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"

Is it really any surprise that these prolonged detentions happened in Iraq when these happened right here in the USA?

I'm listening and listening and listening to Bob Marley & The Wailers' Live at the Roxy. It's a concert album, but the mikes didn't really pick up too much audience noise (or perhaps the audience was just very quiet), so what shines through is the band -- the incredible musical tightness of this incredible band. Fabulous.

I really like this essay about the comic strip "Peanuts." Link courtesy of Duncan over at Rattlejar News.

I, by the way, continue to look forward to the big biography of Charles M. Schulz, due out in 2006.

It has been brought to my attention that Jay Bybee, since January 7, 2003 a U.S. Circuit Judge for the Ninth Circuit, was sworn in as head of the Office of Legal Counsel at the Justice Department on October 23, 2001 -- before the fall of Mazar-i-Sharif and Kabul to Northern Alliance and Coalition forces in Afghanistan.

So I was wrong when I wrote earlier today that OLC was without a boss during the critical time period.

Judge Bybee clearly hit the ground running at OLC -- see, for example, his congressional testimony about the settlement of a telecommunications case on December 6, 2001.

One therefore has to wonder why, a month later, when OLC issued its opinion that the Geneva Conventions did not apply to Taliban and al Qaeda detainees, that opinion was authored and signed by John Yoo, a deputy in the office, along another non-supervisory attorney in the office, but not by the head of the office?

Might this have been an opinion that some folks didn't want their names on?

I note that Dave over at Orcinus is now blogging the question of the potential involvement of the Justice Department in the review and/or approval of various methods of interrogation that U.S. agents and soldiers have been using since 9/11. This, I think, is a good development for the pursuit of the truth about all of this and a worrisome development for DOJ; Dave Neiwert, once on a story, tends to go after it like, well, uh, like a killer whale.

Dave's post from yesterday suggests that while OLC attorneys may have known of now-challenged interrogation practices, the real "source of the DOJ legal strategy" is probably Solicitor General Ted Olson -- a person about whom Dave has written in the past.

I suspect Dave is wrong on this. While I'm certainly open to correction from those with OLC/SG experience, I do not believe that the Solicitor General of the United States typically plays an active prospective role in the formulation of law enforcement and national security enforcement policy (in the sense of designing strategies). The SG's role is instead to advance and defend the Administration's policies and strategies in litigated matters before the Supreme Court. The SG also makes the ultimate decisions on whether the government may take appeals from federal trial courts to the intermediate federal appellate courts. (This was the primary interaction I used to have with the SG's Office back when I was an Assistant US Attorney litigating criminal appeals in Newark, New Jersey.) But all of this work, I have to imagine, would take up the Solicitor General's time and energy. I just can't imagine that the SG would also be deeply involved in prospective policymaking and pre-litigative review of the actions of other executive departments.

Now, the Office of Legal Counsel was without a permanent boss during a good chunk of the crucial time period -- 9/11/01 into 2002. (This may be why the now-controversial memorandum (.pdf file) on the applicability of the Geneva Conventions to Taliban and al Qaeda detainees was signed by John Yoo, a deputy in the Office of Legal Counsel, rather than by the head of OLC. I'm told -- and it was certainly the practice of OLC during the Clinton presidency -- that opinions of major significance are ordinarily signed by the head of OLC, not by a deputy. See, for example, opinions of arguably comparable significance on authorization of continuing hostilities in Kosovo, on sharing Title III electronic surveillance information with the intelligence community, and a sitting President's amenability to criminal indictment and criminal prosecution, all of which went out over the signature of Randy Moss, the head of OLC.

So, with nobody permanent at OLC, and with Ted Olson (a former OLC guy) in the building, perhaps Olson's expertise was sought out on such matters more than might be typical. But I doubt it.

Did you know that there's a place called the George Bush Center for Intelligence?

No, really.

Isn't that funny?

(I know, I know. It's 41, not 43. Still.)

