IsThatLegal?

"Though he be a gentleman, remember, Eric Muller is also a lawyer."
-- Sparkey of "Sgt. Stryker's Daily Briefing"
"Relentlessly sensible and often important."
-- Michael Froomkin of "discourse.net"

In Tuesday's NY Times, Walter Cronkite raises the question of whether Peter Arnett is guilty of treason.

You read it here first, folks.

From CNN.com, just a couple of moments ago:

"Pentagon: Some Iraqi elite forces cut in half"

Siegfried and Roy are rushing to the scene, but this may be too big a job even for them.

... can be found here.

In response to my post on Peter Arnett, I'm getting lots of comments and emails saying, "look, wasn't he on Iraqi TV saying what everybody already knows?"

Well, he was certainly on TV saying what very many people (myself, for the most part, included) believe.

But surely it can't be true that a person who says something that many people know or believe cannot be guilty of giving aid and comfort to the enemy. Doesn't context matter? Let's do a little thought experiment: suppose Peter Arnett had made these comments through a bullhorn in front of a cheering throng of Saddam's "elite" (why, by the way, is it always "elite?") Republican Guard. That would be "aid and comfort" to the enemy, wouldn't it?

If you agree with the idea that telling a bunch of cheering Iraqi soldiers that "the American war planners misjudged the determination of Iraqi forces" would be "aid and comfort" to the enemy, then the question is how giving an interview to an Iraqi in military uniform, for broadcast on Iraqi television, is different.

By the way, I think the short answer to the question of whether Arnett is guilty of treason is "no"--but not because he lent the enemy no aid and comfort. It's because the crime of treason also requires proof of an intent to betray the United States, and I can't see any evidence of that here, let alone enough to get to a jury.

I've said it before, but I'll say it again. With Cat Stevens re-rerecording Peace Train, somebody ought to be tracking down Bo Donaldson and the Heywoods for a little reprise of "Billy, Don't Be A Hero."

It'll be interesting to see where the firestorm over Peter Arnett's interview on Iraqi TV will end. Some have maintained for thirty years that Jane Fonda was indictable for treason for her appearances in North Vietnam; a recently published book makes the case for an indictment of Fonda with considerable force.

Only U.S. citizens may be charged with treason, but Arnett naturalized as a U.S. citizen just before the first Gulf War.

Now to me, this doesn't seem much more than a bad lapse in judgment, maybe born of an effort to curry favor with the Iraqis in order to get better stories.

But read what Arnett said on Iraqi TV: "The war plan has failed because of Iraqi resistance. Now they are trying to write another war plan. Clearly, the American war planners misjudged the determination of the Iraqi forces." And "clearly this is a city that is disciplined, the population is responsive to the government's requirements of discipline," and "Iraqi friends tell me there is a growing sense of nationalism and resistance to what the United States and Britain is doing."

I would not be surprised if some people see these sorts of volunteered comments by an American journalist on Iraqi TV as "aid and comfort."

My wife and daughters and I spent Saturday at the annual Renaissance Faire in Raleigh, NC. Have you ever been to one of these things? They are perplexingly popular: People gather on weekends all over the country and all through the year to pretend that they are living in the 1500s in Tudor England. Why Tudor England is so hot is beyond me, but there it is: you don't see people gathering to pretend they are living in the Iceland of 965 A.D. or turn-of-the-century Vienna or 1950s Levittown. But London, 1568: that's where it's at, baby.

Here's a quick glimpse of what goes on at these things: We were met at the entrance gate by two young women. One of them had many whole carrots (leafy green stems and all) throughout her hair. The other offered us her services as a "weeper," which meant that if we had anything we were feeling sad about, she would do our weeping for us. She threw herself to the ground and shreiked--I mean shreiked--and sobbed hysterically for about 15 seconds, then got up, dusted herself off, took a sip of water from a cup offered her by the carrot woman, said "Good morrow, m'ladies" to my two very confused daughters, and went on her way to find someone else to weep for.

It is hard to describe how aggressively odd this sub-culture of Renaissance Faire-goers is. As far as I could tell, it revolves around kilts; long hair; cleavage; tankards; obesity; tankards, kilts, and obesity; weapons (especially for the wee ones!); obesity and cleavage; and armor. Oh, and did I mention cleavage?

And to make matters worse, everybody runs around speaking--very loudly--their own embarrassing version of what someone who has watched too much Monty Python must imagine Elizabethan English sounded like.

All in all, a very strange day in a bizarre little world.

I found this to be a very real, and very touching, little vignette.

I went to see the Carolina Hurricanes - Buffalo Sabres game last night at the RBC Center in Raleigh. The 'Canes outshot the Sabres by more than 2 to 1, but nonetheless lost (yet again), 3-1.

I noted that the Sabres left two of their players behind in quasi-quarantine in Buffalo because they'd been exposed to SARS.

I'm supposed to go to Seattle for a board meeting this Thursday, and notice that a couple of cases have been reported there. Seattle is a gateway to the entire Pacific Rim, so it'd make sense that if the illness were to appear in the USA, it'd show up first in places like Seattle. Hmmm. Should I be skipping this board meeting?

It turns out that the Crusades were the project of people Arabs called the Franks.

General Franks, would you mind changing your name to something a bit less provocative?

Read the brilliant advice that George W. Bush has been getting.

Link from atrios.

So Gary Hart has a blog.

Come on, folks. This is not a blog--if by blog, we mean a place where somebody candidly states his views or wonders aloud about things he's interested in and unsure about or reveals and processes aspects of his private life. (These are the main purposes of most of the blogs I visit.) This is going to be a bunch of tepid press releases and position papers, retyped to make them a bit more folksy.

I note that there's a comments section on the blog. I guess the idea here is to get a sort of "town meeting" feel, but you know that the comments section is quickly going to turn into The Worst of Talk Radio. Indeed, within the first couple of hours this morning, that's what started to happen, which caused the site's moderator to shut down the comments for "an hour . . . when he could not monitor them." It's way more than an hour later, and they're not yet up and running. Hmmm.

