Senator Graham Says "King Me"

Senator Lindsey Graham of South Carolina gets the award for the most unhinged reaction to the Supreme Court's ruling: "I will also explore the possibility, if necessary, of a constitutional amendment to blunt the effect of this decision when it comes to protecting our men and women in the military and our nation as a whole."

I suppose that his reaction to the decision comes from a fundamentally different concept of the country than I have. Graham sees the mission of the United States as protecting and governing its citizens. Not an unjustifiable or unreasonable vision. I demand and expect that the government protect us from our enemies, too. I can understand frustration with that mission imposed by today's ruling.

But I see the United States of America as a government created, defined, and limited by the Constitution. Everything the government does is done by authority of the Constitution. It can do nothing -- nothing at all -- that the people have not authorized it to do by way of that document. So Senator Graham is right that if the ruling is truly unacceptable, then the response is to amend the Constitution.

But amending the Constitution to get rid of the Great Writ of Habeas Corpus is burning down the barn in order to prevent the cows from getting out of it. The Constitution is fundamentally about limiting the power of the government. The whole reason we had a revolution against the British Crown was because of an overreaching of executive authority. The whole reason we have a Constitution instead of a king is so that the government's exercise of power can be limited by a fundamental law that protects the essential rights of all.

Put another way, we didn't revolt against King George for lower taxes on our tea. We revolted because King George just started taxing our tea without so much as bothering to ask us if we thought taxing our tea was a good idea. So we set up a government where that sort of thing can't happen again. And even more basic than the idea of taxation without representation was the idea that the King (and his agents in America) could not simply arbitrarily jail people without good cause and without charging them with crimes. Six years of confinement is long enough.

The condemnations of the Boumediene v. Bush case ultimately derive from a vision of executive power closer to that claimed by King George than the vision the Founders had for our chief executive. An argument to restrict the right of habeas corpus is, in the end, an argument in favor of letting the President simply confine people for any reason he likes and for as long as he likes. A free people cannot and should not tolerate that.

More Teaching Gigs

I may be teaching two business law classes this autumn, both at career colleges. One of them is a college that caters to aerospace workers, and the other caters to Korean nationals who want to sit for the California CPA exam. There are enough Korean nationals who want to be California CPA's to fund an entire college? Wow. Who knew?

If I do this, it will likely mean at least two nights a week I don't get home to see The Wife. I have to decide whether I like the money and the audience more than quality time at home. Fortunately, I'm in a position where I can make that kind of choice -- and I'm mindful that there are some people, including some attorneys, who are not so fortunate as that. I can teach, or not, because I enjoy it.

Haven't decided yet. But it's nice to have the option.

Virginia Madrassah

One wonders what exactly is involved with getting a private school accredited. One would hope that the content of a school's curriculum would be examined carefully. But, I suspect, that accrediting agencies probably just look over the lists to see if the appropriate subjects are covered and, as many private schools are religious in nature, they tend to gloss over the content of religious instruction.

Usually, I would be thinking about this in the context of whether the school is teaching evolution as part of its biology and science program, and trying to determine whether intelligent design or its somewhat more honestly titled companion doctrine, creationism, was being touted as an
"equal" theory of the diversity of life forms. I could easily expect that attacks on evolution and scientific thought on religious grounds could be concealed in the rubrics of religious instruction, because educational regulators and accreditation bureaus rightly do not feel competent to decide if a school is teaching "real" religion or not.

But not today. No, today, I'm kind of, well, disturbed to learn that a private school that enjoys accreditations from two relatively prestigious entities, and which is teaching upper-class students near our nation's capital, is disseminating contemporary religious justifications for murder and genocide.

The Islamic Saudi Academy of Fairfax, Virginia has apparently been teaching its students that it is morally good to murder adulterers and apostates, and that there is nothing wrong with killing and stealing from "polytheists". Are Christians "polytheists" because they believe that God is God the Father, Jesus Christ, and the Holy Ghost? Are Catholics "polytheists" because they direct prayers at the Virgin Mary and various saints?

At what point should society as a whole begin to object to a religion's moral teachings? Because this seems over that line, if the line exists at all. It is most assuredly not okay to kill people because they have a different religion than you. Not here, not in Saudi Arabia (the government of which subsidizes the Islamic Saudi Academy), not anywhere. I hope that the school will both deny that these allegations are true, and condemn the notions it is accused of promoting. But I doubt that the second part of that hope will ever manifest.

We know that parents have a right to send their children to religious schools if they want to, so we have to alow religious schools. Pierce v. Society of Sisters (1925) 268 U.S. 510, a venerable piece of American Constitutional law, says so. But we don't necessarily have to accredit every religious school that's out there just because it's religious. We can demand that a school teach certain subjects in certain ways.

Since these teachings are (if the report is true) so gravely morally objectionable, is there anything that, for instance, the Commonwealth of Virginia could do about it? The answer is, probably not much. If the people who run this school think that these are acceptable moral teachings, consistent with the doctrine of their religion, it's not for the state to step in and say otherwise.

That would take us to the question of making a school teach morality and ethics in a general sense, as a required subject. That could get us to the point of requiring teachers at the ISA to teach at least one version of morality that says "no, don't kill non-Muslims."

But that would also necessarily mean that public schools would have to teach morality and ethics, too. Without crossing the line into religious indoctrination, either for or against any particular religion, or without being for or against religion in general. Frankly, I doubt if there are a substantial enough number of grade- and high school teachers out there up to the task. Many would be, no doubt, but this is a pretty sensitive and unclear line. So we're talking lots of lawsuits here, coming from all directions, because everyone of every religious or moral stripe would find something to object to in the content of the required ethics and morality curriculum.

