. From an interview with the club's owner:

"By simply passing by our reader, the Baja beach Club will know who you are and what your credit balance is. From the moment of their implantation they will also have free entry and access to the VIP area which we will formally open the 25th of March.
***
The objective of this technology is to bring an ID system to a global level that will destroy the need to carry ID documents and credit cards. The veriChip the we implant in the Baja will not only be for the Baja, but is also useful for whatever other enterprise that makes use of this technology."

2004-05-11T08:57:00.000-07:00

GEORGE WILL GETS IN HIGH DUDGEON when he feels personally betrayed:

"When there is no penalty for failure, failures proliferate. Leave aside the question of who or what failed before Sept. 11, 2001. But who lost his or her job because the president's 2003 State of the Union address gave currency to a fraud -- the story of Iraq's attempting to buy uranium in Niger? Or because the primary and only sufficient reason for waging preemptive war -- weapons of mass destruction -- was largely spurious? Or because postwar planning, from failure to anticipate the initial looting to today's insufficient force levels, has been botched? Failures are multiplying because of choices for which no one seems accountable.

"The principle is: The response by the nation's government must express horror, shame and contrition proportional to the evil done to others, and the harm done to the nation, by agents of the government.

"Americans are almost certainly going to die in violence made worse in Iraq, and not only there, by the substantial aid some Americans, in their torture of Iraqi prisoners, have given to our enemies in this war. And by the appallingly dilatory response to the certain torture and probable murder committed in that prison."

2004-05-10T16:32:00.000-07:00

HILARIOUS. The FBI thinks a fictional character is plotting chemical attacks. But play follow the link: "a White House staffer Googled Fulci." Google "Don Emilio Fulci" and you get this. Use the Google French to English translator,a nd you get this.

"Unfortunately, the head of the ACN, Christopher Stern, was made assassinate in his office, and you, you are amnesic. The girl of Stern, Angela, urges you to find the assassin supposed of his/her father, Gift Emilio Fulci."

Sounds like my fraternity days...

2004-05-10T14:18:00.000-07:00

LONG COLD WINTERS DRIVE CANADIANS CRAZY.

2004-05-10T10:55:00.000-07:00

THE O'S PUBLIC EDITOR APOLOGIZED FOR CALLING GOLDSCHMIDT'S CHILD ABUSE AN "AFFAIR." He also offered up this nugget, which is a nice look into how spin becomes spin:

The timing of Friday's story ended up being controlled by Goldschmidt, whose representative called The Oregonian Thursday morning offering a meeting with reporters and editors. At the meeting, Goldschmidt gave them his written statement and then responded to questions. The interview ended about 3 p.m., launching a dash to prepare a package by 7 p.m., with revisions through the evening.

2004-05-07T10:39:00.000-07:00

NEIL GOLDSCHMIDT'S SEX ABUSE OF A MINOR IS THE NEWS. But as usual, the meta-news is more interesting. Here's the past 24 hours' chronology: First, Goldschimdt resigns as head of the state Board of Higher Ed., his position with the Texas group angling to buy PGE, and his various and sundry other positions. He cited his health as the reason. Then, radio pundits like Lars Larson (not gonna dignify him with a link), upon learning of this, started saying in public what had been bandied about quietly for years--that Goldschmidt was resigning because he was about to be outed on his affair with a fourteen-year-old girl while he was mayor. The Willamette Week posted a teaser on its website that said, in essence, "Goldschmidt resigned today ostensibly for health reasons, but we think it's because of our two-month probe into his past sexual misconduct. We'll blow the lid off it next Wednesday," that is, May 12.

Here's where it gets interesting, rather than merely sordid. Today's front-page headline in the Oregonian spotlights a nearly hour-long interview with Goldschmidt, where he comes clean. The Willy, meanwhile, is left rushing to web with what it thought was going to be a bombshell next week. Richard Meeker and Mark Zusman must be tearing their hair out and damning their choice to work for a weekly rather than a daily right now.

