But Weren't The Southerners Good To Their Blacks?

As neo-confederates celebrate the sesquicentennial anniversary of South Carolina's act of treason in defense of slavery, I am grateful for a link to Ta-Nehisi Coates of The Atlantic.

Coates tells the story of Robert Smalls, an escaped slave who commandeered a confederate warship, four pieces of artillery, and a naval code book and turned them over to the Union Navy, and then went on to accept a commission in the Union Navy, to take command of a vessel under heavy enemy fire and steer it to safety. Captain Smalls was the first Black man to command a ship in the United States Navy, and received a medal for his bravery. He also received a $1,500 share of the prize money for the captured Confederate ship, which it seems he plowed into a successful campaign for the U.S. Congress, where he served for at least three terms.

Go read the whole thing. Then wonder as to why it is that he did what he did if the Civil War wasn't about slavery, if the Confederate propaganda about how good the southerners were to their darkies was worth any credibility.

You've never heard of Captain Robert Smalls before. This guy is a massive American hero and what he did must have took some massive stones.

This Is Why There Are Sports Blogs

Correspondence from 1974 between an attorney who is a Cleveland Browns season ticket holder and the response turns out to be 100% pure awesome. If it's not genuine, it ought to be.

Lame Duck Congress

Is it just me or has the lame duck session of Congress this year been more productive than the entire regular session? Whether you like the results or not, it's undeniable that a lot of stuff got done on both sides of the aisle and in both houses. Why weren't our Congresscritters working this hard all year?

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Is It Really Good News?

Yesterday while discussing the news of the new Congressional apportionments with a friend, I grew reflective:

"Time was, I would have greeted this as good news. Now I'm not so sure."

"Really, why?" my friend (a fellow moderate Republican) asked me.

"I don't trust the Congressional Republicans anymore. They only do weird social stuff and don't cut spending."

When he got done laughing (a combination of mirth and bitterness), my friend agreed with me that I'd pretty much nailed it.

Call This Man The Waaahmbulance

Doug Mataconis at Outside the Beltway points out a case in which a recently-defeated Congressman (Ohio Democrat Steve Driehaus) is suing a political advocacy group (in this case a pro-life group called the Susan B. Anthony List, hereinafter "SBAL") for defamation:

The group claims Driehaus, who has campaigned as an anti-abortion candidate, supports taxpayer-funded abortions because he voted for the national health care law. Driehaus said the claim is false and that the law bars any federal funding of abortion.

“A lie is a lie,” Driehaus’ lawyers wrote in his federal defamation lawsuit. “The First Amendment is not and never has been an invitation to concoct falsehoods aimed at depriving a person of his livelihood.”

My initial reaction is -- boo frickin' hoo for you, Congressman. If you're going to play hard ball, expect fast pitches. If you're going to run for elective office in the United States of America in the early twenty-first century (or indeed at any time to date in our nation's history) you need to prepare for someone to deliberately and maliciously misrepresent your record and to fight fire with fire. You aren't entitled to a livelihood in Congress, you have to earn it. "It's the peoples' seat," remember?

The law would seem to support my initial reaction: New York Times v. Sullivan (1964) 376 U.S. 254, says that a public official will not prevail in such a suit based upon "...a defamatory falsehood relating to his official conduct unless he proves that the statement was made with “actual malice” — that is, with knowledge that it was false or with reckless disregard of whether it was false or not." So here's his theory -- given that functionally no one in Congress had actually read the healthcare reform bill before voting on it, it's a reasonable bet that the SBAL had no real way to be certain whether the bill supported or did not support abortion, either, and that constitutes "reckless disregard of whether [the claim] was false or not."

So what this means is that in politically-charged litigation (SBAL is already suing Driehaus; Driehaus' defamation claim is part of a countersuit) both sides will get to argue about what is or is not in the healthcare reform bill for which Driehaus voted, thereby giving Driehaus' political enemies a platform upon which to continue spreading their message. And if there is even a colorable argument that under the new law federal money does go to fund abortions, then he's guaranteed to lose in court even if it turns out that, upon close examination, the law really does exclude funding for abortion.

Poorly played, soon-to-be-former Congressman Driehaus.

