7:17 AM :: Stephen (contact)

Back in mid-August: I'll be leaving for a summer vacation on Monday, so expect more posts in a little over two weeks!

 

7:02 AM :: Stephen (contact)

Joe Lieberman, nativist? I suppose it should warm my heart that a candidate could visit a New Hampshire manufacturing plant and give a speech opposed to protectionism. But I have to say that I didn't expect "Joe's Jobs Tour" to involve China-bashing. From the news release:

Lieberman pledged that one of his first priorities a President would be to confront the grave challenge from China, which is bending and breaking the rules of free trade and costing American workers jobs. Lieberman said that, while it is to America's benefit--and China's--to maintain a strong relationship, "that relationship has to be based on honesty and fairness. And right now, it's not."

Lieberman, continuing his recently-launched "Joe's Jobs Tour," cited three flagrant areas of violation that are costing American jobs, which he vowed to combat as President:

Counterfeiting. Intellectual property theft costs American businesses at least $200 billion a year--and China is the main offender. "That's wrong, and it's got to stop," said Lieberman.

Workers' Rights. Child labor and forced labor are reportedly rampant in China--exploiting Chinese workers and giving their producers an unearned advantage on the world market.

Currency. China ties the value of its currency to the dollar instead of letting it find its fair value in global currency markets, allowing Chinese products to unfairly undercut their competitors on the world market.

"President Bush must know all this is going on, but he is doing nothing about it," Lieberman said. "I don't know why, unless it's his ideological aversion to having our government do anything to intervene in our economy--even if it is to help American manufacturers and workers. For us, Bush's laissez-faire means "I don't care.'"

Okay--cracking down on WTO violations and forced labor abroad would be a good thing. Not only would it encourage efficiency (and end an abuse for those unjustly forced into labor camps), it would also quell some of the protectionist pressure at home. And devaluing a currency, by making a country's exports cheaper, can be a way of pushing economic weakness onto others. But since when is pegging a currency to the dollar an example of unfair competition? Isn't this what the banks have been encouraging for countries at risk of inflation? (Is Ecuador the next target?)

Maybe China's currency has gotten lower than it should be, and it's hurting other countries' exports as a result. But surely one proximate cause of this imbalance is that we've let the dollar slide. And in any case, the countries that get hurt are those competing for China's export markets, such as Singapore and Thailand--not the US. American producers stand in the same relation to Chinese producers as they did before; China hasn't devalued its currency with regard to us, for the simple reason that they haven't changed their peg.

I suppose this might be just some political red meat, thrown to a voting bloc that's not normally sympathetic to free-traders. But doesn't it sound just a little odd when a candidate blames job losses on "Chinese currency manipulation"?

 

6:51 AM :: Stephen (contact)

A Tale of Two Stories: Jessica Lynch recently returned home to West Virginia, according to a rather sober account by the Associated Press:

Former POW Jessica Lynch returns to West Virginia today, four months after ordeal in Iraq
GAVIN McCORMICK and APRIL VITELLO
Associated Press Writers

Former POW Jessica Lynch is coming home to West Virginia today after nearly four months of recuperation from multiple broken bones and other injuries, and hospital stays in Iraq, Germany and Washington, D.C.

Lynch and her parents will board a Black Hawk helicopter at Walter Reed Army Medical Center in Washington at late morning for a flight to Elizabeth, W.Va. A unit from the Parkersburg National Guard, which includes Lynch's cousin, Dan Little, will bring her home.

Little, who has spoken twice with Lynch in the past week, said her spirits have been buoyed by the imminent homecoming.

A couple of pretty standard paragraphs--who, what, where, when, etc. Compare with this, however, the first three paragraphs of the same story as reported by Deanna Wrenn of Reuters:

Hyped hero Jessica Lynch due home
By Deanna Wrenn

PALESTINE, West, Virginia [sic.] (Reuters) - Jessica Lynch, the wounded Army private whose ordeal in Iraq was hyped into a media fiction of U.S. heroism, is set for an emotional homecoming today in a rural West Virginia community bristling with flags, yellow ribbons and TV news trucks.

But when the 20-year-old supply clerk arrives by Blackhawk helicopter to the embrace of family and friends, media critics say the TV cameras will not show the return of an injured soldier so much as a reality-TV drama co-produced by U.S. government propaganda and credulous reporters.

"It no longer matters in America whether something is true or false. The population has been conditioned to accept anything: sentimental stories, lies, atomic bomb threats," said John MacArthur, the publisher of Harper's magazine.

Now, which of these accounts sounds to you like the product of the politicized news media? If you ask me, the "media fiction of U.S. heroism" has a decidedly editorial ring to it. Besides, what do we know to be fictional about the case of Jessica Lynch? As the Washington Post has admitted (however reluctantly), the initial reports of her fighting back at her captors were incorrect. Moreover, the soldiers who rescued her did not take fire from the hospital itself. However, her rescuers were fired upon from elsewhere in the hospital grounds, and therefore claims that the rescue was purposefully dramatized (or that the soldiers were firing blanks) are mistaken. Although it's always possible that the initial stories were the result of deliberate misinformation, it's just as possible that they resulted from simple human error. And in any case, does this really justify a judgment that the entire episode was a "media fiction"?

