War on Terrorism IV

BurtLaw on the War on Terrorism IV
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Chickenhawks and their videogame wars. A "chickenhawk" is "a term often applied to public persons - generally male - who (1) tend to advocate, or are fervent supporters of those who advocate, military solutions to political problems, and who have personally (2) declined to take advantage of a significant opportunity to serve in uniform during wartime." The definition is supplied by Steven Fowle, a Viet Nam War veteran, editor of the New Hampshire Gazette, who maintains the Chickenhawk Database, an in-depth tabular presentation of the military records of all the brave men who are so intent on invading Iraq. It's worth a look. If I were a hawk, I'd be eligible for listing. But, as I was during the Viet Nam War, I'm a dove on this one, at least until Cheney, Bush & Co. persuade me otherwise. Why do I say "videogame wars." Because we've become accustomed to the notion that we can wage war with minimal casualties on our side, wars that in some ways the Chickenhawks can command more directly than ever before, as by looking at video monitors and manipulating videogame controllers to operate drone planes equipped with missiles in remore war zones. (09.29.2002)

Papa's war. As our de facto Commander-in-Chief, Dick Cheney, and our de facto Cheerleader-in-Chief, Geo. W. Bush (depicted right as an outstanding cheerleader at his Eastern prep school), move forward with their plans to once again invade Iraq, I've been wondering what sort of war

they're contemplating. Will it be anything like Papa Bush's war on Iraq? If you've forgotten, we killed 100,000 Iraqis, maybe more, in that war (CNN's statistical summary). Sure, most of "them" were soldiers, not civilians. But what is a soldier in Iraq but a civilian who is told to put on a uniform. I admit, sometimes in life we have to "sin bravely," as Martin Luther said. Is this such a time? Cheney & Bush haven't convinced me yet. Have they convinced you? If Ike were President, would he be leading us into war? Unlike Cheney & Bush, Ike had been a soldier himself and knew personally what war is all about -- which is perhaps why military men often are the main voices of restraint and caution, of Reason, in matters like this. (09.20.2002)

David Gergen's bright idea. My Harvard Law School classmate, David Gergen, who served in four different Administrations, authored an op/ed piece in yesterday's New York Times, in which he urges President Bush to "embrace universal national service -- setting up programs that ask [methinks he means "require" or "compel"] all eligible young people between 18 and 24 to spend at least a year in civilian or military service." Dumb idea, Davey-boy. A Minnesotan, Vance Opperman, suggested an even broader kind of compulsory service last fall, after 09.11. What I said in criticism of it (click here) applies equally to your proposal, Davey-boy. (06.18.2002)

Lack of imagination and a lack of acquaintance with the daimon in ourselves. Tom Friedman wrote in the NYT yesterday, 05.19.2002, that: a) "The failure to prevent Sept. 11 was not a failure of intelligence or coordination. It was a failure of imagination." b) "Imagining evil...does not come naturally to the American character...." c) "We need an 'Office of Evil,' whose job would be to...imagine what the most twisted mind might be up to." I made similar observations in a series of comments in this space last fall, including on 09.13.2001, 09.22.2001 and 09.28.2001.

Are we as tolerant as we think we are? "The U.S. political system protects freedom of speech from formal suppression better than any other nation on earth. But American culture is less tolerant of aberrant views and behavior than many others, and that tolerance has eroded further since Sept. 11...." An excellent opinion piece by Michael Kinsley, Listening to Our Inner Ashcroft -- The right not to watch what you say (Slate, 01.03.2002).

Rules on tribunals. The "rules" that have been drafted by Bush & Co. require a unanimous verdict of the military judges to execute the poor saps being tried but only a 2/3 verdict to convict. Click here for link to NYT/Yahoo piece. What a stupid distinction: whether the guy is guilty at all is just as important (if not more important) a decision as what to do with him if he's guilty. The whole Bush-Ashcroft tribunal idea is still a totally flawed idea, in my opinion. (12.28.2001)

Yamashita. "Those pressing for military tribunals today should recall the fate of Gen. Tomoyuki Yamashita, commander of Japanese forces in the Philippines, who was railroaded to the gallows in Manila in February 1946 after a trial that mocked our standards of judicial fairness...." More (Washington Post). The Defense of General Yamashita by George F. Guy (Supreme Court Historical Society Yearbook 1981). Application of Yamashita, 327 U.S. 1 (1946) (FindLaw).

The Bush team. A year ago many of us had a hard time deciding who to vote for, Bush or Gore (in my case not surprising since I even had a hard time deciding whether to vote for my opponent or myself in the race in which I was one of the two candidates). I think many people must have flipped a coin. Ultimately, I voted for Bush because his first "staffing" decision, picking Cheney as V.P. candidate, reassured me that he recognized his own shortcomings and that he not only would assemble a good team of experienced advisers but would listen to them; Gore seemed to me too confident of his own rightness and less likely to pick as good a set of advisers. Bush's only really bad pick, as I see it, was Ashcroft. In other ways, I think my voter's instinct has been vindicated substantially. Fred Barnes seems to agree. Click here. (Weekly Standard). I should add that a) I'm pleased we have "divided government," with the Democrats barely controlling the Senate, thereby putting a needed "check" on Bush & Co., b) Bush would be wise to recognize that many of us who voted for him don't agree with many of his views (on the death penalty, on abortion rights, and other issues), and c) his current highly favorable poll rating doesn't necessarily portend electoral victory in 2002 or 2004 for the GOP. (12.19.2001)

Too much bigness, concentration? "It's a pretty good rule of military thumb that the greater the concentration of value, the more attractive the target. If you have all your fuel, or all your tanks, or all your intelligence-gathering capability in one place, then that's the place the enemy wants to hit. To keep things safe, you need to spread things out...." More (Wired via MetaFilter). This article, which MetaFilter linked to today, 12.15.2001, apparently was published 09.12.2001. I made the same basic point on 09.13.2001. More.... (12.15.2001)

Are you a traitor? Frank Rich has another great column in the Times today called Confessions of a Traitor. I love these two lines (among others): "[Ashcroft] just doesn't seem clever enough to undo the Bill of Rights, even with the president's backing. You have to have more command of the law than he does to subvert it." Today's Times also contains a report of 300 top law professors who have joined Mr. Rich and me in uttering strong criticisms of the Bush-Ashcroft tribunal plan, criticisms that apparently in Ashcroft's eyes constitute treason. It would be nice if there were a few "traitors" (Ashcroft's view, not mine) in Congress -- that is, a few people who didn't always have their fingers in the air to see which way the wind was blowing. At least Wisconsin has a Senator with guts. I'm referring to Russ Feingold. (12.08.2001)

