"It gets late early around here." - Yogi Berra
August 31, 2006
KATRINA: What Really Flooded New Orleans
It Wasn't George W. Bush. In Fact, It Wasn't Really Hurricane Katrina, Either.
We know now that the Hurricane Katrina story is the greatest media failure of our times, dwarfing not only single-issue scandals like "Rathergate" but also broader failures like the media's coverage of the War on Terror. The media got so many things wrong in such a short time that we will not, in our lifetimes, see the truth widely accepted. Newsday's Lou Dolinar, for example, has chronicled the extensive, heroic and totally unsung rescue efforts in New Orleans, mainly by the National Guard and the Coast Guard, here and here. Historians will have a field day with all the hoaxes circulated by the likes of Anderson Cooper, Shepard Smith and Oprah Winfrey.
But nobody has been more dogged and diligent in following this story after the tide of headlines receded than Paul of Wizbang! If you missed it Monday, you must read the latest post in his long campaign to demonstrate that the flooding of New Orleans was the result of levee breaches caused by poor construction by the Army Corps of Engineers, rather than levee overtopping caused by a massive hurricane (and, thus, an essentially bureaucratic failure rather than a political one - as portrayed by some - or a simple Act of God). In fact, Paul now argues that the flood could have happened in any big storm, or indeed at any time, given the condition of the levees. Go read it (and watch the video that was kep under wraps by Congress for 10 months), and if you care at all about the truth of this story, spend some time with Wizbang's Hurricane Katrina archive. I guarantee you will learn something.
BASEBALL: And Not The Tasty Kind
BASEBALL: Rays of Hope
With BJ Upton and Delmon Young finally in the lineup, the Devil Rays should start getting a look at the building blocks they need for a contending team. Personally, these guys are a big reason why I think they should set a minimum age (say, 28) to be a free agent, rather than incentivize excitement-starved teams like the Rays to keep their green but talented young prospects at AAA to avoid accruing service time.
Fun fact about Upton: his real name is Melvin Emanuel Upton. Upton had a disappointing year with the bat at AAA, though I suspect a lot of that was mental pressure and frustration from being trapped in AAA two seasons after getting an extended big-league cup of coffee. I see nothing wrong with Upton that some maturity and job security can't fix.
As for Young, he batted .316 with 22 doubles and 22 steals as a 20-year-old at AAA Durham in a half-season's work, all signs of a great future power-speed guy. But he hit just 8 homers, which means he's probably not a big HR threat just yet (though you never know what sort of hot streak he might run off in September). His 65/15 K/BB ratio is also not a great sign, but again he's young.
POP CULTURE: Go Sell Crazy Some Place Else
BASEBALL: Cursed Once Again!
Let's see - David Ortiz out indefinitely with heart trouble, Coco Crisp sidelined with a bum shoulder, Jon Lester may have cancer . . . At this point, it would not surprise me to see a plague of locusts and a river of blood at Fenway. Dr. Manhattan asked recently if a franchise has ever had a worse month, all things considered - the Mets in August 1991 come to mind, the 1899 Spiders the month their stadium burned down, and the White Sox in September 1920 probably take the cake, but this is up there.
But hey, at least Jeff Reardon got off.
LAW: Is Requiring Basic Competence by Teachers Racially Discriminatory?
If you are tempted to wonder at why our public schools operate at such a disadvantage, two recent decisions by the United States Court of Appeals for the Second Circuit help illustrate the problem. In the first, Gulino v. New York State Education Department (2d Cir. Aug. 17, 2006), the Second Circuit reinstated a race discrimination suit against the New York State Education Department based on the theory that a test of "basic college-level content" that asks applicants to get just two-thirds of the questions right is racially discriminatory because it has a "disparate impact" on African-American and Latino teachers. The test, developed in response to a 1988 task force report on problems with teacher quality, is described at pages 11-13 of the opinion.
There are two immediate things that rub me the wrong way about this notion. First of all, isn't it racial bigotry to assume that lower pass rates for African-American and Latino teachers are because they are African-American and Latino, and therefore likely to persist indefinitely into the future? This isn't the 1870s, when it was reasonable and realistic to assume that black people were illiterate sharecroppers. If there are higher fail rates, that presumably is because African-American and Latino applicants are suffering from some intervening problem not caused by skills testing - i.e., bad schools in their own neighborhoods.
And second, why are those schools bad? In part because lawsuits like this one force the state to keep hiring teachers who lack basic competence in their subject matter. And where do you think those incompetent teachers end up teaching? There's your real disparate impact.
Instead of recognizing and deferring to the common-sense judgment that a test of basic educational competence is related to the job of being a teacher, the Second Circuit (relying, it must be said in the court's defense, in substantial part on Supreme Court precedents) sets a demanding test of empirical expert evidence before a public school can "validate" a test's relatedness to job performance. (The validation standard is discussed at pp. 36-48 of the opinion). The ridiculousness of this is exacerbated by the difficulty of finding an objective measure of teacher job performance. Nowhere in this process are schools allowed to excercise common sense in figuring out what makes a good teacher.
The second decision came yesterday in Guiles v. Marineau (2d Cir. Aug. 30, 2006), in which the Second Circuit rejected a school's effort to prevent a student from wearing a T-shirt with obnoxious political content:
The front of the shirt, at the top, has large print that reads "George W. Bush," below it is the text, "Chicken-Hawk-In-Chief." Directly below these words is a large picture of the President's face, wearing a helmet, superimposed on the body of a chicken. Surrounding the President are images of oil rigs and dollar symbols. To one side of the President, three lines of cocaine and a razor blade appear. In the "chicken wing" of the President nearest the cocaine, there is a straw. In the other "wing" the President is holding a martini glass with an olive in it. Directly below all these depictions is printed, "1st Chicken Hawk Wing," and below that is text reading "World Domination Tour." The back of the T-shirt has similar pictures and language, including the lines of cocaine and the martini glass. The representations on the back of the shirt are surrounded by smaller print accusing the President of being a "Crook," "Cocaine Addict," "AWOL, Draft Dodger," and "Lying Drunk Driver." The sleeves of the shirt each depict a military patch, one with a man drinking from a bottle, and the other with a chicken flanked by a bottle and three lines of cocaine with a razor.
Slip op. at 3-4. The court, noting the Supreme Court precedents granting free speech rights to public school students in their attire but permitting some limitations on those rights in the case of "plainly offensive" speech, concluded:
While what is plainly offensive is not susceptible to precise definition, we hold that the images depicted on Guiles's T-shirt are not plainly offensive as a matter of law.
Id. at 16. On the law, this was probably correct, and of course I don't think this sort of concentrated moonbattery, silly as it is, should be illegal. But I fail to see what interest of society is served by letting school kids wear shirts with any sort of message to school. (I went to schools with uniforms and, in high school, a dress code that had no room for T-shirts). Granted, this particular incident came to a head on a class trip, but why schools should end up being embroiled in these sorts of controversies at all is beyond me.
They said on the Mets broadcast the other night that the Mets - now with the best record in baseball - have used 47 players this year. I only count 45 but I may have missed someone along the way - 20 non pitchers, 25 pitchers including 13 different starters. The thing is, that much turnover is usually the sign of serious problems - the 1962 Mets, for example, used 45 players, including 14 different starters (the breakdown was 28 position players and 17 pitchers). Somehow, the Mets have instead used all that turnover as a way to keep regenerating on the fly, dumping people like Matsui and Lima and surviving a variety of injuries.
You think the people who booed Carlos Beltran are ashamed of themselves yet?
On another story, a reader recently asked what I thought of the Coors Field humidor. Well, it hasn't exactly been in evidence in this series, but scoring is down at Coors - it's played more like a traditional hitters' park of late rather than a separate planet (608 runs scored in Rockie home games this year vs. 584 on the road, a modest 4.1% increase). Personally, to me, anything that does that is good. From a purist's perspective, Coors itself (and indeed, any high-altitude baseball) is an abomination that distorts the very movement of the ball. Tampering with the game's equipment to counteract that and restore the balance of power between batter and pitcher can only be a good thing.
August 30, 2006
Ryan McConnell posts a vintage John Pacella baseball card, the classic one showing Pacella's unruly perm immediately after ejecting his hat (as always). Shame on McConnell for not knowing who Pacella was.
WAR: A Fraudulent Deal
You need only review the latest statements from Kofi Annan (here and here) to grasp the fraudulent nature of the cease-fire in Israel's war with Hezbollah. While I had initially regarded the cease fire as a good idea in theory that was impractical in light of the facts on the ground, it is increasingly clear that it's not even defensible on paper. Annan is demanding verifiable compliance by Israel, by a date certain, with specific terms regarding the withdrawal of troops and the lifting of a blockade. He makes no similar demands on Hezbollah, but merely expresses his hope that Lebanon will make progress in dealing with Hezbollah:
"In the meantime, I do believe the blockade should be lifted," Annan said.
He added: "I had serious discussions with the Lebanese leadership and I am really convinced that they are serious about implementing Resolution 1701 in its entir[e]ty."
The same goes for the Israeli hostages:
UN Secretary-General Kofi Annan said on Wednesday morning that he'll do everything he can to return the captured Israeli soldiers.
Cease-fire agreements are contracts. Contracts require verifiable compliance by both sides. This deal has specific requirements on Israel and nothing but hope and promises to which no one can be held, on the other.
I remain undecided as to whether the cease fire was a wise move by Israel. Supporters of the agreement have argued that sooner or later it will be clear enough that Hezbollah can not and will not comply with even its most minimal terms regarding disarmament and the release of hostages, and that this will enable Israel to reopen hostilities with greater international backing. Either way, however, one can not possibly take this agreement at face value as being worth anything at all.
BASEBALL: Off the Market
Yet another big-time pitcher will be staying put, as the Astros lock up Roy Oswalt for 5 years and $73 million. It's a good deal for Houston - Oswalt's expensive, and being a pitcher he's a serious injury risk, but he's been mostly healthy and you gotta pay somebody to pitch, so he's as good a bet as you will find.
I'll get to this another day, but given the current state of the free agent market, and particularly if the White Sox pick up Mark Buehrle's option, Barry Zito is going to become a very rich man this offseason.
August 29, 2006
HISTORY: A George Romney Historical Puzzle
I've read a couple of sources (see here, here and here) saying that Mitt Romney's father, onetime Michigan Governor George Romney, was born in a splinter Mormon community in Mexico. Of course, we know that George Romney was a widely-touted but unsuccessful candidate for the Republican nomination for the presidency in 1968. My question is this: if George Romney was born in Mexico, to a family that had lived there for more than two decades, how was he "a natural born Citizen" of the US eligible to be president under Art. II Sec. 1 of the Constitution? Am I missing something?
UPDATE: Erick at RedState answers.
Nasty head cold knocked me for a loop yesterday and I'm still playing catch-up today. Hopefullly I'll be back blogging by tonight or tomorrow.
August 25, 2006
BASEBALL: Going Down, Down, Down, Down Part V
Resuming, with Part 5, my look at young or still-establishing-themselves players whose stock has fallen dramatically in 2006 and/or 2005 - the NL Central. (Parts I, II, III & IV here, here, here, and here, respectively)
The Cards actually don't have anyone who fits the bill, as this is a veteran team and the few young players are rookies. Randy Flores, maybe, as he had finally put together a solid big league season last year, but Flores is a 31-year-old middle reliever who never had much of a ceiling anyway.
Jason Lane: Lane, a free-swinging power threat, got a full shot in 2005 at age 28 and responded by doing what free-swinging power hitters do: 34 doubles, 26 HR, a .499 slugging % but only a .316 OBP. He chipped in 3 HR and 8 RBI in the Astros' postseason run, including a 4th inning homer in the dramatic 14-inning Game 3 of the World Series. Lane held the right field job entering this season, but ended up getting demoted back to the minors after batting just .207 in 246 at bats, leaving him fighting to reclaim his status as a regular.
Brandon Backe: Backe was nothing spectacular in 2005, but he was a young pitcher making progress, and he pitched some tremendous games in the postseason. This year he managed just 8 starts before hurting his elbow and now may face Tommy John surgery.
Ezequiel Astacio: The wages of postseason failure - Astacio had a solid (for a rookie) 66/25 K/BB ratio in 81 IP last year, giving hope that he could someday be an effective starter, once he cut down on that atrocious HR rate (2.6 per 9 IP). But Astacio, the last man in the Houston bullpen, melted down in the 14th inning of Game 3 of the Series after surrendering Geoff Blum's home run, and he wasn't the same pitcher this year in brief action, walking 6 in 5.2 IP. He's been better at AAA Round Rock, but still with a 4.76 ERA. Astacio is now a ways from contributing again at the major league level.
(By the way, although he's not a youth, this may be a useful point at which to look at Brad Lidge's unraveling in 2006 in light of my post last year on closers who blow the big one in the postseason).
JJ Hardy: Hardy struggled as much as an everyday player could possibly struggle in the first half in 2005, batting .187/.267/.293, but rebounded 180 degrees to bat .308/.503/.363 in the second half. This year, at age 23, Hardy was on a lot of lists of potential breakouts, as a guy expected to team with Prince Fielder and Rickie Weeks to anchor the Milwaukee infield for years to come, and he hit OK in April (.281/.449/.323). Instead, Hardy struggled badly in May, dropping his season numbers to .242/.398/.295 before going down for the season with ankle surgery.
(Weeks may also belong here - he performed quite well with the bat this season before his own season-ending injury, but his own glovework has been so bad, combined with a career year by Bill Hall, that the Brewers may end up sending Weeks to the outfield, making him much less valuable).
Ronny Cedeno: Cedeno's just 23 and batted .300 in a very brief trial last year (80 at bats), and had projected as a guy who might hit enough (Baseball Prospectus projection: .273/.387/.320) to hold a SS job and eventually develop into an offensive contributor. Cedeno's 2006 has been a total wipeout: .244/.329/.269, a deplorable 81/13 K/BB ratio, caught stealing in half his attempts, and a lower batting average each month (.308, .276, .234, .200, .185). You have to wonder about keeping a guy like that in the lineup.
Jerome Williams: In chaos there is opportunity, and precisely that opportunity presented itself to the onetime Giants prospect, still just 24, as the Cubs' rotation unraveled and Williams, who posted a 3.91 ERA last year in 106 innings for the Cubs, had the chance to prove himself. Granted, his peripheral numbers weren't all that impressive (59/45 K/BB ratio), but the chance was there. Instead, a 7.30 ERA and 11 walks in 12.1 IP got him an early ticket to Iowa, where he has been drilled to the tune of 131 hits in 98.1 IP while striking out just 45 minor leaguers.
Brandon Claussen: 2005: 121/57 K/BB ratio in 166.2 IP, a 4.21 ERA in 29 starts, and a lot of hope for the future. 2006: A 6.19 ERA and season-ending shoulder surgery.
Paul Maholm: Maholm is the same story as Duke - great ERA last year, mediocre one this year, and a low K rate that spells a low ceiling. Plus Maholm walks way too many batters.
Chris Duffy: Duffy's .341 average last year in 126 at bats now looks like a Tike Redman-ish fluke, as he has batted .217/.283/.273 this season in 185 at bats.
Ryan Doumit: Hamstring injuries have limited Doumit to just 57 at bats this year after a respectable rookie campaign; Ronny Paulino took his job while he was away and has hit .312, and Doumit may now face a battle to get playing time.
Nate McLouth: Yet another Buc with the same old story - decent but unspectacular as a 2005 rookie, helpless and hurt in 2006.
POLITICS: Another GOP '08 Poll
For your Friday entertainment:
August 24, 2006
BLOG: Moo, Y'all
Do cows have accents? Or do some farmers just spend way too much time with their cows?
BASEBALL: Royal Numbers
It's a good thing for Royals 3B Mark Teahen that he is having such a monster year since returning from the minors in early June, batting .333/.599/.411 and averaging 118 Runs, 112 RBI, 40 2B, 11 3B, 29 HR, 72 BB and 15 Sb per 162 games after struggling mightily since the beginning of 2005, because Royals 3B prospect Alex Gordon is having a tremendous year at AA Witchita in the Texas League, batting .318/.578/.422 and averaging 129 Runs, 108 RBI, 44 2B, 33 HR, 85 BB and 26 SB per 162 games. Which, even if you assume that Gordon still needs a bit of seasoning, puts the Royals in the unusual (for them) position of an embarrassment of riches at one position, and needing to decide which of them moves, and to where, or whether to trade one of them.