Whatever it was that the SBAL said about Driehaus, though, it's quite likely that it made little difference at all in the election. 2010 was a bad year to be a Democrat and a worse one to be a Democrat from a non-secure district who voted for the healthcare reform bill for reasons having nothing whatsoever to do with abortion.

Driehaus has only himself to blame for not responding appropriately to campaign lies, he has only himself to blame for the voters growing dissatisfied with his performance in office and choosing to replace him, and he will have only himself to blame for the situation in which he will soon find himself -- paying for lawyers to continue fighting over the last campaign in court.

One would think that he has better things to do with the remainder of his life than this. The evidence, however, suggests that the contrary is true.

New Apportionment

With new census results out, seats will be reallocated in the House of Representatives and with that, the map of the Electoral College and thus the calculus of electing the President in 2012 will change. Had the last election been run with the future allocation, the result would have been Obama 353, McCain 185, a shift of twelve votes from "D" to "R."

Happy Solstice To All

The winter solstice has been an occasion for celebration around the world and throughout time.

So whether you celebrate Inti Raymi, Sanghamitta, Jul, Hogmanay, Shab-e Yaldâ, Modranicht, Lenæa, Karachun, Chanukkah, Beiwe, Ameratsu, Zagmuk, Montol, Sviatki, Dongzhi, Makara Sankranti, Meán Geimhridh, Şeva Zistanê, Ghambar Maidyarem, Soyal, Chronia, Natalis Domini, Dzon'ku 'Nu, Choimus, Perchta, Blót, Goru, Sol Invictus, Ziemassvētki, Lohri, Brumalia, Rozhanitsa, Maruaroa o Takurua, We Tripantu, Lá an Dreoilín, or Lussi,* have a happy, safe, and joyous solstice-related celebration–along with the rest of humanity.

* Kwanzaa is not included in this list because to my knowledge they are not intended to coincide with the winter solstice. Islam has no winter holiday because it uses a lunar calendar and thus the solstice is not important to Muslims. Kwanzaa celebrators and Muslims are welcome to educate me if I am incorrect.

Answering The Christian Science Monitor

Asks the confused reviewers at the CSM: "Why did 'Tron: Legacy' do so well at the box office?"

I recall predicting about this time last year that it would disappoint; if I am proven wrong that will not bother me particularly. An opening weekend of over $44,000,000 is a good start to the movie making back its purported $300,000,000 budget, but it would still have a long way to go before the movie can be called a success in financial terms. There seems little doubt, though, that when merchandising and spinoff video games are factored in to reviving this movie, Disney will be getting lots of Tron dough.

So why did this movie do even this well, mystifying curmudgeonly reviewers who hated the 1982 original film? The answer is that there are a lot of people more or less my age who watched this movie as teenagers (or in my case, as an almost-teenager) who were visually amazed by the video-game-brought-to-life, or rather life-brought-to-video-game, look of the original Tron. Being digitized into a video game was a primal fantasy for kids of the early 1980's and it has remained a primal fantasy for kids ever since.  So that's an entire demographic bracket for whom the movie promises to bring such a primal fantasy to the silver screen. In 3D, for which the audience will pay extra at the box office.

That's why Tron: Legacy did so well at the box office.

The Death Of A Nation: A Case Study Of Anxiety Projection

Paging Doctor Freud!

It would seem that institutionalized prejudice against homosexuals is more important to some people than patriotism and love of country. When men who have devoted enough of their lives and professional careers to achieve the very respectable rank of Colonel publish remarks such as this, one has to ask whether the very idea of a common national identity has suffered some sort of awful erosion:

I ask you, fellow citizen, after Saturday’s vote, would you give your life for our Senate? Would you give your life for our president? Or, would you go home to your family? Sadly, you know the answers already. If you never made a phone call or never entered the debate on this issue, it’s too late to care now.

Hat tip to Jim Burroway for this astonishingly sour grapes quote.

Now, I'm reminded of a few other things, both historical and demographic, which cause me to react to this sentiment with something other than despair. Unlike other advocacy groups, I tend to think that the young people who are doing the real, on-the-ground work of our military, are much more concerned with whether their brothers and sisters in arms can shoot straight than whether they are straight. There is little reason to think that recruitment will suffer so badly that this will happen:

This looks beyond conservative to me; it looks reactionary -- resistance to change for the sake of resisting change. When National Review offered as a slogan and image the idea of conservatism as a force which "stands athwart history, yelling Stop", the idea was "Hey, let's think this through before we do it."

