Rafil Dhafir

If you haven't seen this page, you should. Back in February, in the run-up to the invasion of Iraq, the Justice Department indicted four men in central New York for violating sanctions against Iraq by operating what they described as a charity called "Help the Needy." See my posts here and here. Recently, Rafil Dhafir, one of the men charged, retained new counsel, according to this Newsday article.

The reason why the cached page from the FBI press room is so interesting -- and why I wish I had seen it before -- is that it shows clearly how the FBI tried to portray these prosecutions as part of the war on terrorism. Here's the relevant section of the page, which carries the title "FBI Accomplishments in the War on Terrorism":

DISRUPT PLANS FOR FUTURE TERRORIST ATTACKS

The Justice Department has effectively countered future terrorist attacks during the Iraqi conflict. The Justice Department utilized the USA Patriot Act and brought charges against 21 individuals as a result of increased efforts.

Attorney General Ashcroft described the charges against Rafil Dhafir, Maher Zagha, Ayman Jarwan, who worked in the U.S. with "Help the Needy" charity and Osameh Al Wahaidy with "Help the Needy Endowment, Inc."

On February 26, 2003, these four individuals and the two organizations were charged with conspiring to transfer funds to Iraq in violation of the International Emergency Economic Powers Act. Additionally, Dhafir, Zagha, and the two organizations are charged with 12 counts of laundering money and one count of conspiracy to commit money laundering.

The indictment alleges that the defendants conspired to violate executive orders and Treasury Department regulations by transferring funds and other economic resources to Iraq. Furthermore, the indictment alleges that the defendants, using the name "Help the Needy," solicited contributions from people in the U.S., deposited these funds in accounts maintained by central New York banks and then laundered the money, estimated at $2.7 million, to Iraq through Jordan Islamic Bank in Amman.

In February, an FBI Joint Terrorism Task Force (JTTF) dismantled a terrorist financial support cell operated by a group of Lebanese individuals. [. . .]

Attempting to prevent terrorist attacks is a necessary part of any responsible national security strategy. On this page, the FBI portrayed its indictments in the "Help the Needy" cases as part of the war on terrorism. Given that there have been no official allegations that the money from "Help the Needy" went to finance terrorist activities (as far as I have heard -- if I'm wrong, please let me know!!), it seems like a stretch to portray this prosecution as part of a prevention strategy in any but the most attenuated sense: as in, theoretically, charity money that is not officially tracked could end up in the hands of terrorists.

It's not clear that money from this charity did end up in the hands of terrorists, however. What is clear is that about half a year ago, the country was in war frenzy (for reasons that have since been questioned in the mainstream press), and these indictments were explicitly linked by Attorney General John Ashcroft to the war in Iraq and the war on terrorism. If people are going to punished with jail time, as the government wants to happen, the American public shouldn't have to worry about whether or not the timing of the prosecutions was related to a government need to focus attention on the alleged connection between Iraq and support for international terrorism.

Read also this article in SUNY-Oswego's student paper, the Oswegonian.

I am not so naive as to ignore the fact that there are individuals out there who raise money to support terrorism, sometimes under the guise of charities. Let's focus our energies on those people. If the "Help the Needy" prosecutions fall into that category, then the government should make that clear. So far, unfortunately, the official signs point in the other direction. I hope more evidence comes to light.

MORE: The dichotomy in the last paragraph is too stark: if you're trying to get at terrorist financing schemes and you come across someone doing something illegal that has no clear connection to terrorism, then it's strange to portray the resulting prosecutions as victories in the war on terrorism. Unless, of course, you really have found a terrorist connection. Again, so far the government hasn't released any evidence of a terrorist connection here, at least evidence that I am aware of.

JUDICIAL SELECTION IN BANGLADESH

The Independent reports on Bangladeshi lawyers' proposals for improving judicial selection, here.

For more on Bangladesh, see Jurist's Bangladesh page, and Transparency International Bangladesh's recent survey, "Corruption in Bangladesh: A Household Survey 2001," which you can access through this page.

WETHERSFIELD POLICE THREATS CASE

The Connecticut Supreme Court upheld a conviction for breach of the peace against challenges on 1st Amendment grounds. Read the Stamford Advocate story here, and the opinions in State v. DeLoreto here and here (pdf files).

One interesting aspect of the opinion is the way in which the U.S. Supreme Court's reasoning in Virginia v. Black (the cross-burning case) gets picked up by the CT Supreme Court, in particular the discussion of "true threats" as unprotected speech.

Part of the drama of the case concerns whether or not police officers should be presumed to be more "thick-skinned" than ordinary citizens (in other words, whether or not words that could be classed as "fighting words" when directed against ordinary citizens are nonetheless protected speech when spoken to a police officer). Part of the concern here, which the CT Supreme Court acknowledges in a reference to Justice Powell's concurring opinion in Lewis v. City of New Orleans (1974), is that statutes that punish words directed against the police may confer too much arbitrary authority on police officers. The New Orleans statute punished "obscene or opprobrious" directed at police officers, and the US Supreme Court ruled that the statute was overbroad.

It's not entirely clear to me how the "true threats" category deals with the problem that Powell was concerned with in Lewis. In the present case, it's fairly clear that DeLoreto was threatening the police officers, at least from the record as read by the CT Supreme Court. There's no reason why citizens who are members of the police force should have to tolerate serious threats simply because of their official position. It will be important to watch how this category plays itself out in future arrests and litigation, however.

TRAIN WRECK

Today's NYT has an article about President Bush's nominations for the two remaining, statutorily allowed seats on the DC Circuit Court of Appeals. Here's the quote that should catch your eye:

During the eight years when President Bill Clinton was in office, Senate Republicans insisted the court's workload was so light there was no need for it to be filled to its 12-member capacity

The Times is actually giving a polite paraphrase of what was actually said during the Clinton years. Here's a quote from a March 21, 1997 article in the Legal Intelligencer, which, incidentally, carries the title, "Senate Approves First Judge in Five Months." The background is that Merrick Garland had just been approved for the DC Circuit Court, 1 1/2 years after the nomination hit the Senate.

