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"

Dead grandfather attends granddaughter's wedding.

"Who's the stiff?" the groom was heard to grumble.

Zacarias Moussaoui, taking advantage of a little-known provision of the Federal Rules of Criminal Procedure, recently filed a "Motion to Know How the United Satan is Lying to Murder Me By Legal Means.'' (Moussaoui, you may recall, was for quite some time the man the government called the "20th hijacker," but the government has recently decided that he was actually the "5th pilot." I like to call him the "1st guinea pig.")

Moussaoui won that motion. As difficult as it is to believe, the government is actually going to have to tell Moussaoui its theory of his guilt!

Noting Moussaoui's success with this unconventional motion, government lawyers today will file a "Motion to Dispense with the Formality of a Trial and Just Execute This Moroccan Sumbitch." It is not known how Judge Brinkema will rule on this, although prosecutors are also preparing a "Motion to Have Judge Brinkema's Recent Borrowings from the Public Library Perused" in case things don't go well.

If a lawyer is instant messaging with a judge, should the lawyer stop typing when the judge starts?

My old law school friend Paul Wolfson has an interesting article on this question at findlaw. The question arises because of a pending piece of legislation in which Congress declares that so-called "partial birth" abortions are never medically necessary. The trouble is that the Supreme Court framed Stenberg v. Carhart around the proposition that they sometimes are. See the problem?

I learn, via Ed Cone, that there's an article about blogging in today's Greensboro News-Record. Apparently I'm quoted, and this blog is featured. But wouldn't ya just know it? The News-Record did not choose to make this article about blogging available on-line. (Why, after all, would a newspaper want to put an article about internet use on the internet?) So if any of my thousands¹ of Greensboro readers would care to snip the article and mail it to me, I'd be much obliged.

¹OK, OK. My two Greensboro readers.

UPDATE: I carped too soon. A reader points me to the recently-posted link for the story.

Speaking to the National Rifle Association's annual convention, Florida Governor Jeb Bush told the crowd, "Were it not for your active involvement, it's safe to say my brother would not be president of the United States."

Does this mean Justice Kennedy voted at gunpoint?

James Taylor grew up here in Chapel Hill, and now he has a bridge named after him here.



(Photo from the Chapel Hill News.)

Do yourself a favor. Listen to "Our Prayer" by the Beach Boys.

Gregory Goelzhauser pushes past (while agreeing with) the sarcasm in my post about Jamie Raskin's comparison of the current Court to the Lochner Court. Good for him.

My sarcasm, I think, reflects a certain tiredness with partisan debate in constitutional scholarship that hits me at around this point of every academic year. It probably means I need a break--which is good, since summer is here.

Still, following Gregory Goelzhauser's lead, I'll offer five quick comments about what prompts the sarcasm. Note--none of these observations is original, or, for that matter, deep:

(1) Raskin's argument is that "we need to get back to constitutional basics." (I'm quoting from the interview on tompaine.com.) OK. But how does Raskin think he's advancing goal by arguing that "the Republican party has engineered the most extreme judicial activism that we have seen in almost a century?" Are Democrats better at "constitutional basics" than Republicans are? How did that happen? (And, we might ask, what is Raskin's party affiliation? Democrat? You're kidding!)

(By the way: I usually vote Democrat myself.)

(2) If true American constitutionalism ought to be a relentless march toward greater "democratization," as Raskin argues, what makes it OK for a largely undemocratic institution (the Court) to block a majority's preferences?

(3) If true American constitutionalism ought to be a relentless march toward greater "democratization," why are most of the institutions the Constitution itself creates or recognizes only remotely democratic? (Think, for example, of the Senate. The courts. The presidency. Grand and petit juries.)

(4) If true American constitutionalism ought to be a relentless march toward greater democratization, why does the Constitution itself make it so hard for majorities to change the Constitution?

