What, the Iranian president wouldn't take his call?

So Richard Williamson, the bishop who came in from the cold, was all set to get his mitre approved by Benedict XVI -- all the good bishop had to do was to apologize for his Holocaust denials. But the Vatican is dissatisfied with his apology, which managed not to address whether the Holocaust happened or not.

Apparently this could be partly because, when Bishop Williamson decided he needed to find out a bit more regarding this "Holocaust" thingie, he figured the logical person to turn to was ... David Irving.

In recent media reports in Britain and Italy, David Irving, a historian who served jail time in Austria for Holocaust denial, said that Bishop Williamson had contacted him seeking material on the Holocaust.

“I explained to him that the best thing would be to admit that there were mass homicides organized from 1942 to 1943 in three camps controlled by Himmler: Treblinka, Sobibor and Belzec,” Mr. Irving said in an interview with the Italian daily La Stampa on Friday, referring to Heinrich Himmler, one of Hitler’s key deputies.

“The numbers need to be checked, but his excellency can’t debate that they happened,” Mr. Irving added.

1942 to 1943 ... only 3 camps ... and as Irving's previously argued, it was Himmler's fault. Oh, and don't believe those numbers you've heard about either. Lovely. Williamson and Irving should go start their own church. I'm sure they could think of some striking holy symbol ... some variation on the cross, perhaps.

From the days when conservatives weren't all stupid

In a fairly forgettable article about CEO's passion for Ayn Rand -- which is no more mysterious than any other susceptibility to flattery -- we get a link to Whittaker Chambers' review of Atlas Shrugged for National Review. He was not impressed, and it's worth clicking through to see why. Here's a taste:

The embarrassing similarities between Hitler's National Socialism and Stalin's brand of Communism are familiar. For the world, as seen in materialist view from the Right, scarcely differs from the same world seen in materialist view from the Left. The question becomes chiefly: who is to run that world in whose interests, or perhaps, at best, who can run it more efficiently?

Something of this implication is fixed in the book's dictatorial tone, which is much its most striking feature. Out of a lifetime of reading, I can recall no other book in which a tone of overriding arrogance was so implacably sustained. Its shrillness is without reprieve. Its dogmatism is without appeal. In addition, the mind which finds this tone natural to it shares other characteristics of its type. 1) It consistently mistakes raw force for strength, and the rawer the force, the more reverent the posture of the mind before it. 2) It supposes itself to be the bringer of a final revelation. Therefore, resistance to the Message cannot be tolerated because disagreement can never be merely honest, prudent, or just humanly fallible. Dissent from revelation so final (because, the author would say, so reasonable) can only be willfully wicked. There are ways of dealing with such wickedness, and, in fact, right reason itself enjoins them. From almost any page of Atlas Shrugged, a voice can be heard, from painful necessity, commanding: "To a gas chamber — go!"

Ah, the internet. I couldn't have imagined yesterday what I would be reading with my breakfast this morning.

OTOH, perhaps the internet is indirectly to blame for the article's impression that "weaved" is the past tense of "to weave," or that Ayn Rand wore "broaches" shaped like dollar signs. Perhaps the author's dictionary told her that these were acceptable alternatives to "wove" and "brooches." If so, she needs to throw away that dictionary and find a good one. In fact, in deference to Ms. Rand, I'll go so far as to say: buy a good one. Though in deference to Mr. Chambers, I won't add that the former dictionary should be burned. See? I am all sweet moderation.

P.S. -- Out of deference to this blog's patron, another quote from the review:

Miss Rand acknowledges a grudging debt to one, and only one, earlier philosopher: Aristotle. I submit that she is indebted, and much more heavily, to Nietzsche. Just as her operatic businessmen are, in fact, Nietzschean supermen, so her ulcerous leftists are Nietzsche's "last men," both deformed in a way to sicken the fastidious recluse of Sils Maria. And much else comes, consciously or not, from the same source.

A professor said to me of Foucault that what's good in him is taken from Nietzsche, and what isn't from Nietzsche isn't good. (A perhaps unconscious paraphrase of Samuel Johnson.)

