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"

(Cross-posted at ACSBlog, the blog of the American Constitution Society)

Regnery Publishing has a bestseller in Thomas E. Woods' "Politically Incorrect Guide to American History."

Regnery was the publisher of Michelle Malkin's "In Defense of Internment," which, you'll recall, was an effort to demonstrate that everything most people know about one tragic episode in American history—the Japanese American internment—is leftist garbage.

Well, Woods' book is like Malkin's, except that its thesis is that everything most people know about all of American history is leftist garbage.

No small task, eh? And Dr. Woods does it in just 246 pages. With wide margins, no less!

I have read the book, which I think Jeffrey A. Tucker summarizes pretty well in his fawning "review" of the book:

[Woods] shows that the Constitution was never understood to be a permanent union, that big government caused the North-South conflict, that Alexander Hamilton's friends were racketeers, that the US didn't have to enter WW I, that Hoover was a big government conservative, that FDR made the Depression worse, that there really were Communists in government, that FDR made WW II inevitable, that the Marshall Plan was a flop, that the Civil Rights movement increased social conflict and made everyone worse off, that unions made workers poorer, that the 80s weren't really the decade of greed, that Clinton's wars were aggressive and avoidable, and that his personal issues were a major distraction from the real problems of the 1990s.

Well, now that I think of it, this summary actually does omit a few things—the kindliness and magnanimity of Puritan settlers toward American Indians, the true conservatism of the American Revolution, the lawfulness of Southern secession, the North's responsibility for the post-Civil-War "black codes" in the South, the illegality of the 14th Amendment, the fact that the provisions of the Bill of Rights don't actually apply to the states, and some other stuff. Lots of other stuff, actually. The book basically stitches together every moment in American history that might conceivably be given a free-market, states'-rights spin and any piece of scholarship that might be used (or misused) to support it, adds to it more than a sprinkling of Democrat-hero-bashing, and seasons the mix with a defense of the white majority against suspicions of racial cruelty or oppression.

The book recently stood at #17 on the New York Times Bestseller List (although a piece in the NY Times the other day reported that it had moved as high as #8). Adulatory appearances on Joe Scarborough's MSNBC show, Fox News's Hannity and Colmes, and a variety of talk radio shows have undoubtedly helped the book up the charts. The book is said to be selling like hotcakes on college campuses, where its eye-catching format and its 9th-grade-level prose are undoubtedly appealing.

Reviews are starting to appear. Adam Cohen of The New York Times hated it ("a checklist of arch-conservative talking points" . . . "full of dubious assertions, small and large"); this guy, on the other hand, loved it ("Woods is not wedded to some benighted leftist worldview; he eschews the required subservience to the moribund tenets of socialism.").

But I'd like to take a step back and ask: Where is this all heading? Where, with his states'-rights, absolutist-free-market, isolationist, white-defending retelling of American history is Dr. Woods taking us?

There's no need to guess about it: he is taking us here. To the League of the South, a Southern nationalist organization of which Dr. Woods boasts he is a founding member. (The organization was formed in 1994; Dr. Woods was present at the founding and became a member of the League's Membership Committee, which was headed by the League's President, Michael Hill.) Dr. Woods has been a frequent contributor to the League's journal, The Southern Patriot, and has spoken at its conventions. (He has also spoken at similar meetings of other organizations, like the Southern Historical Conference and Bonnie Blue Ball, where he shared the lectern with speakers on the "Myths and Realities of American Slavery" and "Why Slaves Fought for Their South.")

What is the "League of the South" that Dr. Woods helped create?

According to its manifesto, it is a group that exists to combat the "[n]ational uniformity [that] is being imposed by the political class that runs Washington, the economic class that owns Wall Street and the cultural class in charge of Hollywood and the Ivy League." (Dr. Woods got degrees from Harvard and Columbia, by the way.)

Dr. Woods' League favors "a return to constitutional republicanism and true federalism, or if that should prove unattainable, secession."

Hmmm. Secession. That turned just a wee bit violent the last time around, if memory serves. What, it seems fair to ask, is Dr. Woods' organization's view on political violence? Are they planning to work within the existing political system in order to accomplish their separatist goals?

According to the League of the South's FAQ, their answer is:

"Yes, as far as that will take us."

How comforting!

One wonders what their plan is for beyond where the political system takes them!

Maybe these excerpts from the League's instructions for starting a local chapter give us a hint of what they might have in mind:

15. Form a “Shooting Club” to exercise your 2nd Amendment rights and to learn gun safety and proficiency.

38. Develop a phone tree and e-mail list to enhance local communications between officers and members. In cases where the transfer of information is sensitive, establish a secure means of communication.

40. Develop emergency rendezvous points throughout the County in case of natural disasters, etc. We want to be able to help our neighbors during a crisis.

