"It gets late early around here." - Yogi Berra
July 29, 2005
BASEBALL: The Rivalry
There's a long, long history between the Hated Yankees and the Red Sox, and as any baseball fan can tell you, over that time the Yankees have tended to outplay the Sox down the stretch run, even when the two teams appear to be evenly matched.
OK, we know that. But by how much? Let's look at the numbers. I went through every season since the Yankees' 1903 arrival in New York in which both teams were in some sense still in the pennant race - i.e., both were within 10 games of first, or one was and the other was just a few games behind them - on July 31, and then compared their records from August 1 through the end of the season. Overall, that amounted to 38 seasons.
The net result? In the 38 seasons, the Sox were 2130-1676 (.560) through July 31, and the Yanks were 2190-1615 (.576). But from August 1 on, the Sox teams slowed to 1255-1070 (.540), while the Yankees heated up to 1360-968 (.584). Overall, the Yankees gained ground on the Sox, in absolute terms, 23 times, while the Sox gained ground 15 times (oddly, not once did they share the same post-August 1 record; the closest seasons were in 1904, 1948 and 2000, when the two teams were separated by a half game down the stretch). The biggest gains for the Yankees were 1952 (+14.5 games), 1985 (+13.5 games), 1937 (+12.5 games), and 1955 and 2001 (+10 games). The biggest gains for the Sox were 1973 and 1991 (+12.5 games), 1916 (+9 games), 1972 (+6.5 games), and 1949 (+6 games). The longest number of consecutive seasons in the study when the Yankees gained ground: 8, from 1934 to 1945. Longest for the Sox: 4 from 1986-91.
Of course, the Yankees, on average, started ahead. 1937 is probably the season in the study closest to the edge: the Yanks had a 9 game lead on the Sox, and were never really in any danger of not winning the pennant. Even in relative terms, though, the effect held up: the Yankees did better than the Sox relative to their winning percentage through 7/31 in 25 of 38 seasons.
Let's break the numbers out by groups of seasons:
Seasons in study: 1904, 1910, 1916, 1934, 1935, 1937, 1938, 1939, 1944, 1945, 1948, 1949, 1950, 1951, 1952, 1955, 1970, 1972, 1973, 1974, 1977, 1978, 1979, 1982, 1983, 1985, 1986, 1988, 1989, 1991, 1993, 1995, 1999, 2000, 2001, 2002, 2003, and 2004.
Drezner, as you would expect, has some thoughts on the House's passage of CAFTA. Among other things, he quotes the Washington Post on Bush's personal appeal to House Republicans:
Underscoring the importance that Bush attaches to the pact, he put his prestige on the line by making a rare appearance with Vice President Cheney at the weekly closed-door meeting of the House Republican Conference. Bush spoke for an hour, lawmakers said, stressing the national security implications of CAFTA, which are rooted in the concern that growing anti-American sentiment in Latin America would flourish if the United States refused to open its markets wider to the nations that negotiated the pact.
BLOG: Sweet Home Easthampton
Apparently, Easthampton, Massachusetts has had a little trouble putting up highway signs. Via War Liberal. (Pictures of the signs here).
July 28, 2005
BASEBALL: That Troubled Red Sox Outfielder
Lyford has some thoughts about the Red Sox' problem child. Read the whole thing.
BLOG: Unmanning The Post
Michele says that "I think Command Post has run its course. We might find some way to keep it alive, but for the most part, it's on the way out." Which is sad, as TCP provided a valuable service as a breaking-news source during the Iraq invasion, key moments in the 2004 election, and other times when new news was flying fast and furious. I hope the site sticks around to be used again, for the next big event.
That said, I haven't posted over there myself in some time, nor do I even read the site that much anymore, and the traffic numbers don't lie:
The main purpose of TCP after the invasion was to provide a one-stop-shop for news on the war on terror and the war in Iraq. Now, though, there are many more blogs covering those issues with depth and focus (Winds of Change comes to mind), and having a group blog dedicated to news aggregation where most of the bloggers are not even using it as their primary blog just doesn't seem to be cutting it any longer. If it is farewell, it's a sad day, but also a reminder that the only constant on the web is change.
WAR: Tony the Tiger
"September 11 for me was a wake up call. Do you know what I think the problem is? That a lot of the world woke up for a short time and then turned over and went back to sleep again," he said.
By contrast, we have London Mayor "Red Ken" Livingston, who has already resumed his slumbers:
"If at the end of the First World War we had done what we promised the Arabs, which was to let them be free and have their own governments, and kept out of Arab affairs, and just bought their oil, rather than feeling we had to control the flow of oil, I suspect this wouldn't have arisen."
Yeah, blame Churchill and Lloyd George, not the guys who get on buses with bombs. And Livingston's historical analysis is, in any event, off the mark. The Saudis have never been ruled by the West. Iraq was a League of Nations mandate after the Ottoman Empire collapsed, but became independent in 1932. The places that were longer under the British flag were Palestine/Jordan/Israel and Pakistan/India, neither of which had any oil (and India's doing fine). Same with Syria, which was French (of course) until 1946. Egypt, also oil-less, acquired some independence in 1922 and full independence after WW2. Afghanistan has never successfully been ruled from outside (or inside, for that matter). The fact is, the Muslim and Arab worlds have never been as heavily influenced or controlled by Europe and the United States as were many parts of Africa, Southeast Asia, or Latin America.
And for those who would dig further back than World War I for origins, if you trace the battle between Islam and the West to its original roots, you have to ask who invaded Spain, who invaded Greece, who overran the Byzantine Empire, who got as far as Vienna and would have put the whole of Christian Europe to the choice of the sword or the Koran. We in the West don't brood over those initial assaults, but they do serve as a counterpoint to the notion that only the West has ever sought to impose its will and vision on its neighbors.
POLITICS/LAW: Tea Leaves and the Court
First up, Alberto Gonzales declares that the Supreme Court "is not obliged to follow" Roe v. Wade. On one level, this is a truism: the Court has reversed prior precedents many times before, more often than not at the instance of the more liberal members of the Court, and if a majority of the Court decided to overturn Roe, there's nothing anyone could do to stop them. I admit that the Court has never really enunciated a consistent or principled standard for when to overturn a constitutional precedent - in fact, it's hard to identify even a single Justice who's been thoroughly consistent on the question, and such decisions are usually bitterly divided - but clearly there are few situations more appropriate for overruling a precedent than when a prior decision (1) was wrongly decided, (2) is not at all tied to the text of the Constitution, (3) was clearly not intended at the time the relevant constitutional provision was enacted, (4) resulted in taking an issue out of the hands of elected branches of government, and (5) has resulted in endless controversy and repeated litigation.
That said, Gonzales' statement is interesting as much for why he said it. There would seem to be at least three motives at work for saying this now:
1. The White House wants to reassure nervous conservatives that John Roberts will take a similar tack;
Next up, a fascinating WaPo article looking behind the scenes (as far as they were permitted) at how Bush tabbed Roberts. Read the whole thing; I'll just add here my impressions of what the article means:
*Andrew Card was the guy in Roberts' corner (as every successful nominee needs a patron in the process). Which shows that Card has real power. Which, in turn, suggests that Card was a source for the article.
*Then again, David Vitter also comes off as a player, a freshman Senator who got his candidate (Edith Brown Clement) into the final round. This will play well at home. Could also be a deliberate White House effort to do a favor for Vitter, painting him in this fashion.
*Dick Cheney interviewed everyone, if you were wondering if he was engaged in this process.
*Harvie Wilkinson talked to the WaPo, Clement didn't. This suggests to me that Clement thinks she's still on the list for the next opening, but Wilkinson doesn't and is glad it's known he was considered.
*Card thought Justice Thomas would love the Roberts pick. O'Connor and Rehnquist obviously do. Bush is being savvy picking a guy the other Justices already like. (Which suggests that Bush might well have taken Roberts' old boss Ken Starr, who shares many of the same traits and has more experience, had Starr not become politically radioactive as a result of being Independent Counsel). Again, the White House may be trying to signal that Roberts is a conservative by noting that Card thought Thomas would like Roberts.
*Justice Thomas attends black-tie dinners for visiting heads of state? I did not know this.
*Bush didn't even need to interview Larry Thompson. This suggests that the president's comfort level with Thompson is such that he'll get tapped for something else big again, especially if Gonzales leaves the Justice Department at some point.
*We get confirmation that outside conservative pressure really mattered in stopping Gonzales. Something for conservatives to remember.
*The detainee issue is one that Bush is focused on. Thus, he appears to have seen Roberts' joining a ruling upholding the Administration's policy as a key sign that he was a guy who would stick to his conservative guns. I suspect war-on-terror issues matter more to Bush in the long run than social issues, given Bush's intense focus on the war.
POLITICS: Leaky Vessel
Jon Henke, on the Plame leak:
If a White House official 1) consciously knew that Valerie Plame was a covert agent 2) whose identity ought to have been protected, and 3) that White House official initiated a leak of her name to the press 4) in order to disclose her identity, then he ought to be removed from his position and prosecuted.
Even leaving aside the issue of prosecution - which I've about beaten to death at the moment - I'd pretty much agree with this, and I'd add that the White House should fire anybody who meets (1) and (2) and initiated or participated in a leak, and that (4) is only marginally relevant if people in the White House gave out her name, knowing her status. It's actually amazing - at least if you're not familiar with how politics works - how much heat has been expended on the issues of who can be prosecuted and what regulations require and what the president said he should or should not do, as opposed to the central question of what is bad enough conduct to justify firing someone in the first place. And to me, if somebody was just negligent with the identity of a non-covert agent and accidentally revealed that she'd been covert in the past, that's a blunder, but it's not something you organize a lynch mob over. Listen to former Director of the National Security Administration and former Deputy Director of Central Intelligence Admiral Bobby Inman, who at one time was nominated by Bill Clinton to be Secretary of Defense:
[The leaking of Plame's identity] is still one I would rather not see, but she was working in an analytical organization, and there's nothing that precludes anyone from identifying analytical officers. I watch all the hand-wringing over the ruining of careers… there are a lot of operatives whose covers are blown. It doesn't mean the end of their careers. Many move to the analytical world, which is where she already was. It meant she couldn’t deploy back off to Africa, but nothing I've seen indicated that was possible in the first place.
Inman also notes the pervasive leaking from the CIA directed at the Bush Administration during the 2004 election, about which the cheerleaders of the Plame investigation can muster no outrage.
July 27, 2005
BASEBALL: Sore at Soriano
Fact one: The Mets are last in the National League in OBP at .320 (the Phillies and Marlins are first at .346 each).
Fact two: Since his arrival in Texas, Alfonso Soriano's batting line on the road is as follows:
Conclusion: Yes, I'd take Soriano; his power and speed would still be an upgrade on Miguel Cairo, and I'd expect him to hit a little better than the numbers above. But I wouldn't give up much of value for him - nothing on the order of, say, Lenny Dykstra, Roger McDowell and Tom Edens or Jeff Kent and Jose Vizcaino.
BLOG: Quick Links 7/27/05
*Gerry Daly has a must-read work of original research on John Roberts' Supreme Court arguments and the Justices he was able to win over to his side in non-unanimous cases.
*I do not find this reassuring.
*More bad thoughts on the Deuce Bigelow sequel; it's not just the left-wing politics that bother me about Hollywood, it's the stupid left-wing politics. And they wonder why box office is down.
