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.

Of course everyone is blogging the hell out of the absurd decision of the House of Representatives to rename French Fries "freedom fries" and French Toast "freedom toast."

I noticed, however, over at the Volokh Conspiracy, that Eugene said this about the decision: "The French derive no glory from french fries or fries toast; it's no skin off their ass to deny this name to them. (Many a Frenchman would probably say "Fine by us -- we want no part of your parodies of real food.")"

But it's even sillier than that. Those aren't their names in the first place. The French do not call french toast french toast, and they don't call french fries french fries. (French dressing isn't french dressing.) And most Frenchmen wouldn't even know that Americans call those foods that.

Now excuse me while I go give my lovely wife a big Freedom Kiss.

A reader asks, a propos of the NPR story from this morning:

"Who is fearing the internment of Iraqi nationals? Since 9/11, I can't think of anyone who has seriously advocated the mass arrest and detention of foreign nationals from Muslim nations."

Why do you think the government has been requiring foreign nationals from Arab and Muslim countries to register with the INS? So it can send them birthday cards?

Prospect of War Raises Fears of Internment. Scroll down the page to the story with this title, and click on the link.

It features me and the very wise David Cole of Georgetown Law School.

OK, if this is not a testament to Glenn Reynolds's position at the pinnacle of the Blogosphere, I don't know what is. I just learned--from Instapundit--that I was on the NPR program "Morning Edition" this morning, talking about the legacy of the Japanese American internment. Now, I knew I'd been interviewed, but nobody had told me when the segment would run.

You know Instapundit is on top of things when he learns what you're doing before you do.

I'll post a link to the segment when NPR makes it available later in the day.

In the meantime, if somebody heard me and wishes to email me or leave a comment here and tell me what I said, I'd be much obliged. I hope I didn't say anything stupid.

Democrat James Moran of Virginia today stated that "if it were not for the strong support of the Jewish community for this war with Iraq we would not be doing this."

Howard ("FDR was just protecting Japanese Americans") Coble and Sue ("You gotta watch those convenience store owners") Myrick, step across the aisle here and meet Mr. Moran.

Remember the OJ Simpson case? So many people were so disgusted by the LAPD's investigative techniques--so convinced that the LAPD was guilty--that some concluded OJ must have been innocent. The idea, I guess, is that there can be only one bad actor in any criminal case, and if the government is the bad actor, then the defendant can't be. This is a very limited view of the world of criminal justice, of course. The truth is that there are bad, guilty criminals out there being pursued by bad, guilty cops.

Jane Mayer's piece in last week's (March 10) New Yorker, "Lost in the Jihad: Why did the government's case against John Walker Lindh collapse?" makes this old mistake. Mayer emphasizes, on the one hand, what she describes as Lindh's rather naive engagement with Northern Alliance and al Qaeda figures in Afghanistan, and on the other, what she describes as outrageous mistreatment and overreaching by federal authorities. The sense that I came away from the article with was that Lindh was a single-minded rube who, in his earnest commitment to his vision of Islam, genuinely did not know that he was living and training among terrorists. (I note, by the way, that Mayer's depiction of Lindh in this online interview (link courtesy of talkleft) is a good deal tougher on Lindh than her New Yorker piece. Curious.)

To be sure, the government's sustained efforts at keeping Lindh from the lawyer his father had retained for him stink to holy heaven, as do a number of other aspects of the government's investigation. Mayer deals severely--in most cases appropriately so--with the brutality and coerciveness of Lindh's handling and interrogation. She also deals severely--and I think less appropriately so--with the government's handling of Jesselyn Radack, a very young Justice Department lawyer whose internal advice her superiors and the FBI did not follow. Mayer reports that Radack was given a scathing job review a few weeks after offering her advice that Lindh should not be interrogated, and that she was essentially forced out of DOJ. Perhaps the bad job review was (as Mayer clearly implies) punishment for her advice--but Mayer does not know that, and anybody who has ever been involved in a job termination knows that there's usually more than just the fired employee's side to the story.