Maybe we could pass a law preventing a foreign government from subsidizing, directly or indirectly, private schools in the United States. Of course, that could in theory result in shutting down every Catholic school in the nation becuase it could be argued that the Catholic Church is ultimately controlled by the Pope, who is the government of the Holy See, a sovereign nation that is not the United States. I don't think that would be the result most people would want to see; Catholic schools generally do a good job of educating their students and their alumni do not even all go on to become Catholics (I am an example of that).

There are no easy answers here. There wouldn't be if the school were teaching a violently intolerant brand of Christianity, either. But it's a Muslim school -- a madrassah -- and that makes it a matter of particular sensitivity here. I think all that can be done is to hold the school up to public ridicule and encourage parents to not send their children there. But if that doesn't work, I doubt there's much we can do -- if the school teaches the required subjects and in the required manner, I would feel compelled (reluctantly) to resist attempts by the state or a state proxy (like an accreditation entity) to interfere with that school teaching that religion's version of morality. Which is too bad because if this is true, it's absolutely outrageous.

Popping My Cherry

I've made special appearances for colleagues before in criminal matters but I've never undertaken representation of a defendant facing actual criminal charges. Unfortunately, it looks like I'll have to do it now. We're facing some personnel challenges and that involves reshuffling some cases around. One of the results of this is that I get to take up the representation of a guy accused of being an unlicensed contractor. Oooh. Now I feel like the Devil's Advocate!

No, no, I'm kidding. Unlicensed contracting is a serious issue; not one that threatens people's lives, but it's an important matter for the proper regulation and control of business. And I'll just have to see what to do about my guy's status and if he's on the wrong side of the matter, how to get him back on the straight and narrow.

Well, I've gone thirteen and a half years in practice without having to do this but I guess the run could only last so long.

The Great Writ Has No Substitute

The writ of habeas corpus was powerfully vindicated today in the case of Boumediene v. Bush. The background is a little bit complex, but it basically has to do with our prisoners in Guantánamo Bay. Who are -- let us stipulate at the outset of our analysis -- very dangerous articles of human trash who almost certainly wish us nothing but harm and have been picked for isolation in U.S. confinement for excellent reasons.

First, the military captured these guys, mostly in Afghanistan. Then, it took them to our naval base at Guantánamo Bay, Cuba, so as not to bring them on U.S. soil. Then, the Defense Department established Combatant Status Review Tribunals to conduct preliminary hearings determining whether these guys were "enemy combatants," which all the plaintiffs in the Boumediene case were found to be by the military tribunals. Hamidi v. Bush later determined that the military's detention of these guys was lawful, in part because the military had established these tribunals to determine the status of each individual detained (however, there was no majority opinion in the Hamidi case and that holding is cobbled together as a per curiam based on a variety of different concurring opinions).

So then the Supreme Court issued its ruling in Rasul v. Bush, in which the Court found that the Guantánamo detainees were subject to the statutory grant of the writ of habeas corpus. The application of the writ in this case means basically that the government needs to show some sort of court an objective reason why it's more likely than not that the detainee ought to be detained. (The phrase is usually translated in popular culture has "having a body" in a murder investigation, meaning that if there's no body in a murder case, the suspect cannot be arrested. That may be good TV, but it's not legally accurate. The "corpus" means a "body of evidence" justifying the restriction of the defendant's liberty.) The Rasul Court, and some other decisions in the same time, also held that the Guantánamo detainees held Constitutional due process rights and therefore had to be charged with something and had to be afforded the basics of procedural due process.

Rasul v. Bush and its kindred cases were unpopular with the then-Republican led Congress and very unpopular with the White House. The White House then wrote, and Congress rubber-stamped, the Detainee Treatment Act of 2005, which stripped all Federal courts of jurisdiction to consider habeas corpus applications by the detainees. Hamdan v. Rumsfeld, decided the next year, ruled that the Detainee Treatment Act did not apply retroactively. So the Administration then had Congress pass the Military Commissions Act of 2006, which re-enacted the provisions of the Detainee Treatment Act of 2005 and was explicitly retroactive.

Boumediene looks at the Military Commissions Act of 2006 in light of the Suspension Clause of Article I, section 9 of the Constitution, which reads: "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in cases of Rebellion or Invasion the public Safety may require it." The petitioners (the detainees) contended that by stripping every concievable court in America of jurisdiction to hear a habeas petition, Congress had effectively suspended the writ, and that there was no "Rebellion or Invasion" requiring such a dramatic revision of this very basic right. The Government contended, in response, that the Detainee Treatment Act provided that the equivalent of the writ could be raised before the military tribunal and could be appealed to the D.C. Court of Appeals, and therefore there was an adequate 'substitute' for the writ that could be brought in a meaningful forum.

The Supremes held today that the detainees are entitled to file petitions for the Great Writ. The basis for that right applying to the detainees is that they are under the power and detention of the U.S. Government, even though they are not technically on U.S. soil. Based on admittedly ambiguous historical research into the pre-Revolutionary uses of the Great Writ, the Supremes determined that it was basically safer to say that the writ applies to someone than to say it does not.

