Tuesday, May 30, 2006
Akhil Amar has an interesting historical piece on whether the Constitution allows the search of William Jefferson's congressional office. I agree with much of it, although I think that he struggles a bit to make it sound like Jefferson has some of the equities on his side.
Jonathan Adler, who I greatly respect, has this article in the NRO (with Michael Berry) arguing that the Espionage Act should not be applied to journalists, in particular to Dana Priest who disclosed to the public the existence of the secret prisons in foreign countries.
The article makes several points, but the core argument is that the reporting of information like the existence of secret prisons cannot, consistent with freedom of speech, be made a crime, even if it is a crime for a government employee to disclose it. I am not sure what to make of this argument. Happily, it is not crucial to decide on the matter, because I am sure that the government should be able to issue a subpoena to Dana Priest and imprison her if she does not disclose her source. That, I think, addresses the main practical question of how to stop the leaks. But what about the more theoretical question?
One basic question here is whether there are special rules for journalists. If it is illegal for a government employee to disclose national security information, then why is it not always illegal for a reporter who obtains it from that employee to report it? Is it that the knowing receipt of stolen property is somehow not as bad as the theft of the property? Or is it that the reporter's role, in publishing information, is providing a public service in a way that the government employee is not? Does the answer depend on whether the information is merely embarrassing to the government or an authentic state secret?
These are difficult questions. Adler and Berry seem to suggest that the disclosure of the secret prisons is not central enough to national security -- that it is more of an embarrassment -- to justify making its disclosure a crime. They analogize it to " a newspaper that obtained classified information purporting to demonstrate that President Clinton’s decision to bomb a pharmaceutical plant in Sudan was driven by his desire to distract attention from the Lewinsky affair." The difference between the two, however, is that the Clinton case would have been embarrassing because it disclosed wrongdoing, whereas the secret prisons, despite the left's allegations, would be embarrassing because we had agreed with foreign countries to keep the prisons secret. Of course, Adler and Berry may be right in their implicit suggestion that it would be difficult to administer a legal rule based on this distinction.
In the end, I would hope there was a standard that could identify cases where a reporter's publishing of a story could be prosecuted, but this may be difficult. Thankfully, we can plug the leaks by asking Priest who leaked the information. Unfortunately, it doesn't seem like anyone is asking her this question.
Monday, May 29, 2006
Now, I really like the blogosphere! Pete Townshend responds to the claim by National Review's John Miller that "We Won't Get Fooled Again" is the greatest conservative rock song. (Hat tip: Jonathan Adler.)
Townshend's response reminds us that you never know what is in a songwriter's mind. Although sometimes you get lucky. I remember arguing with friends that "Get Back in Line" from the Kinks was a libertarian song and that Kinks were libertarians. My friends laughed at this (and me). But then it turned out that Ray Davies said he was largely a libertarian.
Sunday, May 28, 2006
The philosopher Arthur Schopenhauer held that life was nothing but the meaningless chasing after of things, which, if we ever do attain, we just get bored with anyway. This certainly seems to be the case in my neighborhood, where people appear to chase after things constantly, usually on dirt bikes. A dirt bike, for those of you not familiar with the term, is a particularly noisy kind of motorcycle used to kill desert flora. You chase and chase with a dirt bike, but why and where is not so clear. Perhaps it is happiness they seek. If so, they do not seem to find it, because they keep coming back. One suspects they have not discovered that what tranquility there is to be found in life comes from aesthetic experience, not racing around on small but loud motorcycles. Or perhaps this is just a small example of what Schopenhauer means when he avers that life is just suffering. I am not sure that I agree. I do think, however, that listening to kids and young adults on motorcycles is suffering.
There was a much louder sound today as well, which was the noise of my neighbor who has recently purchased a helicopter. He parks it next to his driveway, where he has built a little grass helicopter pad. I do not think he actually takes off and lands from there, which is to say I hope he does not. Mostly, I have decided to assume he does not, because I just can't believe in addition to the motorcycles, we now have helicopters as well. I think the helicopter was just paying a little visit to its house; I don't think it takes off and lands there. For $350K you too can buy a helicopter, take it up into the air, and from up there you will be able to see your house. But after a while, that will get boring, just like anything else would. This is just the little chip of the Will that is the universe, which finds itself as you, discovering that it can't have Its way after all. It happens. In fact, according to Arthur, it is all that happens. You would be better off, being so unfortunate as to have been born, sticking to aesthetic experience, which is defined as experience which does not bother your neighbors, who are just sitting harmlessly in their houses, trying to read a book.