Warrants authorizing torture of suspects? Harvey A. Silverglate, who was my classmate in the Class of 1967 at Harvard Law School and who is Boston's preeminent criminal defense attorney and defender of civil liberties, has penned a carefully-reasoned two-web-page opinion piece titled Torture Warrants? for The Boston Phoenix. Note the cartoon on the first page. The fellow depicted frantically searching a constitutional law text is Prof. Dershowitz, our first-year criminal law professor the first year he was a professor, 1964-65. :-) Mr. Silverglate and Prof. Dershowitz will debate the relationship between civil liberties and security during wartime February 12, 2002, at 6:30 p.m., at the Ford Hall Forum, in the Old South Meeting House, in Downtown Crossing, Boston. (12.07.2001)

Judicium interruptus? An appeals court has overturned the assault convictions of two alleged members of a street gang on the ground the trial judge, Robert R. Fitzgerald, unfairly and prejudicially conveyed to the jury the impression he personally believed the defendants were guilty. "The judge made his own objections to testimony 95 times during the trial and made 37 condescending or flippant comments to defense lawyers...." More (LATimes). Our courts, generally speaking, are pretty good, not great. There are some bad judges who rarely get it right. And there are some good ones who sometimes get out of line and themselves perpetrate injustice. This is why we have appeals. And since appellate courts sometimes get it wrong, more often than is commonly believed, they too do not always have the final word. The case can be made that our courts offer at best a crude and cumbersome method of ensuring "justice." The fact is, they don't "ensure" it at all. Indeed, Clarence Darrow, who knew a thing or two about judges and courts, said, "There is no Justice in or out of court." More often than I like to admit, I find myself thinking he was right. But we owe it to ourselves and our children and friends and neighbors to do our damdest to at least try ensure that our Constitution is not just "a screen of words." Yesterday, I listened to our Attorney General testify before a Senate committee. It was a sad performance. He was trying to taint the jury, the American people, by suggesting that those of us who disagree with him on the President's attempts to limit civil liberties are in some way giving aid and comfort to the enemy. It is an old, tired cynical tactic, worthy only of an A. Mitchell Palmer or a Joe McCarthy or a J.A.A. Burnquist, all of whom have been discredited by history. When Ashcroft says the words "civil liberties" his tone reeks of contempt. I believe he, too, will be discredited by history. (12.07.2001)

Bush-league logic. Robert Wright has written a piece titled Perceived Injustices for Slate that focuses not only on the circularity of the Administration's Bush-league logic in attempting to publicly justify the secret middle-of-the-night terroristic trials of alleged terrorists who are not citizens but that focuses also on the faulty "geopolitical logic." It's a fine piece by a man who knows his logic and his morals. It makes some of the same points I've been trying to make and I commend it to you. While you're at it, you will also benefit from reading Uncivil Courts -- America's military tribunals through the ages by David Greenberg, also in Slate. It's a history piece focusing on Lincoln's military tribunals during the Civil War; it, too, ought to give pause to the President if he cares at all how history will judge his conduct. (12.06.2001)

Zero tolerance of dangerous second-graders. In a resumption of the zero-tolerance nonsense that kept our attention on dangerous 7-year-olds with small toy guns when it could have been fixed on keeping 19 adults with box-cutters from hijacking four jets, a panel of school officials in California has upheld the suspension of a second-grader for bringing a small toy gun with him to school. More (LATimes). (12.06.2001)

Past U.S. criticism of use of military tribunals by other countries. On 11.14.2001, the day after the White House announced that President Bush had signed the now infamous executive order creating the military tribunals for noncitizens charged with terrorism, I said that if your son, at least presumably innocent, were arrested in some foreign country and charged with terrorism, wouldn't you want him to receive a fair, open trial, with a meaningful right of appeal? Wouldn't you be absolutely appalled if he didn't receive that but instead received a quick middle-of-the-night closed-door trial before a biased military commission with none of the procedural safeguards we associate with due process of law? Well, if you're unwilling to provide a noncitizen with a fair trial, the kind we hold out as a model to the world, then you've lost the moral authority to complain when Islamic fascists arrest, try and execute your son or some other American in an unfair way. More. Recently, Human Rights Watch took up this argument, posting a "Fact Sheet" titled Past U.S. Criticism of Military Tribunals that provides details of our State Department's past criticism of the use of similar military tribunals and procedures in 11 different countries -- specifically, Burma, China, Colombia, Egypt, Kyrgyzstan, Malaysia, Nigeria, Peru, Russia, Sudan, Turkey. My mom used to say that people are known by the company they keep. A country, too, ultimately will become known not only by the company it keeps, but by the example it sets and by the degree of consistency with which it holds itself to the high standards it has articulated for other countries to follow. (12.06.2001)

Our fair-weather Supreme Court. Robert Frost wrote, "A bank is a place where they lend you an umbrella in fair weather and ask for it back again when it begins to rain." It's a great metaphor but unfair to bankers, of which my late father was one. I think the metaphor better fits the Supreme Court, which has been bold in recognizing individual liberties in times of domestic tranquility but arguably even cowardly in preserving and protecting them when they most need protection. Case in point: Korematsu v. U.S., 323 U.S. 214 (1944). Nearly sixty years ago, in 1942, the President, FDR, signed an order placing over 100,000 Americans of Japanese ancestry living on the west coast in "relocation camps" (a euphemism for "concentration camps"), where they remained until 1945, when FDR rescinded the order. The leading proponent of the relocation was then California Attorney General (later U.S. Chief Justice) Earl Warren, who argued that no one could "tell a saboteur from any other Jap" and therefore they all had to be treated as saboteurs. He later offered this excuse: "I didn't think I had any choice." In 1944, the great liberal, Justice Hugo Black -- who had paid $6 to buy one of his robes, the white one, when he joined the Ku Klux Klan at age 37 in 1923 -- wrote the majority (6-3) opinion in Korematsu, validating the 1942 relocation order. Two decades later he "explained" that "They all look alike to a person not a Jap" and that the relocation actually had protected "the innocent ones" from being shot by ordinary Americans if "the Japs" had attacked the west coast. Justice Felix Frankfurter, who knew that millions of Jews had been confined wrongfully in concentration camps (and exterminated) by the Nazis, gushed in a confidential note to Black that he "agreed entirely" with Black's opinion and would join it "without the change of a word." (More). Korematsu, I'm sorry to say, is but one example. Some, but not all, of the others are noted in The Supreme Court And Civil Liberties During Times Of War by Christopher Dunn (N.Y.L.J.viaNYCLU). Those of us who oppose some of Attorney General Ashcroft's anti-terrorism measures can't and shouldn't rely on the Court to make things right. The Constitution may be a "dead Constitution" in Justice Scalia's opinion, but for many of us it is part of the fibre of our lives. We need to remind our representatives that they are every bit as responsible for preserving and protecting it as judges are. (12.04.2001)