Hungarian novel, French Suites (German composer)

I feel sooooo international today. Did indeed read Metropole en route to Sarasota. It's a clever book, and might make a better movie, but the perfection of the lost linguist's plight is a bit stifling after a while -- even after he supposedly has picked up some phrases, he can't seem to use them. The sequence where he's joined the (revolution? carnival of violence?) had its longeurs that film might've avoided while preserving the irony of laying his life on the line for a cause he understands absolutely nothing about. But it must've been fairly compelling, since I finished it before landing in Tampa. Have now moved to backup reading (A Bright Shining Lie: John Paul Vann and America in Vietnam, and if that gets too serious, Matter by Iain M. Banks -- one of his charming "Culture" novels. Liberals ... iiinnn ... SPAAAAACCCE ....).

Tampa of course is where Southwest puts you if you're trying to get to Sarasota, and to my surprise, the "economy" car I rented had a CD player -- I was expected more of an enclosed golf cart. Surprise alas meant I had no CD's, and after an hour and a half of listening to Tampa's radio offerings, I was ready to find the local music vendor and get SOMETHING.

Lately, I begin by looking for Manfred Mann, because I want their cover of "The Mighty Quinn" (not to be confused with whatever the hell that is by Manfred Mann's Earth Band). Didn't find that of course. Then Blossom Dearie or Anita O'Day, who fell through the cracks of the limited jazz selections available -- reverse discrimination, I darkly (?) pondered. On to the classical section, where of late I had formulated the desire for "Bach piano music other than the Goldberg Variations." With some hesitation, because this is the kind of thing where I need Jim at my side (or in easy cell-phone range), I picked up Glenn Gould's recording of Bach's French Suites, because (1) even if "bad Gould" they would probably be adequate for my limited sensibility, and more importantly (2) the disc was only $12. Can't tell you much about it so far, but it sounds fine to me, and it's not Christian rock, Chicago, country, or anything else I heard on the way to Sarasota, so that's 4 stars out of 5 right there.

Deposition allowing, my other big plans for Sarasota are to find the beach and get some sand between my toes, and to check out A. Parker's Books, which looked attractive on the web even before I saw they're owned by the same folks who own the excellent Crescent City Books in NOLA. Like a little bit of home (broadly construed) waiting here for me.

UPDATE - I had no idea how appropriate my purchase was:

Gould was averse to cold and wore heavy clothing, including gloves, even in warm places. He was once arrested, presumably mistaken for a vagrant, while sitting on a park bench in Sarasota, Florida, dressed in his standard all-climate attire of coat(s), warm hat and mittens.

I wonder if the bench is still there?

"The Formula That Ate Your 401(k)"

A B-movie horror flick for the 21st century. There were THINGS MAN WAS NOT MEANT TO CORRELATE ... but foolish bankers harnessed forbidden mathematical knowledge, and next thing ya know ... look out! it's the Great Pretty Good Depression! Coming to an economy near you!

Felix Salmon lays it out in a Wired piece that's so simple, even I can almost understand it.

It remains to be seen whether the shrill, neglected Keynesian can persuade the government to build his Deficit Machine ... before it's too late.

H/t T.Z. @ VC. (The Michael Lewis piece that Zywicki links is quite awesome, btw.)

Linking to the Onion as If You Didn't Read It Yourself

... a continuing series.

Sasha Obama Keeps Seeing Creepy Bush Twins While Riding Tricycle Through White House

As disturbing as her encounters have been, Sasha claimed that the sounds of incessant typing emanating from the Oval Office in recent days are what worry her the most.

"There's just something about this place--maybe it's the long hours spent isolated in the Oval Office--but it gets into a man's head and eventually becomes too much to bear," White House gardener Emery Canter said. "We don't like to talk about what happened around here with the last occupant. We just want to put those bad memories behind us."

"The Reader"

CharleyCarp and I have been batting The Reader back and forth over at Unfogged, which I'll steal for a "blog post."

CC: Having spoken with people who read the book in German, I see that my problems with the movie are inherent in the story. We just don't get enough to understand why the central characters make particular choices in the film. It's not that I can't stand ambiguity, it's just that the range of possible motivations is so broad as be make the actions meaningless.

A: I think it's actually kind of cool to leave this as inscrutable as it is in real life. I mean, there are no *good* reasons for [terrible thing that Hannah participated in], or [other terrible thing]. Having reasons is kinda gross actually.

Two points:

(1) When Hannah asks the presiding judge what *he* would've done, he doesn't answer.

(2) Michael has the chance to do the right thing (confront Hannah in jail & get the truth out), but wimps out. Obviously the moral scope is different, but the point is made.