The piece in the O reveals that Goldschmidt is still immensely talented as a politician, and the O is willing to do what's necessary to get the scoop over the Willy. As Josiah points out, the O's account of the interview is almost absurdly deferential and sympathetic, portraying NG as a man whose health has been broken by the weight of guilt he has carried for the past 28 years. Check these excerpts:

"I'm just living with this personal hell," said Goldschmidt, 63, occasionally choking back tears. "The lie has gone on too long."
***
Goldschmidt acknowledged that his past behavior will forever blight his political legacy, as well as put at risk others associated with his work, including his longtime friend, Gov. Ted Kulongoski. Although Goldschmidt had setbacks, he has been a sought-after visionary on some of Portland's biggest projects and is considered one of Oregon's savviest political insiders.
***
His voice quavering, his face flushed, Goldschmidt methodically and bluntly revealed details he knew could ruin him. He had an affair with an underage girl, he lied about it and ultimately was forced to disclose it.

Usually a commanding presence, he appeared dejected and defeated, his head often slumping inches from the meeting room table.

Joining him for the interview were his business partner Tom Imeson and his best friend, Jerry Bidwell, a prominent Portland area financier and a member of the Oregon Investment Council. All sat somberly as Goldschmidt answered questions about the affair. Several times, Diana Goldschmidt reached out and clasped her husband's hand or rubbed his shoulder.
***
"The story was being spread in ways that were even more damaging than I supposed I ever could quite imagine," Goldschmidt said, his voice rarely rising above a hoarse whisper.
***
Goldschmidt, who has suffered from heart ailments since law school, said his health has gradually worsened over the years. Last fall, he said, he suffered a "serious episode" of atrial fibrillation -- or irregular heartbeat. He visited the Mayo Clinic in Minnesota in December for a closer diagnosis and was told to change his life by losing weight, exercising and limiting stress.

Two weeks ago, he experienced another atrial fibrillation episode. That's when he concluded he had to "slow down."

"The real issue is, I'm trying to avoid a stroke," Goldschmidt said.

A large measure of the guilt he feels, he said, is because of how much he thinks this will hurt his family, friends and political associates.

The poor man! He's a victim!

2004-05-05T22:23:00.000-07:00

WEIRD STUFF. So, like, I wanted to check some of my favorite sites, which happen to be linked at right, and so I was going to my blog? And I was supposed to type "whitman.blogspot.com"? And instead I typed "whitman" and hit ctrl+enter? And Firefox filled in www.whitman.com? And it said "whitman.com was not found"? And I thought, "golly, maybe whitman.com has expired and I can go register it, and use it, and migrate my blog over to it and use movable type and get a cool site design like Linda's? So I went to whois the domain at internic.com to see if it was really available? And internic said "sorry, that's not available, maybe you'd like one of these alternate domains...."

[weird stuff coming up. the up-talking was not the weird stuff. repeat, the up-talking was not the weird stuff]

"...maybe you'd like one of these alternate domains, mattwhitman.com..." [holy shit, that's me!] "...or walterwhitman.com." [holy shit, that's my dad!]

So I see two possible explanations. One is that the evil whois query somehow triggered an evil privacy-invading search of my cookies to see info associated with my whois request, and integrated evilly-acquired information from my machine into a "suggestion" of domains I might like. The other is that internic processed some sort of net-wide query and came up with the most net-popular Whitman first names not already registered. Which in turn would mean that "matt whitman" is more recognizable net-wide than "robert whitman," "bill whitman," or "john whitman." All of which seems a trifle unlikely. Anybody got some better explanation?

2004-05-05T17:57:00.000-07:00

FUNNY BUMPER STICKERS. Gotta find amusement somehow while Skot is on vacation in Vegas.

2004-05-05T13:55:00.000-07:00

SO I KNOW THIS GUY WHO BLOGS AND I'M SURE HIS BOSS DOESN'T KNOW ABOUT IT...

Or his fire-based performance art...

And he found this. Ay yi yi.

See "How Not to Get Fired Because of Your Blog."