The moderator, by the way, tells the forum's users that "questions and challenges on are definatly game, there will be plenty of Hart supporters to answer the questions, along with eventually Senator Hart." Eventually Senator Hart? I thought this was his blog.

I supported Gary Hart back in '84--went door-to-door with his leaflets up in Southern New Hampshire. I really like the fact that he's considering running again. But this blog idea just seems totally phony.

General Tommy Franks today announced the opening of a new font in the war on Iraq.

"I am sick and tired of Arial," the general said, "and for that matter the whole sans-serif family."

From now on, all reports, commissions, orders, and even propaganda leaflets must appear in this font, which for the length of the Iraqi conflict will be known as the "Northern" font.

The oddest question during yesterday's Supreme Court argument about the constitutionality of prohibitions on homosexual sodomy was Justice Scalia's. Tony Mauro reports the question this way:

Scalia sarcastically posited a hypothetical in which laws in many states against "flagpole-sitting" are repealed. "Does that make flagpole-sitting a constitutional right?"

"Flagpole sitting"?!?

Where on earth does Scalia come up with this stuff, you might wonder.

Well, look at this photo of a flagpole sitter, and see what comes to mind.

Or, to put a finer, umm, point on it, consider this:



What was Scalia thinking? You be the judge.

In a comment to my most recent post, Prince Roy (whose site, by the way, has nice Sichuan recipes) takes me to task for quoting the passage from the Christian Science Monitor about how some Iraqi nationals do not condemn the interview component of Operation Liberty Shield: I'm "stretching reality a bit," he says, "in an attempt to justify these 'interviews' by suggesting they are well-accepted among the Iraqi Americans."

But I'm not trying to justify the interviews by suggesting they're well accepted. If the interviews are justified, it's because they make sense and do not violate the law--not because some Iraqi Americans support them.

Prince Roy is right, of course, when he says in his comment that the compliant reaction of some Iraqi Americans might best be understood as a measure of their fear and their desire to be seen as loyal. That's how the leaders of the Japanese American community reacted to the Roosevelt administration's measures back in 1942, and their reasons were fear and a desire to be seen as super-patriots. So I think the lengthy passage from the Christian Science Monitor has minor significance at best. I included it only to correct a misimpression that the reaction of Iraqi Americans has been monolothic.

Talkleft joins Atrios in condemning the FBI's program of interviewing some Iraqi nationals and Iraqi-born U.S. citizens since the start of the attack on Iraq. Atrios said the program is "fucking stupid" and "wrong on many levels"--though we still haven't been told what those levels are, or whether Atrios agrees with David Cole that the program is a repeat of "what we had during World War II with Japanese Americans." Talkleft locates the outrage a few years later (than the Japanese American internment, that is), saying that the program "sounds ... just like the communist witch hunt in the 1950's, shades of Joe McCarthy." Wow. Them's big guns.

I'm waiting to get a better handle--from Atrios and Talkleft both--on exactly what is wrong with the program. Atrios hasn't told us anything; Talkleft has mostly cited passages from articles in which interviewees and their advocates talk about how uneasy the interviews make them feel. Although I don't really think that the wisdom or legality of the program ought to be a function of how the Iraqi community views it, I'd note that Talkleft's citations are selective: Talkleft omits, for example, this lengthy passage from the Christian Science Monitor:

But many leaders in the Arab community say they don't mind being asked to come forward, as long as FBI agents are professional. Some Iraqis, coming from a country where disobeying the government is not an option, are amazed that they can refuse to answer questions.

Indeed, before starting the interviews, FBI agents made a concerted effort to meet with Arab-American leaders and explain what they were after. That's paid off, says Bob Doguim, spokesman for the Houston division of the FBI. He says his office has already talked to a couple of hundred local Iraqis - and no one has been detained on immigration violations as a result.

He adds that the interviews have been "very well received" and are providing important "long-term" information for government agents across the United States.

"People may think that some of the questions sound silly and irrelevant," says Agent Doguim, "but the purpose is to educate ourselves about the region, the people, the culture." From an investigator's perspective, he adds, all the technology in the world can't compare to face-to-face interviews in gathering such information.

Another important part of the processes, says Doguim, is to let Iraqis know that they can and should report instances of retaliation against them.

One Iraqi interviewed last week said he felt it was his duty as an American to participate, and wanted to do anything he could to help resolve the conflict in his native country. "I think within the Arab-American community there are many people who worry about civil liberties and persecution," says Subhi, a graduate student at Rice University who preferred that his last name not be used. "But I was basically eager to let them know our story. I didn't want them to have doubts or questions about our status, and I wanted to resolve any questions they might have. We have nothing to hide as Iraqis."

Subhi was born in Baghdad and moved to the United States with his family in 1985. He said he didn't feel intimidated or uncomfortable during the interview, and viewed it as a kind of governmental outreach program.

"It's creating an open dialogue with people who I feel are looking to act in America's best interest," says Subhi.

I include this lengthy passage not to argue that the Iraqi community in the USA either does or ought to see the program of interviews as non-threatening. I imagine that many of the interviewees do see the interviews as at least mildly threatening, and that some see them as terrifying. It's worth noting, though, that the community's response is not the monolith that Talkleft's citations make it out to be.

Far more important than the question of how the program is being perceived is the question of whether the program is defensible on the merits. I've argued here that it is, and once Talkleft and Atrios explain what they think is wrong with it, I'll respond.

Atrios and I have been debating the FBI interview component of “Operation Liberty Shield.” (Why oh why must the government give its actions these horrid and boastful names? What would be wrong with, say, the “Wartime Security Plan,” or something less Orwellian-sounding?)

I have maintained—erroneously, I now conclude—that the FBI has been seeking interviews exclusively with Iraqi nationals in the United States, and not with American citizens of Iraqi ancestry. Now, when the government describes its policy, it refers only to "Iraqi-born individuals," and I guess I assumed that meant Iraqi nationals. But it is quite clear from press reports that some number of American citizens of Iraqi ancestry are also being interviewed.