Justice Deformed: War and the Constitution. "...The extreme nature of these new measures and the arbitrary way in which they were adopted are stirring a growing uneasiness among both Republicans and Democrats in Congress, as well as America's overseas allies. Yet so far the voices of opposition have been timid. It is never easy to criticize a president in wartime. It is especially difficult during this war, which began with the killing of thousands of civilians here at home....The administration has argued that even if the powers it is seizing are broad, it will not use them abusively. This has been a constant theme of Mr. Ashcroft and the administration in general -- that they are people who can be trusted to use these broad, repressive rules wisely. That is not the way the American system works. This is a nation built around the rule of law, not faith in the goodness of particular officials...." From a long editorial by the editorial board of the New York Times published on Sunday that deals with Attorney General Ashcroft's attempt to bypass the Constitution in crafting the Bush Administration's domestic law-enforcement response to the events of 09.11. Everyone who cares about our own liberties and values ought to read it. Click here (free reg. req.). More... (12.03.2001)

It can't happen here? "Today their names do not instill fear. They include Scalia and D'Amato, DiMaggio and Stallone, Grasso and Gallo -- names shared now by people who hold positions of high public trust, or guarantee high gross at the box office. They are leaders of business, or legends for all time. In another day, these were names of people -- dark people with exotic customs -- who were officially branded by the U.S. government as a threat to the nation...." From Report on wartime roundup a chilling lesson for today in San Jose Mercury-News by Marie Cocco. (12.03.2001)

It can't happen here? - part two. Harvard University Press has just published By Order of the President -- FDR and the Internment of Japanese Americans by Greg Robinson. I haven't read the book yet but a review in The Economist states that the book shows that FDR himself, "far from being the scourge of racism portrayed in New Deal hagiography, had a long history of racial prejudice against the Japanese." The publisher's web page blurb states: "By Order of the President attempts to explain how a great humanitarian leader and his advisors, who were fighting a war to preserve democracy, could have implemented such a profoundly unjust and undemocratic policy toward their own people. It reminds us of the power of a president's beliefs to influence and determine public policy and of the need for citizen vigilance to protect the rights of all against potential abuses." You can read excerpts from the book at the publisher's web page. Last winter, on this web page, I dealt with the matter of the internment of Japanese Americans. More... (12.03.2001)

Why Bork got "Borked." On Saturday, October 20, 1973, President Nixon -- in a last ditch effort that was dictatorial in its audacity -- instructed Attorney General Elliot Richardson, a Harvard Law graduate, to fire the Special Watergate Prosecutor, Harvard Law Professor Archibald Cox. Richardson refused to follow the order and resigned. Nixon then directed Deputy Attorney General William D. Ruckelshaus, who became Acting Attorney General on Richardson's reesignation, to fire Cox. Ruckelshaus, also a Harvard Law graduate, refused and resigned. By law, the Solicitor General, Robert Bork, a University of Chicago Law School graduate and a Yale Law School professor, became Acting Attorney General. He was only too willing to follow the Dickster's executive order and promptly fired Cox, after which the Dickster issued another audacious executive order, one abolishing the Office of Special Prosecutor. More (Washington Post, 10.21.1973). Bork got his own muchly-deserved comeuppance when the U.S. Senate declined to confirm President Reagan's 1987 pay-back nomination of Bork to the U.S. Supreme Court. More (The Eighties Club). Ever since, the term "Borked" has been used, particularly by right-wingers, to refer to the "trashing" by the Senate of a Presidential nominee on grounds thought by supporters of the nominee as irrelevant and unfair. More (FreeRepublic.Com). Now comes the loyal lieutenant to once again defend a Republican President's outrageous executive order, specfically, President Bush's order adopting Attorney General Ashcroft's plan for secret middle-of-the-night tribunals to try alleged terrorists who are not citizens. In an opinion piece titled Having Their Day in (a Military) Court in the 12.17.2001 issue of William F. Buckley, Jr.'s The National Review, Bork not only defends the Ashcroft idea but argues, incredibly, that "If there is a problem with Bush's order, it is the exemption of U.S. citizens from trials before military tribunals." This, my friends, is why Bork got "Borked" back in 1987 and why I'm glad he isn't sitting now on our Supreme Court alongside Rehnquist, Scalia and Thomas. More (11.30.2001)

If...then the terrorists have won. If you disagree with me, then the terrorists have won. If you stop getting your bikini wax job from that Russian lady, then the terrorists have won. If you cut back on essentials like lefse and lutefisk, then the terrorists have won. If you don't go out and buy a new car, then the terrorists have won. Click here for an amusing report on the fill-in-the-blank phrase that has become a cliche -- "If...then the terrorists have won." Like many cliches, it's easy to use in many different situations. For example, opponents of the Selig-Pohlad plan to eliminate the Minnesota Twins can say, "If Selig and Pohlad get their way, then the terrorists have won." But, and here's the rub, those who advocate "caving in" and coming up with a new-stadium plan financed directly or indirectly by taxpayers can also say, "If we don't build a new stadium for the Twins (and another one for the Vikings), then the terrorists have won." (11.29.2001)