41. Secure detailed topographic maps (including all back roads) of your County to familiarize yourself with the “lay of the land.” This resource will be invaluable should your Emergency Response Team have to react to a natural disaster.

Bunkers, anyone?

And who can we expect so see huddled in those League-of-the-South bunkers? Why, Christian white folk, of course—which is what you'd expect, given that the League's "ultimate goal . . . is the restoration of Christian liberty to the South."

You see, according to the FAQ, while Dr. Woods' organization

"ha[s] no religious requirement for membership, as an organisation we do recognise the legacy of Christianity and the universal sovereignty of the triune God. Most League members are Christians, and we base our movement on Christian principles. Trinitarian Christianity cannot be separated or removed from Southern society or culture without both ceasing to be Southern.

And while Christianity is a necessary condition for Dr. Woods' organization's concern, it is not sufficient. You also need to be "Anglo-Celtic":

The League seeks to protect the historic Anglo-Celtic core culture of the South because the Scots, Irish, Welsh, and English have given Dixie its unique institutions and civilisation. Should the Christian, Anglo-Celtic core be displaced, then the South would cease to be recognisable to us and our progeny. We must maintain this all-important link to our European heritage from which we have drawn our inspiration. Anglo-Celtic Southerners and their European cousins have a duty to protect that which our ancestors bequeathed us. If we will not promote our own interests, no one will do it for us.

You'll no doubt be comforted to know that, according to one of its position papers, Dr. Woods' League of the South "recognise[s] an obligation to treat Christian blacks (slave and free) as brothers in Christ, and to recognise their common humanity (original sin, all created in God's image, etc. Moreover, all (except those convicted of felonious offenses) should have their lives, liberties, and property protected by the civil magistrate."

But that doesn't mean, the position paper insists, that the League has to

subscribe to the flawed Jacobin notion of egalitarianism, nor does it mean that white Southerners should give control over their civilisation and its institutions to another race, whether it be native blacks or Hispanic immigrants. Nowhere, outside of liberal dogma, is any nation called upon to commit cultural and ethnic suicide.

"[L]et us always speak the truth about race," the League's position paper intones, "no matter how uncomfortable it may be or how politically incorrect it is. . . . [W]e should speak the unvarnished truth and continue to work positively for the interests of our own people. And of course this means protecting ourselves when necessary, individually and collectively."

"The unvarnished truth."

This, I guess, would include Dr. Woods' view that "[t]he real watershed from which we can trace many of the destructive trends that continue to ravage our civilization today was the defeat of the Confederate States of America in 1865."



It would include Dr. Woods' insistence that nineteenth century slavery abolitionists were "not noble crusaders whose one flaw was a tendency toward extremism, but utterly reprehensible agitators who put metaphysical abstractions ahead of prudence, charity, and rationality."

It would include Dr. Woods' endorsement (in an essay appealingly entitled "Christendom's Last Stand") of the view that whereas those who sought the abolition of slavery were "atheists, socialists, communists, red republicans, [and] jacobins, those who owned slaves were "friends of order and regulated freedom."

It would include Dr. Woods' view that the desegregation and integration of the races in America were at best "allegedly desirable social outcome[s]."

It would include Dr. Woods' horror at the "moral anarchy" in the notion that some who opposed the enslavement of blacks also opposed the unequal treatment of women. ("It is worth recalling," says Dr. Woods, that a good number of anti-slavery feminists took the next step and compared the status of the slave to that of the married woman. In fairness, a great many abolitionists were horrified by this line of argument, but having made their bed, they were now being forced to sleep in it.")

It would include Dr. Woods' claim that opposition to state-sponsored display of the Confederate battle flag is grounded in "ignorant blather about slavery."

It would include Dr. Woods' mocking of Unitarianism for "turning Jesus Christ into a divine Barney the Dinosaur."

It would include Dr. Woods' claims that "[t]he driving force behind liberalism is a hatred of Christianity" and that liberals are "fundamentally totalitarian."

A commitment to "the unvarnished truth" would also presumably include Dr. Woods' description of current American foreign policy as "war after war against the enemies of Israel, at American expense."

It would also include Dr. Woods' belief that Israeli Prime Minister Ariel Sharon was planning to "use the distraction of [an American] war with Iraq … [as] an opportunity to carry out the ethnic cleansing of the two million Palestinian Arabs living in the occupied West Bank and Gaza."

It would also include Dr. Woods' memorable insistence that the September 11 attacks were "bound to" happen to us because of "the barbarism of recent American foreign policy" in "attempt[ing] the hubristic enterprise of running the world – and not even on Christian principles."