*I found Captain V through a link on NRO; check out this post on the CIA's use of cover:
I don't recall who first offered up the idea, but it is a good one: Don't let people who are destined for lives under cover near the DC area (CIA isn't the only agency that has people under cover). It invites carelessness and complacency.
*More on the Ruth Bader Ginsburg precedent.
July 26, 2005
POLITICS: Vote Early
If you're interested in who the GOP should nominate in 2008, head over to Patrick Ruffini's place to vote in his straw poll. Over 8,000 votes cast already! The candidates on his rather limited ballot are Rudy Giuliani, George Allen, John McCain, Mitt Romney, and Bill Frist (the tally so far should not encourage the Frist camp).
LAW: Innocent Until Proven Guilty
I had promised, in responding to this Mark Kleiman post on a potential prosecution of Karl Rove (or others) under the Espionage Act, to respond to this argument:
Surely Rove would have had "reason to believe" the identity of a CIA officer "could be used" to the injury of the United States or the advantage of a foreign nation.
The various caveats in my last post apply here as well regarding the extent of my research and the uncertainty of the facts we now know, or think we know. I'm mainly discussing the law and its potential applications to different fact patterns.
On the more general point, I've already explained here and here why I disagree; in short, Plame's identity as a CIA employee was only problematic insofar as it had the potential to reveal current or prior covert status. It would clearly be relevant to a jury's determination of such an issue whether, for example, the manner in which someone like Rove learned of Plame's CIA employment; if he learned it from reporters, that would make it harder to prove that he had any reason to believe that the information was secret, closely held by the government and not to be divulged to reporters.
Before we go further, let's note what we're dealing with here: an effort to replace traditional criminal-law rules with a zero-tolerance approach to criminal law that acts on autopilot and shofts the burden of proof to the defendant. Recognizing the reality that this case would be very difficult to sell to a jury in light of all the (apparent) facts and circumstances, Kleiman and others pushing the scandal have consistently searched for ways to eliminate most of the facts from the picture and reduce the charges to a simple, strict-liability syllogism in which if the defendant said certain things to certain people, criminal intent is conclusively presumed, and jail follows without any need to examine who knew what and when, or what harms were foreseeable or actually followed from the disclosure.
And so, we get the latest such effort: the contention that Rove can be presumed in advance to have known Plame's covert status by virtue of having signed an SF-312 disclosure agreement (the agreement in PDF form is here; a letter from Henry Waxman pushing this theory, also in PDF form, is here).
Leon H has laid out some of the problems with applying the SF-312 as Waxman suggests, specifically the fact that it really doesn't give the signer any notice that any particular information was ever classified in the first place. The more basic problem is that use of this form simply proves too much: it would allow for a strict-liability approach to prosecutions that is directly at odds with the express language of the Espionage Act as enacted by Congress. As I noted in the first half of my post, the Espionage Act has a strict "willfulness" requirement. Presumably, everyone subject to potential prosecution under the Act has signed one of these forms. Now, I don't question that that would make the form relevant in every prosecution. But if Kleiman's and Waxman's argument is followed to its logical conclusion, the government would never again need to prove the willful disclosure required by the statute; it could just presume the guilt of the defendant as to one (and arguably the most critical) element of crime by pointing to a boilerplate form that made no reference to the particular information at issue in the case.
I am extremely skeptical that a court would accept such a reading of the SF-312's impact on the Espionage Act, and doubly so because courts have (as discussed in my prior posts) been concerned since the 1940s about the broad sweep of the Act and its chilling effects on public discourse. The Supreme Court, in Gorin v. United States, 312 US 19 (1941), held:
[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established. Where there is no occasion for secrecy, as with reports relating to national defense, published by authority of Congress or the military departments, there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.
Gorin, 312 U.S. at 27-28 (emphasis added; footnote omitted). As I've noted before, the statutory intent requirement has been watered down a bit since then. But Gorin's holding should give pause to anyone seeking to bulldoze the existing intent requirement of the statute, as the Supreme Court and subsequent courts have stressed that that requirement is what keeps the statute from being found unconstitutionally vague. And that requirement is all the more necessary as the volume of classified information grows, as it inevitably does during wartime. A competent criminal defense attorney could easily argue that the statute, if construed as Kleiman and Waxman suggest, has eliminated that key safeguard and can not constitutionally be applied to criminalize any and all negligent disclosures of information that the defendant did not know or have specific reason to know were classified.
MORE: There's also been intermittent talk about perjury/false statements charges. Tom Maguire asks for help here, which I may get back to in part later. While such charges are always a concern in a large white-collar investigation of this nature, I have yet to see a credible explanation of what they would be. I certainly agree with Byron York that a mere difference in recollection of two witnesses is not enough to rest a perjury charge on, especially when the contemporaneus documents would appear to support Karl Rove's account and when the discrepancy is not material to the investigation. (And can we please not hear a peep from anyone who defended Clinton calling for prosecutions for perjury and obstruction? I mean, really). I'll get deeper into some of the elements when we have a little more tangible fact pattern to deal with. (As Maguire points out, none of the various discrepancies noted so far seem to amount to much).
July 25, 2005
LAW/POLITICS: A Name Is Not A Document
I'm overdue to get back to some of the legal loose ends on the Valerie Plame case, including the last bit of my response to Mark Kleiman on the Espionage Act. I see Kleiman half-heartedly pitches a John Dean column discussing the application of 18 USC 641:
I am referring to the prosecution and conviction of Jonathan Randel. Randel was a Drug Enforcement Agency analyst . . . working in the Atlanta office of the DEA. Randel was convinced that British Lord Michael Ashcroft . . . was being ignored by DEA, and its investigation of money laundering. . .
[T]he London Times said that . . . it had DEA documents showing that [Lord] Ashcroft was index-numbered on the DEA files, a measure that, it said, is taken only when serious suspicions exist.
Dean doesn't address whether the government contended otherwise, but leave that issue aside for now. Here's how Dean describes that indictment:
Count One is based on the general theft statute - with information, once again, alleged to be the "thing of value" stolen. Count Two relies on a statue adopted in 1994 designed to protect information in government computers, where most government information now resides. The government charged that Randal "knowingly and with an intent to defraud" the government, exceeded his authorized use of the DEA computer by pulling information about Lord Ashcroft.
Now, let's look at Section 641, which punishes:
Whoever embezzles, steals, purloins, or knowingly converts to his use or the use of another, or without authority, sells, conveys or disposes of any record, voucher, money, or thing of value of the United States or of any department or agency thereof, or any property made or being made under contract for the United States or any department or agency thereof; or
The obvious problem with this is that Randel apparently made off with documents. Nobody in the Plame case is alleged to have handed over to the press any classified documents. That doesn't end the inquiry under other statutes, but under Section 641 I can't see how you could prosecute anybody for stealing just by passing along a name. This is particularly the case because language like "embezzles, steals, purloins, or knowingly converts to his use or the use of another" is generally read to require taking unauthorized title to property. (This is even before we get into the all-important intent question. I remain convinced that it will not be possible to successfully criminally prosecute anyone who did not know they were passing along the name of a current or former covert agent).
BASEBALL: Mets, Random
*I wasn't a big fan of the Kris Benson contract, but you certainly can't complain about the results so far. His wife has even produced more than the expected comic relief.
*I know I've made this point before, but Carlos Beltran this season is hitting .388/.653/.423 in the late innings of close games, .320/.569/.374 with men on base, .295/.547/.351 with runners in scoring position, .353/.569/.450 with runners on base and two outs, and .458/.958/.438 with a man on third and less than two outs. Complain, if you will, that Beltran has not hit enough, in general. But complaints that Beltran hasn't risen to the occasion in clutch situations are absurd. His problem has been the opposite of the A-Rod issue: he's come up with the big hits when needed, but he hasn't done enough to put games away in the first few innings.
*I've never seen a systematic study of the issue, but Marlon Anderson's remarkable success this year is further support for the idea that slap hitters who make a lot of contact are uniquely well-suited to pinch hitting duty.
*I was having the discussion again about Jeff Kent as a Hall of Fame candidate, a subject I intend to return to in more detail later. But here's the amazing thing: when the Mets traded Kent for Carlos Baerga, Kent had done nearly nothing to make himself a Hall of Fame candidate, and Baerga was washed up. Today, Baerga is still playing - and in the time since he proved himself decisively over the hill, Kent has been able to amass an arguable Hall of Fame career. Amazing.
*As frustrating as Jose Reyes has been - and doubly so, Willie Randolph's failure to understand that Reyes is not a leadoff man - consider that the average NL #1 and #2 hitters are batting .274/.285/.336 and .266/.396/.327 (and both of those OBP figures are up quite a bit in the past two weeks). So, the Mets aren't the only ones having trouble getting guys on base.
*Doug Minky's numbers, projected to 600 at bats: 29 homers and 72 walks. For all the concern about bringing in a 1B without any punch, that hasn't been the problem; it's his .227 batting average that's been killing him. Since June 1, Minky is batting .265/.515/.333. More of that, please.
POP CULTURE: A New Low
When I think that Hollywood can go no lower in terms of bad taste or unoriginality, the movie business finds a way to surprise me. But it's a rare treat when both are accomplished in one fell swoop, as they were this weekend when I started seeing billboard ads for a sequel to "Duece Bigelow: Male Gigolo."
Locusts, famine and pestilence to follow.
(On a similar note: I accept that the new "Bad News Bears" movie is raunchy and not at all suitable for chidren . . . but is it really necessary to advertise the not-suitable-for-chidren parts on baseball broadcasts?)
July 22, 2005
BLOG: Damn You, Glenn!
So, I'm out of commission all day after having a tooth pulled, and I'm feeling like I have a good excuse - what with the painkillers, loss of blood, etc. - for neither working nor blogging today. And then I see that Instapundit had dental surgery today too and still managed to get 16 posts up. You're makin' me look bad!
POLITICS: Year of the African-American?
Remember how 1992 was the Year of the (liberal/Democratic) Woman? Think the media will buy 2006 being the Year of the (conservative/Republican) African-American? Let's list the races:
*Michael Steele is all-but-openly running for an open Senate seat in Maryland, and the Lt. Gov. is likely to get the GOP nomination.
*Detroit City Councilman Rev. Keith Butler looks like he could be the GOP frontrunner to challenge Debbie Stabenow, a potentially vulnerable Democratic Senator in Michigan.
*Former Steeler Lynn Swann is gearing up to challenge Pennsylvania Governor Ed Rendell, and Swann's high name recognition could make him the GOP frontrunner.
*Ohio Secretary of State Ken Blackwell is expected to be a serious contender for the governor's mansion in 2006, and is a favorite of conservatives looking to shake up the scandal-ridden establishment in the faltering GOP stronghold.
*NY Secretary of State Randy Daniels appears to be considering entering the wide-open race (assuming George Pataki doesn't run again) to challenge Eliot Spitzer for Governor of NY.
*To top it off, a conservative African-American Democrat, Harold Ford, will be running for an open Senate seat in Tennessee.
Now, there are few hardier perennials in political commentary than the vain hope that the GOP can break through with black voters. And all six of these guys are varying degrees of long shots, although none of them besides Daniels seems like a certain dead loser. These will mostly be hotly contested races, and black Republicans will be in the thick of several of them. How many of the five Republicans will get the nomination and win more than 10-12% of the African-American vote? It could be a trend to watch, even if the media winds up having to be dragged kicking and screaming to acknowledge it.