From all accounts, what I conclude is this: the government’s program of interviews is directed at about one fifth of all Iraqi nationals living in the USA and some unknown number of Iraqi-born individuals who have naturalized as U.S. citizens. I have seen no reports of requests to interview American-born people of Iraqi ancestry.

Let me now ask Atrios to make clear what he has thus far not say in the discussion: what is the significance of the fact that the FBI is seeking to interview some Iraqi-born American citizens? Atrios’s style is typically (and refreshingly) clipped, but all he has told us thus far is that the government’s program is “wrong on . . . many levels” and “fucking stupid.” If we’re going to talk about the wisdom and legality of the government’s actions, that’s not much to go on. So Atrios, could you say a bit more about what’s wrong with the government’s seeking interviews with Iraqi-born people during a war with Iraq? David Cole of Georgetown Law School, a smart guy whose work I very much admire, is saying that the program is “exactly what we had during World War II with Japanese Americans.” Is that your view too?

Many of the members of Iraq Peace Team are Americans. Check out their site.

The Constitution says that treason consists of "adhering to the enemy, giving him aid and comfort." Are any of the activities of Iraq Peace Team treasonous?

I ask this question in an entirely open-ended way; I'm not implying an answer.

Look who's distributing humanitarian aid!

War protesters planted a mock bomb between the Golden Arches of an Australian McDonald's restaurant yesterday.

Last week French protesters smashed the windows of a McDonald's restaurant and sprayed obscenities on the walls.

Mayor McCheese could not be reached for comment.

Via Talkleft, word that all 6 of the defendants in upstate New York who were charged with training at an al Qaeda camp will plead guilty.

Surfing today, I came across a new blog about the future of certified public accountancy. (Who, I wonder, is going to audit the site's traffic counter?)

So now I've decided to take nominations for the web's most boring blog. Leave a comment!

(Note: nominating IsThatLegal will only be funny the first time.)

Two death penalty cases have been pending--briefed and argued and awaiting decision--for five and one-half years in the Wyoming Supreme Court. Only two of the five Justices who heard argument in the cases are still members of the Court. Incredible.

ABC. CBS. NBC. FOX. CNN. MSNBC. CNBC. VH1: When it comes to news coverage, especially during wartime, we here at IsThatLegal know you have choices.



Make IsThatLegal your number 1 news source for all McDonald's-related breaking developments.

(Note that under Article 13 of the Fourth Geneva Convention, "prisoners of war must at all times be protected, particularly against acts of violence or intimidation and against insults and public curiosity.")

Thanks to Jenny for bringing the photo to my attention.

A second defendant in Buffalo, NY, has pleaded guilty to providing material support to al Qaeda. You may recall that these are the six young men, all American citizens of Yemeni ancestry, who were charged with attending and training at an al Qaeda camp early in 2001.

This defendant's admissions at his guilty plea hearing were, I think, quite troubling: he admitted in court that he knew Osama bin Laden was associated with the camp he attended, and that while he was there, he heard bin Laden address a group of 50 suicide bombers.

True, this occurred before 9/11/2001. But if this young man also knew that Osama Bin Laden was involved in the 1993 bombing of the World Trade Center, the 1996 killings of 19 U.S. soldiers in Saudi Arabia, and the 1998 embassy bombings in Kenya and Tanzania, then I'd say he's getting off rather easy with a plea to a single count of providing support to a terrorist group and an eight-year term of imprisonment.

Monkeytime has an interesting first-person account of anti-war protests disrupting a fundraiser for Sen. John Edwards at the headquarters of the North Carolina Democratic Party. More photos here.

Atrios, an influential fellow in the blogosphere, contends on a comment at this site and on his own site as well (the link to the specific entry on atrios's page is broken, but scroll down a bit and you'll find it) that the FBI's program of interviewing Iraqi nationals actually extends to American citizens as well. For proof he links to a story out of Indiana, but that story says nothing about interviews of American citizens. It does say something about one man who was granted asylum in the US, but a grant of asylum does not confer U.S. citizenship--in fact, it doesn't even confer a right to permanent residency.

In the meantime, the government maintains that the interview component of Operation Liberty Shield extends only to Iraqi nationals in the United States--not American citizens of Iraqi ancestry.

The distinction between enemy aliens and American citizens is an important one, as I've argued at some length here. To all appearances, the government is observing that line, in several very important ways. It's something the government didn't do 60 years ago. That's progress, and the government deserves credit for it. It doesn't deserve to have its plan mischaracterized so that it can be criticized.

In the days and weeks after September 11, we were awash in American flags--on houses, on cars--everywhere. Every convenience store's letter board had "God Bless America" up where "Big Gulp Just 99 cents!" would ordinarily be.

Perhaps this is just a local phenomenon here in Chapel Hill, but I have noticed absolutely nothing of the sort since the start of the war on Iraq. In fact, I've seen no visible evidence of any sort of upsurge in patriotism. Is this true where you live? What, if anything, explains the contrast?

Some are criticizing the questioning of Iraqi nationals in the USA as “racial profiling.”

The program might be subject to criticism on a couple of grounds: that it is directed at too many people who are likely to know nothing about anything, or that it is actually just a pretext for uncovering and busting people for immigration violations. (As it happens, the early indications are that both of these criticisms are groundless, or nearly so. The program is not even targeting all Iraqi nationals in the USA; it is targeting only about one-fifth of them—about 11,000 out of about 50,000 aliens. Second, after thousands of interviews in the last few days, there has been “only a handful” of arrests. (Registration to the NY Times might be necessary to view that link.))

But the program is categorically not open to criticism as “racial” or “ethnic” or “religious” profiling. And that matters a lot: racial profiling has (rightly) become a radioactive concept in the debate about American law enforcement policy. It is a serious accusation, and should not be leveled carelessly.