(At the very least, won't the footage of her return home be true to life? Is Reuters really claiming that "the embrace of family and friends" is "a reality-TV drama co-produced by U.S. government propaganda"?)

The real concern with Reuters' coverage is its willingness to cede absolute editorial authority to such "media critics" as Harper's publisher John MacArthur or U. Penn. professor Carolyn Marvin. In the article, MacArthur and Marvin are allowed to draw extroardinarily vast conclusions--"The failure here," says Marvin, "was that the news media got to thinking the government could be trusted to reflect reality"--without a single quote in response. Reuters' only attempt at soliciting such a response was the following:

A spokesman for U.S. Central Command in Florida had no comment when asked about assertions that the heroism tale was government propaganda.

Well, duh. If I were asked point-blank whether my website were full of government propaganda, I'd probably refuse to comment too. If Reuters' sources were alleging that the rescue was staged, couldn't it at least have cited some of the government's earlier denials?

This isn't the first time Reuters has given MacArthur a platform to spout his views unchallenged. Back in March, he had an entire article to himself:

Media Accused of Aiding U.S. Propaganda
David Morgan – Reuters
2 May 2003

PHILADELPHIA (Reuters) - It is one of the most famous images of the war in Iraq -- a U.S. soldier scaling a statue of Saddam Hussein in Baghdad and draping the Stars and Stripes over the black metal visage of the ousted despot.

But for Harper's magazine publisher John MacArthur, that same image of U.S. military victory is also indicative of a propaganda campaign being waged by the Bush administration.

"It was absolutely a photo-op created for (U.S. President George W.) Bush's re-election campaign commercials," MacArthur said in an interview. "CNN, MSNBC and Fox swallowed it whole."

In 1992, MacArthur wrote "Second Front: Censorship and Propaganda in the Gulf War," a withering critique of government and media actions that he says misled the public after Iraq's 1990 invasion of Kuwait.

In MacArthur's opinion, little has changed during the latest Iraq war, prompting him to begin work on an updated edition of "Second Front". U.S. government public relations specialists are still concocting bogus stories to serve government interests, he says, and credulous journalists stand ready to swallow it up...

As Harper's publisher, MacArthur oversees a 153-year-old political and literary magazine he helped save from financial ruin 20 years ago with money from the foundation named after his billionaire grandparents, John D. and Catherine T. MacArthur.

While MacArthur accuses news outlets generally of avoiding opposition stands, his own magazine has been vitriolic towards Bush, describing the president in its May issue as a leader who "counts his ignorance as a virtue and regards his lack of curiosity as a sign of moral strength."

On what basis does MacArthur believe that the fall of the statue was staged? The now-debunked claim that it was manipulated by CNN? Unless MacArthur has some special sources in Iraq we haven't heard of--and which the Reuters report doesn't reveal--there's no evidence whatsoever to support his allegations. Yet the government's response is given only two perfunctory paragraphs:

White House spokesman Scott McClellan denied the existence of any administration propaganda campaign and predicted the American public would reject such notions as ridiculous.

A Pentagon spokesman also denied high-level planning in the appearance of the American flag in Baghdad. "It sure looked spontaneous to me," said Marine Lieutenant Colonel Mike Humm.

Given that the clear implication of MacArthur's statements is that some of the most memorable images of the entire war represent a fraud, one would expect the article to take a somewhat skeptical approach. But MacArthur is never challenged on this, or on any other of his pronouncements (e.g., "On the propaganda side, the New York Times is more responsible for making the case for war than any other newspaper or any other news organisation"). Because he's a "media critic," he's immune.

I find this approach to news reporting simply mind-boggling. Anyone who writes about public affairs can be a "media critic" if necessary. What's more, this critic happens to be the publisher of a political magazine. If William Randolph Hearst were attacking his competitors as promoting Spanish propaganda, do you think Reuters would give him a pass?

Just because someone criticizes the media doesn't mean that they don't have their own set of political assumptions that should be tested. For instance, it might interest the reader to know that Professor Marvin signed a strongly-worded anti-war statement back in November. (She's also co-written a rather bizarre piece on the totemic nature of sacrifice in war, with reflections on Iraq ("During the Persian Gulf war, notable for the ephemerality of its unifying effect, only 147 Americans died, a poor totem sacrifice") and Christianity ("Those who worship the son who died at the heavenly father's command revere the totem principle, that only our own god has the right to kill our own, just as surely as those who revere the soldier son, who dies at the command of patriarchal generals").) This doesn't disqualify her as a commentator, but Reuters considers her political views entirely irrelevant to the story. After all, she's a media critic; she has to be objective...