Sen. Jeff Sessions, R-Ala.[. . .] argued that the 11th seat on the D.C. Circuit should not be filled because the caseload was the lowest of the 12 circuits.

In a letter to colleagues, he said that filling the seat "would be to rip off, to the tune of over $ 1 million a year ... the taxpayers of this country."

On the floor, he said it would be a particular waste of taxpayer funds at a time the Senate is seeking a balanced budget.

A furious Hatch rose and denounced what he called the "mini-rebellion" by his own party and said no one in the Senate had fought harder than he to balance the budget. He offered to meet outside with anyone who questioned his integrity on that point and he pronounced: "Playing politics with judges is not fair. I'm sick of it."

This exchange puts Hatch in a relatively good light (he's sometimes willing to take on his own party members when he thinks that they're politicizing the judicial selection process, according to his view of what it means to politicize the process), and it calls into question the claim that the Times makes today that "Republicans" argued that the seats on the DC Circuit Court of Appeals did not need to be filled. Some Republicans made that argument and they blocked judges ostensibly for that reason. In fact, Senator Sessions called the seats a "rip off." Earlier in the article, Trent Lott is also associated with the view that the seats are unnecessary. I wonder if their claim will survive the current nominations.

MISREADING PRYOR, AND ME

The Curmudgeonly Clerk responds to my comments on Pryor, here. The Clerk thinks I am unfair to Scalia, unfair to Pryor, and overly generous to Democrats. The post is really good: go read it!

The Clerk gives a helpful quote from Scalia that helps to clarify the comments I heard him make at Georgetown last year, where he said that if he thought that Catholic teaching forbade the death penalty then he would resign from the bench. The quote from Scalia puts this idea in the context of his understanding of the limited nature of the judicial role. But it is worth noting that Scalia didn't say that if he thought Catholic teaching forbade the death penalty then he would subordinate his moral beliefs to his judicial role; he said that he would resign. If I have understood him, Scalia is claiming something about the relative priorities of various roles for the devout Catholic who holds a certain view that he or she believes is in line with catholic orthodoxy.

Now perhaps there is a big misunderstanding here, and what Scalia was really saying was that a devout catholic judge who believed that catholicism taught that the death penalty was contrary to God's law could reasonably and morally choose either path, namely, resignation or continuing on as a judge who shares some responsibility for the implementation of the death penalty. I'm not sure that that was Scalia's argument, but whatever he was saying, I think that we are justified in thinking that someone who has made the choice to be a judge in such a situation -- and someone who simultaneously professes to conceive of the judge's role in the way that Scalia does -- is choosing devotion to the judicial role over devotion to religious teaching. Unless you can find some way to reduce the moral conflict between the two, that is.

The choice for the judicial role (and against what is perceived to be the moral evil) is a choice that is bound to be psychologically burdensome, however, and it is one that a devout person might feel some regret over at some point in his or her career. And I think that we are justified in questioning the moral integrity of someone who is willing to subordinate (avowedly) deeply held religious beliefs to some concept of the judicial role for the purposes of maintaining this particular secular government. This world -- and its courts and judges -- will pass away, but you've got to live with God for eternity.

Now Pryor certainly did not say all of these things in his testimony before the Judiciary Committee, and I do not want to be unfair to him. The only question here is how he will act as a federal circuit judge with a lifetime appointment. Scalia sees the "living constitution" view as one way of reducing the moral conflict, and he sees the psychological and moral attraction of this view (in the quote that the Clerk provides). I suggested other possible reconciliations in my post below: you can take some kind of "natural law" view, or a realist, policy-attaining view, or a subversive view.

Another, more benign approach, would be to read precedent as narrowly as possible to prevent as much of the moral evil that you think you can get away with. (See Sam Heldman's post here.) That's probably what Pryor will do on the bench, and that's why Republicans want him there. He can claim that he's "following the law," to be sure, but for Republicans to agree with them, they will have to admit that there is some irreducible discretion in the judicial role and that they prefer judges who employ that discretion to attain policy goals that they agree with.

Note that I am not saying that the Democrats are acting according to principle and the Republicans are just playing politics, as the Clerk seems to imply. The question is how Pryor can hold to all of the views that he professes to hold. Democrats are right to be skeptical that he can and to look for something behind the words "follow the law." And let's not kid ourselves: everyone knows that he will be an anti-abortion judge, so there's really not a heck of a lot up for debate here anyway. He's not going to be Blackmun or Souter. He'll read the law so as to permit as few abortions as possible. There is no secret here. But if that's "following the law," then the supposed severity of the judicial role looks a little different than it did when Scalia was discussing it at Georgetown last year.

As a coda: most of this argument is subject to the qualification that the moral status of the death penalty is different from the moral status of abortion, at least with respect to the judicial role, as an astute reader has noted. I've got to think about that some more.

BEING "POLITICAL" IN WARTIME

"Neither glib promises nor glib excuses will serve" -- Dwight Eisenhower, 1952 campaign speech.

In the next campaign season, we're going to hear a lot about how Democrats are "playing politics" with the war in Iraq and the war on terrorism. The implication is that it is un-American or undignified to make war, its conduct, and its justification a topic of political contestation. As this weekend approaches and the Korean War is on the minds of veterans, their families, and those who care about such things and pay attention to them, it's worth reflecting on the 1952 presidential campaign, in which Dwight Eisenhower, Republican candidate for President, made it part of his set of campaign promises to "bring the troops home." And he followed through on that promise.