It would include, presumably, League of the South President Michael Hill's not entirely unrelated insistence that

as long as a completely politicized law enforcement and legal establishment favors the interests of "dark skinned" people (including Arab Muslims and the black Nation of Islam) over those of white men, then we can expect more terrorism and chaos on the streets of America.

And it would include, presumably, Hill's claim—in an official League of the South press release—that "[t]he 'Reverend' 'Dr.' Martin Luther King, Jr., far from being the saint of recent liberal myth, was nothing but a philandering, plagiarizing, left-wing agitator."

For Dr. Woods' League of the South, the NAACP, you see, is an "enemy" with which the League of the South is "at war." According to the League's President, Dr. Michael Hill, League members "know that the Jesse Jacksons and Al Sharptons of the world are nothing but vile race hustlers and that 'institutional racism' is merely an excuse to mask black failure and to justify lawless and aggressive behavior against 'white oppressors.' . . . [T]he leftist agenda on race is pretty clear," says Woods' colleague. "The question is, what are we white traditionalists going to do about it?"

What Thomas Woods is doing about it is writing books. "As far as that will take him," anyway.

Allow me to anticipate one objection to what I have written. Some will undoubtedly say that it's not fair to call Woods' book into question on the basis primarily of his other writings, and on the basis of the positions of a private organization that he helped found and has assisted. And you know what? If he were a physicist who wrote a book about quarks and string theory, I guess I'd agree that his views (and those of his organization) on politics and race wouldn't really be fair game.

But there is a short, direct line from the rabid anti-statism and wholesale civil rights revisionism of "The Politically Incorrect Guide to American History" to the agenda of the League of the South and its ilk.

And you don't have to take my word for it. Take Dr. Woods' own say-so, on a bulletin board of the Free State Project (which advocates that 20,000 "liberty-loving" people move to New Hampshire to transform its its government into a libertarian ideal):

"Thanks to those who have spoken on behalf of the book. And I agree completely with what has been said here: the book is being pitched to precisely those who need it most, namely the neocon-influenced right-wing-radio-listening masses. Perhaps it might help draw them back to antistatism. We can hope."

Indeed they can. With an eager and sycophantic right-wing media machine to bring Woods' words to an enormous audience, the Old South has reason for optimism. Or, as "Bro Jim," a good Southern Patriot at the Confederate Flag Forum, recently put it,

Hey, we win some and we lose some! Overall, H[annity] & C[olmes] have done some positives for us like Dr. Thomas Woods' appearance and the Jackie Duty dress flap.

"Overall," said Bro Jim, "I see more of a little bitty up trend for us."

I don't know about Bro Jim, but I don't call #8 on the New York Times Bestseller List "a little bitty up trend."

I suppose by now you've seen images of the Vice President at Auschwitz, surrounded by black-clad dignitaries while dressed as though he were going to fix a fence on his ranch, or maybe shovel some manure.

I'd like to meet the aide who advised him to show up at a death camp with a ski cap that said "STAFF."

The comments on this over at atrios are side-splittingly funny. My favorite so far:

You know, I'm sure he brought a very nice suit that wasn't appropriate for the cold, snowy weather. I mean, who knew it gets cold in Poland in January?

In Cheney's defense, apparently he recieved a memo from Feith and Perle indicating that it would be a "cakewalk," that temps would be in the 70s, and that he'd be greeted by Poles throwing flowers at his feet. So he was completely unprepared for the snow.

Over at the new blog Perpwalk, some are wondering how the same political party can simultaneously support the abolition of affirmative action and the abolition of the estate tax.

If you have answers, head on over and let 'em hear 'em.

Today in my German class, each of the 18 of us was paired with another student to jointly write and perform a brief dialogue based on a short story we'd just finished reading.

My partner was the very nice and attractive blond-haired blue-eyed young woman whom I sit next to in class.

She was assigned the role of a young woman.

I was assigned the role of her father.

Ed Cone blogs about The Politically Incorrect Guide to American History, which is apparently all the rage on college campuses. I'm about to head off to my German class, and will try to pick up a copy at the campus bookstore.

Here are the books people ought to be reading instead: Lies My Teacher Told Me and Lies Across America.

Look how the State of California celebrated President Bush's "National Sanctity of Human Life Day!"

March is National Nutrition Month. I'll meet you at McDonald's!

OK, folks, the IsThatLegal critique of Michelle Malkin's "In Defense of Internment" has been nominated for a Koufax Award.

You can vote by going here and leaving a comment.

In lieu of final exams in torts and contracts this semester, somebody please tell Lance McCord what his dream means.

Regular readers will recall that I am taking an undergraduate German class this semester.

I have three main observations thus far:

(1) The German language has many, many words. There are words for, like, everything!

(2) I never knew all too many of these words.

(3) I know fewer of them now than I did when I was 19.