(Thanks to buddy Brad for the pointer.)

Today I filed Freedom-of-Information-Act requests with several departments in the executive branch. I'm seeking the following:

a. information or records pertaining to methods, techniques, and practices of interrogation of individuals affiliated with, or suspected of affiliation with, the Taliban, al Qaeda, and/or enemy forces in the war in Iraq, generated since September 12, 2001,

b. information or records pertaining to the U.N. Convention Against Torture generated since September 12, 2001,

c. information or records pertaining to the applicability of the federal criminal prohibition of torture (18 U.S.C. §§ 2340-2340A) to the conduct of agents of the United States generated since September 12, 2001, and

d. information or records pertaining to the extradition or transfer from U.S. custody of individuals to countries where those individuals might be subjected to torture generated since September 12, 2001.

I don't expect anyone will actually produce anything, but as a wise man I know (my dad) often says, "You don't ask, you don't get."

This petition effort to get Boalt Hall Professor John Yoo to resign his faculty position is silly, and, I think, a big waste of time. (My feelings on Yoo's academic freedom defense are mixed: on the one hand, the petition drive is obviously an effort to intimidate Yoo for his views; on the other hand, who in his right mind thinks he can return to Berkeley of all places after advocating against the applicability of the Geneva Conventions without provoking some student ire? I mean, this is Berkeley, for chrissakes!)

Also a waste of time, I think, are inquiries into what Deputy Solicitor General Paul Clement himself knew about interrogation abuses in Iraq and Afghanistan at the time he told the U.S. Supreme Court that the U.S. executive does not command "mild torture." (Inquiries into the role that other DOJ offices or attorneys played in approving degrading or abusive interrogation methods are not, by contrast, a waste of time, in my view.)

After much thought, and several very interesting conversations with a couple of very wise people, I'm peruaded that the important inquiries are these:

In which executive departments have attorneys been called upon to review the legality under American and international law of interrogation methods such as "water boarding" (in which people are dipped into water to make them fear they're about to be drowned) and multi-year confinement of people in total isolation? (On the strategy of permanent solitary confinement, see the Declaration of Lowell Jacoby (.pdf), Director of the Defense Intelligence Agency, on which the administration has relied in court.)

What conclusions did these attorneys reach on the legality of these methods?

How were disputes among attorneys or departments about the legality of these methods resolved? By whom?

Was DOJ's Office of Legal Counsel ever asked to opine on the lawfulness of any specific methods of interrogation? On whether any specific method of interrogation or approach to interrogation constituted "torture" within the meaning of any federal statute or treaty, or a violation of any provision of the Geneva Conventions? Who prepared any such opinion? What conclusion did he or she reach? Did DOJ's position on any such question conflict with an opinion rendered in another executive department? If so, how was the dispute resolved?

Given that there was no explicit congressional authorization for techniques of this sort, was there discussion within the executive branch about whether any congressional act even implicitly approved of them? Or about whether it was necessary to inform Congress in any way about the more aggressive methods of interrogation? What position did lawyers take on these questions? How, and by whom, were any disputes on these questions resolved?

Inquiring minds want to know.

A scary headline from our local TV station:

N.C. Residents Urged To Be On Lookout For Giant African Land Snail

As a public service, I'm going to put up the below webcam shot of downtown Raleigh, with major landmarks noted. It will refresh every 90 seconds. I'll be checking it occasionally throughout the day, but PLEASE let me know if you spot anything!

Josh Marshall implies that our President, with his approval rating plummeting toward the high 30s, should do what an earlier Texan, LBJ, did in 1968: refuse his party's nomination for a second full term.

The notion that Bush would pull an LBJ is laughable for many reasons, not the least of which is that LBJ was a man who reflected seriously on his own abilities and was racked by self-doubt.

Not so W.

Does your local paper have one of those "Local Voices"-type features in the Sunday edition? You know--where they've got five or six face shots of local residents responding to the same question?