July 21, 2005
For what it's worth, Tom Glavine's 269th career win yesterday pushes him ahead of Jim Palmer on the all-time list.
UPDATE: Let's update this chart through July 20:
* - And counting
Pedro, of course, is still just 33.
POP CULTURE: Harry Potter's Sixth
I just finished the new Harry Potter book last night. It's well-done and entertaining once again, although the book in general hewed rather more closely to the formula of the prior books than I would have expected, given how far along we are into Voldemort's terror war (and at the risk of overdrawing the parallels, Voldemort's organization is a classic terrorist group, working in secret and spreading fear through random and/or unexpected violence). A more detailed review below the fold, but be warned that there are MAJOR SPOILERS, so don't click through if you haven't read the book yet but still intend to (in fact, one reason I pressed on to finish the book rather quickly was the fear that I'd hit major spoilers on the web, having already encountered one of them quite accidentally some months ago - click here for details). Now for the SPOILERS - READ ON AT YOUR OWN RISK:
Read More »
*It did seem to me that, for the second book in a row, things were unaccountably quiet for most of the school year, given the state of open war involved. I know Voldemort was having people murdered regularly, but it does seem that you'd expect more of him than one major operation per year, always timed near the end of the school year. Is he really still so understaffed that he has to place his entire battle plan for the whole year in the hands of Draco Malfoy?
*By contrast, presumably the seventh book will break out of the mold, since Harry, Ron and Hermione will not even be at Hogwarts, which will put an end to the scenes of Quidditch, new Dark Arts teachers, exams, etc. (it's pretty clear that Rowling has run out of things to do with Quidditch matches). It will be interesting to see how many of the other characters come with them - I rather like a lot of the supporting characters, notably Neville and Lupin - or whether Rowling tries to strip the story back down to a few characters.
*Presumably, the last book will be structured around the hunt for the remaining four Horcruxes, which will give it a structure familiar to readers of fantasy novels. (Rowling's overall universe may be original, but her plot elements are always recognizable from other sources). Of course, Rowling has to rely on the plot device of Voldemort being both superstitious and predictable in his choice of the identity, location and number of Horcruxes.
*It took me about a half hour of bending my brain last night, but I'm pretty sure I figured out who the "R.A.B." who had already destroyed the Horcrux is, which if I'm correct should put me ahead of the game for the last book even before there are any official spoilers leaked. After futilely running mentally through characters with last named beginning with B - Borgin, Burke, Bagman, Bell, Blotts, Bones, etc. - and thinking which of them would have had a falling out with Voldemort (recall that only his supporters would refer to him as "the Dark Lord") it hit me that it really had to be Sirius' brother, Regulus Black. We know (or at least have been told) that Regulus was a Death Eater who repented but was fairly shortly thereafter killed. Plus, of course, it would be both heartening and ironic to discover that Harry had been helped along on his quest by the brother Sirius spoke of as being no good.
*The various romantic angles in the book were a bit much: some of the romantic storylines were amusing at times, but this book really had too many of them. The Harry/Ginny thing felt forced, as did the book-closing revelation of a Lupin/Tonks romance.
*I felt rather betrayed by the revelation that Snape had been a bad guy all along. First of all, the whole "Snape's on the good side but is a jerk and hates Harry" and "the kids always suspect Snape but they still have much to learn about people" plotlines gave the story some complexity that was lost here. And Snape and Draco both joining forces openly with Voldemort raised again the question of why they keep Slytherin House in business, if nearly everyone associated with it becomes a bad guy (I had at least thought that Sirius was a Slytherin, given his heritage, but Rowling even made a point in this book of noting that he'd been in Gryffindor). But the second chapter of this book also raised the tantalizing possibility that Snape had been genuinely playing both sides for some time. Having him turn out to have been on the bad side for years undid some of what Rowling had done in the prior books.
*My enjoyment of the book was colored by having seen the "Dumbledore dies" spoiler. I was glad he was given a timely sendoff at the end; for a while I thought he'd die mid-book and leave the whole "Riddle's background" investigation unfinished. For young readers, at least Rowling gives ample foreshadowing, between references to his age and blackened hand and the whole buildup with him drinking the poison at the cave. Dumledore's death serves two necessary plot elements - like Obi-Wan and Gandalf, his death leaves the hero to finish the task alone, without the aid of the bad guy's equal; and, his death underlines the point he had long made about the need to not fear death. Of course, it was nonetheless sad to see his last act be the betrayal of Snape, whom he had trusted.
*Maybe I'll return to them another day, but there seemed to be all sorts of parallels in mood and plot to Revenge of the Sith.
*The opening scene with the Prime Minister was funny, but it will have to be cut from the movie version - partly because the best parts were his internal dialogue, and partly because on film you can't finesse the "do we make him Tony Blair or not" aspect, which will be a distraction. Overall, the scenes with Scrimgeour underline Rowling's contempt for politicians and government, as they demonstrate that the more hawkish Scrimgeour is really not much of an improvement over the denial and appeasement of Fudge.
*You do sometimes have to stop and wonder why these people, Harry in particular, just never learn. I mean, anybody had to realize the possibility that the Half-Blood Prince was either Snape or Voldemort (in fact, the clues pointed to the latter), and Harry was even reminded early on by Ginny that he shouldn't trust books without knowing their sources. I mean, doesn't he at least know enough now not to try out potentially lethal spells on people without finding out what they do?
*The Harry/Ginny breakup was straight out of the ending of Casablanca.
*This link has some good quality speculation about Regulus Black, the location of the missing Horcrux and the possibility that we still don't know what Snape's really up to.
*On the other hand, the longstanding ambiguity about whether Snape is part vampire seems to have been laid to rest.
*The door is still open for Pettigrew to play a Gollum-like role, after Harry spared him, if Rowling wants to be that unoriginal.
STILL MORE: This comment thread at Michele's picks up some more interesting speculation, including the possibility - which I'm more convinced of now that I think about it - that Snape killed Dumbledore to keep his cover, and that Dumbledore knew it was coming. Lyford reaches the same conclusion, with supporting evidence.
« Close It
July 20, 2005
LAW: Privileged Documents
Beldar makes two interesting but inherently conflicting points about John Roberts (via Krempasky at RedState). First, touching on a point I've made before, he predicts that the Democrats will use improper requests for documents as an excuse to delay the nomination (what I've referred to previously as the Coca-Cola strategy):
Judge Roberts has spent much of his career as a public servant - first, as a lawyer whose clients have most frequently been the President and the United States, and more recently as a judge. Using this fact, I guarantee you that opponents of this nomination will (as they did with Miguel Estrada) manufacture a bogus dispute by demanding executive-privileged documents that Dubya won't and can't turn over, and nor could any President without forever damaging our federal separation of powers system. Senators are no more entitled to seize, publish, and dissect John Roberts' privileged advice to the Executive Branch than they are entitled to seize, publish, and dissect his correspondence with other judges on the DC Circuit; but that won't stop them from trying.
Beldar's point is well-taken; you will recall that all the living Democratic Solicitors General signed a letter opposing the effort to obtain privileged internal documents from Estrada's time with the SG's office. The issue is an institutional one, not a partisan tack taken by the Bush Administration. But, having explained why those documents can't properly be released to the Senate, Beldar nonetheless argues that they have validly formed the basis of Bush's own impressions of the nominee:
Through documents and through first-hand opinions of solid and reliable conservatives who've worked closely with John G. Roberts - in his capacity as a private counselor, and not just a public advocate - Dubya does have full access to what Judge Roberts has thought and said when he's been at his most candid, under pressure and entirely outside the public spotlight.
Now, Beldar is right on this count as well. But I can understand why the Senate will find this fact frustrating, because it means that the President (any President) will have a built-in informational advantage over the Senate in evaluating former Executive Branch attorneys (the advantage might be reversed if, like Steven Breyer, the attorney had counseled a Senator or Senate Committee).
A related point arises for questions the judge will not want to answer before the Senate. (As Leon H at RedState points out, Democrats like Joe Biden took the position in 1993 that then-Judge Ginsburg did not need to answer those questions). A shrewd Senator would press to know what the nominee told the President, which at least would foreclose the nominee from being wholly evasive. Although once again, it's unlikely that the President asked terribly specific questions, knowing this hazard was out there.
LAW: It's Roberts
I don't have that much to say, just yet, about John Roberts, but a few random early observations:
*Any pick like this involves balancing the nominee's merits in the job (philosophy, brains, skills, experience) with his/her political assets that will help with confirmation. Roberts is, like past Bush appointees such as Dick Cheney and Don Rumsfeld, clearly more of a merits pick. He lacks many of the credentials of other short-list candidates: not a woman like Edith Jones or Edith Brown Clement or Mary Ann Glendon, not a published academic like Michael McConnell or Glendon, not a Latino like Emilio Garza or Alberto Gonzales, not a military veteran like Garza, not from a politically useful state like Clement, not a politician like John Cornyn, not a long-time judge like Michael Luttig, Garza, Jones or Clement, not a former trial-court judge like Garza or Cornyn or Clement, not a famously gifted writer like Luttig or McConnell.
Still, Roberts can't be accused of lacking experience - his many cases briefed and argued before the Supreme Court is perhaps the best credential you can bring to the job. And as for the political benefits, the two main ones are that Roberts is apparently well-known and well-liked within DC and that he was recently confirmed with bipartisan support. (A benefit on the merits of the nomination is his relative youth, at age 50). You could tell watching Bush that he thinks he has the votes already.
*Some conservatives may fear another Souter from a guy with a relatively light paper trail. But rememeber: Souter was a recluse from New Hampshire, not well known to the people who vetted him for the job. Roberts, like his former boss William Rehnquist (whose resume and temperment he resembles greatly) and like Clarence Thomas, is a long-time DC insider (he's been in Washington for 25 years), so his views and leanings are likely well-known, if not widely published.
*Personally, I particularly like the fact that his wife, Jane Sullivan Roberts, is a 1976 graduate of my alma mater, Holy Cross (both Roberts and his wife are Catholic, a fact some Catholic groups expect to be held against him), and is active with alumni groups (she sits on the school's Board of Trustees, along with Clarence Thomas, class of '71). According to her bio she practices space and technology law. She has also been active with Feminists For Life, an anti-abortion group. I would be lying if I said I didn't think that would influence Roberts' thinking on abortion (more here and here).
*Flipping around the dial last night (yes, the "dial" is an anachronism), the unhappiest guy looked to be aspiring CBS anchor John Roberts, who had a definite look of "like I haven't had enough trouble getting people to remember who I am."
MORE: I see from the Wall Street Journal that Roberts joined last week's DC Circuit opinion in Hamdan v. Rumsfeld, authored by Judge Randolph, which handed the Administration a major victory regarding the legal status of detainees at Guantanamo. Hamdan, involving a detainee who admits he was Osama bin Laden's personal driver for five years and who was captured on the battlefield in Afghanistan in November 2001, held that:
1. Under a 1942 Supreme Court decision, federal courts do have the power to hear habeas corpus appeals brought by detainees at Guantanamo who have been tried by military courts (Opinion, at 6-7);
2. The President did not violate separation of powers by establishing military tribunals for detainees (Op. at 7-9);
3. The Geneva Convention, as an international treaty, does not create individual rights enforceable by lawsuits in federal court (Op. at 10-13);
4. Hamdan was not covered by the Geneva Convention because he was neither a lawful combatant on behalf of a sovereign state that signed the Geneva Conventions, nor a combatant in a civil war (Op. at 13-16). The court specifically deferred to President Bush's determination that the nation is at war with Al Qaeda, not just with the Taliban government of Afghanistan (Op. at 15-16).