John Moye brings to our attention this item in Time Magazine about Justice Scalia's supposed nice-guy strategy for becoming Chief Justice when the current Chief retires. The authors' claim is that the "famously dyspeptic" Scalia is turning on the charm, appearing at DC parties full of jokes and small talk.

This is one poorly researched little piece.

To be sure, Scalia can be quite harsh in writing.

But in person, Scalia has always been one for jokes and small talk. This piece from the New York Lawyer got it right: "Outside the Court, Scalia is known as a witty, sometimes gregarious man with an Old World charm and gentility."

Justice Scalia spent the day at the UNC School of Law about 5 years ago, and I've never seen a more outgoing, friendly, and engaging law school guest. He gave no fewer than three public speeches and guest-taught two classes, all in a single day. He bantered amicably over lunch and sought out groups of students when he stepped outside a few times during the day to catch a smoke. He was, in a word, charming (with a single momentary exception, when he rather brutally dispatched a hostile questioner after a public speech).

It may well be that Justice Scalia is campaigning for Chief Justice; I have no idea. But I don't think it's safe to infer that from the fact that he's being outgoing, witty, and chatty. That's just who he seems to be.

In this post of a few days ago, I commented on President Bush's words about racism in his Second Inaugural Address. My argument was that the president's choice of words--he spoke of needing to shed the "habits of racism" and the "baggage of bigotry"--placed American racism comfortably in our past, not our present.

It turns out that I missed some of the coding of those words. Consider the comments of one Matt Naugle on the subject over at the Law Dork blog:

Bush is correct. We have come a long way on race issues in this country- We have come so far that we overcompensate, with minorities being offered easier admissions programs to college and offered jobs due to racial quotas.

So sure, we have racists. But we also have reverse-racism, and we have "poverty pimps" like Jessie Jackson and Al Sharpton who make a fortune from stiring the pot of racial conflict. It is truly a shame, and MLK is probably rolling around in his grave to see where his movement, which had helped fight for true equality for so many people, is now perverted for political reasons and financial gains. If I was a minority, I would be deeply insulted by the "leaders of the black community." These left-over movements from the 60s should also be considered as "baggage."

So Bush isn't the problem. The lack of true freedom and equality is. Sadly, there will always be bigots. I suggest that the government should stay out of the situation and we get on with our lives.

So Bush's condemnation of the "habits" and "baggage" of racism in his inaugural was actually a coded criticism of affirmative action. How stirring.

I see this sign frequently when I drive up to Durham, NC, from my home in Chapel Hill.

Being Jewish and all, I'm no expert ... but isn't there something not particularly, well, Christian about the message?

Jenny's photoblogging the inaugural protests. This photo is my favorite, I think.

My favorite paragraph from today's Second Inaugural Address is this paragraph:

Americans, at our best, value the life we see in one another and must always remember that even the unwanted have worth. And our country must abandon all the habits of racism because we cannot carry the message of freedom and the baggage of bigotry at the same time.

Let's briefly deconstruct, shall we?

Sentence 1: "Americans . . . value . . . life . . . . The unwanted have worth."

This, I guess, is the speech's abortion line. But what odd phrasing -- so coded as to be nearly incomprehensible (except to the true believers). The President doesn't come out and say that fetuses are living human beings. He doesn't come out and say that women who have abortions are cavalierly tossing aside the "unwanted" as "worthless." He doesn't come out and say that abortion is murder. Instead it's all nods and winks--code for the cognoscenti. Rather like the President's bizarre invocation of Dred Scott in his debate with John Kerry.

It's hard to know what to make of this. Why does the administration feel it needs to speak its opposition to abortion in code? On the one hand, the coding might reflect a nervousness to state things plainly, a fear that plain talk will alienate far too many people. On the other hand, the coding has a faintly conspiratorial feel--as though the President and his allies have some sort of quiet understanding about what he'll do (even though he can't say it out loud).

Sentence 2: "abandon all the habits of racism because we cannot carry the message of freedom and carry the baggage of bigotry at the same time."

This, I guess, is the speech's civil rights line. And what an odd line it is. It places American racism firmly in our past, and presents purely practical (rather than moral) reasons for abandoning its vestiges.

Note first that it is not racism we must abandon, but all racism's habits. And we are not actually bigots, but we still carry bigotry's "baggage."

How subtly yet effectively these language choices distance us from racism! The trauma of racism is behind us, but it has left us its "baggage," in the form of "habits," like biting our nails or fiddling with our hair, that we must extinguish.

The sense of "habit" that I'm interested in--and that the speech invokes--is this one (taken from merriamwebster.com): "a behavior pattern acquired by frequent repetition or physiologic exposure that shows itself in regularity or increased facility of performance b : an acquired mode of behavior that has become nearly or completely involuntary."