The Onion always spoofs these brilliantly.

In my two local papers today, citizens respond to these pressing questions:

"When was the last time you visited your family's burial plot?" (The Chapel Hill News.)

and

"What would you do if you saw a bear?" (The Chapel Hill Herald.)

Take a little while this weekend and read this memorandum (.pdf) from the Justice Department's Office of Legal Counsel to the General Counsel of the Department of Defense on the question of whether the Geneva Conventions apply to Taliban and al Qaeda captives.

Rarely will you see a more stark example of legal reasoning driven by a desired conclusion.

Note one oddity: the controversial position that this memorandum espouses was vigorously disputed by attorneys in other departments, especially State. Yet when White House Counsel Alberto Gonzales presented the disputed issue (.pdf) to the President, presumably for the President's decision (he is, after all, the Chief Executive, whose job is to resolve these sorts of intra-departmental disputes), Gonzales presented OLC's position as "definitive."

That's nonsense; the only "definitive" position of the Executive Branch is the President's.

If you'd heard this as a demo, you would not have imagined it could become a #1 hit. (This version is by the guy who wrote the song, Robert Hazard, a mildly-David-Bowie-ish Philadelphia rocker who never quite made it (but came close) back in the early '80s.

Deputy Solicitor General Paul D. Clement, arguing the Padilla and Hamdi cases for the government, said, in response to a question from Justice Stevens, that "[i]t's . . . the judgment of those involved in this process [of interrogating POW's and enemy combatants] that the last thing you want to do is torture somebody or try to do something along those lines."

I have argued that this assertion (and another similar one), coupled with Clement's statement in response to a question from Justice Ginsburg that "this executive doesn't" command the use of "mild torture" to get information from detainees, amounted to at least a reckless misrepresentation to the Court by the Justice Department.

Some have argued that because the Justice Department did not view the interrogation methods as "torture"--defined in a legal, rather than vernacular, way--the Department was not misrepresenting anything. Others have suggested that the attorney's use of the qualifier "something along those lines" to the word "torture" was inadvertent and meaningless.

I've had a look a the briefs that the Justice Department filed in Hamdi and Padilla, and these make it even clearer to me that the attorney's responses in Court that day were neither off-the-cuff imprecisions, nor careful legalistic parsings of the word "torture," but were instead part of a larger effort to assure the Court of the essential humaneness of the overall project of interrogating detainees.

Consider this excerpt from the government's opening brief (.pdf) in Rumsfeld v. Padilla, submitted on March 17, 2004 (at which point the military and quite likely some DOJ attorneys had reason to know that the interrogation process was not essentially humane):

[D]etention [of enemy combatants] enables the military to gather critical intelligence from captured combatants concerning the capabilities and intentions of the enemy. See J.A. 75-88 (Jacoby Decl.); see also Int’l Comm. of the Red Cross, Commentary III, Geneva Convention Relative to the Treatment of Prisoners of War 163-164 (Jean S. Pictet & Jean de Preux eds. 1960) (“[A] state which has captured prisoners of war will always try to obtain information from them.”); United States Dep’t of the Army, The Law of Land Warfare, Field Manual 27-10, ¶ 48 (1956) (“[T]he employment of measures necessary for obtaining information about the enemy and the country are considered permissible.”).

Those war-related purposes categorically distinguish the military’s detention of enemy combatants in wartime from detention at the hands of civilian authorities. The detention of enemy combatants is “neither a punishment nor an act of vengeance,” but is a “simple war measure.” William Winthrop, Military Law and Precedents 788 (2d ed. 1920) . . .