Worst of all, Deanna Wrenn has now come forward to say that she didn't even write the piece (link via Volokh):

Here's what I sent last week to Reuters, a British news agency that compiles news reports from all over the world:

"ELIZABETH -- In this small county seat with just 995 residents, the girl everyone calls Jessi is a true heroine -- even if reports vary about Pfc. Jessica Lynch and her ordeal in Iraq.

" ‘I think there's a lot of false information about her story,' said Amber Spencer, a clerk at the town's convenience store.

"Palestine resident J.T. O'Rock was hanging an American flag and yellow ribbon on his storefront in Elizabeth in preparation for Lynch's return.

"Like many residents here, he considers Lynch a heroine, even if newspaper and TV reports say her story wasn't the same one that originally attracted movie and book deals."

What I typed and filed for Reuters last week goes on in that vein. They asked me if they could use my byline, which I had typed at the beginning of the story I sent, and I said that would be no problem....

I'm not sure what reporter or editor actually wrote the story that has my byline attached.

Reuters did use one quote from the story I wrote last week in the final paragraphs of one of their earliest Lynch stories, which was sent out for publication early Tuesday morning.

By Tuesday afternoon, the quote was reduced to one sentence. Still, my byline appeared.

By Tuesday night, the quote was gone and Reuters was siphoning information from television reports. The beginning of the story was toned down. The part about "media fiction" was removed. But even then, my byline remained.

I understand that news wire services often edit, add, remove or write new leads for stories. What amazed me was that a story could have my byline on it when I contributed only a few sentences at the end -- and in later versions I didn't contribute anything at all.

The stories contained apparently fresh material attributed to sources I did not interview.

Maybe that's the way that wire service works.

I would like to make it abundantly clear that somebody at Reuters wrote the story, not me....

Apparently, when Reuters asked me last week if they could use my byline, they weren't talking about the story I wrote for them last week. They were talking about a story I never wrote.

That was the misunderstanding.

By the way, I asked Reuters to remove my byline. They didn't....

So which editor at Reuters rewrote the story without changing the byline? Who's playing the editorial version of Jayson Blair? Who's going to get fired for this? Sounds like we need a media critic on the case.

 

6:31 AM :: Stephen (contact)

Putting Away the Bad Guys: As the proud owner of an Internet domain and a customer of Register.com, I was surprised to find in the mail the other day a "Domain Name Expiration Notice" from an outfit called "Domain Registry of America" (DROA). The letter stated that "You must renew your domain name to retain exclusive rights to it on the Web," warning that "Failure to renew your domain name ... may result in a loss of your online identity." To prevent this, I should "transfer and renew" my domain name with DROA--which, although the letter didn't explicitly say so, would effectively switch my business to them and away from Register.com. The letter also requested a reply by August, even though my domain name won't expire until December.

In other words, the letter looked like a fraud. It also appeared to violate a preliminary injunction issued in December by the Southern District of New York (Register.com, Inc., v. Domain Registry of America, Inc., 2002 U.S. Dist. LEXIS 24795 (2002)), which enjoined the defendants from "Representing or committing any act which is calculated to or likely to cause third parties to believe that DROA is their existing Internet domain name registrar or registration service provider if that is not in fact the case" or "Falsely describing or misrepresenting the status or functionality of a third-party's Internet domain name registration or the information/ data associated therewith."

The opinion accompanying the injunction was interesting reading. As you might have expected, the people behind DROA have a slightly shady background:

Finally, several of defendants' managers have questionable pasts. Alan Benlolo, previously described by Klemann as "management of DROA," see Sept. 26, 2002 Klemann Decl. P 11 and Ex. F, was convicted of conspiracy to commit mail and wire fraud in Pennsylvania in 1997, subsequently deported to Canada in 1999, and found liable of criminal securities fraud during a Securities and Exchange Commission action in 2000. See Hirschler Oct. 2, 2002 Reply Decl. Ex. L. Alan Benlolo and two others, including Elliot Benlolo, were arrested by Canadian authorities in 2001 for making false or misleading representations in deceptive mailers for an Internet business directory and Peter Kuryliw was convicted in 2002 on similar charges. See id. J-K. Most recently, company President Klemann was charged criminally under Canada's Competition Act, along with Domain Registry's predecessor corporation "Internet Registry of Canada," because of that company's misleading direct mail solicitations. See App. to Pl's. Nov. 15, 2002 Mem. of Law.

So, having received their letter, I did what any responsible citizen would do; I filed a mail fraud complaint with the Federal Trade Commission and the U.S. Postal Inspection Service, and sent a copy to Register.com to help with the lawsuit.

Stealing bread to feed your family is one thing, but it's pretty hard to commit mail fraud without knowing that you're doing something wrong. I hope these guys get what they deserve.