5. Hamdan's challenge to the military court's procedures were not challenges to its jurisdiction and thus would anyway not be properly brought under the Geneva Conventions (Op. at 16-17).
6. Military commissions for detainees were not required to be conducted under the Uniform Code of Military Justice procedures used for courts-martial (Op. at 17-18).
7. Military commissions for detainees complied with the terms of Army Regulation 190-8 (Op. at 18-19).
This actually raises an interesting side question, albeit one that may have a simple answer: whether Roberts would have to be recused from reviewing his own decision below. I believe Supreme Court Justices in the past have not recused themselves from such decisions - I think there may have been some cases that Justice Stevens was involved in on appeal from Seventh Circuit panels he had sat on, for example. But I could be wrong; I'll have to look into it.
July 19, 2005
LAW: Espionage and Rove, Revisited
Mark Kleiman reasserts his contention that Karl Rove could and should be prosecuted under the Espionage Act, a position I have greeted with some skepticism here and here. Kleiman challenges me to respond to his post; I accept that challenge. First, however, a few preliminaries:
1. Kleiman and I are not as far apart as we may at first appear on this point. I agree with him that the text of the Espionage Act and the caselaw under the statute make clear that it covers leaks to the press, not just disclosures directly to foreign governments. I also agree that, given how broadly the statute is written, if the facts are something like what we have been told (a point I'll get to in a minute), a creative and aggressive prosecutor could finagle an indictment against Rove and possibly many other of the government and media figures involved here. And such an indictment might even succeed in surviving a motion to dismiss.
(A word on motions to dismiss: at the motion to dismiss stage, you ask the Court to throw the case out on the theory that even if everything in the indictment is true, the government hasn't alleged the elements of the crime. Unlike in the context of civil lawsuits, such motions are rarely granted, because the government does not need to lay out the facts in the same detail that a civil plaintiff often must).
Most prosecutors, however, prefer to bring indictments only when they have sufficient evidence for a conviction, not just a creative legal theory to get them an indictment. (Sadly, this isn't true of all prosecutors, but most). My analysis assumes that Rove won't be indicted if the obstacles to a conviction, and affirmance of that conviction on appeal, would appear to a reasonable prosecutor to be prohibitive.
2. I'm glad to see that Kleiman has taken to heart my caution about the hazards of reading statutes without reference to the caselaw. As I noted in my last post on this topic, my own examination of the caselaw here is not necessarily complete, and I would look deeper into this question if I was representing a client facing exposure under the Espionage Act.
3. I caution again that we don't know all the facts - and we probably "know" some facts that aren't true. Way too many people on the Right and on the Left are leaping to conclusions based on incomplete, selective and probably self-serving leaks from anonymous sources. I refuse to get into an argument about the facts at this juncture. Still, often in the law you have to start mapping out your defenses before you know all the facts, and so I will discuss some of the possible factual angles based on the latest reports as I understand them, with attention to what factual issues are likely to be particularly problematic for the prosecution. To quote Albus Dumbledore, from the lastest Harry Potter book: "From this point forth, we shall be leaving the firm foundations of fact and journeying together through the murky marshes of memory into thickets of wildest guesswork."
To summarize my prior posts, which you should read before you get into this tangle, the three principal issues in an Espionage Act prosecution would be (1) whether the disclosed information was "information relating to the national defense"; (2) whether the person making the disclosure "ha[d] reason to believe" that the disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation"; and (3) whether the person making the disclosure nonetheless "willfully communicates. . . the [information relating to the national defense] to any person not entitled to receive it".
Let's walk through the analysis provided by Kleiman (I'll refer to this as his analysis, although it is passed on to him by a reader) and keying off the Fourth Circuit's 1988 opinion in United States v. Morison:
Based on statements by Matthew Cooper and Rove's lawyer Donald Luskin we know that on July 8, 2003, Rove possessed information relating to the national defense, specifically the fact that "Joseph Wilson's wife works for the CIA on weapons of mass destruction issues."
We part company almost immediately. I know of no reason why Plame's identity as a CIA analyst would satisfy the statutory requirement of "information relating to the national defense", and Kleiman doesn't explain why it would. On the other hand, if she had been a covert agent recently enough that the disclosure of her identity would compromise covert intelligence-gathering sources, that would likely satisfy the requirement. Where we appear to currently stand is the gray area that would leave two questions to the jury: whether disclosing her identity as an analyst was "relat[ed] to the national defense" because (a) it would inevitably lead to revelation of her prior covert status and (b) whether her prior covert status was sufficiently recent and/or sufficiently connected to ongoing operations that that covert status was still "relat[ed] to the national defense".
(Was Plame still a covert agent, or very recently returned from being one? I have no way of knowing, but I've seen nothing to suggest that).
Also, an aside: it would be funny if Rove's lawyer was Don Luskin, but he's a different guy.
Not saying Wilson/Plame's actual name is irrelevant if Rove identified her as a CIA officer - by informing Cooper that Wilson's "wife" worked for the CIA, Rove was identifying Valerie Wilson/Plame - Wilson's wife - as a CIA officer.
In general, I would agree with this. Plame's identity would lead quickly to her name, especially since (a) Joe Wilson had been an ambassador and thus was likely a known figure in international circles and (b) her name was on his online bio. On the other hand, to the extent that her CIA identity was known around DC and only more publicly broadcast when Bob Novak put it in the newspaper, the addition of the name does add to the government's proof that "this wasn't just public information," and that proof would look weaker to the jury if the name wasn't used.
Rove's lawyer's statements, Matthew Cooper's statement about what he told the grand jury, and the email from Cooper to his editors at Time show that Rove "willfully communicate[d]" the identity of a CIA officer to a reporter.
In this context, "willfully" means "intentionally," that is, Rove was not forced to communicate the information, and he did not communicate the information while talking in his sleep - he intentionally communicated the information, he intended for Cooper to receive the information, and therefore he "willfully communicated" the information.
(Emphasis added). This is where we disagree completely on the law. What Kleiman has quoted here is the standard for acting "knowingly" or "intentionally". But the statute says "willfully," and in a criminal statute, that means more than just conduct that is non-accidental, or even conduct that is negligent; it means that the government must prove beyond a reasonable doubt that the defendant knew he was breaking the law. As the United States Supreme Court explained in Bryan v. United States, 524 U.S. 184 (1998):
As a general matter, when used in the criminal context, a "willful" act is one undertaken with a "bad purpose." In other words, in order to establish a willful violation of a statute, "the Government must prove that the defendant acted with knowledge that his conduct was unlawful."
With respect to the . . . categories of conduct that are made punishable by [the statute discussed in Bryan] if performed "knowingly," the background presumption that every citizen knows the law makes it unnecessary to adduce specific evidence to prove that "an evil-meaning mind" directed the "evil-doing hand." More is required, however, with respect to the conduct in the fourth category that is only criminal when done "willfully." The jury must find that the defendant acted with an evil-meaning mind, that is to say, that he acted with knowledge that his conduct was unlawful.
(citation and footnote omitted). See also 1 Sand et al., Modern Federal Jury Instructions - Criminal, Instruction No. 3A-3, at 3A-16 (2000) (jury should be instructed, "'Willfully' means to act with knowledge that one's conduct is unlawful and with the intent to do something the law forbids, that is to say with the bad purpose to disobey or to disregard the law."). And bear in mind that Bryan was describing the more lenient of the two types of "willfulness" the government is required to prove; in some heavily requlated areas, the Supreme Court has required proof that the defendant knew he was violating the specific statute he was indicted under.
Moreover, as I noted in my prior post on the subject, this is precisely how the jury was actually instructed in the Morison case as well as previous prosecutions under the Espionage Act, instructions that were expressly approved by the Fourth Circuit and would likely be given here:
All four of these counts as I have referred to them in my description of them to you used the word wilfully. An act is done wilfully if it is done voluntarily and with the specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law. With respect to the offenses that are charged in the indictment specific intent must be proved beyond a reasonable doubt before a defendant can be convicted. Specific intent, as that term suggests, requires more than a general intent to engage in a certain conduct. To establish specific intent the government must prove that the defendant knowingly did an act which the law forbids. It is the government's burden to present affirmative evidence of the required unlawful intent. Again, in determining whether or not the intent existed you may look at all the facts and the circumstances involved in the case.
Morison, 844 F.2d at 1071 (emphasis in original). Indeed, given the breadth of the Espionage statute, the Supreme Court and later courts have emphasized that the main reason for finding the Act not to be unconstitutionally vague is its stringent requirement of criminal intent.
If - as appears quite possible from the things we've thus far been told - Rove didn't know that he was dealing with the identity of a covert agent, and received the information not from classified sources but from one or more reporters, the prosecution would be saddled with an almost impossible task in convincing a jury* that Rove knew he was illegally disclosing classified information.
It should not be overlooked that the Morison case involved starkly different facts as far as the defendant's knowledge that he was trafficking in classified information: the defendant, an experienced naval intelligence officer, worked in a "vaulted" workspace (i.e., only people with "Top Secret" security clearance allowed); he had already clashed with his employers over his side job working for Jane's Defence Weekly; he pilfered from someone else's desk satellite photos of a Soviet naval installation; he cut off the parts of the photos warning that they were "Top Secret"; and, when confronted by investigators, he falsely denied any involvement in sending the photos. In short, Morison provides no support whatsoever for Kleiman's syllogictic reading of the statute as supporting a conviction for mere negligence in the handling of information that could lead to the disclosure of classified information.
Unfortunately, I'm out of blogging time for the morning, so I'll come back to Kleiman's third point later, including the related issue of whether the burden of proof could be shifted to the defendant in an Espionage Act prosecution on the basis of having executed an SF 312 Non-Disclosure Agreement (also discussed here by Leon H). On his fourth point:
A reporter for TIME Magazine is surely "not entitled" to receive classified information regarding the identity of a CIA officer.
We are in agreement.
*- A Virginia jury, anyway. A DC jury might be another matter.
July 18, 2005
WAR: Saddam and Abu Sayyaf
A question for my left-leaning readers, who I can usually count on to be vocal. I am inspired by this Pejman post disputing this Kevin Drum post, both of which discuss the Saddam-Al Qaeda relationship mainly at the level of conclusions from reports. But the relationship is, to my mind, better understood by the conclusions that can be drawn from specific facts.
In reading Stephen Hayes' book "The Connection," one of the more striking and telling facts, to me, was the expulsion of an Iraqi embassy official named Hisham Hussein from the Philippines following an October 2002 suicide bombing by Al Qaeda-linked Abu Sayyaf terrorists at a cafe/bar frequented by US soldiers from a nearby base. The bombing killed one American soldier and wounded another. Phone records and surveillance tied the Iraqi official directly to Abu Sayyaf leaders (including records of calls on a captured cell phone that was to have been used for another bombing). And one Abu Sayyaf leader claimed that Iraq had been financing them to the tune of about $20,000 per year.
Now, you can argue that one bombing and one dead soldier do not make a casus belli, and that Abu Sayyaf was, in and of itself, a pretty local actor. But Hayes' presentation of this incident (echoed in other reports) makes pretty clear that the connection to Abu Sayyaf demonstrated the Saddam regime's willingness - even after September 11 - to continue to support, finance and associate with Al Qaeda-linked militant Islamic suicide bombers whose only conceivable connection to Saddam's regional interests was their attacks on Americans wherever they might be found. And that willingness - denied so heatedly by so many bloggers and pundits on the Left - was, after, all, at the very core of the case for war with Iraq.