CC: Anderson, we don't know whether she would've behaved differently if confronted: whether she wants to keep the secret out of shame, or whether she's willing to take the punishment for what she's done. We don't know why Michael wimps out. Is he ashamed of his own past? Does he realize that she knows what she's doing, and is making her own choice?

I'm not asking to be spoonfed, and there are times when ambiguity is better than fine. I don't find this movie one of them. I don't care in the least that he tells his daughter.

A: I think it's clearly shame in Hannah's case; she denies having written the report, until the pad and pencil are put in front of her.

As for Michale, it's some kind of shame or embarrassment on his part; I don't think he can say "she knows what she's doing" and get off the hook that easily, without talking to her. His timing strongly suggests that he waffles rather than acting out of principle.

Going out on a limb, I would say that he's a bit grossed out by his intimacy with someone who did monstrous things ... which has the ironic effect of his shunning her, i.e., treating her as less than human?... you see where that goes. Moral equivalency and all that. The author would've been hanged in effigy for spelling that out, but I think it's fair to suggest that the *potential* for terrible conduct is within all or most of us, even if luck means that most of us never realize that potential.

Cf. the righteous classmate who would happily shoot each of the defendants himself. Had he been born a bit earlier and in different circumstances, what do you suppose he would've ended up doing during the war?

I don't see how the movie gets much more explicit about motives without becoming preachy. Merely keeping things ambiguous in a Holocaust flick is achievement enough!

... Anyway, maybe Winslet's win gave Ron Rosenbaum heartburn.

A federal judge bites the dust

Legal beagles have been following the sexual harassment charges against Samuel Kent of the U.S. district court in Galveston, charges which started off strong and then snowballed.

Judge Kent has now copped a plea that is expected to net him 3 years in jail, and will presumably result in his impeachment.

Besides being an asshole to his female employees, Judge Kent was also famous as something of an asshole on the bench, tho much more amusingly so (at least for those of us not targeted by his opinions).

There was for instance the notorious paragraph in Bradshaw v. Unity Marine Corp., 147 F. Supp. 2d 668, 670 (S.D. Tex. 2001):

Before proceeding further, the Court notes that this case involves two extremely likable lawyers, who have together delivered some of the most amateurish pleadings ever to cross the hallowed causeway into Galveston, an effort which leads the Court to surmise but one plausible explanation. Both attorneys have obviously entered into a secret pact--complete with hats, handshakes and cryptic words--to draft their pleadings entirely in crayon on the back sides of gravy-stained paper place mats, in the hope that the Court would be so charmed by their child-like efforts that their utter dearth of legal authorities in their briefing would go unnoticed. Whatever actually occurred, the Court is now faced with the daunting task of deciphering their submissions. With Big Chief tablet readied, thick black pencil in hand, and a devil-may-care laugh in the face of death, life on the razor's edge sense of exhilaration, the Court begins.

And this opinion in Republic of Bol. v. Philip Morris Cos., 39 F. Supp. 2d 1008 (S.D. Tex. 1999), which has a somewhat creepy ring to it now:

This is one of at least six similar actions brought by foreign governments in various courts throughout the United States. The governments of Guatemala, Panama, Nicaragua, Thailand, Venezuela, and Bolivia have filed suit in the geographically diverse locales of Washington, D.C., Puerto Rico, Texas, Louisiana, and Florida, in both state and federal courts. Why none of these countries seems to have a court system their own governments have confidence in is a mystery to this Court. Moreover, given the tremendous number of United States jurisdictions encompassing fascinating and exotic places, the Court can hardly imagine why the Republic of Bolivia elected to file suit in the veritable hinterlands of Brazoria County, Texas. The Court seriously doubts whether Brazoria County has ever seen a live Bolivian ... even on the Discovery Channel. Though only here by removal, this humble Court by the sea is certainly flattered by what must be the worldwide renown of rural Texas courts for dispensing justice with unparalleled fairness and alacrity, apparently in common discussion even on the mountain peaks of Bolivia! Still, the Court would be remiss in accepting an obligation for which it truly does not have the necessary resources. Only one judge presides in the Galveston Division-which currently has before it over seven hundred cases and annual civil filings exceeding such number-and that judge is presently burdened with a significant personal situation which diminishes its ability to always give the attention it would like to all of its daunting docket obligations, despite genuinely heroic efforts to do so. And, while Galveston is indeed an international seaport, the capacity of this Court to address the complex and sophisticated issues of international law and foreign relations presented by this case is dwarfed by that of its esteemed colleagues in the District of Columbia who deftly address such awesome tasks as a matter of course. Indeed, this Court, while doing its very best to address the more prosaic matters routinely before it, cannot think of a Bench better versed and more capable of handling precisely this type of case, which requires a high level of expertise in international matters. In fact, proceedings brought by the Republic of Guatemala are currently well underway in that Court in a related action, and there is a request now before the Judicial Panel on Multidistrict Litigation to transfer to the United States District Court for the District of Columbia all six tobacco actions brought by foreign governments, ostensibly for consolidated treatment. Such a Bench, well-populated with genuinely renowned intellects, can certainly better bear and share the burden of multidistrict litigation than this single judge division, where the judge moves his lips when he reads....