 

6:15 AM :: Stephen (contact)

Responsibility and the "Body Count." According to the "Iraq Body Count" project, between 6,073 and 7,782 civilians have been killed by the U.S.-led invasion of Iraq. As Josh Chafetz has ably argued, the methodology of the "Body Count" project is highly suspect, and there's good reason to think that considerably fewer civilians were killed in allied military actions.

But there's something deeper at issue here. I had naively assumed that these were deaths for which the U.S. and its allies bore some direct measure of responsibility--or, as the website itself put it, "media-reported civilian deaths in Iraq resulting directly from military actions by the USA and its allies in 2003."

As it turns out, I was wrong. Just look at incident "x118," on July 20, in which an Iraqi civilian was killed "near Hillah" in an attack on a U.N. convoy. Quoth the Associated Press:

Iraq's daily barrage of attacks killed two more American soldiers and an Iraqi employee of a U.N.-affiliated relief agency Sunday...

In another troubling sign, a two-car convoy carrying members of the International Organization for Migration were ambushed near the southern city of Hilla when a pickup truck pulled up alongside one car and opened fire.

The car collided with a bus. Personnel in a World Health Organization convoy traveling behind the IOM vehicles treated three injured and took the Iraqi driver to a hospital, where he died, said Omer Mekki, the WHO deputy director in Iraq.

Both convoys were clearly marked as U.N. vehicles.

"We're a bit shaken. Everybody is a bit shocked," said Mekki. "But when we were recruited and we came to Iraq, we knew there were risks. An incident like this is not unexpected.

In other words, when Ba'athist thugs kill an innocent civilian driving a clearly marked U.N. vehicle, that "a civilian death resulting directly from military actions by the USA and its allies." This is a somewhat different interpretation of "resulting directly" than I'm used to. If anything, the death of this Iraqi should be seen as one of the last crimes of Saddam Hussein and his followers, rather than an incident of "collateral damage" in a U.S. operation.

Of course, I can understand why the U.S. might be held responsible for the reasonably foreseeable actions of others that result from American actions. But it's hard to say what, precisely, is foreseeable about the death of this driver. And on any view of the world that pays attention to what one does, and not merely what its consequences are, there comes a point where the actions of others are simply not one's fault. If Saddam were to become so disheartened by losing power that he started spraying a crowded room with bullets, it's hard to identify a basis on which his actions could be said to have "directly resulted" from America's actions. For if the responsibility does not lie on his shoulders, the same argument could be employed to search for the causal factors behind America's actions, and the ultimate causes behind those factors, and so on ad infinitum--removing responsibility from everyone, not just the Ba'athists. At some point, a murder is simply the responsibility of the person who did it.

Perhaps the "Body Count" project takes a more consequentialist or utilitarian view of things; perhaps we should hold the U.S. responsible for all the civilian deaths in Iraq that would not have occured but for the military intervention. In this case, the inclusion of a man who was killed by Ba'athist guerillas would make sense; had the U.S. not invaded, that U.N. convoy wouldn't have been there to be attacked, the driver wouldn't have been hit, and the death would have been avoided. But such a total is meaningless from a consequentialist standpoint unless we subtract away all the people who would have been killed, but for military intervention. For instance, if airbags were the but-for cause of 5 deaths per year, but were also the but-for reason why 500 people per year survive car crashes, it would be absurd for a utilitarian to describe them as lethal as opposed to life-saving. So how many lives did the invasion save? How many people would have been tortured, or "disappeared," or kept hidden in a wall if Saddam had been allowed to stay in power? What would these guerillas have been up to if they had still exercised absolute power over their fellow citizens, instead of running from the occupation authority and taking occasional pot shots at relief agencies? Isn't any utilitarian calculation of the but-for deaths worse than irrelevant without some attempt at comparison to the but-for lives saved?

If the "Body Count" project is to include all the evil consequences of Saddam's fall from power, it cannot ignore the great good that this fall represents. In the absence of military intervention, what would have been necessary to replace Saddam's regime? Think about the mass graves, the tens and hundreds of thousands of deaths that followed the abortive 1991 uprising. If, instead of the invasion, Iraq had undergone a popular revolution that overthrew Saddam's government at the cost of roughly 8,000 lives, we'd all be putting on party hats. The revolutionaries might have endured that many casualties in liberating a few square blocks of Basra. And as I've argued before, such a revolution would have had a far worse chance of promoting an Iraqi democracy over the long run.

Personally, I disagree with the U.S. military's decision not to attempt an official count; the public has a legitimate interest in assessing the consequences of our policies, as well as measuring how careful and effective our troops have been. And as the example of the "Body Count" shows, the attempts to fill the gap may be based on methods--and moral assumptions--that are deeply flawed.

 

6:12 AM :: Stephen (contact)

This war is all about oil... When I mentioned this article in conversation the other day, no one else had seen it--so I thought I'd post it here. In the first oil sales after the invasion, the big winner was none other than France. Turkey, which famously denied U.S. troops access to its bases before the war, also received a significant piece of the action from Iraq's State Oil Marketing Organization. The June 13 Times of London carried the headline "UK misses out as Total gets Iraq oil":

TOTAL, the French oil company, has been awarded a large share in the first sale of Iraqi oil since the recent war.