August 23, 2006
WAR: Tyranny International
Of all the world's political prisoners, Amnesty International devotes a lengthy press release to complaining about the treatment of Saddam Hussein. Let's look at a sampling of Amnesty's grievances on behalf of poor, oppressed Saddam:
The first trial, which ran from 19 October 2005 to 27 July 2006, considered accusations that Saddam Hussain and seven co-defendants were responsible for the deaths of 148 people from the largely-Shi'a village of al-Dujail in 1982. . . .In the event that Saddam Hussain or any of the other accused are convicted, they are likely to be sentenced to death. Amnesty International opposes the death penalty in all cases.
Yes, Germany and Italy would have been much better off in 1947 if Hitler and Mussolini were still issuing press releases to their followers from prison.
After more than 30 years during which the right to a fair trial was routinely abused under Saddam Hussain's government, the first trial offered a crucial opportunity for those in power in Iraq to turn a page on the past and to entrench new standards for the future, which conform to the requirements which the government of Iraq is bound by international human rights treaties and standards to uphold.
Whose government? Shouldn't that be "allegedly routinely abused"? Or has Amnesty just done what the Iraqis and any other sane person would do, and recognize that this is not a complex whodunit but a public reckoning for crimes against humanity as to which the head of a police state's guilt can not possibly be disputed?
The security and safety of all parties involved in the Tribunal were frequently at risk and the problem remains unresolved. Defence lawyer Sa'dun al-Janabi was killed in October 2005, during the first week of the trial, while two other defence lawyers. 'Adil al-Zubeidi and Khamis al-Ubeidi were killed in November 2005 and June 2006 respectively.
Killed by whom? Likely, by supporters of Saddam. Anyway, justice does not grind to a halt when a nation is beset by violence. An organization purportedly dedicated to improvements in human rights ought to be the first to stand for that principle, especially since the alternative is the Mussolini/Ceaucescu treatment.
A fair trial requires independent and impartial judges. . . . Judge Sayeed al-Hamashi . . . was . . . ruled ineligible through the intervention of the De-Ba'athification Commission established to exclude former members of the Ba'ath Party from public office. The impartiality of Judge Ra'uf Rashid 'Abdul Rahman, who presided over the subsequent stages of the trial, was questioned by the defendants on the grounds that he had opposed Saddam Hussein's government and comes from Halabja, where thousands of Iraqi Kurds were killed in a gas attack by Saddam Hussein's forces in 1988.
Well, given that Saddam had control over the nation for decades, he can hardly complain that people he terrorized now sit in judgment of him. And how is it a violation of a fair trial to remove a former Ba'athist from the bench in a trial of his former boss?
Although Saddam Hussein was arrested in December 2003, he did not have access to his lawyers until 16 December 2004.
Cry me a river.
The tribunal also appears to have failed adequately to investigate allegations of torture and ill-treatment by the defendants. For example, on 13 March 2006 Taha Yassin Ramadhan, former Iraqi vice-president, alleged that he had been beaten and subjected to sleep deprivation, extreme temperatures and forced positions during interrogation following his arrest in August 2003, but the tribunal is not known to have ordered an investigation. If there was one, its results have not been made public.
What, nobody cut out his tongue? First of all, bogus claims of maltreatment are classic stall/diversion tactic. Second, unless the prosecution was introducing evidence beaten out of Ramandhan, this has nothing to do with the fairness of the trial. And third, of all people these guys have no standing to complain.
The defence team repeatedly claimed that the Prosecution introduced to the court evidence that had not been provided to the defendants beforehand, thereby preventing them from preparing a proper defence.
Let me repeat: They ran the country. For decades. They knew everything that happened.
the independence and impartiality of the court, including by making provision for the participation of international judges and an enhanced role for international advisers and observers from diverse backgrounds who have demonstrated experience and skills in trials of crimes under international law.
No. We saw what happened with Milosevic; the goal is not for Saddam to die of old age at the defense table, in a nice suit surrounded by mouthpieces. He deserves the gallows, and the gallows he will get. The Iraqi people suffered under Saddam, and they deserve to try him.
But wait - there's more! Because while Amnesty is wasting its tears on poor Saddam, it's also busy at work accusing Israel of war crimes:
Amnesty International on Wednesday accused Israel of war crimes, saying it broke international law by deliberately destroying Lebanon's civilian infrastructure during its recent war with Hezbollah guerrillas.
The Ap report notes dryly, "Amnesty International said it would address Hezbollah's attacks on Israel separately." I won't hold my breath. Of course, it should go without saying that you could not begin to address Israel's tactics without addressing where Hezbollah located its troops and weapons, or - specifically - the fact that incurring civilian casualties was virtually the entirety of Hezbollah's strategy.
POLITICS: Hillary on Law School
Hillary Clinton's message to aspiring lawyers. As usual, it's an unreadable soup of shopworn cliches, moral self-gratification, and hectoring. I pity the poor RNC opposition researchers who are no doubt, as we speak, poring yet again through her collected writings in anticipation of 2008.
LAW: A Conflict of Interest?
Judicial Watch argues that Judge Anna Diggs Taylor had a conflict of interest in the NSA surveillance case because (1) one of the plaintiffs was the ACLU, (2) Judge Taylor is a Trustee of an organization that donated tens of thousands of dollars to the ACLU, and (3) the organization states that its donations are approved by its Trustees, thus indicating that Judge Taylor was personally involved in directing resources to the very advocacy group that came before her.
Clearly, this was an issue that Judge Taylor should have disclosed to the parties (as even a NY Times article quoting liberal legal ethics scholar Stephen Gillers concedes), but Orin Kerr and Patterico are less than impressed by the charge.
This is, I should stress, not a financial conflict - Judge Taylor's finances are unaffected by this case, as are those of the organization for which she is a trustee. The question is one of impartiality - can the judge be impartial, or would a litigant expect a fair hearing, where the case is advocacy litigation brpught by an advocacy group financially supported by the judge? Now, I tend towards the view that legal ethics standards shouldn't be unrealistic; judges live in the real world, they have opinions, and they do not come to the bench as a blank slate. The real question is, if you knew nothing else about this judge's background and hadn't had any proceedings yet before her, would you want a different judge if you discovered this connection to one of the parties? I think, were I the government, I might have. But much would depend on the facts - if the donation is one of many and not a large proportion of the organization's budget, it doesn't necessarily say a lot about the judge's views, whereas if she is helping steer a major proportion of the group's funds to promote the ACLU's mission, that's rather a different story.
(This is one way in which the whole absurd Vanguard-Alito flap was obviously ridiculous - given the minuscule and attenuated nature of then-Judge Alito's interest in Vanguard, no reasonable person would have cared unless they already had some other reason to want him off the case. The kerfuffle over Justice Scalia going hunting with Dick Cheney is perhaps a bit closer, but the recusal standards for Supreme Court Justices have to recognize that most of them have ties to major players in DC politics).
Anyway, this is hardly a serious sin, but it's not a frivolous issue, either. (More serious is Judge Taylor's record of interference in the Michigan affirmative action cases when her husband was a regent of the University and thus effectively a party to the case).
UPDATE: The New York Times (!) agrees.
LAW/WAR: Leaks and the Espionage Act
A new decision on the Espionage Act clarifies the government's ability to prosecute leaks relating to national security, but also places a new limitation on such prosecutions where they are based upon oral disclosures rather than leaked documents - a distinction that does not make a ton of policy sense - and also limits prosecutions for leaks that merely benefit non-hostile governments. Bear with me as I explain why.
I have written extensively before on the Espionage Act (18 U.S.C. 793) here, here, here and here. Basically - and you can get the details in my earlier posts - the statute prohibits anyone (whether or not they have security clearance or other authorization to learn classified information) from (1) willfully disclosing (2) information relating to the national defense (3) to those not authorized to receive it (4) while having reason to believe that the disclosure of such information could be used to injure the United States or aid some foreign power. As I have argued before, the willfulness requirement means that the government, in an Espionage Act prosecution, must prove that the "leaker" knew that he or she was acting unlawfully; the statute is not a strict-liability rule for inadvertent leaks or bad judgment.
The Espionage Act has been much discussed of late for two reasons. Some on the Left have argued that it should have been used against Karl Rove and others if they were involved in disclosing Valerie Plame's status as a CIA employee; I have argued, and the absence of a indictment on these grounds has borne out my observations, that it was unlikely that there was sufficient evidence to show that Plame's status was information relating to the national defense that could be expected to harm national security and - most particularly - sufficient evidence to show that anyone involved in disclosing her name thought they were acting unlawfully.
On the Right, the Espionage Act has been argued as a basis for prosecuting those government officials who have leaked the details of secret programs central to the War on Terror (the NSA surveillance program and associated data-mining operations, the existence of supposed "secret CIA prisons", the program to track international bank transfers) and, possibly, as a basis for prosecuting the New York Times and its reporters for publishing such leaked secrets, knowing they were classified information critical to the war effort and - in some cases - knowing that the Executive Branch was strenuously objecting to publication.
In such circumstances, then, the scope and applicability of the Espionage Act is of great importance. Which is why a recent opinion from the Eastern District of Virginia in United States v. Rosen is interesting. The defendants in Rosen are former AIPAC officials (i.e., lobbyists for pro-Israel positions) who allegedly obtained leaked intelligence of varying types, including draft U.S. policy documents, intelligence about Al Qaeda, and intelligence about potential attacks on U.S. troops in Iraq, from Defense Department official Larry Franklin and passed such information on to foreign government officials (apparently from Israel) and members of the media, among others. Franklin has pleaded guilty, but the two remaining defendants, Steven Rosen and Keith Weissman, challenged the indictment on several grounds, all of which were rejected.
Read More »
The Statutory and Vagueness Challenges
First, they argued that the statute's definition of "information" only protects documents and not orally transmitted information; the court rejected this one easily. Slip op. at 13-17. Second, they contended that the Espionage Act is unconstitutionally vague as applied to them and did not put them on notice of the risk of prosecution because orally transmitted information does not contain the clear stamps of "TOP SECRET" and the like that applies to classified documents. The court - echoing, I should note, my prior analyses of the Espionage Act's state of mind requirements - found that any vagueness was cured by the requirement that the government prove that the information was closely held by the Executive Branch and by statute's strict state of mind requirements. Slip op. at 20-36. As the court observed:
[T]he government in this case must prove beyond a reasonable doubt that the defendants knew the information was NDI [national defense information], i.e., that the information was closely held by the United States and that disclosure of this information might potentially harm the United States, and that the persons to whom the defendants communicated the information were not entitled under the classification regulations to receive the information. Further the government must prove beyond a reasonable doubt that the defendants communicated the information they had received from their government sources with "a bad purpose either to disobey or to disregard the law."
Slip op. at 32. (From the perspective of a criminal defense attorney, of course, this ruling makes the whole motion process worthwhile even though the defendants' motion was denied, since they have now locked the court into a pro-defendant view of the jury charges). I should note that the government's allegations, if proven, make it highly likely that these defendants knew that they were acting unlawfully - the court's discussion of the facts is replete with examples of the defendants saying things like "I'm not supposed to know this" or describing the information as "codeword protected intelligence." Slip op. at 3-7.
The court's discussion of the state of mind requirements, however, left open the distinct possibility of a prosecution of misguided idealists in the press or (in this case) of lobbyists/think tanks/advocacy groups, whatever their subjective motives, so long as they knew they were unlawfully leaking classified information and had reason to know that it was important to the national defense - but imposes a higher state of mind (scienter) requirement on oral disclosures:
As has been noted, the statute's "willfulness" requirement obligates the government to prove that the defendants knew that disclosing the NDI could threaten the nation's security, and that it was illegal, but it leaves open the possibility that defendants could be convicted for these acts despite some salutary motive. For example, if a person transmitted classified documents relating to the national defense to a member of the media despite knowing that such an act was a violation of the statute, he could be convicted for "willfully" committing the prohibited acts even if he viewed the disclosure as an act of patriotism. By contrast, the "reason to believe" scienter requirement that accompanies disclosures of information, requires the government to demonstrate the likelihood of defendant's bad faith purpose to either harm the United States or to aid a foreign government.
Slip op. at 33-34 (emphasis in original).
Next - in a passage that must have alarmed the New York Times - the court rejected the claim that the statute failed to give fair notice that it could apply to persons outside the government. As the court noted, this argument is belied by the statute's plain language, as an entire subsection (793(e)) deals with disclosures by those not authorized to have the information in the first place. Slip op. at 37 & n. 38. The court was unmoved by the idea that "leaks" by outsiders can not be prosecuted:
[L]abeling an event a "leak" does not remove the event from the statute's scope. At best, the term "leak" is a euphemism used to imply or suggest to a careless reader that the transmission of the information was somehow authorized. Whether the "leaks" or transmissions of information in this case were authorized is likely to be a sharply controverted issue in this case and if the government does not carry its burden of showing that the transfers of information were unauthorized, the prosecution fails. But the analysis here proceeds, as it must, on the superseding indictment's allegations, including the allegation that all transmissions of NDI were unauthorized.
Id. at 38. (With my background as a securities lawyer, this is a familiar theme. The government has prosecuted outsiders, including lawyers and journalists, for unauthorized use of corporate inside information - so long as it shows certain connections back to an unauthorized disclosure from the company. Indeed, much of the court's analysis of what constitutes protected information and how you show that its disclosure was unauthorized has paralells in the federal securities laws).
The First Amendment
The defendants' next avenue of attack - one that surely would be invoked by reporters - was to claim a First Amendment right to make the disclosures in question. The court recognized that the Espionage Act does have free speech implications, as information about U.S. foreign policy implicates "the core of the First Amendment's guarantees." Slip op. at 40.
In the instant case, defendants are accused of the unauthorized possession of information relating to the national defense, which they then orally communicated to others, all within the context of seeking to influence United States foreign policy relating to the Middle East by participating in the public debate on this policy.
Id. at 42. Thus, "the mere invocation of 'national security' or 'government secrecy' does not foreclose a First Amendment inquiry." Id. at 41. Nor are the First Amendment interests absolute; instead, the court recognized its obligation to determine whether Congress had struck a permissible balance between the protection of national security and the right to free speech, in light of the type of information at issue:
But importantly, the defendants here are not accused merely of disclosing government secrets, they are accused of disclosing NDI, i.e., government secrets the disclosure of which could threaten the security of the nation. And, however vital an informed public may be, it is well established that disclosure of certain information may be restricted in service of the nation's security, for "[i]t is 'obvious and unarguable' that no governmental interest is more compelling than the security of the Nation." Haig v. Agee, 453 U.S. 280, 307 (1981) (quoting Aptheker v. Secretary of State, 378 U.S. 500, 509 (1964)). And, as the Supreme Court has repeatedly noted, one aspect of the government's paramount interest in protecting the nation's security is the government's "compelling interest in protecting both the secrecy of information important to our national security and the appearance of confidentiality so essential to the effective operation of our foreign intelligence service." Snepp, 444 U.S. at 509 n.3. Thus, the right to free speech and the value of an informed citizenry is not absolute and must yield to the government's legitimate efforts to ensure "the environment of physical security which a functioning democracy requires." Morison, 844 F.2d at 1082. This point is best expressed in the Supreme Court's pithy phrase that "while the Constitution protects against the invasion of individual rights, it is not a suicide pact." Aptheker, 378 U.S. at 509 (quoting Kennedy v. Mendoza-Martinez, 372 U.S. 144, 160 (1963)).
Slip op. at 46-47 (footnotes omitted).