2004-05-05T09:48:00.000-07:00

FROM THE TAGUBA REPORT*:

6. (S) I find that the intentional abuse of detainees by military police personnel included the following acts:

a. (S) Punching, slapping, and kicking detainees; jumping on their naked feet;

b. (S) Videotaping and photographing naked male and female detainees;

c. (S) Forcibly arranging detainees in various sexually explicit positions for photographing;

d. (S) Forcing detainees to remove their clothing and keeping them naked for several days at a time;

e. (S) Forcing naked male detainees to wear women’s underwear;

f. (S) Forcing groups of male detainees to masturbate themselves while being photographed and videotaped;

g. (S) Arranging naked male detainees in a pile and then jumping on them;

h. (S) Positioning a naked detainee on a MRE Box, with a sandbag on his head, and attaching wires to his fingers, toes, and penis to simulate electric torture;

i. (S) Writing “I am a Rapest” (sic) on the leg of a detainee alleged to have forcibly raped a 15-year old fellow detainee, and then photographing him naked;

j. (S) Placing a dog chain or strap around a naked detainee’s neck and having a female Soldier pose for a picture;

k. (S) A male MP guard having sex with a female detainee;

l. (S) Using military working dogs (without muzzles) to intimidate and frighten detainees, and in at least one case biting and severely injuring a detainee;

m. (S) Taking photographs of dead Iraqi detainees.
***
8. (U) In addition, several detainees also described the following acts of abuse, which under the circumstances, I find credible based on the clarity of their statements and supporting evidence provided by other witnesses (ANNEX 26):

a. (U) Breaking chemical lights and pouring the phosphoric liquid on detainees;

b. (U) Threatening detainees with a charged 9mm pistol;

c. (U) Pouring cold water on naked detainees;

d. (U) Beating detainees with a broom handle and a chair;

e. (U) Threatening male detainees with rape;

f. (U) Allowing a military police guard to stitch the wound of a detainee who was injured after being slammed against the wall in his cell;

g. (U) Sodomizing a detainee with a chemical light and perhaps a broom stick.

h. (U) Using military working dogs to frighten and intimidate detainees with threats of attack, and in one instance actually biting a detainee.
***
CONCLUSION

1. (U) Several US Army Soldiers have committed egregious acts and grave breaches of international law at Abu Ghraib/BCCF and Camp Bucca, Iraq.

* The Taguba Report is the official report and findings of US Army Major General Antonio M. Taguba, who was charged to investigate detainee abuses at Al Ghraib prison in Iraq.

2004-05-05T09:28:00.000-07:00

WONDERING WHERE ALL THOSE FINGERNAIL CLIPPERS CONFISCATED AT THE AIRPORT GO?

2004-05-05T09:17:00.000-07:00

GEORGE WILL IS LATE TO THE PARTY.:

"This administration cannot be trusted to govern if it cannot be counted on to think and, having thought, to have second thoughts. Thinking is not the reiteration of bromides about how 'all people yearn to live in freedom' (McClellan). And about how it is 'cultural condescension' to doubt that some cultures have the requisite aptitudes for democracy (Bush). And about how it is a 'myth' that 'our attachment to freedom is a product of our culture' because 'ours are not Western values; they are the universal values of the human spirit' (Tony Blair)."
***
"Being steadfast in defense of carefully considered convictions is a virtue. Being blankly incapable of distinguishing cherished hopes from disappointing facts, or of reassessing comforting doctrines in face of contrary evidence, is a crippling political vice.

"In On Liberty (1859), John Stuart Mill said, 'It is, perhaps, hardly necessary to say" that the doctrine of limited, democratic government "is meant to apply only to human beings in the maturity of their faculties.' One hundred forty-five years later it obviously is necessary to say that. "

2004-05-04T15:27:00.000-07:00

ARNOLD SCHWARZENEGGER THREATENS TO SUE MAKER OF "BOBBLEHEAD" ARNIE DOLL, IS SHAMED AND REVILED IN RESPONSE. This .pdf contains the demand letter from Arnie's lawyers at Lavely & Singer. Note--the demand letter even purports to be copyrighted, as in "I am threatening you, and you cannot publish this fact without my suing you." This post at corante contains a dialogue between blog commenters, one of whom actually contends that the demand-letter copyright is valid! Holy smoke! Some lawyer is spending too much time on Westlaw and too little in the real world.

2004-05-03T18:15:00.000-07:00

BOB EDWARDS HAS BEEN ON MY MIND. Last Friday was his last morning hosting Morning Edition on NPR, and I heard the show as I was driving from Pendleton to an arbitration in La Grande. I choked up as Edwards played his last interview on behalf of ME--of Charles Osgood, the author of Defending Baltimore from Enemy Attack, and himself an old-school veteran of radio. "Do you know why we are talking today?" asked Edwards. "You were the first person I interviewed on Morning Edition, 24 1/2 years ago. You are the alpha and the omega." Just a hint of irony in his voice.

