David Souter To Retire

Well, I can't say I'm super surprised. The rumors have been flying for days that Justice David Souter would retire and now it's official.

This is probably not a huge issue, actually. Souter has been fairly liberal on most things since President Bush (the Elder) appointed him and he turned sharply left of what anyone (including Bush) expected.

I can recall arguments in college with Democratic friends who fretted that they thought Souter was an "enemy of women." Women's rights groups have had few better advocates on the High Court than Souter. He was a dream come true for them. This was one of my first lessons in turning a critical eye towards political propaganda.

I've no real sense for who Obama will nominate to replace Justice Souter. We can expect someone fairly liberal, of course. There is a lot of talk that the appointment should be a woman. I agree that in this day and age, it's kind of retrograde to see a Supreme Court with only one woman on it. But at the same time, the gender, or race, of the jurist is much less important than their intellectual qualifications to handle the deeply complex and challenging issues of Constitutional law which are the Supreme Court's primary job.

Not Really Ever Going To Be A Problem

Here it is, in all its glory, the ultimate scare argument against same-sex marriage. Iowa Code § 595.19 currently reads:

595.19 VOID MARRIAGES.
1. Marriages between the following persons who are related by blood are void:
a. Between a man and his father's sister, mother's sister, daughter, sister, son's daughter, daughter's daughter, brother's daughter, or sister's daughter.
b. Between a woman and her father's brother, mother's brother, son, brother, son's son, daughter's son, brother's son, or sister's son.
c. Between first cousins.
2. Marriages between persons either of whom has a husband or wife living are void, but, if the parties live and cohabit together after the death or divorce of the former husband or wife, such marriage shall be valid.

So yeah, a marriage between a man and his brother is not prohibited by 595.19 in its current form. Good catch dude. Apparently you've spent a lot of time thinking about this exact issue.

Well, here's what. If you think the Iowa Legislature can't handle something like an amendment to this, then let's revisit this issue the first time two brothers or two sisters actually apply for a marriage license in Iowa. I'm sure we can deal with the situation then.

Until then, get real.

Hat tip to science fiction fan Patrick at Popehat, who also pointed to a link to this disturbing image.

Not Enough To Say No

Jon Huntsman is a possible candidate for President in 2012? I'd not really thought about it, but I have to admit that he's stepping up to say something in a real leadership capacity today. (People have to start getting his name right, for starters.) Politico calls him the fastest-rising Republican you've never heard of, and that's about right because he seems to have kept a very low profile despite providing what appears to be pretty competent government to his state.

My point today is, he's the guy who's saying, "You can't just say no. You can't just obstruct or obfuscate." Republicans need to actually come up with new ideas of their own. They need to show that, if given power back, they will actually do something that could potentially be beneficial with that power. Otherwise, they'll be reduced to doing what Democrats did for a long time -- waiting for the party in power to screw the pooch so badly that the public will grow disgusted with them and hand things off to anyone else on general principles.

In fact, even that's a halfway unfair characterization of how the Democrats got their mojo back -- they did say they were going to change and then end the war in Iraq. But it only worked because the public had grown so disgusted with the way the war was going that they were looking for anything, any strategy, anyone, who would effect a meaningful change.

This is why the Tea Party movement is not proving particularly useful or effective in terms of effecting political change (as many people, including me, predicted). It's fun to say "no" all the time because it's easy to criticize and it's easy to get party unity and strong discipline on opposing someone. And it's a valid political point to be against something. But when you're just opposed to something, it sort of ends there. (And your message gets co-opted pretty easily.)

The trick is to channel that energy into being in favor of something. That's how real change happens. Huntsman is dead on right about that. That's something that Barack Obama did when he ran for President, and in retrospect it's amazing how effective he was at it. He managed to advocate a whole constellation of policy ideas, at a very high level of generalization, by talking constantly about "hope" and "change." Yes, I know it's not like he only said those words on his campaign but he never really offered much by way of specifics. Really, he did little more than identify a set of problems and indicated that it would be a priority in his White House.

Now is the time when the rubber meets the road. Now is the time for specifics. Obama is still short on actual, substantive policy ideas. You want proof? Take a look at his budget report. I did yesterday and I was astonished. On the surface, it looks great. There's all sorts of policy statements that sound good; it's difficult to disagree with much of what's there. But look closer. It's about 170 pages long. Twelve pages are a "don't blame me for the crappy economy" argument, which blithely ignores that as a Senator, Obama was part of the team that created the budgets the country's been running on for the past two years and he personally did nothing to help. A sin of omission, to be sure.

Then, the next twenty-six pages are a wish list of policy changes that have apparently not been thought through all the way, dressed up as intellectual justifications for optimistic economic projections. After that, you get more policy wish lists, going department by department through the whole Federal government. You don't get to any real numbers until you hit the appendix. Even then, the numbers are presented in a summary fashion, making it very difficult to figure out exactly what these departments are going to do with all this money. You're better off using this third-party produced interactive budget toy to break down where money is going to go.

This creates an opportunity for Republicans. Obama needs actual ideas. Once you get past the wish lists, he's really short on specifics. Repubicans, step up to the plate and plunk your ideas down on the table. Do it now, and argue for them now. Don't "save" them for a rainy day when the Democrats have flubbed things up so badly you get back in power by default.

If you do this, one of two things will happen. First possibility -- Obama and the Democrats will actually adopt the ideas you argue for. If this happens, you get credit as the originator of the idea and as someone who offers "bipartisan" solutions to problems. Second possibility -- Obama and the Democrats will reject your ideas. If this happens, you get credit as having offered a solution to a problem, and you get to lambaste the Democrats as the real obstructionists. Either way, you win politically.

But you have to have actual ideas to offer, first. Here, let me help you -- I've offered ten substantive ideas that are at least defensible from a policy standpoint and not already occupied as Democratic turf. They could make for bright points in a comprehensive Republican policy platform. Some young (that is, in his or her 50's) Republican holding a Governor's seat or a Senator's seat or some other prominent elective office, to fashion that policy platform and combine that with his or her political machinery and charisma. Right now, the closest things to leaders that Republicans have are a talk show host who cheers on defections from the party, a former Congressman who's been out of office for over ten years, and a floor leader in the House whose policy contributions so far consist of complaints of nausea. So the floor's wide open, as far as I can see it.

But it's not enough to look good and criticize the incumbent. You have to have some actual ideas in your head. Ah, but that's always the hard part, isn't it?

Antonin Scalia Blogs!

Well, he comments on a blog, anyway. It's pure vitriol, too. Enjoy.

Have You Ever Seen An Atheist?

Pat Tillman Foundation

Bisque's series of atheist paintings (among others).

Halfway Done

I had cause to check the actuarial tables of the Social Security Administration today. The amount of time that the tables say I have left to live* is almost exactly the amount of time that I have already lived.

It's been a pretty good ride so far. I'm blessed with a terrific wife and a loving family with whom I get along, and many good friends. I've had more good wine, travel, and education than a lot of people ever get to enjoy. I've had no significant illnesses and few significant injuries and enjoyed the blessings of life in a free society.

But I'm still not nearly eligible for AARP membership, so I wish they'd quit sending me junk mail.


*Actuarial tables represent an amalgamation of data from multiple sources, are subject to change based on shifting demographic data, and not guaranteed to be accurate nor are they a predictor of actual lifespan. Your experience may vary. Past results are not a reliable indicator of future performance. Price does not include tax, fees, licenses, insurance, or shipping and handling. An erection lasting four or more hours is a serious medical condition that requires the immediate attention of a doctor. Thank you, please drive through.

Viewpoint Censorship

Back in the 1990's, there was a kid in Minnesota who, quite obnoxiously, put together a cross from broken chair legs, and burned it on the front lawn of an African-American family in St. Paul. He was charged with violating a local hate speech ordinance:

Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor.

A nice sentiment on the part of the city of St. Paul -- burning crosses, swastikas, and the like are utterly obnoxious and lack socially redeeming value. They are also, unfortunately, expressions of an opinion and therefore protected by the First Amendment. It's easy to want to punish someone who has done something like this, because it's so morally obnoxious. And the speech in question here was assumed to be unprotected by the First Amendment. But letting your conscience be your guide in a particular case can sometimes lead to the creation of a rule that works greater harm than that which you wish to prevent.