09.11 as pretext. "Taking unfair advantage of the situation" -- that's one of the most basic -- indeed, base -- of human tendencies. One sees it in so many different situations. Price gouging during times of emergency, when supplies of an essential product are suddenly and temporarily low; getting someone in a vulnerable emotional state to agree to do something he otherwise wouldn't agree to do; etc. The line between the ethical and the unethical is not always clear, but it is there, and those who are in a position of strength should resolve any ambiguity against "taking unfair advantage of the situation." I believe when the detailed history of the events immediately subsequent to 09.11 is written, we will find not just stories illustrative of the best of human nature but ones illustrative of the worst. Among those illustrative of the worst will be those of politicians who unfairly -- indeed, unpatriotically -- used the emergency as a pretext to push through their own favorite legislative proposals, ones that they knew could not attain a majority on their own merits during a time of calm reflection but that they were able to "slip in" as part of a legislative package. There is mutual suspicion among lawyers on the front lines of the skirmishes over civil litigation reform. If you read Walter Olson's postings at Overlawyered.Com, you'll get one perspective. If you visit the ATLA's site, you will get what that organization calls The Other Side of the Story. Many of those who favor the sort of tort reform package that was part of the Bush platform in 2000 have expressed skepticism concerning some of the "truce" statements by some plaintiffs' lawyers following 09.11. On the other hand, as this story reveals, some plaintiffs' lawyers fear Ashcroft and Co. are trying to use terrorism relief legislation to accomplish civil litigation reform by stealth. I have long believed we are overlawyered and overlitigated. I believe, for example, that some civil litigation reforms are needed. But I wouldn't dream of using the cover of patriotism to try achieve such reforms "by stealth." Are Ashcroft & Co. "above" trying to do that? I'm skeptical of all people with an agenda, so I try to wash every idea or proposal, regardless of the source, with a little Holmesian "cynical acid" before I pass judgment upon it. If one does that, one generally can avoid playing the motive game. But I've already seen enough of Ashcroft and Co. -- who are making the notorious A. Mitchell Palmer & Co. look like civil libertarians -- to convince me that they are not above "taking advantage of the situation," and that therefore we lawyers need especially to keep a skeptical professional eye on them. Their role in convincing Bush to issue the executive order authorizing what I have characterized as secret, middle-of-the-night fascist-style military tribunals is clear. (Some military lawyers who believe in due process have even taken offense that some have referred to the tribunals as "military" tribunals, because they give American military justice a bad name -- i.e., the tribunals don't come close to approaching regular American military trials on the fairness scale.) That shameful order, which Bill Safire rightly called Bush's first "historic mistake," awakened me and should have awakened all of us in the legal profession who have the Constitution imprinted on our hearts. But, sadly, thus far I'm one of only a relative handful of lawyers around the country who have responded by publicly criticising and vigorously opposing this outrageous action. (Another one, coincidentally or maybe not coincidentally, is my esteemed Harvard Law School classmate, Harvey Silverglate, a prominent Boston attorney.) Presumably some lawyers will be bolder in opposing Ashcroft and Co. if they feel their own economic interests are at stake, as in the matter of civil litigation reform. :-) (11.27.2001)

BurtLaw Quote. "They that can give up essential liberty to obtain a little temporary safety deserve neither liberty nor safety." Benjamin Franklin.

Kangaroo courts - Safire. William Safire has weighed in, for the second time, against Bush's "kangaroo courts," asking, inter alia, "[O]n what leg does the U.S now stand when China sentences an American to death after a military trial devoid of counsel chosen by the defendant?" More (11.26.2001, NYTimes). It is a question I asked on 11.14.2001, when the press first reported Bush's signing of the executive order establishing these courts. More... I have been asking similar questions since then. More... Mr. Safire posted his first critique of the order on 11.15. A few others have joined in, but, as Safire points out today, only a "tiny minority" of editorialists on the right and left have had the guts to do so: "The possibility of being accused...of showing insufficient outrage at those suspected of a connection to terrorists shuts up most politicians. And a need to display patriotic fervor turns Bush's liberal critics into exemplars of evenhandedism. Careers can be wrecked by taking an unpopular stand." (11.26.2001)

A British perspective on short-circuiting justice. The Brits don't have a Commander in Chief with the powers our Prez has, although Prime Minister Tony Blair is acting as if he were a Commander in Chief. Like Bush, he's been generally effective since 09.11. Unfortunately, like Bush, he wants to bypass the traditional judicial process in trying certain people suspected of aiding and abetting terrorist acts. Here in the U.S. Sen. Patrick Leahy of the Senate Judiciary Committee is conducting hearings on the legality of Bush's executive order establishing the secret military tribunals that mock the idea that ours is a country of due process of law and separation of powers. Blair concedes he doesn't have the power to establish such tribunals, so he is seeking authority from Commons, which is now debating the proposal. Martin Thomas, a/k/a Lod Thomas, a home affairs spokesman for the Liberal Democrats who has prosecuted and defended in terrorist trials, has wriiten an opinion piece for The Guardian titled An Assault on Freedom in which he argues that the anti-terrorism bill advocated by Blair undermines both the European human rights convention and the rule of law. (11.26.2001)

Learning from Israel. "[I]t was disturbing to hear the recent debate in this country over the idea of using torture on terrorism suspects. The Israeli experience clearly shows that torture and other limitations on civil liberties have not made the country safer; they have made it more oppressive. We Israelis have also learned that curbs on civil liberties rarely turn out to be temporary, even if intended to be: they are all too easily introduced but very difficult to get rid of." From Learning from Israel and Its Mistakes by Tom Segev on the Op-Ed page of the 11.25.2001 issue of the New York Times. Mr. Segev is a columnist for a leading Israeli newspaper. (11.25.2001)

Listening in.... Coincidentally, the two novels I just finished reading -- Saul Bellow's The Dean's December, followed by Milan Kundera's The Unbearable Lightness of Being -- are both set, in significant part, in Eastern Europe (in Romania and Czechoslovakia) during the Cold War, and both deal, in significant part, with the effect of intrusive government on the lives of ordinary men and women. I grew up in a small town on the eastern edge (the start of) the Great American Prairie. It was basically true that everyone knew what everyone else was doing. But most of the time the government wasn't involved in that aspect of small-town life. I say, "most of the time." Minnesota did go through a sort of reign of terror at the onset of our country's involvement in WWI, and my town did not escape from that. I touched upon that in an entry dated 09.15.2001 that I entitled It Can't Happen Here. Indeed, throughout the 1920's there was a split in my town between, on the one hand, the live-and-let-live folks and, on the other hand, those of a fundamentalist, censorious bent -- who wanted to regulate the lives of people in minutiae through laws that not only Tali-banned this-and-that, including the drinking of liquor, the attending of movies on Sunday, the attending of dances at any time, etc., but Tali-punished such conduct harshly. Curiously, two of the forces for ending the reign of the nay-sayers, both in local and Minnesota politics, were the Rev. O. J. Kvale, pastor of what later was my childhood church, and Lewis Herfindahl, one of the brothers of my mother's father, Otto Herfindahl. Kvale and Herfindahl were among the founders of the Farmer-Labor party, which grew out of the Progressive Movement. Kvale ran against and defeated Congressman Andrew Volstead, for whom the Prohibition Act (the "Volstead Act") was named; and Herfindahl became the county's Farmer-Labor representative in the state legislature and later political aide to two Farmer-Labor governors, Floyd B. Olson and Elmer Benson. Why do I mention this now? Because, frankly, I'm not a little bit worried about the convergence of a number of forces in American politics. These forces include: a) the greater tendency of patriotic people like you and me to defer uncritically to government in times of perceived crisis, b) the emergence of new technology for government eavesdropping on ordinary citizens (described in this article by Ted Bridis, from the 11.22.2001 issue of Washington Post), and c) the fact that our Attorney General, John Ashcroft, is a man whose mindset is of a fundamentalist, censorious bent. Thomas Jefferson said that the price of maintaining our liberty is eternal vigilance. He was speaking primarily of vigilance against ourselves, not outsiders -- vigilance against our own backward, baser, atavistic instincts. (11.25.2001)