To “racially profile” a suspect is to attribute suspicion to him on account of his race, when his race is, at very most, somewhat statistically correlated with the incidence of a crime. (Thus, if the government stops just Asian passersby in a city neighborhood because of the fact that Asians sell or use a particular drug at a higher rate than others in that place, that would be racial profiling.)

The government’s program of interviewing Iraqi nationals in the USA is not attributing suspicion to anybody on account of their race. It is attributing suspicion to pepole on account of a number of facts: (1) we are at war with the country to which they owe loyalty (as a legal matter), and (2) because of that, they are likelier than another person either (a) to wish this country ill while we decimate Iraq, or (b) to know other people who wish this country ill, or (c) to know something about conditions in Iraq that might be useful to the military effort or to the post-war reconstruction of Iraq.

That, folks, is not racial profiling. It’s not that Iraqi citizenship is just statistically correlated to (a), (b), or (c) above; it’s that Iraqi citizenship would be constitutive of (a), (b), or (c) above. The notion is that an Iraqi national is likelier than another person to wish harm on the United States because of his/her nationality. We’re bombing and shooting the his/her country into oblivion, possibly endangering his/her relatives or old friends, and his or her Iraqi nationality therefore supplies a reason for anger and potential thoughts of revenge that another person of a different nationality would not have, or gives him or her knowledge that another person of a different nationality would not have.

Is this inference going to be false as to most Iraqi nationals in the US? Undoubtedly. Is the inference positively perverse as to some Iraqi nationals who, by virtue of their Iraqi nationality, might wish Saddam a more excruciating death than anybody else in the USA? Sure. A personal example: My dad and his parents, German Jews who barely escaped Hitler (after my grandfather did a brief stint at Buchenwald), arrived in the USA in April of 1941, and on December 8, 1941, became enemy aliens because the government still saw them as Germans (even though, had they stayed in Germany, Germany would have killed them). As enemy aliens, they were questioned by the FBI; their home was searched and a radio was taken from them; they were not allowed to travel more than 5 miles from their home without permission. All because of an assumption that my grandparents’ true loyalties were to Hitler. Absolutely perverse.

But the fact that an inference drawn from citizenship will often turn out to be false doesn’t turn the program into “racial profiling.”

What matters here is what the government is actually doing with and to Iraqi nationals—not the mere fact that it is taking any action at all. If all agents are doing is asking some questions for a half hour and then letting people go on their way, that is careful police work. If, on the other hand, it’s detaining people, confining them to their homes, taking their property from them, and such, without regard to how they actually answer the agents’ questions, why, that’s an outrage, and it’s stupid, and it’s illegal. But it’s not profiling.

Talkleft, in a comment to an earlier post on IsThatLegal, expressed surprise that I am not condemning the notion of interrogating Iraqi nationals, in light of my work and expertise on the Japanese American internment during World War II. But the program that the government announced this week to interview Iraqi nationals once the war began does not bear much resemblance to the draconian and punitive program that the Roosevelt administration put into place in the days after Pearl Harbor (in which nearly 2000 Japanese aliens were incarcerated, without questioning and without charges—even immigration charges). And of course it bears essentially no resemblance to the enormously punitive program of eviction and incarceration that the Roosevelt administration brought to bear on 70,000 American citizens of Japanese ancestry between the spring of 1942 and the end of the war in 1945.

Talkleft is always topical and provocative, but I think they're getting "Operation Liberty Sweep"--at least in its application to Iraqi nationals--dead wrong.

There are (at least) two things going on right now: voluntary interviews of upwards of 11,000 Iraqi nationals, and arrests of some Iraqi nationals on immigration charges. Of the entire program, Talkleft writes:

Nonetheless, these are round-ups of people who have not committed a crime. They are being selectively targeted because of their national origin. While the U.S. may have every legal right to deport them, it should not single them out solely because we are at war with their home country. Whether here legally or not, once here, they are also entititled to equal protection and due process under the law. This is racial, ethnic and religious profiling at its worst.

Let's distinguish the interviews from the arrests. Talkleft places the word in quotation marks--"interviews"--presumably to imply that they are really something other than voluntary interviews. But reports yesterday and today are to the contrary: The FBI is working to ensure that the interviews are respectful and non-coercive. In Philadelphia, a mosque volunteered its cooperation with the effort. Of the thousands of interviews already completed, only "a handful" of immigration arrests have ensued.

But far more importantly, a program of questioning Iraqi nationals during a war with Iraq is not racial profiling--let alone "racial, ethnic and religious profiling at its worst." We are right now at war with Iraq. It is entirely sensible to assume that a person in the United States who holds Iraqi citizenship, and therefore at least as a matter of law owes Iraq allegiance, would pose a greater risk to American interests than a person who holds, say, Swedish citizenship. Now, it is undoubtedly the case that many Iraqis in the United States are here because they opposed (or were victimized by) Saddam Hussein's regime, and that they would be less likely than the average person to try to undermine the American effort to topple him. But the government is seeking interviews with only about one-fifth of the total number of Iraqi aliens in the country, which suggests to me that there is more to the government's method of selecting interviewees than the simple fact of Iraqi citizenship.

I think that something like the opposite of what Talkleft says is true: the government should single out Iraqi nationals in the US for special attention during a war with their home country, and, indeed, would be grossly negligent not to. Now I say "special attention," and that's just what I mean--not detention, not arrest, not internment, not coercion. But voluntary interviews? Or, in cases that present some factor of concern, heightened observation? How could the FBI not do that? The fact that we are at war with their home country is not, as Talkleft implies, a complete irrelevance.

The headline to this CNN story is: "U.S. flag flies over Iraqi port."

I hope the military has the good sense not to do anything visible like this that might be interpreted as an assertion of U.S. sovereignty. (And I say this even if, in fact, that would be an accurate depiction of the legal status of that occupied territory.) I have to think that in the eyes of the Arab world, televised images of American soldiers pulling down an Iraqi flag and running up an American flag in its place will bring the Crusades and colonialism rather quickly to mind. Not exactly what we're trying to accomplish, is it?