In determining that the Espionage Act was narrowly tailored to serve this compelling interest, the court rejected the notion that only the original leakers could be prosecuted:
As defendants correctly argue, the analysis of the First Amendment interests implicated by secs. 793(d) and (e) depends on the relationship to the government of the person whose First Amendment rights are implicated. In this respect, there are two classes of people roughly correlating to those subject to prosecution under sec. 793(d) and those subject to prosecution under sec. 793(e). The first class consists of persons who have access to the information by virtue of their official position. These people are most often government employees or military personnel with access to classified information, or defense contractors with access to classified information, and are often bound by contractual agreements whereby they agree not to disclose classified information. As such, they are in a position of trust with the government. The second class of persons are those who have no employment or contractual relationship with the government, and therefore have not exploited a relationship of trust to obtain the national defense information they are charged with disclosing, but instead generally obtained the information from one who has violated such a trust.
[D]efendants here contend that the First Amendment bars Congress from punishing those persons, like defendants, without a special relationship to the government for the disclosure of NDI. In essence, their position is that once a government secret has been leaked to the general public and the first line of defense thereby breached, the government has no recourse but to sit back and watch as the threat to the national security caused by the first disclosure multiplies with every subsequent disclosure. This position cannot be sustained. Although the question whether the government's interest in preserving its national defense secrets is sufficient to trump the First Amendment rights of those not in a position of trust with the government is a more difficult question, and although the authority addressing this issue is sparse, both common sense and the relevant precedent point persuasively to the conclusion that the government can punish those outside of the government for the unauthorized receipt and deliberate retransmission of information relating to the national defense.
Slip op. at 48-49, 52-53 (emphasis added). Among other things, the court drew on the many opinions in the Pentagon Papers case, in which the Supreme Court concluded that then government may not prevent by injunction the publication of secrets, but several Justices suggested that the publication could nonetheless be grounds for prosecution after the fact.
The court did, however, conclude that despite the terms of the statute allowing prosecutions for disclosure that harms the U.S. or advantages a foreign nation, that advantage must accrue to our enemies - i.e., there must be actual risk of harm to the U.S. Id. at 55-63. This restriction may be of particular significance in the prosecution of the two AIPAC lobbyists.
Under the Rosen decision, the government's burden to prosecute those outside of government for leaking classified national security secrets is high, and onerous, and should deter the government from seeking such prosecutions lightly. But the court - properly, in my view - concluded that there is no absolute right of citizens, once in receipt of such secrets, to pass them along or publish them. If that makes newspapers and lobbyists alike more cautious in disclosing secrets that go to the core of our ability to protect the nation from its enemies - well, that's a good thing.
« Close It
August 22, 2006
BASEBALL: NLCS Preview?
Grand slam and 7 RBI, Albert Pujols.
Grand slam, Carlos Delgado.
7-5 and the fifth inning not over yet.
Mets' and Cardinals' pitching: priceless.
BASEBALL: Green to the Mets?
I'm sort of OK but not thrilled with the Mets getting Shawn Green, which is widely reported but not yet confirmed. Obviously, Green is expensive (he's owed $9.5 million next year plus a $2 million buyout for 2008, and for that kind of money you might as well just suck it up and get someone like Abreu).
Money aside, he's really no better than Xavier Nady at best at this stage, although he's a little more patient at the plate. And who knows? By October, Lastings Milledge could be on a tear - he's that kind of talent. But there's also a substantial risk that Milledge could be in a .210-with-no-walks type of funk, and when combined with Floyd's health you can't risk going into October with nothing but Milledge, Chavez, Tucker and Ledee as your corner OF options. Hopefully, the D-backs are eating a good chunk of Green's 2007 salary, so this deal doesn't constrict the Mets' financial flexibility. If the money's not a problem, the deal is OK.
BASEBALL: Oakland Twins
How's this for identical pitching lines (except for the walks)?
A is Barry Zito, and B is his teammate Dan Haren. Zito is defying the usual rule that K/BB/HR rates are the biggest determinant of ERA, but then there's some reason to believe that his big sweeping curveball may make him more effective on balls in play. The bigger lesson here is that Haren is really on the verge of something big if he can ever cut his HR rate a little.
LAW: Even The Taxman Has Limits
In a decision handed down today by the DC Circuit and authored by onetime Reagan Supreme Court nominee Douglas Ginsburg (and joined, FWIW, by Judges Janice Rogers Brown and Judith Rogers), the court in Murphy v. IRS concluded that taxation of an award of compensatory damages for emotional distress and loss of reputation is unconstitutional because such restitution, unlike compensation for lost wages (which replaces taxable income), is not "income" within the meaning of the Sixteenth Amendment and thus is beyond the federal government's enumerated power to tax. (H/T Bashman).
The Sixteenth Amendment, adopted in 1913 after 19th century Supreme Court decisions striking down the income tax, provides:
The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.
The Murphy decision is somewhat limited in scope, given the broad definitions of "income" previously adopted by the Supreme Court in defining the scope of the Sixteenth Amendment:
When it first construed [the term "incomes" in the Sixteenth Amendment] in Eisner v. Macomber, 252 U.S. 189, 207 (1920), the Supreme Court held the taxing power extended to any "gain derived from capital, from labor, or from both combined." Later, after explaining that Eisner was not "meant to provide a touchstone to all future gross income questions," the Court added that under the [Tax Code] -- and, by implication, under the Sixteenth Amendment -- the Congress may "tax all gains" or "accessions to wealth." Commissioner v. Glenshaw Glass Co., 348 U.S. 426, 430-31 (1955).
Slip op. at 10. As the court notes, the exception to that rule is where gains constitute "a restoration of capital." Id. This decision is, to some extent, merely an application of the exception, although the court does spend a good deal of effort examining the 1913-era understanding of "income" and compensatory damages by examining contemporaneous legislation and court decisions. Slip op. at 18-23. Nonetheless, it is heartening to see a court take seriously the principle of enumerated powers with regard to federal legislation:
At the outset, we reject the Government's breathtakingly expansive claim of congressional power under the Sixteenth Amendment -- upon which it founds the more far-reaching arguments it advances here. The Sixteenth Amendment simply does not authorize the Congress to tax as "incomes" every sort of revenue a taxpayer may receive. As the Supreme Court noted long ago, the "Congress cannot make a thing income which is not so in fact." Burk-Waggoner Oil Ass'n v. Hopkins, 269 U.S. 110, 114 (1925). Indeed, because the "the power to tax involves the power to destroy," McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 431 (1819), it would not be consistent with our constitutional government, and the sanctity of property in our system, merely to rely upon the legislature to decide what constitutes income.
UPDATE: Marty Lederman asks some interesting questions about whether there was pre-existing authority for this particular tax outside of the 16th Amendment. Not being versed in the pre-1913 caselaw, I couldn't say; it would appear that neither the government nor the court considered that possibility.
BASEBALL: Why Bobby Abreu Never Plays For Winners
Because he doesn't do things like this.
BASEBALL: Who's Your Papi Now?
Well, yesterday afternoon had to be the coup de grace for the Red Sox. The Sox remain pretty close to the top of the AL in runs scored, so despite the failures of Coco Crisp and the injury to Varitek, the offense really can't take much of the blame here.
Boston started the season with a projected 5-man rotation of Schilling, Beckett, Clement, Wakefield and Wells. Schilling hasn't quite been the Schilling of old, but given his age and injuries he's done about as well as could be expected (14-5, 3.84 ERA) and Wakefield was pitching in typical Wake style until he got hurt. And rookie Jon Lester (6-2, 4.72) has pitched some great games, albeit without the consistency of a more experienced pitcher.
The problem has been the rest of the rotation. In 45 starts, Beckett, Clement and Wells have gone a combined 20-16 with a 5.67 ERA, averaging just 5.8 innings per start, 1.67 HR/9 and 1.47 baserunners per inning. Now, the Sox knew going in that Wells was a gamble, but they had reasonably depended on Clement to be halfway decent and Beckett to step up and shine.
The other five starters -
Like the Yankees' acquisition of Abreu and Lidle, there's nothing more complicated to Boston's collapse than that - the starting pitching just isn't there. The bullpen has been thin all year (Rudy Seanez and Julian Tavarez being unreliable), but with better starters they wouldn't have had to lean so hard on a couple of guys.
August 21, 2006
LAW: Worst WSJ Dot-Drawing Ever
BASEBALL: The Difference Maker
Yankees through July 31: 61-41 (.598), scoring 5.59 Runs/Game, allowing 4.80 Runs/Game.
Yankees August 1-20: 13-7 (.650), 6.15 Runs/Game, allowing 4.50 Runs/Game.
The difference: Bobby Abreu, batting .397/.526/.500 and scoring 113 runs per 162 games; Cory Lidle, 3.86 ERA in 3 starts. It really is as simple as that. Abreu, now second in the majors in OBP, batted .529/.706/.652 in this weekend's demolition of the Red Sox. Apparently Abreu didn't get the memo about how he wasn't supposed to be a big-game player.
I don't really know what else to say at this point about the dire situation the Mets face in October if they can't get Pedro and Glavine healthy. Matt Cerrone has the grim outlook. But let's think about it this way: if the season ended today, the Mets would face the Reds in the NLDS, with the Cardinals facing the Dodgers. If Pedro but not Glavine is available, the matchups would be something like this:
Game 1: Pedro vs. Bronson Arroyo. Significant advantage: Mets.
Game 2: El Duque vs. Aaron Harang. Harang's been better two years running, but I'd feel OK about this matchup given the Mets' offense. Glavine vs. Harang would be much better.
Game 3: Trachsel vs. Eric Milton. Tie on your hittin' shoes, boys, this is gonna be a long night. Advantage Mets solely on the basis of their offense.
Game 4: Maine vs. ... Elizardo Ramirez? Kyle Lohse? Anyway, someone I would trust significantly less than John Maine.
Game 5: Pedro/Arroyo again.
How about the other two NL teams? The Cards have Carpenter, whose odds of staying healthy through October are similar to Pedro's. Beyond him, though, Mulder has been injured and ineffective, Jason Marquis has a 5.70 ERA and Jeff Suppan a 5.03 and Jeff Weaver 6.07 - none of those guys looks much better than Trachsel. Young Anthony Reyes, with less big-league experience than Maine, may be their #2, and their offense has all sorts of cavities.
The Dodgers are another story, with Brad Penny apparently healthy for the moment, Derek Lowe in a second-half groove, and Greg Maddux having righted the ship since arriving in LA, plus a good if likely unsustainable ERA from wild rookie Chad Billingsley (much like Maine and Reyes, Billingsley has all of 12 big-league starts to his name). Even Aaron Sele has, inexplicably, not been awful. I don't like the Dodgers' rotation all that much, and a healthy Pedro-Glavine would match the Mets up with them fairly well, but right now they are the only team on the NL playoff slate that really puts the Mets in a hole even if they go with Pedro + grab bag.
Of course, the World Series is another matter.
UPDATE: Of course, Oliver Perez flirting with a no-hitter in AAA is good news, and makes some of his peripheral stats at Norfolk halfway respectable, but I'm not ready yet to trust Perez with a significant assignment. On the other hand, the performance of Dave Williams underscores the wisdom of his acquisition - not that he will ever be better than mediocre, but he's the kind of guy it helps to have hanging around AAA when you are desperately short of starters and want to avoid Lima Time.
BASEBALL: NO Network
From my 9-year-old son: "If the Yankees games are on the YES Network, that must mean they show the Royals on the NO Network."
BASEBALL: Omar's Experiments
Omar Minaya tries yet another reclamation project with the acquisition of Guillermo Mota. Since Mota is a free agent after the season, Minaya must be hoping to get him straightened out soon.
Presumably, this would have been impossible if Piazza was still the catcher.
WAR: But Don't Question His Patriotism
Michael Moore film used by terrorists as propaganda. But of course; what else was it for?
BUSINESS: Bad Ideas, And Really Bad Ideas
POLITICS: Romney Profile
Interesting Mitt Romney profile from the Boston Globe, focusing on the ways in which Romney's approach bears the scars of the gaffe that destroyed his father's presidential aspirations. Of course, there's a real contrast in the 2008 GOP race between Romney (who is rarely unscripted) and George Allen (who shouldn't go unscripted) on the one hand, and Rudy, McCain and Newt, all of whom can be at their best when riffing off the top of their heads. It's gonna be an interesting race, regardless of which mix of potential candidates actually end up running viable campaigns.
Reading this part, one is amazed that Romney isn't more strongly pro-life:
Mitt was a miracle baby. George and Lenore Romney had two girls and a boy, and the doctors had told Lenore she could not carry another. The couple put in papers to adopt a baby from Switzerland. But while the family was vacationing in the Dakotas, Lenore learned she was pregnant, recalls Jane Romney, who was about 9 years old at the time. "Mother was hospitalized immediately. I remember my father's face - the worry and concern," Jane says. "I hadn't seen that before." Imagine, then, the rejoicing that took place when Mitt was born and Mother was healthy.
I also didn't know Romney had a law degree.
WAR: Your Grandmother Wears Combat Boots
A 41-year-old grandmother enlists. Which is a nice human-interest story at first glance, and admirable in its own way, but also disturbing on any number of levels.
August 17, 2006
BASEBALL: The Mustache Did It!
Maxim's look at 10 great baseball mustaches, at least in the modern era (the 1880s was an earlier golden age for facial hair). A few quick thoughts:
*They probably should have included at least one black and/or Latino player. What, Jose Valentin wasn't available? Or how about this valiant effort to link mustache and sideburns?
*Actually, Keith Hernandez did shave the mustache in 1987, leading to him having the "phantom mustache" effect, where it's gone but you keep thinking it's there. Keith didn't stay clean-shaven long enough for this effect to wear off.
WAR/LAW: The NSA Decision: Judging Without Facts or Law
Today, at the instigation of the ACLU, CAIR, Greenpeace, the National Association of Criminal Defense Lawyers and a number of individual plaintiffs (including, most dishearteningly, Christopher Hitchens), Judge Anna Diggs Taylor of the US District Court for the Eastern District of Michigan - a Jimmy Carter appointee - issued a permanent injunction halting the use of the NSA's Al Qaeda surveillance program that was disclosed to the public by the New York Times in December. Judge Taylor's opinion reads like a parody of bad judicial reasoning. The self-appointed legal solons of the Left will have to work long and hard to compose the straight face to dress up this opinion as anything but a travesty of the judicial process. In the meantime, Judge Taylor's decision unambiguously does two things: it reinforces the importance of appointing good conservative judges, and it demonstrates the damage already done to our security by the Times's unauthorized disclosure of the NSA program.
Read More »
To refresh your recollection, the program the court refers to as "TSP" ("Terrorist Surveillance Program") intercepts and monitors - without a warrant or other judicial review - telephone "communications where one party to the communication is outside the United States, and the government has a reasonable basis to conclude that one party to the communication is a member of al Qaeda, affiliated with al Qaeda, or a member of an organization affiliated with al Qaeda, or working in support of al Qaeda." Slip op. at 13. Note that even Judge Taylor has to admit to two things that critics of the program have usually glossed over: it doesn't apply to domestic (i.e., solely within the U.S.) communications, and it is narrowly tailored to capture communications of Al Qaeda and those affiliated with or supporting Al Qaeda - i.e., exactly the people that even the most die-hard opponents of the Bush Administration admit we are at war with. Or so you would think: Judge Taylor gives away her bias on p. 9 when she refers to "the War on Terror of this administration".
I explained back in December why I believe that the NSA program is easily within the president's powers under the Constitution, is not barred by any express Constitutional limits, and is at least arguably justified by the September 2001 Authorization to Use Military Force against Al Qaeda, on the theory that the AUMF implicitly repealed the statutory limitations of the Foreign Intelligence Surveillance Act ("FISA") within the limited context of the war against Al Qaeda. In a nutshell -- go read the whole thing for more elaboration -- the President has the traditional power to conduct surveillance of the enemy in wartime, and that power is not diminished when the enemy crosses our border or communicates across our border. If -- and in this case it is -- the surveillance is reasonable, and thus in step with the Fourth Amendment, and because it is the proper exercise of a war power implicit in the AUMF, the strictures of FISA do not apply. Others have argued that the surveillance is actually consistent with FISA; being no expert on FISA and lacking all the facts, I have not addressed that question and won't do so here. The Bush Administration has not sought to publicly advance that argument, though it is not clear whether this is at least partly because the Administration does not want to disclose any more of the details of this program than have already been splashed across the front page of the NY Times.