Edwards is being moved--against his will--into a "senior correspondent" role, and this has sparked much wailing and gnashing of teeth among NPR listeners. But like the decision or not (and no one on the listener side agrees with it, because Edwards' replacements are the vanilla Steve Inskeep and Renee Montagne), the way NPR has handled the flak since the announcement is savvy and commendable:

1. NPR has stuck to its guns. Despite the overwhelming backlash, Edwards is still out. While this is a bitter decision, in a few months people will have adjusted to the voices of whoever permanently replaces him, and Edwards will be a fond memory. NPR proceeds in the confidence that it will lose few listeners permanently, because no one else occupies its niche.

2. NPR has allowed Edwards' beatification rather than resisting it. ME's correspondents, in their last chats with him last week, uniformly thanked him warmly for their time together (Ken Turan and John Feinstein last Friday, for example) and praised him to the skies. It posted a poignant (and probably coerced) letter from him on the website, and a huge separate tribute page.

3. It has kept him around, effectively co-opting him.

4. It has coincided with season pledge drives, at least at my NPR affiliate, Oregon Public Broadcasting, and is using him as a pledge drive incentive: "do it for Bob--it's what he would want."

2004-05-03T17:32:00.000-07:00

BRUCE STERLING IS A TECHNO-LIT GOD, along with William Gibson and Neal Stephenson. He also delivers a nice rant, as he did at SXSW last March. The transcripts differ wildly, and the differences probably mean something, but each is worth reading:

Here's one from Fast Company.

Here's one from Perpetual Beta.

Here's one from Craphound.

2004-05-03T14:57:00.000-07:00

SO I NEED SOME LINEN PANTS. Getting married, don'tcha know, outside in Hood River in July, so linen is the way to go. And I noticed that Land's End is in fact Lands' End! Not as in "the end of the land, e.g., the beach," but as in, "the end belonging to John Lands"! For some reason I am scandalized, as I have not noticed this for the past twenty years.

2004-05-03T14:48:00.000-07:00

WHY DO WE HAVE TO GET THIS NEWS FROM THE TORONTO STAR? The Pentagon wants to dramatically expand Selective Service registration (making it less selective): "The proposal, which the agency's acting director Lewis Brodsky presented to senior Pentagon officials just before the U.S.-led invasion of Iraq, also seeks to extend the age of draft registration to 34, up from 25."

(Emphasis mine.) So much for those complaints that the administration wasn't thinking about the afterwar--they were.

2004-05-03T14:12:00.000-07:00

SO I ADDED A HIT COUNTER...

and it didn't work worth a damn. I keep getting emailed reports that reflect zero page views, and zero unique visitors. I know this isn't the most popular blog in the world (too depressing, says Dad) but I know at least two people read it regularly. So I'm republishing to try to restart the service.

Addition 5/3/04: Plus Haloscan sometimes fails to load and my comments, or the whole blog, fails to show up. This is not such a problem for me, but it happens to Atrios too, and millions of people read Eschaton.

2004-04-29T19:25:00.000-07:00

THIS POIGNANT PIECE EXAMINES THE TENSION INHERENT IN ENVIRONMENTALISM.

2004-04-29T15:15:00.000-07:00

YESTERDAY PAUL CLEMENT TOLD THE SUPREME COURT that the US does not torture detained "enemy combatants" because it is a poor way to get accurate information. But that doesn't stop our troops for torturing just for fun, and photographing the proceedings to keep the good times rolling:

One picture depicts an Iraqi soldier standing on a box with wires attached to his hands. He was reportedly left on the box for a long period and told that he faced electrocution if he fell off. Another shows prisoners kneeling on each other, naked except for hoods covering their heads, to form a human pyramid. Another shows naked prisoners being forced to pretend to have sex with one another.

In case you were wondering, this is the problem with war--not what our enemies do to us, but what war allows us to do to others. By systematically demonizing and dehumanizing others, we justify killing them. And once we can kill them, why not force them to sodomize each other? And so we are dehumanized.