Colin Powell. The rightwingers don't like him. If you visit web sites like Lucianne.Com -- a useful site where rightists post links to their favorite news stories -- you'll see that for many of them their idea of fun consists, in part, of throwing darts at old targets no longer holding office, like Bill Clinton, and at people in office whose influence they'd like to reduce, like Colin Powell. George Will's column in the Washington Post today, 11.25.2001, is an example. The underlying theme of most of the rightwingers' complaints about Powell: he believes in restraint and diplomacy. According to this line of reasoning, bad boys believe in restraint and diplomacy, good boys want to bomb Iraq -- and now, not later. Here's the latest profile of Powell that at least aims at objectivity: The World According to Powell by Bill Keller from the 11.25.2001 issue of the New York Times SundayMagazine. (11.25.2001)

Bush's kangaroo courts. Bill Safire referred to Bush's secret military tribunals to try aliens for acts of domestic terrorism as "kangaroo courts." Frank Rich, who'll be in Minneapolis Monday, weighed in today. I love the way he put it: "Even as we track down a heinous enemy who operates out of a cave, we are getting ready to show the world that the American legal system must retreat to a cave to fight back. Our government refuses to identify its many detainees, or explain why they are held, or even give an accurate count. The next stop on the assembly line for these suspects could be a military tribunal, which, as decreed by President Bush in an executive order, is another secret proceeding in which neither the verdicts, evidence nor punishments ever have to be revealed to the public. Thus could those currently in captivity move from interment to execution without anyone ever learning why or where they disappeared. If this sounds like old-fashioned American justice, it is -- albeit of such Americas as Cuba and Chile." More (NYTimes). See, also, Anthony Lewis' column today: "[S]ome of the moral and military high ground secured by the United States is now being given up on another front: law...." More (NYTimes). Our friends are just starting to weigh in: Spain has announced it won't extradite to the U.S. eight men arrested in connection with the 09.11 conspiracy unless we agree to civilian trials -- i.e., due process and fair trials -- rather than the Bush-Ashcroft version of fairness. More (Yahoo/NYT). My views...and...and.... (11.24.2001)

The queer case on which Bush relies. I have already posted critical comments in opposition to Pres. George Bush's order authorizing closed-door military trials of aliens charged with terroristic acts. I'm not alone in my opposition. In the NYT for 11.17.2001 Professor Phillip B. Heymann, a criminal law expert at my alma mater, Harvard Law School, said of the order: "I think it's the most reckless, unpatriotic indifference to a source of American pride that I can imagine." More. The judicial precedent on which Bush relies is the USSCt's decision in Ex parte Quirin, 317 U.S. 1 (1942), the so-called "Nazi saboteurs case" from WWII. Relying upon that case is akin to relying on Korematsu v. U.S., 323 U.S. 214 (1944), in which the same Court -- all too eager to join in the War effort -- upheld the forced relocation of 100,000 Americans of Japanese ancestry to "relocation camps" (euphemism for American-style concentration camps). Earlier this year I posted a number of entries on that shameful episode in our country's constitutional history. Click here. Here's a link to an interesting background piece to the Quirin case by legal-affairs correspondent Tony Mauro and a link to a wise opinion piece by Anne-Marie Slaughter, Professor of International Law at Harvard Law School. (11.18.2001)

Apolitical Scalia's "dead Constitution." Speaking in Missouri, Justice Scalia of the USSCt is quoted as judiciously referring to the idea that the Constitution is a "living document" as "garbage." He said, "My Constitution is a dead Constitution....Once you’re playing the 'Living Constitution' game, you want to nominate judges who agree with your views...You have politicized the courts." "Who is Scalia?" you ask. "Well," say I, "he's the guy on the Court who's nonpolitical." "Which one?" you ask. "The one on the far right," say I. Speaking of "dead Constitutions," ours really will be "dead" if we as citizens let Dubya and John Ashcroft and the boys get away with their attempt to hijack the Bill of Rights. Just weeks ago it was popular to say that Mr. bin Laden and his boys have "hijacked Islam." What a difference a few weeks make. The good news is that good people on both ends of the political spectrum, people who don't believe the Constitution is dead, are joining together on this one. (11.16.2001)

Rumsfeld military justice -- war crime style? I have already commented critically on the President's announcement that he is invoking his "war powers" and is going to follow the crypto-fascist model of conducting closed-door "military trials" in certain terrorism cases involving noncitizens, thereby bypassing the inconvenience, I take it, of due process, public scrutiny, appeal, etc. I said the timing of Bush's announcement could not have been worse, coming on the same day that the front page of the New York Times carried stunning sequential photographs showing soldiers of our latest "allies," the Northern Alliance, which has a human rights record on a par with that of the Boys of the Taliban, summarily and brutally executing a captured prisoner of war. See, infra. Now today one reads in the Washington Post the even more disturbing news that, unless he was misquoted, our Secretary of Defense, Donald Rumsfeld -- who up until now I have admired -- apparently doesn't believe in following the modern rules of civilized warfare with respect to prisoners of war. The Post reports that "Helicopter-borne U.S. Special Forces set up roadblocks on main north-south roads in Afghanistan yesterday in a stepped-up search for Taliban leader Mohammad Omar and reputed terrorist mastermind Osama bin Laden." Later in the story, the authors quote Rumsfeld's response when he was asked "what action might be taken against hostile forces stopped on the road." Rumsfeld reportedly said: "If they're the kind you want to shoot, you shoot them." If I were the Secretary's legal adviser, I would urge him to promptly issue a clarification, making it clear the Government does not authorize or condone the summary execution of prisoners of war. I would advise him that in effect he had encouraged the commission of a "war crime," for which theoretically he might later be tried and punished. I would advise him that the fact that our Government seemingly has ways of insulating "its own" from such trials, does not mean that "might makes right." If he did not take my advice or fire me, I would then resign. (11.15.2001)