Regardless of, and having nothing to do with, the outcome of Defendants' request for transfer and consolidation, it is the Court's opinion that the District of Columbia, located in this Nation's capital, is a much more logical venue for the parties and witnesses in this action because, among other things, Plaintiff has an embassy in Washington, D.C., and thus a physical presence and governmental representatives there, whereas there isn't even a Bolivian restaurant anywhere near here! Although the jurisdiction of this Court boasts no similar foreign offices, a somewhat dated globe is within its possession. While the Court does not therefrom profess to understand all of the political subtleties of the geographical transmogrifications ongoing in Eastern Europe, the Court is virtually certain that Bolivia is not within the four counties over which this Court presides, even though the words Bolivia and Brazoria are a lot alike and caused some real, initial confusion until the Court conferred with its law clerks. Thus, it is readily apparent, even from an outdated globe such as that possessed by this Court, that Bolivia, a hemisphere away, ain't in south-central Texas, and that, at the very least, the District of Columbia is a more appropriate venue (though Bolivia isn't located there either). Furthermore, as this Judicial District bears no significant relationship to any of the matters at issue, and the judge of this Court simply loves cigars, the Plaintiff can be expected to suffer neither harm nor prejudice by a transfer to Washington, D.C., a Bench better able to rise to the smoky challenges presented by this case, despite the alleged and historic presence there of countless “smoke-filled” rooms.

Whatever that was. And then there's perhaps his best-known opinion, the one in Smith v. Colonial Penn Ins. Co., 943 F. Supp. 782 (S.D. Tex. 1996):

Defendant's request for a transfer of venue is centered around the fact that Galveston does not have a commercial airport into which Defendant's employees and corporate*784 representatives may fly and out of which they may be expediently whisked to the federal courthouse in Galveston. Rather, Defendant contends that it will be faced with the huge “inconvenience” of flying into Houston and driving less than forty miles to the Galveston courthouse, an act that will “encumber” it with “unnecessary driving time and expenses.” The Court certainly does not wish to encumber any litigant with such an onerous burden. The Court, being somewhat familiar with the Northeast, notes that perceptions about travel are different in that part of the country than they are in Texas. A litigant in that part of the country could cross several states in a few hours and might be shocked at having to travel fifty miles to try a case, but in this vast state of Texas, such a travel distance would not be viewed with any surprise or consternation. Defendant should be assured that it is not embarking on a three-week-long trip via covered wagons when it travels to Galveston. Rather, Defendant will be pleased to discover that the highway is paved and lighted all the way to Galveston, and thanks to the efforts of this Court's predecessor, Judge Roy Bean, the trip should be free of rustlers, hooligans, or vicious varmints of unsavory kind. Moreover, the speed limit was recently increased to seventy miles per hour on most of the road leading to Galveston, so Defendant should be able to hurtle to justice at lightning speed. To assuage Defendant's worries about the inconvenience of the drive, the Court notes that Houston's Hobby Airport is located about equal drivetime from downtown Houston and the Galveston courthouse. Defendant will likely find it an easy, traffic-free ride to Galveston as compared to a congested, construction-riddled drive to downtown Houston. The Court notes that any inconvenience suffered in having to drive to Galveston may likely be offset by the peacefulness of the ride and the scenic beauty of the sunny isle.

* * * As to Defendant's argument that Houston might also be a more convenient forum for Plaintiff, the Court notes that Plaintiff picked Galveston as her forum of choice even though she resides in San Antonio. Defendant argues that flight travel is available between Houston and San Antonio but is not available between Galveston and San Antonio, again because of the absence of a commercial airport. Alas, this Court's kingdom for a commercial airport! The Court is unpersuaded by this argument because it is not this Court's concern how Plaintiff gets here, whether it be by plane, train, automobile, horseback, foot, or on the back of a huge Texas jackrabbit, as long as Plaintiff is here at the proper date and time. Thus, the Court declines to disturb the forum chosen by the Plaintiff and introduce the likelihood of delay inherent in any transfer simply to avoid the insignificant inconvenience that Defendant may suffer by litigating this matter in Galveston rather than Houston.