ADDITION 5/3/04: Josh Marshall says it better:

Put tens of thousands of young men and women in a hostile situation, give them near absolute control over people they learn to both fear and hate in equal measure, and awful things are bound to happen.

2004-04-29T08:34:00.000-07:00

THE TASTEFULLY NAMED GREGG EASTERBROOK'S EASTERBLOGG at The New Republic is going defunct so Easterbrook can work on his book. He concluded Tuesday with his "All Suck-Up Edition," guaranteed to boost his own Google results. But don't forget--Tuesday Morning Quarterback resumes regular posts when the NFL preseason starts.

2004-04-28T17:11:00.000-07:00

AS PREVIOUSLY DISCUSSED, I REVERE DAHLIA LITHWICK. Her acerbic observations in reporting on the Supreme Court for Slate are among the high points in my little legal world. From today's report on the Padilla hearing:

Ginsburg asks whether the government has any justification for trying certain defendants (John Walker Lindh, Zacarias Moussaoui, James Ujaama) and locking up others. Clement replies that those terrorists had "no intelligence value," so it was fine to put them into the judicial system. (The notion that the government will learn more from interrogating Hamdi, a Taliban foot soldier, than Moussaoui, a man who ate ice cream with ranking al-Qaida members, is so preposterous that it cannot just be left on this page to die.)

2004-04-28T15:14:00.000-07:00

THIS NY TIMES PIECE--A PROFILE OF KERRY'S PERSONAL ASSISTANT--IS BAFFLING. The why of it, that is: "why did anyone incur keyboard wear and tear writing this?" And the where: "Why is this in the Times rather than the Enquirer?" But from it we get this factoid: Kerry owns, and travels with, a Serotta.

2004-04-27T18:15:00.000-07:00

GIANT BLIMPS--FOR SPOTTING ENEMY MISSILES. It'd be funny if it weren't so freakin' sad.

2004-04-27T09:53:00.000-07:00

HEY CRACKHEAD! (link from Brooks)

2004-04-27T07:51:00.000-07:00

YOU CAN BUY THE ARK OF THE COVENANT ON EBAY. And you should. The minimum bid is US$10M, but I'm sure the seller would accept any form of exchange used by Old Testament prophets...goats, slaves, virgin daughters.

2004-04-26T09:38:00.000-07:00

IT'S DEPRESSING HOW PREDICTABLE THIS HAS ALL BECOME. Check out this story--from November, 2001--
about the polarization between a multilateralist State Department and a unlateralist, empire-building Defense Department over Iraq and other Middle East issues. And yes, this story is by the same Jason Vest who wrote Fables of the Reconstruction, about which I earlier blogged here.

2004-04-23T16:59:00.000-07:00

JOHN KERRY IS A DOUCHEBAG BUT I'M VOTING FOR HIM ANYWAY. (link from Brooks.)

2004-04-23T09:19:00.000-07:00

I THOUGHT I LIKED DAHLIA LITHWICK A LOT, BUT I NEVER CREATED A FAN WEBSITE. But I'm thinking of creating a fan website celebrating the US DOJ lawyer and sometime Georgetown professor who created the Dahlia Lithwick fan website.

I just confused myself.

2004-04-23T09:12:00.000-07:00

BROTHER JOSIAH NEEDS ONE OF THESE.

2004-04-22T17:50:00.000-07:00

THE FOURTH CIRCUIT HAS RULED IN ZACARIAS MOUSSOUI'S CASE. Moussaoui, you'll recall, was accused of being the "20th hijacker" in the 9/11 plot, and is on trial in Virginia. Dahlia Lithwick has done a brilliant job covering the circus-like antics of both the defendant and the federal prosecutors seeking to put him to death. The trial judge, Leonie Brinkema, has had a job tougher than a Montessori teacher's. She has had to deal with Massaoui's nutty pro se pleadings on the one hand, and the government's steadfast refusal to cooperate with its obligations to produce possibly exculpatory witnesses and information.

