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"

Iraqi exiles, trying to get the US to do their bidding, and seeking the top spot in a post-war government, fed the US government exaggerations and lies, and the US government believed them.

Goodness. Who would have imagined that these Freedom Fighters would have been dishonest to us? That was just really, really, not nice.

My fair-minded and thoughtful law school classmate Michael Froomkin has a blog. And I'll be damned: it's fair-minded and thoughtful.

An Elks Lodge in Evanston, Wyoming, adopted a policy that they would not rent their hall out for "hispanic functions."

Ah, Wyoming....

A radio talk-show host in Rochester, NY, called the city's black mayor a "monkey" and an "orangutan." When it was pointed out to him that there was, ooh, just an eensy-weensy little chance that those comments might be racist, the talk-show host delivered an apology so exquisitely phrased that you'd think he was a politician:

"I would certainly apologize for any interpretation of my words which would appear to be racist."

Wow.

If you're a blogger, you should consider getting together with another blogger in real time. It's a fun thing to do. I spent some time with Jenny this afternoon, and it was really enjoyable. We talked about law school, law, life, and our common alma mater. It was especially fun to see and hear how a person I've come to know through email and her blog actually moves, talks, looks, and thinks (in real time). Very interesting.

So go out and meet a blogger today. You won't regret it.

If you're in DC, take a long lunch break this coming Monday, 9/22, and wander down to the Freer Gallery's Meyer Auditorium at 1:00 p.m. for a panel discussion on the Japanese American internment and its post-9/11 civil liberties legacy. I'll be on the panel, as will Jim Zogby of the Arab-American Institute, Chirinjeev Kathuria representing the Sikh-American community, and Jean Kariya, a former internee.

The panel is part of the Celebration of Patriotism and Constitutional Rights that is taking place in DC from Sept. 21 to Sept. 23, sponsored by the Smithsonian and the National Japanese American Memorial Foundation. (Note that that link incorrectly lists my panel as starting at 1:30. It actually starts at 1:00.)

Really.

Here's what the radar looks like right now:



Cool.

It's raining here in North Carolina. And breezy.

In honor of Isabel, consider the following:

Hurricane,

Hurricane (turn your speakers up to "11" for this link),

Hurricanes.

This news story seems like a good introduction to our upcoming symposium on Law, Loyalty, and Treason here at the University of North Carolina School of Law.

The symposium will take place on Friday, October 10, 2003. The morning session and luncheon will be at the Carolina Club; the afternoon session will shift to the law school.

In the first morning session, several panelists will present theoretical accounts of law's relationship with loyalty in settings as diverse as treason and employment law. Highlights will undoubtedly include the paper by George Fletcher on whether treason is compatible with a liberal theory of the criminal law, and a paper by David Cole on what he calls the post-9/11 rise of the blacklist. Other presenters include Marion Crain and Robert Turner.

The second morning session and both afternoon panels will include legal scholars and historians who focus on crises of law and loyalty at key moments in American history: the Founding, Reconstruction, World Wars I and II, the Korean Conflict, the Cold War, and Vietnam. Participants include Gabriel "Jack" Chin (on Reconstruction), Robert Chesney (on the Founding era), John Q. Barrett (on Robert Jackson as Attorney General during WWII), Robert Strassfeld (on the Vietnam era), Michael Parrish (on Joseph Rauh's early defense of alleged subversives), Ellen Schrecker (on the Cold War), Kathleen Kennedy (on gender and subversion during WWI), Elizabeth Hillman (on suspected disloyalty in the military during the Korean Conflict), and Yours Truly (on the treason prosecution of several Japanese Americans in 1944 for helping German POWs escape from their POW camp).

Our lunchtime keynote speaker will be the Honorable Michael Chertoff, the newest judge of the United States Court of Appeals for the Third Circuit. Judge Chertoff was the Assistant Attorney General in charge of the Justice Department's Criminal Division from 2001 (before 9/11) to 2003.

It promises to be an engaging and highly relevant program.

In legal writing (but seemingly nowhere else), one often finds the curious assertion that somebody was "hoist by his own petard."

If you're not sure what that means, read this.

It will be amusing now to watch some elements of the right try desparately to extricate themselves from the equal protection web the Supreme Court spun for them in Bush v. Gore.

I'm finding it hard not to snicker.