The first issue Judge Taylor addresses is the state secrets privilege, recently reaffirmed by a unanimous Supreme Court back in 2005 in Tenet v. Doe, 544 U.S. 1 (2005). The privilege -- requiring the dismissal of lawsuits where either the proof of the plaintiff's claim or the defendant's defense would require disclosure of state secrets -- was originally developed to limit the bringing of breach of contract claims by unpaid spies. The Court in Tenet rejected such a narrow view of the rule:
+ + +
Judge Taylor reaches exactly the conclusion the Supreme Court unanimously rejected a year ago:
Slip op. at 11. As Judge Taylor notes - and explaining why this case was brought in Michigan rather than in the DC Circuit, where it belongs - the DC Circuit in 1978 applied the state secrets doctrine to dismiss claims challenging warrantless surveillance by the NSA and other government agencies, because litigation would disclose the NSA's methods and the identities of those surveilled, among other things. Slip op. at 5-7. Indeed, Judge Taylor's discussion of the caselaw makes clear that the law in the Sixth Circuit, as well as the DC Circuit, overwhelmingly supported dismissal of the present lawsuit.
However, Judge Taylor is undeterred by such precedent. First, she notes that certain basic outlines of the program have been made public and confirmed by the Administration (gliding over who forced this issue into the public eye), and notes that the plaintiffs are asking for a permanent injunction solely on the basis of the facts publicly admitted -- utterly ignoring the possibility that more detailed discovery (if such a thing were not unduly intrusive of national security, which it obviously is) would bear on such things as the reasonableness of the government's need to conduct such surveillance. As we shall see below, once Judge Taylor gets past the state secrets issue, she repeatedly rejects the government's defenses precisely on the grounds that they are not supported by sufficient evidence. She simply assumes that, just because the government is unwilling to disclose additional facts, they must not exist.
Part of her justification for this kangaroo-court approach to evidence is the following:
Slip op. at 14. Of course, the Bush Administration, having reached this conclusion based on all the facts, including those that are classified, will state for the public such justifications as it can advance based on the information already disclosed by the Times, without compromising more secrets. The idea that the Administration's public defense of its position under intense attack by the Times and others on the Left constitutes some sort of waiver of its position that the program's secret details should not be further protected -- or are not relevant to the program's legality -- is absurd.
Of course, to challenge a government program, you need evidence that you have actually been affected by it; in other words, you need standing. I don't have time or space here to catalogue all of Judge Taylor's misreadings of the standing cases (Leon Wolf does that here, but three points are worth making.
First, the plaintiffs' proof of standing is itself more than a little disturbing; second, the plaintiffs have not actually met their evidentiary burden:
Slip op. at 13. Of course, the plaintiffs do not actually show that they were surveilled, but several of them did file affidavits with the court in which they admitted to consorting with people linked to Al Qaeda:
[I]n a Declaration, attorney Nancy Hollander stated that she frequently engages in international communications with individuals who have alleged connections with terrorist organizations. Attorney William Swor also provided a similar declaration. Journalist Tara McKelvey declared that she has international communications with sources who are suspected of helping the insurgents in Iraq.
Slip op. at 13 n. 7. This may be grounds for indicting or deporting these fine, upstanding citizens, but it's not evidence that they were actually surveilled. The court rejects the questions raised by the government on this point on the grounds that they are "unsubstantiated." Slip op. at 23. Well, of course they are unsubstantiated because the government doesn't want to reveal any more state secrets. But having assumed away the state secrets problem by saying she needs no more evidence, Judge Taylor just forgets about it whenever she demands more evidence from the government.
The third point about standing is this alarming passage:
Slip op. at 17-18 (emphasis addded). Actually, to be more precise, the New York Times' disclosure of TSP caused these Al Qaeda-affiliated individuals to clam up. Gone, in a single sentence, is any pretense that the Times' defenders may have that the disclosure of this program did not blow important secrets, and did not cause any change in terrorists' behavior.
Judge Taylor's Constitutional "Analysis"
This is the point at which I would, ordinarily, address Judge Taylor's reasons for coming to the opposite conclusion that I did - first and foremost, why she thinks that the program violates the Constitution - but her analysis is so flimsy that it is hard to even discuss. As I noted in my prior discussion, the touchstone of any Fourth Amendment analysis is reasonableness, not the presence of a warrant, and the courts have upheld this rule. This is the basis, for example, for many exceptions to the Fourth Amendment recognized by the Supreme Court, such as the exigency requirement. Yet Judge Taylor, without any citation at all, baldly asserts that the Fourth Amendment "requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things, and the interposition of a neutral magistrate between Executive branch enforcement officers and citizens." Slip op. at 31. She then turns to discuss FISA, ignoring the fact that if a search is constitutionally valid, it does not become invalid simply because a statute says otherwise (it may violate the statute, but that's a separate issue). Then she concludes:
Id. I guess "obviously" dispels the need to actually engage in any analysis. So much for judicial reasoning.
If anything, Judge Taylor's First Amendment analysis is even worse. She notes that the plaintiffs have shown that they were 'chilled' in expressing themselves by knowledge of the surveillance. The flimsiness of the proof on that point notwithstanding, she continues by noting that the government can justify such a chilling effect "upon showing of a compelling governmental interest; and that the means chosen to further that interest are the least restrictive of freedom of belief and association that could be chosen." Slip op. at 32.
Does Judge Taylor then discuss the exigencies of the governmental interest involved, or compare the details of the program to some purportedly less restrictive alternative? Of course not, because that would require discussing the facts - and she has already said she could rule without those! So she instead cites some language in FISA and some language dealing with interests in suppressing criticism of the government, and concludes:
Slip op. at 33. Say what?
Then, there's the separation of powers and the statutory conflict issues, which are dealt with in similar fashion. For example, Judge Taylor notes that the Supreme Court rejected the exigency of President Truman's seizure of steel mills during a strike in the Korean War (a case having nothing to do with surveillance), and baldly asserts:
Slip op. at 42. Note the word "weightless" - as in, not proven by evidence. What evidence? The evidence the court said the government didn't need, of course!
Finally, the court grievously mischaracterizes the "inherent power" argument, which, as I discussed previously, goes only to the question of what the source of the government's power is:
We must first note that the Office of the Chief Executive has itself been created, with its powers, by the Constitution. There are no hereditary Kings in America and no powers not created by the Constitution. So all "inherent powers" must derive from that Constitution.
Slip op. at 40.
Anyway, the permanent injunction has, at this writing, alrady been stayed pending appeal; this will certainly not be the last word on the matter. However, even a momentary lapse in our ability to keep constant watch on Al Qaeda would have been enough to remind us of the dangers posed to us in the form of judges appointed by a Democrat a quarter century ago, and of the damage done to national security by leaking this essential terror-fighting tool on the front page of a leading newspaper. Shame on the Times, shame on the plaintiffs, shame on Jimmy Carter, and most of all shame on Judge Taylor.
« Close It
August 16, 2006
WAR: "You can't lick a man's boots over the phone."
Jeff Jacoby savages Mike Wallace's puff-piece interview with Mahmoud Ahmadinejad. For Wall Street Journal subscribers, Bret Stephens yesterday had a fine list of the questions Wallace didn't ask.
LAW: Making a Federal Case of High School Sports Schedules
The Sixth Circuit finds a constitutional violation in the way Michigan high schools schedule boys' vs. girls sports teams. I kid you not. (The part of the opinion dealing with the facts starts at p. 14 of the PDF after a long procedural detour)
BLOG: The Internet Is A Wonderful Thing
Where else can you find a chimpanzee playing Ms. Pac Man? (Of course, I could not shake the creeping suspicion that this was somehow supported by taxpayer money, but that's just me)
WAR: Trust But Don't Dare Verify
The makings of a compromise emerged from all-day meetings in Beirut, according to senior officials involved in the negotiations, and Prime Minister Fouad Siniora scheduled a cabinet session Wednesday for what he hoped would be formal approval of the deal. Hezbollah indicated it would be willing to pull back its fighters and weapons in exchange for a promise from the army not to probe too carefully for underground bunkers and weapons caches, the officials said.
I regard the cease-fire as a wonderful arrangement in theory - if we really could get the Lebanese to take control, that would be preferable to having the Israelis do the job and possibly break Lebanon's democracy and tenuous independence from Syria beyond repair in the process - but utterly impractical in light of the facts on the ground. I don't buy the optimistic scenario that says that this is all an Israeli plan to resume hostilities on better terms, but, basically, Olmert screwed up and suffered some bad PR, resulting in squandering his foreign diplomatic and domestic political capital in record time. If the UN cease fire breaks down quickly - or, more accurately, if it is widely and publicly recognized as doing so - then Israel may have the wind of a UN resolution at its back to re-start hostilities.
POLITICS: Silly Ned
Governments aren't businesses. They're governments.
The Wall Street Journal humors Ned Lamont with some prime op-ed space to make his case to business-minded voters, with unintentionally hilarious results. Here's his #1 "lesson" he draws from his experience in business:
[E]ntrepreneurs are frugal beasts, because the bottom line means everything. In Connecticut, voters are convinced that Washington has utterly lost touch with fiscal reality. We talked about irresponsible budget policies that have driven the annual federal deficit above $300 billion and the debt ceiling to $9 trillion. Meanwhile, the government is spending $250 million a day on an unprovoked war in Iraq while starving needed social investment at home. I am a fiscal conservative and our people want their government to be sparing and sensible with their tax dollars.
Let's say you owned a bank, and you noticed that the bank's security guards were costing money, and weren't bringing any revenue into the bank. Would you fire them on the theory that "the bottom line means everything"? Maybe Ned Lamont would. But to the rest of us, the bank's security guards are there to protect the parts of the bank that make the money. This is one reason why the obsession with equating deficits to private businesses or households is so silly - there are reasons, yes, why it is preferable not to run deficits, but the idea that government should be run with an eye to its own bottom line is not one of them. The purpose of government is to protect the rest of society, enabling private citizens to make money and do all the other good things of life. Once you treat government like an enterprise with value and profit motives unto itself, you head down a very dark path.
BASEBALL: Believe It . . . Or Not
Lenny Dykstra, successful stock picker. Which brings to mind the old Wall Street Journal contest where the investment pros would match wits with stocks picked by throwing darts at the Journal's stock tables. The darts held their ground pretty well.
HISTORY: Ripples of Battle
Over my recent vacation I finally caught up to reading Victor Davis Hanson's 2003 book Ripples of Battle: How Wars of the Past Still Determine How We Fight, How We Live, and How We Think. Though I was intimately familiar with Hanson's work from his National Review Online columns, this was my first introduction to his books, of which he has written many, several of them examining his thesis that Western Civilization has a distinctive "Western way of war" whose superiority is not coincidental to but rather determined by the liberal aspects of Western culture - individual freedom and initiative, free thought, free markets - that combine to produce superior technology, superior tactics, and the flexible, fast-adapting soldiers who can use them.
I highly recommend "Ripples of Battle." What Hanson does in the book - a brisk, page-turning 258 pages in paperback - is to look at three battles of the past - Okinawa, from World War II in the Pacific; the Civil War battle of Shiloh, Tennessee; and Delium, a battle between the ancient Athenians and Boetians (a region led by Thebes) - and examine the many impacts of the battle. What is unique about Hanson's analysis is that he mainly focuses on effects other than just the battle's strategic impact on a particular war, although Shiloh in particular was a pivotal battle by that reckoning. Instead, he works through the myriad other marks left by the battle. He starts with the shattering effects of Okinawa on his own family as a result of the death of his father's cousin and his namesake, Victor Hanson, and expands to examine the death of journalist Ernie Pyle at Okinawa and the loss of the men of an entire town, Thespiae, on the winning side at Delium. This contrasts with the legacy of ordinary infantrymen who survived, most particularly Socrates, who fought at Delium. Left unsaid is how many others who had as much to give humanity as Socrates perished in these and other battles. Hanson contrasts the military and political careers raised up by these battles - Grant, Sherman, and Nathan Bedford Forrest at Shiloh, Alcibiades at Delium - with those who were slain or ruined, like Simon Bolivar Buckner at Okinawa, and Albert Sidney Johnston and Lew Wallace at Shiloh. Hanson shows how the later careers of these men left many marks - on the decline and fall of Athens, the rise of the American popular novel, the growth of the Klu Klux Klan, and the development of modern total war as a two-pronged strategy of attrition of men and destruction of economic infrastructure.
The most relevant parts of the book, to the 21st century reader, are in Hanson's analysis (written against the backdrop of 9/11, but before the unfolding of the post-conquest insurgency in Iraq) of the kamikaze attacks at Okinawa - how they arose (not always voluntarily, as with today's suicide bombers), how the Americans fought and defeated them, how weak was their military impact, and yet how strong their long-term impact in two ways: because they were critical to convincing American war planners (along with the general to-the-last-soldier-and-civilian defense of Okinawa) that Japanese fanatacism required the use of the atomic bomb to prevent a staggering bloodbath of an invasion of the mainland, and because they showed weaker or technologically backward forces the world over that suicide attacks could help level the playing field against the superior Western way of war. Hanson makes the persuasive case that Hiroshima and Nagasaki can not possibly be understood without Okinawa, and ties it to his larger theme that suicide attacks tend to make the Western response only more deadly by weakening our moral scruples about unleashing the deadly power of the West to lay waste to its enemies.
Hanson's writing style is, as always, bracing and eloquent. He tells impossibly exciting stories, such as the superhuman bravery and only-in-Hollywood (you would think) escapes from death of Sherman and Forrest at Shiloh, yet he doesn't romanticize or glorify war; he sets the tone of the book by mourning the loss of Victor Handon, and along the way savages General Buckner's battle plan on Okinawa, highlights the blunders of both sides at Shiloh, and argues that Delium was basically an unnecessary and pointless battle. I learned a lot from this book - among others, about the orgins of military tactics, the career of Wallace (who wrote Ben-Hur as part of his campaign to salvage his reputation in the decades after Shiloh), and the coalition politics of Greek armies (in which is contained an implicit lesson about multilateral command structures: Hanson notes that the Thespians perished in such great numbers precisely because their more powerful coalition partners chose for them a particularly vulnerable section of the battle line. Coalition-style forces are also shown to fail in his account of the diffuse command structure of the Confederate Army before and after Shiloh).
The book is not without flaws. The coda, tying the lessons of these battles to the post-September 11 world, will sound familiar to readers of Hanson's columns, but seems artificially forced and tacked-on. Hanson doesn't trace all the battles' ripples explicitly; for example, because of its effects on the careers of Grant, Sherman, Garfield and others, Shiloh can probably be singled out as the moment when the Ohio Republican party became a dominant force in American politics, as it would remain for many decades afterwards. His discussion of Delium's impact on the career of Socrates spends too much time hammering home the point that Socrates' career after the battle was the source of his impact on Western civilization (Hanson also argues that his heroism in battle - contrasted to the capture of Plato's stepfather - may have made Socrates a particularly attractive role model to Plato), but even for all that counterfactual speculation he only glancingly discusses what effect the battle itself may have had on Socrates' own thinking, which Hanson suggests took a turn from a focus on natural science to moral philosophy after Delium. Also, he mentions that the only account of Socrates written by someone who knew him before Delium is a brutal satire by Aristophanes that was presented a year after the battle - but he misses the obvious point that even that account would likely have been lost to history because Aristophanes is unlikely to have put on a play lampooning a man recently killed in battle defending the city.
Nonetheless, it's a tremendous read, and one of continuing relevance in a world still feeling the effects of battles as ancient as Delium and as recent as southern Lebanon.
August 15, 2006
POP CULTURE: RIP "That Guy"
Actually, Bruno Kirby was a cut above the usual "that guy". I was actually surprised that his role as the young Clemenza in Godfather II didn't rate a more prominent entry in his obit, given the series' iconic stature, but he had so many memorable roles. RIP.
POLITICS: Abuse of Office Claims Yet Another NJ Democrat
Jon Corzine's Attorney General resigns "after a state investigation found that she had violated her own department’s code of ethics by going to the aid of her live-in companion during a traffic stop.". This is not to be confused with Bob Torricelli's shady use of his Senate office, or Jim McGreevey giving his lover a state job for which he was unqualified, or Corzine himself having an affair with the head of a key state employees' union and paying her off to the tune of several hundred thousand dollars.