So here's the question. So far as I can tell, no liberal blogger or pundit has ever attempted to grapple with Iraq's involvement in financing and associating with Abu Sayyaf. (This mostly fact-free Media Matters broadside against Hayes, for example, mainly attacks Douglas Feith and Rupert Murdoch). Have I missed something?
BASEBALL: Time To Listen
As I have stressed repeatedly (see here and here), today's off day is decision day for Mets management. Given the need to gain ground on the NL East, I argued that the Mets needed to go at least 11-6 against the NL East in their now-concluded stretch of playing 17 of 23 against their own division, and at least 3-3 in the other six games. As it turned out, they went 10-7 against the East and 4-2 in the other six, for the same
The Mets now won't see their own division again until August 30. It's possible that they could hang around, maybe gain a little ground in the interim, and then get blazing hot in September. That possibility is fairly distant, and they shouldn't fool themselves into surrendering anything of real future value to chase it.
Then again, the value of staying in the race is nothing to sneer at. Even if the Mets win 83 games, they can say they've posted their first winning record in four years and their best record since winning the pennant in 2000, and that would be something positive to build on for next year.
More to the point, the team isn't bursting with guys with a high ratio of present trade value to future value. Piazza's the top "old guy who's contract's up," but (1) the dropoff in 2005 to Ramon Castro is severe, and (2) Piazza's hitting has been mediocre enough that he wouldn't draw a lot of value. Floyd and Cameron would, but they're also signed for one more year apiece (I believe) at reasonable enough prices. Looper is at a low ebb right now, and might be more useful in the future.
As a result, perhaps the best posture for the Mets entering the deadline is to listen to offers - I wouldn't hesitate to deal any of those three guys - but not feel the need to trade them. In other words, rather than letting the desire to win now panic you, use it to convince people they need to make it worth your while to drop out of the race.
That said, there are guys they should dump. Glavine still has his moments, but the Mets should not want to pick up his option for next year. If a contender is willing to part with anything at all, they should move him. Ishii should be given his walking papers if no one will take him, and Graves should be sent back to AAA. Matsui would be addition by subtraction at this point, although no one would be interested in him for the 2005 stretch run.
Fans always like to be buying or selling at the deadline, and for the right price the Mets could sell. But if the right price doesn't come, they should know when to hold em.
July 15, 2005
BLOG: Quick Links 7/15/05
*Go vote in Mac Thomason's tournament to determine the most annoying ESPN on-air personality!
*Dr. Weevil notes the loathsome Juan Cole's insistence on using the term "guerilla" to describe what any sane person would call terrorism:
When you're firing mortars at a market full of unarmed civilians, or murdering unarmed barbers, you are a not a guerrilla, or even an unlawful combatant, but a common murderer. And when you do it to terrorize the general population, as is quite obviously the case here, you are a terrorist. Why can't Cole use that word?
This is of a piece with the BBC's decision to declare the term doubleplus ungood. I didn't necessarily think it was accurate for the Bush Administration to call the insurgents "terrorists" when they first started attacking US troops, but given that the bulk of the attacks these days are aimed at Iraqi civilians (indeed, if they weren't, we could leave without much consequence), the term obviously fits.
You know, I understand why there can't be universal agreement on a truly comprehensive definition of terrorism, but there's no morally defensible reason why there can't be common agreement on a minimum definition of terrorism: when non-regular combatants (i.e., no uniform, no accountable chain of command, etc.) direct violence at primarily civilian/non-combatant targets, that's terrorism, period. (When the same violence is directed by regular combatants in a declared war between combatant nations, that's a different story, albeit in most cases equally objectionable - different, because the offending nation and its own populace can be held directly accountable). People like Cole just can't bring themselves to condemn terrorism because that would undermine the noble and treasured endeavor of suicide bombings against Israeli civilians.
*You would think that this case is more important and interesting than the Aruba Police Blotter. And this may have been missed by the media altogether, and may not lend itself to any obvious solution, but that doesn't make it any less tragic.
*Tom Elia says rooting for both the Cubs and the White Sox is a sign of the sickness of our age.
*The list of things potentially (a) classified or (b) harmful to national security that have been leaked through the NY Times in the past five years would be so long as to defy enumeration; Powerline notes a prominent and egregious example. Yet, somehow, only one riles.
*When they get to the movie of "Namor the Sub-Mariner," it's time for Hollywood to just throw in the towel.
*The Pope thinks the Harry Potter books offer "subtle seductions that work imperceptibly, and because of that deeply, and erode Christianity in the soul before it can even grow properly. This was written by then-Cardinal Ratzinger in apparent approval of a book arguing that the Potter books (1) "blur the boundaries between good and evil and impair young readers' ability to distinguish between the two" and (2) "glorify the world of witches and magicians at the expense of the human world."
With all due respect to the Holy Father, the latter charge is silly - that's the nature of fantasy and sci-fi stories, even those written by ardent Catholics like Tolkein, and isn't a problem because in the real world there are no wizards - and the former charge just doesn't withstand contact with the actual books, which paint a very clear contrast between good and evil in all its forms, including cowardice, prejudice, snobbery, malicious gossip, jealousy, paranoia, overweening ambition, and joy in inflicting pain.
*John Cole has the latest on Abu Ghraib and Gitmo, with some news reports that bear very careful reading before you jump to conclusions.
*They've dropped baseball and softball from the Olympics. Sad, but Olympic baseball was really never a main event in the baseball world. There's something to be said for my older brother's view that no sport should be in the Olympics if winning an Olympic gold medal isn't the biggest event on the sport's calendar.
*I missed this whole Jeter-A-Rod fight story when it happened, as well as the 100th anniversary of Moonlight Graham's cup of coffee.
BASEBALL: Brewing Success
Following yesterday's look at teams that have departed from their preseason EWSL numbers, I decided to take a look at the Brewers, who are #2 on the list of teams furthest from their EWSL, and first compared to their Pythagorean record thus far this season; EWSL is prorated to 88 games (through the Break):
WSAB is a measure of marginal Win Shares against the number expected of a replacement-level player with a similar amount of playing time. I included it here so you can see which guys are falling short of their EWSL due to poor quality play vs. lack of playing time. I included three players here (Weeks, Fielder and Krynzel) who I hadn't projected in the preseason but who have contributed. Of course, adding three extra players means the team should come in a bit ahead of its preseason numbers.
You can see a substantial improvement in the lineup, which only promises to get better as Hall, Weeks, Branyan and Cirillo (!) soak up the playing time previously given to the departed Spivey. Aside from Hall and Weeks, Brady Clark and Carlos Lee have been the big improvements, although in Lee's case I'm a little puzzled, as he's having your basic Carlos Lee season. I'm less optimistic that Clark can sustain quite this level - he's 32 and never played regularly until last year - but even so, he's been quite a find and should continue to help.
Now to the pitchers:
The extra share for the pitchers is smaller, in large part because Ben Sheets has been hurt and because Gary Glover has underperformed some very low expectations. It's hard to see Victor Santos as part of the solution when he's 2-9, but he's pitched well. Capuano and Turnbow, the rookie closer, have been the big steps forward.
Check out Al Bethke's roundtable on the Brew Crew's first half for a more in-depth look.
POLITICS: Novak to Rove, Who To Novak?
Well, today's big story will obviously be the report (see here and here) that Karl Rove testified to the Plame grand jury that he learned Plame's identity from Bob Novak and not from official channels. Of course, if that's true it would make it nearly impossible to prosecute Rove, since access to Bob Novak is not classified. It also makes it more likely that Rove neither knew nor had reason to know that Plame was or had been a covert operative; if there's one thing that's clear in all this, it's that you would never successfully prosecute anybody who only knew that Plame worked for the CIA if they didn't know that she had been a covert operative. The NY Times report says Rove said that he didn't know:
The person who has been briefed on the matter said Mr. Rove neither knew Ms. Wilson's name nor that she was a covert officer.
(More challenging is the question of what consequences would ensue if Novak told Rove she was covert; I'm still mulling that one over).
Of course, Rove may not be out of the woods just yet. The news report could be mistaken as to what he told the grand jury; there may be evidence contradicting his testimony; or, like anyone involved in a grand jury investigation, he could still be prosecuted if he committed perjury or obstruction of justice or lied to investigators or destroyed documents, regardless of any underlying crimes (ask Bill Clinton, Martha Stewart or Arthur Andersen).
And it still leads back to the question: who told Bob?
UPDATE: As usual, Tom Maguire has comprehensive thougts on the matter.
SECOND UPDATE: Cliff May points out that if you actually read what Bob Novak wrote, and what followed, Plame's status as a covert or clandestine agent was never revealed, only her CIA employment; the fact that she'd been undercover was first revealed by David Corn of The Nation, most likely based on information provided by Joe Wilson himself. Needless to say, regardless of whether you think this should be a scandal, this is a point that would be of enormous significance in any criminal prosecution. May also reprints an email exchange with Corn over the subject, in which Corn defends himself by saying that he was speaking of Plame's undercover status hypothetically.
July 14, 2005
LAW: The Espionage Act
Tom Maguire, after eviscerating some spin from Josh Marshall on the Plame story, asks for legal help:
[Mark]. Kleiman has argued that, rather than pursuing a prosecution under the Intelligence Identities Protection Act, Mr. Fitzgerald might try for a conviction under the Espionage Act. We have met skeptics. But let's save Mr. Kleiman from tearing his hair out in frustration - some enterprising reporter might want to check with a few lawyers and see whether that statute might apply. (Of course, if there were any lawyers in the blogosphere, they might want to join in, too. . . )I've expressed my skepticism on this before (see the post Maguire links to), but of course that was without reading the caselaw. Being a lawyer myself with some experience reading criminal statutes, I did a bit of digging to see what else I could find. Now, with limited time on my hands and no paying client to do the kind of thorough online research I would otherwise do, my thoughts here are preliminary, not comprehensive (all I did was read a few cases listed in the US Code Annotated). (Standard disclaimer: this post is not legal advice). So, someone willing to spend some time and money on more thorough research may come to different conclusions. But, for what I can offer based on that limited review, I came up with a few preliminary thoughts on the Espionage Act. First, the as I noted in the post linked above, the key issues in an Espionage Act prosecution are:
a. Whether the information disclosed by Rove or others about Valerie Plame was "information relating to the national defense." (The National Defense requirement).
Factually, of course, this depends on what was disclosed - Rove apparently told Cooper that Joe Wilson's wife worked for the CIA. Is that enough? Does she need to be named (the name could be found online once you knew she was Wilson's wife)? Do you need to disclose that she had been covert?
b. Whether the person making the disclosure "ha[d] reason to believe" that the disclosed information "could be used to the injury of the United States or to the advantage of any foreign nation". (The Scienter requirement).
1. As to the National Defense requirement, there is caselaw holding that information relating to US intelligence-gathering can be covered by the statute. In Gorin v. United States, 312 US 19, 29 (1941), the Supreme Court held that a jury could find that this requirement was satisfied by the the defendant's disclosure to the USSR of US Naval Intelligence reports on Japanese activities in the US:
As they gave a detailed picture of the counter-espionage work of the Naval Intelligence, drawn from its own files, they must be considered as dealing with activities of the military forces. A foreign government in possession of this information would be in a position to use it either for itself, in following the movements of the agents reported upon, or as a check upon this country's efficiency in ferreting out foreign espionage. It could use the reports to advise the state of the persons involved of the surveillance exercised by the United States over the movements of these foreign citizens. The reports, in short, are a part of this nation's plan for armed defense. The part relating to espionage and counter-espionage cannot be viewed as separated from the whole.