Which is why the Supreme Court specifically noted that laws which engage in "viewpoint discrimination" violate the First Amendment, even if the speech in question is itself unprotected. The City of St. Paul did not outlaw expressions of racial solidarity and harmony, and therefore could not criminalize expressions of racial discord. This particular law was justified only on the basis of the City's revulsion at the content of the speech itself, which is why it violated the Constitution. "Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire," the Court concluded.

Justice Antonin Scalia wrote that opinion, by the way. He seems to have a more pro-government position on the goings-on at Guantanamo Bay than he did in evaluating the hate speech law in St. Paul.

So with that in mind, let's take a look at this principle in another context. Back in my old stomping grounds in Knoxville, the schools have taken it upon themselves to ban certain websites but not others. Just as a sample, the website of PFLAG -- Parents and Friends of Lesbians and Gays -- is blocked. PFLAG's site is completely safe for work. So too is the blocked website of the Human Rights Campaign, which urges political action such as adoption of same-sex marriage laws and sponsors gay pride parades.* But, a child using a Knox County public school computer can access websites providing testimonials about men who used Christianity to overcome their attraction to other men, and to the political advocacy website of the Traditional Values Coalition. From the article, a quote by one of the complaining parties, a librarian employed by the school district:

What tends to be discussed is, ‘Isn’t this just keyword blocking?’ Sometimes that is the reason very innocuous things will get blocked. But in this circumstance, in looking at the sites that were blocked and the sites that were not blocked, the keyword question seemed to fly out the window. You had sites like Human Rights Campaign, which is approved by the National Education Association, and GLSEN, being blocked. Both have a clear line into the media, and the legislative issues. These are all things students need access to. [¶] What’s not being blocked are sites that contain the words ‘gay’ and ‘homosexual’ and ‘lesbian’ but are advocating, for example, that people change their sexual orientation.

So what's happening here is that if it's a "gay-friendly" website, it gets blocked, but if it's a "Christian-friendly" website, it doesn't.

Now, I see a flaw in the reporting. The investigative reporter who searched for banned websites indicated that the Human Rights Commission's website was banned. The Human Rights Commission is different than the Human Rights Campaign. Tennessee's Human Rights Commission is an agency of the state government of Tennessee and it is the state-level equivalent of the EEOC in that state. Contrary to the report in the Knoxville MetroPulse, the Tennessee Human Rights Commission's website does not appear to be blocked at Knox County public schools.

Which makes sense if my suspicion about the real policy at play here is correct. Tennessee state law, like Federal law, does not extend anti-discrimination protection to homosexuals. From my experience practicing employment law in the Volunteer State, this agency is entirely useless in terms of actually doing anything to prevent or combat discrimination; it never actually investigated a single charge I ever filed with it and in my experience never took action on a single complaint brought before it by any of my colleagues. It usually passed along the charges I sent to it to the EEOC, which itself was not all that activist in that state. And since it doesn't do anything to protect or vindicate gays as a matter of law, there is no chance that a child using a school computer could go to the Human Rights Commission's website and learn that gay people actually have rights of some kind. So there is no reason for the hidden censor to ban a website like that.

Despite the mistake in the reporting, students and faculty at Knox County schools can access the James Dobson website but not the gay rights website. In other words, Knox County computers will only give you one side of the larger debate. The practice appears to me to be utterly indefensible and motivated by not only bigotry towards homosexuals but open hostility to the idea that homosexuals might have rights. And unsurprisingly, a friendliness to the idea that Christianity offers a "solution" to the "problem" of being gay.

It's one thing to filter out porn, which a school computer ought to do. But we're not talking about a porn filter. Someone has decided to not let kids, especially high school kids who are already aware that there are such things as gay people, even do research on what the different sides of an issue are to, for instance, prepare for a debate class or a social studies report. This, alone, indicates the fundamental weakness of the "traditional values" position embodied by this policy -- as I pointed out a while back, "Censors and bullies do not appear to be advocating good policies, because they rely on something other than the strength of their arguments to get their way." You can't tell me that's not what's going on here, because it is.

It is a shame that Knox County schools have become captured by intellectual bullies this way. Although I am critical of the ACLU for a lot of things, I hope they succeed in this case.


* Ironically, the Human Rights Campaign is also urging adoption of hate crimes laws, which are themselves at least suspect under R.A.V. v. St. Paul. The Human Rights Campaign ought not to advocate laws that are of questionable Constitutional water, no matter how well-motivated they are. But, a look at the Traditional Values Coalition's website reveals that they do not argue that the laws should be stopped because they are unconstitutional, but rather on some argument that they are somehow hostile to "traditional morality" such as that embodied in Christianity, so no one gets to be the good guy here.

The Tighter You Clench Your Fist, The Less Sand You Can Hold

Upon hearing this afternoon of Senator Arlen Specter's decision to switch parties and run for re-election as a Democrat, my very first reaction was, "Well, who can blame him?" The Republican Party has little to offer Specter. The party offered little support for his political efforts and conservatives within the party made it clear that they did not like his refusal to adhere to party discipline.

And what was his incentive to do so? Avoiding a primary challenge? Not getting stabbed in the back by his Republican colleagues in the Senate? Demographics don't favor Republicans in Pennsylvania and aren't going to again, at least not for the foreseeable future. I'm a little surprised that Specter didn't switch affiliations to become an independent, but then again I suppose that in a state the size of Pennsylvania it's extremely difficult to overcome the power of party affiliation.

A guy can only take so much abuse. Simply put, Specter was made to feel unwelcome in the GOP and now, he'll have to find a comfort zone in the other party. The tent just got a little bit smaller, and the Republicans are now politically weaker -- substantially weaker -- because of it. Assuming that Al Franken is certified as Minnesota's newest Senator, Specter will now be the 60th U.S. Senator caucusing with the Democrats, rendering the majority in the Senate (theoretically) filibuster-proof.

Such are the rewards of insisting on ideological purity instead of building broad governing coalitions: moderates bail out and go to the other party. The lesson to the GOP here is in the title to this post.

Look It Up

Paul Campos at LGM bemoans people who, despite having Google at their fingertips, are seemingly unable to use that tool. This reminds me of something that happened at work a while back.

We tried to hire paralegals using skills testing. We plopped applicants down in front of a computer and gave them a skills test -- 1) paste a paragraph of text e-mail from an attorney into a complaint while preserving the formatting; 2) rename a .pdf file from something like "fax01193933.pdf" to something like "letter from Smith to Jones.pdf"; and 3) find a piece of information, such as the straight-line distance from Los Angeles to San Francisco.

Out of about twenty people who all claimed to have superior computer skills, only one was able to see that the e-mail was written in a different font than the complaint. This one also knew how to rename a file, but did not know how to do it in the way that any one had thought. None even bothered to open up a web browser to even search for the requested information.

The other lawyers and I sat around, flabbergasted at so many apparently qualified people unable to complete what seemed to the rest of us to be such simple tasks. When I complained to The Wife about this, she suggested that maybe the reason no one bothered to look up the information on the internet was that it might have felt like "cheating." A good thought, but I don't think that was what was going on, and Prof. Campos' experience dovetails into my cynicism.

Here's my question to you Readers: We plopped our applicants down in front of computers and tasked them with this instruction: "Find the distance between Los Angeles and San Francisco." No one, including people with college degrees, was able to accomplish this task. Now had our instruction on the skills test been "Use the internet to find the distance between Los Angeles and San Francisco," would we have got any better results than we did?

Is Osama bin Laden Dead?

It seems cruel and evil to wish another person dead. But in this case, I'll make an exception. Pakistani intelligence suspects that the leader of al-Qaeda is dead, and if they're right, that is frankly cause for celebration. Especially on a day when a low-flying replica of Air Force One scared the crap out of Manhattan -- reminding us that there are bad guys out there, even if this turned out to really just be a photo opportunity without the benefit of, you know, telling anyone that they could take photos. As we continue to debate the best way to deal with bad guys, it would be nice to know that they had lost their figurehead and benefactor. Sadly, we may not know for sure for quite some time.