"Culture of Corruption," anyone?
BASEBALL: A Little Decency, Please
Or at least a little less indecency. Now that my 9-year-old son reads the sports pages regularly, I'd really rather not have daily articles about Paul Lo Duca's sex life, thank you.
BASEBALL: 2006 AL MVP Race
More on this later, but this year's AL MVP race looks wide open; Joe Sheehan (subscription only) breaks things down at Baseball Prospectus. Who is your pick and why? Vote and explain. (For now, I'm with Joe Mauer narrowly over Big Papi. You just don't everyday get a catcher leading the league in batting and OBP, throwing well, running well, staying healthy and handling a rotation with a rookie ERA leader for a contending team. No catcher has won a batting title since Ernie Lombardi. Of course, Big Papi is still unearthly in the clutch, but when you line him up against Manny, Hafner and Thome you can't say he's unambiguously the best hitter in the league this year, which is my baseline requirement for giving the MVP to a DH.)
BASEBALL: Going Down, Down, Down, Down Part IV
Resuming, with Part 4, my look at young or still-establishing-themselves players whose stock has fallen dramatically in 2006 and/or 2005 - the NL East. (Parts I, II and III here, here and here, respectively)
Victor Diaz: Seems like a lot longer than a year and a half ago people were calling him "mini-Manny" with a straight face, given his power bat, improving patience and - yes - fits of vapor lock in the field. Many Mets fans wanted him to take Mike Cameron's job and were surprised when he lost out to Xavier Nady. By late May, Diaz's stock had fallen so far there was nearly no consideration of bringing him up to sub when Nady went on the DL. The 24-year-old Diaz is batting .223/.334/.275 at AAA Norfolk, and now seems a longshot to have a significant career as an everyday player.
Oliver Perez: Thrown in by the Pirates in the Nady deal, perhaps unwanted by the Mets (who were planning to flip him back to the Padres for Scott Linebrink the day they acquired him), maybe nursing an undisclosed injury and surely suffering a severe loss of command and a drop in velocity, the pitcher who posted a 2.98 ERA with 239 K to only 145 hits allowed in 2004 will now be Rick Peterson's Everest. The early returns are ugly - 12 hits, 9 walks and 3 HR in 6.1 innings in two starts at Norfolk.
For what it's worth, Baseball-Reference.com's 10 most similar pitchers to Perez through age 23 (entering this year), in order:
1. Sandy Koufax
I'm not so sure what the list will look like after 2006.
Heath Bell: Bell's stock has slid only slightly among those who were his fans a year ago based on his fine K/BB ratios and reasonable HR rate, but even with the Mets' habit of demoting him whenever he has a bad outing, Bell has been hit awfully hard at times at the major league level (34 hits in 25.1 IP this season; he's continued to dominate AAA hitters), dimming his prospects for making the immediate leap forward he needs to overcome his doubters in the Mets' front office.
Anderson Hernandez: A legitimate contender for the Mets' starting 2B job before the season, the 23-year-old Hernandez was utterly overmatched at the plate (6-for-41 with no walks or extra base hits) and hasn't been much better back at Norfolk (.252/.301/.291). Hernandez' fine glovework in his brief tenure did have the benefit of making Kaz Matsui all the more unsustainable by comparison, and with the 36-year-old Jose Valentin holding the 2B job for 2006 and Jeff Keppinger traded away, Hernandez should get another crack at the bigs soon. But the doubts about his bat have mounted.
Aaron Heilman: Heilman showed flashes of brilliance as a starter last year, but was perhaps permanently relegated to the bullpen by his brilliance in a setup role - only to suddenly hit a long stretch of inconsistency in that role, too.
Alay Soler: Soler has had a roller-coaster year, winning himself into the Mets' good graces with a strong performance at AA Binghamton after a poor spring, hopping well into the rotation in Flushing, only to suffer a string of bad outings and an injury that have him off the Mets' radar screens.
Ryan Madson: Madson's past as a successful setup man led to hopes that he could transition to a larger role as a starter. As I've noted before, Madson has proven not at all up to starting, but the Phillies keep trying him in that role despite an ERA this year of 6.28 in 17 starts and 2.95 in 12 relief appearances.
Cole Hamels: Hamels was supposed to be an instant star, but a 4.50 ERA says otherwise. Hamels doesn't really belong on this list in terms of his long-term outlook, which if anything is brighter as a result of his staying comparatively healthy, but his short-term expectations have been tempered a bit.
Joe Borchard: Borchard opened the season with the Mariners' CF job tantalizingly within reach, as Jeremy Reed's wrist injury left only Willie Bloomquist as immediate competition. But the perennial prospect Borchard got only 9 at bats before Reed got himself back in the lineup and Borchard was shipped to Florida. Now 27, Borchard has run out of future - his .225 batting average may have dragged his career mark up to .204, but that won't win him more chances. We can now safely say Borhchard will never hold a regular job.
Yusmiero Petit: It's a testimony to the success of Florida's youth movement that there isn't a much longer list of Marlins here. File Petit, like Hamels, under "dial back your expectations for immediate success" rather than "lower your long-term expectations." An 8.68 ERA, 3 HR and 32 hits in 18.2 IP say that Petit, at 21, is no major leaguer yet. (I could have included Mike Pelfrey on the same theory as Hamels and Petit).
Luis Matos: Much like ex-teammates Larry Bigbie and David Newhan, Matos has his moment of glory, batting .303 and slugging .458 at 24 as a fleet-footed center fielder for the O's in 2003, and batting .280 last year. Sent to the Nationals after hitting .207 in 121 at bats this year, Matos is now a bench player in a crowded Washington outfield.
Felipe Lopez: After his breakout year at 25 last season (.291/.486/.352, 97 runs, 23 HR, 15 steals), the onetime Blue Jays phenom looked like a cornerstone of the Reds franchise, but he became expendable in a hurry this year when his power dried up (especially his doubles power) and he got traded down in the standings. A .358 OBP and 31 steals suggest that Lopez still has much to contribute, but comparisons to Miguel Tejada won't be forthcoming soon.
Ryan Church: Church, yet another prospect from the old Montreal system, batted .287/.466/.353 last year at 26. This year, he was sent out to AAA New Orleans batting .215 in mid-May. He's recovered lately to bat .281/.526/.354 since his mid-July recall, so the jury's still out.
John Patterson: With a 3.13 ERA and 185 K in 198.1 IP last year, Patterson finally looked ready to assume the mantle of an ace and put behind him years of injury-plagued inconsistency. Instead, he's been back to the operating table, the rest of his season in doubt after just 8 starts.
Jeff Francouer: Francouer's struggles have been no shock to those of us who doubted his strike zone judgment and lack of big-star minor league pedigree, and his youth (he's still just 22) gives him time to learn and grow back into a serious hitter, and he'll have a steady job for some time to work on it. Perversely, the fact that he's continued to drive in runs (81 so far) may retard his development if he thinks he's still hitting well. A .256/.447/.281 line says otherwise.
Ryan Langerhans: Unlike Francouer, Langerhans, at 26, isn't young enough to regard a .244 average and 6 homers as anything that will lead to a productive career as a corner outfielder. Without a serious improvement, Langerhans will be an endangered species as an everyday player by next May.
Pete Orr: Orr has suffered the vissicitudes of fate as a bat off the bench with less than 200 at bats a year, plunging from .300 to .216 and a .232 OBP.
Kyle Davies: Davies started hot and finished mediocre in 2005 (4.93 ERA), but this season started bad (6.12 ERA) and has ended with surgery.
Horacio Ramirez: As you can see, Atlanta's youth movement has been bumpier than Florida's, although the Braves did get a division flag in 2005 from these guys . . . Ramirez has been another injury case, plus between 2005 and 2006 he's struck out 117 batters in 278.2 IP, a rate (3.78/9 IP) well below the survival rate for major league starters.
Jorge Sosa: This, again, was predictable failure: Sosa regressed badly in 2006 from a 2.55 ERA to 5.46 before being packed off to St. Louis. He's now officially a journeyman at age 29.
August 14, 2006
BASEBALL: See You In September
With Pedro pitching badly and leaving early with a calf injury tonight (Pedro pitching badly and being hurt are practically synonymous), I'm assuming another DL stint is in the works, which probably means a few more weeks of Pelfrey.
UPDATE: I am reminded in the comments that Pelfrey's also hurt. As, unless I'm mistaken, is Soler. And Bannister doesn't seem ready to go yet, nor Oliver Perez. We may be compelled to see Darren Oliver starting soon, which would be a very bad thing on several levels. (Humber can't be ready yet).
LAW: I'm No Expert on Legal Ethics
But this is just all kinds of bad. And coming from a guy who was apparently a good lawyer with a lot more to lose than he gained.
One of the subtle things in the media's campaign to run down A-Rod is how he always seems (as this morning) to pop up on the back page of the Daily News after a Yankees loss, rather than a win. This, after he homered yesterday and batted .455 with 3 HR, 5 runs and 5 RBI over the past week.
The "trade A-Rod" movement, by the way - spearheaded by Steve Phillips, still (as Dr. Manhattan has pointed out to me) retroactively trying to justify his decision to pass on A-Rod in 2001 in favor of Rey Ordonez - is one of the stupidest ideas I have ever heard. Not only is Rodriguez the best player in the American League and still in his prime at 31, but no other team would take him without the Yankees eating a big chunk of his contract, much less give up anything resembling equal on-the-field value for him. (If you disagree, please cite examples of teams willing to do so.)
If A-Rod didn't have the gigantic contract, trading him could make sense, at least because he's more valuable to a team that could play him at short. But the contract is what it is, so he'll be a Yankee for the duration of it. Live with it.
UPDATE: Yankee fans do have one legitimate grievance with A-Rod, aside from his struggles of late at third: against the AL East on the season he is batting .193/.340/.309, scoring 105 runs per 162 games and driring in 93, compared to .337/.605/.421 and a pace for 126 runs and 135 RBI against the rest of baseball.
August 12, 2006
BASEBALL: The Big Giant Head
Can someone tell me why Mr. Met was sitting behind the third base dugout tonight in Washington? I've never seen him at a road game before.
BASEBALL: Rodney McCray
Former Met Rodney McCray is being honored with his own bobblehead for one of baseball's most memorable moments, when he ran through a fence in a minor league game in Portland Oregon in 1991. McCray understands his unique place in the game's history:
"I'm honored and tickled to death," McCray was quoted as saying on the Beavers' Web site. "I never get tired of talking about [the crash]. It's kind of like the skier who epitomizes the 'agony of defeat' -- I'm the guy who crashed through the wall. Usually, it's the big-league superstars who get their own bobblehead, so I'm very excited."
"I might not be a Hall-of-Fame player, but I made it to the Hall of Fame with a film clip," McCray said. "Not too many guys can say they're in the Hall of Fame, some way, some form. It's still pretty cool."
BASKETBALL: The Wrong Johnson
Former NBA All-Star Eddie Johnson was arrested for a terrible sex crime - but it may not be the Eddie Johnson you think.
August 11, 2006
BASEBALL: Not There Yet
Lastings Milledge is 21 years old. Jose Reyes was 21 in 2004. That is all.
FOOTBALL/LAW: The Washington Pigskins?
A group of Native Americans are petitioning the U.S. Patent and Trademark Office to cancel the Washington Redskins' trademark. This is apparently a second effort to do this; the first is still being litigated:
Federal trademark law dictates that the government will not register any trademark that disparages any person or group, and in 1999, the U.S. Patent and Trademark Office ruled that the Redskins trademark was disparaging. The NFL appealed the decision to the U.S. District Court, which in 2003 reversed the PTO, ruling that the name wasn't disparaging. Further, said the trial court, laches (essentially, a statute of limitations) barred the Native Americans' claim because the Redskins had registered their trademark way back in 1967. The Native Americans then appealed to the D.C. Circuit, which issued an opinion last year declining to rule on disparagement but asking the trial court to reconsider the laches issue.
Actually, laches is a specific type of limitations - rather than a period of years, a laches defense is based on unreasonable delay in bringing a claim. The new plaintiffs apparently hope to avoid the laches defense because they are young, but I don't see how that helps them, since the disparagement is of a group of people and the Redskins have reasonably relied on the mark for four decades.
That said, I do think that "Redskins," far more than other Native American team names, is in fact derogatory, and even if legal action is inappropriate, it would behoove the team to change its name. I've long argued that they should change the team name to "Pigskins" - it's got an obvious football connection, it connects with the team's "Hogs" tradition, they would still be the "Skins," and even the theme song could become "Hail to the Pigskins" without much trouble.
LAW/WAR: Some Timely Common Sense
POLITICS: About That Schools Study...
The Department of Education released a National Assessment of Student Progress (NAEP) study last month comparing performance of students in private vs. public schools nationwide, based upon tests conducted in 2003; the study compared a total sample of over 6,900 public school fourth grades and over 530 private school fourth grades, with a similar sample for 8th grades. As the study itself notes, NAEP tests "typically show a higher average score for private school students than for public school students." (at 7) This study, however, found that when you adjust for various characteristics of the student body, the usual advantage of private schools seemed to disappear: the average performances of private and public school students were close enough as to be, for statistical purposes, identical.
Predictably, this finding was trumpeted by many on the left who oppose private school choice, on the theory that it showed that there is no benefit to sending kids to private instead of public school. (See here and hereand here for samples from the blogosphere, and here and here for a big-media pundit and the New York Times making the same claim). In fact, this argument overreads the results of the study and entirely misses the point of the case for school choice.
Read More »
I should note that I am building here on the observations of Megan McArdle and Stuart Buck (hat tip to Jon Henke of QandO), both of whom have focused on the central problem with the study, which is the comparison of mean (i.e., average) scores. For a deeper look at the study's methodological problems (including the fact that the study selects out smaller private schools that may be superior, partly for that reason, to gargantuan public schools) and an alternative study showing private school advantages, see the Cato Institute's blog.
1. The Study Itself Notes Its Limitations
From the executive summary:
When interpreting the results from any of these analyses, it should be borne in mind that private schools constitute a heterogeneous category and may differ from one another as much as they differ from public schools. Public schools also constitute a heterogeneous category. Consequently, an overall comparison of the two types of schools is of modest utility. The more focused comparisons conducted as part of this study may be of greater value. However, interpretations of the results should take into account the variability due to the relatively small sizes of the samples drawn from each category of private school, as well as the possible bias introduced by the differential participation rates across private school categories.
2. Not All Schools Are Average
As Buck points out, "children who are likely to be eligible for vouchers do not attend schools that equal the nationwide average." The entire point of school choice is to ensure that every student who could benefit from picking a private school (or another public school) over his or her current school has a chance to do so. You don't knock down the case for doing so by showing that the average public school is equal to the average private school - to make the case against choice on grounds that it won't provide a better education, you need to show that every public school is at least equal to every private school in its immediate geographic area. Otherwise, you are consigning kids in one school district to a bad school simply because somebody else doesn't need an alternative.
3. Means Are Not Medians
Any decent statistical study will give you both means and medians (i.e., the 50th percentile, the student right in the middle), and the study from start to finish speaks only of mean results. Without detail on the median results, there's a distinct possibility that the best public schools are pushing up the averages, concealing a greater number of truly failed schools in the public school sample. It is cold comfort to parents in Bedford-Stuyvesant that kids in Scarsdale are pulling up the average, or for that matter that the best kids in one school are well ahead of the worst.
4. Competition Makes Schools Better
A basic principle of markets is that competition improves services by the monopolist, not just the competitor. In wealthy communities, school choice already exists - if the public school doesn't serve the kids, the parents will take them elsewhere. Thus, public schools in such communities already benefit from choice because they have to keep up with private schools to retain their students. In fact, the wealthiest communities tend to have public schools that are particularly academically successful, because people who are focused on education will move into those districts (ask any real estate agent about this) and willingly pay more taxes to improve the school. Even with the effort at weighted averages, including such schools in the study undermines the entire effort to compare private schools to true monopoly public schools where the kids don't have meaningful alternatives.