For my part, I don't believe that Democrats should follow Eisenhower's lead. The current administration has committed the U.S. to a policy of troops on the ground on Iraq, and if the country is not to succumb to complete disorder (which is not necessarily worse than dictatorship -- read Hobbes again!), there will have to be foreign troops on the ground for years to come. In the short run, because of the diplomatic errors of this administration, these troops are likely to be mostly from the U.S. In other words, the most irresponsible thing we could do now is pull out the troops and "bring them home."

Nonetheless, when Democrats attack the administration on the campaign trail for their mistakes in conception and execution in Iraq, and the administration replies in shocked tones that the Dems are "playing politics," Democrats merely need to think of Eisenhower's criticism of the Truman administration, and take heart that they are acting fully within the historically established limits of American democratic debate.

MORE: Dems use the "playing politics" line, too. I'm under no illusions here. I'm interested in one particular claim that has already made the rounds, though: that it is inappropriate to campaign on a policy of opposition to a sitting president's war policy. In fact, it is appropriate, necessary, and common throughout U.S. history. Whether or not it's wise is another question. It's less wise if you can't find a way out of the "playing politics" net.

MORE ON ABORTION AND PRYOR

Read Sam Heldman's post here (Lead: "What should a judge do if he or she can prevent the slaughter of millions?") He's making a similar argument to the one I made here and here, yesterday (especially the second linked post). Now I'll admit that my last serious encounter with catholicism was in reading St. Augustine in grad school (and, before that, three years of high school with some very dedicated and wonderful octogenarian Lithuanian priests here), but at least one reader has raised some questions about my interpretation of catholic teaching. This issue needs more sensible treatment than I've provided below, of course. More later.

GREETINGS

Howdy!! to my loyal readers at the US Department of Justice. Please do feel free to let me know if you think I've written something that's silly or misguided. I'm pretty good natured about admitting when I'm wrong (in fact, I'm working on a few admissions right now), and I'm generally a pretty friendly guy, all things considered.

And Gruss Gott! to my readers in Germany, and hello there! to the occasional person who wanders in from Indonesia, and to the folks from UTC +2 as well.

What a cool information world we live in.

NOW WHO'S "CHANGING THE CONSTITUTION"?

Tom Delay wants to "involve the House in more federal court nominations." Read the press release on the House Working Group On Judicial Accountability, here. (See also the wire story here).

Given the attacks by Republicans on any Senate Democratic attempt to create structures for bipartisan vetting of judicial candidates as "unconstitutional," I can't see how House Republicans can escape the same charge -- if the apparently textual theories of constitutional meaning remain consistent when applied to partisans in the Republicans' own party. Everything will come down to what precise proposals are developed, and I have no inside information on what this Working Group is supposed to accomplish. Right now it stands as a threat to Senate Democrats that the partisan pressure is going to pick up.

Given that the text of the Constitution clearly leaves no role for the House in the judicial nominations process, I'm not sure how Republicans will avoid the charge of constitutional hypocrisy here. I'm not particularly concerned about additional efforts by House members to get in on the act (as a constitutional matter, that is; as a political matter, it's clear that the House Republicans are trying to get involved with what they see as a winning issue). But I have never staked anything on a strong textual view of the constitutional requirements in the area of judicial nominations, unlike all those Senate Republicans who have argued that Democratic opposition in the form of a filibuster -- and Democratic reform proposals -- are unconstitutional.

STRIP SEARCHES

Don't get arrested in Tupelo. My, my.

BEST MASTHEAD

The Ghanaian Chronicle: "The Objective Truth."

MORE PROBLEMS FOR VA "JIHAD" INVESTIGATION

Judge T. Rawles Jones, Jr. isn't persuaded that one of the remaining two suspects in a terrorism case should be denied bail. The suspects are accused of training for Jihad in Kashmir. Read the WaPo article here. (The Hindu also picks up the story.) Jones has ordered the release of six of the suspects on bail, a move that the Baltimore Sun described as evidence of a "judicial backlash" against overreaching federal prosecutors. Read also this Times of India article on the original indictments.

CARNIVAL OF THE VANITIES

July 30th, at Lies, Damned Lies and Statistics. Be there.

GOLDBERG, CONSERVATIVES, AND BERKELEY RESEARCHERS

Jonah Goldberg rips into a paper (pdf file) from UC Berkeley. Sound exciting?

As often happens when academic commentary ruffles feathers among the professional punditry, Goldberg gets pissed off and rants for a while. Much of what he says is interesting. On the other hand, despite his protestations that he has read the report in order to head off "silly liberal" critics of his attack, methinks he doth protest too much. I'll admit that I haven't read the whole thing, either, but I also don't have a stake in going after what I perceive to be the excesses of "the Left" (or of "the Right," as tempting as it is in this political climate), perceived by Goldberg to be pulling the strings of the American culture marionette from places such as UC Berkeley.

Going after easy political targets may be satisfying, but it certainly won't get at the core of what the research into the social-psychological foundations of political ideology is trying to accomplish. (The usual caveat: I'm not an expert in this literature, so my views are subject to correction by people who are.) The serious and politically useful point of such research is to try to figure out what produces the success of "conservatives" at the polls, perhaps with the intent of predicting, roughly, when conservative successes are likely. The earlier "authoritarian personality" strand of research, which the authors also use, had an equally important political point: trying to figure out why fascism triumphed in the 1930s and how to head it off in the future. Think what you like about the concepts and results, but that's the main point of the research here, and it seems to me that the research should stand or fall according to its predictive value along these lines. I'm not sure about the track record of this research tradition, but my gut tells me it's probably not too much better than any other research tradition that tries to predict the political future.