Consider also this passage from the government's responding brief (.pdf) in Hamdi v. United States, filed on March 29, 2004:

In addition, any due process analysis would have to account for the Executive’s compelling interest—especially during the initial stages of an individual’s detention—in preventing a captured enemy combatant from enjoying access to counsel or others. . . . [T]o a degree perhaps greater than in any prior armed conflict in which the United States has been engaged, “[t]he security of this nation and its citizens is wholly dependent upon the U.S. Government’s ability to gather, analyze, and disseminate timely and effective intelligence.” J.A. 347.19 The military has found that a critical source of such intelligence is enemy combatants who are captured in connection with the conflict. J.A. 348. With respect to Hamdi, the military determined that “Hamdi’s background and experience, particularly in the Middle East, Afghanistan, and Pakistan, suggest considerable knowledge of Taliban and al Qaeda training and operations.” J.A. 350.

The military has learned that creating a relationship of trust and dependency between a questioner and a detainee is of “paramount importance” to successful intelligence gathering. J.A. 349. The formation of such a relationship takes time and varies from one detainee to another, but when such a relationship is formed, critical intelligence may be—and has been—gathered. J.A. 348-349. . . .

This critical source of information would be gravely threatened if this Court held that the moment a next-friend habeas petition is filed on behalf of a captured enemy combatant, a right of access to counsel automatically attaches with respect to the detainee. As Colonel Woolfolk stressed in this case, “[d]isruption of the interrogation environment, such as through access to a detainee by counsel, undermines this interrogation dynamic” and, “[s]hould this occur, a critical resource may be lost, resulting in a direct threat to national security.” J.A. 349. Colonel Woolfolk further explained that, during the proceedings below, the military had determined that granting Hamdi access to counsel would have “disrupt[ed] the secure interrogation environment that the United States has labored to create” with respect to Hamdi, and would “thwart any opportunity to develop intelligence through this detainee.” J.A. 350.

Very, very troubling.

Atrios brings us Eric Idle channeling Tom Lehrer channeling Lenny Bruce. (Click on Atrios's link, and if you're at work, turn your speakers down a notch or two, unless you work at the DNC, in which case you should turn them up a notch or two.)

USA Today is covering Rep. John Conyers's request (.pdf file) for an investigation of whether the Justice Department misled the Supreme Court about the government's interrogation practices.

In the context of what is, at bottom, a defense of the interrogation methods used at Abu Ghraib, Debbie Daniel, a columnist at GOPUSA, defends the incarceration of Japanese Americans during World War II:

We took 120,000 Japanese Americans - two thirds were citizens of the United States - and locked them up during World War II. We put them inside barbed-wire fencing; we didn't strip them of their clothes - we stripped them of their dignity; took them from their homes; caused many to lose their businesses, because we could not take a chance that any one of them might hurt us. None did, but we still couldn't take that chance . . . we were at war.

Please write to Ms. Daniel at dddtx@yahoo.com and let her know that this is dangerous and stupid.

(Thanks to atrios for spotting this.)

Using game theory and diagrams with colors, Larry Solum figures out that the yesterday's great judicial appointments compromise reached by the President and Democrats on the Senate Judiciary Committee means ... nothing.

Interesting reading. Check it out.

Rep. John Conyers, the ranking Democrat on the House Judiciary Committee, today sent a letter (.pdf file) to the Committee's Chair Jim Sensenbrenner asking for an investigation into allegations that the Justice Department knowingly or recklessly communicated false information to the United States Supreme Court at oral argument in the Hamdi and Padilla cases.

The letter recites Deputy Solicitor General Paul Clement's exchanges with Justices Ginsburg and Stevens about whether the United States engages in "mild torture" or "things of that nature" to elicit information from captives.

It then says the following:

At a minimum, it is disturbing that the Solicitor General's office provided information that was clearly false, and others in the Justice Department knew to be false. More disturbing is the possibility that these remarks may have been part of a deliberate effort on the part of the Solicitor General's office to mislead the Justices in cases that will undoubtedly be among the most important decided in our lifetimes. This is also an apparent violation of a fundamental tenet of legal ethics -- the duty of candor toward the court.* After all, at the time of Clement's comments, many officials within the Bush administration were well aware that the Defense Department was investigating grave abuses at Abu Ghraib, the brigadier general in charge of the prison had already been removed from her post, and, according to the New York Times, some of Clement's colleagues at the Justice Department were aware that the Bush administration had instituted policies that allowed the Central Intelligence Agency (CIA) to use "severe" interrogation techniques on certain al-Qaida members.