Debt To Stock

A while back, I wrote about what seemed to be a clever idea:

One alternative idea I heard on NPR today [September 26, 2008] was a suggestion that a change in the bankruptcy code, perhaps drafted with a very short sunset, would allow debt in qualified financial institutions to be transformed into equity. Creditors of these failing institutions would become stockholders of them instead. I'm not sure if that would be a good idea or not. It would take some pressure off of the failing bank, for a while, by relieving it of its debts and allowing it to start to accumulate capital to retire other debt. The value of the institution's stock would fall dramatically when this happened, of course, but perhaps the company could be de-listed while its debt (or a portion of it) is transmuted into equity. A week or so later, it could be re-listed on the exchanges, when it would obviously trade for far less than it had before, having been both diluted and de-valued. But, its debt-asset ratio would be considerably more favorable and its abilty to recover from making bad loans would be enhanced.
It's an interesting idea, radical and bold and therefore well beyond the ability of the current government to handle. I'm still not sure what to think of it. It would be a big help with the secondary-debt market side of things, which would probably keep several banks afloat that would otherwise have failed. And, it would produce new blocs of shareholders who would impose new directorates and therefore new governance rules for the banks, so over time it would have the effect of helping shore up another one of the fundamental causes of the current situation -- banks making too many risky loans.

The proposal then was contemplating banks, but the idea is now being applied to GM. As part of its desparate dance to avoid bankruptcy, GM has announced that Pontiac is about to be dissolved, and 21,000 jobs lost, and that GM will seek the government's permission and assistance in converting $27 billion (that's with a "B") in bond debt to common stock. Same idea that I wrote about back in September.

Currently, there are six kinds of bankruptcies -- liquidations (Chapter 7), municipal reorganizations (Chapter 9), generalized reorganizations (Chapter 11), debt adjustments for family farmers or family fishermen (Chapter 12), restructuring of debts for individuals with regular income (Chapter 13), and cross-border cases (Chapter 15). To do this, Congress would have to either add a new Chapter to the Code, or amend Chapter 11 to make debt-to-stock conversion a possibility. Indeed, 11 U.S.C. § 1123(a)(5)(J) appears to contemplate debt-to-stock conversions (among other kinds of transactions), approved on a case-by-case basis by judges supervising Chapter 11 proceedings.

What bothers me is that this is being done outside the context of a Chapter 11 proceeding, which would enable, and indeed require, that the company's whole situation be looked at. Certainly, a Chapter 11 proceeding would hurt the company in the short run. But really, right now, how many of you think a warranty issued by G.M. is going to be worth the paper it's printed on? The point of a Chapter 11 is to work those kinds of problems out so the company can emerge stronger and able to continue doing business into the future. What we're seeing now is the slow conversion of what was once the world's best-capitalized business into a corporate Terry Schiavo. Continued life support is to the advantage of no one.

G.M.: Restructure or liquidate. It's come to that choice. But either way, quit wasting the government's time and money.

Priceless

Electroplating: Technology From Two Thousand Years Ago

Clay pot. Copper cylinder. Iron rod. Add vinegar, and you will cause the rod to emit an electric charge. Stick that rod in some water, and you'll electrolyze it, which makes it really easy to, for instance, put gold plate on something. Electric-powered technology from two thousand years ago.

Congressional Democrats Approved Torture

In today's Washington post, former Congressman (1989-2004) and Former CIA Director (2004-2006) Porter Goss baldly accuses Congressional leaders of both parties of having been well aware that "enhanced" interrogation techniques were being used on "high-value" al-Qaeda prisoners. He accuses them today of craven denial of what they knew perfectly well was going on in 2003. Of this, frankly, I have little doubt. Selective amnesia for momentary political advantage is a bipartisan disease.

I am not so sure I agree with some of the implications of Director Goss' editorial, though. If Congress approved of torture, that is no justification for it, either morally or legally. Congress did not repeal its legal prohibition against torture or our subscription to the Geneva Conventions. If Democrats liked torture back when they were still scared of terrorists, that doesn't mean it was the right thing to do, either from a policy or an ethical perspective.

I can appreciate that Director Goss may be sincere in his utilitarianism. That does not mean I agree with it -- ends do not always justify means, particularly when those ends are unusually odious. I say that despite understanding that statecraft and government are not always beautiful things to contemplate. I also can appreciate that he wants to stand by the people for whom he was responsible and no doubt still feels responsible, people who did their jobs at his direction. And I can appreciate his revulsion and the prospect of a political circus taking place when his professional instincts are that none of this stuff should have been made public in the first place. Indeed, the political circus that would surround a Truth Commission is the main objection I have to that idea.

Still, at this point, much of this information is public, whether it should have been or not. It is ugly. And Director Goss is right to point out that blame does not rest on a partisan basis; if politicians get to absorb blame here, Democrats who knew or should have known what was going on and could have done something to try to stop it need to absorb their share of the blame, too.

Trekked

Cool stuff. Well, it would have been cool stuff if it had actually worked. To promote the new Star Trek movie you could upload a picture of yourself and it would make you into a Star Trek character, and it did a pretty good job of reading whatever text you wanted. I'd morphed my face into a Vulcan form, condemning your highly illogical opinions. But for whatever reason, it never worked, either in Firefox or Internet Explorer. So, oh well.

Two More Cautions Before Prosecuting The Torture Lawyers

My primary caution is, as I described before, that we need to leave "room to be wrong" in order to get decent people engaged in government service, to explore different ideas, to not be so tentative and cautious as to be ineffective. But there are two other ideas I'd like to throw out there.

First, there is the historical problem of having people of one Administration prosecute people from the immediate past Administration for what turn out to be bad policies, bad ideas, bad decisions, and the like. Even if these are shockingly unethical (as torture surely is) there is value and stability to be had from leaving the past in the past.

The threat of prosecution for what had been done in his about-to-end term of office was the basic problem facing Julius Caesar. He found a solution. It is not one I would welcome in the present day.

The other issue is related to the phenomenon I described recently with respect to the Miss USA/SSM issue a few days ago. If you push too hard on a touchy social issue, you create backlash. Now, there are a lot of folks who have drunk of the red variety of Kool-Aid out there. They are already warm to the idea of torturing bad guys, deny that waterboarding is torture at all, and will call you a traitor if you disagree with them. If we prosecute the torture lawyers for setting in motion a chain of events that led to people within our power being tortured, we run the risk of encouraging these sorts to look to the torture lawyers as heroes, as models of conduct for others to follow, and for reflexively assuming that whatever it was these guys did enjoys moral justification. The last thing we want is to drive the debate on this issue into ground where those kinds of issues are up for serious debate.

But "leave well enough alone" is a prescription for injustice and the perception that this sort of behavior is, in fact, tolerable. Which it is not. I'm starting to warm to the idea of a truth commission more than I had been over the last week.

Four Corners Fail

The Four Corners monument -- a kitschy destination for Rocky Mountain road travelers -- turns out not to be located where it ought to be. The whole thing, all four corners of it, is in Arizona, and nothing in it is in Colorado, Utah, or New Mexico. This may be because it is easier to determine latitude (how far north-south you are on the globe) than longitude (how far east or west you are of a given meridian).

Google Earth users have long known this. The 109th Meridian (representing exactly 109° west of the Royal Observatory in Greenwich, England) was set by Congress as the boundary between Colorado and Utah and the boundary between Arizona and New Mexico. So too have confluence enthusiasts chronicled since at least 2001 that the 109th Meridian is about two and a half miles east of the monument so celebrated by travelers that allegedly marks its location. At this latitude, the error is about two minutes and forty-five seconds of longitude. When I draw a line from the center of the monument to the exact point of the confluence on Google Earth, I get exactly 2.5 miles (13,185.65 feet) at a heading of 88.38 degrees. The point of the confluence is shown on Google Earth to be undeveloped alluvial land on the other side of the San Juan River from the monument, and it appears to match the narrative in the link from the confluence-chaser.

Google Earth users going to the Four Corners and zooming in closely to the monument will also notice a diagonal jog in the Utah-Colorado border just north of the monument, and another, longer diagonal jog in the border at about 38° 10' north. In other words, on Google Earth, Colorado is not a perfect rectangle, which is what is described in the laws and therefore what is reality. Google Earth fudges here and there to make its photographic maps fit in to what it usually depicts as flat but must also map onto a sphere, causing projection errors.