It seems ridiculous to me, by the way, to adhere to the pretense that Guantánamo Bay is not "American soil." It's technically only "leased" from the Cubans, but the terms of the lease are such that both government must agree to break it or we have to abandon possession. And while we tender $4,085 every year that the lease requires, the current government has only cashed one of those checks. (But, I think we're paid in advance up through February 22, 3022 at this point.) But it should more properly be called an "enclave." We have lots of guys with guns patrolling this twenty square mile (or so) area and the Republic of Cuba has effectively zero power and authority there. The Supremes went along with that, saying that the government's argument that it is not bound by the Constitution there due to the de jure sovereignty of Cuba over Guantánamo Bay is excessively formalistic. That much I have no problem agreeing to. A soldier at Guantánamo Bay has the same rights, and the same basis for those rights, as he would in any other Federal enclave.

So from there, the Court determined that the laws as drafted by Congress are not the equivalent of the real right of petitioning for a writ of habeas corpus. That brings the Court to the "prudential analysis" issue -- whether the courts should defer to the military for policy and safety reasons. This is the reason why some people will be outraged by the ruling -- they fear that this means the court is second-guessing the military's judgment about military activities, and turning our soldiers into policemen. The Court seemed inclined to be more deferential to the government on these sorts of issues in a case of immediacy or great administrative burden to the military, but said that in this case, no such concerns were present. These prisoners have been held for more than six years now, so the need for "swift" action like that anticipated on a battlefield are simply not present.

I'm of two minds about the Boumediene ruling. On the one hand, the Constitution binds and controls everything our government does. It has to. We cannot allow for extra-Constitutional powers because we live in a society that limits our government's powers. The Suspension Clause makes very clear that the Great Writ of Habeas Corpus can only be suspended in very limited, narrowly-tailored circumstances, and this is not what Congress did. On the other hand, these are very dangerous men and they cannot be allowed to regain their freedom. As many right-wingers will correctly note, the Constitution is not a suicide pact and letting these creeps go is to loose them with the certain knowledge that they will soon (if not immediately) begin plotting revenge for their confinement upon their captors and the government and nation in whose name their captors have acted.

The solution to the dilemma, it seems to me, is to actually have evidence against them and to make the government rely on the strength of that evidence in a real court. This creates a risk that yes, they might raise reasonable doubts about whether they were engaged in acts of terrorism against the U.S. and its interests, or culpably associated with other people who did. But if we assume, as we stipulated at the start of my post today, that these are dangerous people who have been taken to Guantanamo Bay for a reason, that reason needs to come out and go through the judicial process.

We should not ever be confining people for no good reason, and I have assumed today that there is a good reason for our confining of these guys. I do not suggest that the court need necessarily be public (at least, not right away) if there are significant security concerns with the evidence; there are procedures in place to address the suppression of portions or even all of a court's record if issues of national security are implicated by the evidence. Nor do I suggest (today) that military tribunals are necessarily bad or unfair, although I do think the presumption should be that a standard District Court be the way to go. Congress could have created a special District Court to hear these kinds of cases, but opted not to.

So at the end of the day, I have to think that what's gone on here is that the government has been clumsy about its attempts to keep these guys confined. And that's what all the litigation is about. We know how to go after bad guys within our justice system, and

The Court wrote today that "Security subsists, too, in fidelity to freedom's first principles. Chief among these are freedom from arbitrary and unlawful restraint and the personal liberty that is secured by adherence to the separation of powers." And I think that's ultimately correct, and while it's ambiguous in application, the effect of civil liberties in tough cases will always be ambiguous. My hatred of our countries' enemies and those who would either destroy us or impose a Muslim theocracy here is not so great as to blind me to that which makes us great in the first place.

The threats against us are, although very real, nevertheless not yet so dire and imminent that we must destroy what is best within ourselves to simply survive. Our enemies, who have little regard for freedom, are not our teachers. Again quoting the Court, "The laws and Constitution are designed to survive and remain in force, in extraordinary times." While it is not a suicide pact, the Constitution is also not a compact to be set aside for the "mere" purpose of facilitating the extermination of our enemies, particularly since it already contemplates the nation being at war and how the government should act in such a time.

I would much rather see a guilty man go free than an innocent man wrongfully imprisoned, even if that guilty man later commits more crimes. And I have little doubt that the shitheads we're holding in Guantánamo Bay are guilty of very, very bad things, and moreover I have faith that the government has the ability to prove it -- faith in the government and the evidence that the alarmists protesting this decision seem to lack. I'll let Justice Kennedy have the last word: "Liberty and security can be reconciled; and in our system they are reconciled within the framework of the law."

The Tragedy of American Passenger Rail Transit

When I've traveled in Europe, I've taken both the high-speed and regular rail systems there. Both trans-European and intra-national travel are fast, timely, and efficient. Travel between countries is priced competitively with air travel and travel on DeutscheBahn within Germany is cheaper than driving. My only complaint is that the food cars are not stocked with enough food and too frequently, tour groups of teenagers descend upon the concession car like locusts as soon as the train pulls out of the station, leaving nothing for the adults to eat later.

Which makes it a shame to come home to the U.S. and find functionally no rail transit anywhere. Rail transit would be a great thing had we invested in it many years ago. It would provide an affordable alternative to air travel between cities for commerce, in particular tourism, and of course we've all heard touts of the beneficial effects of rail on air pollution when used for local commuting.

