Star Trek Was Good

•May 7, 2009 • 2 Comments

Just got back from seeing it. No time needed to mull this one over. It was great. They did a very fine job with the characters, the plot, the setting (which was like an Apple Store meets 1966). There were so many shout outs to the original show and the original crew, plus many nice references to the other TV series that I’m sure I missed some. IOW, I will be seeing it again while it’s in theaters.

The only thing that wasn’t perfect was the music. They used some of the Star Trek themes we’ve come to love, but overall it was quite a break from Jerry Goldsmith’s iconic work. The new Enterprise theme wasn’t all that satisfying and it certainly doesn’t have the room for growth or breadth of emotion of Goldsmith’s.

I won’t give anything away except to say that, yes, there is some green babe action. Go see it.

Also, in reply to my little joke in this morning’s Star Trek thread my bro sends this:

Mission accomplished!

ME Governor Signs Gay Marriage Bill

•May 6, 2009 • Comments Off on ME Governor Signs Gay Marriage Bill

Maine is the second state to legislatively allow same-sex marriage without being forced to by a court order. This gay marriage stuff is happening so frequently now, what would have once been worth a flaming skull is rapidly approaching sidebar headlines status.

The Maine marriage bill, like Vermont’s, contains religious conscience exemptions for churches and also explicitly provides that no person for any reason (religious or not) that is allowed to perform marriages can be forced to perform a marriage they don’t want to.

New Hampshire is also poised to pass a new marriage law. Like Governor Baldacci before today, New Hampshire Governor Lynch has not stated whether he would sign the bill.

Additionally: The California Supreme Court Prop 8 ruling is due within thirty days. I discussed the case here and the potential outcomes here. I predict that Prop 8 will be upheld, but the 14,000 gay marriages performed prior to its passage will not be invalidated. Ace predicts the “outcome-oriented” Court will knock down Prop 8 here.

Randy Barnett’s Bill of Federalism

•May 5, 2009 • 2 Comments

I’ve been mulling this since yesterday. It’s a more refined version of the federalism amendment Randy Barnett proposed last week. There are ten proposed amendments, and I can’t excerpt them all so go take a look. I really like most of the suggestions, with the exception of these a few:

Article [of Amendment 4] — [Recision Power of States] Upon application of the legislatures of two thirds of the states, any law, regulation or order of the United States shall be rescinded.

No and no. You want to change legislation, you elect different people to Congress. Letting a majority of states do an end-run around the entire system of federal governance is a big mistake. For example, if this amendment had been law, it’s entirely possible that two-thirds of the states would have ended the Iraq War in 2006 and rescinded the War on Terrorism AUMFs.

There are some powers that we, as a People, have committed to a national government. Those powers should remain with the national government. The national government and the state legislatures have different interests. Tying them so closely together, actually making the national government no better than a puppet for highly contested issues is not what the founders had in mind and it does not “restore the balance” to government, as Barnett’s preamble states.

Moreover, if Barnett’s first and second proposed amendments are passed, the national government’s current overreach will have ended and there’d be no need for this one. At most, if you want to give state legislatures a bit more say in Congress, repeal the Seventeenth Amendment and give them back the power to select Senators.

Similarly, the eighth proposed amendment, the balanced budget/line item veto, seems ripe for abuse. Fortunately, it seems unnecessary if the amendments rescinding the income tax and curtailing federal power pass.

What do you guys think? Barnett writes that this is still a work in progress. Do you have suggestions or modifications you want me to forward to him?

Oh, one more thing: I would like to see the Tea Party movement start to adopt this type of concrete proposal. This shouldn’t just be about protesting futilely while President Obama drives this country over a cliff. Now is the chance to make revolutionary changes in our system of governance. Start with the proposal now and as things get worse (which I cynically expect them to, especially after cap and tax) many more people are likely to think, “Huh, maybe we can do something about it.”

That’s party of the beauty of this proposal. This isn’t rocket science to explain. No income tax. No death tax. No federal meddling in state affairs. Term limits. No judicial activism.

Lawless President Obama Attempts a Robbery; Violates Constitution on a Whim

•May 4, 2009 • Comments Off on Lawless President Obama Attempts a Robbery; Violates Constitution on a Whim

Drew M. points me to the continuing dust-up between the Chrysler creditors and the Obama Administration and asks about the Fifth Amendment questions they’ve raised. I missed this story earlier in the day, so it may be old already, but it bears repeating.

Zombie-Chrysler has teamed up with the unions and the Obama Administration to deprive the individuals and institutions who hold Chrysler’s debt of their due. They would like the Bankruptcy Court to reorganize the company (by means of bankruptcy sale) into what they’re calling “New Chrysler” free and clear of their obligations to pay back the creditors. This type of thing is usually referred to as “debt restructuring”, but in this case the more appropriate description would be “Chavez says this isn’t your property anymore, puta.”