Sheesh. You gotta wonder why TV and newspapers waste their time with these sorts of questions.

A couple of people have posted more than one comment in response to my earlier message about Glenn Reynolds's editorial decision to post a photo of the WTC jumper on instapundit on 9/11/03.

One of the multi-posters recently posted this:

Eric, if a few of us seemed a bit hostile here, it is, at least in my case, because we're pretty sick and tired.

Sick and tired of being told, "Yes, it is awful, and nobody can condone terrorism. But...."

We are sick and tired of being told, "It's time to move on...." You're an attorney. Would you tell your clients, who may have suffered a very real wrong, "Hey, it happened TWO WHOLE YEARS ago. Just move on."? Not if you wanted to practice for long.

We're sick and tired of being told that we don't need a news retrospective about 9/11. We were having retrospectives about Princess Diana's death 4 years after the event. We had OJ 24/7 for months, and during his trials a year or two after that. We have Laci. We have Kobe. But 9/11 doesn't matter? The war on terror is going on NOW. Today. And the event that began it doesn't count as much as Princess Di? Laci? Kobe?

We're grown-ups. Most of us don't need to be sheltered from the reality. Sorry about you. If you need to be sheltered from 9/11, well, you need to have your psyche checked.

I never said anything like "it's awful and nobody can condone terrorism, but..." And I don't believe that.

I never said anything like "it's time to move on." And I don't believe that.

I never said anything like "we don't need a news retrospective about 9/11." And I don't believe that.

I never said anything like "9/11 doesn't matter." And I don't believe that.

I never said that the event that galvanized our war on terror "doesn't count as much as Princess Di, or Laci, or Kobe." And I don't believe that.

What I said was that Glenn Reynolds made an error in editorial judgment when he chose to put a photograph of a WTC jumper atop his enormously popular and widely read blog "Instapundit." I said that some people have worked to avoid exposure to those photos, and that as unsuspecting Instapundit readers who are familiar with its ordinary tone and content, these people could not reasonably expect to have this graphic image greet them when they click their way to his site. I think that's a big mistake in editorial judgment for a widely read, general-interest blog like Instapundit.

It has been fascinating to me how quickly some (or, if the comments on this blog accurately reflect all readers' opinions, most) readers took a comment about editorial judgment at a blog and treated it as a statement against the war on terror, or as a denigration of the real suffering of that horrible day.

Why is that? I post a comment about a blogger's editorial judgment in posting a particular photograph, and instantly become a lightning rod for people's displaced rage (or is it their fears?) about what they perceive to be American society's fading memory of 9/11 and its wavering commitment to some particular policy response to the threat of terrorism. They attribute to me all sorts of positions about the war on terror and about the general question of 9/11's legacy. (Just read the comments.)

And yet it's *my* psyche that needs checking?

There is a fascinating, but unarticulated, assumption underlying many of the comments responding to my initial post, and it's an assumption about what a healthy human being's "correct" baseline should be for discussing and processing the horrors of 9/11. The assumption is that a proper processing of the horror of 9/11 must be accomplished *visually*, through exposure to photographs of the extremity of the physical trauma at its absolute height.

Where is it written that that is how all people are supposed to engage the horror of 9/11? That graphic pictures are essential to properly comprehending that horror? That a human being who chooses to engage that horror through other means is hypersensitive, weak, shelter-seeking, or (as my favorite comment put it) "lacks balls?"

That, friends, is a load of macho crap. A big load. A lot of it is coming from women, but it's still just machismo. I'm not buying it.

I read a lot of poems yesterday, and I read some narratives about victims. I looked at some pictures of various moments of that day: Andrew Card informing President Bush in the school classroom, people running away from the debris cloud, people stunned and sobbing in the streets. I didn't look at a lot of pictures or films of the airplane impacts, or of the building collapses, or of the jumpers.

Oh, and I also went and read some news stuff in various places about developing antiterrorism policy. You know, the kind of stuff that one usually finds on Instapundit. The kind of stuff I (quite consistently with reasonable expectations) went there looking for, when I instead had a photo of a WTC jumper stuffed in my face.

TV and newspaper ("big media," that is) understand this about human beings, I think. Generally, they well understand (maybe just because they have to sell papers and advertisements) that their readership is a diverse group of human beings with varying sensitivities and varying ways of engaging with, and processing, disturbing information.