Thanks to commenter CStudent at Patterico's blog for helping me (via Google) to round some of these up. As CStudent says, " too bad his eccentricities also include sexual assault."

Ennui

You know, some days you just really cannot bring yourself to give a fuck?

Those are not good blogging days. Those are days you should go read someone else's blog.

Here, via Jessa "Bookslut" Crispin, is the blog of George Szirtes, "poet and translator." Here in particular is his delightful trashing of Helen Vendler's attempt at reading "Anedcote of the Jar." He understands it as well as I understand it, which I guess makes us both smart, or something.

I bought Metropole (tr. Szirtes) on the strength of Crispin's excitement for it, and have hopes (high hopes?) of reading it on the plane tomorrow. It would be better if I were flying someplace foreign, but I expect Sarasota to be only mildly unfamiliar.

Swift on lawyers

Scott Horton has a great lecture of his posted on his blog, but I'm afraid he gets Gulliver's Travels a bit askew:

At one point the king of Brobdingnag tells his visitor about lawyers and their usefulness. The best lawyers are those who can show that black is white as he says, “laws are best explained, interpreted, and applied, by those whose interest and abilities lie in perverting, confounding, and eluding them.”

It's a correct quotation, but Horton should've remembered that the Brobdingnagian culture is generally admirable in Swift's eyes. The quotation actually comes from the king's summary of what Gulliver's been descrbing of English culture:

His Majesty in another Audience was at the Pains to recapitulate the Sum of all I had spoken, compared the Questions he made with the Answers I had given; then taking me into his Hands, and stroaking me gently, delivered himself in these Words, which I shall never forget nor the Manner he spoke them in: My little Friend Grildrig, you have made a most admirable Panegyric upon your Country: You have clearly proved that Ignorance, Idleness, and Vice may be sometimes the only Ingredients for qualifying a Legislator: That Laws are best explained, interpreted, and applied by those whose Interest and Abilities lie in perverting, confounding, and eluding them.

Brobdingnag's honor is thus redressed.

UPDATE: Horton revises his text. Hurrah for Brobdingnag!

Political evolution

Via Sullivan.

Define your terms -- and your mission.

A blogger reads Gen. Petraeus's 1987 Ph.D. thesis on "the lessons of Vietnam":

on P.109 he shows a skepticism that has apparently served him well over the course of the Iraq conflict:

Vietnam planted in the minds of many in the military doubts about the ability of US forces to conduct successful large-scale counterinsurgencies. These misgivings do not in all cases spring from doubts about the capabilities of American troops and units per se; even in Vietnam, military leaders recall, US units never lost a battle.

So far, so chest-thumping. But then read footnote 22, and the grain of salt is revealed:

22. Although this phrase is heard frequently, I have never heard anyone define the terms “battle” and “lost”.

Indeed. (The "chest-thumping" is unfair, since Petraeus puts the sentiment into the "recollections" of "military leaders.")

(H/t Sullivan.)

Reading Tom Ricks's book on Petraeus and Iraq, it's clear that Petraeus understands how to win a counterinsurgency, if it can be won. The problem, which Ricks acknowledges, is whether Iraq *can* be won. The book is good for what it is, but Ricks I think is too much on board with the military perspective, while giving shorter shrift to the political goals (especially American) in whose service the military is supposed to be acting.

What you get especially from the parts discussing Petraeus's Congressional appearances is that the Dems lacked a program, Bush was on autopilot, and the military under Gates was free to pursue (and set) its own goals. But war is the pursuit of politics by other means, and we have to think what we are trying to achieve in Iraq, and whether it's doable.

It's entirely possible that there's enough mistrust b/t the Sunnis and Shiites that it's rational for them *not* to reconcile, and to keep their knives sharp for a civil war. The military seems to think it has the duty to play watchdog for however long it takes for Iraqis' attitudes to change. We'll see.

"(Don't) stop me if you've heard this one before!"

The D.C. Circuit issues another opinion disfavoring Gitmo inmates, this time the Uighur Turks whom the district court had ordered to be released into the U.S.