So far the creditors have refused to be cowed by Obama’s threats and very public scolding for their lack of patriotic sacrifice. This morning they really started to fight back with a brief eleven-page filing in the bankruptcy proceedings (PDF). Why is it so short? Because they had no more than 15 hours to assemble it.

On Sunday night the debtors (that would be Zombie-Chrysler with the Obama Administration pulling the strings) moved to proceed with the bankruptcy sale. They dropped a 290-page filing under cover of darkness, the object of which is to wipe out the creditor’s secured liens. This was an attempt at robbery.

Some background (and this isn’t my area of expertise, so this is just general stuff; DWL). Bankruptcy is set up to determine in what order individuals involved with a failed enterprise get paid out of what remains. This is called the “estate” and is usually real property, capital improvements, left over stuff like that. And the Bankruptcy Code is essentially a method of sorting the parties and determining who gets to stand at the front of the line. Secured creditors–like the creditors I’ve been referring to above–stand at the very front of the line.

That’s where the Obama-directed, Chavez-inspired sale motion comes in. They want to move the secured creditors behind certain unsecured creditors (the unions) and thus deprive the creditors of their property. Because if there’s one certainty here, it’s that there isn’t enough money left in Chrysler to pay everyone who’s standing in line.

The creditor’s motion is straightforward. Probably owing to the very short time they had to prepare it, it doesn’t engage in legal analysis so much as simply throw objections at the bankruptcy judge with some caselaw cited so he can work it out himself. That doesn’t mean they’re wrong.

Ed concentrated on the constitutional claim–that the Obama plan is unconstitutional under the Takings Clause of the Fifth Amendment. Several people have asked if the 1935 case the creditors cite is still good law. It is. In fact, the holding is at the core of Takings jurisprudence. In the words of Justice Brandeis:

“[T]he Fifth Amendment commands that, however great the Nation’s need, private property shall not be thus taken even for a wholly public use without just compensation. If the public interest requires, and permits, the taking of property of individual mortgagees in order to relieve the necessities of individual mortgagors, resort must be had to proceedings by eminent domain; so that, through taxation, the burden of the relief afforded in the public interest may be borne by the public.”

To the extent the President suggests that he can simply ignore property rights–even if the TARP says he can (which is unclear)–he is incorrect.

Like I said, this isn’t my area so I don’t know if this is a slam-dunk. Takings law has drifted over the years into arguments over whether a taking deprives the owner entirely of his property, with some courts suggesting that in certain circumstances partial takings aren’t protected by the Fifth Amendment. I don’t know whether the proposed robbery leaves the creditors with nothing or merely less, and I don’t know if that matters when we’re talking about dissolving liens rather than regulatory taking. Maybe the Bankruptcy Court will reach the constitutional issue and we’ll find out.

But I doubt it. As interesting as it would be to have it on the record that the President ignored the constitution in order to attempt a robbery, the Bankruptcy Court doesn’t have to go that far. The creditor’s motion describes statutory reasons for disapproving the sale: it doesn’t comply with the Bankruptcy Code. Unless Congress wants to try and make this thuggery legal by altering the Code, the Court has ample opportunity to stop it without discussing the constitutional problem.

Specter Pisses on Kemp’s Grave

•May 4, 2009 • Comments Off on Specter Pisses on Kemp’s Grave

What the fuck, man?

“Well, I was sorry to disappoint many people. Frankly, I was disappointed that the Republican Party didn’t want me as their candidate,” Mr. Specter said on CBS’s “Face the Nation.” “But as a matter of principle, I’m becoming much more comfortable with the Democrats’ approach. And one of the items that I’m working on, Bob, is funding for medical research.”

Mr. Specter continued: “If we had pursued what President Nixon declared in 1970 as the war on cancer, we would have cured many strains. I think Jack Kemp would be alive today. And that research has saved or prolonged many lives, including mine.”

You gotta be kidding me.

There’s a reason good people don’t like Senator Independent-Minded and this is it. He’s got no respect for anything other than his own ambition. Which is why he thinks it’s just peachy to exploit Kemp’s death before his body is even in the ground.

This fits perfectly with his new party. It’s unverifiable speculation whether more cancer spending would have prolonged Kemp’s life. And it doesn’t make a lick of sense. Does Specter think that there is no interest in curing cancer unless the federal government spends money on it? Is he retarded?

Judge Sotomayor: “The Court is Where Policy is Made”

•May 3, 2009 • Comments Off on Judge Sotomayor: “The Court is Where Policy is Made”

Judge Sonia Sotomayor of the Second Circuit Court of Appeals is one of the likely candidates to replace Justice Souter. Chuck Schumer has been pushing her name and she meets Obama’s stated interest in increasing diversity on the bench (she’s Hispanic).

So, what kind of judge is she? Morgen, of the blog Verum Serum, found this:

“All of the legal defense funds out there– they’re looking for people with court of appeals experience. Because court of appeals is where policy is made. And I know, I know this is on tape and I should never say that because we don’t make law. [Laughs] I know. I know. [Laughter] I’m not promoting it, I’m not advocating it, I’m…y’know.”