Iraq's State Oil Marketing Organisation (Somo) has confounded expectations by its decision to include only one US company, Chevron Texaco, and not a single British company among the six that have won a share of the ten million barrels on offer.

The tender, informally announced last week by the Iraqi oil company, drew a huge response, with 52 companies making bids for the eight million barrels of Kirkuk oil stored in Turkey and two million barrels of Basra Light.

Oil traders had speculated that American companies, excluded from Iraq for over a decade by Saddam Hussein's edict, would be high on the list of buyers from a Somo purged of Saddam's cronies.

In the end, the list includes Repsol and Cepsa, the Spanish companies, and ENI, the Italian oil major. Each is believed to have been awarded one million barrels of oil. Tupras, the Turkish oil company may have taken as much as three million of the Kirkuk barrels, which are already in storage at the Turkish port of Ceyhan.

Total has been awarded two million barrels of Kirkuk crude, a decision that will reassure the French company that it is not being shunned in a post-Saddam Iraq.

ChevronTexaco is to take the entire stock of Basra Light.

The absence of British companies and weak US presence is a pointer to the oil market that Somo is not taking instructions from its American advisers but is instead taking a pragmatic approach to business.

The tender was initially in confusion as oil traders struggled to contact Somo, which had no working phones or computer links. One said that logistics might have been the key -those companies able to supply tankers at short notice may have been preferred.

The second block of oil sales included such eager hawks as the Swiss and the Dutch. From the July 9 edition of International Oil Daily (no link):

European supermajors BP and Royal Dutch/Shell on Wednesday were confirmed as buyers of postwar Iraqi oil when Iraq's State Oil Marketing Organization announced the official results of its latest tender to sell 8 million barrels of Basrah Light crude.

Shell and BP were awarded 2 million barrels each of Jul. 15-31 loading Basrah Light, while US major ChevronTexaco and Swiss-based trader Taurus were awarded the other two cargoes.

It should be added, however, that the majority of the second block of sales will be refined in the U.S.:

Initial indications that Petrobras won one of the cargoes proved to be incorrect. Industry sources said traders at the Brazilian state concern had believed that the company, a regular buyer of Iraqi oil before the war, was successful with what it considered a "very aggressive bid" (IOD Jul.9,p1). BP is scheduled to load on Jul.13-15. It is expected to take its cargo to the US West Coast, though some traders speculated that the company would be willing to sell the cargo on the US Gulf Coast if the price was right. ChevronTexaco, which is to load its cargo between Jul. 20 and Jul. 23, will refine its barrels on the US West Coast, a company source said.

Taurus, the first non-refiner to buy postwar Iraqi oil, plans to flog its lot on the US Gulf market, while Shell is keeping its options open, industry sources said. The Anglo-Dutch giant has yet to fix a ship for its Jul. 26-28 loading dates and may even opt to switch destinations from Europe to the US Gulf provided Somo approves.

But it this appears to be a decision being made in large part on price. I don't see how a Swiss company's decision to have oil refined in the United States would represent the illegitimate spoils of an invasion. Now, if this war is all about oil refining...

 

6:08 AM :: Stephen (contact)

Rape, honor, and the police: A recent NYT piece details the murderous stigma placed on Iraqi victims of rape. Stories like this are what keep me from placing too much faith in "prevailing community standards," which can often be revealed as universally horrible. Anyone trying to defend community mores from outside interference (or--gasp!--"coercion") has to explain how, exactly, killing an innocent rape victim to restore one's family honor is non-coercive. (Those struck by the reported rise in rape cases under the occupation, by the way, should remember that Saddam's regime, when it was in power, used rape as a deliberate instrument of policy. And you can bet that those cases weren't reported.)

Yet the article also contains several disturbing quotes from the police:

Some police in Baghdad concede that at this point, there is little they can do to help. Their precinct houses were thoroughly looted after the war. Despite promises from the American authorities, Baghdad police still lack uniforms, weapons, communications and computer equipment and patrol cars.

"We used to patrol all the time before the war," said a senior officer at the Aadimiya precinct house. "Now, nothing, and the criminals realize there is no security on the streets."

(In other news, the pro-American mayor of Hadithah was recently assassinated, along with one of his sons.)

Uniforms, weapons, communications equipment and cars--can't we supply these things? Given how much money we're already spending on Iraq every month, we might as well spend enough to do the job right. And well-equipped police forces will do a lot to bring our troops out of danger and rebuild Iraq's infrastructure. Isn't this a problem we can fix?