But the fact that many government agents acted like skunks doesn't mean John Walker Lindh didn't, or that he's deserving of any more of Mayer's indulgence than the agents. Yet Mayer tells us that she learned the following: during his military training at the Al Farooq camp in southern Afghanistan, a camp visited by Osama bin Laden three times during Lindh's short stay, a person Mayer describes as "an official at the camp" took Lindh into a room and asked him to sit down with him. This official asked Lindh "whether he'd like to do a martyrdom operation." Lindh said "no." The official continued: "Would you be interested in a U.S. or Israeli target?" Lindh responded that he was interested in fighting against the Northern Alliance, not in fighting against other countries. The official then said, "Whatever you do, do not tell other trainees about this private conversation." Lindh left the room and continued his military training.

Mayer reports that "Lindh claimed that [the camp official's] invitation didn't particularly register with him." And in Mayer's own view, the most she can say of this episode is that "Lindh's passivity in the presence of figures like [this camp official] is hard to fathom."

You can say that again.

This episode, in my view, demonstrates that Lindh was guilty of the crimes to which he pleaded guilty--violating an executive order banning the provision of support to al Qaeda--and that the more significant charges involving conspiracy to kill U.S. nationals may also have been supported.

Take a simple analogy: let's say that a person goes to work at a chemical manufacturing plant that is openly rumored to be engaged in the production of, say, methamphetamine. (That's "speed," by the way.) Our hypothetical employee goes to work on the loading dock, and he believes that the drums he's loading and unloading contain legal chemicals. But one day a top manager at the office takes him aside and says, "would you be interested in working in our methamphetamine production laboratory?" Our employee says, "No. I just want to keep loading and unloading chemicals on the loading dock." The manager says, "OK, but please do not tell anybody about this conversation." The employee says, "OK," and then goes back out to the loading dock and continues loading and unloading chemicals. A couple of weeks later, the DEA sweeps in and arrests the management of the chemical plant--and our loading dock worker--on charges of conspiracy to manufacture and distribute methamphetamine. Would you agree that our hypothetical employee was guilty of those charges?

Or would you just maintain that his continuing to work on the loading dock was "hard to fathom?"

Lindh was guilty, and so were some of his interrogators. There was room enough in the pages of The New Yorker for both of those truths.

Reader G. Dearing responded as follows to my post below on the Albany mall t-shirt-protest case:

The "people at the teriyaki chicken stands" are rent paying tenants marketing to mall traffic and acting in accord with their lease. As are the clipboard surveyors. Mall security would be quick to discourage this activity if not within the bounds of the lease agreements. The tenants expect that the mall will do it's part to fulfill lease agreements by maintaining order and excluding outside solicitors and provocateurs. You go to a known place of commerce, you get the sales pitch. Bummer. But that's the risk you take. A risk somewhat mitigated the the exclusiveness offered to and by the mall tenants, as opposed to, say ...main street.

The reader is, of course, right, at least at one level. The teriyaki chicken pushers and the clipboard surevyors are mall tenants, and protesters aren't. But that wasn't what I was exploring. I was exploring whether the sort of activity that these protesters were engaging in was basically like, or basically unlike, other activity that the mall permits. In the end, I suspect that it's basically unlike the offering of chicken, and basically like the clipboard surveys. In fact, the clipboard surveys are arguably a good deal more intrusive than a guy walking around with a "Peace" t-shirt on, explaining views to passersby: those surveys are designed to ensnare you for at least several minutes, and possibly a good deal longer. This would typically not be so of a protester.

It's the reader's last point, though, that I find most interesting. What is this "exclusivity" that a mall offers and Main Street doesn't? The attraction of malls is that they are not exclusive. When this region lost power for days on end after a huge ice storm last December, everyone went to the mall, not just to shop, but for food and warmth. (The mall didn't lose power.) It seems to me that in many places, malls have managed to supplant Main Street (and this is why Main Street merchants fight new malls tooth and nail). If malls are going to seek the traffic that traditionally went to Main Street, and for the same reasons (to feed, clothe, and entertain people), then why should malls not have to support some of what Main Street has traditionally offered?