How 'bout that! Racism in America today is "nearly or completely involuntary." We are to be congratulated.

And note second that nowhere does the President say that we must abandon racism's habits because they are wrong or reprehensible. We must abandon them because they complicate our foreign policy and the "message of freedom" we're delivering in places like Iraq.

We've seen this practical justification for domestic civil rights progress before--but it was during the early days of the Cold War. One might have hoped that the decades since the Eisenhower Administration would have bequeathed our President a moral basis for condemning racism, rather than just a pragmatic one. Apparently not.

I understand the concerns for the cost of the inauguration, but does anyone really think that a Kerry/Edwards inauguration would be significantly cheaper?

Don't get me wrong: I think today's inauguration is going to cost us dearly, but it's not the $40 million for the party that I'm thinking of.

Watch carefully as she who aligns herself with the white supremacists of today contorts herself into a posture of derision toward the reformed white supremacists of yesterday.

I'm two years old tomorrow.

For old time's sake, here's post #1.

Some were annoyed by my observation about the white-people-focussed nature of the American media's tsunami coverage.






Well, here's that observation, available for placement on a t-shirt, coffee mug, or mousepad.




(This one is pretty funny too.)

Being on a research leave this semester (hah! as if that made any difference!), I've got some time on my hands, ya see, so I took the OKCupid personality test, and learned that I am The Slow Dancer -- the "Deliberate Gentle Love Dreamer".












My exact opposite, I am told, is the Hornivore--the Random Brutal Sex Master.





Well, gee. I'm flattered. Sort of. I think.

I see from the good guys over at CrimProf that my friend Dan Filler has an interesting article out on the racially disparate impact of so-called "Megan's Law" provisions (which permit local communities to notify residents of the presence of certain released criminal offenders--usually sex offenders of some sort).

I've read the paper, and it's quite interesting. You can get a copy here.

I admire friends like John and Dabney who have the guts to blog about important and potentially vulnerable pieces of their own lives. It's very inspiring.

"President Bush will ride down Pennsylvania Avenue on Inauguration Day in the new Cadillac DTS limousine, giving the first glimpse of the new flagship sedan from General Motors Corp."

Will the limo be stocked with Coke products or Pepsi products?

I'm in a bit of a daze.

This afternoon I picked up Brian Wilson's SMiLE--his 2004 completion of the legendary and unfinished 1967 Beach Boys album that was the soundtrack of his descent into mental illness.

You can go elsewhere to read sophisticated reviews of SMiLE. I'm in no shape to offer one up tonight, for I am far too entranced, even shaken, by the first two tracks--"Our Prayer" and "Heroes and Villains"--to say anything insightful. This is simply perfect pop music.

You can listen to (and watch) a live version of "Our Prayer" if you go here and click on "watch video" at the top.

Lance wonders who the New Legal Empiricists are.

Silly. They're kind of like this.

Let Prince Harry visit Auschwitz. Why not?

Isn't it odd, though, that he's being sent off to Poland to see a place where the Nazis killed Jews (and others), when I'm sure there are some folks right in his neighborhood who could tell him a thing or two about Nazi atrocities?

Another separated-at-birth suggestion from John Moye: Mafia-slaying prosecutor Mike Chertoff and "Uncle Junior" from the Sopranos.

"Comedy is tragedy plus time," insists Alan Alda's character in the Woody Allen's "Crimes and Misdemeanors."

Or maybe not.

Did you know, by the way, that the theme of the costume party that Prince Harry was attending was "colonial and native?"

Maybe Harry can get himself off the hook by saying that he had planned to go dressed as a slave trader.

My friend, occasional partner-in-crime, and now blogger Greg Robinson will appear this Sunday on FOX, 8 p.m. Eastern, to talk about the wartime experience of Japanese Americans on the show "War Stories with Oliver North." Tune in.

Doug Berman, who is as expert on the federal sentencing guidelines as they come, says this about today's SCOTUS guidelines decision:

Particularly significant, in my view, is Justice Breyer's repeated statement that, even as an advisory system, the Act still "requires judges to consider the Guidelines," Breyer for Court at 16-17, and that "district courts, while not bound to apply the Guidelines, must consult those Guidelines and take them into account when sentencing." Id. at 21-22. Thus, it appears that the FSG must continue to operate as a (shadow?) sentencing system, with presentence reports prepared (and fully litigated?) as in the past, and perhaps even with sentencing judges having to make on the record findings of what the FSG would provide.

(Indeed, as I read Justice Breyer's opinion for the Court, I think there is an argument that a district judge who fails to make (shadow?) rulings about the applicable guideline range could perhaps be subject to per se reversal. I also suppose that defendants and prosecutors might still be able to, and actually need to, appeal the (shadow?) guideline rulings because the reasonableness of the impose sentence on appeal would depend on the proper applicable guideline range.)