5. Let The Parents Decide
If it is really true that there is no advantage to private schools, then does that mean that all the parents paying to get private educations for their kids are fools who could be getting an equally good education for free? Conservatives are not so arrogant or collectivist as to assume that a government study of a national average is a better judge of each kid's needs than his or her own parents. At the end of the day, each student is different - no student is the New Average Man. If you give people choices and those choices are no better than what they have, they won't go anywhere. If liberals believe that there really is nothing gained by kids leaving for private schools, what are they afraid of?
Republicans shouldn't be cowed by those who argue that an aggregate national study is a substitute for a parent's own knowledge of their child's needs. On this issue, as with so many other issues that don't involve the taking of a human life, we should remain the pro-choice party.
« Close It
August 10, 2006
BASEBALL: The Second Team
One need hardly say more about the current state of the National League, now at its lowest ebb since the late teens, than that the Mets today completed a sweep of the division-leading Padres with Mike DeFelice starting at catcher, Jose Valentin at second base, and an outfield of Endy Chavez, Ricky Ledee, and Michael Tucker. All five of those players could have been had for a song before the season; three of them could have been had for a song last week.
BLOG: Not Beyond Parody
Check out these two batting lines:
Player A is the combined batting line for Carloses Beltran and Delgado at Shea this year - B is their combined line on the road. The flip side, of course, is that Pedro and Glavine have an ERA of 4.57 on the road, 2.82 at Shea, and in particular have allowed 1.5 HR/9 on the road, 1.0 at Shea. Food for thought: all of John Maine's starts have been at Shea.
BASEBALL: Trop Till You Drop
So, I was away from the blog here the past six days attending a family wedding in St. Petersburg, followed by a couple of days at Disney World. Among our travels, we took the opportunity to visit Tropicana Field and take in a Devil Rays home game against the Red Sox on Sunday.
Now, it had not occurred to me until I was there that the Rays play in St. Pete, not in Tampa (hence the "Bay" in their name). And I hadn't really seen outside views of the stadium before - when you approach it from the highway, the dome appears to be slanted badly to one side, like it's halfway into a sinkhole. I'm not sure what this Leaning Tower of St. Pete look was supposed to accomplish - I could imagine a side-tilted dome being an ultra-modern, Jestons-ish look in the early 60s when they built the Astrodome, but the concept here is beyond me.
First impression of attending a Devil Rays home game: the parking/transportation is a nightmare. We were driving in view of the stadium 15 minutes before game time, and not in terrible traffic, and we didn't get seated until the third inning. The parking lot was apparently too small to handle the crowd, the detours to "alternate baseball parking" were Byzantine and poorly labeled, and when we finally followed the circular route to the parking garage, it was too far away - and we were too lost - to walk with two kids and a baby in a stroller, so we had to wait on an extremely long line for trolleys that were ferrying about 20-30 fans at a time to the park. There were - more on this in a minute - a large proportion of the fans on that line wearing team paraphernalia of some sort, but only a tiny fraction were Devil Rays stuff. Being dependent on mass transit like trolleys to get to and from the game completely defeats the point of driving, which is to have control over when you get there and when you leave. The crowd was a big one but hardly huge - the box score says attendance of about 30,000, which filled most of the stadium except for big sections of the upper deck. If your parking setup isn't designed to handle a crowd that cracks 30,000 fans, you do not have a winning business model.
To make the timing situation perversely worse, the Rays gave out coupons at the ticket window for free sodas and hot dogs. When we arrived in the third, my wife went off to get the free food, and due to the long line (I did mention it was free, right?) didn't get back until the seventh inning. On the other hand, the dogs were good, similar to Shea hot dogs and far better than my experience with Dodger Dogs.
Now, our seats. We sat in right field, in fair territory, a few rows from the back wall. The Trop has a lot of seats in fair territory the outfield - all in one deck, like Yankee Stadium or Fenway - and they are really good seats, very close to the field and lined with prime catch-a-homer seats. Somebody at the front of our section got David Ortiz' homer in the fifth inning. The one major disadvantage was that we could not see the main center field scoreboard - not even by turning around, like in Fenway's CF section -so unless you knew them by uniform number (hah!) or heard them announced, it was impossible to tell who the Devil Rays' relievers were (for the record: Edwin Jackson, Ruddy Lugo, Seth McClung, Brian Meadows and Shawn Camp).
The fans. Well, if I had three words to describe the fans at Sunday's game, they would be "Red Sox fans." Our section in particular was filled with Sox jerseys (probably 60% Varitek jerseys to 40% Ortiz, with the women almost uniformly wearing Varitek jerseys) and thicker-than-clam-chowdah accents, and pretty much exactly the same mix of attitude and bad language you get in the Fenway center field bleachers. I'm not sure where they all came from - the braying guys behind us (who were a little tongue in cheek, I think, when they started yelling for Manny to "hit it wicked wicked faaahhhh" late in the game) were apparently transplanted Bostonians living in the area, but were the rest bandwagon Sox fans, tourists who planned their vacations around this, or perhaps people who decided to abandon their livelihoods and follow the Old Towne Team Deadhead-style from city to city, supporting themselves by selling hairspray, stonewashed jeans and Dan Shaughnessy books? Hard to say. But as we did see Sox jerseys and hats all over our hotel and - on Monday - at Disney, I'm guessing there were a lot of vacationers in the house. When the fans did the "Yooooook" chant or cheered for Big Papi, you'd have sworn they were the home team. By contrast, we did see one knot of loud, profane but generally incompetent hecklers in Rays garb, who accomplished little other than to bring down retribution from smug Sox fans and demonstrate that the Tampa area lacks major-league quality hecklers (There was also a hyperactive guy in our section dressed as Fred Flintstone who was jabbering at Wily Mo Pena, but he pretty much defied generalization).
The part of the scoreboard we could see hectored the crowd with various alliterative slogans based on the hometown batter's name ("Get Crazy for Carl!" "Get Zany for Zobrist!") . . . let's just say it's impossible to imagine them doing this at Fenway, Yankee or even Shea. There's also a mini blimp sponsored by a local energy company that drifts around between innings.
As for the game itself, even with an awful Rays starter, a lineup full of more sub-.300 OBPs than you could shake a stick at, and some amazingly bad fielding by Russ Branyan in right, it was a backbreaking loss for the Sawx, as the bullpen blew a 6-2 lead with homers by Travis Lee and Dioner Navarro, Papelbon blew the save (on Navarro's dinger), and Greg Norton went deep for the walk-off in the tenth (after Manny ended the top of the tenth following an intentional pass to Ortiz).
We walked a block from the long line for the return trolleys - in the rain - until we could get a cab back to the parking garage. A good game and a fun time at the ballpark, but it would have been nice to see the whole 10 innings.
August 9, 2006
BLOG: A Round of Applause
Thanks to Mike Rogers for keeping the site updated while I was out of town. I'm back from Florida now and digging through the hundreds of emails I have backlogged, from site comments, spam, etc.
Red? Blue? How 'Bout Red, White & Blue?
Unless you've been living under a rock for a couple months, or are so apolitical that I advise you to stop reading this post right now, you know that Joe Lieberman's been in the political fight of his life against an outsider, Ned Lamont, for the Connecticut Democratic Nomination for the Senate.
And unless you went out and got hammered last night, passed out at 8:00, and slept in this morning to nurse your hangover, you also know that Lamont won.
I'm not gonna go off on a ideologically driven political rant here at Crank's site, nor am I gonna try to make a bigger point about the War, right vs. left, or even the balance of party power in the Senate. There are plenty of sites doing so (in fact, my post on this topic on my own blog gets a little deeper into such issues, if you're interested).
I'm neither Democrat nor Republican, so I'm not really interested in those topics.
What interests me is the ability of American voters to get their message across. Whether right or left, I think we can all agree that things aren't perfect in America right now. Whether one's shibboleths revolve around the so-called Culture Wars, the fiscal profligacy both parties engage in, the monetary shenanigans of the ostensibly independent Federal Reserve; the War in Iraq and our inability to either win outright or withdraw honorably & intelligently; concerns over Executive Power; worries about Judicial Power; the list goes on and on.
And I challenge anyone -- left or right, Democrat or Republican -- to think of a time in their politically sentient lives when they felt that Capitol Hill was pulling less weight than now. A time when our political leaders were as far out-of-touch with the electorate than now.
And, to me, Joe Lieberman is a symbol of that failure. Not because he's a "conservative" Democrat, not because he supports the war, or is pro-choice, or because he's a God-fearing man. Oh, I have my opinions about those things, believe me. And they'd be enough to convince me of his relative worth, or lack thereof, as a candidate.
But more importantly, he's shown a capricious disregard for the will of the elctorate.
I know a primary doesn't represent the entire electorate. But Lieberman has never before rejected the support of his party, he's never expressed any interest in "going it alone." Yet, last night, following his defeat, he "conceded" by declaring:
For the sake of our state, our country and my party, I cannot and will not let that result stand.
(Emphasis added). There's your fealty to country. There's your loyalty to his constituents. And, while hardly a respectable trait in my opinion, there's the loyalty to party that so many seem to value.
The man is out for himself, and obviously the "patrons" who've supported him in the past (and may again do so in November should he run). I want officials who put the country ahead of themselves.
By the way, Joe wasn't the only incumbent to go down in flames last night: moderate Michigan Republican, Joe Schwartz, lost to a more conservative opponent, Tim Walberg, in his House primary; and Cynthia McKinney lost her Democratic House primary to a less-insane candidate, Hank Johnson (which says little, as Mel Gibson's slightly more sane than Cynthia).
And you know what, I like both those results too, even though it should be clear that I'm not a Walberg fan (to the degree I know much about him, which admittedly I don't). Why? Schwartz had the support of the Adminstration. I want outsiders who'll challenge the status quo. Are Walberg & Johnson the answer? I dunno. But unlike Schwartz & McKinney, we know they might do something other than play politics-as-usual.
Finally, I'm aware that many (if not most) of Crank's readers are conservative, and probably Republican. That's fine. But as a fellow American, I hope we all vote for the candidates that mean to do something to get us back on track, even if only a little bit: balance the budget, return balance to the tripartite government, demand accountability from the Fed, follow the Constitution. Whatever your particular issue.
But we're gonna need new blood on Capitol Hill to pull it off.
* * *
Unless I've horribly misunderstood his e-mail of last week, Crank should be back tomorrow. (Ok, you don't have to cheer that loud, do you? This hasn't been that bad, has it?).
I've enjoyed this guest blogging stint a lot, and I hope you enjoyed reading what I had to say as well. I'll continue to comment here on Crank's posts, and I hope some of you decide to come check out my site from time-to-time.
August 8, 2006
Voices In The Wilderness
I've beaten the drum lately regarding entrenched, out-of-touch incumbents, more interested in securing their own fortunes & legacies than in working for their constituents, so it's only fair that I draw some attention to a couple of Representatives actually doing something.
I've also written a few time about Ron Paul, the only politician in Washington who seems completely outside the standard influences. Paul's an odd collection of characteristics: a libertarian who holds to a very archaic notion of governance that many of us wouldn't like, but also a degree of honestly & consistency I admire very much. For instance, his opposition to the Iraq War is coupled with a genuine repulsion towards large, federal programs for . . . well, just about everything.
Anyhow, here's an excerpt from a speech Paul gave, as cited in a Whiskey & Gunpowder piece dealing with oil prices & the situation in Iraq:
We must reassess our foreign policy and announce some changes. One of the reasons we went into Iraq was to secure oil. Before the Iraq war, oil was less than $30 per barrel; today, it is over $70. The sooner we get out of Iraq and allow the Iraqis to solve their own problems, the better . . . We must end our obsession for a military confrontation with Iran. Iran does not have a nuclear weapon, and, according to our own CIA, is nowhere near getting one. Yet the drumbeat grows louder for attacking certain sites in Iran, either by conventional or even nuclear means. An attack on Iran, coupled with our continued presence in Iraq, could hike gas prices to $5 or $6 per gallon here at home . . . We must remember that prices of all things go up because of inflation. Inflation by definition is an increase in the money supply . . . the Fed creates new dollars out of thin air to buy Treasury bills and keep interest rates artificially low. But when new money is created out of nothing, the money already in circulation loses value. Once this is recognized, prices rise . . . this contributes greatly to the higher prices we're all paying at the pump.
(Emphasis added). The piece also goes on to include a letter that Representative John Murtha wrote to President Bush. You may remember that Murtha, who served as a Marine in Vietnam, has spoken out rather vehemently, demanding that we withdraw from Iraq and bring the troops home. In his letter to the President, he states:
Despite the latest evidence that your administration lacks a coherent strategy to stabilize Iraq and achieve victory, there has been virtually no diplomatic effort to resolve sectarian differences, no regional effort to establish a broader security framework, and no attempt to revive a struggling reconstruction effort. Instead, we learned of your plans to redeploy an additional 5,000 U.S. troops into an urban war zone in Baghdad. Far from implementing a comprehensive 'Strategy for Victory,' as you promised months ago, your administration's strategy appears to be one of trying to avoid defeat. Meanwhile, U.S. troops and taxpayers continue to pay a high price as your administration searches for a policy. Over 2,500 Americans have made the ultimate sacrifice, and over 18,000 others have been wounded . . . American taxpayers have already contributed over $300 billion, and each week we stay in Iraq adds nearly $3 billion more to our record budget deficit . . . We believe that a phased redeployment of U.S. forces from Iraq should begin before the end of 2006. U.S. forces in Iraq should transition to a more limited mission focused on counterterrorism, training and logistical support of Iraqi security forces, and force protection of U.S. personnel . . . Mr. President, simply staying the course in Iraq is not working. We need to take a new direction. We believe these recommendations comprise an effective alternative to the current open-ended commitment, which is not producing the progress in Iraq we would all like to see.
Now my point here isn't whether I do or don't agree with both Paul & Murtha, though I think they're both on to something.
No. My point is they're doing something: speaking out, addressing problems, challenging executive power, looking out for their fellow citizens. And, at least superficially, these ideas seem based on something other than pleasing their "patrons" or looking for the next round of campaign dollars. I'm not denying that Murtha's riding the wave of anti-Bush sentiment. He is. But a look at the issues he supports (and doesn't) indicates a man with at least a shred of integrity. Not sure how many in the big building he works in can say the same.
As I (hopefully) read tonight that the voters of Connecticut said No to Joe, I'll remember what I've been saying and hopefully will say until November: unless our elected officials come out explicitly and demonstrate that they're looking out for their country or their constituency, we need to kick them out. If I lived in Texas or Pennsylvania, Paul & Murtha would've just gotten their stays of execution.
* * *
August 7, 2006
The Wright Thing To Do (Aka, I Hart Omar)
None of which compares to the really good news:
David "Derek Who?" Wright will be a Met for at least 6 years. He really is The Prince of New York. Omar completed his most excellent week, penciling in Young Mr. Wright for six years at $55 M, with the option for an extemely expensive seventh year.
We'll cross that bridge when we get to it. All I know, fellow Met fans, is that we get 4-5 years, minimum, to watch the Dynamic Duo do their thing on the left side o' the infield. Wooo-hooo! The price may seem high for two very young players, but (a) the Mets can afford it and (b) these guys look well on their way to stardom. Especially Wright. The list of guys who hit .300 with 27 HRs and 100 RBIs (not to mention fine peripherals) at 22 is a small one. Small, but strong, like Mel Ott, who failed to make the list at 22, but was a member at 20. Other names you may know who qualified? Ohh, fellas like Williams, DiMaggio, Foxx, Vlad, A-Rod. Wright's easily on pace to do it again at 23. This is a great deal.
It reminds me of what John Hart did in Cleveland in the early-mid 90's as guys like Thome, Manny & Belle came into their own as young sluggers. Thome, for instance, stayed with the Tribe through 2002, when he hit 52 homers . . . and earned $8M. He crossed the $3M threshold in 1998, the season after the Indians' 2nd WS appearence in three years. And Thome himself? He'd already hit .300 twice, hit 30+ HRs twice (including 40 in '97), driven in 100 twice, topped .400 in OBP three years running, etc. He was a bargain and it helped Cleveland remain competitive.