It is important to differentiate between different kinds of conservatives for this exercise, and from my reading of the paper I'm not sure that the research tradition in which the authors are working does a great job at that. Fascism is not conservatism although it has been a likely political ally of some forms of conservatism, in Germany for example. And fascism in the U.S. is not really "conservative," either; they're just cranks, for the most part. People who identify themselves as "conservatives" fall into different and mutually incompatible camps, from people who support Pat Buchanan to people who support Pat Robertson to people who support both George Bush I and II. The authors of the study are dealing with the term "conservatism" as it exists in the social-psychological literature, and this term may not mean what it means in popular language. The authors even note that there is no a priori overlap between "conservative" and "right-wing":

In any case, we are not denying that liberals can be rigid defenders of the status quo or that conservatives can support change. We assume that historical and cultural variation in political systems affects both the meaning of conservatism and the strength of empirical associations between the psychological and ideological variables we investigate. To take one fairly obvious example, it seems likely that many left-wingers in totalitarian communist regimes would exhibit mental rigidity and other psychological characteristics that are often thought to be associated with right-wingers in other contexts. To be sure, social scientists in the West have undersampled these populations in developing and assessing their theories. (p. 343)

(To be fair to Goldberg, the authors then go on to use "conservative" and "right-wing" interchangeably in at least one point, which is odd, but it seems to be a function of the literature they're reviewing. See p. 344) So, what the authors do in order to get a handle on the literature is to create a more or less stipulative definition of conservatism, which for the authors means "resistance to change" and "acceptance of inequality." Much of Goldberg's piece comes down to trying to show that self-identified conservatives actually like change because they don't like what they perceive to be the liberal excesses of the 1990s (or, if you were to cast a wider net, the political excesses of the New Deal). As Goldberg says:

conservatives are the ones demanding change.

It's hard to take this view "straight up," though, since self-identified conservatives don't cast the 1990s as a period of mere experimentation that followed an earlier period of mere experimentation that followed an earlier period. . .and so on. They're interested in some kind of "good old days," whether it was the 1950s (before the Beatles and the anti-Vietnam protests), the 1920s (before the New Deal and the rise of Supreme Court activism on non-economic rights but deference on economic regulation), the 1820s (before there was much of a national government to speak of), or what have you. Contemporary conservative political rhetoric has decried the fact that liberals have been in charge since the 1960s, or 1930s, or 1860s, or whatever, and say that we should reject their unfortunate experimentation. Painting a stylized picture of the past makes current political positions appear less threatening. One thing that is interesting about the differences between contemporary U.S. liberals and contemporary U.S. conservatives, however, is their willingness to employ these rhetorical tropes. So even if it is true that contemporary conservatives say that they want to change (stipulated) liberal excesses of the last thirty, eighty, one hundred thirty, or one hundred seventy years, they are attempting to appeal to visions of the past that they believe the electorate holds. And since we're concerned not with the private, internal psychological dynamics of individual conservatives alone, but with the question of conservative success at the polls, identifying conservatives as "resisting change" makes sense.

As for acceptance of inequality, the second prong of the authors' definition of conservatism, Goldberg doesn't touch it, probably because it's simply true, if you define the domain of inequality appropriately.

One other important point. Goldberg doesn't even bother to try to account for some stunning statements at the end of the article, where the authors argue against what Goldberg claims is an excessively "psychiatric-therapeutic " approach to conservatism (and which Goldberg claims is prevalent on college campuses, although his evidence is pretty thin, but that's for another day). Here's the key passage from the paper in question:

Because conservatism often takes the form of a social movement that is shared by large groups of people in particular historical periods [. . .], it may be thought of as a social norm that emerges under certain social and political circumstances. Our review indicates that too many psychological accounts of conservatism in the past have treated it solely as a dispositional orientation and not as a situational reaction, although it is true that the disposition is often hypothesized to develop in response to certain social and family situations in childhood [. . .](p.366)

In other words, according to the authors, political conservatism isn't simply an attitude that is unrelated to political experiences. In fact, for the authors, political ideology is related to things that happen in the world, or at least to things that happen in the world as they are mediated through how we understand the world. It's hard to make a claim that the authors are arguing that conservatism is "abnormal," or that it should be treated medically, as Goldberg seems to imply. Instead, the authors are attempting to develop a comprehensive account of the sources of conservative ideology, one that corrects for a narrow focus on "disposition."

Well, hopefully the authors will now produce a review of literature on the roots of "liberalism," whatever that word means. . .

See also the Angry Clam's even more intemperate reaction here. (via California Insider)

MORE: See also the comments at riting on the wall, which point out the crucial difference between the press release and the actual study. I won't defend the press release since I pretty much agree with JB's criticisms even though I can't reprint them here because this is a G-rated blog. Oh well. To be fair to Goldberg, he tries to limit his attack to the press release, but since he claimed to have read the article as well, he opens himself up to broader criticisms. And for a learned take on the study (from someone who can speak in the terms of art), read this post at Dormouse Dreaming (and scroll up for a related thread).

ANTI-CATHOLICISM?

William Pryor shouldn't serve on the federal bench. Below I noted Scalia's claim that Catholics against the death penalty shouldn't serve on the bench, and claimed that Pryor is in a similar position. I don't think that being Catholic has anything to do with it; the question is whether anti-abortionists of a certain type should serve on the bench, namely, those who believe that God prohibits abortions because they are murder.

Let me state my point more clearly.

If you believe that abortion is murder, that there is a God who will punish murderers, that U.S. law permits abortion, that U.S. law binds judges, that judges must permit abortion in order to "follow the law," and thus that judges are morally co-responsible for abortion, then you should not sit on the federal bench. If Pryor really wants to be a judge, one of those things has to give. It is entirely appropriate for Democrats to believe that one of them will give -- namely, that Pryor's professed ability to "follow the law" will prove to have been an overstatement. The interesting thing is that the Democratic position actually takes Pryor's religious commitments seriously: if Pryor really holds the beliefs on abortion that he says he holds, and if he is really a pious, anti-abortion Catholic, then he would have to be sophistic, hair-splitting, or lack integrity in order to serve on the federal bench.