The Artist Formerly Known As Cat Stevens has decided to re-release his 70's hit "Peace Train" to protest the impending war in Iraq.

Asked about this troubling development, Ari Fleischer said that the President was dealing well with the setback. He added, however, that if Terry Jacks and Gilbert O'Sullivan were to re-release "Seasons in the Sun" and "Alone Again, Naturally" (respectively), the President might well be persuaded to call off the planned attacks.

Bo Donaldson could not be reached for comment.

Well, after much struggle, I've got my RSS feed up and running. Click on the little XML button over to the right.

Reader Kevin Baker argues that on the narrow point of protecting the safety of Japanese Americans, Howard Coble was right--the internment saved lives. Baker says: "Because the overwhelming sentiment around the nation was anti-Japanese, leaving them where they were would have probably resulted in KKK-type violence mostly unhindered, possibly aided by their erstwhile 'defenders.'"

The trouble with these arguments about history is that what actually happened keeps getting in the way. Read, for example, this transcript of a 1971 interview with James Rowe and Dillon Myer. (Myer was the head of the War Relocation Authority, the civilian agency that ran the camps; Rowe was a top assistant to Attorney General Francis Biddle.) The most they can recall is "rumors of people shooting at Japanese"--and they're not even sure those were true. My interviews with Japanese Americans for my book were consistent with this--Japanese Americans were certainly frightened, but nobody recalls any significant violence--certainly nothing like the crime wave that followed 9/11.

A reader recently took me to task for suggesting a continuing risk of hate crime and discrimination directed against Arab and Muslim Americans. Here's an article that details the post-9/11/2001 spike in such crimes and incidents. To be sure, the article suggests that the numbers have again dropped, and that's a good thing. On the question of whether another such spike--or even a worse one--might follow either a new terrorist attack or a war in Iraq, I am not as sanguine as my reader.

If you've been following the Howard Coble story, you know that NC Rep. Richard Burr recently criticized NC Senator (and presidential candidate) John Edwards for criticizing NC Rep. Howard Coble for stating that the internment of Japanese Americans was a justified decision in 1942.

Just a second; let me catch my breath.

OK. Now it seems that Massachusetts Senator (and presidential candidate) John Kerry is criticizing Richard Burr for criticizing John Edwards for criticizing Howard Coble. Here's what Kerry's saying:

"It's discouraging to see that Richard Burr believes to be loyal to North Carolina you have to remain silent about Howard Coble's indefensible remarks. When John Edwards spoke out ... he was acting in the best North Carolina traditions of senators like Sam Ervin and Terry Sanford. Instead of beginning his Senate race appealing to the worst in our politics, Richard Burr should join John Edwards in speaking up for common sense and decency."

Well, yes.

But in the midst of all of this criticism of people for criticizing, it would be helpful if someone remembered what all the criticizing is about. A prominent House member stated that Japanese Americans were interned for their own safety. That was false in 1942, it was false when Howard Coble said it a month ago, and it's false today.

And if somebody proposes a temporary curfew or some such thing on people of Arab ancestry or Muslim faith, in order to protect them, that will be wrong too. That's why this all really matters.

I was sitting here at my desk this morning when the phone rang. It was Representative Howard Coble, responding to the letter I sent him a month ago in which I detailed exactly how and why protecting Japanese Americans had nothing to do with the decision to place them in camps.

As you can imagine, I was very surprised. I thought it was very nice of him to call.

We talked for ten minutes or so about the comments that have generated such a firestorm. Mr. Coble did make very clear that he thinks that from our vantage point today, the decision to intern Japanese Americans was wrong. That was good to hear, especially coming from the man who chairs the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security. There's also no question that Mr. Coble understands that he really hit a nerve with his comments about the internment. He acknowledged that he suspects he's become "a household name" out on the West Coast. I definitely got the sense (as many of my students who are his constituents have told me) that Mr. Coble is a very decent man who is trying his best to deal responsibly with the reactions to his comments.