UPDATE: Apparently American forces have now taken down the U.S. flag that they ran up a flagpole earlier in Umm Qasr.

I've heard of filing briefs in court. But dropping them?

At the end of a generally worrisome Associated Press story about Justice Department actions directed at Arabs and people of Muslim faith is this little piece of investigative genius:

Also Wednesday, the FBI said in its weekly bulletin to 18,000 state and local law enforcement agencies that police should watch closely for any suspicious activity by vehicles carrying Iraqi diplomatic license plates. These plates, issued by the State Department, are distinguished by the letters TSD after the numbers.

The vehicles are attached to the Iraqi mission to the United Nations in New York and to an Iraqi office in Washington. They can only be driven in the five boroughs of New York City and a 25-mile radius of downtown Washington unless permission to go elsewhere is granted by the State Department.

Pssst. Director Mueller? Attorney General Ashcroft? Keep this quiet--this is just a tip from an old law enforcement hand--but if they're really crafty, they'll take off the diplomatic license plate!

This one made me laugh. And you know, I've often wondered what it must be like to work in a place like that, day in and day out.

CNN is reporting that "dozens" of Iraqis will be detained at the start of war with Iraq.

This will be a marked improvement, at least numerically, over the two or three days immediately after Pearl Harbor, when upward of 1600 Japanese aliens were arrested. Let us hope that the relatively small numbers suggest a foundation to the detentions.

This, by the way, is separate from the questioning of some 11,000 Iraqi nationals that the government plans to undertake--questioning that the government is describing as "voluntary."

Again, if these descriptions are accurate, these are hopeful signs of moderation.

Jenny has some incredible antiwar posters up at her blog. Whether you're with the war or against it, you gotta admit: some of them are damn funny. Here's my favorite.

Incidentally, I've learned that the posters were created here, and that you can buy a book of them via amazon.com from that site.

The Christian Science Monitor has a wonderful editorial today reminding us all that those who protest the war, just like those who support it, are patriots.

This is a good moment to recall the experience of Japanese Americans during World War II. When, in 1944, the government began drafting young internees out of the internment camps and into the U.S. Army, the Japanese American community confronted an enormously important choice. What was the patriotic thing to do? To comply notwithstanding the deprivation of their civil rights? Or to resist in order to protest the deprivation of their civil rights?

Most chose to comply; many went on to serve in the racially segregated 442nd Regimental Combat Team; and the bravery and sacrifices of that unit are the stuff of legend.

But about 350 young men chose to protest. All were prosecuted for draft evasion, and all but 26 were convicted and jailed. And, most poignantly, to this day the Japanese American community continues to debate whether the veterans or the resisters were the patriots, or, indeed, whether it is possible even to acknowledge the draft resisters without demeaning the veterans and undermining the image of Japanese American patriotism.

The Christian Science Monitor's editorial reminds us that this is a deeply false choice.

CBS News is reporting that the FBI plans to question up to 10,000 Iraqi nationals--and even some recently naturalized citizens--in the US upon the start of war. (Thanks to Talkleft for bringing this one to people's attention.)

I sincerely hope that the civil liberties community will not react with the jerk of a knee to this story, and assume that any news story with the words "FBI interrogation" in it is a bad idea. It makes perfect sense that, during a time of open hostilities between United States and Iraq, American law enforcement would keep tabs on Iraqi nationals. I think it would be negligent of the government not to do so.

On the other hand, there are reports that the FBI questioning may be targeting non-Iraqis, and that is very troubling. I hope that the mainstream press will keep an eye on this developing domestic situation once the bullets and bombs start to fly. The potential for blundering excess at moments like this is huge.

Tom Toles is pretty funny today.

Not surprisingly, civil rights groups are already beginning to criticize the Homeland Security Department's announcement that asylum seekers from mostly Muslim countries would be "temporarily detained" so that the government has time to ascertain that they are who they say they are.

The Republican leadership comes in for criticism in Mark Shields's most recent CNN column for their "selective outrage" in condemning Jim Moran's comments about Jews while remaining silent about Howard Coble's comments about Japanese Americans.

Homeland Security director Tom Ridge today announced a plan of heightened surveillance and security in anticipation of war with Iraq. It includes a plan for "temporary detention" of asylum seekers from countries with known terrorist ties. "The detention of asylum seekers is predicated on making sure that those seeking asylum are who they say they are and are legitimately seeking refuge and not seeking to cause harm to our shores," Ridge explained.

Details on this plan are quite sketchy right now. I looked but found nothing on the question of how long "temporary" will be, what the conditions of detention will be, and even which countries are affected. (Right now all that is being reported is that the plan will affect asylum seekers from "Iraq and over 30 other countries.")

I reserve judgment on the plan until I can see the details, but I confess that I'm initially a bit wary. The administration has, until now, not been able to draw a persuasive connection between Iraq and terrorist attacks inside the USA by people from other Arab and/or Muslim countries. I can certainly see the sense in temporarily detaining Iraqi asylum seekers. But what, other than ethnicity-based speculation and fear, is behind the notion that, say, an Algerian or Yemeni asylum seeker might in fact be a person intent on committing pro-Iraqi acts of terrorism?

Instapundit, commenting on last night's presidential address, praises the president: "He looked rested," says instapundit.

This is a good thing?

I think that to the extent that it's real (and not just makeup), it's scary.

When my president is in the midst of ordering what will undoubtedly be the deaths of many people, some of them innocent civilians, while at the same time radically transforming our relations with our allies and possibly tanking the United Nations, I do not want him looking "rested." I want him looking like he has got the weight of the world on his shoulders--which, after all, he more or less does. Isn't this something that we all at some level admire about Abe Lincoln--that when he was in an agonizing situation, it showed in his face that he was agonizing?

If he is really sleeping well at a time like this--or even has time to get enough sleep to look rested--that to me is a sign that he has no business handling a situation this grave. Naturally I don't want him up there on national TV shaking and trembling and popping Xanax. But a sense that the crisis is taking some sort of toll on him would be comforting.