None of this is to say you can't be an anti-abortionist judge. You just have to take a different view of the judicial responsibility to "follow the law," or a different view of what "following the law" means -- different from Pryor's apparent view -- in order to be one. You can choose a natural law approach (laws that are unjust according to natural law are either "not law" or don't deserve judicial allegiance), or you can take a realist approach (I like certain results and will read the law to allow them), or you can take a kind of subversive approach to the judicial function (I know that there is a tension here, but it's a tragic tension, and I'll go with my deeply held moral views). It would be hard to recognize any of these approaches as "following the law" in the way that the controversial Bush administration nominees have used the term, however. You can't attack realism on the one hand, for example, and then turn around and insist that judges can be realist when morals are at stake. That's having your cake and eating it, too.

I suppose Pryor could take a kind of Story-esque approach -- as in, Joseph Story -- and say that the judicial function requires judicial implementation of unjust laws. For Story the issue was slavery. People who take that position are rightly viewed as hypocrites, it seems to me, although I realize that it's a difficult issue; and Story has not been immune from the charge that he really wasn't against slavery . More damningly, Story at least had the excuse that he believed that anti-slavery rulings from the federal bench would precipitate secession and all of the material harms that such a move would create. However you assess that position morally, it's hard to have the same excuse with respect to abortion.

MORE: TAPPED has got parts of the transcript of Nina Totenberg's NPR story on the Judiciary Committee meeting yesterday. They're worth a look.

"POSSIBLE"

Is it possible that the Bush administration commissioned the 9/11 attacks? Lots of Germans are willing to say, "yes." See the coverage at the Newsrack Blog, here, and Dormouse Dreaming, here.

I hate these kinds of questions. Is it "possible" that the moon is made of cheese? Well, if you're willing to entertain the brain-in-the-vat hypothetical, then, yes, it's "possible." Lots of things are possible, depending on how low a threshold you're willing to set and how literal you're willing to be.

On the other hand, Anita thinks I'm too literal. She might be right.

SCALIA'S ANTI-CATHOLICISM?

Is Scalia "anti-catholic"? In a speech at Georgetown last year that I attended, Justice Scalia said that if he thought that it was against his Catholic beliefs to support the death penalty, then the only honorable course would be to resign from the bench. This statement elicited a round of criticism of Scalia's understanding of Catholicism. This is predictable given the contentiousness of the issue and the mutually incompatible stances that self-professed Catholics take on the question of capital punishment.

Again, Scalia's position is that all catholics who believe that the death penalty is incompatible with their faith -- as they understand it -- shouldn't be on the bench. I realize that there is a difference between saying that a certain belief should cause someone to resign from the bench and saying that a certain belief could be a valid criteria for judicial selection, but I'm not sure that the difference is all that significant.

What Scalia was saying was that certain catholics should not remain on the bench. He raises profound questions of judicial obligation here, and I have to admit that I don't know precisely what I think about this issue, but all I want to establish is that it is facile to accuse him of being "anti-catholic." Actually, "facile" is a kind way of putting it.

The most recent tactic in the battle to put Bush's nominees on the bench is to accuse those who oppose Pryor of being anti-catholic because they have raised questions about his anti-abortion stance. Listen, for example, to Nina Totenberg's NPR report on yesterday's Judiciary Committee meeting here. This way of framing the issue is weird to me: it's not just catholics who oppose abortion, and not all catholics oppose abortion. It's more appropriate and accurate to note that the Democrats oppose Pryor because a) his stances on controversial positions are not in accord with their own, and b) his views seem so deeply held that Democrats wonder whether or not he will judge "impartially." This second reason can be redescribed as the fear that Pryor will use his discretion (which everyone has to admit exists in appellate cases) against certain types of defendants or against certain kinds of claims. Both a) and b) are legitimate reasons for Senators to oppose nominees, and neither is a threat to the "rule of law" (pace the folks at Southern Appeal; for a contrary view, see Matthew Yglesias's post here). There is, at the very least, no textual reason to accuse Senators of employing a dangerous understanding of "advice and consent" in the Pryor case.

For more on the anti-catholic line, check out the (protestant-funded) ACLJ and listen to their radio spots, here. They've been beating this drum for a long time. One particularly ingenious way that they raise this issue is to select a lot of calls from people who argue that the Senate is establishing a "religious test" for federal judicial nominees, and "asking" whether or not this test doesn't infringe on religious freedom. Pretty smart: makes it look like there is a swell of grass roots revulsion at Senate Democrats here.

MORE: See my post above.

MORE: I respond to the Curmudgeonly Clerk's incisive criticisms in my own post above, here.

OLD S-BAHN TRAINS

If you have ever had Berlin nostalgia, it's probably partly for these, now gone to their graves. I rode the old trains with wooden seats every day, to school, for a year (1988-89) while I was a Congress-Bundestag exchange student in West Berlin. And now they're gone, replaced by strangely archaic, futuristic trains with a/c, smooth suspension, and digital signs that scroll the name of the next stop. Strangely, the future of the immediate past seems more outdated than the present of the slightly more distant past. Anti-modernism? Maybe.

CONTEMPT

Fines and jail time for contempt used to be one of the ways that courts could encourage an aura of respectfulness around the court's functioning -- sort of the judicial equivalent of punishment for blasphemy. In India, contempt is still an important weapon in the judicial arsenal, as the case of Arundhati Roy shows. (See also this list of articles on the case.)

In the U.S., contempt has been narrowed steadily since the nineteenth century. For an amusing contempt case coming out of Ohio -- having to do with a vulgar phrase on a check for a traffic violation -- read this article in the Plain Dealer, and you can also access the case from the Ninth District Court of Appeals in Ohio, here (word document).

AB-BULL

Marketers of FastAbs were lying when they said you could get "rock hard" abs without exercising, simply by strapping a little electronic belt around your waist and then sitting on your lazy behind and reading the paper, or eating ice cream, or whatever. Thank God for the FTC, I guess. Read the article about the $5 million settlement in the Daily Herald, here, and read the press release at the FTC's web site here.