Check out that hand wave at the end. She walks it back, sure, but there’s no question what she believes. She thinks she gets to make policy and she knows that she’s not supposed to say that out loud. This is what Obama is looking for on the bench.

Incidentally: This is probably a good time for a discussion about timing. Morgen, who found this, had a tough choice. He’s found something juicy, but it may be even better to sit on it for a while (like, say, until Obama nominates Sotomayor for something). On the other hand, if he sits on it, someone else may find it and break it first.

There’s a limit on the effectiveness of stuff like this. If the Reverend Wright stuff had come to light in October, the last election may have turned out differently. But by the time the election rolled around everybody had adapted to it, justified it in their own minds, and moved on. It was “old news” and not worth getting upset about.

Of course, once people started scrutinizing Wright it all came out. It was over and done. That’s what news media (and blogs) are about. Getting the story and sharing it. The same can be true for Obama’s likely choices to replace Souter.

Everybody’s looking at Sotomayor, Kagan, and Wood now, but whoever Obama wants probably won’t be nominated until mid-June at the earliest. The real deadline isn’t until October, when the Court’s next term begins, although the President is going to want to give his choice an opportunity to get settled and hire clerks. All this attention now might give the moderate Democrats, who might have a problem with Judge “I Make Policy” Sotomayor or the other likely nominees, time to adapt.

I’m not criticising Morgen. I’m just saying, sometimes it’s a balancing act. Just like the legacy media, bloggers are advocates. We want certain outcomes and in this case Morgen and I want Obama to end up with pie on his face before the Souter seat is filled. But we also want to break big stories and scoop the rest of the blogs.

Al-Marri Pleads Guilty to Supporting Terrorism, But This is Another Failure for Lawfare

•April 30, 2009 • 1 Comment

The shameful Al-Marri case is nearly played out; he pleaded guilty to a single charge of providing material support for terrorism. Ali Saleh Kahlah Al-Marri was arrested in December 2001 on suspicion of being a sleeper agent. He was then held as an enemy combatant starting in 2003.

He is the poster-child for the failures of the criminal justice system to cope with the War on Terrorism.

In 2002, Al-Marri was charged in Illinois with making false statements to the FBI and to financial institutions, identity fraud, and credit card fraud. Those charges were dropped when President Bush designated him an enemy combatant in 2003. He was moved to the Naval Brig in Charleston.

He then challenged his detention in court. The Fourth Circuit was happy to oblige and ordered that he be released or transfered back to civilian control and charged with a crime. The en banc court realized that was pure, unfiltered insanity–death pact style–and decided to take another crack at it. The result was perhaps the most fractured, incoherent, and embarrassing decision ever issued by a circuit court of appeals. Here’s what I wrote at the time. A taste:

An en banc panel of the Fourth Circuit announced its decision in a Guantanamo detainee case, Al-Marri v. Pucciarelli (PDF) today and it is a mindnumbing 216 pages long. The decision itself is per curiam which means the court came to a conclusion without assigning a specific judge to present it. Why? There are nine judges and seven different opinions, including two different 5-4 decisions and four additional decisions “concurring in part and dissenting in part.” This is what the War on Terror looks like in the federal courts. It is an unholy mess.

This was the result of the Supreme Court’s abandonment in Boumediene v. Bush of over 200 years of constitutional law. Terrifyingly, the Supreme Court agreed to hear Al-Marri’s case this term. Before that could happen, the Justice Department (first under Bush and then under Obama) decided that maybe civilian control would be a better idea after all.

On February 27, 2009, he was indicted for providing material support to al-Qaeda and conspiring with others to provide material support to al-Qaeda. He was transferred out of the Naval Brig and back to Illinois, where the whole thing started seven years ago. He initially pleaded not guilty and the case was set for trial.

Today, he pleaded guilty to the material support charge. The other charge was dismissed. The details are chilling:

Papers filed in connection with Al-Marri’s guilty plea paint an unusually detailed portrait of his dealings with Al Qaeda and, in particular, with one of the group’s leaders, Khaled Sheikh Mohammed, known as KSM. Al-Marri admitted to attending terrorist training camps run by Al Qaida and that he traveled to the United States at the direction of KSM, who told him to enter the U.S. no later than September 10, 2001, one day before the terrorist attacks on the World Trade Center and the Pentagon.

The plea agreement says Al-Marri, using the code name “Abdo,” was to keep in touch with Mohammed, whose code name was “Muk,” by sending e-mails to him at a hotmail account, HOR70@hotmail.com. Details of the arrangements and the codes were found at an Al Qaeda safehouse in Pakistan, the plea deal says.