(5) It may well be that the Lochner Court's goof was to elevate economic rights (rather than, or in addition to, privacy rights) to "fundamental" status, but gosh, you have to admit it was an eminently reasonable mistake. Look through the Constitution. Imagine you were told that the document was a kind of puzzle: it hints at, but does not actually name, one crucial value for protection against majoritarian deprivation. Would it really be so unreasonable to think that "individual economic freedom" was that value?

Law professor Jamin Raskin says this of the current Supreme Court in an online interview: "This court is easily as reactionary and activist as the Lochner Court was, and the Lochner Court is held up as the most activist Court in our history."

Sigh.

That's what I love about academia: you have the chance to think things through carefully and see the subtelties and nuances in things.

Next time you find yourself feeling down on your career, consider this: there are people who, as part of their job, have--and I quote--"spent five years lobbing urine-soaked snowballs at moose in the wilds of Alaska and Wyoming."

See? Things could be worse.

In about 6 weeks one of these little puppies will be joining the household!

The headline to this story is reminiscent of the old "Generalissimo Francisco Franco Is Still Dead" bit, but the story itself is moving. It is extraordinary--isn't it?--that researchers continue to devote their energies to discovering who informed on Anne Frank and her family.

In the context of the horror that was the Holocaust, I wonder what difference it would make if we finally knew who the venal or vengeful soul was who picked up the phone and called the authorities about the Jews in that particular hiding place. It might help close a chapter, I suppose, or satisfy the historically curious, in the way that learning the identity of Deep Throat might do. But what else would come of it? It might give us an individual to blame, and to hate--but do we not already have plenty of those, including (especially) people far more directly responsible for Anne Frank's day-to-day sufferings after her capture, and her ultimate demise?

Is there a risk to finding a single face on whom to pin the blame for this family's tragedy?

I watched the German film "The Nasty Girl" last night, as a way of gearing up for an essay I want to write this summer about how one ought to assess the wrongdoing of one's parents' and grandparents' generations. If you haven't seen it, it's worth a rent. A young woman in a small West German town in the late 1970s quite naively undertakes to write an essay for a contest on the subject "My Hometown during the Third Reich." She quickly discovers the complicity of many of those around her in the Reich's many horrors, and suffers the town's outrage for her investigations.

I am eager to read novels and see other films that explore this theme. Suggestions via email or the comment box on this page would be much appreciated.

I note that Rep. Howard Coble--he of "Interning Japanese Americans for their Own Good" fame--is overseas speaking at several international fora on maritime security and foreign-policy implications of the war against Iraq. He's in Finland, Denmark, and Norway--with the tab for the travel footed by various shipowning interests.

Last week, by contrast, he cancelled a planned panel discussion on civil liberties and national security at his alma mater, Guilford College, in his congressional district.

I was going to dissent from Eugene Volokh's too-careful consideration of Senator Santorum's statements on homosexuality--especially in the light of the now-published full transcript of those statements--but Jacob Levy beat me to it.

I agree with Jacob. To be sure, there's a way of contextualizing the portion of Santorum's comments that addresses a constitutional question so that the comparison to incest, etc., is not offensive. But obviously that's not really what Santorum's about.

Lott, Coble, Moran, Myrick, Cubin--you know, it has really been a banner year for former linguistics majors like myself. So many comments offending so many different people, all right there for the parsing! Just so that we can figure out whether the words these congresspeople used were really as bigoted and hateful as they seemed to a non-linguist with no training in semantics or syntax.

Well, I'm here again to offer my linguistics services, this time on Senator Rick Santorum's recent statement that "if the Supreme Court says that you have the right to consensual (gay) sex within your home, then you have the right to bigamy, you have the right to polygamy, you have the right to incest, you have the right to adultery. You have the right to anything." The big question (incredibly) seems to be this: was Santorum actually comparing homosexuality to bigamy, polygamy, incest, and adultery?

Of course he was.

There. I'm glad I was able to clear that up. See what my linguistics background did for me?