Given the Judiciary Committee's primary oversight responsibilities over the Justice Department, it is imperative that our Committee take the lead in investigating these disturbing allegations. In addition to ascertaining the merits of such assertions, an investigation could also shed light on what information other officials within the Justice Department knew, and whether any information was intentionally withheld from the Solicitor General's office.

It is hard to believe the Mr. Sensenbrenner will support this. But you never know. Stay tuned.

A stunning article on the killings of 5 Iraqi POWs. Link via talkleft.

Michael Isikoff has a story in Newsweek about a memorandum (.pdf file) dated January 25, 2002 from Alberto Gonzales to the President. The memo reveals that even at that early time, the Justice Department's Office of Legal Counsel had already decided that the Geneva Conventions did not apply to Taliban and al Qaeda detainees--a conclusion that the State Department disputed.

Surely the Justice Department lawyers who adjudicated this question of the applicability of the Geneva Conventions must have understood the context in which the question arose -- a context that Gonzales's memo to the President made crystal clear. If the Geneva Conventions did not apply, Gonzales explained, then interrogators would have a freer hand in interrogating prisoners who might have information about future attacks against the United States. Moreover, if the Geneva Conventions did not apply, then there'd be less reason to fear that American interrogators might be subject to domestic prosecution for "outrages against personal dignity" in their treatment of prisoners.

The matter of the Solicitor General Office's representations to the Supreme Court in the Hamdi and Padilla argument now screams a bit louder for investigation. At a bare minimum, OLC lawyers knew as early as January 2002 that interrogators wished to use tactics that might be construed as "outrages against personal dignity" in questioning Taliban and al Qaeda captives.

Did DOJ lawyers outside OLC know this? What did they know? Did OLC keep the SG's Office in the dark on interrogation methods? Did the military and/or the CIA keep DOJ as a whole in the dark on interrogation methods?

Salon.com today picks up on IsThatLegal's call for an investigation into whether the Justice Department knowingly or recklessly misrepresented to the United States Supreme Court that the executive branch was not torturing enemy combatants or prisoners of war.

Much has been written about whether Paul Clement, the Deputy Solicitor General who made this representation to the Court, himself knew or had reason to know of the interrogation methods that were being used in questioning POWs and enemy combatants. I'd like to say--again--that I have seen nothing in the public record thus far that would lead me to think that Clement himself actually knew that what he said to the Court was false. (Today's piece in Salon argues that people in the Solicitor General's Office must have known about the interrogation practices, the pending investigations within the military, and even the military's request that CBS News delay release of the damning photos for a couple of weeks (until just after the arguments in Hamdi and Padilla)).

But I'm much less interested in what Paul Clement actually knew than I am in (a) what other offices within the Justice Department knew at the time that the SG's office was preparing the briefs and then arguing them in Court in the Guantanamo, Hamdi, and Padilla cases, (b) assuming that some other office knew of the allegations of abuse and torture, whether any DOJ officials made the decision to keep this information from the Solicitor General's Office, and if so, whether that was consistent or inconsistent with ordinary practice, (c) how it could be that the flow of extremely relevant information was so poor between the Justice Department and its client, the Pentagon, and, finally, (d) whether any official in the Pentagon decided not to tell the Justice Department's lawyers about the abuse and torture in order not to weaken the military's position in the cases pending in the Supreme Court.

Where are the House and Senate Judiciary Committees?

My goodness. I didn't even know Todd was still alive.

Michael Froomkin (as is his wont) is asking all the right questions about Rumsfeld and Bush in the wake of Seymour Hersh's devastating piece in the New Yorker.