But what would it mean to appeal a sentence on the basis that the sentencing judge did not adequately "consult" the guidelines--in a system where the Constitution forbids the sentencing judge from actually "applying" them? Wouldn't the appellate court be limited to remedying the actual error--that is, the procedural error of inadequately consulting the guidelines--but be barred from reviewing the substantive accuracy of the judge's consultation? Indeed, if there is no obligation for the sentencing judge actually to apply the substance of the guidelines on remand, wouldn't an appeal challenging the sentencing judge's incorrect interpretation of the (inapplicable) guideline be non-justiciable?

Jenny breaks the news that in law professors, "intellectual-sexy" is not "cool."

Damn. That was my only chance. (And it was a long shot.)

Twenty years and about eight months ago, I finished my last class as an undergraduate--a course in early Netherlandish painting at Brown University.

Today, I stepped back into that world. I've enrolled in German 11 here at UNC, to improve my language skills for a research and writing project that I plan to undertake over the next few years.

Talk about disorienting.

Dressed like a student (or a 42-year-old one, anyway: blue jeans and a black t-shirt), I walked across campus to class, notebook and textbook in hand, through a sea of twenty-year-olds. I heard faint echoes of my own undergraduate life in the little snippets of conversation that fell on my ears. I tried to imagine how old I actually look to these young people--a question that was clearly answered at the end of the class period, when a young woman in the class following mine approached me and started to address me as if I were her professor. ("But I'm wearing jeans and a black t-shirt," I wanted to object.)

I've got nightly homework, which will be no small task for me, given that the last time I spoke or studied German was in the summer of 1981. One student in class today said something (in German) about her "Handy," and everyone nodded. "Was bedeudet 'Handy?'" I asked, and a student said "cellphone" in a tone of voice that had at least a faint hint of "duh" to it. Sweetheart, the last time I spoke German, there was no such thing as a cellphone.

And as if to emphasize my comparative elderliness, the very first assignment (due Friday) is a short essay on the topic, "Was ist die Jugend?" ("What Is Youth?")

Ouch.

Maybe I'll just write "Ich erinnere mich nicht." ("I don't remember.")

Wait, that won't be long enough. Even if I adjust the margins.

Goodbye and good riddance to the mandatory federal sentencing guidelines. (pdf file)

I confess to some nostalgic feelings today. From 1990 to 1994, when I was an appellate litigator at the US Attorney's Office in Newark, NJ (where my boss, by the way, was Mike Chertoff), I probably spent at least half my time on appellate issues that arose under the sentencing guidelines. I came to know them like the back of my hand, and so a little piece of me is sorry to see them go (insofar as they are no longer mandatory).

Mostly, though, I still believe (as I believed back then) that the guidelines were a disaster--a mechanical framework that drained much of the humanity from what in my opinion ought to be the most human judgment that our legal system routinely makes. The judge for whom I clerked (in the pre-guidelines days) crystallized this for me when he told me back in 1991 or so that he liked the guidelines because they helped him sleep better the night before sentencings. I don't favor a system of sentencing that decreases and diffuses the sense of responsibility that the sentencing judge feels for the decisions he or she makes.

Now, it seems, participants in the system will (unless Congress directs otherwise) continue to consult the guidelines, but they will merely be advisory. At a minimum, it appears, this will put the appellate lawyers pretty much out of business, won't it? If the guidelines now are merely advisory, then it's hard to see how a misapplication of the guidelines by a trial judge will give rise to any appealable issue, at least so long as the trial judge indicates that he or she deems the ultimate sentence reasonable. Am I missing something here?

I find myself wondering, though, about the impact on trial judges. If I'm right about appellate review, and the appellate courts are now more or less out of the business of reviewing guideline applications under any sort of even moderately rigorous standard of review, then the guidelines themselves might come to occupy the space of a sort of strange quasi-law. This will leave trial judges enormous discretion to use or abuse the guidelines to reach or avoid reaching desired or undesired sentencing outcomes without concern for correction. I hope I'm wrong about this, and that the result of today's decision will be more, rather than less, responsible trial court sentencing. But on this question, I think, the jury is (so to speak) out.

There's much talk here in Chapel Hill about a judge's recent decision to throw out the confession of Andrew Dalzell to the murder of Deborah Leigh Key--a murder that had gone unsolved for nearly eight years.