Of course, there's a more subtle issue here. Santorum followed the above comments with this statement: "All of those things are antithetical to a healthy, stable, traditional family... And that's sort of where we are in today's world, unfortunately. It all comes from, I would argue, this right to privacy that doesn't exist, in my opinion, in the United States Constitution."

That part of the statement isn't getting as much press as the comparison of homosexuality to incest. It does, I think, provide a touch of context that diminishes the offensiveness of the comparison at least a little bit. As I read it, Santorum was (at least in part) making a point about constitutional law, not about policy: he was saying that what homosexuality, incest, adultery, bigamy, and polygamy all have in common is that claims to practice them free of state control are all rooted in what he sees as the same flawed constitutional theory--namely, that the due process clause protects a fundamental right of privacy that includes those practices.

This comparison of homosexuality to bigamy has been made and debated in opinions of the U.S. Supreme Court--including Bowers v. Hardwick and Romer v. Evans.

So, if we take Santorum's comment as just a statement of an intellectual position on a question of constitutional law, I think it comes off a touch less badly than the way it's being reported and criticized.

Of course, I don't believe for a second that Santorum meant it just as a statement of an intellectual position on a question of constitutional law. Remember, the link that Santorum sees between homosexuality and polygamy is that they're both "antithetical" to the "healthy" family--so there's obviously something other than careful constitutional analysis going on here.

I'm a few pages away from finishing Alice Sebold's "The Lovely Bones." If you haven't read it, you've undoubtedly seen its cover, at least if you've been in an airport in the last year. (It's got a light blue cover with a silver charm bracelet above the words "Lovely Bones" in large white block letters.)

I'd be curious to hear of others' reactions to this book. I am finding it very very sad, of course--how could a book narrated by a raped and murdered 14-year-old girl be cheerful?--but I'm also finding it somehow inaccessible. I know that some have criticized the book for showing heaven as God-less, but it is precisely the concreteness of the depiction of heaven, and of the protagonist's ongoing observations of her friends, her family, and her murderer that puts me off. Maybe it has something to do with being raised in a faith tradition that doesn't say much about heaven or an afterlife; I don't know. But somehow I suspect that the book might reach out and grab a person who believes in (or whose faith envisions) a concrete-ish afterlife more effectively than it reaches out and grabs me.

Eugene Volokh has managed the impossible: a pun that inoffensively links Passover and the Ku Klux Klan.

This morning I stopped at the grocery store and picked up 6 dozen donuts for my Constitutional Law class, to help them celebrate the last day of their first year of law school. When the checkout person handed me my receipt, I noticed that the little coupon machine had generated a $2.00 coupon for Glucerna shakes and diet bars, which the coupon told me "can help you manage your diabetes anytime, anywhere." I have never bought 72 donuts before, and I have never gotten a Glucerna coupon before. I can only assume that Glucerna has done market research that shows that people who buy donuts are likelier than the average consumer to have diabetes. But why would Krispy Kreme go along with a marketing plan that encourages people to feel guilty about buying their product?

Very puzzling.

It's hard to read a story like this one (or this one) and not realize how much more offended the world is when Jews displace Arabs than when just about anybody else displaces just about anybody else.

It is hard to read a story like this one and not realize how much more interested our society is in white people than in others.

To many this observation isn't news, and to others it's just PC crap. But when these media saturation moments are upon us, it's just too striking to ignore.

I just assumed he had died years ago. But he's alive, and turning 100 next month.

I was reading (over at The Paper Chase) the 13-point agreement that emerged from yesterday's US-sponsored meeting of Iraqi opposition and exile leaders on the creation of an interim government and restoration of the rule of law in post-Saddam Iraq, and noticed this item:

5. That Iraq must be built on respect for diversity including respect for the role of women.

Note the language: not respect for women, but respect for "the role of" women.

And this from a meeting convened by the U.S. government. (A meeting at which, incidentally, there were almost no women. Look at the pictures.)