It was also clear to me, though, that Mr. Coble does not yet appreciate that he was mistaken when he said that Japanese Americans were placed in camps for their own protection. He explained during our discussion that he'd heard from people, including Japanese Americans alive at the time of Pearl Harbor, who reported to him that Japanese Americans felt unsafe on the streets. From this information he's received, he concludes (and I jotted these words down) that "in some instances, Japanese Americans were beneficiaries of the internment." "There were some," he reiterated, "who became beneficiaries by being in the camps."

Here's where I still see Mr. Coble as making two basic, and important, mistakes.

The first mistake is to think that because some Japanese Americans felt unsafe after Pearl Harbor (which they undoubtedly did), they were benifitted by being incarcerated. I'm quite sure that any Japanese American who felt unsafe after Pearl Harbor would have vastly preferred to get some additional police protection and continue to live his or her life on the West Coast. If there was enough manpower to incarcerate 120,000 Japanese Americans, there was surely enough manpower to protect them in the communities where they lived.

The second mistake, and the more important one, is that Mr. Coble is mistaking his beliefs for what the government's policies actually were. Even if Mr. Coble is correct (and I think he's not) that some Japanese Americans benefitted by being placed in camps, there is no evidence--none--that anybody responsible for the planning and implementation of the internment was even thinking about the safety of Japanese Americans. That's been the nub of the problem all along: Mr. Coble maintained, and still maintains, that the internment was implemented in part for the protection of Japanese Americans. That is just false, as I demonstrated in earlier posts--here, and here, and here, and here. At a time when we have seen (and, if there's a war, might continue to see) vigilante violence against Arab and Muslim Americans, I think this view is dangerously false.

Steve Ross over at The Mountaintop, noting that North Carolina Republicans now appear to be "closing ranks" around Howard Coble, argues that "the Republican party only seems to have the courage to confront racism in its midst when they know that not doing so will cost them votes. Apparently, since they've already written the West Coast off, it's not important to respect the feelings and personhood of many of the people who live in that region." That seems about right to me.

The other night I had the good fortune to join Peter Irons of the University of California at San Diego's Political Science department in a program entitled "Looking Like the Enemy: The Japanese American Internment Cases in Perspective." Peter Irons was the person who, back in the early 1980's, opened up a box of Justice Department files that had not been touched for 40 years, and discovered the documents that ultimately led a federal court to vacate Fred Korematsu's conviction for resisting the internment.

Here's a webcast of the evening's program. I talk first, about two things: first, I tell a very abbreviated version of the story of the Japanese American internees who resisted the draft during World War II to protest their mistreatment. (That's the subject of my book "Free to Die for their Country.") Then I talk for a few minutes about the controversy here in North Carolina about Howard Coble's recent comments supporting the Japanese American internment.

After me, Peter Irons takes the stage, and tells the riveting story of how he discovered the Korematsu documents and how he used them to get Korematsu's 40-year-old conviction overturned. It's quite a tale--with plenty of relevance to our current debates about civil liberties and national security.

The News-Record has a bit more detail on Rep. Richard Burr's angry defense of Howard Coble. It seems that the reason Burr is so miffed at John Edwards is that Edwards did not "call Coble privately or investigate the congressman's remarks before issuing a public statement."

Here's the weird part, though: Burr hasn't investigated or studied Coble's comments either. That's right--here's Congressman Burr on the question of whether he agrees or disagrees with Howard Coble's statement that Japanese Americans were an "endangered species" who were interned "for their own protection": "Without knowing the context the conversation took place in," Burr said, "it's very tough for me to comment, and I wouldn't." Burr says he tried to get a transcript of Coble's original comments on the radio, but couldn't.

Before springing to Coble's defense, wouldn't it make sense first to inquire whether Coble's comments deserve one?

Another North Carolina Congressman, Richard Burr, is now criticizing Senator John Edwards for Edwards's recent criticism of Howard Coble's comments supporting the internment of Japanese Americans during World War II. Burr, who is thinking of running for Edwards's Senate seat in 2004 (while Edwards simultaneously runs for President), is "outrage[d]" by Edwards's criticism, and thinks that Edwards owes Coble an apology. "My outrage," says Burr, "is over a member of our delegation taking a shot at the dean of our delegation without checking out the facts first."