Phil Carter argues cogently that a system that extracts information by torture is a system that will obtain few convictions in court.

There is, I think, a touch of credulity to Phil's piece -- namely, his willingness to take seriously the premise that the administration is interested in bringing top al Qaeda people to justice (as opposed to just killing them).

But from a legal perspective, I think Phil's analysis is spot-on.

I always tell my Constitutional Law students that an impeached and convicted President's legal challenge to the validity of his impeachment and conviction is the paradigm of the case that no court would dream of touching. That's just what the justiciability principle called the "political question doctrine" is for, I tell them. What court, I ask them, would dream of trying to pull off the trick of reinstating an impeached and convicted executive?

Guess I'll have to rethink that.

Back on April 28, at oral arguments in the Supreme Court in the Hamdi and Padilla cases, Justice Ginsburg had this exchange with Paul Clement, the Deputy Solicitor General:

JUSTICE RUTH BADER GINSBURG: But if the law is what the executive says it is, whatever is "necessary and appropriate'' in the executive's judgment, as the resolution you gave us that Congress passed, it leads you up to the executive, unchecked by the judiciary. So what is it that would be a check against torture?

A. Well, first of all, there are treaty obligations. But the primary check is that just as in every other war, if a U.S. military person commits a war crime by creating some atrocity on a harmless, you know, detained enemy combatant or a prisoner of war, that violates our own conception of what's a war crime. And we'll put that U.S. military officer on trial in a court martial. So I think there are plenty of internal reasons --

Q. Suppose the executive says, "Mild torture, we think, will help get this information?" It's not a soldier who does something against the code of military justice, but it's an executive command. Some systems do that to get information.

A. Well, our executive doesn't, and I think - I mean.

It turned out that people within the military had known for at least four months at that point that methods involving torture and humiliation had been practiced in Iraq.

There was no clear reason, at that point, to suspect that the Justice Department knew of US government agents' use of (in Justice Ginsburg's words) "mild torture."

Today, however, we learn that, in the cases of certain top al Qaeda detainees, the CIA has "used graduated levels of force, including a technique known as 'water boarding,' in which a prisoner is strapped down, forcibly pushed under water and made to believe he might drown." And most importantly, we read this:

"These techniques were authorized by a set of secret rules for the interrogation of high-level Qaeda prisoners, none known to be housed in Iraq, that were endorsed by the Justice Department and the C.I.A. The rules were among the first adopted by the Bush administration after the Sept. 11 attacks for handling detainees and may have helped establish a new understanding throughout the government that officials would have greater freedom to deal harshly with detainees."

So we now know that the Justice Department has been involved in reviewing and approving methods of interrogation that have been used in at least some post-9/11 cases.

Given that, I think it now fair to inquire--and I hope a relevant congressional committee will do so--whether the Solicitor General's office knew, or could have known through the exercise of ordinary diligence, that our executive was using techniques of "mild torture" in interrogating prisoners of war and enemy combatants. Did Deputy Solicitor General Paul Clement make a knowingly or recklessly false assertion to the United States Supreme Court in order to bolster the government's legal position?

Unthinkable, you wonder? Hardly. That's precisely what the Solicitor General's Office did sixty years ago in its brief in Korematsu v. United States. The Solicitor General directed the removal from the brief of a footnote that called into question the accuracy of the military's representation that Japanese Americans had engaged in espionage and subversion. In 1984, federal district judge Marilyn Hall Patel overturned Fred Korematsu's conviction for resisting exclusion from the West Coast, noting in her opinion that "there is substantial support in the record that the government deliberately omitted relevant information and provided misleading information in papers before the court." (Korematsu v. United States, 584 F. Supp. 1406, 1420 (N.D. Cal. 1984))

I think there's now more than enough in the public record to support -- indeed, necessitate -- an inquiry into whether the Justice Department made knowing or reckless misrepresentations to the U.S. Supreme Court in Hamdi and Padilla.