No constitutional problems here, probably. But it is uncomfortable--isn't it?--for the U.S. government to be so directly involved in planning that would violate the Constitution if done here.

Following up on his posts about vibrators, Eugene Volokh is now talking about length . . . of constitutional provisions, that is. He is responding to a New York Times op-ed arguing that the Commander-in-Chief component of the president's job has not historically been a central aspect of the presidency. (The op-ed's point is that the habit of presidents since Reagan to salute in response to salutes from members of the military is puerile and a distortion of the proper role of the president.) The op-ed notes that the Commander-in-Chief clause of Article II is very short--not even a full sentence--and contends that this proves the Framers did not think the commander-in-chief role an especially important part of the presidency. Says Eugene:

Huh? Since when do we measure the importance of a constitutional provision by its length? ... Some provisions are short simply because they're relatively clear and require no elaboration, especially in a relatively tersely drafted Constitution; that means nothing about their importance.

I won't try to defend the NYT editorial, which I think is just silly. (And it is nothing short of astonishing to me that the Times would devote its precious op-ed space to a throwaway little piece of junk like this. Think of all of the submissions that were rejected to make space for this one! Incredible.)

But I do think Eugene is slightly overstating his case. It is, of course, true that some constitutional provisions are short because they don't need to be longer. But the length of a constitutional provision doesn't necessarily mean nothing about its importance. For example, the Constitution devotes a lot more words (and clauses) in Article I to describing and specifying the Congress's military powers than it does to the President's in Article II. From that fact one could surely argue that the distinction in the lengths of the provisions shows that the Framers envisioned more of the military power residing in Congress than in the presidency. (Of course, one could also argue that there's more in Article I than in Article II because Congress felt that the legislature needed greater specification of its powers in order to limit them--but that, too, is an argument that draws meaning from length.)

You may recall that during a debate last week on a Democratic amendment to a bill banning gun sales to drug addicts, Rep. Barbara Cubin (R-WY) said the following:

My sons are 25 and 30. They are blond-haired and blue-eyed. One amendment today said we could not sell guns to anybody under drug treatment. So, does that mean if you go into a black community, you cannot sell a gun to any black person, or does that mean because my …

Timothy Noah is running a contest: finish Rep. Barbara Cubin's sentence for her so that it ends up as "a ringing declaration against racial stereotyping" (which is what she maintains it was going to be).

Here's my entry: "...sons look the kids who shot up Columbine, that they shouldn't be able to buy a gun? Of course it doesn't! Although some people might think black people are probably drug addicts, I think that's an absurd stereotype, just like it's absurd to think that blond-haired blue-eyed young white men are mass murderers. And it's just as absurd to think that just because a person is a drug addict, he can't be trusted to handle a gun. It's just stereotyping, and it's all wrong."

As a former constituent of Barbara Cubin's, I don't actually think she was on her way to saying anything that articulate. And I seriously doubt that it's what she really meant.

Here's a Reuters headline that just popped up:

Britain: There Are No Plans to Invade Syria Next

Of course there aren't! Next is North Korea. Then Syria.

A few moments ago I saw this bumper sticker on the back of a blue Dodge pickup:

"Except for ending slavery, fascism, Nazism, and communism,
War has never accomplished anything."

It made me smile. I know, I know, it's contestable in lots of ways. (How did war end communism, for example? Did communism really get ended everywhere? Is the idea that the threat of war caused communism to go bankrupt? And so on...) But at the level of rhetoric, it's a pretty potent response to some of the (also sometimes very clever) anti-war bumper stickers you see.

Every morning, as I listen to the little segment of NPR's "Morning Edition" in which they list their corporate sponsors, I hear an announcer intone the following:

"Microsoft. Your potential inspires us to create software that helps you reach it."

And every morning, I grimace slightly. I don't know exactly what it is about that sentence that sounds so wrong. I suppose it's the ambiguity of the referent for the word "it"--is "it" my potential? The software? Something else?