Court papers also say Mohammed arranged for Al-Marri to meet in Dubai with a financier of the September 11 attacks, Mustafa al-Hawsawi, who gave Al-Marri $10,000 to fund his travels to the U.S. Al-Marri entered the U.S. on September 10, 2001 and enrolled at Bradley University in Illinois. After the 9/11 attacks, he made repeated but unsuccessful efforts to contact KSM and al-Hawsawi by phone and e-mail, the documents say.

The plea agreement also says that Al-Marri conducted research on the effect of cyanide gas and on waterways, dams and tunnels where a terrorist attack could have been mounted.

Under the plea deal, the government agreed not to seek to detain al-Marri again, either through criminal charges or military detention, based on his involvement with al- Qaida prior to his arrest in December 2001. Court papers say he has agreed to be deported to Saudi Arabia or Qatar when his sentence is complete—or possibly sooner.

He faces a possible sentence of 15 years, but may receive credit for time served.

AG Holder is crowing that this is a victory for justice and the War on Terror:

“Without a doubt, this case is a grim reminder of the seriousness of the threat we as a nation still face,” Attorney General Eric Holder said in a written statement. “But it also reflects what we can achieve when we have faith in our criminal justice system and are unwavering in our commitment to the values upon which the nation was founded and the rule of law.”

Holder is a deluded fool. The American government walks away from this case with its tail between its legs. It was thwarted at every turn by our own legal system. Read back over the details of what Al-Marri was up to and tell me with a straight face that justice was served. The criminal justice system failed us.

Lawfare Fails Again

•April 29, 2009 • 2 Comments

The folly of pretending the War on Terror is a law enforcement problem was illustrated again yesterday, first in the UK and then here in California.

First, The three 7/7 conspirators, on retrial for aiding in the bombing attacks on London’s metro and bus system, were acquitted of the terrorism charges. Their first jury last year couldn’t come to a verdict. Neither jury was allowed to see much of the evidence that connected the men to the 7/7 bombers because wiretaps conducted by intelligence agencies are not admissible in UK courts.

I’ve said it before: evidence collection and intelligence gathering are not the same thing. They have different purposes and different legal consequences.

Second, the Ninth Circuit ruled that the state secrets privilege, which had been asserted by both Presidents Bush and Obama, could not shield a Boeing subsidiary from litigation. The subsidiary, Jeppesen Dataplan Inc., was sued by five men who allege that they were kidnapped and tortured as part of the extraordinary rendition program. The U.S. government intervened in the suit and asked that it be dismissed since details of Jeppesen’s participation–mainly filing flight plans–would compromise national security.

The Ninth Circuit refused to allow the dismissal, holding that state secrets privilege must be asserted on an “item-by-item basis” to discovery requests by the parties.

This is, as usual for the Ninth, a seriously retarded ruling. Consider: so the case is back in district court and the five guys make discovery requests. The U.S. government now has to intervene each time it finds a request objectionable. Then, it will have to file an interlocutory appeal each and every time the district court rules against it (assuming it really wants to assert the privilege). The government cannot wait for the end of the trial to appeal adverse state secrets decisions. By then the secret won’t be.

So the Ninth has created a situation where this litigation can conceivably bounce back and forth to the appellate courts indefinitely as the parties seek discovery and the U.S. government continues to assert state secrets privilege. This assumes that Obama stays the course on state secrets (maybe not a great assumption).

In the Ninth Circuit’s defense, this area of law isn’t very well developed. On the other hand, that should have given them plenty of room to fashion a workable solution. Instead, they ignored the practical result of their decision. A copy of the opinion is available here (PDF).

Obama Stages Photo-Op, Scares the Bejebus Out of Lower Manhattan

•April 27, 2009 • 1 Comment

Another example of Obama’s extreme childishness and lack of regard for anyone other than his own self:

A Boeing 747 used by the president was escorted over lower Manhattan by an Air Force fighter jet Monday as part of a government photo opportunity and training mission, causing a brief panic among office workers near where hijacked passenger jets crashed into the World Trade Center on Sept. 11, 2001. Workers from several office buildings poured out onto the streets before they learned that the flights were harmless.

John Leitner, a floor trader at the New York Mercantile Exchange Building, said about 1,000 people “went into a total panic” and ran out of the building around 10 a.m. after seeing the planes whiz by their building, near the World Trade Center site.

[…]

Another reader who responded to msnbc.com’s request for photos said: “Video? Picture? Who the heck had time for that?!?!?! We were all too busy getting the heck out of the building!

“A coworker, whose desk faces the window, all of a sudden had this huge jumbo jet in his face,” wrote Jenny Espinosa. “This poor kid freaked. One woman who works in our building, and is pregnant, had a panic attack and almost collapsed.”

I would have probably panicked as well. We occasionally have low flying planes pass over downtown L.A. It raises my blood pressure every time. Of course, when it happens in L.A. the plane doesn’t turn around and come back like this morning in Manhattan:

Among the workers who left their buildings were some at The Wall Street Journal. Kathleen Seagriff, a staff assistant in the news rooms, said workers heard the roar of the planes and then saw them from their windows.