Manny? Even more ridiculous! In 1995, when the Tribe won 100 out of 144 games played, Manny put up the first of many 300/30/100 seasons (with his standard rock-solid peripherals) and earned $150,000. He ended staying with the Indians through 2000, never earning over $4.25 M a year, despite driving in 165 one season, hitting .328+ twice, all that Manny stuff we love. Then he went to the Sox, signing for the GDP of a mid-sized Central Asian Republic.
Albert Belle? With the Tribe through 1996. Never earned over $5.7 M per.
And the point of all this? I'm not completely sure, but I think I'm trying to show that signing young, top talent to long-term deals before they reach superstardom is the way to go, the way both to keep your young studs and avoid paying them A-Rod money too soon. They either fall apart -- and then you're doomed anyway, regardless of what they earn -- or they emerge and eventually require $22 M/yr to "feed their families," "earn respect," "keep up with the Rodriguezes," whatever.
But that's then, this is now (S.E. Hinton allusion). In the meantime, the Mets got em, and they ain't going nowhere. Niiiiiice.
August 5, 2006
The Ugly Underbelly Of An Emotional Topic
Hello again. This piece below probably won't seem too controversial in this forum. In fact, I suspect it'll summarize the opinions of a lot of Crank's readers. Nonetheless, I put it up on my site early last week after observing an alarming trend on both the left & right extremes of the blogosphere. On my blog I labeled it "We Interrupt Our Regularly Scheduled Programming," because I tend to cover things from a humorous/entertaining angle, but I felt I had to do what I had to do. Here it is, in it's entirety (one or two minor edits for grammar/spelling):
That said, I want to weigh in briefly on something that's been more than bugging me: a creeping, metastacizing anti-semitism in otherwise neutral blogs. Mostly from commenters, but from the authors themselves at times. I'm not talking about criticizing Israel's current policy, and I'm not even talking about writers against Israel in the big picture. I certainly don't mean commentators who question Israel's role in US foreign policy, and I don't overly scrutinize authors who wish to hold Israel to normal levels of accountability.
No. What I'm talking about are folks who need to say "Zionists" or "Jews" in place of "Israelis." Or people who can't stop saying "Neo-Con" when they actually mean "Republican" or "The Administration." Which says nothing about the growing hoards obsessed with the "Jewish make-up" of the "Neo-Cons." You know what I mean; the writers who need to allude at all times to Wolfowitz or Perle, but seem to conveniently forget that "Quayle," "Fukuyama," "Rice" and others fit well within the "Neo-Con" group as defined by the PNAC.
Other symptoms of which I speak: obsession with "AIPAC control" of the US government. The over-representation of Jews in the media, among the roll of US billionaires, in the financial world. The way that Jews will ultimately "support Israel over the US," or "send American boys" to do Israel's dirty work in the Middle East. Anyone who frequents the left or right reaches of the blogosphere knows what I'm talking about. For those of you not familiar, let me assure you: while not directly quoting, every phrase I've included so far is a faithful paraphrase of multiple posts I've read. And these sentiments are anything but rare.
I'll admit that beyond massive disappointment (and a small dose of fear), I'm mostly surprised at this. And I feel like an idiot for being surprised. I've long taken pride in my historical perspective on events, for always viewing events through a skeptical (some would say, cynical) lens. I know as well as any Jew the history of anti-semitism, of it's roots, its manifestations, its effects.
And, despite all that, I thought that the United States in 2006 was different. I honestly believed that the European left, the European ultra-right nationalists were capable of discussing what I've been reading. But I thought that in America, our faults notwithstanding, we'd moved beyond the most base forms of ethnic hatred, of racism. That these ugly phenomena had been "Americanized," turned into tools of economics, of marketing, of cultural compartmentalization.
Maybe I was right in that regard. Maybe, like so many otherwise well-intentioned people will tell me, I'm just paranoid.
But maybe I'm not. And I firmly believe that the final line from propaganda-to-action is shorter than that initial road from open mindedness-to-fear. Yes, you're following my point. As said, I harbor a small amount of concern.
Nevertheless, even for those who think that America is just exercizing some well-needed analysis of Israel's role in US policy, I think they need to admit to themselves that an ugly underbelly has been exposed for the first time in a while. First time in my life, and I've been politically/culturally sentient for three decades or so.
Now I know there are those who'll tell me that this element is always there. They've always been there. Just ignore them. They're the lunatic fringe. I hear you, you're right, they've always been there. But what's blowing me away lately is how they've all crawled out from under their rocks, and have started to speak. To yell. To pontificate.
And not only are they rarely called out onto the carpet for this by the rank-and-file in the cyber-community, but they're often encouraged. It's become a rather popular rallying cry among disparate communities of commentators. And it has me stunned.
I'm gonna keep my eyes and ears open. I wish I didn't have to. But, as I said, I know my history, and any Jew who chooses to pretend he doesn't at least recognize what he's seeing is a fool. And any American who chooses to see otherwise is fooling himself as well.
August 4, 2006
Ladies & Gentlemen, Your First Place New York Mets
Hey, Crank readers. My name is Mike, and a few of you may recognize me as one of the annoying guys who posts comments, complete with shameless links to my own blog, Mike's Neighborhood, every darn day. Well, last night I received a very nice e-mail from the Crank, informing me that he'll be out of town for a few days. Ok, you're thinking, "Uhhh, gee Mike, that's really exciting. And you've hacked into the Cranks's blog to tell us this why, exactly? Now get outta here, and leave us alone."
But the funny thing is, Crank invited me to "guest blog" for him in his stead. And, yes, I agree with you: he's must be completely insane. But, far be it for me to correct someone else's shocking lapse in judgment when my own self-interest is at stake. So, with no further ado, Met fans & baseball fans alike, I present for your reading pleasure -- as well as for a great opportunity for me to crank it up and generate some traffic at my own site ("Crank" it up, get it? . . . as in Crank, you know the guy who's blog . . . ohhh, never mind) -- an inartfully edited compilation of the last two Mets posts from my blog, Mike's Neighborhood. A few of the statistics cited may be sliiiiightly off, due to my posting these earlier in the week. But they're close, So gimme a break, will ya?
Oh, and Enjoy:
Forty-four. Henry Aaron's number, yes. Also Reggie's, after he went to the Yanks. And Everlastings Milledge is the latest in a long line of players to wear that super-cool number in Queens.
It's also the Met's magic Number: 44. And counting. A few Random Thoughts for your Friday morning pleasure:
Two Princes: The would-be "Prince of New York," Young David Wright is tired. I think he needs a break. The guy's 23 years-old, he's played one full season in the majors before this, and he had an excellent first half. Then he appeared in the freaking Home Run Derby, then the All-Star Game itself, before quick stops on Letterman, at the White House, before the UN General Assembly, the Jedi Council, and the Interstellar Federation. Heck, he introduced Bruce Sutter at his Hall of Fame induction last week. (Very moving speech, by the way, what with crediting him for inventing the split-finger fast ball and all. Charming anecdote about watching him in the '82 Series, two months before he was born . . .)
Mr. Wright hasn't had any serious time off! And from the looks of things lately, he needs it.
Yes, I know Keith Hernandez's saying Wright's "pulling off the ball," but Keith says that about everyone. Albert Pujols goes 0-for-3 with a walk? Pulling off the ball. Tony Gwynn hit only .312 one season? Pulling off the ball. Barry Bonds' head grows to epic proportions and he's so gimpy he can hardly walk? Pulling off the ball. China's economic growth rate dips to 6.4 %?
Ok, you get the idea.
Maybe Wright's pulling off the ball. Ok. But why is my question. His approach at the plate looks the same to me. Since the end of June, he's walked 14 times in 94 ABs, a little bit more than earlier in the year. I don't think the problem's mental, or at least it wasn't at first.
I think he's tired. Last season, you may remember, Wright began to slow down a bit in July. I don't have breakdowns of every game from last season, but I know he hit 307/345/505 for the month. Lowest OBP for any month, and still about 20 points below the season SLG. And that includes a very hot stretch immediately after the All-Star Break. And of course he went on to carry the team in August, behind 378/470/633 numbers.
I distinctly recall thinking last year that he looked sluggish before the break, and that I hoped he'd recover with rest. His numbers before the break last year? 281/369/470. After? 333/409/582. Yet this season . . . no break. No rest. The slight dip he experienced going into the break has continued. His July numbers of 282/384/494, while not bad at all, are the lowest of any month this year by a large margin. Since the break? An ugly 277/365/415.
So am I saying he's doomed? No. Blaming him for living it up like a rock star, getting overexposed at J-Lo levels last month? Heck, no! The kid's 23. Thinking we've got "An Abreu" on our hands, that he messed up his swing in the Home Run Derby? Absolutely not (though I wish he'd skipped the stupid event).
I just think he needs a rest, and needs it badly. I'd give him an entire series off, either before or after an off day. 4 days rest. Kind of like his own All-Star break. We don't need him hitting 285/360/475 through August. We need him hitting 325/400/575 in October. That's when he'll really earn the "Derek Who?" label he's been flirting with.
And the right to flirt with the hottest chicks in NY.
MVP! MVP?: Like the emotionless & rampaging cyborg he was contructed to be, The Beltranator continues to destroy all that stands in its path. Its basically a line-drive smashing, bases loaded clearing, crooked number creating, Braves pitcher humiliating (8 homers against Bobby's Boys so far!), Met fan salivating monster. In the "Pure Power" department, other than late 80's Darryl, '00 Piazza, and maybe Wright last August, I'm not sure when I ever saw such a one man wrecking crew. I fully expect a homer from him every at-bat.
And I plan to lustily boo him if he fails in that regard. 4-for-5 with two doubles, a triple, 3 SBs and 4 runs scored? I'm booing. I want taters!
But seriously, as great as he's been, he's not the NL MVP at this point. Even with Beltran's 7 extra games, superior baserunning, far more value in the field, a ballpark disadvantage, & the league-leading RBI total . . . Phat Albert's the NL MVP. It takes a lot to overcome Beltran's advantages -- as of Tuesday -- of 8 runs, 7 RBIs, 7 2Bs and 10 SBs.
And Pujols brings them: 1 extra 3B, 1 extra HR, and 36 fewer batting outs. Beltran's been dominating. Just great. But in my opinion, he's just not quite in Pujols territory, because he requires far more outs to put up his numbers. But as you can see, he's probably the clear number two guy in the league. Amazing.
Tommy Strikezone: He's not in the zone. I don't wanna pile on, I really hope he turns it around, and I don't know exactly what to say. But this ain't working right now. He's been a BP pitcher for a couple months, and his post-all star break numbers aren't even acceptable: 21 2/3 IP, 30 H, 12 BB, 9 K, 3 HR. 6.65/1.94. And, as if we need to see this horror show more accurately . . . he's yielded 3 unearned runs in those 4 starts, meaning he's been giving up nearly 8 runs per 9 IP since the break.
Glavine's 40 years old and hasn't had a great season in quite a few years now. The Mets need 6 innings of 3 runs or less from him come October. This is a requirement. Just like Pedro got his suspicious one month vacation, it's time for Tommy to have his. Free Pelfrey? How's about Lock Up Tommy. Enjoy your August, big guy, you earned it. See ya after Labor Day.
Cliff Floyd Has Missed 30 Games: No point to make. Just felt I needed to point that out.
The Loathsome Yanks: Abreu and Cory Lidle for 3 retarded dwarfs and a rusty bicycle chain. I hate Steinbrenner. Jerk.
And, yes, that is unbridled envy. What do you want me to say? With a pitching staff giving up runs by the bushel every other start, I'm thinking a .425 OBP guy and a serviceable arm might have been nice. More runs on one side of the ledger, less on the other. That's the idea of the game, right?
I Like The Pitching Portion of Our Trade: Omar, for whom I've had my share of unkind words, did what he had to do. Sanchez is out, he's gone. So Minaya went out and got a major league reliever to replace him. Period. Roberto Hernandez isn't great at this point, and while Duaner's better, he wasn't great either. Sorry, Met fans, but you'll have to admit that. His K/BB was under 2, and his K/9 was falling as the season progressed. He was good, and he had a rubber arm. But he wasn't dominating.
Anyhow, the key the trade isn't Hernandez, who can't be, won't be, and doesn't need to be as good as Sanchez. No, the key to the trade is . . . Aaron Heilman (the same guy who blew it last night. He has to step it up big time and start to throw like he did last year. And so far (or at least before last night's debacle), it's looking good. Before the blown game, since the end of his disastrous June, Heilman compliled 3.44/1.25 on 18 1/3 IP, 17 H, 6BB, 11 K. Not great, to be sure, and the K rate is waaaaay too low. But since the All-Star Break those numbers improve to 3.09/1.29 on 11 2/3, 11, 4, 7. Still not perfect, but they're in Sanchez range and a lot better than the gar-bage Heilman put up in late spring. He pitched well last night. Here's hoping he finds the magic of last year.
I Really Like the Hitting/Fielding Portion of the Trade: I didn't like Nady, for the reasons I mentioned last month: bad glove, poor approach at the plate, little indication of improvement. I like Endy "Every Met Fan's Secret Favorite Player" Chavez, even though I'm convinced he's hitting way, way over his head this year. He's an incredible fielder, only El Rapido has more speed, he's been very clutch so far, and he brings a bag full of fundamentals like bunting, base stealing, hitting the cut-off man, hitting behind the runner, etc.
I don't think Nady could spell "fundamentals."
Sanchez's injury meant Omar couldn't really get top value for Xavier, but that's what happens when your 8th inning guy has his cab rear-ended the day before the trading deadline.
(You think I'm joking, but I'm not. Look at Rule 37 (a) (2) (C) (iii) in the General Manager's Trading Deadline Handbook. Under "Freakish Car Accidents Involving Goggle-Wearing Relief Pitchers." Scroll down to the sentence beginning with, "Under such circumstances, you must move fundamentally unsound corner outfielders, even if you receive less than market value for their services . . ." Yes, that one. Read through it; Omar played it by the book, you gotta give him credit for pulling the trigger)
The Good Stuff: And finally, just to end things on the overwhelmingly positive note I feel it's my duty to bring to you, a few "Staggering Post All-Star Break Numbers From Selected Individual Hitters":
Carlos Delgado: 321/428/625, with 5 2B, 4 HR, 16 RBI and 12 BB in 56 official ABs. Ahhhhh, that feels better.
Endy Chavez: 333/385/500, albeit with only 39 plate appearences.
Oh, and this: he's managed to drive in 9 during that span!
Paul LoDuca: (and, no, these numbers are not a misprint): 371/426/468.
He can go 0-for the rest of the season and improve his career post all-star break numbers.
And finally . . . (you knew this one was coming), The Beltranator: 310/390/732, with 6 2B, 8 HR, 10 BB, 17 R and 28 RBI in 18 games and 71 official at-bats. Now that's some hitting!
Forty-four, folks. Forty-four.
* * *
Thanks for indulging me, folks. Guess what? That was the shortest Mets post I've ever written (and it combined two pieces!). If you're curious -- uh-oh, shameless plug time -- swing on by my blog and check out some of my past Mets entries, as well as my irreverent take on politics, culture, religion, advertising, as well as an occasional appearence by talking elk and wise-cracking public figures.
August 3, 2006
BASEBALL: Jose, Jose, Jose, Jose
Reported: Jose Reyes has agreed to a four-year, $23.25 million contract, with a fifth-year option. Via Always Amazin'. Treeeee-mendous news, and let's hope for the same for Wright. With guys this good, a big-market team can afford to pay its stars more now for the benefit of locking them up and keeping them happy.
The Mets also sent down Mike Pelfrey and replaced him with lefty reliever Royce Ring (who may yet give the Mets more than did the man he was traded for, Roberto Alomar). I've completely lost track of which relievers are up and down . . . Pelfrey showed some flashes but he very clearly is Not Ready for Prime Time yet. Still, if the Mets could get Oliver Perez straightened out, they will have a bunch of options for 2006 between Pelfrey, Bannister, Maine, Perez, Humber and Soler to go with Pedro, probably Glavine, and possibly Zambrano and/or Heilman (though they seem convinced that he's a reliever) as well as the chance to sign Barry Zito.