UPDATE: The very knowledgeable Marty Lederman wrote me the following:

I'm fairly confident that Paul Clement and the SG, throughout their participation in the Padilla and Hamdi cases, were well aware of the Administration's interrogation practices. (See the remarkable Jacoby Declaration in Padilla.) However, having worked with Paul, I can attest that he is a straight shooter who takes very seriously his obligation of candor to the Court, and I'm confident that he was not saying anything to the Court that he did not believe to be true.

The problem is that the OLC opinions in question undoubtedly conclude that the approved "stress and duress" techniques are not "torture," for purposes of both the Torture Convention and the federal criminal statute that implements that Convention, 18 USC 2340.

The U.S.'s understanding of "torture" -- and, for that matter, of "inhuman and degrading" practices, which the Convention also prohibits -- is far narrower than a layperson's understanding, and far narrower than what presumably is the general international understanding. See, most importantly, the Senate's "reservations" upon ratifying the Convention, printed at 136 Cong. Rec. S17904 (Oct. 27, 1990). See also 8 CFR 208.18.

It's very hard to imagine how some of these "stress and duress" techniques wouldn't violate even the U.S.'s grudging conceptions of "torture" and "degrading" practices; but I'm sure that that's somehow the conclusion that OLC has reached. I imagine we'll be seeing those opinions sometime soon, if there's any serious congressional inquiry (as there ought to be).

What's most disturbing, perhaps, is our practice of "rendering" suspects to other nations with the expectation that even more aggressive techniques will be used. My understanding is that the Torture Convention prohibits the transfer of any person to another State "where there are substantial grounds for believing that he would be in danger of being subjected to terror." The NYT article today sure suggests that we're violating that prohibition, if nothing else.

FURTHER UPDATE: Unfogged notes some additional excerpts from argument before the Court in Hamdi and Padilla that are troubling. In these, Deputy Solicitor General twice suggests (maybe "implies" would be the better word) that the executive's practices do not include anything like torture defined broadly (as opposed to torture defined in a narrow and technical way).

A student just got back from the little town of Boerne, Texas, and offered me these photographs of the church whose denied request for a building permit went all the way to the U.S. Supreme Court and resulted in the invalidation of the Religious Freedom Restoration Act.








The church wanted to build an addition, but the town wanted to preserve the historic character of the landmark district in which the church was located.





Eventually (after the church lost in the Supreme Court), the town ended up allowing the church to build an addition (with a rather outlandish blue metal roof) -- although a smaller addition than the church had initially desired.





I guess it's a good thing Boerne's Super Wal-Mart wasn't inside the historic preservation area.

My love affair with Fountains of Wayne continues.

Now it's Utopia Parkway, their second album.

The song I'm stuck on right now is "Prom Theme." I don't think it's possible to evoke the experience of a suburban high school senior prom more accurately than this tune.

Here we are at last
The moment soon will pass
We'll go our separate ways
We'll vanish in the haze
We'll never be the same
We'll forget each other's names
We'll grow old and lose our hair
It's all downhill from there

But tonight we'll reach for the stars
We'll rent expensive cars
And dream our dreams
Of a perfect night
And we'll sing our prom theme.

Here we are at last
We're running out of gas
The air is getting thick
The girls are feeling sick
We'll pass out on the beach
Our keys just out of reach
And soon we'll say goodbye
Then we'll work until we die

But tonight we feel like we're stars
We'll play our air guitars
Cause we're eighteen
It's a perfect night
To sing our prom theme.

The tune is a ballad, very melodic, with a Phil-Spector-Producing-"Let-It-Be" sort of arrangement. Perfect.

I can't imagine this is an original insight -- surely this is being said in lots of places these days -- but it occurs to me as I look at these images of prison abuse in Iraq that if Vietnam was the American war that was undone by the television camera, Iraq may turn out to be the American war undone by the digital camera.