The settlement is not an admission of guilt on the part of the marketers, of course, but it only took me five minutes of semi-curious searching on the web to figure out that I probably should spend my thirty bucks somewhere else -- on down payment on a new pair of running shoes, for example.

UNIFORM CIVIL CODE

The Chief Justice of the Indian Supreme Court endorsed a common civil code on Tuesday. Read the BBC article here (Chris alerted me to the story; thanks!) The Hindustan Times has this report, and notes that the decision in which the Court expressed its views concerned statutory restrictions (from 1925) on Christian charitable donations, which the Court struck down as an unconstitutional infringement of equality rights.

Disputes over the uniform civil code are likely to make U.S. Free Exercise disputes look like a "graduate seminar in political philosophy" (to quote one of my favorite political theorists, Sheldon Wolin, from his 1994 Political Theory review of John Rawls's Political Liberalism). Read the New India Press story here, which gives an overview of some of the controversies surrounding a uniform civil code, including touchy issues of family law that go to the heart of issues of communty identity, multiculturalism, secularism, and the exercise of private power. New India Press has also got an article on the Court's decision here. For some background on one of the most significant recent cases in Indian Supreme Court history dealing with family law, the Shah Bano case, see this Indian Express article, and this case study from Professor Laura Dudley Jenkins at the University of Cincinnati.

PRYOR NOMINATION

Pryor's nomination just reported to the Senate floor on party line vote.

Quote from Senate Judiciary Committee Chair Orrin Hatch, to Senator Patrick Leahy, in the context of a dispute about how to proceed:

Leahy: "No, I want. . ."

Hatch: "I don't care what you want, this is the way it's gonna be."

Sounds about right.

MORE: I should have noted that I was watching the hearings on C-span 3. If you want the immediate context of the sharp words, see Howard Bashman's post on Rule IV, here.

MORE: There's a good post at Balasubramania's Mania on the structure of some of the commentary on Pryor. References to the "rule of law" as employed in these discussions are generally best understood as attempts to capture the strategic high ground.

UDAI UND HUSAI

German papers on the death of Saddam's sons:

The Sueddeutsche Zeitung has an optimistic commentary from Stefan Cornelius. According to Cornelius, the Americans had been losing ground with respect to convincing the populace that they were the "lesser of two evils."

But now, through the death of Saddam's children, all of a sudden the memories of the old horrors come alive again. Arbitrariness and chaos -- those were the characteristics of the rule of Saddam's clique. In the streets of Bagdad people are firing their weapons in salutes of happiness; people are happy that they have been delivered from the power of the old regime, and this time it's a deliverance for all eternity.

For the US, the news of the firefight and death means that an important opportunity has opened up. Once again they can present themselves as liberators, once again the memories on the cruel past is awakened.

Doch jetzt wird durch den Tod von Saddams Kindern urplötzlich die Erinnerung an die alten Greuel wach. Willkür und Chaos – das waren die Führungsmerkmale der Saddam-Clique. In den Straßen von Bagdad wird Freuden-Salut geschossen, die Menschen sind froh, dass sie erlöst sind von der alten Herrschaft – diesmal gar eine Erlösung für die Ewigkeit.

Für die USA eröffnet sich mit der Nachricht vom Tod im Feuergefecht eine kleine, aber bedeutende Chance. Noch einmal können sie als Befreier wirken, noch einmal wird die Erinnerung an die grausame Vergangenheit geweckt.

The Sueddeutsche also has portraits of both men from the wires, here and here. (Tagesspiegel picks these up as well.)

The Frankfurter Rundschau has an editorial called "Propoganda Success," which essentially argues that the deaths are both very good for Iraqis and very good for Bush's domestic political prospects. The Handelsblatt has an article that makes the same argument ("Death of Saddam's sons can help Bush").

taz doesn't comment on the deaths; instead, they have a short news item from the wires.

Reuters Deutschland puts out a related story that the papers pick up: German intelligence agencies believe that Saddam Hussein is still alive.

(BTW, google deutschland makes this kind of thing a heck of a lot easier.)

YOUR FAULT, DUMMER AUTOFAHRER

If you fill up with petrol rather than diesel fuel, it's your own fault, buddy, according to the Bundesgerichtshof (Germany). Read the article in the Freie Presse, here (via google deutschland). A woman's insurance company refused to pay for around $5000 damage that occured after her husband filled up her Mercedes with regular gas rather than diesel.

I'll bet he'll never live that one down.

PUBLIC INTEREST AND LOCALISM

Senate FCC critics take up rule changes today. The Senate Commerce, Science and Transportation Committee is holding a hearing titled "Public Interest and Localism" at 9:30 a.m., and you should be able to listen to them through Capitol Hearings.

The hearing is part of the Senate's response to the controversial changes in media ownership rules announced by the FCC in June. According to NPR this morning, the hearing will explore the possibility of forcing stations to carry public interest and local programming. (For a short reading list on the rules, go to my summer class page here.) The senior FCC critic of the rules changes is Michael Copps, and you'll get a chance to hear him today if you listen in to the hearing. The rules changes allow for greater concentration of media ownership, particularly in the area of free, over-the-air television. At the June FCC meeting at which the rules were announced, Copps attacked the changes as

empower[ing] America’s new Media Elite with unacceptable levels of influence over the media on which our society and our democracy so heavily depend.

You can read his statement on the rules changes here (pdf file).

The main defender of the rules, Michael Powell, is not on the witness list today.

CAN'T GET A CAB IN ANACOSTIA?

Diamond Cab company discriminates against Anacostia residents. The U.S. District Court for the District of Columbia released a memorandum opinion in Lamont Mitchell v. DCX today, and you can read the opinion here (pdf file).