But we have thought about allowing gays and lesbians to serve openly in the military. We've studied it. We've looked at other nations' experiences in their military. We've determined that the great majority of servicemembers and the great majority of citizens whom they serve are unconcerned with the sexual orientation of soldiers, sailors, and airmen. Resisting change for the sake of resisting change is not really aimed at improving anything. And the military is a uniquely adaptable institution within our society, precisely because it is so hierarchical, so driven by orders from above. A conservative (in the mold of a William F. Buckley, at least) can eventually be persuaded to try something new -- they're cautious about it, but sufficient data and study and relation of the new idea to timeless principles that work to make society stronger can overcome that caution and be embraced as welcome developments.

Contrary to the claims of some that laws reflecting evolving social realities irresponsible render the military into a political football, the truth of the matter is that while there is resistance to change, change happens and the military needs to adapt to that change and is possessed of a sufficiently supple internal social fabric to do so:

Now, I'll grant you that the last clip is fiction, but like most good fiction it makes an important point about reality: the military has been socially engineered before, and it came out stronger for it.

That there is lingering paranoia over homosexuals serving in the military is entirely understandable -- paranoia is founded, in many cases, upon fear of homosexual tendencies within oneself. Some refer to this as "repression of homosexuality," but it looks to me like it is more exact to say it is unresolved anxiety about the possibility that one might be homosexual, rather than anxiety about actual homosexual feelings in one who identifies as heterosexual. Regardless, paranoia is the result of not resolving that anxiety in a healthy way. What we're seeing is not really the erosion of our national identity, it's people being forced to confront their unresolved, or ill-resolved, internal anxieties, and projecting them out onto the larger world. In this projection, what starts out looking like a logical syllogism progresses into something at once darker and more irrational.

1. I'm afraid that I might be gay. Being gay is bad.
2. I identify with, or at least I like, the military.
3. If the military accepts gay people, that means being gay isn't bad.
4. But being gay is bad, so if the military accepts gay people, that means the military is bad.
5. If the military is bad, the military must be gay.
6. If I identify with, or at least like, the military which I now know to be gay, that must mean I am gay myself.
7. Therefore now I'm gay and I don't want to be gay because that's bad!

That such a line of thinking is obviously irrational and fraught with all manner of structural errors is beside the point. When you peel back the thought process of those who see some sort of fundamental, existential threat in the repeal of Don't Ask, Don't Tell, you're going to see something that looks a lot like that.

Nationalism isn't dying and the military will adapt to including openly homosexual members within its ranks. We shouldn't let the irrational psychological anxieties of some get in the way of moving our nation, and its essential institutions like the military, into the twenty-first century. The military has had gay people within its ranks for generations, of course, and somehow it functions well, as it always had. There are lots of old, old jokes about how back in the day when only men served in the military and especially in the Navy, sailors passed the time out at sea by coupling up, but somehow none of those jokes ever related what happens in the minuscule sleeping quarters of a ship with the ability of that ship to function in combat. There has always been recognition that even if those sailors turned gay when the ship lost sight of the horizon, they were still tough, capable fighting men serving America.

The only thing that's different now than what was in those old jokes is that soon, those soldiers and sailors won't have to pretend their straight if they aren't -- they won't have to lie in order to serve honorably. This will results in less cognitive dissonance, less anxiety, less lying to oneself and others. In the long run, our military will be stronger for it.

Fantasy Football Woes

It's time to hang 'em up. Our league is quarterback driven. This week our options for quarterback were:

Aaron Rodgers
Kyle Orton
Donovan McNabb
Tarvaris Jackson
Jimmy Clausen

What's worse, we had to pick two of those by Thursday.

Of these, it's a guarantee that three won't be playing again this season, and if da Bears beat Minnesota tonight (they're leading 17-7 as I write and are being ball hogs), that occludes the possibility that Green Bay can make the postseason, so why wouldn't Green Bay coast out the last three games by letting Matt Flynn get some experience?

This will leave us with one starting QB -- Jimmy Clausen of the Carolina Panthers. Something of a letdown after having had Aaron Rodgers all season.