The Fourth Circuit reached a similar conclusion in United States v. Truong Dinh Hung, 629 F.2d 908, 918 (4th Cir. 1980), permitting the conviction of individuals who disclosed, to the Vietnamese government, information including the "names of United States sources for intelligence about the Vietnamese government."
While both the Gorin Court and Judge Learned Hand of the Second Circuit in United States v. Heine, 151 F.2d 813, 815 (2d Cir. 1945), expressed alarm at the First Amendment implications of an overly broad definition of the National Defense requirement, it seems clear that - unless there has been subsequent caselaw calling Gorin and Truong Dinh Hung into doubt - information bearing upon US intelligence-gathering methods can, at least in some cases, be covered by the statute.
(Were I representing a defendant charged under these circumstances, I might also try to argue that the Espionage Act is either superseded by, or that the National Defense requirement is subject to the definitions in, the Intelligence Identities Protection Act, given that the latter statute is both subsequently enacted and more specifically targeted to the protection of identies of intelligence agents.)
2. Gorin expressly held, at 312 U.S. at 31-32, that the ultimate question of whether the prosecution had satisfied the National Defense requirement was for the jury to decide. Thus, in a prosecution of Rove or other Bush Administration officials, unless the Court concluded as a matter of law that the information disclosed was too removed from the national defense to sustain an indictment, the defense would be permitted to argue to the jury that, given Valerie Plame's employment as a desk-bound Langley-based analyst, and the amount of time since she had worked in the field, there was simply no substantial "relati[on]" between her status as a CIA employee and the national defense. As I noted in my prior post, a creative defense attorney might even find a way to argue to the jury that the relation to national defense was further undermined by her involvement in Joe Wilson's campaign to spread public falsehoods about his own reports to the CIA during a time of war.
Of course, you should immediately see one of the practical problems that would face Patrick Fitzgerald in using the Espionage Act: while the Intelligence Identities Protection Act has a strict definition of "covert agent," the more broad-ranging definition of the National Defense requirement in the Espionage Act would require the prosecution to put on evidence, in open court, of the relation between Plame's identity and activities important to intelligence-gathering, evidence that might itself compound the harm involved. While a politically-prominent defendant would want to tread softly on forcing such proof into the open, and while there are sometimes procedures used to protect against public disclosure, the mere risk that a prosecution could compromise intelligence-gathering efforts would be a disincentive to bring charges under the more open-ended statute.
3. The Scienter requirement is the most troubling one for the prosecution. Gorin held that the Scienter requirement saved the statute from the challenge that it was unconstitutionally vague:
[W]e find no uncertainty in this statute which deprives a person of the ability to predetermine whether a contemplated action is criminal under the provisions of this law. The obvious delimiting words in the statute are those requiring 'intent or reason to believe that the information to be obtained is to be used to the injury of the United States, or to the advantage of any foreign nation.' This requires those prosecuted to have acted in bad faith. The sanctions apply only when scienter is established.
Gorin, 312 U.S. at 27-28 (footnote omitted). The statute was subsequently amended to require only reason to believe that the information "could be used," not "is to be used," to the harm of the US or the benefit of a foriegn power. At first glance, that sounds pretty broad, but as I noted before, this yet again brings into the debate the issue of whether the person making the disclosure had reason to believe that there could be actual harm flowing from the disclosure of Plame's identity, a matter that appears to be hotly disputed. Certainly, a criminal conviction would not be sustained on the basis of mere slippery-slope conjecture, but would require evidence that the defendant actually had reason to believe that such harm could potentially ensue in the specific case of Valerie Plame.
Moreover, the Fourth Circuit in Truong Dinh Hung, 629 F.2d at 919, and United States v. Morison, 844 F.2d 1057, 1070 (4th Cir. 1988), stressed a different point: that the statute requires that the disclosure be made "willfully." As the Morrison court noted, that required proof of the "specific intent to do something that the law forbids. That is to say, with a bad purpose either to disobey or to disregard the law." (The Truong Dinh Hung court approved a similar instruction, which also defined bad faith as a "design to mislead or deceive another. That is, not prompted by an honest mistake as to one's duties, but prompted by some personal or underhanded motive."). And the Supreme Court has only gotten stricter in the years since 1988 on the definition of "willful" conduct in the criminal context, sometimes even requiring proof that the defendant knew of the law in question. A prosecution based on carelessness - by someone who knew that Plame worked for the CIA and never bothered to check whether she had ever been covert - would, I suspect, go nowhere fast, given the willfulness requirement.
4. A number of courts - most notably the Heine court, and more recently Morison - have limited the statute's reach to information that "ha[s] not been made public and [is] not available to the general public." This seems like it is not a requirement of strict secrecy. In any event, it would seem that this requirement, as with some of the others, would open the door to litigation over the degree of secrecy of Plame's identity and the extent of efforts undertaken to preserve that secrecy. See United States v. Enger, 472 F. Supp. 490, 508 (D.N.J. 1978) ("In the course of the proofs, evidence bearing upon the issue of secrecy will be relevant, for, as the Court said in Gorin, '[w]here there is no occasion for secrecy, . . . there can, of course, in all likelihood be no reasonable intent to give an advantage to a foreign government.'"). See also United States v. Dedayen, 584 F.2d 36, 39-40 (4th Cir. 1978).
5. The Fourth Circuit held, in Morison, 844 F.2d at 1070, that the Espionage Act covers information leaked to the media, so that would not be an obstacle (although in an interesting side note, the First Amendment challenges raised there by the Washington Post and other newspapers led Judge Harvie Wilkinson to file a concurring opinion worrying over those concerns).
SECOND UPDATE (10/17/05): Since the indefatigable Minute Man keeps linking back to this post, I should point you to followup posts here and here addressing further legal aspects of an Espionage Act prosecution, as well as the earlier post (here) discussed above. Together, the four posts offer my overview of the significant legal issues.
BASEBALL: EWSL At The Half
While we're stopped for the All-Star Break, I thought I'd look at the projected standings I did before the season (see the NL standings here and AL here) by comparison to the actual standings at the break. I'm presenting the teams in order from the teams most overachieving compared to their EWSL standings to those falling furthest off the pace (I've prorated the EWSL wins to the number of games each team has played so far):
Overall, the divisions come in as follows: AL Central, +28; NL Central, +7; NL East and AL West, -3 each; AL East and NL West, -16 each; AL overall, +7; NL overall, -12; MLB in total, -5, which means that some of the differences here can be explained just by rounding. On average, AL teams were 5.21 games off their EWSL records, NL teams 4.25 off, MLB as a whole, 4.7.
That's not a great record, but it's too early even now to declare it a big failure. Some teams will always deviate from even the most perfect pre-season estimates, due to trades, unforeseeable injuries, unexpected rookies.
No surprise that the biggest underachievers have been the Giants, since the pre-season EWSL standings were predicated on them having Bonds for half the season, and he hasn't arrived yet.
Also unsurprisingly, several of the teams that are out of whack with their EWSL numbers tend to be the same teams that are way over or under their Pythagorean projections - in other words, their players are playing closer to expectations than their records would suggest. Conspicuous examples include the White Sox (+16 vs. EWSL, +6 vs. Pythagorean record), Nationals (+6/+8), and Mariners (-5/-3). But there are counterexamples as well: the Brewers are +9 vs. EWSL while being -4 vs. their Pythagorean record, the Braves (+5/-4), the Indians (+7/-2), and the Diamondbacks (0/+7). On the whole, the average distance between the EWSL and Pythagorean records is 4.7 games - just exactly the same as with actual records.
I was surprised to discover that EWSL had consistently failed to grasp how bad the really bad teams would be - all the moreso because I thought before the season that the method was being unduly harsh on the Royals, Rockies and Devil Rays. Not hard enough, apparently.
Anyway, I may take a look at some of the big outliers, and I'll have to go back at the end of the year and see how EWSL did, and why, and whether there are further refinements to the method that will improve its predictive value, or whether its shortcomings as a predictor are just the inherent limitations of using past performance to predict the future.
July 13, 2005
POLITICS: Crybaby Chuck?
Is it just me, or has Chuck Schumer given the GOP a golden opportunity? You've doubtless seen Schumer's latest demand, from the floor of the Senate, on the White House:
"For consultation to work, and we all want it to work, the president should suggest some names and get the opinion of those of us in the Senate," he said. The senator also suggested the president convene a summit at Camp David or "a dinner at the White House" to privately discuss the nomination.
Now, during the Clinton years, Newt Gingrich was ruthlessly lampooned by the NY Daily News as a "Cry Baby" over the charge that the 1995 government shutdown was partly motivated by Newt's pique over not getting a good seat on Air Force One. That was doubtless an oversimplification, but isn't Schumer opening himself up to similar charges here when he inevitably leads the charge to filibuster Bush's nominee for the Supreme Court: Schumer wanted Bush to wine and dine him before announcing the nominee, and now he's pitching a fit and shutting down the Senate because he didn't get his ego-stroking dinner invitation. Is it really such a good idea to hand your opponents such an obvious talking point?
You know, it's easy to get cynical about the All-Star Game when you've seen so many of them and seen the way they are treated as something of a circus, with players run in and out of the games to get everyone an at bat. I've almost reached the point where watching the game is a chore, something I do as much as anything to make sure I don't miss something memorable, in case something memorable happens (like the year they ended the game in a tie - that was about the most excitement we've had in an All-Star Game the past 15 years).
So it was quite a different experience last night watching the game with my son. It was his 8th birthday, so we let him stay up late to watch most of the game, and he and I set up on the living room floor watching the All-Stars and building Star Wars-themed Lego sets; does it get better than that? Once I explained the concept of the game, he really got into rooting for the National League, and kept complaining "that's not fair" when, say, Carlos Beltran hit into a double play. (I had some difficulty explaining the difference between David Wright and Cliff Floyd being the Mets best hitters this year vs. Beltran and Piazza starting the All-Star Game, but that's another issue; at least the DH rule meant that I didn't have to explain why Albert Pujols wasn't starting the game even though he's the best player in baseball right now).
Anyway, some other random thoughts that came to me:
*I guess the Carlos Lee for Scott Podsednik deal has worked out about as well for both sides as could possibly be imagined, with Lee leading the NL in RBI and S-Pod (OK, never mind that one) leading off for the team with the best record in baseball.
*I had to explain to my wife why Kenny Rogers was booed, and that this was for different reasons from why he would be booed at Shea Stadium, which is for for different reasons from why he would be booed at Yankee Stadium.
*Fox is premiering a new sitcom called "The War at Home" . . . on September 11? Please tell me that's a mistake.
*I was retelling the story about how Bret Saberhagen's wife gave birth during the 1985 World Series and didn't tell him until after he'd pitched. Then it hit me: Saberhagen was 20 then, and that was 20 years ago, so the kid is now the same age Saberhagen was at the time. That really made me feel old.
*Ex-Mets and ex-Mets farmhands in the All-Star game: Jeff Kent, Jason Bay, Melvin Mora, Kenny Rogers, Jason Isringhausen. Please don't ask me what they got in return for any of those guys.