I can't believe that Microsoft would have paid an ad agency good money for this weak a pitch.

I'm up in the middle of the night -- trouble sleeping -- and surfing the web. I came across this priceless story on CNN.com: "Saddam's 'Love Shack' Discovered." It gives us all the details (wink! wink!), even down to the "shag" carpet. Groovy baby!

An Arab landlord directs his Jewish pizzeria owner tenant to stop serving pork products. Litigation ensues.

Only in America.

UPDATE: I've updated the link with Google's cache of the story in the Durham Herald Sun. The newspaper seems to have pulled the story down off its site. By the way, an IsThatLegal? reader pointed out that the headline of the story "Arab-Israeli Conflict Erupts on Ninth Street" seemed to confuse "Jewish" (which the tenant is) with "Israeli" (which he isn't). It's a good point. Maybe that's why the paper pulled the story off its site.

Now we see, from this horrifying editorial in the New York Times, that Peter Arnett's real betrayal was not of his country but of his profession. Remember that Arnett volunteered the following on Iraqi TV:

Well, I'd like to say from the beginning that the 12 years I've been coming here, I've met unfailing courtesy and cooperation. Courtesy from your people, and cooperation from the Ministry of Information, which has allowed me and many other reporters to cover 12 whole years since the Gulf War with a degree of freedom which we appreciate. And that is continuing today.

Surely Arnett must have known of the atrocities Eason Jordan describes in today's Times.

Even if Arnett's comments were just an attempt to get an interview with Saddam Hussein, they are nauseating--not because they're disloyal to the United States, but because they're disloyal to other journalists.

Thanks to Eugene Volokh for the link to the Times piece.

Get this: Rep. Jim "The Jews Got Us Into The War!" Moran and Rep. Barbara "Sell Guns to Black People?" Cubin are in a tussle with each other over -- I kid you not -- bear baiting.

You couldn't make this stuff up if you tried.

Well, this morning's news is bringing a bit more clarity to Wyoming Rep. Barbara Cubin's remarks during yesterday's debate on immunity for gun manufacturers. The New York Times provides some more detail:

The chief drama of the day turned out to be a dispute over a remark by Representative Barbara Cubin, Republican of Wyoming, while she was discussing a proposed amendment allowing a lawsuit against a dealer who sells a gun to someone who "uses or is addicted to illegal drugs."

Gun makers and dealers have long argued that they cannot be expected to recognize on sight which customers are dangerous, and that trying to do so would expose them to other kinds of lawsuits for illegally discriminating against people based on how they look or where they live. Ms. Cubin began to make that argument by mentioning her two adult sons.

"They're blond-haired and they're blue-eyed," she said. "One amendment said we couldn't sell drugs to anybody that was on drugs or had had drug treatment or something like that. Well, so does that mean if you go into a black community, you can't sell any gun to any black person? Or does that mean if my sons, because they look like — " whereupon she was interrupted by Representative Melvin Watt, Democrat of North Carolina.

Mr. Watt, who is black, asked that she be punished for inappropriate language. But his proposal was defeated, largely on party lines. Ms. Cubin later apologized on the floor for her remark.

It's still hard to say exactly where Mrs. Cubin was going with her remark, but it looks to me like an inartful way to argue against stereotyping. She was arguing, I think (maybe?), that drug addiction is an arbitrary and irrational basis for denying someone a right in the same way that race is an arbitrary and irrational basis for denying someone a right.

I think. Maybe.

When Barbara Cubin was in the Wyoming legislature, she had photos of male legislators' crotches posted on the state Capitol's bulletin board, and followed that up by serving fellow legislators cookies in the shape of penises.

I am not making this up. Really. No, really.

The Washington Post's coverage of WY Rep. Barbara Cubin's seemingly racist remark in a House debate makes the comment sound even stranger and more of a non sequitur than did earlier reports.

Hopefully tomorrow will bring some clearer reports on what she might have meant. Right now, though, this looks like Trent Lott and Howard Coble all over again.