Standalone DADT Repeal Gains Cloture

Even away from the internet while out and about news that cloture on DADT repeal was invoked earlier today has reached me. For all the missteps and display of poor organization exhibited by Congress this year, and despite the myriad of bad ideas wafting out of the corridors of power, we can take heart that at least they got this one right.

Formal repeal by the Senate should be early next week and unless the President waffles, our military will cease its most overt form of discrimination soon.

We are now another step closer to living up to our national ideals. Today is therefore a good day in American history.

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Work Product From The Questionable Methodology Department

I'm quite uncertain about the methodology reported upon here leading to the conclusions thus claimed. The results are interesting but I'm not entirely sure what they really prove -- and I doubt very much that they prove what is claimed. Nor am I at all confident that a study of Asian-Americans' cross-cultural identities first "primed" with respect to work ethics and then "tested" with respect to sexual ethics proves that all these Asian-Americans are somehow neo-Puritans.

Culture matters; the culture we create today will still echo hundreds of years into the future. I didn't need word-association experimental psychology reaching shaky conclusions to tell me that. Puritan culture survives in such a fashion today -- we are much more comfortable with violence than sex in our entertainments and quicker to identify sexual behavior as raising moral issues than almost any other kind. Puritans did not have a monopoly on the association of hard work with good moral behavior, however; nor did they have a lock on personal propriety being a profound virtue.

Biking Through The Central Valley

Hoover Institution Senior Fellow Victor Davis Hanson took a self-guided tour throughout the southern half of California's San Joaquin Valley and reports on what he saw and found. Some of his observations appear to be oddly ignorant of what seem like obvious facts, and for someone whose claimed intent was to "get the pulse" of the area, he seems to have done very little talking to people.

Nevertheless, much of what he has to say rings true and the critiques of both social and governmental trends are worthy of attention, and dovetail with my own observations of members of the Third Class.* For instance:

In two supermarkets 50 miles apart, I was the only one in line who did not pay with a social-service plastic card (gone are the days when “food stamps” were embarrassing bulky coupons). But I did not see any relationship between the use of the card and poverty as we once knew it: The electrical appurtenances owned by the user and the car into which the groceries were loaded were indistinguishable from those of the upper middle class. [¶] By that I mean that most consumers drove late-model Camrys, Accords, or Tauruses, had iPhones, Bluetooths, or BlackBerries, and bought everything in the store with public-assistance credit. This seemed a world apart from the trailers I had just ridden by the day before.

Prof. Hanson seems to ignore that the consumer electronic devices have become very, very affordable; technologically, cell phones have in many cases supplanted old land lines completely; and used exemplars of the vehicles he saw these consumers driving are, by operation of supply and demand, easily affordable. How much would you pay for an '02 Taurus? Less than $4,000, I'll bet.

But the quality of a 2002 car in 2010 is much, much greater than the quality of a 1972 car was in 1980, and Hanson seems to recognize this. So it seems that the rural poor who drive around in 2002 Tauruses and Camrys are better off than the rural poor who used to drive around in El Caminos and Darts. Which is true, but nevertheless unremarkable as a matter of economic reality; these are still people living in American rural poverty. It's just that contemporary rural poverty includes things that used to be considered luxuries and conveniences affordable only by the wealthy. This observation resonates in harmony with George H.W. Bush's astonishment at the use of laser scanners in grocery stores during the 1992 election campaign -- somehow, Prof. Hanson got out of touch with the economic realities of 2010 and seeing them played out in a rural, impoverished area seems dissonant to him. It does not seem dissonant to me.

It does, however, suggest that rural poverty in America is not nearly as bad as rural poverty in other parts of the world.

Where I think Hanson really strikes home is looking at the irregular effects of regulation. In his experience -- and that of many of my middle-income clients -- state and local regulators in this state intrusively meddle in aspects of daily life. I have a friend who has made all manner of interesting improvements to a formerly-modest house, but who has a deep fear that a county building inspector will come by and find the literally dozens of building code violations inherent in the now-expanded structure. Not that the improvements are bad or shoddy -- but they are not permitted, they use some non-standard building materials, and they are unconventional in appearance (for instance, an indoor koi pond adjoining the master bedroom, or the conversion of a bedroom into a home theater using old movie theater seats he found abandoned in a field). My friend is right to be worried about this; I have clients who have been inspected and found in violation of housing codes, and had to pay thousands of dollars in fines and invest tens of thousands of dollars in upgrades and permit fees to bring their homes into compliance. I have landlord clients who are cited by their municipalities for what seem like trivial violations (the one that comes to mind is an uninsulated flex-tube hooking up a hot water heater to the natural gas line, which violation my client's tenant appears to believe entitles her to $12,000 worth of free rent because she was living in "mortal danger").