July 12, 2005
POLITICS: The Two-Nominee Strategy
Erick at Red State asked the question whether Republicans have a better chance of confirming conservative Justices if two are nominated at once, rather than one at a time. Let me explain in a little detail here why I think we do.
Let's start with a trenchant analysis (as always) by Patrick Ruffini, which I'm quoting here at some length to make a point. Ruffini argues that Republicans need to come out swinging, as Ted Kennedy did with Robert Bork in 1987, on precisely how the two parties' different views of judging will lead to different outcomes:
*Complaining about ideological opposition to a nominee is about as effective as whining about your opponent running a negative campaign. *Lauding a judge's qualifications is a soporific exercise. On paper, John Kerry was "qualified" to be President. But he was dead wrong on everything that mattered, and he was hammered relentlessly for it.
Ruffini then offers an example of what a bare-knuckled, Kennedy-style argument would look like:
What kind of America do Democrats want by opposing President Bush's judicial nominee? The kind that the judges they prefer are trying to make for us:
In contrast to this, Ruffini offers the positive vision of conservative judging:
How do we "strict constructionists" frame our "agenda?" As an anti-agenda. As one that opposes the imposition of any particular worldview through the Courts. As a simple sentiment, animated by faith in the body politic, and borne of 229 years of democracy in America:
I agree with most of this, particularly the juxtaposition of bad results flowing from liberal judging with a more general discussion of the positive philosophy of conservatism of ensuring that all judicial decisions are rooted in the legitimacy of popular sovereignty, whether through the current democratic process or the prior approval of express provisions in the Constitution.+ Conservatives generally do well when arguing about ideas and badly when we argue inside-baseball "fair play" type issues, on which it's too easy for the media to play referee and side with the Democrats. On the other hand, I do think that some of the procedural points will at least be worth making: an ideological long-term filibuster of a Supreme Court nominee would be wholly unprecedented, and Republicans will need to make the case that the nominee, whoever it may be, is well-qualified to the job.
But here's the thing Ruffini overlooks in his view of an effective communications strategy: while the GOP is making general arguments about judicial philosophy, the Democrats will be busy trying to pin down the nominee to commit to specific answers on specific issues, e.g., "do you believe in the right to privacy found in Roe v. Wade?" The nominee, for many good reasons, will want to avoid answering these questions and avoid pre-judging specific issues that will come before the Court. Unfortunately, there's no way to avoid doing so - whether by having the nominee be evasive, refuse to answer, or by having the committee chair rule such questions out of order - without creating some bad visuals implying that the nominee is hiding something.
The challenge, then, is finding a way to simultaneously have the White House arguing about judicial philosophy and the specific bad results of a liberal judicial philosophy, without getting the nominee tangled up in having to implicitly adopt all of the arguments made on his/her behalf and defend them in hearings.
This is where it becomes highly advantageous to have more than one nominee at once. With two nominees, after all, the White House can talk effectively about its own judicial philosophy, and argue that President Bush has chosen these two judges out of a belief that they will generally uphold this philosophy, but at the same time acknowledge that there is no guarantee that either nominee will always rule in a predictable fashion (you need only look at the numerous recent examples of cases on which Justices Scalia and Thomas wound up on opposite sides of various decisions to see that this is inevitable even among judges who have fairly clear and rigid judicial disciplines). And with two nominees, it becomes harder for the Democrats to focus on specific objections to each judge, since some things that appear objectionable about one will not be true of the other.
This is all an extrapolation from the basic rule of politics that it is often easier to beat a candidate in the polls with "opponent" than with a single, flesh-and-blood opponent with specific flaws that can be the subject of a negative campaign. Opening a second front, if Chief Justice Rehnquist announces his retirement before a nominee to replace Justice O'Connor is confirmed or perhaps even nominated, would thus work to the benefit of conservatives in crafting a strategy to win public support for two conservative nominees rather than one at a time.
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+ - Yes, as I've discussed before, I understand that this is not an ironclad rule, but it's certainly true as a general matter that conservative judges are more likely to leave a broader array of issues to be dealt with in the democratic process.
« Close It
WAR: Srebrenica, Ten Years On
The Wall Street Journal remembers Srebrenica, ten years later:
Ten years ago today, Bosnian Serb forces under the command of General Ratko Mladic entered the Bosnian Muslim town of Srebrenica, then being defended by Dutch peacekeepers. General Mladic made three demands: that the townsmen surrender their weapons; that all males between the ages of 12 and 77 be separated out for "questioning"; and that the rest of the population be expelled to Muslim areas. Within two days, 23,000 women and children had been deported. Another 5,000 Muslim men and boys who had taken refuge on a nearby Dutch base were also delivered to the Mladic forces.
It was . . . unclear whether the U.N. soldiers in safe areas were actually authorized to use force to defend the people in their care. Worst of all, the price Muslims paid for U.N. protection was to abandon their weapons, which they did within a week of the safe areas' creation.
. . . Europeans alternated between half-measures and attempts at negotiation with the Serbs, even as they exposed thousands of their own soldiers to risk in futile operations. When Margaret Thatcher, by then a former prime minister, called Serb atrocities "evil" and said "humanitarian aid is not enough," her views were dismissed by British Defense Minister Malcolm Rifkind as "emotional nonsense."
It's easy enough to mock the UN and the Europeans for failing to live up to even the limited mission objectives they set for themselves. But the real problem at Srebrenica was a problem I've written about before: deploying troops without identifying an enemy and taking sides against that enemy. Had the Dutch seen the Bosnian Muslims as allies they needed to win the war, they would not have surrendered them to be slaughtered without a fight. More to the point, had the European powers seen themselves as being at war with Milosevic, they would never have allowed the situation to get that far; they would have done, at the barest minimum, what Clinton eventually did in Kosovo, and launched an air assault on Milosevic's troops. And they should, were they serious, have done more than that, and resolved to smash his war machine before it could inflict such atrocities.
This was the fundamental weakness of so many of the interventions of the 1990s: lacking the will to make war, the Western powers turned soldiers into sitting ducks, hunched in a defensive crouch, unable to protect the weak and the defenseless and unwilling to disable evildoers before they could carry out their plots. The contrast with our presence in Afghanistan and Iraq could not be clearer: while we are certainly engaged there as well in "nation-building," the main role of our soldiers is to hunt down the enemy, and our mission objectives are not in any way limited to being reactive.
Now, I confess that I didn't follow the crises in the Balkans closely enough in the 1990s to have a firm opinion at the time of what should be done, and even in retrospect I can't say for certain what the right answer was. As in Vietnam, there were hard choices and no good ones. But Srebrenica was the worst of both worlds: without the UN, the Bosnian Muslims could at least have remained armed to defend themselves.
I was fond of saying at the time that the US should not draw its sword in anger lightly, unless we were willing to keep it unsheathed until the job was done, and that lesson remains a vivid one today. There is peace, and there is war. Pretending you can play a halfway game between the two is a recipe for more Srebrenicas.
MoveOn.org has taken some of the most extreme positions on the left in recent years, most notoriously by opposing the war in Afghanistan. Now, Republicans are planning to make the group's support an issue for Democrats like Bob Casey who accept MoveOn.org money while campaigning as moderates.
July 11, 2005
BLOG: Eyes on the Ball
BLOG: Even Bo Diaz
Greg Gutfeld plumbs the true depths of Karl Rove's dark powers, and even fingers him in the death of Bo Diaz! (Link via NRO).
BASEBALL: None But The Braves
It would be difficult - especially in a non-division game against a mediocre team - for the Mets to suffer a more demoralizing loss than Friday night's game, in which they squandered all the momentum from taking 3 of 4 from the first-place Nationals by blowing a 5-1 lead over the Pirates in the ninth inning. I'm not yet expecting a second-half collapse such as the team had had in each of the past three years, but it's hard to watch a game like Friday's and not come away convinced that this team will never get far from .500.
Looking at the standings, it's obvious that this is Atlanta's division to lose. Only the Braves and Nationals are more than two games over .500, and the Nationals have allowed more runs than they've scored and are hobbled until Nick Johnson, their best player, returns from injury; they've lost 5 of their last 7 games. The Braves, meanwhile, have reloaded rapidly with young players, plus they're the Braves. I'm not optimistic about the second half being anything but a replay of the last decade.
WAR: Another Lesson of Vietnam
Wretchard makes an important point about Iraq:
Unfortunately, the more ferocious the Sunni attacks on the Shi'ites and Kurds, the less likely they are to agree on the expulsion of their guarantor. The Shi'ites and Kurds will remember the real lesson from Vietnam: how easily Washington abandons its allies after ground troops have been withdrawn. The American antiwar Left drew a peculiar and narrow lesson from Southeast Asia. For the rest of the world the moral of Vietnam is that if you are going to fight a war with American help it is essential to keep them engaged until victory or your entire constituency will wind up refugees.
July 8, 2005
LAW: Hail and Farewell to the Chief?
Rumors are rampant at sites too numerous to link here that Chief Justice Rehnquist will announce his retirement today, further scrambling the Supreme Court nomination fight. (I've also seen rumors about Justices Stevens and Ginsburg, but I have reason to be skeptical that conservative sources have the same access to them, or that they would not be powerfully motivated to stay on right now).
UPDATE: As of 4:30 p.m., Erick at RedState is reporting that "A reliable third party source just called to say that "it is done." William Rehnquist has retired from the United States Supreme Court."
I'm not seeing word anywhere else. If Erick is right, he's got the scoop.
Atrios, Pandagon, Kos, and - more disturbingly, if it proves predictive of how the Democratic leadership will respond - at least one Democratic congresswoman I'm aware of, are all suggesting that today's London bombings prove that the "flypaper theory" is demonstrably false, this despite the documented fact of thousands upon thousands of jihadis pouring into Iraq each month, where many of them will be killed.
UPDATE: Two things. First, I should make clear that the post title, "Simpletons," refers to the people Goldstein is criticizing, not to the discussion that follows on Josh Marshall and Kevin Drum. Second, Kos' critique of the "flypaper" theory - that attracting terrorists to Iraq and Afghanistan to fight the US military reduces the number of terrorists available elsewhere in the world - is actually disproven by data cited by Kos himself, as this Steve Verdon analysis makes clear (see the chart at the end showing trends in terror attacks outside the Middle East). Via Vodkapundit.
Meanwhile, Josh Marshall is taking the "Fortress America" view that this sort of thing can be stopped by better homeland security:
The immediate answer to this is to hunt down the people immediately responsible, root out the primarily-non-state terror networks that support, plan and make these attacks possible and start getting about serious homeland defense -- port security, rail security, nuclear power plant security.
Of course, everyone wants to hunt down the individual terrorists, not that Marshall has any special insight into how you do that, nor any explanation of how you do it when they can fall back into the territory of sympathetic states (ask yourself how Saddam would have responded to requests for help in tracking down the various terrorists who received refuge within his borders). But the insistence that the strategy can be limited to manhunts and securing targets (heck, Marshall doesn't even mention border security) is impossibly naive.
On the other hand, there's Kevin Drum, writing the day before the London attacks:
This is pretty much at the heart of the liberal/conservative divide over Iraq. Is our real battle with terrorists themselves? Or is it with the fact that far too many people are sympathetic with their aims?
I take Drum at his word that he accurately states his own view. But as you can see, Marshall takes precisely the view Drum projects onto conservatives, i.e., viewing all this just as a manhunt. And it was repeatedly made apparent throughout last year's presidential campaign that John Kerry and Howard Dean took the same tack.