Military justice. Yesterday (11.13.2001) I posted a link which I titled "21st Century Justice: secret nonjury trial." I intended sarcasm. The link was to this news story at Court TV's website. The story relates to the start of a "closed-door" so-called "trial" in Tehran, Iran, of members of an outlawed "reformist" group, a trial that the "moderate" President, Mohammad Khatami, has denounced as "unconstitutional." Before 09.11, I posted a number of critical comments relating to "judicial" actions by the "hard-line" super-independent judiciary in Iran. The purpose of those comments, as well as my pre-09.11critical comments relating to human-rights abuses in Pakistan, Taliban-controlled Afghanistan, China, and Zimbabwe, was partly to remind myself and those who regularly visit this site what precious things are our liberties and that the price of keeping them is, as Jefferson said, "eternal vigilance" -- eternal Jeffersonian self-examination, Holmesian skepticism, ACLU-scrutiny, etc., etc. Because each of us is assigned, by God, the task of being guardian of his own soul, we as a unified people, committed to the socio-political contract implicit in the Bill of Rights and the rest of the Constitution, must also guard our nation's soul. It looks like we're going to have a time of it, now that we're engaged in an anti-terror campaign -- a campaign of military, economic and diplomatic components -- to which the President has affixed the label "war."

There've been a number of ominous signs. One was the spoiled Yale-boy smirk I saw on Bush's face the other night when he was addressing the well-orchestrated, choreographed political-convention-style rally before that carefully-chosen audience. I was switching channels when I caught a few seconds of the speech and saw that smirk. I said to myself, "This guy likes the fact that he gets to do what Clinton moans he didn't have the opportunity to do -- be President during a time of great crisis." I switched to one of the networks that thankfully chose not to broadcast what really was a speech designed to maintain the President's high ratings in the polls. That was only one of the ominous signs. The latest is this announcement that the President is invoking his "war powers" and is going to follow the Iranian or fascist model of conducting closed-door "military trials" in certain terrorism cases involving noncitizens, thereby bypassing the inconvenience, I take it, of due process, public scrutiny, appeal, etc. The timing of Bush's announcement could not have been worse, coming on the same day that the front page of the New York Times carried stunning sequential photographs showing soldiers of our latest "allies," the Northern Alliance, which has a human rights record on a par with that of the Boys of the Taliban, summarily and brutally executing a captured prisoner of war.

Can Bush do this? Well, the boys in Washington say there's precedent for it. Oh, sure, there's precedent for it. We've done it before during times of war. Hell, one of our Presidents used his war powers to ship an entire subpopulation of American citizens -- those of Japanese ancestry -- off to our version of concentration camps, and our great U.S. Supreme Court concluded it was a.o.k. More.

A better question is: Should Bush do this? I don't think so, and I'm hoping fair-minded Americans, who were fed the Bill of Rights before we were fed Pablum, will give this latest decision by the President the intense critical scrutiny it deserves. Why? a) Because it looks to me like we're reserving to ourselves basically the right to conduct the kind of faux-trial and summary executions that the Islamic fascists, the Taliban leaders, have conducted on a number of occasions recently in Afghanistan. b) Because in this, as in everything, the "Golden Rule" is applicable: If your son, at least presumably innocent, were arrested in some foreign country and charged with terrorism, wouldn't you want him to receive a fair, open trial, with a meaningful right of appeal? Wouldn't you be absolutely appalled if he didn't receive that but instead received a quick middle-of-the-night closed-door military trial? Well, if you're unwilling to provide a noncitizen with a fair trial, the kind we hold out as a model to the world, then you've lost the moral authority to complain when Islamic fascists arrest, try and execute your son or some other American in an unfair way. But, you say: Our military justice is fair, ain't it? Julius Henry (a/k/a Groucho) Marx, who didn't have a degree from Yale but was a wiser man than George Bush (either one of them, take your pick), answered that when he said, "Military justice is to justice what military music is to music." I think Groucho "swiped" the aphorism from French statesman Georges Clemenceau -- if so, good for him. Regardless of who said it first, it speaks a basic truth: military justice ain't the kind of justice we're familiar with or famous for. Shockingly, the military tribunals Bush has authorized for alien terrorists don't even equate with typical military trials. They're worse. (11.14.2001; revised, 11.18.2001) Update: Seizing Dictatorial Power -- Bush's first historic mistake (William Safire, 11.15.2001, NYTimes, free reg. req.); On Left and Right, Concern Over Anti-Terrorism Moves (11.16.2001, Washington Post); Editorial: A Travesty of Justice (11.16.2001, NYTimes, free reg. req.); Nat Hentoff on Bush's idea of due process (Village Voice); Prof. Dershowitz on military justice (Village Voice); Kangaroo Courts (William Safire, 11.26.2001, NYTimes, free reg. req); Wake Up, America (Anthony Lewis, 11.30.2001, NYTimes, free reg. req).

More from Groucho. Groucho also said, "Politics is the art of looking for trouble, finding it everywhere, diagnosing it incorrectly, and applying the wrong remedies." And he said, "The more I know men, the more I love my dog." (11.14.2001)

Draft? Occasionally, these days, one reads a story like this about the possibility of reviving the draft (and including women in it). Historically, the Democrats have been louder proponents of the draft than Republicans. It was President Nixon, need I remind you, who ended the draft. In the years since then occasionally you may have read a story that some politician was suggesting reviving the draft. That politician was usually a Democrat. Democrats seem to prefer coercion in this area. Just days after 09.11 a prominent, wealthy Minnesota Democrat and Gore supporter (in 2000) proposed a new draft that would involve coercing people to serve in a homeland self-defense program. More. Not surprisingly, President Bush took the volunteer approach rather than the coercive approach in his proposal for such a force last week. He took the wise approach, I think -- for many reasons, not the least being that he knows that it was the draft that fueled much of the opposition to the war in Viet Nam. I think he also correctly fears that a revival of the draft would be the beginning of the end of massive support for the military aspect of his campaign against terrorism. (11.12.2001)