Yet out in the Central Valley, Hanson observes uninsulated wiring on obviously substandard mobile housing and sees no effort by the government to enforce even basic standards of livability. Some of this might be explained by the fact that here in Los Angeles County, the county and local governments have comparatively more resources available for enforcement than in Fresno, Kings, and San Joaquin Counties where Hanson did his survey. But some of it may have to do with what he suggests is true (I take Hanson's denial of editorializing as sophistry; virtually all of his article is commentary rather than reportage) and that is the fact that regulators and other public officials have varying expectations for the kinds of conditions that are appropriate and reasonable for the Latino rural poor in the Central Valley and the kinds of conditions that are appropriate for urban and suburban dwellers elsewhere.

It is also worthwhile to note that available farmland is sitting fallow. Hanson does not identify a reason; correctly so because the reasons are likely complex when viewed systemically and too varied when viewed particularly -- one property owner may have credit problems, another may have legal issues, another may have failed to have complied with regulations needed to gain access to water, another may be in bankruptcy, and so on. But agricultural land in the San Joaquin Valley is among the best in the world, and if that land is resting fallow instead of producing food or otherwise being used, there ought to be both a reason and a solution to that.

Some of the issues Hanson confronts are, like the riddle of fallow farms, difficult to diagnose and will undoubtedly prove even more difficult to fix. But if it were easy, we can presume it would have been done already. Some of the issues he identifies -- the effects of racial homogenization, for instance -- are both volatile and ambiguous. The fact that it is hard to deal with these issues, though, does not mean they can be left alone forever.


* My theory is that there are three economic classes in the United States. The classifications are derived from the manner in which money and other goods are obtained, and have little to do with how much money one spends or the quality of one's circumstances in life. The First Class are those whose circumstances are such that they do not need to work; family or other capital provides for them. The Second Class are those who exchange their labor for money. The Third Class are those who receive money from the government in the form of entitlements. Within each class, there is a spectrum of wealth and poverty measured by not how much money comes in to the household but rather by how much consumption occurs; some people within each of the three classes live very well, driving high-end vehicles, wearing new and fashionable clothing, and eating in restaurants most of the time; others live in Spartan circumstances either by choice or out of necessity. Wealth mobility and class mobility are both possible, but difficult and rare. You can imagine a poor First Class person as a trust fund baby plagued by addiction; a wealthy First Class person as a socialite. A poor Second Class person might be a starting wage earner sharing an apartment while working for a single-digit hourly wage; a wealthy Second Class person might be a doctor or a lawyer. A poor Third Class person might be a recipient of Social Security disability payments, receiving no other public aid and unable to pay the rent; a wealthy Third Class person might be someone receiving a panoply of various welfare benefits, lives in deeply-subsidized housing in a good neighborhood, who drives a leased one-year-old Escalade, and shops at Trader Joe's. Members of all three classes, from a variety of points along the parallel wealth spectra, may be found here in my own community. I'm not yet done fleshing out this concept in my mind but I'm convinced there's something to it.

Flunking Gandhi's Test

"A nation's greatness is measured by how it treats its weakest members." -- Mohandas K. Gandhi.

A prisoner is utterly and completely at the mercy of the government which has imprisoned him. He relies upon his jailers for food, for safety, for medical care, and every other necessity of life. Any comforts or personal items given to him from the outside are subject to immediate confiscation and thus private possessions are, as much as anything else, dependent upon the fiat of the guards and wardens who run the institution. Prisoners lack nearly every civil liberty which you and I, as free people, take for granted. A prisoner may easily counted among the weakest members of a society. How we as a society treat our prisoners is a measure of our moral worth.