So I can understand why Congress doesn't want to let go of Amtrak and instead insists on funding and subsidizing it. But it's a mistake to do that. Billions upon billions of dollars will be wasted so Amtrak can run nearly empty trains from Los Angeles to Chicago, slowly. It takes nearly as long to take the train from Oakland to Seattle as it would to drive. And it's more expensive than driving anyway. And Amtrak found a way to somehow make a run from Los Angeles to Las Vegas so slow and unprofitable that it could not be sustained even with Federal subsidies. Southwest Airlines figures out how to fly you from L.A. to Vegas for thirty bucks each way, with total boarding-to-casino time of just over an hour.

As far as I can tell, Amtrak has one (1) profitable rail line: the Acela, which caters to commuters and business travelers along the Boston to Washington D.C. corridor. Acela is profitable because it is fast, reliable, competitively-prices with commuter flights, and exploits the geography of the major commercial centers along its route -- Boston, Hartford, New York, Jersey City, Philadelphia, Baltimore, and D.C. are all in a nice line, and reasonably close to one another. If the Acela line stopped getting Federal subsidies, a private company would buy and operate it almost instantly and commuters would never notice the difference. Or maybe they would, in that service might actually improve.

But no private company would buy Amtrak as a whole. Until and unless passenger rail service improves in terms of quality and speed, demand for the service will never rise to the point that prices can fall. Why would I spend four hundred dollars for a one-way ticket from Los Angeles to Chicago that takes three days to get there? I can drive to Chicago in three days and spend a similar amount on gas. Rail has to be faster than the interstates, at a minimum, before it becomes a realistic travel alternative.

Also, I pretty much can't go to Houston by rail (should I want to go to Houston) without going through Chicago first. That means that if I'm in L.A. and I want to go to Houston, Amtrak is actually slower, and more expensive, than driving. In theory, routing all trans-national routes through Chicago is really great -- if you either live in or are going to Chicago. Otherwise, not so much.

If the Feds feel compelled to subsidize Amtrak, they shouldn't subsidize existing service and routes. The money should go to upgrading the routes to handle high-speed trains and building additional routes to supplement the Chicago-centric hub Amtrak currently uses. But as it is, this is just another case of the government lighting money on fire.

Not Even News Anymore

Question: Is this story making the rounds of the internets because:

A) Fox News crosses the line of propriety and is showing bias against presumptive Democratic nominee Barack Obama?

B) Once again, mainstream media demonstrates a tin ear with respect to the use of hip-hop phrases?

C) It's a beautiful example of left-wing pundits mindlessly pouncing in spontaneous unison on a negligible issue as the Outrage Of The Week?

Because to my mind, "all of the above" fall into the category of "not exactly surprising."

By the way, right-wing shill Michelle Malkin, who is also pictured in the screen capture and who was giving a piece on Fox News, claims she did not write the text (the TV equivalent of a "headline") and did not know it was running. She kind of implies but does not actually say she would have objected to it had she known -- and then defends Fox by saying that Barack and Michelle Obama use similar phrases to describe themselves anyway, which in my mind is pretty lame. But then again, the whole flap is pretty lame in the first place.

Bobby Jindal, The Exorcist

Louisiana Governor Bobby Jindal participated in an impromptu Catholic exorcism on a college classmate that coincidentally faith-healed her skin cancer. Read all about it here -- Jindal and his other friends thought she was acting funny. And she smelled of sulfur. So the others forcibly held her down for several hours, ignored her protests that she wanted to get up, prayed and chanted, and demanded that she read Bible passages. At one point when she tried to escape, they pinned her down again. Finally, she relaxed and said "Jesus is Lord," and they let her get up. She said she had no memory of the previous several hours, and later the doctors could not find cancerous cells in her body.

Now, she may have started out acting funny because, oh, I don't know, she had just been diagnosed with cancer and a close friend had just committed suicide. That might tend to affect someone's behavior. The smell of sulfur? Umm, you don't suppose she might have eaten some eggs recently and had to fart? No, demonic possession is a much more likely explanation than passing gas, which we all know girls don't do. As for the "exorcism" itself, it seems to match the definition of something closer to my own professional training than a religious exercise.

Mr. Jindal is, by all accounts, on John McCain's "short list" of possible running mates, and will certainly be delivering the keynote address at this year's Republican National Convention.

I Am Not An Electrician (Part II)

The Wife wants me to replace the two old "ugly" overhead light fixtures in the office and spare bedroom of Soffit House. She found the fixtures she wants and now it's my job to get them in the ceiling and working. The instructions (illustrated, click for full-size goodness) that came with the fixtures leave a lot to be desired.

First of all, the instructions nowhere distinguish between the "mounting screws" and the "outlet screws." So I have no idea if I'm using the right screws or not.

Secondly, the illustration of the bracket is backwards from the bracket that I have -- you'll note that the bracket illustrated in figure 1 seems to have the ground screw head facing out on the concave side. My bracket came with the ground screw head pre-mounted on the convex side. It's far from apparent how the screws are supposed to attach the fixture to the bracket, since there are no threaded holes at all in the fixture. So I don't know whether I've mounted the screws facing the right direction or not.

Third, there are two sets of wires, plus the ground, on the new fixture. Two jacks for light bulbs, with one black wire and one white wire each. An uninsulated copper wire in the middle for the ground. Easy enough right? here's the problem: my ceiling's junction box has three wires and a ground -- one in black, one in white, and one in red. Presumably, the red is the "hot" wire, and the white is the "neutral" wire necessary to complete the circuit. The black wire might also be a "hot" wire, but it might also be a "neutral." I only know to hook up black to black, and white to white. If red and black are the same, then that's cool, but I'm still short one "neutral" wire so I can't make two circuits. And if I make a three-way circuit (black from bulb 1 and black from bulb 2 both hooked up to black from the ceiling, same with white) that leaves me with at least one "hot" wire just kind of floating loose, which sounds oh, just a bit dangerous.