RON PAUL'S RANTS

A fine piece of congressional rhetoric. Wowee. I don't know where to start, except to say: Congressman Paul is still scary and weird, but now, as straussian.net notes, he's taken up Strauss-bashing as a minor hobby (next to abortion politicking, tax bashing, gun toting, and trying to pull up the drawbridge [see also here] and bring the troops home. Oh, and protecting shrimpers.).

QANTARA

Lots of good stuff at Qantara, from a disscussion of internet use in Iran, to an overview of Fereshta Ludin's struggle with the German government over wearing a head scarf on the job (she's a school teacher), to a discussion of the steps Turkey is taking in reforming its judicial system in order to increase its chances of getting into the EU (including abolishing civilian trials before military tribunals!)

REPS THREATEN MADISON TV STATION

This is unbelievable, from here (via Daily Kos):

A Democratic National Committee-sponsored TV ad that blasts President Bush's push to war in Iraq will get a test run in Madison beginning today, while Republicans are warning broadcasters not to air the ad, calling it "deliberately false and misleading."

Tom Bier, station manager at WISC-TV/Channel 3, said his station received the ad Friday, and also a letter from the Republican National Committee urging him not to run it.

The letter hints at FCC problems for the station and is actually stronger than the paragraph above lets on: the end of the letter reads, "you are obligated to refrain from airing this advertisement."

You can read a text of the letter at Daily Kos (who doesn't say how he got it, but it overlaps with what's reported in the article).

There is probably an interpretation of the recent campaign finance reform law lurking in the background here, but I don't think that that angle is as interesting as the fact that Republican lawyers are now threatening TV stations over the question of whether or not Bush misled the public in his State of the Union Address. You don't even have to parse the letter carefully to figure out that there's something wrong here.

Hardly anyone is able to quote the disputed words correctly. On Fox News Sunday (rebroadcast through c-span radio) I heard Tony Snow claim that the President said that "the British government believes" that blah blah blah thing that's probably bogus. Whether Snow was just careless or intentionally parroting one version of the Republican wishful reconstruction of that sentence -- see Bill Kristol's column here, via TPM -- is up for you to judge. In addition, if the Republicans are really going to rest their case on the claim that the "British made us do it," as the letter printed at Kos seems to indicate, they'll never find their way out of this one.

WHY GUANTANAMO IS BAD FOR THE WAR ON TERRORISM

Germans will deliver terrorism suspects for civilian trials, but not for trials before military tribunals. That seems to be the lesson of the case of Ali Hassan al-Moayad and Mohammed Mohsen Yahya Zayed. Read the Frankfurter Rundschau article here, the Reuters Deutschland article here, the BBC News article here, and the CNN report here. Note that the english language news sources (apparently working off an Associated Press story) frame the issue as one of the dispute over the death penalty, whereas the German news sources frame it as part of German criticism of military tribunals.

NOTES

Thanks to Sugar, Mr. Poon?, American Samizdat, Stuart Buck, elementropy, Wizbang and Waldheim for the links.

NEVADA

Criticism of the Nevada Supreme Court mounts, according to this article in the Las Vegas Review-Journal. (On my view of the case, see my posts here, here, here, here and here.) It looks like the ACLU is considering supporting a rehearing, which has already been requested by John Eastman of Claremont. As far as needed tax increases go, however, they passed the Nevada legislature by a margin of 28-14 in the Assembly and 17-2 in the Senate, according to this article in the San Francisco Chronicle.

As I noted in an earlier post, the Nevada Supreme Court is actually institutionally weak, at least on paper. Its justices can be impeached, recalled, removed by a supermajority vote in the legislature, and removed by a special disciplinary board.

Plus, they serve short terms at the pleasure of the voters. In addition, they do not have the same kind of institutional support for crafting their media image that other elected politicians have. Note that there is no "press release" link on the Nevada Supreme Court page. That's because there are no press releases from the court. The Court does not have a press secretary.

In the current furor over their decision in Guinn v. Nevada State Legislature, there has been very little (online) defense of their decision, and the justices themselves have not attempted to weigh in with explanations of their actions; indeed, it would probably be improper for them to do so.

The time frame for judicial self-explanation is measured in years and even decades, not in days or weeks. In the meantime, the court has to expect its decision to speak for itself, through political and scholarly commentary. This makes the court much weaker than other political players with respect to the press. After the decline in the contempt power (still used in India, for example, to defend the "dignity" of the courts against press attacks), courts are more restricted in their ability to shape public opinion in their favor.

Perhaps the Nevada Supreme Court thought that it could catch the wave of public support for education and thus create political allies, as, arguably, courts have done in New York, California, Arkansas, North Carolina, and Wyoming. I would gather that the next election cycle in Nevada will help answer the question of whether the justices in Nevada have succeeded.

TERM LIMITS

Term limits put power in the hands of lobbyists, according to an article in the Christian Science Monitor by staff writer Mark Sappenfield. Sappenfield focuses on California:

With 32 freshmen among the 80 members of the Assembly this year - more than half are term-limit replacements - uncertainty has become a rule. Lobbyists have filled the void as impromptu tutors on issues ranging from the tax code to federal welfare funds. Though perhaps most pronounced here, the state where lobbyists spend the most money, the trend has begun spreading to other term-limit states, propelling lobbyists to both a prominence and boldness not seen for decades.

Term limits are another idea that was nourished by the quasi-populist (but in reality, simply anti-government) streams of conservative political thought in the late 1980s and early 1990s. Aside from the unintended -- but not necessarily unpredicted -- consequences of such institutional reforms, the long-term problem with institutional arrangements that hem in the power of government actors is that it is then very hard to restore the lost power.

If you think that what government does is mostly bad, then you won't be particularly worried with that result. Few people really believe that most of what government does is bad, though; most people want government to be doing the kinds of things that they like and not doing the kinds of things that they don't like. The basic problem with anti-government approaches is that in modern society, power is going to be exercised somewhere, by organizations of some sort or another. We should want publicly accountable institutions that are powerful enough to counter institutions that are not publicly accountable.