By this yardstick, we are a badly deficient society. Since May, a man who has been accused of a crime but not yet convicted is being held in solitary confinement in a military prison. Now, there is no particular reason to love PFC Bradley Manning; if he is guilty as charged, he was personally responsible for the leaking of all sorts of classified documents, many of which wound up on Wikileaks and have caused our nation no end of embarrassment and, at least temporarily, weighed down our ability to engage in diplomacy. If he is convicted of these crimes, he should be punished.

But he hasn't been convicted yet. Of anything. As of right now, PFC Manning is an innocent man. Our legal system, ostensibly, presumes his innocence until such time as a verdict is entered against him. And yet this is how a citizen of the United States who has, as of yet, been convicted of no crime and has demonstrated no propensity to violence is being treated by the government:

For 23 out of 24 hours every day -- for seven straight months and counting -- he sits completely alone in his cell. Even inside his cell, his activities are heavily restricted; he's barred even from exercising and is under constant surveillance to enforce those restrictions. ... [Bradley is] denied ... a pillow or sheets for his bed (he is not and never has been on suicide watch). ... [T]he brig's medical personnel now administer regular doses of anti-depressants to Manning to prevent his brain from snapping from the effects of this isolation.

I'm no prison warden, but I understood solitary confinement to be appropriate for prisoners who are violent to other prisoners or to prison personnel. And bear in mind that, at this point in time, PFC Manning is entitled to a presumption of innocence. The government has not proven, beyond a reasonable doubt in a court of competent jurisdiction, that PFC Manning has done anything wrong.

Let us presume, however, that Manning had been convicted already. Let us presume further that we could prove that what Manning did -- leaking thousands of documents in violation of secrecy orders -- had serious consequences like people getting killed, wars being prolonged unnecessarily, and human misery around the globe extended where it could have been ameliorated. Again, I'm not suggesting that criminals like that should not be punished.

We seem to have lost sight of the fact that incarceration, without any particular enhancements, is already a really bad, nasty, punitive thing to do to a person. Prison is a Very Bad Place. Being deprived of one's liberty is a Very Bad Thing. What's more, prison causes one to involuntarily associate with a society of nearly exclusively other criminals and prison guards. No loving family, few friends, boring work, and a soul-crushingly institutional environment.

This would be awful even without the fear of violence and prison rape about which society at large is already is far too cavalier. PFC Manning would also earn himself a dishonorable discharge from the military, a permanent stain on his character and reputation which he would carry for the rest of his life even after completing his prison sentence. He will have lost his future.

You would not voluntarily submit to this, nor would I. This is the price, and the threat, for violating society's standards of minimally acceptable behavior. It is the penalty for betraying one's country, one's word, one's honor. And if Manning is convicted of his crimes, we will be justified in doing these things to him.

What's more, there are good reasons to hold accused prisoners in confinement. Some are flight risks. Others may be difficult to relocate by the time of trial. Others have demonstrated that they are dangerous or are likely to engage in conduct contrary to the interests of justice, like by intimidating people who might be witnesses against them at trial. Some just plain can't post bail. So I have no particular beef with the idea that PFC Manning should be incarcerated pending trial.

So it's not that Manning needs to be treated with kid gloves; I'm not saying that we should put him up in the Hilton or even let him go free. But when a legitimate question can be raised that a man is being tortured, we've crossed the line from acceptable to unacceptable behavior.

"Torture?" you ask. "Is solitary confinement really 'torture'"? Maybe yes, maybe no. You may recall that the term "torture" is defined by law:

(1) “torture” means an act committed by a person acting under the color of law specifically intended to inflict severe physical or mental pain or suffering (other than pain or suffering incidental to lawful sanctions) upon another person within his custody or physical control;
(2) “severe mental pain or suffering” means the prolonged mental harm caused by or resulting from—

(A) the intentional infliction or threatened infliction of severe physical pain or suffering;
(B) the administration or application, or threatened administration or application, of mind-altering substances or other procedures calculated to disrupt profoundly the senses or the personality;
(C) the threat of imminent death; or
(D) the threat that another person will imminently be subjected to death, severe physical pain or suffering, or the administration or application of mind-altering substances or other procedures calculated to disrupt profoundly the senses or personality ... .