Civilian casualties. There's been some nonsense coming from some quarters equating the unintentional, accidental killing of civilians during a legitimate, carefully targeted military bombing raid with the intentional, premeditated killing of noncombatants that occurred on 09.11. People with the barest minimum of common sense can distinguish the two, just as, in the words of Justice Holmes, "even a dog knows the difference between being stumbled over and being kicked." Apropos to this: Stephen Ambrose, writer of best sellers, is author of a book released before 09.11 titled The Wild Blue: The Men and Boys Who Flew the B24's over Germany. On 08.16.2001 Gwen Ifill interviewed Ambrose and former Sen. George McGovern on PBS's NewsHour. During WWII McGovern, only 21 at the time, piloted B24 bombers in raids on Germany's oil refineries and he's one of the pilots profiled in the book. Ifill asked him about one of his last missions, when he inadvertently dropped a 500-lb. bomb on a farmhouse on the border of Austria and Italy outside the bombing zone, an incident that haunted him for years afterwards because he feared he had killed the occupants. Here's his response: "I thought, 'You know, it was probably a young family.' It was at high noon having lunch during that period of the day, and I worried about that for years afterwards. When I got back to the base, I was told there was a cable for me. My wife had just given birth to our first child -- our daughter, Ann -- and I thought, 'Gosh, you know, here we bring a baby into the world today and I probably snuffed out the lives of some young family that thought they were safely out of the war zone.' I told that story on television in Austria 40 years later. That night, an elderly farmer called the television studio...and said, 'You know, I know from what the American politician said tonight on television that was my farm that got hit. It was right at 12:00. It was in the area where he said it was. I want you to tell him that I got my family out of the house, I got them into a ditch; we're all safe. We hated Adolph Hitler -- no matter what else you can say about my countrymen -- and if ending the life of our farm, destroying that farm, ended that war even one minute earlier, it was worthwhile.'" More (PBS Online NewsHour) (11.06.2001)

Why won't you sign the pledge? Someone in the U.K., it's not clear who, has drafted a pledge committing signers to religious tolerance of Muslims as part of Islamic Awareness Week. Prime Minister Tony Blair and others in his party have signed the pledge. The Conservatives announced they were not going to sign declarations signed by other organizations. Instead, their leader issued a statement in his own words. His spokesperson said, "It is better for us to express our views in our own terms, rather than sign up to other people's messages." More (This Is London). I've always felt there is something odious and coercive about pledge drives, whether conducted by churches to raise funds or by political and social organizations for other purposes. Call me a misanthrope, but if you come to my door with a petition, I'll come up with a polite (or, if need be, impolite) way of declining to sign it. The last petition I ever signed was one I drafted and circulated in eighth grade. It was a petition to the city council urging the city to establish a "teen center." It was easy getting people to sign it. And circulating it provided me, a shy guy when it came to directly approaching girls for certain purposes, with a legitimate shyness-neutralizing cover to talk to some of the more attractive junior high girls. Curiously, I never presented the petition to the council. At some point I decided there were flaws in my idea. Or was it that I didn't want to give up my precious collection of signatures, some by the coolest chicks in school. :-) On occasion since then, I've pondered whether in some way it was unethical of me to unilaterally decide not to go forward after soliciting and obtaining signatures of support on the understanding that I would go forward. It's not necessarily an ethical question with an easy answer. What has concerned me more, though, is that somewhere along the line I misplaced (or maybe even discarded) the old petition. It is one of the tokens or artifacts of the past I wish I had. (11.06.2001) Update: Why I will not sign the Pledge to British Muslims (Daily Telegraph); Archbishop of Canterbury & Chief Rabbi refuse to sign pledge (Id) (11.07.2001).

The need for another "Reformation." Posted 10.31.2001: On 10.31, 1517 Martin Luther, one of my heroes, nailed his 95 Theses to the door of the Castle Church in Wittenberg, Germany. [more] One of my favorite studies of Luther is Erik Erikson's Young Man Luther. That book, along with Erikson's Identity: Youth and Crisis, helped me better understand not only Luther but my son and young men in general, particularly those who, like my son, are highly creative. Also worth reading are Emerson's writings on Luther, especially his 1835 lecture. George Will, the columnist, once wrote that Luther was one of the "Founding Fathers" of the

American Spirit. Will is right. Luther has always appealed to me because of his courageous American individualism. Specifically, I admire a) his willingness to stand alone, to be a protest-ant if need be, in a just cause ("Here I stand -- I cannot, I will not, recant"), and b) his belief that a man doesn't need a priest to act as an intermediary between God and him but can act as his own priest ("Every man a priest"). BTW, does the portrait of Luther (right) remind anyone of a prominent but retired female appellate judge, also a dissenter? :-) Posted 11.03.2001: As readers of the NYT know, novelist Salmon Rushdie -- who for many years following publication of his Satanic Verses was under a death threat issued by Iranian Islamists, has argued in recent days that Islamic terrorism is "about Islam." News media in the U.K., which sheltered him for many years, have picked up on the story, including his remark, contemporaneous with Reformation Day, that Islam needs its own "Reformation." More (BBC). For previous articles and essays on whether "it" is "about" Islam, click here, here and here. (11.03.2001), and I still occasionally, sometimes to my later detriment and regret, act impulsively and emotionally -- even sanctimoniously -- in matters of principle and friendship. (11.03.2001)

Headline. Headline in print and online editions of NYT today, 11.01.2001: "Schumer and Mrs. Clinton Want F.B.I. to Share Facts." Sounds like a headline out of the 1950's, when women, even those who held public office, were referred to always as "Mrs. This-or-That." I suppose the Times' excuse is it wants to distinguish Hillary from the ex-Prez. Surely there's a way to do that without using the "Mrs." appellation. At least the story doesn't refer to what Clinton was wearing. An authentic 1950's story would have, as in: "Mrs. Clinton, dressed in a tailored navy blue pants suit, stated...." :-) (11.01.2001)

The West is "best." "There is no Asian equivalent of, say, Darwin, no African Max Planck, no Arab Freud, no Japanese Picasso or Matisse. When it comes to ideas, the modern world is a western world, a secular world of democracies, free markets, science and self-governing universities...." From Lost in the swamp of modernity by Peter Watson (New Statesman). The Italian prime minister got in hot water recently when he said basically that Western or Judeo-Christian Civilization is superior to the others. These days a guy can get in trouble for speaking the truth, but it is the truth. Why is it, one asks, that Russia and Turkey want to ally themselves with the West? It's simple. We are #1, as football fans say. The terrorists-murderers know it. They envy us. They figure if they can target some innocent folks in a tall building or a government building and kill them, that they can bring us down. Some jealous folks in communitarian cultures, including in some of our own small towns, can't stand it when someone excels. They want to "bring 'im down a notch." The jealous terrorists-murderers think that they can elevate themselves and their values by knocking a few of our buildings down. Can't be done. William Jennings Bryan said in his famous Cross of Gold speech that "the great cities rest upon our broad and fertile prairies. Burn down your cities and leave our farms, and your cities will spring up again as if by magic; but destroy our farms and the grass will grow in the streets of every city in the country." He was speaking an economic truth. The political and economic truth today is that some assholes can knock down a building or two, maybe even destroy a city, but they can't get at our secret -- that in America everything flows not from government but from us. Every day we, as valued, free individuals, come together consensually and creatively to form a more perfect Union -- and to build great buildings and taller towers, not for our "masters" but for ourselves, we who are our own masters. Like married folks who renew their vows every year, we reform our Union, make it more perfect, every time we vote, every time we think independently, every time we exercise our right to tell it as we think it is, every time we tell an asshole boss where to get off, every time we help out a neighbor, every time we act courageously, every time we work together "whether we work together or apart." (10.31.2001)