Atrios is calling the Frontline episode that I raved about below "GOP TV." Huh? In what way? In the sense that it accurately and vividly depicts Iraqi efforts at developing weapons of mass destruction in the teeth of UN resolutions and its own assurances that it was fully complying with disarmament orders? In the sense that it shows the Wolfowitz/Rumsfeld/Cheney group refusing to give up on its worldview until it found a president it could bend to its will? This is GOP TV?

I happened to catch about an hour of the PBS show "Frontline" last night. The program was called "The Long Road to War," and is a refreshing break from all of the crappy reporting that passes for news coverage on ABC, CBS, NBC, CNN, and Fox. The program is an eye-opener, both in its clear depiction of the extent of Iraqi defiance of the UN's disarmament resolutions, and in its clear depiction of the enormity of the changes in the nation's national security strategy that are being worked by a tenacious group of insiders (primarily Rumsfeld and Wolfowitz). It is riveting television, and will undoubtedly have at least some impact on your assessment of the rightness or wrongness of what the Administration is about to do in our name.

You can watch part of it online here.

I was talking with a friend this morning who wondered how Russian dressing survived the Cold War. This is actually something I've thought a bit about. Here's my theory.

Have you ever noticed that Russian dressing is the only salad dressing with two names? Russian dressing and Thousand Island. (I'll be damned if I can tell the difference. Yet often at restaurants I'll ask for Russian dressing and the waiter will grimly respond, "sorry, sir, we only have thousand island.")

My guess is that "Thousand Island Dressing" was a name cooked up (hah!) during the Cold War, undoubtedly by one of Senator Joe McCarthy's staffers, to replace the name "Russian Dressing," but that the name never really caught on. So both names--Russian Dressing and Thousand Island Dressing--survive.

Incidentally, you may ask: Eric, why do you suspect that "Thousand Island Dressing" is a McCarthyite relic? Well, ask yourself this: In which state is there a lake called "Thousand Island Lake?" That's right: Wisconsin. And what state did Joe McCarthy represent? Wisconsin.

Coincidence? I think not.

Update: A reader points out that Russian Dressing often has a distinctly reddish color. My point exactly.

In reference to the story about the patriotism-inspired rodeo brawl, a reader rolls his eyes and says:

Because one idiot yahoo out of a population of 275 million did something stupid, and because his actions could conceivably be linked to our leadership's rhetoric, that just goes to show that Bush is doing everything wrong.

Well, I didn't say Bush is doing everything wrong. (For example, I think it's just great that he's keeping up his rigorous fitness regimen during these times of crisis. Truly inspirational.) But if you think the xenophobia-passing-as-patriotism we're seeing now is just "one idiot yahoo out of a population of 275 million," there I have to disagree. How about this story--also from Texas, though I'm sure that's a coincidence--about somebody spray-painting "Scum Go Back to France" on the garage door of a woman who moved to the US from France 23 years ago? Just another single idiot yahoo? Or is there something a bit bigger and uglier afoot here?

Talkleft yesterday blogged a pathetic story out of Texas in which a yahoo by the name of McCambridge in the crowd at a rodeo in Texas allegedly started hassling another member of the audience who didn't stand up for the playing of Lee Greenwood's song "Proud to Be an American." According to the report, McCambridge spit on the man, spilled beer on him, and, evidently noticing the man's dark complexion, taunted him to "go back to Iraq." (The taunted man was half Italian and half Hispanic.) It turned into a brawl when McCambridge pulled the man's ear.

The story reminded me of a disturbingly similar story from 1919, during the first Red Scare, in which a sailor shot and killed a man at a public pageant when the man refused to stand for the playing of the national anthem. The crowd cheered.

These are dangerous times.

The town of Carrboro, North Carolina (just next door to Chapel Hill) calls itself "The Paris of the Piedmont," but this past week that nickname took on new meaning when the Board of Aldermen proclaimed April "French Trade Month." That's right--in order to show support for France's opposition to the impending war, and to mock the "Freedom Fries" nonsense of this past week, the Carrboro Board of Aldermen voted to encourage all Carrboro residents to consume French products in extra abundance during the month of April.

So far, so good. But it seems that the Board could not agree on the contentious issue of what position to take specifically on the important "french fries" vs. "freedom fries" issue. Some were in favor of calling them french fries, but others were so distressed by the nutritional deficits of fried potatoes--call them what you will--that they effectively blocked any resolution of the issue.

A compromise, under which the items in question would be called "French Oven Baked Potatoes," failed.

The North Dakota Supreme Court has a blog, of sorts, and I got a link for my blog entry about congressional subpoenas of federal judges. Very cool.

Representative Mike Honda has issued a statement slamming the Republican leadership for the selectivity of its outrage. After Democrat Jim Moran of Virginia asserted at an anti-war forum that “if it were not for the strong support of the Jewish community for this war with Iraq, we would not be doing this,” Republicans from Tom Delay to presidential spokesman Ari Fleischer condemned his comments. (As, Honda might have noted, did the Democrat leadership; Nancy Pelosi asked Moran to step down from a minor leadership position as regional whip.) Yet, Honda notes, when Rep. Howard Coble volunteered his view that the internment of 120,000 Japanese Americans was the right decision in 1942, and that the Roosevelt administration undertook its program of incarceration to protect Japanese Americans, the Republican leadership was stone silent. And they were silent notwithstanding the fact that Coble chairs a Judiciary subcommittee with jurisdiction over homeland security.

It’s very easy to line up these two controversies and condemn the Republicans for their selectivity. And I agree with Honda that the silence of the Republican leadership on Coble was very troubling.

But I also think it’d be interesting to probe the two scenarios a bit deeper, and to explore what might be producing the difference in response. I’m not yet sure which of these rival explanations makes the most sense to me.

1. The first possibility that comes to mind is the one that I think Honda might have in mind: the Republican Party has a proclivity to racial insensitivity (except, one might add, when the race being disadvantaged is whites—think of the affirmative action debate—or when the individual being disadvantaged—think of Clarence Thomas and Miguel Estrada—is an atypically conservative representative of his racial or ethnic group).