Of course the mounting bracket that came with the bulb has nothing to do with the size of my junction box, so I had to make a special run to the hardware store to get an improvised mounting system (hex nuts) based on the old bracket's mounting screws.

So let's review TL's progress installing an out-of-the-box overhead light fixture. After an extra day getting hex nuts to mount the bracket at all, I don't know whether I've mounted the bracket upside down or not, nor whether the screws are facing the right direction or if they're even the right screws. I don't know how I'm going to mount the fixture on the bracket when those problems get solved, and once that happens, I don't know how to wire three wires into four.

Other than that, this job's a snap.

Fellesekteskapsloven

Today, the Norwegian Parliament enacted same-sex marriage. The IKEA-like title of this post is Norwegian for "Same-Sex Marriage Law," which conveniently looks like it's pronounced something like "Fellas get loving," a wierdly appropriate sort of translation.

Norway has a state church. Apparently individual clergy get to decide for themselves if they want to preside over the ceremonies, but aside from that, it looks like someone in the Norwegian state church will be obliged to perform these ceremonies. See, this is why separation of church and state is a good thing, all you social conservatives! At least here in the States, the law will not force your church to recognize gay marriages because we distinguish between the government and the church.

But more importantly, gratulerer, norske homofile! And Dale Carpenter at Volokh gets the hat tip on this one.

Judicial Blogging Can Be A Bad Idea Sometimes

I wrote recently about the United States v. Isaacs case and why I thought it should never have been brought in the first place. But there it is, and it's being tried before, of all the judges in the Central District, Alex Kozinski on assignment from the Ninth Circuit. Judge Kozinski is one of the most brilliant minds on the bench, one who takes freedom and liberty seriously, and one who is not shy about colorful phrases in his opinions or showing more personality than one normally expects from such a staid segment of an already-staid profession.

But when Kozinski posted evidence from the trial on his blog, I think that probably crossed a line of some sort. He could at least have waited until the trial was over, although even then this would have been a questionable thing for him to have done, given that it was evidence in a trial before him. It's one thing to tell war stories, especially when they are humorous or insightful. But it's something else to take real evidence -- particularly real evidence that is really sexually explicit -- and post it on the web.

Most of all, it's a problem in that his defense is that he didn't think what he posted was obscene. Not that he may or may not be right, but because he's sitting as a judge in which the obscenity of this material is a matter pending before him. Unless he's already ruled definitively that this stuff is not obscene -- and the Government is likely within its rights to demand that a jury and not the judge make that finding -- then this raises in my mind a very substantial question about whether Judge Kozinski has pre-judged the material issues pending before him. It's not that the judge has any fewer civil rights or liberties than the rest of us, but he is supposed to exercise those rights in a certain way so that he can also discharge his judicial office. At this point, a cloud has been raised over that in my mind.

None of this changes my opinion of the Isaacs case and none of this changes the admiration I have for Judge Kozinski as a legal scholar and as an author of some very important legal opinions. But sadly, I think this scotches any chance he might have of being nominated to the Supreme Court. Not so because of the real judicial propriety issue raised in my last paragraph (which I think is a real issue), but because any President who might otherwise have been inclined to nominate him will now shy away from doing so because he posted sexually-explicit material on the web at all, whether or not he was within his own rights to do so, and this will offend beyond repair the critical population of Prude-Americans who are likely offended by the idea of anyone, anywhere, having sex in anything other than the missionary position in a darkened room and/or actually enjoying it. There are plenty of other super-smart libertarian-leaning judges who could be nominated in Kozinski's stead.

A Cool Place Americans Can't Go

The Wife and I had dinner tonight at a new restaurant in town, called "Pars: Fine Persian Cuisine." Leaving aside the annoying subtitle (restaurants should not have subtitles), I'd never had a lot of experience with Persian food and was very curious to try it out.

The food was fantastic. Perfectly-grilled chicken in a mild lemon-garlic marinade, served with basmati rice cooked with saffron and pomegranate seed. Tender, moist falafel and garlicky hummus. A roasted eggplant, tomato, and bell pepper dip -- normally I like none of these things but it had a wonderful, hearty flavor and was a nice spread on the soft flatbread. The Wife had a wonderful fire-grilled salmon served on a bed of dilled basmati rice; the perfume coming off the rice was like nothing I've ever eaten in the States before. Dessert was a really interesting lemon-sugar ice with these tender, starchy noodles frozen into it. The Wife didn't care for it but I liked it quite a bit.

The restaurant had a large video monitor with a looped DVD of a variety of photographs and videos taken from within Iran. A great many were from Perseopolis (which is within the province of Pars, the part of modern-day Iran that lends its name to the word "Persian" and the name of the dominant language, "Farsi"), and a great many more showed places of astonishing natural beauty. What a glorious place Persia must be. So many ancient buildings, monuments, castles, sculpture, jewelry! It's obvious that Persia has a tremendous amount of history, a collection of diverse peoples, and it would be exquisitely interesting to spend time exploring there. We Americans are so ignorant of what's over there, what the people there are like, of the tremendous history and beauty of the place.