Dalzell, who had long been a suspect in the murder, was arrested in another part of the state for obtaining property by false pretenses. Dalzell was not immediately read his Miranda rights. In preparation for the ride back to the Chapel Hill area (Carrboro, for you local folk), Carrboro police officers prepared a fake arrest warrant for the murder and left it on the seat next to Dalzell so that he could see it. They also got a piece of the District Attorney's stationery (with the D.A.'s consent) and concocted a phony letter in which the District Attorney said he was seeking the death penalty for Key's murder. An officer read Dalzell the bogus letter during the ride back to Carrboro.

When Dalzell got very upset, one of the officers told Dalzell to "tell the truth about whatever happened" and "to be a man and let the demon go." Dalzell then confessed. Only later did the police read Dalzell his Miranda rights.

State superior court judge Wade Barber threw out the confession on Monday, concluding (absolutely rightly, in my view) that the police tactics amounted to illegal interrogation of Dalzell.

Some in the community are upset that the focus on the interrogation has made Dalzell, the confessed murderer, into something of a victim.

Some will undoubtedly scream about a horrible justice system that lets guilty people off on "technicalities" (as if the 4th, 5th, and 6th Amendments to the U.S. Constitution were "technicalities").

I think the focus should not be on Dalzell (who deserves no sympathy), or on "the system," but squarely on our local law enforcement supervisors, whose errors (for that is what they are) have probably deprived the family of Deborarh Leigh Key of the chance to get justice. (All that remains to the case is slim physical evidence, which had not been enough to support Dalzell's arrest on the murder charge in the first place.)

The chief of the Carrboro police reportedly called this interrogation scheme "brilliant" (!), and the district attorney was made aware--in advance--of the scheme, approved of it, and allowed the officers to use his stationery.

How will these officials be held accountable for failing the victims with their "cleverness?"

A source (my mom) just called to tell me that my old boss Mike Chertoff is going to be the new head of Homeland Security. This does not surprise me, and I think him a strong choice. Chertoff is a straight shooter and one of the two or three smartest people I have ever met. (Nevermind that he looks frighteningly like Mr. Burns from the Simpsons.)






One wonders, though, what sort of arrangement he reached with the President. It's not everyday that somebody gives up the security of life tenure on a federal circuit court for a political job like this. Has the President agreed to renominate him to a court after a couple of years? Or could this be a step toward the Supremes?











UPDATE: Mike Chertoff gave the keynote address at a conference here at UNC Law School in the fall of 2003. He defended DOJ's post-9/11 antiterrorism efforts. I blogged Chertoff's speech here.

Is it that white people suffer more than non-whites, or just that the suffering of white people is especially moving?

I can't make up my mind, but I certainly am reminded of this Python sketch.

Much has been said about the Administration-approved interrogation tactic called "water boarding," in which a person is strapped to a board and then dunked into water, to create the impression in the dunkee that he is about to be drowned.

One might have thought that the stupidest thing thus far said about this practice is that it's not torture.

But yesterday the Wall Street Journal outdid that, when it printed the following gem in a pro-Gonzalez editorial:

If the Gonzales critics are really worried about civil liberties, they might ponder the domestic political response to another 9/11. Do they really think Roosevelt's internment camps and Lincoln's suspension of habeas corpus were merely products of a less enlightened age, and that Americans wouldn't respond to a dirty bomb explosion in a major city with mass detentions of men with Islamic surnames, closed borders, or worse? This civil-liberties catastrophe is precisely what "water-boarding" is trying to prevent.

We have to torture foreign Muslims so that we can protect American Muslims from U.S. government lawlessness.

Takes your breath away, doesn't it?

UPDATE: It's amusing (well, terrifying actually) to note that this passage from the WSJ is also under attack from the right, for not being tough enough. Really.

John Allore, whose sister Theresa was murdered 26 years ago in Canada, has posted one of the most powerful pieces of writing I've read on a blog in a long, long time. It's a must-read.

My old debating partner Michelle Malkin takes up the defense of Daniel Pipes, responding, it seems, to the comments of every blogger who criticized his recent pro-internment comments--except mine.

I asked how Daniel Pipes managed to transform himself, in the space of seven months, from someone who did not know enough about the Japanese American internment to have any opinion about it to someone who's comfortable publicly deriding the entire academic internment literature as "single-note scholarship" and "a shabby, stultifying consensus."

It turns out that Pipes himself has answered the question. Here's what he says:

"This attempt at ambushing me on the radio not only failed to derail my nomination, but it also failed in a larger sense, for it provoked my curiosity about the Japanese internment and prompted me to read Malkin's book. Now, should anyone ask the same question Goodman did, I can knowledgeably reply: Yes, I do support the internment of Japanese Americans in World War II because, as Malkin shows, "given what was known and not known at the time," the U.S. government made the correct and sensible decisions."

So what did Pipes read in order to place himself in the position of assessing the entire internment literature?

Malkin's book.

Just plain embarrassing (although Pipes's research methods sure look familiar).