Lay and Skilling get convicted, and I don't understand. I await the publication of some journalistic accounts. I hope that will catch me up on what exactly the frauds consisted of. I understand generally the idea of hiding losses through complex derivative transactions and insider trading after 9/11, oh, oops, I meant to say 9/6. But given that I teach corporate law, I suppose I have some obligation to know the story in some detail, even though I find it all rather depressing, rather than an exhilirating confirmation of the essential rot at the heart of blah blah blah. What I don't understand is what makes Lay and Skilling tick. First, if you are already really rich, why take foolish chances to get somewhat more risk? And second, if are going to engage in fraud, why not put ten or twenty million in a few offshore accounts, as well as a spare passport or two under a flagstone in the garden? These two guys are going to spend the rest of their lives in a federal penn. That has got to come in second to fishing for carpies or whatever they have in the upper Orinoco. I asked my lovely wife Jeanne about this, and she suggested that it was just part of the arrogance of such people that they can't believe they will be caught and convicted. Perhaps that's it, and why I can't understand what Lay and Skilling were thinking. While they perhaps thought it would be impossible to be caught, my tendency is to think it would be impossible to get away with such things.
I also don't understand what the defense lawyers thought they were doing. Is it not possible to convince your client not to seem arrogant, to at least fake humility and sorrow? It must be harder to control clients than I realize, or do the defense lawyers just not care that much as long as they get paid? In retrospect, it also seems that Lay would have been better off pleading to something, if that was a possibility, though maybe it wasn't. If they really are guilty, and I tend not to trust juries too much on this score, I don't feel sorry for them. They inflicted a lot of harm on a lot of people.
Ciao (it means "hello" as well as "goodbye") from Italy, where I will be teaching and travelling for the next few weeks. (Hard, very hard, the academic life...) It is election week in Italy, and the country (or at least the walls of Rome) as covered with election posters. There is long precedent for most things here: for example, the election grafitti ("vota...") are still legible on the walls of Pompei after two thousand years. Today's billboards are unlikely to last two thousand years, fortunately. But there are still plenty of echoes of the past. The red flag and hammer and sickle of the Communist Party are much in evidence. Or if your nostalgia runs along (slightly) different lines, there are election posters for Alessandra Mussolini. Signora Mussolini more or less disavows her father's policies; but the Communists are pretty much gulag-true -- and have a lot more organisation and voting strength than la Mussolini.
Another first impression: the extraordinary prevalance of the English language as the international lingua franca (as we say in English). It's not just that bus ticket machines -- and much else -- are bilingual (Italian-English) throughout Rome. But when French visitors buy fruit at the local fruit stand, the (African) vendor automatically speaks English to them (and they to him).
Speaking of African fruit vendors, there is now not only a substantial Chinatown in Rome, but a considerable "Little Bengal" adjacent to it. Europe may once have been mostly homogeneous, but no longer. Today's rule: Everything is everywhere.
Including TheRightCoast, of course.
Ann does a number on Jean Rohe, the New School student who insulted John McCain at graduation.
Update: And don't miss Brian Leiter's defense of heckling -- or should I say this heckling. It all seems to depend on who is talking. My favorite line from his excerpt of a student's speech:
Ignorant, closed-minded people would not have been able to do what we did. We chose to be in New York for our years of higher education for the very reason that we would be challenged to listen to opposing viewpoints each and every day and to deal with that challenge in a nonviolent manner
Here is a news alert: New York City, especially Manhattan where the New School is, is not filled with opposing viewpoints. One can count the conservatives on one hand. I know at least two of them, and they don't report very much tolerance of differing political views -- except the kind of tolerance shown by the New School students.