Barbara Cubin, Wyoming's lone House member (and my former representative when I lived in Wyoming), has stepped into the ever-lengthening line of federal legislators who've said racially stupid stuff. During debate over whether to immunize gun manufacturers from lawsuits over injury from misuse of their products, Cubin (says the AP) "was complaining about a failed Democratic amendment that would have banned gun sales to drug addicts or people undergoing drug treatment."

Quoth Cubin: "So does that mean that if you go into a black community, you can't sell any guns to any black person?"

Talkleft links to news that a court has ruled that possessing a bong in California is not illegal.

Not illegal?!? And here I thought it was mandatory!

Orrin Hatch is trying to repeal the 4-year sunset provisions on some of the more controversial provisions of the USA PATRIOT Act.

When PATRIOT was passed 18 months ago, Orrin Hatch expressed his displeasure with the sunset provisions (though he voted for the bill), and said that he "sincerely hope[d] hope we undertake a thorough review and further extend the legislation once the 4-year period expires." (scroll about halfway down for Hatch's comments.)

It turns out (surprise!) that his hope for a thorough review wasn't so sincere.

The whole point of a sunset provision is to create a deadline by which Congress can assess how well the provision is working before renewing it or making it permanent. The Act has only been in effect for 18 months at this point -- 18 months, I might add, in which the Administration's general stance about its enforcement efforts has been rather secretive. How could anyone actually think that a year and a half under this Administration is long enough to make a judgment about the advisability of permanent and significant changes to the powers of law enforcement?

For those of you who've been up losing sleep, waiting for me to post on Justice Scalia's interesting question in the affirmative action argument last week, I've finally done so. You can find it here.

I will be guest-blogging at the Volokh Conspiracy on Monday and Tuesday of this week. A big honor, especially for a relative blogging newcomer like myself. I'll be posting here again on Wednesday.

For those of you who are coming over here from the Conspiracy, have a look around. But please don't look at this post, or this one, or this one either. They're just too silly.

It has been a while since I've posted anything here about the uproar over Rep. Howard Coble's announcement on a radio station about 6 weeks ago that he supported the internment of Japanese Americans during WWII.

But I just noticed that Coble, an alumnus of Guilford College in Greensboro, NC, has pulled out as their commencement speaker for this year, citing the discomfort some Guilford students had expressed about Coble's comments on the Japanese American internment and about Coble's support for the war on Iraq. (Guilford is a Quaker school with a long tradition of pacifism.)

In pulling out, Coble said that "commencement is for the seniors. It's their special day, and they should enjoy all aspects of the graduation program."

I'm going to try to find out more about this, and I'll post what I learn. But without knowing any more than what I see in Guilford's press release, this looks to me like a very intemperate decision on Coble's part. Yes, commencement is supposed to be a pleasant day. But Guilford is an institution of higher learning and debate, grappling (as we all are) with serious issues of liberty and security during serious times. What better place for Howard Coble to articulate his views?

UPDATE: I've just learned from a contact at Guilford College that over the last couple of weeks, a number of graduating seniors circulated a petition requesting that Coble not speak at commencement. As I understand it, Guilford did not rescind the invitation, but Rep. Coble learned of the petition and decided at that point that he did not wish to speak. Moreover, Rep. Coble has agreed to speak a week from Monday--April 14--at a forum at Guilford on civil liberties and national security. (I'll be on the panel as well.) This tends to support Rep. Coble's stated reason for withdrawing as commencement speaker, namely that he did not wish to spoil the graduating seniors' day with political controversy.

Kentucky Senator Jim Bunning says that Peter Arnett is a traitor and ought to be arrested at the border when he comes back to the United States. But I would advise people not to seek legal advice from retired baseball pitchers, even Hall of Famers. (And I say that as a childhood fan of the Philadelphia Phillies generally and of Jim Bunning specifically.)