If you're like me, the word "Persia" conjures up irresistably romantic mental images of luxurious palaces, filled with beautiful women dressed in shimmery silks, flirting with fierce-looking medieval warriors in poofy pants and turbans with scary-looking scimitars; crowded, joyfully commercial souks were carpets and spices and bronze are sold after prolonged sessions of haggling; soaring snow-capped mountains mountains with beautiful forest streams running through them, tracing their way through meadows and farms into forbidding deserts before tumbling into the sea; beautiful carpets; ancient statues of great warriors and lions and horses and chariots; and the smell of saffron, cinnamon, pepper, garlic, and lamb roasting on a spit. But even more than this, there is a five-thousand year old civilization that has never collapsed into anarchy or a dark age; there is also a sophisticated, modern urban culture existing side by side with the glories of the past. What a glorious place Persia must be. Could be.

Sadly, geopolitics being what they are, this is unlikely to ever happen for the vast majority of Americans. Even now, our President is touring Europe trying to drum up support for isolating and containing Iran because of its nuclear ambitions and the decades-old tensions between Iran and the U.S.A. Along with the glories of the past that can be seen in some of the most amazing archeology imaginable, and along with the heartbreakingly beautiful natural environment, and along with the modern cities, there is also a theocratic autocracy capable of acts of astonishing evil and led by religious fanatics and ideologues who openly admire the historical example of Adolf Hitler. The uneasy, sporadically violent rivalry between Tehran and Washington that has persisted since 1979 doesn't look like it's getting better any time soon; it looks like we're getting in to a new Cold War with Iran instead. It will likely be a long time until diplomatic relations between Iran, which fancies itself the equal of the mighty empires and kingdoms that once held sway in this part of the world, and the United States. It will likely be a long time until someone like me can seriously contemplate tourism in Persia.

Which all very bad, because it seems that this part of the world probably has a lot to offer. Including some really good food, as it turns out.

All photos by Asana Mashouf, distributed under a Creative Commons license or released into the public domain.

Strong Dollar Politics

For far, far too long, the Administration has allowed the dollar to become weak. Astonishingly weak, especially as compared against the power of the currencies of other industrialized nations (the Euro, the Yen) and it seems to continue falling in order to keep pace with the PRC's Yuan.

So finally, the President has announced that he intends to do something about this. Before leaving for a series of diplomatic meeings in Europe yesterday, Bush announced that "A strong dollar is in our nation's interests. It is in the interests of the global economy."

Well, I'm glad that he's finally figured that one out. It's really quite simple: a strong dollar means we can buy more stuff from overseas, and therefore gas prices will fall. The downside is that our products will become relatively more expensive for other nations to import, so we tend to suffer trade deficits while the dollar is strong.

But unlike our intental budget deficit, I don't think a trade deficit is necessarily a huge problem. As long as we have healthy industries that do export, and as long as we continue to generate wealth, a strong dollar is a good thing. A strong dollar is only bad if our trade deficit is so large that our manufacturing infrastructre deteriorates and we cannot generate new wealth to replace the lost productivity. Otherwise, a strong dollar means that imported oil -- sweet, sweet, oil -- is cheap.

"Strong dollar" = "cheaper gas." Simple as that. That's why a strong dollar is good politics.

It's Not News, It's CNN

To the left is a screen capture of this morning's CNN front page. (Click for a more detailed view.) In my estimation, the biggest news stories out there are: 1) Iraq showing signs of rejecting a permanent U.S. military presence, 2) flooding in the upper midwest, 3) the Presidential election, 4) the government in South Korea breaking up, and 5) European-style gas prices becoming popular in the U.S. Well, "popular" may not be exactly the right word.

CNN, however, thinks I want to know how "Housing crisis hits 90210 hoods." And it backs up its description of high-end housing suffering price declines as "90210 hoods" with a photograph of a house in Atlanta, 3,000 miles away from the 90210 zip code. Maybe I wasn't aware that "90210" was now an adjective. Maybe the use of hip-hop words on headlines (e.g. "bling" and "hood") turns out to not be such a good idea, yo.

But the problem is deeper than that. It's not news at all that the high end of the housing market is suffering from price declines. Every segment of the market has been, and it's one of the two major symptoms of the economic problems facing the country. In the past year and a half, homes have lost an average of 15% of their value; in some markets (coastal cities and their outlying areas) it's twice that much. It's called the "bubble bursting" and it was pretty much inevitable. If I'd had have known it would last as long as it did, maybe I'd have waited a while to buy Soffit House, but then again I'm perfectly happy with buying when I did.

Elsewhere on the page, we can see a video report on how the Chinese earthquake has affected pandas. In political news, we can learn that Obama's VP selection team is thinking about a lot of people. Someone who will be known the rest of her life as "Incest Cellar Girl" has awoken from a coma. That's the best news CNN could find. Not a word about Iraq or South Korea, despite the fact that I have the "International" edition of CNN.

I didn't screen-cap it, but if you scroll down a bit, you'll get another video about "Just who is this 'Stephen Colbert' character?" Seriously? There are still people out there who don't know what the "Colbert Report" is?

Honesty In Traffic Court

Me: "Okay, thank you, Deputy So-and-So. Mr. [Smith], do you have any questions for Deputy So-and-So?"

Defendant: "No, Your Honor. I just came here today to see if the officer would show up, and he did. I just wanted to see if there was any way I could get my money back even though I don't deserve it!"

Everyone laughed, including the officer who wrote the ticket. I found the guy guilty, but thanked him for his candor and offered to let him go to traffic school.