The portable church. In a somewhat boring law school class, a friend and I passed the time by passing notes (with-it students now use text messaging). The notes didn't necessarily relate to each other or to what was happening in class. They didn't necessarily make sense. Sometimes the best ones didn't. They were a diversion. One day he sent me a note that said, " [a bright but obnoxious classmate] colors her hair with camel urine." I responded, "Portable playgrounds, mounted on trucks, are the solution to juvenile delinquency in South Boston." What might seem like another silly idea, portable churches, turns out to be more than an idea. "A little-known weapon in the United States Army's arsenal is a mobile house of worship that could be called the stealth sanctuary. The 'containerised chapel' can be dropped from a cargo plane and within six hours be transformed into a multi-denominational religious centre catering to Christians, Jews and Muslims. It's all in a day's work for Natick Labs, the scientific centre that develops high-tech products for the military, from chemical-proof battle garb to high-protein instant meals that last a decade to a portable tent city that can provide all the comforts of home to 550 soldiers stationed anywhere." From Army puts faith in church in a box (SMH). (10.31.2001)

Super-independent judge vows to punish reformers. Iran's top-gun super-independent judge, Ayatollah Mahmoud Hashemi Shahroudi, has had another huffy fit, threatening to punish anyone in Iranian government who advocates closer ties with "the Great Satan," i.e., the U.S. [more] The judge and his pals in the judiciary are the ones who earlier announced a crackdown on everything in life their active, roving, scolding minds find outrageous, including girls wearing tee-shirts, men wearing ties, women wearing makeup, men and women holding hands, and, outrage of outrages, humans owning dogs, which they deem "unclean" and "un-Islamic." Hmm, Mathilda is "un-Islamic" -- she's Norwegian Lutheran -- but she's definitely not "unclean." More.... (10.29.2001)

Remembering an infectious agent that killed 200,000 Americans in one year. Last night I was telling my son about the 1918 Flu Epidemic, which, coincidentally, is the springboard for Andrew Greeley's commentary titled As memories of tragedy fade, life goes on, in the Chicago Sun-Times for 10.28, in which he reminds us we've faced tougher times before without "everything changing." Next time you hear some TV air-head use that phrase "Everything has changed," run it through a DeLaval cream separator. BTW, Greeley puts the figure at 200,000 Americans killed. When one adds in American soldiers who died of it, the correct figure, I believe, is much higher. In my hometown, a man, seemingly well, played poker late one night with buddies, fell ill and died within 24 hours. Links relating to the 1918 epidemic: here, here, here, & here. (10.28.2001)

Is "The Dersh" a "luminary nincompoop"? "It is in one's personal interest, says the luminary nincompoop from Harvard, Alan M. Dershowitz, that in the wake of Sept. 11 citizens should happily queue up for photographs and fingerprints so that they may routinely prove their status. Those who opt out, Mr. Dershowitz ominously opines in The New York Times, might invite greater scrutiny, say, at the airport. Citizens are automatically suspect because they do not volunteer to be inventoried by virtue of nothing but their existence." From an editorial on 10.28.2001 in Pittsburgh Tribune-Review. Here's a link to a Cato Institute piece by Adam Thierer titled National ID Cards: New Technologies, Same Bad Idea that explains in greater detail why I oppose national ID cards. For more on "The Dersh," click here. (10.28.2001)

Rick Rescorla - a lawyer who was a hero, many times over. "When Rescorla was a platoon leader in Vietnam, his men called him Hard Core, because they had never seen anyone so absurdly unflappable in the face of death. Now he was vice president for corporate security at Morgan Stanley Dean Witter & Co., and a jumbo jet had just plowed into the north tower. The voices of officialdom were crackling over the loudspeakers in the south tower, urging everyone to stay put: Please do not leave the building. This area is secure. Rescorla was ignoring them. 'The dumb sons of bitches told me not to evacuate,' he said during a quick call to his best friend, Dan Hill, who had indeed been watching the disaster unfolding on TV. 'They said it's just Building One. I told them I'm getting my people the [expletive] out of here.' * * * Morgan Stanley lost only six of its 2,700 employees in the south tower on Sept. 11, an isolated miracle amid the carnage. And company officials say Rescorla deserves most of the credit. He drew up the evacuation plan. He hustled his colleagues to safety. And then he apparently went back into the inferno to search for stragglers. He was the last man out of the south tower after the World Trade Center bombing in 1993, and no one seems to doubt that he would've been again last month if the skyscraper hadn't collapsed on him first. * * * [T]o the friends he left behind, his death made a kind of cosmic sense on a day when the universe was out of order: The right man in the right place at the right time. He left in a blaze of glory. With no parade." I can't say I've ever personally known a lawyer I'd call "courageous," and I'ver known more than a few who are cowards. But Michael Grunwald of The Washington Post appears to have found a heroic one in Rescorla, the subject of a profile titled A Tower of Courage. I recommend reading it. (10.28.2001)

Orwell's essay, still relevant. "In our time it is broadly true that political writing is bad writing. Where it is not true, it will generally be found that the writer is some kind of rebel, expressing his private opinions and not a 'party line.' Orthodoxy, of whatever color, seems to demand a lifeless, imitative style. The political dialects to be found in pamphlets, leading articles, manifestoes, White papers and the speeches of undersecretaries do, of course, vary from party to party, but they are all alike in that one almost never finds in them a fresh, vivid, homemade turn of speech...." From George Orwell's classic essay, Politics and the English Language, always worth rereading. What he says of "pamphlets, leading articles," etc., also may be said of that sad genre, the appellate judicial opinion. (10.26.2001)

Earlier entries: here, here and here...

Library of Congress September 11 Web Archives. BurtLaw's Law And Everything Else, i.e., this website, is part of the Library of Congress September 11 Web Archive, which preserves the web expressions of selected individuals, groups, the press and institutions in the United States and from around the world in the aftermath of the attacks in the United States on September 11, 2001. Date Captured: September 20, 2001 - December 17, 2001.

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

We don't promote our blawgs, but readers of this blog and of our affiliated political opinion blog, BurtonHanson.Com, may be interested in it. We don't think there is another blawg quite like it.

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