“They went down the Hudson, turned around and came back by the building,” she said. “It was a scary scene, especially for those of us who were there on 9/11.”

What jerks. Whoever approved this nonsense owes New York and New Jersey an apology.

Dems Blame GOP for Keeping Pandemic Peparedness Funding Out of Spendulus

•April 27, 2009 • Comments Off on Dems Blame GOP for Keeping Pandemic Peparedness Funding Out of Spendulus

It’s in the Nation today (link is to Don Surber), which means it will be in the N.Y. Times tomorrow and parroted on the evening news programs tomorrow night.

Susan Collins, the Judas who made the spendulus possible, apparently blocked $900 million in pandemic preparation money from the Senate version of the bill (but see here for Chuck Schumer crowing about cutting “porky things” like the flu preparedness money).

This is stupid for a couple reasons. First, pandemic preparedness would not have stimulated the economy. Remember the alleged purpose of the emergency “OMG, pass it, pass it now” stimulus package?

Second, there is nothing standing in the way of Congress if it wanted to pass a pandemic appropriation either after the spendulus or even today. It’s a little silly of Democrats, who control both houses of Congress and the White House, to point at Republicans and claim that they’d have had the appropriation if it weren’t for Susan Collins.

If we put that little claim through the AOSHQ translation module, this comes out: “We are weepy, scared, impotent, and–above all–have no idea what we’re doing. Please don’t be mean; Harry and Nancy bruise easy.”

Drama Before Iowa Marriage Decision Takes Effect

•April 26, 2009 • Comments Off on Drama Before Iowa Marriage Decision Takes Effect

There have been several developments in Iowa over the past few weeks. The Iowa Supreme Court’s marriage decision will go into effect on Monday and both sides of the vigorously ongoing debate are ready for more drama.

Two Wednesdays ago, an assistant for a Republican state representative called a county recorder and asked her not to issue marriage licenses to gays because the Iowa Supreme Court decision is “just an opinion.” The representative, Kent Sorenson, says he didn’t ask his assistant to make the call. It touched off a new, more contentious phase to preparations.

The next day, a spokeswoman for the Iowa Department of Public Health sent an email to Iowa’s 99 country recorders telling them they are required to comply with the decision, no exceptions.

The same day, state Senator Merlin Bartz and other Republicans attempted to insert language into a bill which would have provided a “right to conscience” exception for county recorders who don’t want to issue marriage licenses to gays. He was blocked by the Democratic leadership on procedural grounds.

On Monday, Bartz and the Iowa Family Policy Center began circulating petitions encouraging Iowa’s 99 county recorders to refuse to issue marriage certificates to gay couples.

On Wednesday, Iowa Attorney General Tom Miller issued a statement that has been construed as threatening to county recorders (classy headline, BTW):

“We expect duly-elected county recorders to comply with the Iowa Constitution as interpreted unanimously by the Iowa Supreme Court, the highest court in Iowa,” Miller said in a statement to the Iowa Independent. “Our country lives by and thrives by the rule of law, and the rule of law means we all follow the law as interpreted by our courts — not by ourselves. We don’t each get to decide what the law is; that would lead to chaos. We must live by and follow what the courts decide.”

“Recorders do not have discretion or power to ignore the Iowa Supreme Court’s ruling,” Miller said, adding: “If necessary, we will explore legal actions to enforce and implement the Court’s ruling, working with the Iowa Department of Public Health and county attorneys.”

Also on Wednesday, the Alliance Defense Fund, a Christian legal organization that I have bad-mouthed before, announced it will provide legal services for any recorder who refuses to provide marriage certificates as an exercise of conscience.

The other side of the marriage coin is state judges who are empowered to perform marriages. One judge has announced that he will simply perform no marriages at all, partially as a result of the decision. He notes that he didn’t know until recently that it was a discretionary function and he has had reservations about providing some straight marriages. The AG confirms that if a judge wishes not to perform marriages, she does not have to; however, she cannot choose to perform only straight marriages.

Monday will be the first day gay couples can apply for marriage licenses. Generally, there is a three day waiting period between application and grant of a license. However, that delay can be waived by judges. So, sometime next week the first gay marriages in Iowa will occur.

Finally, there’s one other wrinkle. I can’t decide which side this is going to annoy more, but it’s going to be difficult to tell how many gay couples are getting married in Iowa because some county recorders do not make marriage applications available as public records.

Conscience exceptions have been gaining steam during the past year. Vermont included some in its recently passed marriage law. Connecticut, which passed a marriage law this week as the result of a court order, also included protections for churches and some other groups. In fact, because Connecticut was required by its Supreme Court to make marriage available to gay couples, the debate over the law largely focussed on how broad to make the conscience exception.

About this Swine Flu Thing

•April 25, 2009 • Comments Off on About this Swine Flu Thing

Alright, alright, now, let’s not get hysterical (yet). The flu variant that has folks worried responds to two common treatments and there isn’t enough data yet to tell how widespread it is or how severe it will be (so far the fatality rate has varied widely based on location).