POLITICS: Right With the Roots
For those of you who, like me, want to see more Republicans (and particularly more new Republicans) elected in 2006, now have a convenient place to donate money to Republican House and Senate challengers - RightRoots, an effort to identify four Senate challengers and 14 House challengers, all in competitive races, endorsed by a group of conservative bloggers. The roster of candidates is here, John Hawkins' longer introduction to RightRoots is here, and Congressman Jack Kingston's challenge to raise $26,000 by Friday is here (we're close). I've already kicked in money to a handful of the House candidates, and will be coming back later for the Senate candidates (hopefully, more will be added to the list after the late Senate primaries in Tennessee and Michigan). And if you want to make a difference, spread the love; Diana Irey is getting more than her share for her race against Jack Murtha, but there are other candidates in lower-profile races who need the money just as badly.
To give some perspective on the four Senate candidates endorsed by RightRoots, here are the latest figures from the National Journal's roundup of FEC filings showing these candidates' cash on hand (in millions) compared to their opponents as of June 30. As you can see, Kennedy faces a well-funded opponent, as will Steele if Cardin wins. And Kean and McGavick are both in danger of being hugely outspent, even when you account for the fact that McGavick can probably pump some more of his own money into the race (remember, Cantwell is a multimillionaire). And in Kean's case, New Jersey races are prohibitively expensive because no TV stations reach the whole state - NJ candidates need to do ad buys in both the NY and Philly TV markets, each of which is very expensive. In short, all four need your help.
Machiavel at Red State notes that Chris Wakim, one of the RightRoots-endorsed challengers, is running against the notoriously corrupt Allan Mollohan.
August 2, 2006
WAR: A Babe In Mass Murderer's Clothing
BASEBALL: Big Papi Walks on Water
You have a better explanation for this? Good research by Allan Wood.
BASEBALL: Programming Note
Sorry, took a while on the Iraq essay below. It may be next week by the time I resume the series on the great disappointments of 2006, especially since I have to keep straight a number of them that changed teams the past week.
In the meantime, discuss: after Pedro and Glavine, now that no additional help has arrived, who would you want starting Games Three and Four of a postseason series? I think at this point my trust in Trachsel is so low I'd go with El Duque (who at least hasn't been terrible and has been known to pitch well in October) and (holding breath) Maine. Which doesn't exactly inspire confidence.
WAR: Democratization, Conservatism, and the Iraq War
Is the Iraq War a conservative project? Certainly those supporting it have generally been conservatives, but some on the Right - see this column by George Will and this essay by Paul Cella at RedState - have argued that the war, and most specifically the use of U.S. military power to support democratization in Iraq, is not true to conservative principles. Now, part of the explanation for this disagreement is that there are different strains of thought within the larger conservative movement; I intend to come back to examine those differences another day, but for now, that's beyond the scope of this essay. Even in the context of the areas in which conservatives can agree, I dissent from the characterization of the war effort as somehow un-conservative. Let me explain why.
The Conservative Principles At Stake
First of all, there are a number of relevant things on which we conservatives agree. We agree on our fundamental view of human nature: that human beings are, as any economist will tell you, fundamentally self-interested; and are, as any Christian will tell you, fundamentally flawed and sinful; and that some subset of people are just evil. Thus, while all people share certain basic desires for personal and family freedom and material well-being, those desires will be manifested in very different ways accross cultures, and will often be offset by less charitable impulses - the drive to dominate, to interfere in a neghbor's business, to envy, hatred, and war. We also agree that human nature itself can not be changed by government, and that it is foolhardy to do so.
At the same time, conservatives recognize that human nature does not operate in a vacuum; that within the range of our natures, the behavior of individuals and peoples are affected by culture - including religion as well as national and tribal cultures - and that culture generally changes only slowly and organically, or at least that when governments try to change culture, the results are usually long on futility and unplanned consequences and short on projected benefits (see, for example, the Great Society's main cultural impact, the undermining of the family among the underclass, especially the urban African-American underclass). As a result, conservatives in general view governmental efforts to change society and culture as misguided folly. Men may change governments, but governments can not be trusted to change men.
At the same time, conservatives do not fetishize democracy. What conservatives want from government, by and large, is classical liberalism - respect for individual rights, including respect for the property rights without which all other rights fall into dependence upon the state, respect for the Rule of Law, and a wide scope for civil society outside of government control. As Jonah Goldberg often notes, conservatives should prefer these values to the governmental process that delivers them - conservatives would be perfectly happy to live under a monarchy that provided such government, and for the most part prefer democracy not for its own sake but because, as Churchill observed, it is the least-bad method of delivering such government of all that have been tried. A corollary to this is that, in our foreign policy, conservatives often argue for patience with states that are liberalizing property rights and other civil rights without granting more political rights, on the theory that a developed civil society will better support such rights (and, indeed, demand them) when the time comes. In execution, after all, democracy is, as Glenn Reynolds is fond of saying, a process, not an event, and one that can put deep roots into the soil only where the soil of a nation's culture and civil society can support the resolution of disputes through the democratic process rather than by Inquisition and blood feud.
What this has traditionally meant for conservative foreign policy is, among other things, a strong aversion to "nation-building" projects that seek to use soldiers to create democratic order out of the chaos of another nation's anarchy, instability or civil war. Perhaps the most notorious example of the failure of nation-building is Haiti, site of innumerable U.S. interventions by presidents from Woodrow Wilson to Bill Clinton and not doing visibily much better after two years under the current U.N. "peacekeeping" force. By contrast, even Ronald Reagan - the best-known proponent of marrying conservatism to a program of promoting democracy and human rights worldwide - almost always limited his support for such movements to arming and funding the enemies of Communist tryanny (even those who were not democrats themselves) rather than sending troops to guard their newly liberated states. George W. Bush famously scorned the idea of nation-building interventions during the 2000 campaign, and has resisted calls for them in places like Liberia. And with good reason: nation-building of this nature is all about changing the hearts and minds of men, to convince them to lay down arms and join the process of peaceful self-government. And governments can not change men.
Democratization in Iraq and Afghanistan
Given all of this wise skepticism about the limits of governmental power to shape societies, how is it that we now have 130,000 troops in Iraq, and many thousands in Afghanistan as well, engaged in a process that looks an awful lot like nation-building? Let us count the reasons:
1. First Victory, then Rebuilding: As I have argued repeatedly before, there is all the difference in the world between sending troops into a country to take sides against an enemy and fight to victory, as opposed to having the nebulous goal of "stabilizing the situation" or some such. In Iraq, as in Afghanistan, we first went in to remove an enemy - Saddam, the Taliban/al Qaeda. Having done so, and having wrecked the country's institutions of government (brutal and oppressive as they were), we naturally took on some responsibility for setting up a new government.
That doesn't explain why we went in, nor why we are still there. But it is the starting point from which all the other distinctions between Iraq/Afghanistan and prior "nation building" ventures flow.
2. Saddam's Regime Presented a Multifaceted Threat To U.S. National Security: I'm not going to re-argue this point here; you can read two of my short summaries here (from before the war) and here (from June 2004). In short, we had plenty of good reasons, not directly related to the goal of democratization, to remove the threat presented by Saddam's regime once and for all, and those reasons are entirely consistent with conservative principles of preserving the national self-interest.
3. Removing Tyranny is Not The Same As Changing The People: As I said: governments do not change men. But our main goal in Iraq is not to use government to change men, but - as conservatives everywhere do - to use men to change governments. All of the aspects of Saddam's threat derived from the nature of his government, and that - rather than the underlying culture of the Iraqi people - was what we sought and seek to change.
4. Democracy Does Have Value For Its Own Sake: Just because classical liberalism is more important for the people of a nation than is democracy does not mean that democracy, in and of itself, has no value. Much in the way that courts of law, when trusted by the people, present an opportunity to resolve disputes between individuals and businesses without resort to violence, democracy presents an opportunity to resolve struggles for power and influence between groups without resort to violence. Politics, to invert Clausewitz's dictum, is war by other means. Certainly a weak democracy will not preclude terrorist groups from operating against a state's neighbors - see Hezbollah's attack on Israel for a classic example - but even a semi-functional democracy creates opportunities for venting of political grievances that, under a tryanny, have no other immediate outlet but violence directed outside the state's borders. In the case of the Middle East in general, we have seen that dynamic repeated endlessly over the past 60 years. Any conservative can tell you that it's easier to change the governments than to change the people, and that's what we've set out to do, so that opportunities exist for the disaffected to use peaceful means to seek redress of grievances. Even if they don't always take those opportunities, those who do will reduce the pool of potential terrorists.
5. Power Politics Compelled Us To Stay After The Invasion: Having removed hostile regimes in Iraq and Afghanistan, we could not well have them replaced by new regimes just as hostile or controlled by our enemies, or we would be ceding territory to the enemy. Yet, being Americans, we have a longstanding skepticism about simply reducing conquered states to permanent colonies. So we pursue the policy that comes most naturally, the one that worked in Japan and Germany and, however fitfully, has worked in less developed places like the Philippines: seek to create a government that will at least not be openly hostile because it is modeled on our institutions, as adapted to the local culture. Admittedly, this involves us more deeply in local civic life than we as conservatives would like, but the history of war teaches us that the expansion of government's role, uncongenial as it is to small-government conservatism and individual liberty, is preferable to half-measures that bring the Dane back to the door tomorrow. Having removed Saddam's regime, could we abandon the field to his henchmen, or to Zarqawi? No. So, we have stayed as long and will stay as long as needed to prevent the remnants of such forces from taking power.
That doesn't mean we stay until all Iraq's problems are solved. Sectarian violence between Sunnis and Shi'ites truly is not our problem, so long as it represents merely the internal battle for control; as noted below, we have reasons for not wanting this to happen, but they are not reasons that will any longer justify asking American soldiers to lay down their lives once we have confidence that we have vanquished the enemy and left in place Iraqi forces that are at least capable of preventing their recurrence.
6. We Are Engaged In A Regional Battle Of Ideas: One of the great misconceptions in the War on Terror is the idea that we are at war only with certain organizations (e.g., al Qaeda), certain national regimes (e.g., Saddam), certain methods (e.g., terrorism), certain ethnicities (e.g., Arabs), or a certain religion (e.g., Islam). All these answers are incomplete, and our victories over the Taliban and Saddam are thus just two fronts in a multi-front regional war. Our goal in this war, yes, is to eliminate transnational, cross-border terrorism and the related threat of nuclear attack on the United States, and we recognize that threat as coming from certain types of regimes as well as certain types of transnational organizations.
But the true enemy is a collection of political ideas, at least insofar as those ideas animate either organizations or national governments. Just as with the battle against Communism, we need to take the fight to the enemy not only on the field of literal battle, but by demonstrating over time the superiority of our civilization and system of government. As with the regional power politics of the thing, I will admit that this requires us to expand our efforts and our amibitions beyond our comfort zone as conservatives. But it is not a matter of aimlessly and fecklessly risking the lives of our soldiers for the fuzzy cause of good government - what we are seeking to do is win, and our efforts must be tailored to that goal.
The ideas we are dealing with, I should add - as well as the methods and organizations they animate - are shared in common by pan-Islamic theocrats like the Sunni bin Laden and the Shi'ite Ahmadenijad and by secular pan-Arabists like Saddam, Arafat and the Assads (all of whom, like the Islamists, absorbed the core elements of their propaganda from the Nazis and/or the Soviets, although the Islamists in particular add their own distinctive religious patina). They support tyranny at home and direct blame at the West (especially the U.S., as the most successful and powerful Western nation) and Israel for their own failures. This problem could never have been solved solely within one country; as Steven den Beste has explained in his incisive "Strategic Overview of the War on Terror", we needed to break open the region's regimes to have any chance of changing the dynamics, even at the cost of having to dig more deeply into the culture than we as conservatives would like. But diminishing the attractiveness of this political ideology, while perhaps not sufficient to fix the region's problems, should be sufficient to restore an acceptable level of national security - just as eliminating Communism in all but a few corners has mainly removed the Communist threat to our security, even though it has not fixed all of the ills of the nations of the old Soviet empire or its satellites in Southeast Asia and Central America.
Thus, the concept of "Iraq the Model" in the aftermath of the removal of Saddam: demonstrating to the Arab and Muslim worlds that a different system of political organization could successfully operate in a country both Arab and Muslim and seated at the heart of the Arab world. An ambitious venture, yes, but not an aimless one like Somalia or Haiti. The stakes in Iraq are tied to the broader stakes in the war. Conservatives who value our security should recognize its importance, therefore - as a means to that end.
POLITICS: Best Scrappleface Post Ever
Former U.S. President Jimmy Carter today downplayed rumors that he's on "the short list" of potential replacements if surgery fails to restore the health of ailing Cuban dictator Fidel Castro.
August 1, 2006
BASEBALL: Essence of Derek Jeter
BASEBALL: Maddux Mustache
OK, I just had to link to this post just for the Greg Maddux baseball card. I'd forgotten Maddux ever had that cheesy mustache. Although reading that anyone "was weaned on a steady diet of Bill Simmons during his formative years" just makes me feel very, very old.
LAW: No License To Leak
The United States Court of Appeals for the Second Circuit has held, by a 2-1 vote, that the New York Times can not hide behind the First Amendment in resisting a grand jury subpoena aimed at the Times' 2001 disclosure of upcoming searches and asset freezes to the targets of those searches, two foundations that were raising money for terrorists. The court also held that even if there is a common law reporters' privilege, it is overcome by the "compelling governmental interest" in not alerting targets of legitimate law enforcement investigations to impending searches. The decision is a victory for Patrick Fitzgerald and the Bush DOJ over a newspaper that can't seem to resist the temptation to use leaks to hobble efforts to battle terrorism.
Read More »
As the court described the Times' shameful conduct:
A federal grand jury in Chicago is investigating how two Times reporters obtained information about the government's imminent plans to freeze the assets and/or search the offices of Holy Land Foundation ("HLF") and Global Relief Foundation ("GRF") on December 4 and 14, 2001, respectively, and why the reporters conveyed that information to HLF and GRF by seeking comment from them ahead of the search. Both entities were suspected of raising funds for terrorist activities. The government alleges that, "[i]n both cases, the investigations -- as well as the safety of FBI agents participating in the actions -- were compromised when representatives of HLF and GRF were contacted prior to the searches by New York Times reporters Philip Shenon and Judith Miller, respectively, who advised of imminent adverse action by the government." The government maintains that none of its agents were authorized to disclose information regarding plans to block assets or to search the premises of HLF or GRF prior to the execution of those actions. The unauthorized disclosures of such impending law enforcement actions by a government agent can constitute a violation of federal criminal law, e.g., 18 U.S.C. § 793(d) (prohibiting communication of national defense information to persons not entitled to receive it), including the felony of obstruction of justice, 18 U.S.C. § 20 1503(a).
The Times has refused to cooperate in the investigation of Miller, Shenon and their sources. The court concluded that no privilege exists to bar investigation of their conduct:
The grand jury investigation here is focused on: (i) the unauthorized disclosures of imminent plans of federal law enforcement to seize assets and/or execute searches of two organizations under investigation for funding terrorists, followed by (ii) communications to these organizations that had the effect of alerting them to those plans, perhaps endangering federal agents and reducing the efficacy of the actions.
The court stressed the role the reporters played in this fiasco:
[T]he reporters were not passive collectors of information whose evidence is a convenient means for the government to identify an official prone to indiscretion. The communications to the two foundations were made by the reporters themselves and may have altered the results of the asset freezes and searches; that is to say, the reporters' actions are central to (and probably caused) the grand jury's investigation.
As a result, there is no basis for resisting the investigation - although the court does seem to hold out hope that the Times might be able to resist other investigations down the road:
We see no danger to a free press in so holding. Learning of imminent law enforcement asset freezes/searches and informing targets of them is not an activity essential, or even common, to journalism. Where such reporting involves the uncovering of government corruption or misconduct in the use of investigative powers, courts can easily find appropriate means of protecting the journalists involved and their sources.
(Footnote omitted). Dissenting opinion here.
« Close It
BASEBALL: Perspective on the AL East Race