In fact, while it may be true tht Bush has sometimes been maddeningly vague in his talk of fighting "terrorists," it could not be clearer that the "forward strategy of freedom" espoused by Bush, his Administration and the great bulk of its supporters among conservative pundits and bloggers is aimed directly at the realization that you can't stop with the manhunts themselves, you have to change the conditions in the Muslim/Arab worlds, both by removing state sponsors of terror and by replacing them with states that are more responsive to their own peoples' needs, in ways that reduce the pressure that gets redirected against the United States and its allies (especially Israel). The focus on killing the hard-core jihadists in battle in Iraq and Afghanistan is only one piece of this broader strategy.
In other words, Drum's portrayal of his differences with conservatives is entirely incorrect - unless you correct it to state that it's really his beef with his own party and many of its leading lights. Instead, Drum is really disagreeing with the Right only as to means, i.e., his belief that military action is not useful in toppling tyrants, or at least is more trouble than it's worth. While that's a debate that's worth having (and that we have had, ad nauseum), it would be more useful to recognize that he has the philosophical battle lines drawn backwards.
UPDATE: Stephen Green has some additional thoughts on that Josh Marshall piece.
July 7, 2005
WAR: Terror in London
Obviously, attacks on big-city commuters make me particularly jumpy. A reminder, as if one were needed, that the war goes on, the task is not done, and the security in big urban areas will never be enough. Keep pulling them out at the roots; it's the only way.
UPDATE: Well, this is cheery:
The London bombings are likely part of a wider al Qaeda summer offensive. A letter attributed to Osama bin Laden addressed to the Muslim community (ummah) surfaced in Pakistan on June 20, stating that he was "preparing for the next round of jihad." He wrote that "we want to give good news to the Muslim ummah that, with the blessings of Almighty Allah, we have been successful in reorganizing ourselves and are going to launch a jihadi program that is absolutely in accordance with the changed situation." He stated that new recruits were ready, and that they were armed with the weapons of the enemy (no indication what that means exactly). He also threatened the rulers of Muslim countries who have not signed onto his program (which is all of them, at least publicly). More foreign fighters have appeared and are active in Afghanistan and diplomats from Muslim countries are being systematically targeted in Iraq.
Empty bravado, perhaps. It often has been. But not always.
SECOND UPDATE: More to come?
It feels like summer. Summer 2001, that is. Then, as now, Africa was in the news. There was a big UN conference on 'racism' in Durban the week before 11 September. Remember that? They demanded America pay reparations - for the Rwandan genocide. And Robert Mugabe was cheered to the rafters when he called on the United States and the United Kingdom to 'apologise unreservedly for their crimes against humanity'.
Read the whole thing.
Rudy Giuliani was near the site of the first bombing this morning. It's like Bruce Willis in Die Hard II: what are the odds on that?
BASEBALL: Now, The Hard Part
I said two weeks ago that the Mets needed to go at least 11-6 against the NL East in their current stretch of playing 17 of 23 against their own division, if they wanted to remain sufficiently serious 2005 contenders to justify hanging on to veterans they could otherwise deal at the deadline. With yesterday's victory over the Nationals, the Mets are now 7-5 in that stretch, leaving them 42-42 and in last place, two games behind third place Florida, five behind wild-card-leading Atlanta and nine behind the overachieving Nats (who have allowed more runs than they've scored, strongly suggesting a second-half collapse). I stand by what I said: the Mets are still just outside the race looking in, and if they can't take the dramatic step of taking four of five between today's game against Washington and the four game set against Atlanta, they shouldn't be maneuvering themselves for a futile pennant chase this fall.
LAW: Quick Links 7/7/05
Roundup of news on the Supreme Court nomination fight:
Democrats signaled that whoever the nominee is, their three likely lines of attack will be to assert the White House did not consult them sufficiently, then paint the nominee as ideologically extreme and finally assert that the Senate had not received sufficient documents about the candidate. But Senate Democratic aides said they will focus for now on bipartisan consultation and not publicly prejudge the nominee.
The "consultation" point is mostly BS - the Dems will make up their own minds without consulting Bush or Frist, but they expect to have real input into GOP decisions. "Extremism" is one of the Democrats' favorite warhorses, but at least it's a battle on the merits. As for documents, this is a common tactic now in confirmation fights. One is the familiar plaintiff-lawyer tactic of using endless demands for information as a stalling tactic when the facts and the law are against you: they don't care about any particular documents, as long as they keep some requests open that they can point to and say, "see, we need more information." Then there's the Coca-Cola strategy (Coke generally settles cases when they are compelled to produce the secret formula for Coca-Cola, since the formula is worth more than any one lawsuit): in the case of Miguel Estrada, the Democrats deliberately sought documents that the Administration, for reasons of bipartisan principle (i.e., they were supported in this by Democratic ex-Solicitor Generals), simply had to refuse, thus ensuring a permanent stall of the nomination.
*Byron York recounts how President Clinton picked Ruth Bader Ginsburg. Clinton presumably provides a model for Bush, who will want to gather intelligence from any key Democrats who are willing to provide it, but will in the end have to make his own call for his own reasons.
*Dales notes that 86% of Americans expect the Democrats to "attempt to block Bush's nominee for inappropriate political reasons". That may be a bad place to start from, or it may just reflect Americans' pervasive cynicism about politics and politicians.
*RealClearPolitics noted, when Rehnquist was the presumed retiree, that Ted Kennedy stated that "of the three oft-mentioned, younger appeals court judges who are candidates for the chief justice slot - J. Michael Luttig, John Roberts or Michael McConnell - one would be acceptable." My money's on Roberts, but I suppose he could mean McConnell.
LAW: 'It means just what I choose it to mean - neither more nor less"
Tom Maguire points us to an op-ed piece in the NY Times that purports to determine who are the most "activist" Supreme Court justices by measuring the frequency with which they use the Constitution to strike down democratically elected laws. This is only one form of activism - aside from the willingness to supersede democratic decisions, there are other types of activism, like the willingness to depart from precedent, the willingness to create new constitutional rules not derived from the text, and the willingness to reach out and issue new rules and broader remedies than required by the case at hand. But it would nonetheless be a useful measurement of that form, if honestly applied.
But honest is one thing this op-ed is not. The authors confine their analysis to striking down federal laws, and entirely ignore state and local laws, which make up a good part of the Court's Constitutional docket, including nearly the entire body of law dealing with issues like abortion, school prayer, and the death penalty. No honest person could defend this distinction, and the authors - in the finest tradition of partisan hackery - do not openly do so, instead mumbling about federal statutes having "a high degree of democratic legitimacy," by which presumably they mean to say that state laws do not. It would have been interesting to hear why state laws are such trifles that judges need pay them no heed, but no such argument was forthcoming. Predictably, some sources on the Left just ran with this bit of tripe without thinking about it, like Brad DeLong and one of the Kos Kidz. The only liberal I see over at Memeorandum who tries to justify this is Yale Law professor Jack Balkin, who acknowledges the problem ("it would be well worth running the numbers on state cases since 1994"), but then asserts without the comparable data that "the conservative judges on the U.S. Supreme Court tend to be fair weather federalists" anyway, and then throws his hands in the air and declares that "activism," since not well defined by these authors, must be indefinable and thus a useless term: "we should focus on who has the better interpretation of the Constitution, rather than on who is an 'activist.'"
In fact, I regard the willingness to overturn democratic decisionmaking as a fairly good proxy for judicial overreach. It's not a perfect one, since there are a variety of factors that distort the selection of cases that come before the Court, and of course there are plenty of cases where the clear command of the text of the Constiutution requires that a statute give way. But instead of giving us data that is genuinely informative, or at least acknowledging that the data here is misleadingly incomplete, the NY Times piece seeks to make a point by misleading those readers who won't think through the details. Par for the course.
July 6, 2005
LAW/POLITICS: Jockeying For Position
I'll have lots more on the coming Supreme Court battle as we go along. For now, the process is a dream for political junkies and game theorists, as multiple actors try to plan their strategies: Bush, Gonzales, conservative groups, liberal groups, swing-state Senators, presidential candidates (including those outside the Senate, especially on the front-runner-less GOP side, who have to weigh the benefits and risks of staking out a divisive position against letting someone else make their bones with the base).
One thing Bush has made clear lately is that he doesn't much like conservative groups criticizing Alberto Gonzales. Seeing as Bush can be pretty stubborn, that raises the concern that loud public attacks on Gonzales could just reinforce his determination to nominate his friend.
If Bush does tap Gonzales, liberals will be in a fascinating bind. On the one hand, there are several reasons to want a fight: liberal interest groups have been itching for one for a decade; presidential candidates need to preen; there's a partisan interest in doing political damage to Bush, which is greatly heightened by the fact that Bush would be going into battle under heavy fire from his own best troops, and thus would find it nearly impossible to overcome strenuous and united Democratic opposition; Gonzales is young and could be on the Court for decades; and Gonzales is mistrusted on the Left due to his closeness to Bush and some of his positions over the years on issues like the death penalty and war-on-terror legal issues. On the other hand, Gonzales is almost certainly the least conservative candidate who's likely to be nominates; there's a political risk in opposing the first Latino Supreme Court nominee; there's a political risk for swing-state/red-state Democratic Senators in opposing Bush; and there's political risk for the party in general in knee-jerk obstructionism of a guy widely painted as a moderate, especially since defeating him - with a Rehnquist retirement still possible within the year - would exhaust much political capital needed for two more fights.
The GOP presidential candidates will have a variety of conflicting interests. If a conservative is nominated, Bill Frist will need to get him/her through to a vote. Rudy Giuliani will likely need to get involved - and Mitt Romney as well - to show nervous social conservatives that they can fight for conservative judges. John McCain, on the other hand, obviously continues to see his path to the White House in looking moderate and bipartisan, so his main interest will be - regardless of who the nominee is - in appearing to build a bipartisan compromise.
By contrast, if there's a nominee detested by the conservative base, the non-Senators will keep their heads down, Frist will be completely doomed no matter what he does, and George Allen will be under strong pressure to vote against the nominee, especially since Sam Brownback might well do so. Of course, Bush can keep some of the GOP Senators in line with personal appeals and arm-twisting, but if the grassroots of the party goes into open revolt (something we haven't seen since the first Bush broke his tax pledge), everyone with a future in the party will want to do what Newt Gingrich did in 1990 and side with the voters.
(On the Democratic side, Hillary Clinton, of course, need do nothing; her position is utterly secure, or at least is no longer subject to events).
How hot are the Indians? Just check out their numbers since May 21, via David Pinto's Day by Day database:
If you're in a Rotisserie league, I hope you were able to snap up Victor Martinez, Travis Hafner and Jake Westbrook while their stock was down earlier in the year (I was able to snag Martinez in one of my leagues). And has their been a bigger dark-horse rookie this year than Jhonny Peralta?
BLOG: I Must Be, The Bahamas Are Islands
Well, I'm back, if not entirely ready to pick up where I left off. My wife and I spent a few days in the Bahamas celebrating (a month early) our 10th wedding anniversary - we'd never been to a tropical island, so it seemed like a good time to finally spring for a big vacation.
Of course, the day we get there turns out to have been a big news day, but I was calmed by the fact that President Bush and Attorney General Gonzales were both out of the country, so it would be a few days, at least, before we get a big announcement.