Orin Kerr says most of what needs to be said about it, so I'll just steal his post:

Although it's date-stamped with today's date, I swear I have read this DC Circuit Gitmo decision before. It's an opinion by Judge Randolph, ruling against Guantanamo detainees seeking release, that downplays the Supreme Court's Gitmo cases and cites Johnson v. Eisentrager along the way. I can't quite place it. Did I read this in 2003, in the opinion reversed in Rasul? Or was it 2007, in the opinion reversed in Boumediene?

Of course, the legal issue in today's case is different. Still, after Judge Randolph thumbed his nose at the Supreme Court in his Boumediene opinion, it seems hard not to notice the similarities. See Judge Rogers' concurrence for more.

Indeed. Rogers is all like "uh, look at what the Supreme Court keeps saying!" and Randolph is all "distinguishable, if you really really really don't like what the Supreme Court says, WHICH I DON'T!"

Now to see what Obama's DOJ does with this.

Hard Cases

The NYT catches up to the news about the OPR report, via Brad DeLong, who doesn't mention his deleted post but muses, "I never in my worst nightmares imagined that I was going to grow up to be the kind of professor who writes letters to the chancellor demanding that my colleagues be fired."

In other news, Jane Mayer has an article up on indefinite detention, which Obama appointee Neal Katyal thinks is a solution to prisoners we suspect but can't convict.

... a compromise idea has also emerged, which the Obama Administration is weighing. A number of national-security lawyers in both parties favor the creation of some new form of preventive detention. They do not believe that it is the President’s prerogative to lock “enemy combatants” up indefinitely, yet they fear that neither the criminal courts nor the military system is suited for the handling of transnational terrorists, whom they do not consider to be ordinary criminals or conventional soldiers. Instead, they suggest that Obama should work with Congress to write new laws, possibly creating a “national-security court,” which could order certain suspects to be held without a trial.

One proponent of this idea is Neal Katyal, whom Obama recently named to the powerful post of Principal Deputy Solicitor General, in the Justice Department. ... in October he posted an article on a Web site affiliated with Georgetown Law, in which he argued, “What is needed is a serious plan to prosecute everyone we can in regular courts, and a separate system to deal with the very small handful of cases in which patently dangerous people cannot be tried.” This new system, he wrote, would give the government the “ability to temporarily detain a dangerous individual,” including in situations where “a criminal trial has failed.” There are hundreds of legal variations that could be considered, he said. In 2007, Katyal published a related essay, co-written with Jack L. Goldsmith, a conservative Harvard Law School professor who served as the head of the Office of Legal Counsel in the Bush Justice Department. The essay argued that preventive detention, overseen by a congressionally authorized national-security court, was necessary to insure the “sensible” treatment of classified evidence, and to protect secret “sources and methods” of gathering intelligence. In his Web post, Katyal wrote, “I support such a security court.”

Naturally, I have my doubts about suspending the ordinary rules of due process like this. I think that to hold someone, he has to be convicted of *something*.

But does it have to be "beyond a reasonable doubt"? Could we convict non-citizens on a clear-and-convincing basis? a mere preponderance?

We would need something like the three-judge district court in civil-rights cases, with appeal directly to the Supreme Court. All judges to have top security clearances, perhaps with special defense practitioners paid (but not directed) by the feds, with like clearances.

Whether you keep the evidence secret from the accused seems the hardest question ... it's a travesty if you do, a security risk if you don't.

UPDATE: Did some actual, gasp, research on the reasonable-doubt issue:

we explicitly hold that the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.

In re Winship, 397 U.S. 358, 364 (1970).

Some of the citations suggest that the Court could find some wiggle room however:

The ‘demand for a higher degree of persuasion in criminal cases was recurrently expressed from ancient times, (though) its crystallization into the formula ‘beyond a reasonable doubt’ seems to have occurred as late as 1798. It is now accepted in common law jurisdictions as the measure of persuasion by which the prosecution must convince the trier of all the essential elements of guilt.' C. McCormick, Evidence s 321, pp. 681-682 (1954); see also 9 J. Wigmore, Evidence, s 2497 (3d ed. 1940). Although virtually unanimous adherence to the reasonable-doubt standard in common-law jurisdictions may not conclusively establish it as a requirement of due process, such adherence does ‘reflect a profound judgment about the way in which law should be enforced and justice administered.’ Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968).

Winship, 397 U.S. at 361-62. I wonder what Scalia would say, given that he thinks the Constitution is frozen at 1789?