And it is the point of confluence, where the 109th Meridian intersects the 37th Parallel, that is the actual spot of Four Corners. If you look up the boundary lines of these various states, you see that Colorado defines its boundaries as follows:

Commencing on the thirty­seventh parallel of north latitude, where the twenty­fifth meridian of longitude west from Washington crosses the same; thence north, on said meridian, to the forty­first parallel of north latitude; thence along said parallel, west, to the thirty­second meridian of longitude west from Washington; thence south, on said meridian, to the thirty­seventh parallel of north latitude; thence along said thirty­seventh parallel of north latitude to the place of beginning.

Similarly, Utah's boundaries are:

Beginning at a point formed by the intersection of the thirty-second degree of longitude west from Washington, with the thirty-seventh degree of north latitude; thence due west along said thirty-seventh degree of north latitude to the intersection of the same with the thirty-seventh degree of longitude west from Washington; thence due north along said thirty-seventh degree of west longitude to the intersection of the same with the forty-second degree of north latitude; thence due east along said forty-second degree of north latitude to the intersection of the same with the thirty-fourth degree of longitude west from Washington; thence due south along said thirty-fourth degree of west longitude to the intersection of the same with the forty-first degree of north latitude; thence due east along said forty-first degree of north latitude to the intersection of the same with the thirty-second degree of longitude west from Washington; thence due south along said thirty-second degree of west longitude to the place of beginning.

This is all fine for many purposes but not for the accuracy demanded in land surveying. Washington, D.C. is not determinate because Washington, D.C. is not a point but rather an area, which is about eight to nine miles from east to west at its wider portions.* So we need to fix a point within Washington to serve as the official meridian point, and since the organic laws establishing and admitting these states was an Act of Congress, it makes sense to fix that point at the Capitol, whose central north-south axis is located at 77° 0' 32.6" west of the Royal Observatory according to my use of Google Earth. That would move the border 32.6" west, which is a distance, at the Capitol's latitude, of just under 3,000 feet.

If it were exactly 77°, that would make the boundary exactly the 109th Meridian. And maybe it is, because there are some overlay problems in Google Earth. But either way, the monument at what is called "Four Corners" is south and west of the confluence point, and south and west of a point located 32.6" west of that confluence point (which would be about two-thirds of a mile off) that would be the right place if the Washington Meridian running through the Capitol is correctly set at 32.6" off of the 77th Meridian. So it's too far to the west, by either two and a half miles or just over 3,000 feet.

Also, none of this solves the fact that the monument is located about 350 feet south of the 37th Parallel.

So the whole thing is in Arizona. And it's also on an Indian reservation. So that makes regulation easy. But it also means the vendors who are operating the site have been selling a lie. The real Four Corners, located at the real confluence, is an unremarkable, barely-accessible, patch of grazing land across the River, in territory marked as Colorado on most maps.


* The District of Columbia was originally supposed to be a square, ten miles to a side, with the corners on exact north-south and east-west axes. However, during the Civil War, Virginia reclaimed the land it had donated to the District to the west of the Potomac River, which land had been about one-third of the District and which remains part of Virginia to this day.

Why "It Worked" Isn't A Justification For Torture

Former Vice President Dick Cheney would like to gain some measure of vindication for torturing particular high-value al-Qaeda prisoners with the assertion that the torture induced these prisoners to yield up valuable information that was used to foil additional plots to attack the United States. Right-wing torture apologists have been quick and gleeful in their publicity regarding the release of this information. There are two main problems here.

First, this argument assumes that the end justifies the means. I trust that we need not delve into the ethical rabbit hole that is utilitarian consequentialism too deeply -- suffice to say that just because something turns out well does not provide moral clearance for what you had to do to get there. Placing heavy weight on a consequentalist justification to the torture misses the point of my objection to torture in the first place -- it is inherently wrong to do, regardless of the consequences.

Second, the exact plot allegedly uncovered by the specific acts of torture being justified had already been foiled through other intelligence and covert activity by the time the torture took place. The plot, an effort to fly a hijacked airplane into Los Angeles' U.S. Bank Tower, was uncovered through more conventional intelligence-gathering methods in 2002. The torture yielding his information did not commence until 2003. The torture, therefore, was effective in getting the prisoner to talk, but by the time the information was retrieved, it was stale.

So, let me repeat the rule, because there seems to be a lack of clarity out there.

1. No torture.
(a) Ever.
(b) Under any circumstances.
2. Our enemies are not our teachers. We hold ourselves to our own high standards, and we will not lower ourselves to the low moral behavior of others even if "they would do it to us" (See Torture Policy Rule 1(b).)

Twelve Sunscreen-Free Suggestions For College

Now is the time of year that high school seniors are going to start getting either thin or thick letters back from the college to which they've applied. I've just had the chance to work with a number of high school kids and I was pleased to see them putting so much thought and effort into the issue of their higher educations.

So I have some advice I'd offer to kids getting ready to go off to school. If you haven't got any letters yet, relax. Everyone gets in to some college; not everyone gets in the college of their first choice. Many high school seniors will be in the enviable position of having to pick between multiple acceptances, which leads in to the first of my tidbits of advice:

• All other things being equal and assuming that the financial resources to support such a decision are available, pick a college that is geographically as far away from your own family as possible. This will teach you a measure of personal independence that you wouldn't get if your home and current support group are readily at hand. You will need to form a new support group in your new location. It will also encourage you to explore areas of the country and the world you haven't been to yet.


• As soon as you can, take a class in symbolic logic. Not just critical thinking -- symbolic logic. Take it for a grade, not pass/fail. Chances are excellent that enrollment in that class will be low, so you should be able to walk right in. Chances are good that the class will be offered to freshmen with no prerequisites. I don't remember the instructor of the symbolic logic class I took my first semester of college. I do remember that there was no more valuable class I took, either in or out of my major. It made me smarter, it made me better able to assimilate all of the other information I learned in every other class or activity I was involved in.


• Plan your route to graduation early. Read the graduation requirements, pick a major and have a working academic plan -- written down on paper, paper that you actually refer to and use when enrolling for your classes. While it's okay to still not know what you want to be when you grow up, you should structure your academic efforts towards the goal of graduation. Figure out how many units (or semester-hours, or whatever your college calls them) you'll need to graduate, what kinds of classes you need to complete your major (and minors, if you have any), and when those classes are offered. Plan your work, then work your plan.


• Pick a major that you enjoy. You're going to be studying and working with the subject matter in your major a lot. You'll be expected to demonstrate some intellectual mastery of the subject. If you find the subject matter dreary or tedious, you've chosen badly and need to do something else. If you like what you're studying, it will not seem like work and instead you'll be having fun in class as well as out of it.


• Particularly at a large college, competition for high-demand classes can slow down your academic progress. Therefore, do something to get priority in class registration. That might be athletics. It might be some kind of an academic priority. It might be student government. I don't know what it might be in your case, because each college does things a little bit differently and it has been twenty years since I first enrolled in college so things may have changed a bit. Learn what that might be, so you can get into pretty much whatever class you want during registration.


• Yeah, it's a lot of fun, but don't drink too much or smoke too much pot. I won't tell you not to do these things at all. They're part of the experience. But remember that bad things can happen, rather easily, when you partake to excess -- and yes, that includes pot, if only in that it has a strong potential to sap your ambition and make you act and be perceived as less smart than you really are. But there are worse things that can happen than that. Don't get drawn in to the mythology about drinking to excess at parties or spend all your time in reefer dens.


• Make friends with members of the faculty. When you find a professor who challenges you intellectually, whose subject intrigues you, and who seems to be somewhat interesting, make time to visit that professor during office hours or to speak after class. Be respectful of the professor's time -- understand that most university faculty members see teaching and instruction as a sidelight to their real job, which is research. But at the same time, they are in the teaching profession because they like their discipline and probably will enjoy talking about it with a bright, interested young person. It is by cultivating these friendships, founded on a common interest, that you will develop faculty mentors and professors who can write meaningful letters of recommendation for you later. Bear in mind also that you do not necessarily need to agree with the professor's politics in order to cultivate a friendship -- the best kinds of faculty friends to have are the ones who will respect you for being able to defend yourself in areas where you have disagreements.