This is rich. Howard Coble, the chair of a House subcommittee on homeland security, said that Japanese Americans were placed in camps during World War II for their own protection--something that is just plain historically false, and, coming out of the mouth of this particular subcommittee chairman, dangerous. Challenged on it, Howard Coble insisted that he was just "stating historical facts." Senator Edwards calls for the repudiation of those comments. And then Congressman Burr says it's Edwards who needs to check his facts.

Congressman Burr, you need to check yours.

The North Carolina state Republican party just opened its new offices in Raleigh, and has named one of the rooms for Representative Howard Coble.

Don't know if the room's decor has been arranged yet, but in case it hasn't, this might give them some ideas.

Conspirator Eugene argues that because the T-shirt guys in the mall in Albany were approaching other people in the common area and explaining their views on war with Iraq, the mall's decision to kick them out was "within the boundaries of reasonableness." Before making that judgment, though, I'd want to know more about what the mall's policies are on, say, those people at the teriyaki chicken stands in the food courts who are always walking up to you offering you samples, or those people with the clipboards who approach you to take a survey. I'm not saying that malls have to live by the standards of content-neutrality that governments do, but I'd still want to know more than what we see in the police report.

New demands for repudiation of Howard Coble's comments on the Japanese American internment. Today the Congressional Tri-Caucus (consisting of the Congressional Asian Pacific American Caucus, the Congressional Black Caucus, and the Congressional Hispanic Caucus ) sent a letter to Speaker of the House Dennis Hastert and House Judiciary Committee Chair Jim Sensenbrenner, calling on them to repudiate Rep. Howard Coble's comments of a month ago on the Japanese American internment.

Here's the text of the letter:

Dear Mr. Speaker and Chairman Sensenbrenner:

We write regarding the very troubling and damaging comments made by our colleague, Congressman Howard Coble.

During a radio call-in show on February 4, 2003, Congressman Coble stated that the internment of Japanese Americans during World War II was not wrong because “they were an endangered species” and “it wasn't safe for them to be on the street.” Congressman Coble also stated that he agreed with Franklin D. Roosevelt's establishment of the internment camps because “some (Japanese Americans) probably were intent on doing harm to us, just as some of these Arab Americans are probably intent on doing harm to us.”

Congressman Coble was irresponsible, inflammatory and patently wrong. In 1988, President Reagan and Congress offered an apology and redress to the Japanese American community for its internment by enacting the Civil Liberties Act of 1988. The Act formally criticized President Roosevelt’s decision to intern Japanese Americans and apologized for “fundamental violations of the basic civil liberties and constitutional rights of these individuals of Japanese ancestry.”

In 1980, Congress adopted legislation establishing the Commission on Wartime Relocation and Internment of Citizens to investigate the claim that the incarceration of Japanese Americans was justified by military necessity. After an extensive examination, the Commission found that President Roosevelt’s Executive Order was not issued to either protect Japanese Americans or to protect U.S. interests. Rather, the Report states:



“In sum, Executive Order 9066 was not justified by military necessity, and the decisions that followed from it-exclusion, detention, the ending of detention and the ending of exclusion-were not founded upon military considerations. The broad historical causes that shaped these decisions were race prejudice, war hysteria, and a failure of political leadership. Widespread ignorance about Americans of Japanese descent contributed to a policy conceived in haste and executed in an atmosphere of fear and anger at Japan. A grave personal injustice was done to the American citizens and resident aliens of Japanese ancestry who, without individual review or any probative evidence against them were excluded, removed and detained by the United States during World War II.” (Emphasis added).

Congressman Coble has been offered multiple opportunities to clarify and correct his comments, but instead, he has reiterated that his comments were based on “historical fact”. When we err about history and fail to learn from our mistakes, we risk repeating the past.

Congressman Coble’s support for past wholesale incarceration of U.S. citizens without due process demonstrates an apparent disregard for civil liberties. As our country is engaged in a war against terrorism, and is on the brink of a war against Iraq, respect for civil liberties is crucial to ensure that we do not repeat the mistakes of the past.