Blossom Dearie

As so often happens, I learned she was "still alive" by reading her obituary.

In 1952 Blossom Dearie moved to Paris, where she formed her own vocal group, the Blue Stars, for which she wrote many arrangements. One of these, a version of George Shearing's Lullaby Of Birdland with a French lyric added, scored a considerable hit in France. In Paris she met and married the Belgian saxophonist and flautist Bobby Jaspar.

It was there, too, that she was heard by the American jazz impresario Norman Granz, who signed her to his Verve record label. She returned to the United States and with her six Verve albums, recorded between 1956 and 1960, the characteristic Blossom Dearie style finally emerged. Her repertoire was chosen fastidiously from the wittiest, tenderest and most sophisticated songs in the canon, with each interpretation carefully refined in advance. The songs of whose wry lyrics she was fond included Cole Porter's Always True To You In My Fashion and The Gentleman Is A Dope, by Rodgers and Hammerstein.

For some Verve recordings she was accompanied by studio orchestras, but her preference was always for small groups of the best jazz musicians available. Her 1957 album, Give Him The Ooh-La-La, with Herb Ellis, Ray Brown and Jo Jones is particularly impressive, with her own piano playing by no means outclassed by the stellar performers alongside.

(See also the NYT obit and Wikipedia.)

She was a singer I liked on the strength of two songs from Verve compilation discs: "Always True to You Darling (In My Fashion)" and "Surrey with the Fringe on Top." Particularly on the former, you hear the breathy, little-girl voice that seems to've been how she'll be remembered by many.

But venturing out to the store and returning with her first two albums (including Ooh-La-La, I was struck by how little of that appears. (That second album in fact includes an outtake of the title track that's much more "Betty Boop" than the album cut.) She never has a big voice -- you wouldn't mistake her for Anita O'Day -- but I've enjoyed those discs a lot already, and will be looking for more.

Coming to Yoo, baby?

Brad DeLong posts what purports to be an inside tip about the OPR investigation of John Yoo:

[T]he [Justice Department's] O[ffice of] P[rofessional] R[esponsibility]... came to "very harsh conclusions" about the professional competence of a number of the [Yoo and Bradbury] memos, making "recommendations for further action" with respect to both John Yoo and Stephen Bradbury. Attorney General Mukasey and Deputy AG Filip were reported to be apoplectic about the report and to have attempted to squelch it. Their concern is... for the defense of reliance on advice of counsel that Mukasey put forward in a series of speeches, and that the OPR reports will make, I understand, something of an absurdity...

After we commenters nagged him about the provenance of this text, he amended the post to cite "Echelon Intercept #3489DE38A9." IOW, that's classified.

Interesting if true, as Mark Twain used to say of the Gospels. Meanwhile, 62% of respondents in a Gallup poll favor an investigation into "possible use of torture in terror interrogations," though only 38% of the total want that to be a criminal investigation. Of course, getting some facts out there could nudge that number up.

UPDATE: Ha - the DeLong post disappears. Emptywheel's post proves I'm not crazy, and speculates that the reason we heard about this from DeLong was that the leak came via someone connected to Berkeley. Maybe someone who didn't want his e-mail quoted either, I would now infer.

UPDATE: Orin Kerr links to Newsweek's report of an alleged OPR report unfavorable to Yoo and others. Y.t. degrades the quality of the comments thread at several points, but there are numerous valuable comments by others.

The bookshelf

I'm usually reading a couple of books at once, but this is getting a bit ridiculous.

The Gamble, Thomas E. Ricks -- following up his excellent Fiasco, this book examines the origins and execution of the "surge" in Iraq. I'm through the "origins" part, which leaves the impression that Washington is still the kind of place where a few well-placed renegades can buck the hierarchy. I'm also a little surprised that Ricks could get Gen. Odierno to talk to him, after the portrayal in Fiasco. After Cobra II (by Gordon & Trainor) and Fiasco, The Gamble seems likely to be the third volume in the history of the Iraq war.

UPDATE: Andrew Sullivan links to Ricks's summation of his message:

think the message of my book Fiasco was that Iraq 2006 was worse than you think, while the message of The Gamble is that Iraq 2009 isn't as good as you think.

The surge has brought us to an uncertain place. No one knows if there will be full-blown civil war in Iraq. Indeed, no one even knows the real strength of the Sadrists at this point. Or whether the Baghdad government indeed will keep its promises to bring into the fold the former Sunni insurgents who have been on the American payroll for the last 18 months. In fact, none, not one, of the major political questions that faced Iraq before the surge have been resolved--and the purpose of the surge, we were told, was to create the space to solve them.