• College is, in addition to being one of the most fruitful times in your intellectual life, also one of the most fruitful times in your social life. Make lots of friends. Some of them you'll lose touch with after graduating or even during school. Others you'll keep for the rest of your life and they will be a source of comfort, joy, and support. The more friends you make now, the more of those great, lifelong friends you'll have with you later.
  
  
• Over time, you'll have the ability to pick classes with different grading formats. Challenge yourself to pick as many classes that let you write papers for your grade as possible. The writing skills you learn this way will be an advantage in life no matter what you do. If you acquire any kind of ability to write with proficiency, you'll be distinguishing yourself from your peers, and your grades will rise as a result. The classes where you get your grade from a term paper rather than a final also tend to be lower pressure on you because you won't be cramming for a final, and they also, well, won't have a final and all the suckitude that goes along with final exams.


• Join a club or two -- but not eight or nine. There will probably be about two hundred different kinds of clubs and interest groups you can join. Explore a bunch to see what you're interested in and the kinds of people who are in them, but do not overextend your extracurricular time into too many other activities. Don't neglect your studies at the expense of the fun stuff the clubs do. If you join a fraternity or sorority, you'll probably be given guidance by the seniors who mentor you that your fraternity/sorority activity and school will leave you with very little time for anything other than one other group, athletic, or club activity. If you're not in a fraternity or sorority, that's still good advice.


• Particularly if you are staying in the dorms, make and stick to a regimen of physical exercise and a reasonable diet. It's easy to put on the pounds -- dorm food is heavy with the carbs, tends to be all-you-can-eat, and you'll probably be drinking alcohol, both more frequently and in larger quantities, than you had ever imagined you would. That's how I put on my unwanted extra weight, in my first year of college. Learn from TL's mistake and pay attention to what you're doing to your body. That way you'll have an easier time achieving the last suggestion I'm going to make:


• Have lots of sex. Never again in your life will you have so much opportunity to have wild monkey sex with such a proliferation of available and willing partners. Be safe, but this is the very best opportunity you'll ever have to experiment and enjoy yourself. The Buddhist master is exactly right:

Have a good time, kids. We're all jealous of you.

More On Jellyfish Jane

I was rather tired last night when I wrote about Jane Harman and how the NSA wiretap against her was used. Here's a point I should have made as part of that post -- probably as my conclusion.

It's not clear that Congresswoman Harman actually broke any laws. In fact, I doubt that she did do anything illegal. Embarrassing, yes. Unseemly, yes. Demonstrative of corruption, yes. But I don't think it's illegal for a politician to trade favors, nor do I think it ought to be.

So she hadn't done anything that was actually wrong. But she was made significantly worse off for her efforts because of the wiretap. She was made worse off for it because the government officials who came into possession of the information gained by the wiretap unscrupulously used it against her. For all intents and purposes, they blackmailed her with it. And it cost her the equivalent of a significant promotion. It may yet cost her the job she's worked so hard to have.

The government conducted itself in a most untrustworthy fashion here. Never mind Harman's own fecklessness. Does anyone really think Harman did anything special, that some other politician of either party, would not have done in her position?

And more to the point -- she hadn't done anything that was actually wrong. But as it turned out, she had something to fear from the warrantless wiretap. She lost her political autonomy. She had to forego the possibility of a career-advancing chairmanship. She probably had to betray her own principles in publicly endorsing the wiretap program.

Despite the fact that she was innocent of committing any crime, the breach of her civil liberties has cost her dearly. This demonstrates why the government should be presumptively considered untrustworthy when it proposes to do things that implicate individual liberties.

Indelicate Manipulation Of Social Pressure

This very attractive young lady from La Jolla, California appears to think that because she is against the idea of same-sex marriage, she did not become Miss USA. Leaving aside the vapidity of beauty pageants, it seems quite odd that someone moving in that world would not recognize that a significant part of "competing" in such an event involves appealing to gay men. Indeed, the issue came up when Perez Hilton, an openly gay gossip columnist serving as a judge for the competition, asked what the contestant thought about gay marriage and she gave the "wrong" answer. Miss California says she has no regrets even though she thinks that the answer cost her the crown. Well, that's nice.

Let's assume that this is what actually happened, that the winner and this young lady were otherwise equally-qualified. That is probably not true, but on the other hand, it's difficult for me to appreciate exactly what qualifies one to win a beauty pageant anyway aside from being hot and at that level, they're all hot. (The winner, a young woman named Kristen Dalton from North Carolina, is pictured to the right and as you can see, she's very attractive also.) And asking a gay man to decide whether one woman is hotter than another is more than faintly ridiculous. But like I say, let's assume this is true anyway. Let's also assume that the politics of beauty pageants are important to the shaping of larger political policy issues, which they probably are not but somehow this seems to be gaining headlines so maybe they are despite my sneer.

It's actually kind of a touchy game. On the one hand, it puts pressure on people to be more publicly in favor of the desired policy. But on the other hand, it risks the creation of a backlash against that policy as a form of "political correctness." Where you want to be in the manipulation of social pressure is to make it so all the "cool kids" think same-sex marriage should be legal. Where you don't want to be is in a situation where approval of same-sex marriage is imposed on people from some kind of an authority. So if it's true that giving an answer to this question displeased the judges of the beauty pageant enough that it changed the result, then we're in that second universe, the one where authority is imposing opinions rather than peers encouraging it. That's backlash territory.

Of course, the real change will only come when people realize that their own religious preferences are not to be imposed on others, when they remember that "live and let live" is an important and worthwhile ethic to pursue in one's life, and when they see that giving recognition to gay couples does nothing to alter the fabric of society. Until then, there will continue to be debate over the issue as people who do, perhaps from a place where they think they are acting out of good intentions, reach for and cling to whatever flimsy rationalization they can find to justify a policy position which has bigotry as its taproot.

$100 Million Here, $100 Million There

The President has ordered his Cabinet to find ways to cut $100 million out of each of their budgets. I am unimpressed. So is the Washington press corps. When the President signs and applauds a budget bill with $8 billion -- that's $8,000 million -- in earmarks for local projects so Members of Congress can bring home the pork, saving 1.25% of that back in videoconferencing and bulk office supply orders are not particularly impressive.

It becomes even less impressive when you realize that President Obama has proposed a budget that would deficit spend to the tune of $1.5 trillion, or $1,500,000 million, and he's looking to save $100 million of that. The savings he's demanded from his Cabinet officers will reduce this year's deficit by 0.0015%. Excuse me if I think this is less significant than a pimento removed from a stuffed olive in the great Las Vegas buffet that is the Federal budget.

The White House's official line is that "this is a signal of more things to come." Well, not soon, if the economists are to be believed. You can't simultaneously "prime the pump" by spending more, and be fiscally responsible by spending less. I'd have felt better about it if the WH Press Secretary had said, "Well, we're still in stimulus mode, but this is a symbol and a reminder that in the future, when the economy turns around we're going to be watching our spending habits very closely." Gibbs left out that important modifier.

We cannot spend our way out of debt. We can spend our way towards other things, maybe, at the cost of accumulation of debt. Under some circumstances, it's defensible to say that other things are more immediately important than the debt. But at some point we have to tackle that debt, and that point is reached when the debt grows above a certain size. What that size might be, is as much a matter of guesswork than anything else. But it's certain that the longer we wait to address the problem, the harder it will be to solve.

Jellyfish Jane

Jane Harman is a Democrat who represents in Congress the South Bay region of Los Angeles -- a strip of land running from Marina del Rey down the coastline to San Pedro, including my old stomping grounds in Manhattan Beach. As we learned this morning, Harman agreed to use her influence to lobby a Bush Administration executive office to go heasy on some suspected Israeli spies. In exchange, the American-Israel Political Action Committee promised to lobby Nancy Pelosi to appoint Harman chair of the Intelligence Committee.

How do we know all this? Harman was being wiretapped by the NSA.