The very last comment to my original post (as of now, anyway) says this to me: "If you can't look at this poor, desperate man in the last moments of his life, then do not look with reproval at the person that posted it, look to your own lack of courage."

Saying that a responsible journalist gives his reader a choice about whether or not to view a man plummeting to his death is . . . cowardice.

See what I mean?

There in the midst of the comments telling me that I "have no balls" (last time I checked, I do), was a comment (from Steve at Begging to Differ) that met head on the issue I raised today about instapundit's temporary posting of one of the WTC jumpers:

"I do not understand how visiting a web site is different from picking up a newspaper or turning the page in a magazine. Does my local paper give me a 'measure of control' over when, and under what circumstances I see the picture on the front page? Surely it does, in the sense that I choose when and under what circumstances to pick up the newspaper - but surely it does not in the sense that I never know what image I am going to see. It's the same thing with Instapundit, isn't it?"

Yes, it is the same, and that's exactly my point. Your local paper most definitely does give you a measure of control over when and in what circumstances you see very disturbing images. Your local paper exercises something called "editorial judgment." It has meetings at which people debate what picture ought to go above the fold on the front page. Different papers have different standards, and when I decide which one I want to bring into my home, the paper's judgment about which sorts of images it will put above the fold on page one is part of what forms my desire to read or subscribe.

Your local paper's editorial board, when they're feeling sad or angry or incensed, doesn't just slap whatever picture on the front page that they think will most effectively transmit those feelings to the reader. Each day the world's photojournalists undoubtedly capture images of shocking and nauseating (and true) violence and make them available to newspapers. But most newspapers don't run 'em on page one above the fold, if they run them at all.

Television newscasts too, when they are going to present graphic images, typically let the viewer know that something graphic and disturbing is coming. And of course there's lots of stuff that they don't run at all, even with a warning.

I've read the New York Times for a long time, and from my reading, I've come to know what to expect. I have a feel for the range of disturbing images they'll print and what they won't. So I can pick it up, or turn the pages, with some rough sense for what I'll find. If they regularly printed pictures of gory violence, I don't think I'd pick it up. I think they know that -- not about me specifically, of course -- but about their general readership, and that informs their decisions about what to print and what not to print.

I've read Instapundit for a long time. From my reading, I thought I knew what to expect from it. I certainly didn't expect pictures of a person plunging to his death. I guess I was wrong.

What on earth was Glenn Reynolds thinking?

Last night I checked in for my daily Instapundit perusal, and I was confronted with a large photograph of a man plunging from one of the World Trade towers on 9/11/01. I was on the phone at the time, and got so flustered that I lost my place in mid-sentence and just stammered for a second or two and then couldn't remember what I was saying.

(Yes, I know. I shouldn't be talking on the phone and surfing at the same time.)

I notice this morning that Glenn has removed the photograph, seemingly without explanation.

Some people have worked very hard to avoid those photos of falling bodies for the past two years. And those people don't need to have them forced into their face in the name of "facing the truth" about 9/11, or in the name of bolstering a position in some policy debate.

This is not a case where you can say to the offended viewer, "well, nobody made you visit instapundit; you clicked your way over there yourself." This photo was so far from the type of image one normally finds on instapundit that no regular reader could possibly have expected it. (Now that I think of it, there are almost never images on instapundit of any variety.)

What (just to take one example) does Glenn think the impact of that photo might have been on an unsuspecting Instapundit reader who has lost a loved one to suicide, especially a suicide committed in this manner? (I am not such a person, but know people who have lost relatives in this way, and who were deeply traumatized by those photos two years ago.)

Posting that picture was, in my judgment, a mistake in judgment on Glenn's part. I'm taking a break from Instapundit for a while. I'll get back to it, I'm sure; it's generally a marvelous blog and it's pretty much the spinal cord of this part of the blogosphere. But right now I'm feeling like I just don't want to go over there anymore.

Instapundit has been quite effective at demanding corrections of editorial mistakes all over the media. I'd like to see a confession of such error from Glenn today.

UPDATE: I'm assuming I've been linked by Glenn, because I notice that my comments section is filling up with instapundit defenders, some of whom show some signs of actually reflecting about what I said, and others of whom are jumping at the chance to show how tough they are and what a wussy I am.