Maybe. But there are other possibilities too:

2. The victims of Coble’s gaffe are mostly in California, a state that the national Republican Party has written off, whereas the victims of Moran’s are in states like Florida and New York and Illinois and New Jersey that the Republicans would hope to contest.

3. The victims of Coble’s gaffe are mostly Democrats and are likely to stay that way, whereas the victims of Moran’s are a group that the Republicans are, on several fronts, trying to move from the Democrat to the Republican column. (I refer here to the fact that Jews have historically voted Democrat, but Republicans are making a strong play for their votes.) I don’t know, by the way, whether it’s true that most Japanese (or indeed most Asian) Americans vote Democrat, but I’m guessing that might be so. If I’m wrong, I hope a reader will tell me.

4. Moran’s comment was about the here-and-now, whereas Coble’s was about “back then.” Remember: Moran said that Jews today are responsible for the impending war in Iraq. Coble said that Japanese Americans 60 years ago were interned for their own safety. So one might say that Coble merely has his history wrong, whereas Moran has his perception of today wrong. (I personally find this distinction unpersuasive, but it is a difference worth noting.)

Are there other potential distinctions? Let me know what you think by leaving a comment on this page.

Which of these distinctions explains the different reactions of the Democrat and Republican leadership to the Coble and Moran blunders? Let me know what you think by leaving a comment.

The blawgosphere was abuzz yesterday with news that James Sensenbrenner, Chair of the House Judiciary Committee, is thinking of issuing subpoenas for the case files of Chief Judge James Rosenbaum of the U.S. District Court for the District of Minnesota. According to its spokesman, the Judiciary Committee is interested in finding out whether federal district judges in Minnesota (and now, it seems, nationally) are imposing excessively lenient sentences in drug cases. The committee is asking for “Rosenbaum's records from his cases since Jan. 1, 1999, identifying drug-related cases in which he departed from sentencing guidelines,” as well as sentencing transcripts, the status of appeals, and copies of all decisions.

Judge Rosenbaum’s lawyer, Victoria Toensing, is calling the threatened subpoena “unprecedented.”

But it’s not.

In 1953, a House Judiciary Subcommittee subpoenaed federal district judge Louis E. Goodman to testify about allegations that judges and prosecutors were improperly interfering with the work of grand juries. It’s an interesting little story.

Back in 1950, an Assistant U.S. Attorney by the name of Charles O’Gara began presenting evidence to a grand jury of alleged misconduct by officials in what was then called the Internal Revenue Bureau. He had not sought the approval of his boss, the U.S. Attorney for the Northern District of California, and when the U.S. Attorney got wind of it, he instructed O’Gara to stop. O’Gara didn’t, and he was fired. The grand jury, however, wanted to keep going with the investigation, and began issuing subpoenas and seeking to file indictments, or at least a “report” on Internal Revenue wrongdoing. It was, as they say, a “runaway grand jury.” The grand jurors soon got themselves crosswise with the federal prosecutor’s office, and it dissolved without ever managing to press its investigation much further.

Eventually some of the former grand jurors began to complain publicly about what they saw as their mistreatment by prosecutors and judges in the district. The House Judiciary Committee formed a subcommittee to look into the matter, and that subcommittee’s investigators approached the federal judges in the district with the request that they relax the secrecy of the grand jury to allow the investigators to question grand jurors and witnesses about what went on in the grand jury.

Judge Goodman refused, citing the secrecy and dignity of the grand jury and the independence of the judiciary. He told a congressional investigator that grand jury matters could only be made public pursuant to the rules of criminal procedure, in judicial proceedings. The investigator asked him whether the subcommittee’s hearings did not count as judicial proceedings. Goodman replied, “That is just plain hogwash. Of course the committee is not conducting a judicial proceedingl”

The investigator reported to the subcommittee, at an open hearing, that Judge Goodman had called the subcommittee proceedings “hogwash.” In a fit of pique, the subcommittee then voted—along party lines—to subpoena Judge Goodman to testify about the runaway grand jury of 1950.

Newspapers reported that the subpoena to a federal judge to testify about judicial business was unprecedented.

Goodman showed up at the appointed time before the subcommittee, with the reporters’ lightbulbs flashing and a standing-room-only crowd. He had with him a statement signed by all of the district’s federal judges. When he indicated that he had a statement, a Congressman suggested that the subcommittee might hear Judge Goodman in executive session. Goodman, however, announced that “the statements I am to present on the part of the court will not be presented in executive session.” The crowd in the hearing room burst into applause.

Goodman then proceeded to read the statement, in which the judges indicated their refusal to comply with the subpoena. They said:

The separation (of the judicial, legislative, and executive functions) is founded on the historic concept that no one of these branches may dominate or unlawfully interfere with the others. The Constitution does not contemplate that judicial proceedings be reviewed by the legislative branch, but only by the appropriate appellate tribunals. The integrity of the Federal Courts, upon which liberty and life depends, requires that such courts be maintained inviolate against the changing moods of public opinion.”

The subcommittee chair mumbled something about how “further consideration” would be given to “Judge Goodman’s adamant refusal to answer questions.” By “further consideration,” he meant contempt of Congress proceedings, or impeachment.

But the subcommittee backed down, and Judge Goodman’s brave defense of the independence of the judiciary won the day.

(Incidentally, I know about this episode because Judge Goodman, whom I admire enormously, is the judicial hero of my book “Free to Die for their Country: The Story of the Japanese American Draft Resisters in World War II.”)

I hope that Judge Rosenbaum will follow in the footsteps of Judge Goodman and refuse Sensenbrenner’s efforts at intimidation. If there is a problem with the way in which Judge Rosenbaum—or any federal judge—is applying the federal sentencing guidelines, the place to solve that problem is in an appellate court, not before a congressional committee that is trying to make political hay out of sentencing patterns in drug cases.