They recorded and listened to the phone call in which Harman agreed to try and get the Justice Deaprtment to go easy on Israeli spies in exchange for the Chairmanship of the Intelligence Committee when the Democrats won the 2006 elections. This alarmed them, and they kicked it up to DHS, which roundtabled it with the CIA, FBI, Attorney General, and it's not quite clear who else. With the CIA signing off on the deal, the Justice Department went ahead and applied for admissibility of the evidence in the FISA Court, in a timely fashion, which as it almost always did, rubber-stamped it and rendered the warrantless evidence admissible.

That's when AG Gonzales said, "No way, we need Jane." Not to be a friendly, pliable, and corruptible Chair of the House Intelligence Committee after the Democrats took over, which was thought to be well within the realm of possibility for the 2006 elections. Instead, she was leaned on by Gonzales to defend the very warrantless wiretapping program that had been used to implicate her. And she did as she was instructed, defending the program and providing political cover for an administration under instense criticism for spying on American citizens. In other words, Harman allowed herself to be blackmailed by Alberto Gonzales.

It didn't help -- the warrantless wiretapping issue became bigger than Harman and hers proved to be insufficiently powerful a voice to drown out the partisan polarization. She had proven herself to be corruptible and was denied the Charimanship of the Intelligence Committee. And the Justice Department went ahead and threw the book at the spies. So she wasn't even an effective extortee.

I don't know if what Harman did is even technically illegal. No money changed hands; she simply cut a favor-for-a-favor deal. But it stinks like a three-day-old dead fish in moldy Roquefort. It clear that Harman thought she was doing something on the wrong side of that fuzzy line, because she concluded her agreement with the AIPAC representative by saying "This conversation doesn't exist." Not the sort of thing someone with a clean conscience says.

So what's to do? Nothing, I suspect. Allow the court of public opinion to try Harman. It's not clear that she violated the law at any time; she simply showed herself to be pliable, feckless, and ultimately, corruptible. It's up to the good people of the South Bay to remember this come the 2010 elections and find someone else, or to decide that they can live with someone like Jellyfish Jane.

Second Amendment Incorporated

The only surprise is that the Ninth Circuit was the court that did it. But I don't see how you could have got away from this result.

Walk Out

If, like me, you are more than a little offended by the spectacle of Mahmoud Ahmadinejad, the author of some of the most virulent anti-Jewish speeches since Adolf Hitler, being permitted to address a United Nations conference on racism, then you will be heartened to see that a significant portion of the delegates to the conference walked out when Ahmadinejad took the floor (including Morocco and Jordan), many other major powers (including the U.S.) boycotted the event entirely, and the Secretary-General of the U.N. condemned the firebrand head of state.

While this is a deviation from my usual assessment that the United Nations is a largely irrelevant piece of moderately-expensive corruption, it is nice to see anyway. Thanks to David Schraub of the marvelous Debate Link blog for coverage on this issue.

On A Heavy Note

Wendy's Baconator is really bad for you. It contains more sodium than two tubes of Pringles' potato chips, as much fat as ten Dolly Madison Zingers, and as many calories as four Dodger Dogs (!). And the guy is right, it tastes really good. Particularly enjoyable also is the link to the comparison of the advertising pictures to real photographs of the food.

Torture Prosecutions

I've not written about the torture memos yet. That's because they leave me deeply conflicted and I've still not reached a complete enough mental resolution of the facts to have a solid opinion.
Not about the torture. The news that Americans, acting in the name of our country, waterboarded a man 183 times -- no matter what a scumbag he was, and indeed we are talking about a Truly Awful Person -- it is a matter of deep personal offense and a moral atrocity that cries out for some form of remediation and punishment. One time was too many. I trust that by now, Readers will appreciate that I have no love whatsoever for the prisoners, who are human garbage and if anyone did deserve to be tortured, it would be them. It's just that the moral standards of those who call America their enemy are completely irrelevant to the question of how Americans ought to comport themselves.

Nor about the release of the information. I do not believe that we have told anyone that we tortured our prisoners who did not already believe it to be true. We are no less secure now than we were before the memos describing the clinical, high-level memoranda putting a legal gloss on a moral atrocity were released. And while it is unpleasant to consider, we are better-off knowing the truth -- Americans tortured prisoners, and high-up governmental officials, up to and including the President* sanctioned it. Again, the wrong cries out for a remedy.

I have opined, and I stand by that opinion, that if we have people who need to be punished for this, it is our job to do it and not anyone else's. But who to punish? And how?

The President has taken prosecution of the interrogators themselves off the table. This means that the individuals who actually did the work of tying a human being supine to a table, and those who poured buckets or hoses of water on his face until he reached a point of near-drowning, and permitted him just enough time to breathe actual air to permit his continued survival, are not going to see the inside of a courtroom. The President's reasoning is that these people relied upon the advice and counsel of lawyers and their governmental leaders who had put considerable thought into whether this was an appropriate thing for the interrogators to do, and they should be entitled to do their important jobs after their higher-ups assured them that they were acting within the law.

Not bad reasoning and a defensible policy. But as I recall, "I was just following orders" was not considered a good excuse at Nuremburg. Which is not to say that waterboarding Khalid Sheik Mohammed is the same thing as exterminating millions of Jews. But it is to say that no one is ever given a complete moral pass simply by virtue of the approval of a higher-up. At some point, there gets to be a a time that you should step back and say, "No, I won't be a part of this." Which leaves the decision somewhat unsatisfying.

Well, what about the higher-ups who gave the orders? The higher up one goes, the less one gets to hide behind the legal opinions of one's superiors. When you get up to guys like Bybee and Yoo and Steven Bradbury, you're at the sub-Cabinet level. These guys reported directly to the Attorney General, who in turn reported directly to the President. Now, we need to leave these kinds of people considerable discretion to do their jobs. And we can't prosecute government officials because they make mistakes or do things that turn out to be bad decisions. If we did that, we'd never get any qualified people to hold these jobs, and whoever did do these jobs would be so tentative and cautious as to be ineffective. That is why there is qualified immunity to protect these folks.

Qualified immunity, by its very nature, exists to allow discretion -- room to err -- in cases where there are important and difficult questions of law confronting people who have to make decisions. It isn't fair to hold a police officer liable for making a bad call in a crisis situation about whether to use handcuffs or plastic ties to control a violently-struggling arrestee. But a lawyer sitting in an office is supposed to have the time and luxury to research these questions and come up with the answer to a difficult question like that. If we're going to grant that an interrogator cannot be expected to know all of the relevant Constitutional law and legal doctrines that governs his conduct, we have to deal with the fact that a senior lawyer, with a staff of crack researchers reporting to him, tasked with answering that very question, will do so.

And here, reading the memos, we see not a neutral evaluation of the issue but an outcome-determinative one. The Attorney General's Office, in other words, acted as an advocate for torture rather than trying to analyze the issue. One gets the impression that someone who, in putting these things together, said something like "Um, but this is torture, guys, and we just plain shouldn't be doing it," was told "That's an interesting opinion but not the one we're getting paid to write. Now go back and reach the opposite conclusion." The problem is, the CIA was not the Justice Department's client and they weren't being paid to tell the client what it wanted to hear. The United States was its client and they were being paid to provide good counsel to those acting on its behalf.

Again, it's important to "leave room to be wrong," even at this level. The question is, when do things get to be so wrong that someone should have pulled the plug? That, in my mind, is a very difficult question to answer. That the answer was ultimately wrong is not a hard call for me. We aren't talking about "ticking time bombs," and we aren't talking about the panicked days of early October 2001. But it's easy to see how a bunch of these lawyers -- political appointees and those who worked very closely with them -- felt some level of groupthink and political polarization. And in that circumstance, we want to have some way for someone to step out of the box and blow the whistle. But it takes moral courage and self-awareness to do that, and these are, unfortunately, rare characteristics and a lot of political pressure can squeeze large measures of those traits out of people who might otherwise have them.

So, we had no profiles in courage in the Justice Department. It doesn't seem quite right to prosecute someone for not having remarkable degrees of moral courage. But at the same time, it doesn't seem right to not prosecute someone for setting in motion a chain of events that led to torture.