On the other hand, there’s no reason not to be prepared. Do the obvious:

(1) Wash your hands frequently when you’re out and about. Try not to touch your face. Stop coughing into your hand and cough into your elbow or a tissue.

(2) I know a lot of folks, including in my workplace, use hand sanitizers frequently. Don’t forget to sanitize your workspace; you’re probably not the only person in there.

(3) Avoid shaking hands, hugging, or kissing friends and neighbors and prostitutes.

(4) Avoid crowded places. For example, I’m giving serious consideration to driving my own car to work next week instead of taking the metro, especially given the large Mexico-US transit population among the folks that ride the subway here in L.A.

(5) This is not the right time to share drink glasses or water bottles or half a candy bar with your coworker or your BFF. Use your brain, dingus.

Okay, now that we’ve got that out of the way, here’s the latest news:

On Saturday, two new cases of swine flu were confirmed in Kansas — the first U.S. cases outside of California or Texas. And New York City Health Commissioner Dr. Thomas Frieden announced that tests showed that eight New York schoolchildren had a type A influenza virus that was “probable” swine flu.

Samples have been sent to the U.S. Centers for Disease Control and Prevention for further testing for confirmation. The students showed only mild flu symptoms.

Keep in mind, anyone with even the mildest flu-like symptoms will be trumpeted by the media as another case (for example). It might fizzle; it might not. Let’s wait and see.

Somali Charged with Piracy; Will be Judged by the “Law of Nations”

•April 23, 2009 • Comments Off on Somali Charged with Piracy; Will be Judged by the “Law of Nations”

The captured Somali pirate faces five criminal charges, including conspiracy to take a U.S.-flagged ship by force and piracy. The complaint is here (PDF).

Piracy is one of the oldest crimes under federal law and the statute, 18 U.S.C. § 1651 is unusual:

Whoever, on the high seas, commits the crime of piracy as defined by the law of nations, and is afterwards brought into or found in the United States, shall be imprisoned for life.

First, there’s no futzing with the sentence like most modern criminal statutes. If he’s guilty, it’s life imprisonment. No adjustments for his alleged youth or sad circumstances.

Second, there’s this law of nations business. The U.S. has not joined the 1982 Law of the Sea Treaty. However, Article 15 of the 1958 Convention on the High Seas, to which the U.S. is a party, defines piracy in substantially the same way. Is that enough to determine how “the law of nations” defines piracy? I guess we’ll see.

Fourteen Years Later

•April 18, 2009 • Comments Off on Fourteen Years Later

I can’t believe it has been so long. Fourteen years ago at 9:02 in the morning a truck parked outside the America’s Kids Day Care Center exploded. The blast, fueled by a fertilizer-diesel mix, was felt up to sixty miles away. It obliterated the day care center and brought down a third of the building. It shattered the windows of nearby buildings, killing or injuring many outside the target.

I’m talking, of course, about the Alfred P. Murrah Federal Building in Oklahoma City. Ultimately, 168 people, including 19 children, were killed. Three unborn babies were also killed.

I was in junior high school at the time, in Stillwater, Oklahoma. It was a Wednesday and for some reason I was out of the classroom. I don’t remember if I was running an errand for a teacher or what, but I do remember that I was on my way back to class when I passed the main office. Unusually, the TV was on, and quite loudly. It looked like everyone was gathered around it. So I wanted to see what was going on.

There was much more confusion that morning than is remembered now. Now we know that there was only one bomb, the Ryder truck. But back then there was a series of bomb scares during the rescue efforts. That was the first thing I saw and the strongest images I have of the bombing.

It was live footage in the street near the Murrah building. I remember seeing people sitting or standing, most of them crying or clutching injuries. There was blood. There were EMTs and firemen. And then suddenly so many people were running away. It wasn’t immediately apparent why they were doing that–and then the cameraman started running too, which added another element of confusion.

It was all very hard to believe. Not just a bombing in Oklahoma–really? Oklahoma? But an on-going attack. I was so confused because the people I’d seen on TV were already hurt and the EMTs and firemen were already there. When you’re a child you think, “Okay, the good guys are here; you can stop being afraid.” But that wasn’t the case, and I only realized it that minute. If I had to list the important formative events in my life, that would be right near the top.

When I got back to the classroom I didn’t say anything to anyone. I didn’t know what to tell them and I could hardly believe it myself, even after seeing it live and hearing the people in the main office crying. It was the same experience I had six years later during 9/11 when my first thought upon turning on the TV was that they were showing a movie clip on FNC. This cannot possibly be happening.

Sometimes I still feel that way.