Ironically, as Sappenfield notes, one of the arguments for term limits was that they would make politicians more accountable to ordinary folks, both by putting more ordinary folks into office (even though the precise means by which term limits are supposed to encourage "citizen legislators" is not quite clear) and by cutting the prospects for long-term political access by "special interests." The opposite has happened, however. Term limits limit the power of legislators by decreasing their collective stock of intellectual capital. This means that "special interests" have comparatively more intellectual capital and are thus more powerful than they would be without term limits.

Note that Sappenfield's article does not mention ditching term limits. Instead, legislators are considering additional regulation of lobbying activities. These regulations will then have to be enforced (which is not free) and will give rise to new tales of abuse, corruption, and calls for additional reforms.

It would be much simpler to correct the balance of power by ending term limits. There has been some drive in this direction, as this article at the Cato Institute notes, but increasing the power of government is always going to be an uphill climb. Note also that Cato states that:

Most special interest groups (especially large, heavily regulated corporations as well as unions that rely on government intervention in the labor market) view term limits as anathema to their interests.

Cato doesn't attempt to support this statement, but if corporations in general aren't "special interests," then maybe Cato is right; plus, perhaps unions don't like the way that term limits have apparently increased corporate lobbying power.

HISTORICAL REVISIONISM

From Charles Krauthammer:

[N]o one had any idea how costly and bloody the post-victory occupation would be.

Krauthammer should search his own files before he writes such things. See here. Whoops.

History is written according to the needs of the present, but the same logic applies to attempts to uncover distortions of the past in order to serve the wrong goals in the present.

SPEEDING, RACE, SEX AND OFFICER DISCRETION IN THE BAY STATE

Race and sex matter in routine traffic stops with police, at least in Massachusetts. See the Boston Globe article on their study here, via Howard Bashman. The Globe studied all speeding tickets and warnings in the state in April and May of 2001, and notes that local police are more likely to cut white women a break and less likely to do so for minority men:

When factors of race and sex are considered together, the records reveal a tiered system of ticketing. Local police allow white women to drive faster without penalty, while reserving the harshest treatment for minority men. When drivers went 45 m.p.h. in a 30 m.p.h. zone, white women were ticketed 28 percent of the time in the two sample months; white men, 34 percent; minority women, 44 percent; and minority men, 52 percent.

You can also take a look at the study itself, here (pdf file).

This study makes an important counterpoint to the results of the study relied upon by Heather MacDonald, here, for example, in her attempts to prove that racial profiling in traffic stops is a "myth." MacDonald argues that a study by the New Jersey attorney general showed that blacks were much more likely to speed on the New Jersey turnpike than whites; the study used photographs of drivers' windshields paired with radar gun readings. Speeding here is defined by going 15mph or more over the speed limit.

MacDonald uses these results to attack what she sees as "the reigning racial profiling myths." The Globe study seems to show that in actual traffic encounters, however, the most reasonable interpretation of the available evidence is that police are much more willing to give young white women a break than they are to give minority men a break, a break defined as issuing a citation rather than a speeding ticket.

One difficulty is obviously that the actual speed of the driver at the time of the stop is not known: the data we have includes only the speed recorded by the police officer at the time he or she wrote the ticket. One might argue, then, that the "extra" number of speeding tickets for minority drivers (as opposed to warnings) are due to variations in actual speeds observed by the police officer at the time of the stop. For example, you might say that young white women really were going only 15mph over the speed limit at the time of the stop more often than young black men, in direct proportion to the number of warnings (rather than tickets) they (the young white women) received. So the thesis here would be that the police officers are more willing to record the actual speed for white women drivers, and thus give them a warning rather than a speeding ticket, whereas for young black men the police systematically underrecorded the actual speeds but factored in the higher actual speeds when deciding on a ticket or a warning.

I suppose that such an interpretation is possible, but it seems a little strained, because it seems to assume that officers know the race and sex of the driver before they stop them. The problem is that even at night, when officers are presumably just stopping a car without knowing the race and gender of the driver, they are more likely to issue tickets rather than warnings minorities and men. Here are the numbers for stops of young drivers (age 16 - 25) at night, in-town drivers only (state violations excluded), cited for exceeding the speed limit by 10-15 mph, from page 48 of the report [NOTE: I tried to include a table elegantly, but to no avail]:

White Women: 412 tickets (29.2%), 999 warnings (70.8%), 1411 total citations

Minority Women: 66 tickets (46.2%), 77 warnings (53.8%), 143 total citations

White Men: 913 tickets (39.7%), 1384 warnings (60.3%), 2291 total citations

Minority Men: 912 tickets (44.4%), 265 warnings (55.6%), 477 total citations

There's clearly a lot more here to think about and to study, but the report does at least bring strong evidence in favor of the claim that police exercise their discretion in traffic stops in favor of white women and to the detriment of minority men.

MORE: On second thought, I'm not sure that what I wrote two paragraphs above makes much sense. I'll leave it there until I figure it out. I think what I was getting at was that the MacDonald's "minorities speed more often" argument would imply that what looks like discretion (warning or ticket) is really a function of the actual speed of the car at the time of initial observation by the police. But I'm not sure why observation of the race of the driver at the time of initial observation would be relevant; if anything, the fact that citation patterns are similar at night and during the day could be used by folks like MacDonald as evidence of the claim that it is the initial observation of the objective behavior of the driver that matters, not the racial attitudes of the officer.

The basic problem is that we don't have independently verifiable knowledge of the circumstances of the stops, so we must try to approximate it. Some initial observation plus a stop plus contact between the officer and the driver leads to the legal event of the warning or the legal event of the ticket. It seems to me reasonable to suppose that the detailed categorical scheme of the report defines the legal events narrowly enough to approximate similar (presumed) observations of objective driver behavior: the report slices the data into citations for different categories of speeding.