That's my conflict. I think I'm coming around to wondering what law, exactly, these guys broke. Was it treason? No. They did not directly give aid and comfort to our enemies (indeed, quite the opposite is true). Debatably, they did weaken the country in that they handed our enemies a valuable recruiting tool and made it less safe for Americans who wind up captured by bad guys. But that's not treason, that's bad policy. Perhaps it's obstruction of justice. That seems like kind of weak ketchup for torture, though. And it also doesn't seem like an exact fit. It was a violation of the Geneva Conventions, but as the memos point out, no criminal or civil cause of action is created by our adoption of those Conventions (and like most of the Conventions' signatories, we haven't adopted all of them, anyway).

So maybe there is no crime to charge these guys with. I am, understandably, chary at the prospect of incarcerating lawyers who did nothing more than wrestle with difficult concepts and maybe reached the wrong result through a combination of pressures. But if we don't prosecute them, either, then what? We leave these guys to the court of public opinion in the hopes that they will be humiliated and that will be enough?

Well, that won't work, either; there are those who will fete them and their achievement, call them heroes and celebrate them. I dismiss as non-serious those who would suggest that waterboarding is not torture. Of course it is -- it was designed to induce the sensation of drowning and imminent death, and to capitalize upon the fear that produces. So too is preying upon a prisoner's fear of insects, something else that is being laughed off by torture apologists but which was pretty clearly intended to be a massive mindfuck by the CIA. But that doesn't mean these sorts aren't out there (writing editorials for national newspapers, among other things), and a lot of them have money and political influence. I also dismiss as non-serious the protest raised by former Vice President Cheney that the memos produced intelligence successes. But there are those who will be moved and influenced by these non-serious arguments. Still, doing nothing seems like a remarkably unsatisfying conclusion.

We could create a Truth Commission that would not prosecute but would expose all of the relevant facts and allow the political winds to shift and blow as a result. Well, that's obviously a bad idea -- this would expose more sensitive facts and we're at about the limit of what should be out there anyway.

We could appoint a Special Prosecutor to go after them. Special Prosecutors have a history of actually finding what they're charged with finding, and not exercising discretion about whether a prosecution should proceed or not. So this is effectively the same thing as launching a prosecution direct from the Justice Department -- with the added disadvantage that there would be no political controls or checks on the Special Prosecutor. The Special Prosecutor is the legal equivalent of a fire-and-forget missile, and once launched, there's no stopping her.

So that's my conflict. It seems dangerous to charge these guys because it leaves a bad precedent, it denies them the "room to be wrong" that is essential to serving in governmental office. But it seems unjust to do nothing, and there is no reason to believe that doing nothing will produce results that will punish and not reward this bad behavior.

Maybe this is the sort of thing a Presidential pardon is supposed to resolve. But there's no need to issue that just yet. Maybe we need to learn more about what was going on, hear what the authors of these memos have to say for themselves. Gathering more information in the face of an uncertain issue is potentially prudent, so long as we don't allow it to turn into paralysis by analysis.

Now, if there is to be a trial, the nature of the charges will require dealing with a lot of classified evidence. Maybe a non-public military tribunal is the way to go to deal with that issue. That would be ironic.

UPDATE: There is a great set of comments on these points going on at League of Ordinary Gentlemen. Many thanks to Mark Thompson at the LOG for the link.


* Note that the documents reviewed by President Bush used significantly more sanitized language than are discussed in, for instance, the chillingly specific Bybee memo.

Penny Lane -- The Video -- Literal Lyrics

For our friends who are big Beatles fans:

You know, I'd heard that David Bowie's Blue Jean was the first true music video. I don't know that I can count the above as a music video by the Beatles so much as some random film clips thrown together that include a bus saying "Penny Lane" as its destination and other than that it doesn't seem to have anything to do with the song.

But a little bit of research reveals that the earliest music videos -- filming people singing songs, either in the form of a stage performance or a set-piece relating to the music, made for the purpose of promoting sales of recordings of that music-- were a collection of about 1,800 jazz, Broadway, vaudeville, and country performances called Soundies dating back to 1940. I can't figure out which Soundie was made first, though.

Hat tip on the "literal lyrics video" to geekgrrrl, who will be hosting the next round of the Carnival of the Godless.

Georgetowndrapegate

Did the White House ask Georgetown University to hang a drape over religious symbols when President Obama spoke there recently? Sources differ on that issue -- yes it did; no, it didn't; someone thought it was better to cover it up completely rather than partially.

Overwrought hand-wringing, says I. There's nothing wrong with acknowledging that Georgetown is a religious school. I think pretty much everyone knows that. There's also nothing wrong with the President wanting to deliver his messages in a particular way. The fact that he's at Georgetown at all is significant and a feather in Georgetown's cap.

Asshole Of The Week: Janeane Garafolo

I'll say one thing about all these tea parties -- they're bringing out the worst in a lot of pepole all over the political spectrum. I found this clip, which by now is all over the political blososphere, fascinating and repellent at the same time:

Fascinating for the interesting clip found of the guy who spoke up at the Pensacola Tea Party and quite correctly told the crowd that massive deficit spending and the immediate roots of the financial crisis began under President Bush, not President Obama. It did indeed take the crowd several beats before they understood what they were being told -- and then they booed the speaker off the platform.

Repellent because that same clip betrays the intellectual and philosophical flimsiness that is at the heart of the tea party movement. It could have been something really good. But when you see something like that -- with enough time to hear the speaker's remarks in context, and enough time to assess the audience's reaction in context, you can see that indeed, this was a partisan and not a principled activity.

Fascinating because the discussion between Olberman and Garafalo presented a case where the host has lost control of his guest, desperately wants to get it back, but cannot because while he disagrees with some points, he agrees with others, and wants to keep on good relations with the guest. During Garafalo's discussion about the limbic systems of conservatives, Olberman was visibly uncomfortable and he tried to interrupt her three times but got run over. As forceful and unafraid to take on conservatives as Olbermann is, he is at a loss for how to restrain the excesses of his own side of the discussion -- and well aware that those excesses do harm to that for which he would advocate.

But ultimately it is repellent, simply because of the toxicity of what Janeane Garafalo said. Garafalo insists that everyone who came to a tea party is either racist or mentally retarded, or both. In so doing, she proved herself to be a left-wing asshole, and left her side of the discussion (well, it was a one-sided discussion between her and Olbermann, so let's say her side of the ideological spectrum instead) looking worse off than when the discussion started.

Ms. Garafalo, you hve failed to take stock of what you have observed and consequently made an ass out of yourself on national television. You wanted to see one thing when in fact something else was there -- and so powerful are your mental filters that you cannot interpret things in any other way. In fact, there would be quite a lot there for you to take on and score good points for your crew. Here, please allow me to help direct your criticism in a more meaningful and effective manner.

These social conservatives are not protesting because of the sudden, sharp increase in taxes. Your point should be -- there has been no sudden, sharp increase of taxes. The tax increase that has been imposed is quite unlikely to affect any of the people there.

They are not protesting because of a objection to the federal bailout. That is, not because of any principled objection to it -- your point here is that these people raised nary a whimper when George W. Bush did it back in 2008. Then, they called this sort of thing "necessary" to cope with an "emergency," and only now is it "socialism."

They are not protesting because of a concern about the hemorrhaging federal deficit. Had that been their concern, they would have protested George W. Bush. You point here should be that for all their talk of fiscal responsibility, for more than two generations in this nation, deficits in this nation have bloomed exclusively under Republican Presidents, and President Obama has done nothing since taking office in this regard that was not openly contemplated by President Bush.

As for the bit about conservatives having limbic systems that function differently than that of liberals, inhibiting their cognitive abilities, I think that was intended to be a joke. Two problems here. First, it wasn't particularly funny. You can do better, although maybe not on short notice. Second, your delivery was too deadpan; you left no clue to your audience that you were having a little fun. A wink, a smile, a smirk, a giggle, slap your hand on the table and pause for a beat -- these are ways you can tell someone else that what you have just said is intended to elicit laughter rather than be taken as thoughtful, serious commentary. In fact, you are a talented (or at least experienced) stand-up comedian and actor, so you should have known that already.

Your big message here is that they're a bunch of sore losers. These folks were protesting because a Democrat is in power. Nothing more, nothing less. It has nothing to do with Barack Obama's race. Had Hillary Clinton been elected President, we'd be seeing the same thing -- and it wouldn't be because we had a woman as President. (And you, Ms. Garafalo, would probably be calling them all sexists.) We'd be seeing the same thing had John Edwards been elected President, too. And had John McCain been elected, they would all be at home watching coverage of liberal protests on Fox News, grousing about defeatist liberals.