 

6:05 AM :: Stephen (contact)

Congressional Quote of the Week: The latest salvo in the war of words between Rep. Bill Thomas (R-Calif.) and Rep. Fortney "Pete" Stark (D-Calif.):

When asked later if he also aimed a vulgar, anti-gay slur in the direction of Thomas, Stark said, "I'm certain that at some point in the last year I called Chairman Thomas a ' ****sucker,' but not last Friday."

 

6:04 AM :: Stephen (contact)

Dublin Cows Attacked--Film at 11! A series of cow sculptures, deployed around the city of Dublin, have been mercilessly destroyed:

"In Dublin, they were damaged so quickly and so extensively," Mr Gerard Beshoff, the project director of CowParade Ireland, said. "The one on Liffey Street was beheaded. Someone needed a saw to do that; it was fibreglass.

"Both wings were torn off the one in Westmoreland Street. One was stolen, but later recovered. They all had graffiti on them within hours."

"It's so depressing, but not surprising," Ms Amy Wallace, account executive of CowParade Ireland, said. "The awful thing is, we were kind of expecting it in Dublin."

Given the packs of 14-year-olds we saw ripping up bus schedules the last time I visited the city (sort of like this, actually), I'm saddened, but I can't say I'm surprised.

 

6:03 AM :: Stephen (contact)

Headline confusion: "Dell Takes Shorter Name." (It shall now be known as "Del.")

 

6:02 AM :: Stephen (contact)

The Norrington Table: Merton triumphs again. Dame Jessica must be proud.

 

6:01 AM :: Stephen (contact)

All at once: Sorry for the recent lack of postings; I've saved up a bunch over the past few days, and have decided to post them all now. Enjoy...

 

9:32 AM :: Stephen (contact)

Protecting the Pledge: In bemoaning the GOP's recent shift to the left (?), the editors of the National Review have identified a promising new item for the Congressional calendar:

On gay marriage, a constitutional amendment appears to be necessary to forestall the mischief of state and federal courts. But a mere statute can make the point that Congress controls the federal judiciary's purview. Congressman Todd Akin's bill to strip the federal judiciary of jurisdiction over the Pledge of Allegiance has the votes to pass the House, and has a powerful Senate sponsor in Judiciary Committee chairman Orrin Hatch. It should be high on the Republican agenda.

Indeed, the "Pledge Protection Act" (H.R. 2028) does precisely that: it removes jurisdiction from any federal court other than the Supreme Court "to hear or determine any claim that the recitation of the Pledge of Allegiance, as set forth in section 4 of title 4, violates the first article of amendment to the Constitution of the United States."

My initial reaction was, "can Congress do that?" Without commenting on the merits of the Ninth Circuit's Pledge of Allegiance decision (PDF), I wonder--is there any precedent for stripping the federal courts of jurisdiction solely because you don't like their rulings?

At first glance, the answer appears to be "yes": under Article III of the U.S. Constitution, the lower courts must be created by act of Congress, and Congress has broad power to set the limits of their jurisdiction. According to the second clause of Art. III, Sec. 2,

"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases ... , the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."

Thus, if Congress wants to make a new exception and route new cases to the Supreme Court, it can. The McCain-Feingold bill, for instance, had special provisions attached (in sec. 403) giving it expedited review before the Supreme Court, in order to finish the court battles before the next election. And other legal issues (bankruptcies, patents, etc.) are routinely heard in specialized courts.

But the change made by Akin's bill doesn't seem to bear any relation to the fitness of one court to hear the case as opposed to another; instead, it simply seeks to invalidate a lower-court ruling and make it more difficult for certain claims to succeed. No legitimate state interest is identified beyond overturning what is said to be a bad decision by the Ninth Circuit. And although the bill hasn't been discussed on the floor yet, the legislative history here seems to be pretty clear. Consider Akin's remarks when the bill was introduced last July:

The ruling by the Ninth District Court of Appeals that the Pledge of Allegiance is an unconstitutional endorsement of religion sent shock waves throughout the country. The suggestion that listening to the pledge causes harm to any student appalled a vast majority of Americans. In response to the absurd judicial fiat, members of Congress ceremoniously gathered on the steps of the Capitol to recite the pledge and to encourage children, teachers and all Americans to continue the important tradition....

While Congress expressed its outrage, Congressman Akin introduced the Pledge Protection Act of 2002. The bill, a simple and effective remedy, will prevent lower federal courts from ruling on the constitutionality of the Pledge of Allegiance...

"Congress has the ability to rein in a renegade judiciary and this egregious decision suggests that we use it now," said Akin. "The decision that the Pledge of Allegiance is unconstitutional reflects a misunderstanding of our Constitution. Belief in a Creator is central to the ideas upon which our nation was founded. To suggest that listening to the Pledge of Allegiance may harm any child is absurd. To block schools from allowing the pledge ads arrogance to the absurdity."

"This bill will do more than merely resolve the controversy over that pledge," stated Akin. "It will address a dangerous trend: a judiciary that too often confuses the freedom for religion with freedom from religion."