To demonstrate that you have learned from the Trent Lott experience and the importance of getting history right, we ask you to repudiate Congressman Coble’s statements as an inaccurate, misleading and potentially damaging view of history.

Further, we ask that you take action to see that H. Res. 56, the Day of Remembrance Resolution, be taken up by the House Judiciary Committee and, if passed by that committee, taken up on the floor of the House of Representatives. It is of utmost importance to assure all Americans that Congress knows that the internment of Americans without due process during World War II was wrong, and that Congress understands the importance of upholding the Constitution and protecting civil liberties, in wartime as in peacetime.

We look forward to your response.

Sincerely,

Congressional Asian Pacific American Caucus:
Rep. David Wu, Chair
Rep. Mike Honda, Vice Chair

Congressional Black Caucus:
Rep. Elijah E. Cummings, Chair
Rep. Sheila Jackson Lee, First Vice Chair
Rep. Corrine Brown, Second Vice Chair

Congressional Hispanic Caucus:
Rep. Ciro D. Rodriguez, Chair
Rep. Grace Flores Napolitano, Vice Chair


It looked like this story was dead. Then a presidential candidate and the Tri-Caucus spoke up, and the issue continues to smolder.

Ich habe bemerkt, dass Ich heute viele Deutsche Besucher habe. Herzlich wilkommen!

Senator John Edwards's call for Rep. Howard Coble's resignation from the chairmanship of the House Judiciary Subcommittee on Crime, Terrorism, and Homeland Security is getting attention in the North Carolina press.

Howard Coble: The Refresher Course. A number of readers, probably people sent here recently by blogger (where I'm on their list of featured links--thanks, blogger!), have asked me who Howard Coble is and what the remarks were that Senator Edwards yesterday condemned.

Howard Coble is a congressman who represents North Carolina's Sixth District (including Greensboro and High Point). He is also the chair of the House Judiciary Committee's Subcommittee on Crime, Terrorism, and Homeland Security.

A month ago, Coble was asked on a radio call-in program whether he supported the internment of Arab Americans. He said he did not, but then volunteered that he agreed with FDR's decision to put Japanese Americans in internment camps during World War II. He explained that they were interned "for their own safety" and also because there were undoubtedly some Japanese Americans who intended to do the U.S. harm.

When it was pointed out to him that his theory of the internment was discredited claptrap, he insisted that he was just "stating historical fact." He ultimately said that he did not mean to offend anyone, and agreed that the internment was very cruel and looks like a mistake from today's perspective, but was justified at the time.

It's hard to know which is the more telling aspect of this story: At the summit meeting of the Organization of the Islamic Conference in Qatar--convened so that the "Islamic Nations" could present a unified position on the pending US-Iraq conflict--the proceedings broke down when the Iraqi delegate called the Kuwaiti delegate a "monkey" and a "traitor to the Islamic nation," while the Kuwaiti delegate responded with the charge that the Iraqi delegate was a "charlatan" and an "infidel." And just as the disagreement erupted--imagine this!--the live television coverage of the event was cut off. (And all of this just days after the Saudi Crown Prince called Libya a "slave of colonialism and Muammar Gadafi a "liar.")

Sorry, folks. Pan-Arab unity will be back in a moment, after these technical difficulties.

NC Senator and Presidential Candidate John Edwards Calls for Coble's Ouster from Homeland Security Subcommittee Chairmanship.

In a press release today, North Carolina Senator John Edwards said the following:

"It is always disappointing when one of our nation's leaders make divisive, ill-informed remarks like those made by Representative Coble. He was wrong, and he ought to apologize.

As leaders, elected officials have an obligation not to divide, but to bring groups together. Leadership means thinking of America in terms of 'us,' not 'them.' Leadership means being committed every day to making equality a reality. It means learning from the past and making a better future for everyone. Representative Coble failed to lead.

Because of that, the Republican Party should seriously reconsider keeping him on as chairman of the House Judiciary Subcommittee on Crime, Terrorism and Homeland Security. Someone who thinks it was OK for the United States to put innocent Americans behind barbed wire fences in 1942 should not make decisions about how to protect Americans in 2003."