Anti-depressants are mind-altering substances. Granted that in many instances they are administered for therapeutic rather than punitive purposes and many people take them voluntarily. Prolonged isolation from social contact may, and often do, have the effect of "disrupting profoundly the senses or personality" of the person so treated; prolonged confinement and deprivation of interaction with other people very often has the effect of causing depression on the person so deprived.

Solitary confinement of a prisoner need not be "torture" if it is imposed as a "lawful sanction" for something. "Sanction" indicates that someone has done something wrong to earn this treatment; it is a phrase laden with implications of punishment. The government is not yet in a position to impose a "lawful sanction" on PFC Manning because PFC Manning has not yet been convicted of any crime; he has not shown any propensity to violence while in confinement.

So is this "torture"? What I don't know is the intent of Manning's jailers; this is not readily ascertainable and I hesitate to rely on Greenwald's article alone to determine this. But the objective, verified* facts of Manning's treatment are not in substantial dispute; he is, in fact, being treated this way. Using the definition of 18 U.S.C. 2340, it sure looks like torture. If the intent is to make Manning's life behind bars uncomfortable, then yes, this is torture.

Once we started saying "Sometimes torture is morally justifiable," that led to us saying "Some prisoners have done things so bad that they deserve to be tortured," and now, we're at the point that there is a massive shrugging-off of the fact that a man who has been convicted of no crime, a man we ought to presume is innocent, is being treated thus for no apparent good reason.

I have said for a long time that we ought not to torture our prisoners -- not because they don't deserve it, and not because we would expect to be treated so well were positions reversed, and not because torture is ineffective (although that is subject to at least reasonable debate), but because torture is contrary to our own collective moral standards. We should not torture, because we are better than that and for no other reason.

When we betray our own standards once, it becomes easier to betray them later. Society's disregard of such treatment of a presumptively innocent man is the next step down that road. That is why the rule should be simple and absolute: no torture, ever.

Again, this might not be torture as that term is legally defined. But it is also not a good example of how we ought to treat someone who has not yet been convicted of any crime. Whether it's torture or not, we have a Constitutional prohibition on cruel and unusual punishments. I rather doubt that most other prisoners in this brig are getting treated the way Manning is. I rather suspect that his treatment is motivated by a desire to inflict suffering for the sake of inflicting suffering -- the very definition of cruelty.

Let PFC Manning be treated like any other accused but as-yet-unconvicted military prisoner. Let him stand trial, and if convicted, let him then receive the full punishment specified by law. But let us not, in our zeal to see a crime punished, lose sight of our own ideals.


* Greenwald's article linked above accuses the military prison of denying Manning access to news and other current information in the one hour per day of relief from solitary confinement allowed to him. Manning's jailers dispute this, and only this, portion of Greenwald's factual reporting; they also dispute Greenwald's characterization of the solitary confinement as "torture."

Stuxnet Triumphs

A computer virus (or more accurately, a worm) called Stuxnet has somehow infected the Iranian nuclear weapons program's computers. This is remarkable because the Iranians had apparently gone to extraordinary lengths to isolate their nuclear weapons development computer system from every other computer in the world; no hacker could have found a way in to that network from his living room in Yaroslavl or Philadelphia because there were no physical or ethernet connections between those computers and the internet. Yet somehow the virus got there.

And according to the Jersualem Post, this has set the Iranian nuclear weapons development program back by two solid years. Stuxnet has been as effective as an overt military strike against the weapons development program, and was somehow done without anyone firing a shot or anyone being killed.

No one will take credit for Stuxnet. There is speculation that it was developed by or at the behest of the Pentagon, or maybe by the Israeli Defense Forces, or who knows who else. But there is no doubt that Stuxnet was targeted directly at the Iranian nuclear program and whoever is responsible for it had conclusively demonstrated that the age of cyber-warfare is upon us.t

Do Judges Talk Too Damn Much?

This column suggests that judges should say nothing outside of the four corners of their opinions. But it levies its criticism at John Paul Stevens, David Souter, and Sandra Day O'Connor -- three retired Justices of the Supreme Court. I say, once they've retired, they're private citizens and have the same First Amendment rights as anyone else. Now, retired Justices occasionally still serve in a variety of judicial capacities and then should respect the canons of judicial ethics about public statements. They should also point to their opinions in cases that they had decided as the primary articulation of their reasoning and intent. But aside from that, yes, they should be free to comment on whatever they wish.

