Must we bury Lenin?

At our meeting with him, now–Prime Minister Putin snapped back quite aggressively when asked why Lenin is still in his mausoleum in Red Square, asking a British colleague why there is still a monument to Cromwell outside parliament in London. One of my British colleagues reacted quite huffily to this but I must say that being half Irish and remembering Cromwell’s crimes against Ireland (which today would undoubtedly be labeled genocide) I saw a good deal of truth in this--except of course that Cromwell ruled Britain 350 years ago, and not 90 years ago.

-- Anatol Lieven (via 3QD)

... Lenin continues to be difficult for Russia. It's impossible to know what would've happened had he met with a knock on the head en route to the Finland Station, but it seems likely there would've been no Bolshevik coup, and that a military regime would've taken over the reins at some point from the hopelessly fragmented, uncertain quasi-liberals. It's hard to imagine such a regime's being as bad as Stalin's, but it might have been worse than the Empire, which we tend to whitewash in retrospect. Russia was a police state under the tsars, and there is no reason to romanticize what the West knew quite well was a reactionary state.

Most Russians today probably believe, wrongly we think, that Lenin brought about the 1917 revolution. So when they think of Lenin, they think of the man who supposedy liberated them from tsarism. His death just six years after the October Revolution, and the several orders of magnitude by which Stalin incresed the terrors of Leninism, did a lot to encourage amnesia about those very real terrors.

So, given the number of things wrong with Russia today, I'm not sure I'd fault them for confusing Lenin with Washington.

Best New Yorker poem ever

Bonus points for title longer than poem:

On the Inevitable Decline into Mediocrity of the Popular Musician Who Attains a Comfortable Middle Age

O Sting, where is thy death?

-- David Musgrave, in the issue of Aug. 30, 2010, p. 52.

... I know it's a poem, because the table of contents says so!

War without end

Six weeks after 9/11, U.S. officials were discussing with the UK the theory that, while a war was on, they could detain people indefinitely without trial -- and that "the plausibility of the argument that the war was continuing" was key to making this work:

Also among the released documents is a letter to London from the British embassy in Washington, dated 24 October, which reflects a growing realisation that the US was considering detaining people captured in Afghanistan for very long periods, and an understanding that it would be difficult to defend this as lawful.

Heavily censored, the letter shows that within weeks of the 9/11 attacks, the US and UK governments saw that the longer they could claim they were still waging a form of war, the longer they might be able to detain individuals without trial. They were aware the argument would wear thin if hostilities should appear to be over.

The author of the letter – whose identity has been redacted – writes: “As long as the war against terrorism in the widest sense continued, the US/UK would have rights to continue to detain those they had been fighting against (even if the fighting in Afghanistan itself were over). [Redacted] conceded that the strength of such a case would depend on the plausibility of the argument that the war was continuing.”

Via Emptywheel, who probably knows the documentary evidence like no one else, and who doesn't recall seeing this letter.

The lede in the article is that the UK was on notice as early as January 2002 that America was using torture, but I agree with Emptywheel that the early focus on perpetual warfare is the sleeper here.

"Decent nations do not permit their governments to assassinate their own citizens."

When you put it like that, it seems properly bizarre that we even have to discuss this.

Over at National Review (h/t Drum), Kevin Williamson gets it:

I am not a lawyer, but it seems clear to me that the state of our law is such that anybody with sufficient legal training can make a reasonably strong-sounding argument for any policy he chooses, and that if his argument is wrong, it is likely to be wrong in ways that are non-obvious....

So, set aside the legal questions for a second. The Awlaki case speaks to something even more fundamental than law: Decent nations do not permit their governments to assassinate their own citizens. I am willing to give the intelligence community, the covert-operations guys, and the military proper a pretty free hand when it comes to dealing with dispersed terrorist organizations such as al-Qaeda and its affiliates. But citizenship, even when applied to a Grade-A certified rat like Awlaki, presents an important demarcation, a bright-line distinction in our politics.

If Awlaki were to be killed on a battlefield, I’d shed no tears. But ordering the premeditated, extrajudicial killing of an American citizen in Yemen or Pakistan is no different from ordering the premeditated, extrajudicial killing of an American citizen in New York or Washington or Topeka — American citizens are American citizens, wherever they go. I’m an old-fashioned limited-government guy, and I am not willing to grant Washington the power to assassinate U.S. citizens, even rotten ones.

As he goes on to observe, it's extra-bonus bizarre that "conservatives" want to give this power to Barack Obama.

World War One draws to a close

This seemed like a fit for "can't possibly be true," but apparently it is:

Germany will make its last reparations payment for World War I on Oct. 3, settling its outstanding debt from the 1919 Versailles Treaty and quietly closing the final chapter of the conflict that shaped the 20th century.

Oct. 3, the 20th anniversary of German unification, will also mark the completion of the final chapter of World War I with the end of reparations payments 92 years after the country's defeat.