Peter Arnett’s comments to Iraqi television earlier this week were not the stuff of treason. In order to prove someone guilty of treason, the government needs to prove that the person, subjectively intending to adhere to the country’s enemies, committed an overt act that actually gave aid and comfort to the enemy. Two witnesses must testify to that overt act. Two-witness proof of the person’s intent is not necessary.

In all of the discussion of Arnett’s situation in the last few days, I have not yet heard anyone suggest that Arnett’s actual intent was to adhere to the regime of Saddam Hussein or to betray the United States. His motive, as Daniel Schor speculated on National Public Radio’s All Things Considered this week, was probably to curry favor with the Iraqi regime in order to get a big scoop—perhaps an interview with Saddam Hussein himself, or at least somebody who looks a lot like him. His intent, I would imagine—and remember that “motive” and “intent” are not the same thing in the criminal law—was to communicate what he saw as accurate information about the progress of the war to Iraqi viewers. I just don’t see a whit of evidence here that Arnett intended to align himself with Iraq’s regime or its resistance to the American and British invasion. Even if you think that there might be some circumstantial evidence of such an illegal intent, you have to concede that there’s not proof beyond a reasonable doubt.

So I think we should all balk at Senator Bunning’s wild pitch for a treason charge against Arnett. (Ahem. Sorry.)

That’s the end of the story for a potential treason charge. But it’s not the end of the story. A number of people (including my own cousin--hi, Martha!) have commented on this site, or sent me emails, to the effect that Arnett’s interview on Iraqi television could not have amounted to “aid and comfort.” Some note that Arnett provided Iraqi TV with “just words,” and that treason law ought to demand that a person provide something more valuable to the enemy than mere words or moral support. Some say that Arnett was merely exercising his right to freedom of speech, or that he was exercising his rights as a journalist, and that the First Amendment therefore should forbid a treason charge.

On this question—whether there would be enough proof to allow a jury to find “aid and comfort” beyond a reasonable doubt—I really do think there would be enough evidence. The law does not require that a person’s act of aid and comfort involve the transfer of secret information, or even something clandestine or sinister. In one World War II case, a defendant simply let his son (whom he knew to be a German saboteur) stay at his house, and then helped him to buy a car. Each of these acts amounted to “aid and comfort.” In another World War II case involving German saboteurs, the Supreme Court suggested that even buying a meal for a known saboteur might amount to “aid and comfort.” And in several other World War II cases, people were convicted of treason for broadcasting for German radio—convicted, that is, for “mere words,” and “mere words” that, at most, were designed to offer moral support for the Germans or discouragement for the Allies.

As for the arguments about free expression and the rights of journalists, I don’t think people can really be serious about a claim that any person—even a journalist—has an absolute right to state his views regardless of the context. Imagine, for example, that an angry mob were violently demonstrating outside the White House, brandishing weapons and threatening to storm the gates, and in that context a journalist got up and read through the bullhorn an editorial calling George Bush a war criminal and urging his apprehension and punishment. If, in these circumstances, these words amounted to incitement to immediate violence, the First Amendment would (and should) do the speaker no good, whether he was a journalist or not.

The crucial point here, as I argued in an earlier post, is context. When Peter Arnett tells an American (or British or French or Bolivian) TV audience that Iraqi resistance has been stiffer and more disciplined than the American military expected, that’s journalism. When he tells an Iraqi TV audience that Iraqi resistance has been stiffer and more disciplined than the American military expected, that’s aid and comfort—or at least a jury could so conclude.

And one last thing: we do have a global media, and as a result, journalist’s words in one place, delivered to one audience, might well end up in another place, presented to another audience. Does this mean that any journalist anywhere might fairly be said to be offering “aid and comfort” to the enemy when he reports on his country’s military failures, low morale, or what have you, because of the chance that his words might be picked up by the enemy’s news service? Of course it doesn’t. Again, context is everything. Peter Arnett knew he was talking directly to Iraqi TV, responding to questions posed by a guy in an Iraqi military uniform, for broadcast to the Iraqi people, during a war between his country and Iraq. There might well be tricky cases out there where a negligently unsuspecting reporter finds his words used as morale boosters for the enemy. But this isn’t such a case. It’s not even close.