Or the text of a press release last June:

Washington, D.C. - A bill introduced by Congressman Todd Akin (R-MO) which would guarantee the right of children to say the phrase "under God" when they recite the Pledge of Allegiance has garnered the support of 218 cosponsors, including Speaker of the U.S. House J. Dennis Hastert. Congressman Todd Akin's (R-MO) "Pledge Protection Act" H.R. 2028 affirms the constitutionality of the Pledge of Allegiance by restricting the jurisdiction of lower federal courts from ruling on it...

Akin introduced his bill last month in light of a ruling by the Ninth District Court of Appeals in San Francisco that prohibits children in California from including the phrase "under God" when they recite the Pledge of Allegiance.

"Preventing children from saying 'under God' is an egregious breech of religious liberty and freedom of speech," stated Akin. "I am certain that support for my bill will continue to grow and that soon Congress will take real action on this important matter."

At the moment, it's not clear what the Pledge Protection Act would accomplish if passed; as far as I'm aware, the Supreme Court is currently deciding whether to hear the case. But I wonder whether, if the Act were tested in court, it might be found unconstitutional for reasons similar to those cited in Legal Services Corporation (LSC) v. Velazquez (2001). LSC overturned a law preventing the Legal Services Corporation from representing indigent clients who tried to challenge the welfare laws. The Court found that although Congress generally has power over funding, the restriction had placed undue burdens on the private speech and litigation of welfare recipients:

Congress cannot recast a condition on funding as a mere definition of its program in every case, lest the First Amendment be reduced to a simple semantic exercise. Here, notwithstanding Congress’ purpose to confine and limit its program, the restriction operates to insulate current welfare laws from constitutional scrutiny and certain other legal challenges, a condition implicating central First Amendment concerns. In no lawsuit funded by the Government can the LSC attorney, speaking on behalf of a private client, challenge existing welfare laws. As a result, arguments by indigent clients that a welfare statute is unlawful or unconstitutional cannot be expressed in this Government-funded program for petitioning the courts, even though the program was created for litigation involving welfare benefits, and even though the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue.

There's a clear analogy to be made between this case and a challenge to Akin's bill; in the latter case, arguments that the Pledge is unconstitutional cannot be heard in the lower courts, even though "the ordinary course of litigation involves the expression of theories and postulates on both, or multiple, sides of an issue."

Yet the two cases might also be distinguished. While the indigent plaintiffs in LSC were entirely without legal recourse--they were welfare recipients who couldn't afford their own lawyers--Akin's bill doesn't deny access to anyone; it only requires that cases go directly to the Supreme Court, where they might end up anyway on appeal. At most, it adds a minor burden to the process, in that the plaintiff has to file directly with the Supreme Court in Washington.

However, the same could be said of the law in LSC; it doesn't entirely deny access to the courts, since there's no individual right to Legal Services money. The indigent defendants challenging welfare benefits are no worse off than they would have been if the Legal Services Corporation didn't exist. Given that we have a Legal Services Corporation, though, they have a rightful claim on its assistance, just as the Pledge plaintiffs might have a claim on access to the lower courts. If the Supreme Court retained the power to deny cert, the Pledge Protection Act might very well represent a denial of access. And minor burdens can certainly add up to a constitutional injury; what if all cases challenging welfare benefits had to be heard in a special "Welfare Court" in Point Barrow, Alaska?

A challenge to Akin's bill might also rely on the Fourteenth Amendment guarantee of equal protection. If Congress chose to restrict lower-court jurisdiction to cases brought by white plaintiffs, for instance, that would obviously be unconstitutional. The same would probably be true if Congress chose, just for funzies, to restrict access to plaintiffs whose names begin with 'Z'--in the absence of any legitimate state interest, it would probably fail a simple 'rational basis' test. Of course, one might think that the Pledge Protection Act fundamentally addresses a claim, not a class--we don't talk about the classes of "bankrupt companies" or "patent holders" as groups requiring special protection. But since the Pledge case deals with a First Amendment issue, it may be possible to view plaintiffs as part of a class of "non-monotheists," or "those whose religious beliefs cause them to object to the 'Under God' clause," which might entitle them to a higher degree of scrutiny.

Another interesting question is whether, if a case were brought challenging the Pledge Protection Act's limitation of lower-court jurisdiction, the lower courts would have jurisdiction to hear that claim. Can a bill limiting jurisdiction preclude its own lower-court review? And just imagine a bill precluding lower-court review of all bills that do not preclude lower-court review of themselves...

(Rep. Akin, by the way, hails from my home state of Missouri; his 2nd District includes a good part of St. Louis County, although due to gerrymandering I live in Dick Gephardt's 3rd District instead. Akin has been the chief sponsor of four bills during this session of Congress, of which the Pledge Protection Act is one; the other three are H.Res. 153, calling for a day of fasting and prayer for the people of the U.S. and the armed forces in Iraq; H.R. 1772, making various reforms to the Office of Advocacy of the Small Business Administration, and H.R. 2444, requiring federally funded clinics to provide written notices to parents before distributing any form of birth control to their children.)