FURTHER UPDATE: Lisa, one of the more civil and articulate commentators to my original post, has this to say: "If that poor man had to face up to the choice of burning or jumping I think the least we could do is have the courage not to turn away when we see the image. I won't turn away and deny what happened on that day." Some people are having a hard time understanding this, but I'm not arguing for either turning away from what happened that day, or for denying it. I'm arguing that a responsible journalist (of Instapundit's sort) ought to give his readers at least a measure of control over when, and under what circumstances, they see such an image.

Carly Simon takes on the federal sentencing guidelines.

Just got the following release from an organization that continues to seek an apology from NC Rep. Howard Coble for his comments back in February:

On Sept. 18th, 2003 at 4:30 pm, the Triad Blue Triangle Network will join with the "Apologize or Resign!" Coalition in a protest outside the offices of Rep. Howard Coble in Greensboro. This will be the third demonstration of local residents at Coble's offices for comments he made in February of this year regarding the internment of Japanese Americans durring WWII. Responding to a caller to a talk radio program on WKZL who suggested that US authorities round up Arab-Americans like Americans of Japanese descent were rounded up during WWII, Coble resonded that the mass detentions of Japanese Americans was for their own protection.

"They [Japanese Americans] were an endangered species," Coble stated. While he disagreed that Arab Americans should be detained en mass today, he left the door open to future round-ups by saying, "There were Japanese-Americans who wanted to do us harm then, just as there are Arab-Americans who wish to do us harm now."

Coble's comments have been widely denounced all across the country. The California State legislature passed a resolution stating that Coble should be censured for his comments. Civil rights organizations like the NAACP, the Anti-Defamation League, the Arab American Anti-Discrimination Committee, the Japanese American Citizens League, and the national labor organization the AFL-CIO have called for either an apology from Coble or for him to step down from his post as the chairperson of House Subcommittee on Homeland Security.

The Triad Blue Triangle Network was formed to respond to the increasing attacks since Sept. 11th 2001 on Arab, Muslim, and South Asian immigrants living in the US. We find Coble's comments to be an insult to the historical pain and loss suffered by Japanese-American internees and their families, and a threat to the security of Arab, Muslim, and South Asian people in the US today. There are currently 13,000 Muslim, Arab, and South Asian immigrants in the US today who are awaiting deportation, none of whom have been connected in any way to terrorism. The Blue Triangle Network feels that only a mass outpouring of protest against the policies attacking immigrants solely on the basis of their ethnicity, religion, or national origin can stop these repressive attacks. It is in this spirit that we will join with the "Apologize or Resign" Coalition on Sept. 18th.

The protests have had an effect so far; in May, Coble stepped aside as commencement speaker at the graduation excercises of Guilford College rather than face large protests by students and others. However, in July, after agreeing to meet with the Japanese American Citizens League, Coble reneged on the agreement, most likely because the heat surrounding the issue has died down. Let's not let this important issue disappear!


The "Apologize or Resign" Coalition includes members of the Greensboro Peace Coalition, the Islamic Center of the Triad, the Blue Triangle Network, the International Socialist Organization, and others with no organizational affiliations. Please join us in opposing Coble's comments and calling on him to "Apologize or Resign!"

Time: 4:30 pm Thursday, September 18th.
Place: Rep. Howard Coble's Greensboro office at 2102 North Elm Street, near the Golden Gate shopping center at the intersection of Cornwallis and Elm.

And once you've explained to me how a death row inmate gets to hold a pre-execution press conference, maybe you can explain to me how Newsweek decided to offer to publish this terribly written, unfunny, myopic, simple-minded piece in its weekly "My Turn" column.

The piece takes the author's own experiences with a rather miserable bunch of family and acquaintances, mixes them together with a dumb old cliché, and produces an astonishing little piece of Jewish self-hatred.

I just can't believe that out of all the submissions that Newsweek undoubtedly receives for its "My Turn" column, this is the best they can come up with.

Could somebody please explain to me how a death row inmate secures a press conference on the day before his execution, so that he can share, on national television, his utter lack of remorse and his supreme confidence that heaven awaits him?

I've never seen televised pre-execution press conferences by other Dead Men Walking. Is there a rule that allows this? Was this some official's exercise of discretion? If there's a rule that allows it, why don't other capital inmates take advantage of it?

It is outrageous that the families of his victims should have to suffer through this reinfliction of injury.