And another thing. Pipes defends his original confession of ignorance about the Japanese American internment in this way:

The incident began on April 9, 2003, when I gave an interview to Pacifica Radio's "Democracy Now," the radical left's most prominent U.S. program. Amy Goodman, the host, and I were talking about my usual Middle Eastern and Islamic issues when she, out of the blue, 12:26 minutes into the discussion asked me, "Did you support, do you now, looking back on the internment of Japanese Americans in World War II?" Startled, I replied, "It's not a subject I know enough about to talk about."

"Out of the blue," says Pipes. A propos of nothing.

Here's my transcription of the relevant segment of the interview:

Q. Should ordinary Muslims in this country be surveilled?

A. Be what?

Q. Be surveilled. Monitored.

A. We have a situation in which we are being repeatedly attacked, now for almost 25 years, by the supporters of militant Islam, starting in 1979 and going until the present. It makes little sense, as, for example, is the case at airline security, to look at nonagenarians, at infants, at former presidential candidates, at airline pilots, to see if they might be carrying weapons to hijack the plane. One has to focus in on the population that is most likely to engage in such criminal activities. And given the pattern of hostilities against Americans, the fact is that most of these attempts, these criminal activities, come from the supporters of militant Islam. Well, unfortunately, those supporters are limited, almost exclusively, to the Muslim community. It therefore makes sense to focus in on the likely suspects.

Q. Is it racist?

A. Of course it’s not racist; it has nothing to do with race whatsoever. It can be anyone of any race, of any gender, of any national origin, of any ethnicity. It has nothing to do with race. It has to do with support of a body of ideas, belief in a body of ideas that has to do with militant Islam, and aggression towards Americans.

Q. Do you support, do you now, looking back, the internment of Japanese Americans during World War II?

A. It’s not a subject I know enough to talk about.

"Out of the blue," Dr. Pipes? Really?

Sheesh. Still more politically correct, hindsight-enhanced historical revisionism.

Why do South Korean liberals hate South Korea?

Over the break, while in the liquor section of a supermarket in the Dominican Republic, I saw this ad.

Either you will find this funny without my explaining it to you, or no amount of explaining will do the trick.

I’ve been on vacation recently—which explains the dearth of new posts here at IsThatLegal—but a reader has just brought an item to my attention that I just couldn’t let pass without comment.

Earlier this year, when President Bush nominated Daniel Pipes for a seat on the board of directors of the U.S. Institute of Peace, Pipes—a Harvard-trained historian—was asked whether he thought the Japanese American internment of World War II was wrong. Pipes, an outspoken advocate of racial and ethnic profiling in antiterrorism policy, demurred. “I don’t know enough about it to have an opinion,” Pipes said.

Many—including I—thought it as unlikely that Pipes had no opinion about the Japanese American internment as it was that Clarence Thomas had never discussed Roe v. Wade before joining the Supreme Court.

Democratic opposition to Pipes’s nomination to the U.S. Institute of Peace killed his confirmation in the Senate, so President Bush gave Pipes a recess appointment. His term is set to expire in January 2005.

Comes now Daniel Pipes (just as his recess appointment expires!) with a year-end press release for book review of Michelle Malkin’s “In Defense of Internment: The Case for Racial Profiling in World War II and the War on Terror,” in which he says this:

Leftist and Islamist organizations have so successfully intimidated public opinion that polite society shies away from endorsing a focus on Muslims.
In America, this intimidation results in large part from a revisionist interpretation of the evacuation, relocation, and internment of ethnic Japanese during World War II. Although more than 60 years past, these events matter yet deeply today, permitting the victimization lobby, in compensation for the supposed horrors of internment, to condemn in advance any use of ethnicity, nationality, race, or religion in formulating domestic security policy.

Denying that the treatment of ethnic Japanese resulted from legitimate national security concerns, this lobby has established that it resulted solely from a combination of "wartime hysteria" and "racial prejudice." As radical groups like the American Civil Liberties Union wield this interpretation, in the words of Michelle Malkin, "like a bludgeon over the War on Terror debate," they pre-empt efforts to build an effective defense against today's Islamist enemy. Fortunately, the intrepid Ms. Malkin, a columnist and specialist on immigration issues, has re-opened the internment file.

Ms. Malkin has done the singular service of breaking the academic single-note scholarship on a critical subject, cutting through a shabby, stultifying consensus to reveal how, "given what was known and not known at the time," President Roosevelt and his staff did the right thing.

That’s quite a journey in a few short months. Back in April, Pipes didn’t know enough about the internment to have an opinion about it. Now Pipes knows enough not only to say that the internment was justified, but to offer his critical opinion of the entire academic literature on the internment.

Wow. Smart guy.