The government, you see, has some al Qaeda guys in custody who Moussaoui wants to testify at his trial. Presumably they would say "Zac? Oh he was way too carzy and stupid for us to trust him with anything big. The only aid and support he provided us was when he got us ding-dongs and all-syrup slushies from the Quik-E-Mart." Moussaoui, understandably, wants to interview the guys. The government says no. He wants to make them appear in person at trial. The government says no. The judge orders that the government make the al Qaeda dudes available. Big mistake: the government says no.

As a sanction for this prosecutorial muleheadedness, Judge Brinkema had ordered that the prosecutors were not allowed to seek the death penalty, and not allowed to even mention 9/11. Y'see, there's this thing called the Sixth Amendment--and remember, the early ones are very, very important--says that defendants get to confront their accusers, put on evidence in their own defense, etc. As the Fourth Circuit notes in its opinion, once the defendant demonstrates that a witness' potential testimony could be helpful but the government still refuses to produce that witness, "dismissal of the indictment is the usual course." Opinion, p. 30. In this case, though, the Fourth Circuit concludes that the government may provide a substitute for the in-person testimony of the witnesses so long as that substitute ""will provide the defendant with substantially the same ability to make his defense as would disclosure of the specific classified information." Id., (emphasis added).

To make a long opinion short, the Fourth Circuit rules here that written statements of the withheld withnesses--which Judge Brinkema must help craft--are an acceptable substitute. There are at least three huge problems with this:

1. There is no substitute for interviewing someone face-to-face. Sending someone a list of thirty written questions and expecting them to mail you back full and complete written answers to those questions is just dopey. In person, you can pin a deponent down, follow up evasions or partial answers, read body language and tone of voice, etc. There is no comparison--these appellate judges have not dealt with witnesses in too long, or are being intellectually dishonest.

2. It obligates the trial judge to collaborate in the presentation of defense evidence, which is just as repugnant as requiring her to collaborate in presenting prosecution evidence.

3. The Fourth Circuit's opinion, by quoting redacted parts of the District Court's opinion, makes clear how useless these statements are. The redactions are marked with asterisks:

"Several statements by Witness * * * * tend to exculpate Moussaoui. For example, the * * * * summaries state that * * * * This statement tends to undermine the theory (which the Government may or may not intend to advance at trial) that Moussaoui was to pilot a fifth plane into the White House. Witness * * * * has also * * * * This statement is significant in light of other evidence * * * * indicating that Moussaoui had no contact with any of the hijackers. * * * * This is consistent with Moussaoui’s claim that he was to be part of a post-September 11 operation."

Just look at page 32 of the opinion. What a pathetic travesty. So much for fair trials. I won't do better than Judge Gregory's dissent:

[E]every criminal defendant in every Article III proceeding has a panoply of rights that we are duty-bound to protect, even in the face of the Government’s interest in keeping sensitive or damaging evidence secure. See, e.g., Chambers v. Mississippi, 410 U.S. 294, 302 (1973) ("Few rights are more fundamental than that of an accused to present witnesses in his own defense."); Washington v. Texas, 388 U.S. 14, 19 (1967) ("The right to offer the testimony of witnesses, and to compel their attendance, if necessary, is in plain terms the right to present a defense . . . . This right is a fundamental element of due process of law."). The defendant’s rights may have to be satisfied by some means other than complete disclosure of the information at issue (or, in this case, complete access to the witnesses), but his rights do not evaporate simply because the Government’s national security concerns make satisfying those rights more complicated than in the run-of-the-mill criminal prosecution.
Dissent, pp. 56-57.

2004-04-22T15:51:00.000-07:00

ISAAC LAQUEDEM HAS THIS INNOVATIVE SUGGESTION to deal with campaign finance disparities in Portland City Council Races.

2004-04-22T15:45:00.000-07:00

NOT JUST COMMENTS, BUT A SITEMETER AND AN RSS FEED AND A LINK ON ORBLOGS...WOOOOO! Glad I had a productive morning.

2004-04-22T15:14:00.000-07:00

ALLI'S BACK! Frolic and Detour was down for a long time because Alli changed jobs (a 0.75 FTE job? For a lawyer?!?? I am dying inside) and started spending far too much time writing about TV shows for TWOP and not nearly enough writing about herself.

She is more interesting than TV.

But now she's back with a fly-ass new site design and the promise that she will no longer neglect her blogging duties. And she mentioned me in one of her first posts. And called me smart. I am blushing.