Celibate World Cup

It's still twelve years in the future, but I can't understand how the World Cup in Qatar could possibly be a success. I'm already baffled that a sport whose biggest fans come from Western Europe and South America -- none of whom are shy about drinking booze while partying and cheering on their teams -- would be asked to go to Qatar, a tiny nation dominated by Puritanical moral laws concerning alcohol to watch the World Cup. These are people who are going to want to drink while they party and cheer and sing.

And it gets worse -- gay fans have just been asked by international soccer's governing body to refrain from having sex while in Qatar to cheer on their teams. Which brings to mind the fact that Qatar's next door neighbor, Saudi Arabia, still has the death sentence on the books for sodomy -- a punishment which is still actually enforced from time to time. I don't know if Qatar imposes the death penalty for sodomy and it's reasonable to assume that Qatar's morals police will be asked to relax their enforcement during the tournament. But what's going on here is not soccer expanding its audience into a new region; it's shining a spotlight on the shortcomings of the nations in question.

Now, Qatar beat out other nations, most notably including the United States, for hosting the Cup. I hate being a sore loser about that despite the fact that our bid was clearly superior to Qatar's, but here's the fact: gay soccer fans from around the world, you're obviously not welcome in Qatar. But you (and your money) are welcome here in the USA! Please plan on coming in 2022. You'll find plenty of friendly fellow soccer fans here,* some great places to eat, and lots of fun things to do in between games. Your money is welcome here; if you're over 21 years of age, you can have a beer or wine or a cocktail if you feel like it; and unlike your would-be Qatari hosts, our law enforcement authorities don't care what you do behind closed doors with other consenting adults.

* Yes, we call football "soccer," which is what the English used to call it. We have our own kind of football, too, which if you learn a thing or two about it, you might enjoy. Some Brits, however, think of themselves as very clever for claiming that our sport should be called "hand egg." They are incorrect.

Wisdom From The Founders

Thanks to American Creation, we can credit a holiday recipe for eggnog to George Washington himself:

One quart cream, one quart milk, one dozen tablespoons sugar, one pint brandy, 1/2 pint rye whiskey, 1/2 pint Jamaica rum, 1/4 pint sherry—mix liquor first, then separate yolks and whites of eggs, add sugar to beaten yolks, mix well. Add milk and cream, slowly beating. Beat whites of eggs until stiff and fold slowly into mixture. Let set in cool place for several days. Taste frequently.

Sounds rich, Mr. President. And intensely alcoholic; by volume this eggnog is more than one-third booze. Not that those are bad things. My only criticism is that it looks like it lacks spice; a little cinnamon, ginger, and nutmeg would do it good.

This Is Why Textualism Is Better

Original intent is not a great primary approach to Constitutional interpretation. When you have a Justice of the Supreme Court seriously arguing that the Framers somehow didn't mean it when they amended the Constitution to guarantee individual rights and therefore we can, apparently, simply disregard the words they used, you're too far down the rabbit hole. Discerning original intent is very hard to discern from the historical record, and sometimes even counterproductive -- a look at how Title VII came to include women as a protected class is a good example of that.

You start with the words of the law. You understand what those words mean. If that's still not clear, then original intent is one thing you look to in order to flesh out ambiguities -- you also try to understand the policy objectives, the relationship of the government to the individual, and the goal of maximizing personal liberty.

Besides, I kind of think that Madison did mean it when he introduced and advocated for the Second Amendment. Justice Breyer's mistake is suggesting that Madison was of one mind on the issue; Madison, like everyone else, suffered from intellectual inconsistencies, blind spots in his thinking caused by his personal preferences clashing with his overarching philosophy, and was even capable of changing his mind or accepting compromises when the situation warranted it. Rare indeed is the person whose views do not evolve over time and Madison, who was first and foremost a politician, had a more supple ideology than he is widely given credit for.

Someone Would Have Greenlit This

In a world where television series inspire movies...

Movies can inspire a TV series!

Thing is, I have no doubt that were Desmond Llewelyn still alive, someone would have pitched this by now. Indeed, it's only the dark, serious reboot of the James Bond franchise (and hopefully John Cleese's good taste) that is stopping it from happening right now.