I'm about to run to the airport to catch a plane to Seattle. There's a bunch of stuff I want to blog--including the thing I left hanging about Justice Scalia's great question during the argument of the affirmative action case, but it'll have to wait. I'm hoping to have web access in the place I'm staying out in Seattle.

Cheers.

The incident in San Jose the other day, in which officials detained all of the passengers on a single plane for hours because several passengers were coughing and sneezing, turns out to have been just another outrageous case of nasal profiling.

I found myself cringing yesterday as I listened to that portion of the affirmative action argument in which Justice Scalia bullied the lawyer representing the University through a series of questions about whether a critical mass of 4%, or 6%, or 8%, or 10% would amount to a "quota." This is an age-old law professor's trick: get a student to stake out a position and then push it and push it so that it will be revealed as arbitrary and groundless. I've done it dozens of times. But as soon as Scalia started down this line, everybody in the courtroom--all of the other Justices, the lawyer herself (it was apparent from her voice), and probably every spectator-- knew exactly what he was going to say next, and what the lawyer would have to say in response, and why.

It made me wonder: what was the point of this exercise? Usually one thinks of a judge's questions in oral argument as designed either (a) to explore aloud something about which the judge is uncertain, or (b) to seek information that is not apparent from the briefs or the record, or (c) to get another judge on the panel to think about something anew, or to focus on a piece of the case that s/he might otherwise miss. Plainly, none of these was Scalia's agenda. So what was it? To whom was this line of questioning really addressed? What was he trying to accomplish?

(Incidentally, I also thought that Scalia asked one of the most interesting and original questions of the entire day. I'll blog that later today.)

Mansoor Ijaz, one of FOX News's terrorism analysts and an American Muslim, has an op-ed in today's Christian Science Monitor in which he urges people to see that Arab and Muslim Americans who are critical of the war and of the government's civil liberties record do not speak for the majority of patriotic Arab and Muslim Americans.

It's a sad little piece, really. How often have we seen the spectacle of a non-white American climbing all over himself (and others) to prove his loyalty and patriotism?

The most incredible passage is this one:

Shortly after Sept. 11, I voluntarily left a flight I was booked on because some of the passengers were nervous about traveling with a "Middle East looking person." It was as much my fault they felt the way they did as it was about me being the target of traditional cultural prejudices that have confronted other minority communities throughout American history.

What, Mr. Ijaz? It was partly your fault that the passengers around you were nervous that you were a terrorist?

Back in 1942, a very similar American spouting very similar views urged Japanese Americans to comply with whatever policy the government might visit on them. That was bad advice then, and it is bad advice today.

Read Peter Arnett's reaction to his firing.

Somehow it seems to me like Arnett's not quite getting it. He says that all he did was "state the obvious to Iraqi television." That's true. But it's also true that "stating the obvious" can give aid and comfort to the enemy. Let's take another hypothetical. Suppose that an Iraqi general told Peter Arnett that Saddam's belief that he could outlast the American assault was starting to waiver, and told Arnett that Saddam wanted a meeting with Arnett to ask him his perspective. Suppose Arnett went to the meeting and there said "It is my view that American generals have misjudged the determination of Iraqi forces." And in response, Saddam says, "well, maybe I'll press on a bit longer then."

An absurd hypothetical, yes. But I would imagine that in that scenario even Arnett would concede that "stating the obvious" had given Saddam aid and comfort.

If that's so, then, as I said yesterday, the real question is just how different his comments to Iraqi TV are from the hypothetical.

If there's a good defense here (and I think there is), it's not that Arnett was just "stating the obvious." It's that he wasn't adhering to the enemy when he did it.