Senator Edwards is exactly right. It is a welcome development that a person of his stature--and a prominent North Carolinian--is finally saying this.

If you see the story here, you're smarter than I. Salon is running a story entitled Uncle Sam's Dirty Tricks?"" which is about a leaked National Security Agency memo of unconfirmed authenticity that suggests that U.S. government agents have been conducting surveillance on members of the U.N. Security Council in anticipation of another possible vote on the use of force in Iraq.

Sounds scandalous. I was appalled at the idea.

But then I read the article a bit past the first couple of paragraphs and learned that "spying at the United Nations is nothing new, nor is it necessarily nefarious." David Phillips, a former State Department advisor and advisor to the UN's Office for the Coordination of Humanitarian Affairs, said that spying of this sort "is standard procedure. There's nothing atypical about monitoring the comings and goings of foreign diplomats in order to assess their likely behavior in diplomatic form." Another former State Department official related that "everybody spies on everybody at the UN," and that Americans are hardly the worst offenders.

So where's the story? The story, it seems, is not that the Americans are spying at the UN (though that's what the headline about "Uncle Sam's Dirty Tricks" might lead you to believe), but that the way in which the Bush administration has handled the alleged leak--that is, by refusing to comment on it, since it may involve intelligence activities--"reveals much about the way that the Bush administration has handled its foreign policy: clumsy or arrogant or righteous, depending on your point of view, but indisputably alienating to most of the rest of the world." Much of the article recites the outrage of other diplomats at the US government's surveillance and its refusal to comment on the allegations.

Huh? This is something that, we're told, all countries do at the UN, and I imagine it's also something that no country admits to doing. So how does this episode reveal the administration as being any more clumsy, arrogant, or righteous than any other government?

There's just no story here. Period. (I agree, incidentally, that this administration's foreign policy is often clumsy, arrogant, and righteous. But I just don't see how this episode at the UN shows it.)

If you're reading this in the Raleigh-Durham-Chapel Hill area, Duke Law School is hosting what promises to be a very interesting forum this evening called "Looking like the Enemy: The Japanese American Internment Cases in Perspective." I'll be speaking, but far more interestingly, so will Peter Irons. Irons is a professor of political science at UC San Diego, and was one of the lawyers who helped Fred Korematsu get his conviction overturned back in the 1980's through a writ of coram nobis. He's also the guy who pissed off the Supreme Court by publishing copies of the tapes of the Court's oral arguments without first getting the Court's permission.

The program will be in room 3043 at Duke Law School at 6:00 p.m., with a reception following.

Today a comment function, tomorrow the world. Courtesy of Squawkbox, I've added a function to the site for readers to make comments! So go for it!

I am still at a loss to know what code to put into the blogger template to create an XML version of the page so that it can be tracked by newsreaders. If a friendly reader would care to offer me advice, I'd be much obliged.

A month ago today, Representative Howard Coble, chair of a House subcommittee on homeland security, declared that he agreed with the internment of Japanese Americans during World War II. He said the government placed Japanese Americans in camps for their own protection, and when people screamed that this was false, Coble dug in his heels, claiming he was just "stating historical fact."

Today, Howard Coble's hometown newspaper derides those who have called on Coble to resign his subcommittee chairmanship. It seems, according to the High Point Enterprise, that Coble's assertion about the internment was not flat-out historically wrong, but just "another view" of that episode, and merely a "careless comment on a radio show." Post-modernism hits the editorial pages! Get this: whether the internment was or was not for the protection of Japanese Americans is merely something on which we can just have our own "views." Please. I have shown conclusively on this site that protecting Japanese Americans had nothing to do with the planning and execution of the internment. Howard Coble is welcome to his "view," but it is wrong. Period. And "careless?" In response to the outcry, Representative Coble clearly stated that his "view" of the internment was "historical fact." That's not a "careless comment." It's defiantly voiced ignorance.