Obama The Deficit Spender

I thought Bush's economic stimulus was financially and politically irresponsible. Which hasn't stopped me from griping that I still haven't got my damn check. I'll be paying interest on it for the rest of my taxpaying life whether I get the money or not, so I may as well take it, that's how I see it.

So I don't know why I should think any better of Barack Obama's idea of another stimulus of almost equal size. Indeed, seeing this proposal floated now, almost immediately after the last stimulus seems to have, um, not really done a whole lot (gee, who saw that coming?) suggests that Obama's economic platform may leave something to be desired.

Should Ira Isaacs Go To Prison?

Ira Isaacs is a filmmaker. Chances are excellent that you would never, ever, ever want to watch his films. I sure don't. Isaacs makes sexualized fetish films, often depicting bestiality and defecation. For the record: YUCK.

The Feds are prosecuting him. They intend to show six hours of his movies to a jury in Federal Court in the very near future -- in a courtroom presided over by noted judicial free-speech scholar Alex Kozinski, a judge frequently mentioned as a possible future nominee to the U.S. Supreme Court.

Here is the applicable legal definition of obscenity: "(a) whether 'the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest, (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." Miller v. California (1972) 413 U.S. 15, 24.

Lots of issues here, which are old news to freedom of speech scholars. Who, exactly, is the 'average person'? From what 'contemporary community' does this 'average person' come, and what 'standards' apply within that community? What is the difference between a 'patently offensive' description of sexual conduct, and a non-offensive description of sex? Who is to judge whether a putative work or art has or lacks 'serious literary, artistic, political, or scientific value'? A lot of today's advertisements, despite containing no nudity, is nevertheless powerfully sexually suggestive.

When Chief Justice Burger wrote the Miller opinion, he seemed to be taking dead aim at pornography. Thing is, pornography is pretty mainstream now -- millions of magazines and DVD's are distributed daily which are unabashedly pornographic. They depict things that, back in 1972, would probably have flunked the Miller test -- any of a variety of sex acts in various stages of completion, and quite apparently offered for no apparent reason other than to appeal to the viewer's prurient interest (that is, to engender sexual stimulation). It seems fairly clear that no substantial literary, artistic, political, or scientific exposition is proffered by this stuff.

And, by the standards prevailing in most of the country in 1972, much of what you can buy at the corner liquor store or order on pay-per-view in your hotel room today would have been considered 'patently offensive.' I suppose in some places and by some people, it still is. But nearly anyone I know these days takes the attitude of, "Well, if you get off on it, that's your business." Which is pretty much the opposite of what Burger was shooting for by making the focus on "contemporary community standards."

Can we agree that if your neighbor were to buy a copy of Penthouse at the corner liquor store, you would not find that particularly offensive? Seriously, why would you be offended? Why would you consider it any of your business? Why would you even care, other than a level of mild discomfort with the intrusion into your neighbor's privacy? If Penthouse is a bit too spicy for your tastes, what about Playboy? Or Maxim? Or the Victoria's Secret catalog? At some point, it's going to become being something for you to not worry about.

At some point, your neighbor's review of material dealing with sex falls into a category innocuous enough that you would say, "Hey, wait a minute, you can't prosecute someone for that." And you'd object to someone being prosecuted for making it, too.

But that road goes the other direction, and at the extreme other end of that road are the movies that Isaacs makes. And someone has decided to prosecute him for making his movies. Presumably, they could prosecute his customers for buying it, too.

What is the qualitative difference between Isaacs' movies and a topless Marylin Monroe supine on a red satin sheet? It's difficult to pin down a bright line, when you think about it, that anyone, anywhere can say "This is acceptable and that is not." I might not be bothered by Penthouse; you might be. Who can possibly say what "community standards" really are? At what point do we move beyond Isaacs and start getting into the acceptable clean, porn that I like? At what point do we start telling Frederick's of Hollywood how it can and cannot legally advertise its trashy lingerie?

My next question is, doesn't putting this sort of question to a jury unleash the power of peer pressure to create a dishonest result? How many jurors on an obscenity case are going to say, "Ewww, Penthouse; in my community, that sort of thing would be unacceptable," and then turn around and go home to play "Naughty Schoolgirl and Stern Headmaster," complete with costumes, paddles, and lube? Someone's buying all the non-prosecuted smut out there, and my strong suspicion is that in a jury room, it will take an exceptionally brave juror to step up and say, "Yeah, my wife and I read Penthouse and I think that's perfectly acceptable conduct within our community." Most jurors, I expect, will not be so brave as that.

Now, in terms of getting a conviction, Isaacs is a pretty likely defendant. The movies sound nasty, and not in a good way. But while almost everyone would be offended by watching them, he does somehow find an audience for his movies; he sells between seven hundred to a thousand movies a month. Let's bypass the issue of the consent of the adult actors in the movies for a moment. (I confess that I wonder if the actress reported in the Fish Wrapper, who cried during the entire production, really consented to what was going on. But like I say, for the most part the movies seem to have been made with the consent of adults involved. I'm unconcerned about the animals unless they were actually harmed.) So if there's ever going to be an obscenity conviction, this is going to be it.

But my real, ultimate question is, assuming that Isaacs is really guilty of obscenity, why are we prosecuting him for it anyway? What exactly are we being protected from here? This guy sells to a miniscule market. Only a tiny percentage of people are kinky enough to want this stuff. There is no evidence, at least that I've seen here, that these people (or Isaacs himself) are likely to commit any kind of violent or sexual crime. The charged crime here is obscenity, not drug use, not rape, not assault, not child molestation. The prosecution of this particular crime seems to be done because the government sees obscenity, a purely moral offense, as being inherently worthy of prosecution.