Individuals, Group Sue DHS Over “Rightwing Extremist” Report

•April 16, 2009 • 1 Comment

The Thomas Moore Law Center has sued the Department of Homeland Security because of the “Rightwing Extremists” intelligence assessment released last week. The suit is filed on behalf of a pro-life group, an Iraq war veteran, and Michael Savage. All three allege First and Fifth Amendment violations. According to their allegations, the report has a “chilling effect” on protected political speech and subjects them to unequal treatment because of their political beliefs or veteran status. They seek a declaratory judgment, an injunction, and attorney’s fees. The fairly short complaint is here (PDF).

Professor Orin Kerr is already making fun of it, calling it a “frivolous” lawsuit. (Attorneys can be sanctioned for filing frivolous suits.) Kerr characterizes the suit:

As I read it, the lawsuit is claiming that the issuance of a government report criticizing certain groups violates the plaintiffs’ constitutional rights. But the Constitution doesn’t provide a constitutional right to have the government not say things that might be considered criticism. Perhaps the plaintiffs want the Constitution to be radically reinterpreted by activist judges to invent some brand-new constitutional rights?

I can only imagine that he hasn’t actually read the report and fell for the lefty drivel trying to explain it away. A copy is linked from here. It doesn’t merely criticize individuals or groups. It classifies individuals as susceptible to or aiding in the creation of violent criminals and that classification is based on political beliefs. In particular, the report identifies support for state and local government, the Second Amendment, border security, unborn children, and several other conservative issues as fostering violence. It makes generalized reference to “hate-groups” that, in context, refers to conservatives.

More than that–and this is the kicker–it does not merely focus on identifying, isolating, and preventing violence. That is something we can all agree is the proper job of government and there is, of course, no constitutional protection for committing violent crimes. Rather, the report specifically labels speech, conservative speech, as an activity of extremists. It then goes on to encourage law enforcement and other agencies to report “suspicious or criminal” activity to DHS or the FBI. A plausible explanation is that DHS is surveilling conservative groups and encouraging law enforcement to do the same.

So, no, I don’t believe it is a frivolous lawsuit. Perhaps if, as Kerr apparently assumed, the report merely criticized “rightwing” groups and perhaps if it hadn’t included a call to action.

This is not to say that it the lawsuit is without its problems. Though it is clearly not frivolous, it may not prevail on the merits. I’m not convinced that the plaintiffs have sufficiently alleged an injury caused by the report. Thus, as regularly seems to be the case around here, the first major hurdle for plaintiffs will be standing.

Bombshell Update: Stick this in your hole and smoke it! The DHS civil rights division (DHS has a civil rights division?) apparently raised concerns about the report. The department decided to issue it before those concerns were resolved. Hmm, the fevered conspiracy-mongering that this was released last week as a preemptive strike at the teaparties doesn’t seem as unlikely now.

Discovery is gonna be a bitch.

Obama’s DHS Targets “Rightwing Extremists”

•April 14, 2009 • 2 Comments

Like Michelle I wasn’t too sure this was for real when I first saw it; but now she’s confirmed it. The report, “Rightwing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment”, was made available April 7 and then posted by the Liberty Papers.

DHS tends to paint with a rather broad brush. From pages 3 and 4:

Rightwing extremists are harnessing this historical election as a recruitment tool. Many rightwing extremists are antagonistic toward the new presidential administration and its perceived stance on a range of issues, including immigration and citizenship, the expansion of social programs to minorities, and restrictions on firearms ownership and use. Rightwing extremists are increasingly galvanized by these concerns and leverage them as drivers for recruitment. From the 2008 election timeframe to the present, rightwing extremists have capitalized on related racial and political prejudices in expanded propaganda campaigns, thereby reaching out to a wider audience of potential sympathizers.

I was struck by the following sidebar too. I bet you’ll know why:

Scholars and experts disagree over poverty’s role in motivating violent radicalization or terrorist activity. High unemployment, however, has the potential to lead to alienation, thus increasing an individual’s susceptibility to extremist ideas. According to a 2007 study from the German Institute for Economic Research, there appears to be a strong association between a parent’s unemployment status and the formation of rightwing extremist beliefs in their children—specifically xenophobia and antidemocratic ideals.

“Alienation”? Oh, please. Could the author be any more transparent?

Busy, Busy, Busy

•April 13, 2009 • Comments Off on Busy, Busy, Busy

Sorry for the non-existent posting; I’m slammed at work and too tired to write when I get home. Fortunately, my cobloggers are blogging up a storm at AOSHQ.

Marriage Roundup

•April 7, 2009 • Comments Off on Marriage Roundup

Last week the Iowa Supreme Court decided that civil marriage must be available for gay couples as well as straight. Here’s what people are saying.

Robert Stacy McCain argues that marriage is important enough that conservatives should put their foot down and say “No further.” A taste:

We know, however, that their latest demand is never their last demand. Grant the radicals everything they demand today, and tomorrow they will return with new demands that they insist are urgently necessary to satisfy the requirements of social justice.