Come on, Ms. Garafalo, you know that is the absolute truth. A joke is only funny when it hits on a truth. A political argument only has influence when it addresses something true. What you did was to discredit yourself and your side of the issue, and to make the other side look good by virtue of having to endure your gratuitous and insulting non sequiturs. Do better.

Republicans For Same-Sex Marriage (A Continuing Series)

One of John McCain's campaign managers is calling on the Republican Party to embrace same-sex marriage. His reasons:

I believe conservatives, more than liberals, insist that rights come with responsibilities. No other exercise of one's liberty comes with greater responsibilities than marriage. ... It cannot be argued that marriage between people of the same sex is un-American or threatens the rights of others. On the contrary, it seems to me that denying two consenting adults of the same sex the right to form a lawful union that is protected and respected by the state denies them two of the most basic natural rights affirmed in the preamble of our Declaration of Independence — liberty, and the pursuit of happiness.

Right on, Steve Schmidt. Republican should not be afraid of arguing for individual rights and liberties. They should embrace them. It's the right thing to do. And, as Schmidt argues, it's the only long-term plan for political viability on this issue.

Pride Of The Yankees

I am more than a little bit aghast at reading about the caloric and financial excesses chronicled at the New Yankee Stadium. Yet the author is right -- this is somehow the very essence of what New York is about. 1,400-calorie nachos, the old baseball field seemingly transplanted into the middle of the swankiest mall in the Bronx, which sells not only $150 hoodies but also raw beef and three varieties of fresh pears, and front-row tickets costing over $2,600 per seat.
The Yankees are apparently reveling in it all, quite unapologetically, despite the fact that Cleveland beat the crap out of them out on the diamond one their first day playing in their new home.

Braid

A lawyer from work has been playing this game on the Xbox, and he says it's one of the most creative and fun games he's played in a long time. Other lawyers who goof off with video games in their spare time agree. Now it's available on the PC and I think I'll give it a try tonight.

What About The Religious Freedoms Of The Universal Life Church?

Back when The Marriage Cases still had an operable holding, I considered becoming ordained as a minister of the Universal Life Church. I wanted to be able to preside over a marriage and was proud that California had taken the step it had towards making that a truly universal right. And you don't even have to believe in God to be a minister of the Universal Life Church (although its founders do). There are no doctrines, no holy books, no moral teachings. The ULC trusts its members and ministers to follow their own moral compasses and make decisions based on what they feel is right.

Which means that the ULC will not tell any of its ministers whether they can or cannot marry gay couples -- that's something that gets decided by individuals. That, in turn, makes the ULC a church that will marry gay couples. So I'm kind of tickled to read at Box Turtle Bulletin that the ULC is leading an effort to void state-level defense of marriage laws because they violate the ULC's First Amendment rights to practice their religion as they see fit.

This is a useful, concrete example of the fallacy of religious groups claiming that their religious freedoms will be violated by laws permitting same-sex marriage -- here, after all, is a church whose religious freedoms are violated by laws prohibiting same-sex marriage.

That same fallacy is why the ULC's legal effort will necessarily fail, because it's an equally fallacious argument for them. Religious marriage is not the same thing as civil marriage. Take, for instance, two Catholics who are both divorced from previous marriages, who wish to marry one another. The Roman Catholic Church does not recognize the spiritual validity of volitional divorce, and therefore according to its doctrine, those two people are still married to their original spouses and cannot marry one another. According to their religion, they are not married. But according to the state, they are. A same-sex marriage solemnized by the ULC is the converse situation -- recognized by the church but not recognized by the state.

Alas, I fear this effort, based as it is upon an exposure of the irrational basis upon which "religious freedom" objections to same-sex marriage are based, is doomed to failure. Those who fear that their churches will really have to marry same-sex couples in violation of their religious teachings want to believe this is true. They want to believe that they are an oppressed minority and that a storm is coming. Therefore, they will believe it even when their justification for doing so is exposed as completely without foundation.* Since they have a fundamental blind spot to logical rigor in the first place, they will dismiss the ULC's exercise in demonstrating the ridiculousness of their reasoning as an unserious and sophomoric stunt, akin to the Flying Spaghetti Monster. Which was an unserious and sophomoric stunt, but one which has more than amply demonstrated, in a very serious way, the ridiculous arguments for creationism.


* This website is run in counterposition to the "National Organization for Marriage" which launched a campaign called "Two Million For Marriage." They abbreviated the campaign "2M4M" which, as it turns out, is singles-ad code for a gay couple looking for a third gentleman to join them for an evening of, um, fun and games.

Graduate Law Degree In Stuff You Should Have Learned About Anyway

UCLA Law School, one of the elite law schools, has announced that, owing to the poor state of the economy, so few of its graduates are getting the prestigious, high-paying jobs they came to expect as their entitlements earned by virtue of having received a UCLA J.D., it will expand its Transition to Practice LL.M. program by twenty seats, thereby offering its graduates the opportunity to pay an additional year's tuition to work on what it calls "experiential learning and skills." The program will "replicate significant parts of the learning that comes in the first year of practice, but in a controlled learning environment."

In other words, you can't get a Biglaw job out there even if you have a UCLA degree any more. That's how bad the legal market sucks right now. And we, the administration at UCLA Law School, can't imagine that any of our graduates would demean themselves working insurance defense or opening solo practices - you can't possibly make two hundred large a year doing that! Now, we know that we haven't taught you enough over the last three years that you could actually, you know, go into court and do something useful for a client. You'll just get yourself into trouble if you tried that sort of stunt right now. So here's what you should do -- defer your student loans for another year and in fact, borrow another $50,000 (make that $75,000 if you're not a California resident yet). Then spend a year learning how to actually draft a complaint, which is something that in some other environment (say, a less prestigious firm than the ones you might have hoped to have worked at), you'd be paid to do under the tutelage of a supervising attorney.

Sound like a good deal to you? Not me. By the end of my third year of law school, I was done, D-O-N-E and ready to get out into the real world and start practicing. I wanted to start making some real money, too, although back then there wasn't much real money to be made for first-years unless you had entree into one of those cool Biglaw firms that I was never going to get into anyway. And I was scared to death of those student loans I'd racked up. Accumulating more debt was about the least attractive career move I could have imagined.

My law school didn't offer an LL.M. in "Transition to Practice," either -- instead, it offered substantial clinical and advocacy programs as part of its J.D. curriculum. I had also been clerking for a public interest firm during law school, juggling academic demands and professional ones. By the time I got that J.D., I was ready. I knew how to write a complaint. I knew how to fill out a subpoena. I had drafted, and argued, motions and oppositions to motions -- and won. I had already sat second-chair in a trial. I'd had to break bad news to clients. I'd had to sweet-talk filing clerks into letting me fix formatting problems with pleadings five minutes before the filing deadline. Much of that come from my clerking and clinical work, very little of it from what I did in a classroom (other than in Trial Advocacy class, which I absolutely loved, my favorite class in all of law school).

Don't get me wrong. UCLA is a terrific law school. I can't think of a single UCLA Law graduate who isn't stunningly smart (really, I can't) and their faculty is world-class. Seriously, if I were President I'd nominate Eugene Volokh for the Supreme Court. And I think an emphasis on clinical education is important in legal education, so I hope that students who have spent all three years of their legal education pursuing airy academic concepts find some way to learn how to actually do what it is that we lawyers do.

But it seems very odd that UCLA would offer a graduate degree in this. My law school (Loyola of Los Angeles) is not as prestigious as UCLA. Fewer of its graduates do Supreme Court clerkships. Fewer of its graduates get Biglaw jobs making Biglaw bucks. But on the other hand, proportionally more of its graduates became judges than UCLA, or Stanford, or Berkeley. And I know from my own experience that if done right, there is no need at all for a "transition to practice" after law school. If you've been going to a law school that actually cares about turning out attorneys capable of practicing law, and if you've been paying attention to the fact that one day you're going to have to work for a living as a lawyer, you won't need to get an LL.M. in practical lawyering -- you should have been doing this stuff all along anyway.