Saturday, May 27, 2006
Today was Graduation Day at USD School of Law. Congratulations to the Class of '06. Special congratulations to Valedictorian Nicholas Fromherz and to Charles Billy and Elizabeth McElwee, winners of the Owen Stark Heriot Prize (named in honor of my late father and given each year to an outstanding student who is a present or former member of the armed forces).
Friday, May 26, 2006
Earlier today, John Allen Muhammad -- convicted of the D.C. sniper shootings -- rested his case. He's already been sentenced to death in Virginia, and is (incompetently) representing himself in this Maryland prosecution. Which the state is undertaking, at substantial cost, in order to provide a backstop in the (fairly unlikely) event that Muhammad's Virginia death sentence is overturned. (There may be some additional publicity and personal ego reasons for this secondary prosecution as well.)
The most interesting component of the trial -- beyond Muhammad's pervasive inability to defend himself -- came when Lee Boyd Malvo, Muhammad's teenage accomplice, testified. Malvo has already pled guilty to all of the Maryland murders, and will spend the rest of his life in prison. Malvo, as you may recall, once thought of Muhammad as his father. But with the involvement with other people (beyond the controlling Muhammad) in his life, Malvo's perspective has changed. For example, during the trial, Malvo once glared at Muhammad and testified: "You took me into your house and you made me a monster."
I'm particularly interested in this case because my father's law partner, Michael Arif, represented Malvo in the Virginia prosecution, and (as you might imagine) has gotten to know Malvo well. Malvo was a teenager who committed the most heinous of conduct: random and senseless acts of murder for which the death penalty -- if ever appropriate -- seems acutely proper. And yet, once you begin to know and understand the actual person behind the crimes, things suddenly seem much less black and white. You start, I think, to see a person whose life may potentially have value. A life that you're much less inclined to snuff out.
I've positive that my father was a firm and ardent supporter of the death penalty prior to his involvement in this (and analogous) cases. (It's a small law firm -- Martin & Arif -- and the size of this case necessarily involved the entire firm, including my father.) I think that, as a result of these experiences, my father has become much less convinced about the wisdom of applying the death penalty, at least in particular cases. Sure, perhaps that's merely a sign of weakness: an indication that humans have too much compassion in individual cases, and so need to have structures that harden their hearts and enable them to put people to death without really getting to know them. And, to a degree, that's what the jury system in fact ensures: that you get to know the defendant -- but not too much -- and that you get to know the victims as well.
Still, it's nonetheless interesting to see the evolution of someone as ardently conservative as my father in one particular context. It reaffirms, perhaps, the immense power of personal forces and experiences to shape one's political thoughts and beliefs.
Anyway, that's it for my guest blogging. It's been an enjoyable two weeks. Thanks to Gail, Maimon, Mike & Tom for the invitation. I'll continue to do my own thing at the California Appellate Report, a blog that's much less far-reaching (and much too much law-oriented) than this one. Take care, all.
An interesting piece on the Prime Minister of Israel, Ehud Olmert. (Requires registration). Here are two excerpts:
While training with an elite infantry unit, [Olmert] broke two limbs. He used his healing time to enroll at Hebrew University, majoring in philosophy, psychology, and law. It was there that he became an activist. In 1966, just 20, he made his real political debut in a speech to a Herut conference. To the audience's shock, he called on Begin, who was actually in the room, to resign for failing to carry national elections. This was more than just heresy. For Herut, Begin was larger than life--the uncontested leader. And the crowd reacted to Olmert with unmitigated fury. Recovering from the initial shock, it rose to storm the podium. He would have been physically assaulted had Begin himself not demanded that they let the young man make his point.
That showed courage, but it also showed an inability to understand his fellows. Consider also what an amazing time this is for Israel. I had not reflected on the following:
The seven months between the August 2005 withdrawal from Gaza and the March 2006 elections was one of the most dramatic periods in Israeli history. During that short time, the political world turned over no less than four times. First, there was the pullout itself, which doomed the fate of the old hawkish worldview. Second, Sharon left Likud, breaking the old system dominated by two dueling parties. Then Sharon lapsed into a coma, and finally, after all that tumult, the Palestinians went and elected Hamas.
Read the whole thing. An interesting article, although perhaps too favorable towards Olmert.