When they refer to themselves as “progressives,” radicals express their own basic truth: Their method of operation is always to move steadily forward, seeking a progressive series of victories, each new gain exploited to lay the groundwork for the next advance, as the opposition progressively yields terrain. Such is the remorseless aggression of radicalism that conservatives forever find themselves contemplating the latest “progressive” demand and asking, “Is this a hill worth dying on?”

Then, putting McCain’s observations in a more specific light, Eugene Volokh discusses marriage in the context of the slippery slope. He points out that the Iowa Supreme Court used the creation of limited legal protections on the basis of sexual orientation, e.g. in the areas of employment, housing, and education, to support the claim that the right to marry should be seen as encompassing same-sex marriage. In other words, because the legislature prohibited discrimination in some circumstances, the judiciary felt justified in prohibiting discrimination in other circumstances.

On that note, conservatives in Iowa will likely have some difficulty overturning the ruling because amending the Iowa Constitution is more difficult than in most states. It takes a majority vote of two consecutive sessions of the state legislature to put the issue on a general election ballot. The earliest it could be in front of voters then, assuming conservatives take back the legislature, is 2012. The other method is a vote next year to hold a constitutional convention, which would put the question to voters at the earliest in 2011.

Finally, over at FiveThirtyEight, Lefty statistician Nate Silver has created a model to predict when voters in each state would vote against a marriage ban. This one really has to be seen to be believed, so click over and take a look.

In related news: Vermont has become the second state where the legislature has passed a gay marriage bill only to have it vetoed by the Republican Governor. (California’s done it twice.) Today it goes back to the state House and Senate for override votes. The Senate is expected to have no problem overruling the veto. However, at last count the House was five votes short of an override.

AP to Step Up Threats Against Bloggers?

•April 6, 2009 • Comments Off on AP to Step Up Threats Against Bloggers?

Associated Press, like most of the other major media dinosaurs, is trying to adapt to the internet and new media. The strategy thus far has been to intimidate bloggers and other websites which use AP’s copyrighted content into taking it down or paying $2.50 per quoted word. Most folks just laughed their pricing scheme off, and rightly so.

(Although, there have been a few instances where copyright infringement was likely going on when bloggers reproduced whole articles or series of photos from AP. Don’t do that.)

Since no one took them seriously before, AP is plotting a new strategy, one it probably hopes to sell to other dinosaurs as an additional service. The idea is to create a “a rights management and tracking system”–basically a search engine for copyrighted works–which will make it easier to go after folks who copy:

The AP, which has been facing subscription cancellation threats from a number of struggling US newspapers, also announced it will significantly cut the rates its charges newspapers for its news services.

The moves were unveiled at the AP annual meeting in San Diego, California, and in a press release by the New York-based news agency, a cooperative owned by more than 1,400 US newspapers.

In a crackdown on Web piracy, the AP board of directors said they were launching a “newspaper industry initiative to protect news content from misappropriation online.”

“We can no longer stand by and watch others walk off with our work under misguided legal theories,” AP chairman Dean Singleton said.

The AP statement said the news agency would work with Internet portals and other partners who legally license content “and would pursue legal and legislative actions against those who don?t.”

The “misguided legal theory” referenced by Singleton is the doctrine of fair use, something AP has been trying to sidestep for years. Last year I wrote a primer on fair use for bloggers, and it’s probably about time to dust it off. If you’re a blogger and wonder just how much use is “fair use” you might want to take a look.

Poll: 57% Want Military Response to North Korea Missile Capability

•April 5, 2009 • Comments Off on Poll: 57% Want Military Response to North Korea Missile Capability

I’m not sure that I believe this poll, but:

Fifty-seven percent (57%) of U.S. voters nationwide favor a military response to eliminate North Korea’s missile launching capability. The latest Rasmussen Reports national telephone survey shows that just 15% of voters oppose a military response while 28% are not sure.The telephone survey was conducted Friday and Saturday, April 3-4, the two days immediately prior to North Korea’s launch. The question asked about a military response if North Korea actually did launch a long-range missile.

Overall, 75% of voters say they’ve been closely following news stories about the possible launch. That figure includes 40% who’ve followed the news Very Closely.

Would 57% favor a one-off strike on North Korea’s known rocket facilities? Sure, I believe that and I’m surprised that number isn’t larger.

What I don’t believe is that 57% favor a more involved confrontation than a one-off strike. And I don’t believe that Li’l Kim would fail to turn an attack on his rocket or nuclear facilities into a protracted engagement across the Korea DMZ. Just because we’d like him to do nothing in retaliation doesn’t mean he will.

I’m also a little skeptical about the self-reported 75% of voters who think they have been “closely following” this story. That seems rather like a lot more than my own experience. Yes, anecdote is not data, but around my office–all professionals, all regular voters–I wouldn’t bet two in ten knew anything about the launch. I think it’s much more likely that when Rassmussen calls you up and asks, “Hey, have you heard”, most people will say, “Yes, of course” just so they don’t feel like ninnies.