Edward Wong's story in today's NY Times on an American offensive against Shiite insurgents holed up in an amusement park had this little bit of reporting:

"At 12:30 a.m., soldiers were drawn into an intense firefight, killing an Iraqi who had been lobbing grenades from the area of the pirate ship ride."

I know it's "all the news that's fit to print" and all, but isn't this a bit more detail than we need? Or did the killed Iraqi insurgent have an eyepatch, a wooden leg, and a parrot on his shoulder?

Is it my imagination, or is that Al Gore behind the wheel of the Bush-Cheney campaign bus?

Bruce Ackerman takes up several inches of valuable space on today's Op-Ed page with his proposal that Ralph Nader name the same slate of electors as John Kerry in each state in which he (Nader) is on the ballot. This system, Ackerman notes, would ensure that votes for Nader would not tank Kerry's ability to win closely contested states, and (more to the point, I suppose, since Ackerman is an expert on constitutional law) would not be unconstitutional.

This is intellectually clever, I suppose.

But is it anything more than that? Does anyone believe that Ralph Nader is interested in enhancing John Kerry's chances of getting elected? Does anyone believe that Nader, having announced his intention to run again, would now--before the election has really heated up, before people are paying close attention, and before the possibility of any presidential debates--commit himself to a strategy that screams to voters, "I'm not really in this race"?

The world is full of intellectually clever ideas with no application to reality. Why, one wonders, did the Times run this one?

I can think of just two reasons. One is that the editors of the Times are suckers for intellectually clever ideas that arrive on Yale letterhead. (Can you imagine the Times publishing the identical piece if it had been written by an unknown assistant professor at some third-tier law school?)

The other is that the Times is trying to do everything it can (even to the point of publishing silliness) to blunt the impact of Nader's candidacy.

Neither makes the Times look too good.

My local hockey team, the Carolina Hurricanes, has a new feature: movie reviews, by center Rod Brind'Amour.

Roger Ebert he ain't.

I have another idea for the Hurricanes: how about winning a few hockey games?

I know that this is a joke, and I believe that Glenn Reynolds chose to rebroadcast it to his huge readership it because he thinks it's funny.

But this, for me, was the straw that broke the camel's back. I hadn't posted anything about American reactions to the prison photos until now---particularly the reactions of the political right--and I'll probably regret doing so. Maybe I won't even leave this post up; I don't know.

But you know what? When the President professed "deep disgust" at the photographs of American soldirs humiliating Iraqi war prisoners, I didn't buy it. Not for a second. Nor did I buy the volley of earnest and outraged condemnations of the prison misconduct that came from the blogosphere's militarists (summarized here at Instapundit).

I'm not saying anybody necessarily thinks this sort of abuse is an affirmatively good and praiseworthy thing.

But I do believe--firmly--that these condemnations are the sorts of phony and hollow things one hears from, for example, the national leadership of a fraternity when one of its campus chapters is caught hazing the crap out of a bunch of new pledges.

I think that this sort of thing--and worse--has gone on for as long as there have been men fighting wars.

And I believe that people know and expect that these sorts of things go on, and that people think that they're just an unavoidable feature of war -- something to be tut-tutted at when it's made public, but tolerated (and maybe even in private quietly smiled about) when it's not made public, which it usually isn't.

How different is this conduct, after all, from what rats at VMI and plebes at The Citadel endure? Maybe it's different in degree. (Maybe.) But is it different in kind?

So I've been pretty deeply suspicious of all the blogospheric bombast about how horrible and unamerican this conduct is. And now, when the right wing of the blogosphere starts joking about it, I'm no longer just suspicious. I'm convinced that the outrage is phony.

Sorry, folks. When you start joking--even just joking--that the photos of prison abuse might be scaring the North Koreans, you're revealing something pretty ugly.

The scandal over airlines' handing over private air passenger information to the government and to private government contractors continues to grow.

Ed Hasbrouck is the go-to guy on this story.