My real worry is that all those tensions still exist, but all sides in Iraq are militarily stronger than they were a couple of years ago, because we have trained and armed a Shiite-dominated Iraqi army, but also helped organize the Sunni insurgents now known as the "Sons of Iraq."

From Colony to Superpower: U.S. Foreign Relations Since 1776, George C. Herring -- they've been blogging this at LGM, so I finally picked it up. Good, in that broad, solid, Oxford History of the United States kinda way. Not terribly compelling reading however.

Napoleon's Wars: An International History, Charles Esdaile -- this is really a diplomatic history of the wars, with an oft-repeated thesis that Napoleon brought about his own downfall rather than being the victim of an English-fomented conspiracy amongst the nations. Not a controversial thesis I would've thought, but there apparently are a few French historians still championing Napoleon, and Esdaile seems to know their names. Esdaile claims to be moving beyond the biographical approach to Napoleon, but doesn't miss many shots (or quotes from Napoleon's contemporary critics). Good for someone like me who knows only the outlines of the period.

Why Evolution Is True, Jerry Coyne -- as the Onion AV Club points out, books on evolution tend to be vitiated by their sniping at creationism, and the fact that Coyne's book falls prey to the same problem made me skeptical. But then there it was in the library, so I've picked it up, as the latest effort in my search for A Good Overview of Natural Selection. Good thus far but unlikely to end my search.

Rabbit Is Rich, John Updike -- I'd bogged down about 50 pages into this volume of the Rabbit tetralogy, but Updike's death made me pick it up again. The man writes beautifully and has a certain amount of insight into human nature, but Rabbit's serendipity in falling into bed with admiring women seems a bit, well, serendipitous ... oh, wait, that's what you've read everywhere else about Updike? well I guess it's true then. I've currently stalled again at the realization that Thelma's illness, which had added some poignancy to her evident crush on Rabbit, was apparently a plot point motivated by the goal of getting Rabbit to fuck her up the ass. No, really.

Happy birthday, Mr. Darwin

On Darwin's bicentennial, 39% of Americans believe in the theory of evolution, 25% don't, 36% have no opinion.

The 25% are within the margin of error of the crazification factor, and the 36% probably have the good excuse that no one ever taught them evolution in school.

Happily, one would probably get larger favorables for today's other bicentennialist, Abraham Lincoln ... though not 100%, it seems.

And speaking of recurrences of the same ...

... it seems a bit early to pull that "Who Would Jesus Torture?" sticker off my bumper.

We have:

(1) the continued efforts to dismiss Binyam Mohamed's suit on the basis of "state secrets" and to intimidate the Brits into keeping quiet about our torture methods;

(2) on the theory that "if only the tsar knew," Mohamed's lawyers are trying to appeal directly to Obama;

(3) Elena Kagan at her confirmation hearings for SG telling the Senate that "enemy combatants" can be held indefinitely without trial:

Graham, a former Air Force lawyer, stressed the stark difference between criminal law and the law of war. He and Kagan agreed that under criminal law, no person can be held indefinitely without a trial.

"Do you believe we are at war?" Graham asked.

"I do, Senator," Kagan replied.

Graham cited the example of someone who is not carrying a gun or fighting on a battlefield. "If our intelligence agencies should capture someone in the Philippines that is suspected of financing Al Qaeda worldwide, would you consider that person part of the battlefield?" he asked. He added that he had asked the same question of Holder, who replied that he agreed that person was on the battlefield.

"Do you agree with that?" the senator said.

"I do," Kagan replied.

So, a suspected financier can be held for the rest of his life with no judicial process. More of the stupid GWOT glorification of al-Qaeda criminals.

Good thing we have a new administration.

Eternal recurrence?

What if some day or night a demon were to steal after you into your loneliest loneliness and say to you: "This blog as you now start it and have started it before, you will have to repeat once more and innumerable times more; and there will be nothing new in it, but every pain and every joy and every thought and sigh wil have to be posted there again, all in the same succession and sequence ...."

Would you not throw yourself down and gnash your teeth and curse the demon who spoke thus? Or have you once experienced a tremendous moment when you would have answered him: "You are a god and never have I heard anything more divine."

... Of course, reading such a blog is another matter altogether.