Referring to my recent blogging about the impact of the pending "partial birth" abortion legislation on federal-state relations, a reader says:

Unfortunately (from your perspective at least) Roe v. Wade could be overturned on precisely the same federalism grounds you suggest in your blog post -- why constitutionalize a "right" to having a specific medical procedure? Personally, I'd be
willing to allow both issues -- abortion generally and partial-birth abortion specifically -- be settled on a state by state basis.

What's interesting to me here is the reader's assumption about my "perspective" on Roe v. Wade. Why, in any discussion that touches even indirectly on abortion, do people assume that the organizing idea of one's perspective must be one's view on the rightness or wrongness of Roe?

I was making a point that really had nothing to do with abortion: Republicans are just about as likely as Democrats to want a comparatively empowered federal government and comparatively disempowered state governments, so long as the comparatively empowered federal government is forcing on the states policies with which they agree. Nothing in that assertion entails any assertion about whether Roe v. Wade was right or wrong.

You'd have to assume that the Arab News, "Saudi Arabia's First English Daily," is intended to put the best possible face on the Kingdom for Western readers. With that in mind, read this story from today's edition--"Move to Employ Women in Factories Welcomed"--and let me know whether you think a slight shift in the editorial approach might not be warranted.

The next time someone starts yammering about how Democrats favor a big intrusive government whereas Republicans know how to protect the states from federal intrusion, ask him or her to explain today's vote in the Senate for a bill that bans doctors across the country from performing a specific abortion procedure.

How Appealing's got word that the First Circuit has affirmed the dismissal of the lawsuit that tried to get a judge to declare that Bush could not start military action in Iraq without a declaration of war. No big surprise there. What's perplexing is that it took the court 32 pages to reach its conclusion. If there is a good argument for the idea that a federal judge should pass on whether a particular U.S. military action in another country is or is not legal, I can't think of it. If there was ever an issue appropriate for dismissal under the doctrine that says courts lack subject matter jurisdiction over cases that present "political questions," this is it.

Ed Cone has a nicely written little piece up. History's repeating itself, he argues. Check it out.

The press are all over the story of Christiane Kittel, who woke up from a six-year coma at a Bryan Adams concert the other day.

What we are not hearing about, however--and I think this is an outrage--is all of the people who have gone into comas at Bryan Adams concerts.

I went for a beer with a friend last night, and he spent a while singing the praises of ABC News's page "The Note," a humorous insider's-politics site that lots of political junkies seem to like. I thought I'd check it out today. I went to their page, and discovered that "with the nation (and our network) preparing for the possibility of military action, we've suspended publication of The Note." Here are their reasons--so incredible that I think they're worth reproducing in full:

First, we suspect that the amount of strictly political news — the kind of stuff that is the meat and starch of The Note — is likely to dramatically decrease in the coming days.

Candidate trips will be cancelled; public events will become private; and the president will remain focused on the serious business of war. Congress might continue to try to move a legislative agenda, and politics, as always, will continue, but it doesn't feel to us like it will be as big.

In the Invisible Primary, this is a critical period. The first-quarter fundraising numbers; Congressman Gephardt's strengthening position in both substance and perception; how the candidates are dealing with national security issues — there is a lot going on. But even so, we think it can and should all wait.

Second, as regular readers know, The Note is consumed with things such as Jack Oliver's speaking schedule, the metaphysical importance of the middle initials of Mark Barabak and Kit Seelye, and other inside stuff that seems like it can wait a bit before we begin covering them regularly again.

A nation must always keep its sense of humor, but, for now, The Note's humor might not be the right national tonic.

Third, coverage of the possible war is going to require the bulk of the assets of ABC News.

It is really hard to know which of the three of these is the most disturbing. Let's take the third one last. How on earth is war coverage going to require the bulk of ABC News's assets, such that it will have to curtail its coverage of domestic politics? The Pentagon is obviously going to continue to keep the press way the hell away from the action (having learned the lesson of Vietnam). I'm sure ABC News is preparing to do lots of syrupy up-close-and-personal stories about soldiers and their families; that's probably what war coverage amounts to these days. But I wonder: will ABC continue to run its sports coverage? Will it cover the Stanley Cup Finals? The NCAA basketball tournament? Will it cover the Academy Awards? If Martha Stewart is indicted, will it cover that? If the killer of JonBenet Ramsey is discovered, will it cover that? The notion that ABC News will be so resource-starved that it has to pull the plug on a domestic politics report is just laughable.

Now the first reason: political news is going to more or less disappear during a war. Only if you and your fellow journalists say so, ABC News. I've always found the argument that the administration is going to war in order to distract people from domestic news quite cynical, but the sort of justification ABC News is offering here really makes me wonder.

Oh, and by the way: if you think domestic political news disappears during a war, look at the newspapers from 1944, when the jockeying for the vice presidential slot (along with FDR) dominated front pages. Or think about the Vietnam War. Maybe I'm crazy, but I think there were, oh, at least a couple of domestic socio-political stories that merited (and got) coverage in the mid- to late-1960s and early 1970s.

Finally, and most pathetically, the second reason: the somber national mood won't tolerate political humor. This is just depressing. Since when is solemnity in news coverage patriotic? I'm not suggesting wisecracks in the war coverage itself. But the notion that a war should cast some sort of a pall over reporting on everything is just remarkable.

Is this screen shot from CNN not priceless?



(Image courtesy of Baumis Betrachtung.)

A perceptive reader asks, "as the Germans are in the same camp as the French, will the restaurant [in the House of Representatives] be renaming hamburgers and frankfurters too?"

I don't really have time to respond to this important query, as I'm rushing off to the pediatrician with my daughter because of a case of Freedom Measles. I hope, though, that the House will take action on this pressing matter.

As I run out, though, I'd note that the Russians and the Chinese are talking veto too, so it's Freedom Dressing for me on my salad at lunch today, and tonight ... some mu shu beef at our local Freedom Restaurant.

There is at least one great joke lurking just beneath the surface of this story, but it would not be seemly for me to make it. I leave it to you.