UPDATE: More information on this issue from the American Judicature Society can be found here.

 

8:06 AM :: Stephen (contact)

Cultural Welfare? NZPols argues (here and here) for the wisdom of government subsidies for the film and television industries in New Zealand. By pure chance, my brother recently emailed me an article by Volokh contributor Tyler Cowen, with an interesting argument against subsidies: they make for bad films.

 

12:32 PM :: Stephen (contact)

Meet the new boss: I guess I'm glad to read that U.S. authorities are giving substantial powers to a new governing council in Iraq. As everyone seems to be saying, it might divert some of the criticism and discontent away from the U.S. and British occupiers, and give Iraqis a greater stake in their nation's success. Those working with the occupiers would no longer be accused of selling out, the argument goes, and attacks by Ba'athist sympathizers on officers of an Iraqi-controlled government would be rightfully recognized as attacks on a free society.

But something about the change--and especially the speed with which it was made--bothers me. A policy of holding local elections first, building institutions from the bottom up, at least had the advantage of guaranteeing ordinary Iraqis some degree of direct representation in decisionmaking. Elected leaders responsible to their constituents, not councillors handpicked by the U.S. and Britain, would have had control over designing the central government and drafting a new constitution.

Of course, local elections would have taken a while to organize, and perhaps the negative symbolism of U.S.-British control at the center was simply too powerful to allow us to wait. But there's no guarantee that the new council won't be seen as a puppet government; if individual Iraqis are reluctant to work for the occupying authorities now, what's to say that they'd be more willing with the council in charge?

What's more, it's not entirely clear that the council is prepared to assume the kind of responsibility intended for it. Investing both the executive and the legislative power in a 25-member committee sounds like a recipe for gridlock--especially since, in the absence of any written constitution, the council members will be making up their own rules of procedure as they go along. Given the number of different factions and interests at stake, how will they decide on the process of appointing officers, or decide on the size of majority or supermajority necessary for votes? How large a staff will they need, and who's going to be paying them? Without constituent demands to meet, will they have sufficient access to (and desire for) information? One of the benefits of democracy is that it keeps decision-makers accountable, and gives them a strong incentive to stay on top of citizens' concerns; unlike members of Congress or even the delegates in Philadelphia, however, these councillors have no one to report back to.

As a result, while I'm hoping that the council will succeed, I'm not heartened by the statement of U.S. civil administrator L. Paul Bremer that "We're going to give them more work than they can imagine." Does anyone else worry that this might be more work than they can handle?

 

12:59 PM :: Stephen (contact)

Rawls vs. Sandel vs. Kant vs. ... I've uploaded one of my "Theory of Politics" tutorial essays, "Communitarianism and Rightness," to my web site. The essay responds to communitarian criticisms of the liberal approach to justice, focusing on the arguments given by Michael Sandel in his Liberalism and the Limits of Justice. This is my first encounter with the field, so I can't claim to bring to it any special expertise -- I'd appreciate any comments that you have.

 

7:57 AM :: Stephen (contact)

Thought for the day: From Robert Nozick's Anarchy, State, and Utopia, p. 174.

Locke views property rights in an unowned object as originating through someone's mixing his labor with it....

Why does mixing one's labor with something make one the owner of it? Perhaps because one owns one's labor, and so one comes to own a previously unowned thing that becomes permeated with what one owns. Ownership seeps over into the rest. But why isn't mixing what I own with what I don't own a way of losing what I own rather than a way of gaining what I don't? If I own a can of tomato juice and spill it in the sea so that its molecules (made radioactive, so I can check this) mingle evenly throughout the sea, do I thereby come to own the sea, or have I foolishly dissipated my tomato juice?

 

6:27 AM :: Stephen (contact)

We report, you decide. So, Oxford has a new branch of Indymedia. The independent media movement is an interesting sociological phenomenon. In theory, there's nothing wrong with a readership-run news site--but there's also no particular reason to expect it to get things right, either. And one has to worry about the judgment of the Indymedia readership, especially when the only comment on filth like this is "Good artwork."

Yet IndyMedia is often good for entertainment value, at least; it's refreshing to read the words of those innocents who have not yet learned the difference between principled opposition and self-parody. After all, "rather than bombing Iraq into subservience," says activist Toby Olditch, "Liberation from a brutal dictator would be better served by non violent conflict resolution."

 

7:22 AM :: Stephen (contact)

Fun Facts of the Day: Last year, according to the Social Security Administration's baby names database (referenced in the NYT Magazine), 239 baby girls were named "Unique."

Others had less creative parents; 209 boys and 224 girls were just named "Baby."

Finally, "Sidney" has now become a woman's name, given to more than three times as many girls (937) as boys (263). More girls are named "Sidney" than "Anne." I wonder what my grandfather (or Mr. Poitier) would say...