Either that, or the government is afraid that if it doesn't ever prosecute anyone for obscenity, its power to ever do so will atrophy and eventually obscenity will become protected speech. Not bloody likely, if you ask me.

I object. I might look at Isaacs' movies and say "Eww." Given the description of them, that's very likely what my reaction to them would be. But "Eww" isn't and should never be enough to put someone in prison. Because Isaacs filmed an actress performing a sex act with an animal, our government going to imprison him, for six years.

No. This is wrong.

I'm not saying that there should be commercials for smut sponsoring Saturday morning children's cartoons. Sexually-explicit material can be legitimately subject to reasonable time, place, and manner regulations. But sexually-explicit material should not be banned categorically. And that is precisely what the Obscenity Task Force is aiming at.

And the fight has to start with guys like Isaacs precisely because he's such an easy target. It has to start with Isaacs not because he's making a controversial work of art like filming Lolita. It has to start with Isaacs so the fight never gets to someone making a movie like Lolita, so it never gets to the point where mainstream sorts of expression -- Playboy, for instance -- has to even fear prosecution. Someone who wants to make a movie about wholesome, well-groomed young Christian kids reciting the Pledge of Allegiance complete with the internal religious reference does not need the First Amendment. (They might need a new job, because the movie sounds pretty boring.) Such a movie will never be prosecuted in the first place, so calling it "protected speech" is a purely intellectual exercise.

The fight starts with Isaacs because it's guys like Isaacs, who do and say unpopular things, who show us where the limits to our freedoms really are. And we should never, ever, ever forget that this is about what the limits of our freedoms are, not what makes a half dozen people say "Eww."

Life Artifically Created In The Lab

Well, that actually depends on how you define "life."

If by "life" you mean self-replicating organic molecules, and by "creating" life, you mean doing something to transform non self-replicating organic compounds into self-replicating organic compounds, then scientists have created life.

What they haven't created is spontaneously-organized DNA or its equivalent, or fully-functioning, single-celled organisms. Not yet, anyway. The takeaway from this is that we are now a significant step closer to having an understanding of how life may have (emphasis on "may") actually started.

By the way, this is neither proof or disproof of evolution. This is biology, yes; evolution is one facet of biology but this is something else. Evolution purports to explain the diversity of life; why there are so many different species of lifeforms. Evolution does not purport to explain the origin of life -- although it posits a common ancestor for all life forms, evolution does not purport to explain how that common ancestor came into existence.

But this is an issue that ID advocates need to address because ID, unlike evolution, purports to explain the origin of life. It's plausible enough to believe that long ago, similar sorts of conditions may have existed in the right kind of environment and a simple self-replicating organic compound came into existence -- purely through natural causes. That self-replicating organic compound may have then evolved in divergent ways, setting in motion a chain of evolutionary developments that have led to the diversity of life noted today.

It Kind Of Sucks To Be The Air Force Right Now

First, you lose some nuclear weapons. Well, not really "lose" so much as "can't account for their location for several hours while they're moved unaccountably and without orders 2,000 miles away from where they're supposed to be." That's not really "lost," is it? Jeez, they eventually found the warheads, after all!

Then, a $1.2 billion B-2 bomber stalls on takeoff resulting in what airlines antiseptically call a "major asset loss." Yikes. (The video is super-scary. The pilots ejected safely.)

Then, you get sued for letting your service academy get turned into an evangelical seminary.

Then, you get shown up in the national media as behind the eight-ball in your best bid for expanding your scope of authority into outer space. Seriously, when the government thinks NASA is more efficient than you, that's a damning indictment.

And then, your top brass get sacked in a really nasty Pentagon power play. They get replaced with transport pilots, not fighter jocks.

All the while, you're trying desperately to explain why risky and expensive manned aviation is still a necessity in an era of increasing reliance on relatively inexpensive drone aircraft manned by "Nintendo Aviators" in Tampa and Las Vegas.

The last straw is when your very existence becomes a subject of debate in the Presidential election. Will "Abolish the Air Force" become a campaign mantra? Can, and more importantly, will, a Navy aviator have to rescue the USAF? Because the thing is, getting rid of the Air Force would hardly be the end of U.S. military aviation. The Air Force split off from the Army in 1947; before that it had been the U.S. Army Air Force. There's no reason I can think of that pilots wearing green instead of blue couldn't do the same missions (bombing, transport, reconnaissance, and air-interception, in that order of importance) that are being done now. My buddy the Army infantryman once said "I have a lot of respect for what those guys in the Air Force do. It's a lot like serving in the military."

Yes, there's specialized training involved, especially for air combat missions. But the Army provides plenty of specialized and elite training anyway. Ask a Green Beret or an Airborne Ranger if the Army can provide specialized elite training. If you dare.

More Cool Obscure Law Phrases

Apparently in the Commonwealth of Virginia one of many civil procedure maneuvers available in a case like a contract action is to represipe a motion craving oyer. This is a ceremony where the nature of the obligation to which you are charged will be read out loud to you in the courtroom; there may be some sort of penalty if the plaintiff is unable to do this, like not being able to enforce the obligation because it cannot be stated. If so, it would be the equivalent of what in California is called a demurrer on the basis of uncertainty. Or maybe it's just a little ceremony they have do to in Virginia, an excuse for the judges to put fresh powder on their horsehair wigs and get out their silk robes.