A bit more on human shields as traitors. A couple of readers have suggested to me that a treason prosecution might not be possible because Congress will (presumably) not have declared war on Iraq.

I don't think a declaration of war is necessary to a prosecution for treason. First, as a textual matter, there's a decent argument that the treason clause of Article III does not require a declaration of war, at least where the government's theory of treason is that a person "adhered to an enemy, giving him aid and comfort." Recall that the treason clause says that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort." One reading of this clause focuses on the disjunctive term "or": a declaration of war would be necessary if the government's theory is that the defendant "levied war," but if the government's theory is that the defendant adhered to an enemy, giving aid and comfort, no "war" is necessary.

I think even this reading gives too much ground to the notion that a declared war is necessary for a treason prosecution (under either of the two branches of the treason clause). Several treason prosecutions were brought by the Union in its civilian courts during the American Civil War against people who were aiding in the Confederate military effort. (The best known case is perhaps United States v. Greathouse, 26 Fed. Cas. 18 (N.D. Cal. 1863), in which a number of people were tried and convicted of treason for setting out with a letter of marque from Jefferson Davis that authorized them to seize and plunder ships flying the U.S. flag). There was, of course, no declaration of war. Yet Justice Field of the U.S. Supreme Court, sitting in federal circuit court in California as a circuit judge as was then the practice, concluded that all that was necessary in order to "activate" (as it were) the treason clause was a state of "open hostilities."

So I think the absence of a declaration of war would not stand in the way of a prosecution of American citizens acting in Iraq as human shields.

Lots of great posts over the weekend at the Volokh Conspiracy on the question of whether voluntarily acting as a human shield in Iraq after hostilities begin would amount to the "aid and comfort" of the enemy that is treason. (Article III of the Constitution says that "treason against the United States shall consist only in levying war against them, or in adhering to their enemies, giving them aid and comfort.")

I think the answer to this question is "yes." The leading Supreme Court case on the question is from World War II: Cramer v. United States. Cramer was born in Germany and was naturalized as a U.S. citizen in 1936. Before the war, he was friendly with a German guy named Thiel. Thiel left the United States for Germany before the war began, but then returned as a German saboteur on a submarine in mid-1942. (He was one of the men whose trial by military tribunal was upheld in the well-known case Ex parte Quirin.)

When Thiel showed up in New York City, he got back in touch with his old friend Cramer. Cramer surmised that Thiel was on a mission of sabotage, but nonetheless met with him a few times, performed a couple of tasks for him, and stored some of Thiel's money for him. Cramer was apprehended, charged with treason, and convicted. He appealed his conviction to the U.S. Supreme Court.

The Court explained that "the very minimum function that an overt act must perform in a treason prosecution is that it show sufficient action by the accused, in its setting, to sustain a finding that the accused actually gave aid and comfort to the enemy."

Here, the Court found insufficient evidence of aid and comfort: "There is no two-witness proof," the Court explained, of what [Cramer and Thiel] said nor in what language they conversed. There is no showing that Cramer gave them any information whatever of value to their mission or indeed that he had any to give. . . . Cramer furnished them no shelter, nothing that can be called sustenance or supplies, and there is no evidence that he gave them encouragement or counsel, or even paid for their drinks." And the Court reversed Cramer's conviction.

I read the Court as implying that if the government had proven any of these activities by two witnesses, the evidence would have been sufficient. That is, if two witnesses had testified that Cramer offered Thiel "information of value to their mission," or had put the saboteurs up for the night, or had offered them "encouragement or counsel," he would have been guilty.

If this is so, then I think it follows that human shields in Iraq would be guilty of offering aid and comfort. The U.S. military has stated that they'd take the presence of civilians into account in their targeting decisions--and even if the military said they were ignoring civilians, I still think a jury could conclude that serving as a human shield gave Saddam Hussein "encouragement."

By the way, I am not saying here that I think the Justice Department would necessarily act wisely in charging human shields with treason. I'm just saying that I think a treason charge would survive a motion by the defense for a directed verdict of acquittal at the close of the government's evidence (assuming, that is, that the government was in fact able to find two witnesses to the defendant's act of shielding).