The German government will pay the last instalment of interest on foreign bonds it issued in 1924 and 1930 to raise cash to fulfil the enormous reparations demands the victorious Allies made after World War I.

What took so long?

The sum was initially set at 269 billion gold marks, around 96,000 tons of gold, before being reduced to 112 billion gold marks by 1929, payable over a period of 59 years.

Germany suspended annual payments in 1931 during the global financial crisis and Adolf Hitler unsurprisingly declined to resume them when he came to power in 1933.

Those fiscally irresponsible Nazis. Was there no crime too great for them?

But in 1953, West Germany agreed at an international conference in London to service its international bond obligations from before World War II. In the years that followed it repaid the principal on the bonds, which had been issued to private and institutional investors in countries including the United States.

Under the terms of the London accord, Germany was allowed to wait until it unified before paying some €125 million in outstanding interest that had accrued on its foreign debt in the years 1945 to 1952. After the Berlin Wall fell and West and East Germany united in 1990, the country dutifully paid that interest off in annual instalments, the last of which comes due on Oct. 3.

So now they should be in the black and ready to conquer Europe again! (H/t Silbey.)

"Conservatism and Counterrevolution"

Via Leiter, here's a link to Prof. Corey Robin's interesting essay on the nature of conservatism. A taste:

As the forty-year dominion of the right begins to fade, however fitfully, writers like Sam Tanenhaus, Andrew Sullivan, Jeffrey Hart, Sidney Blumenthal, and John Dean have claimed that conservatism went into decline when Palin, or Bush, or Reagan, or Goldwater, or Buckley, or someone took it off the rails. Originally, the argument goes, conservatism was a responsible discipline of the governing classes, but somewhere between Joseph de Maistre and Joe the Plumber, it got carried away with itself. It became adventurous, fanatical, populist, ideological. What this story of decline--and you see it on the Right as well as the Left--overlooks is that all of these supposed vices of contemporary conservatism were present at the beginning, in the writings of Burke and Maistre, only they weren’t viewed as vices. They were seen as virtues. Conservatism has always been a wilder and more extravagant movement than many realize--and it is precisely this wildness and extravagance that has been one of the sources of its continuing appeal.

Good stuff.

... Kevin Drum's little article on the Tea Party as just what always happens when Democrats win the White House is along similar lines as Robin's essay.

Anonymity

See, if I posted under my own name, this would probably land me on some TSA no-fly list. To say nothing of dodging PETA trolls.

Ancestral voices prophesying justice

Section 3, Article 24 of the Mississippi Constitution (1890) is the sort of ringing declaration one usually sees cited in dissenting opinions:

All courts shall be open; and every person for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice shall be administered without sale, denial, or delay.

I'd never noticed that its language has a venerable ancestor:

NO Freeman shall be taken or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any other wise destroyed; nor will We not pass upon him, nor condemn him, but by lawful judgment of his Peers, or by the Law of the Land. We will sell to no man, we will not deny or defer to any man either Justice or Right.

-- Magna Carta (1297 version), section 29.

Ogden & Kidd

NOTE: Correlation is not (necessarily) causation.

Apropos of the Mississippi Supreme Court's reversal of a $3 million jury verdict presided over by the Honorable Winston Kidd, in which the plaintiffs were represented by Ashley Ogden, and in which the MSSC held that Judge Kidd allowed a Jackson police officer to lie under oath:

The erroneous ruling allowed plaintiff’s expert, Tyrone Lewis, to testify with impunity and without fear of exposure, “[T]here is no documentation, no written statements or anybody to come forward to say that it did not happen [at Rebelwood].” The trial court should have known that Lewis’s statement was untrue.

-- we have compiled a list of Ashley Ogden's courtroom successes in recent times, relying heavily on Philip Thomas's excellent coverage.

English v. Rebelwood Apts. RP, LP (Kidd, J.)

Robinson v. Bailey Lumber & Supply Co. (Kidd, J.)

Baby Jane Doe v. LaQuinta Franchising, LLC (Kidd, J.)

Minor Child v. Federation Tower (Coleman, J.)

Ohazurike v. Parham Pointe South (Kidd, J.)

Durr v. MBS Construction, Inc. (Lee, J.)

[Plaintiff] v. Wackenhut Corp. (Kidd, J.)

[Plaintiffs] v. In Town Suites (Green, J.)

Marble v. Deviney Construction (Green, J.)

Knox v. Kroger Corp. (Kidd, J.)

Wright v. Gibson (Kidd, J.)

Bradfield v. Schwarz & Assocs. (Kidd, J.)

That's 8 out of 12 "Kidd, J." cases, for those of you following along on your cell phones.

Not on this list are some unsuccessful cases for Ogden:

Utz v. Running & Rolling Trucking, Inc. (Webster, J.) (jury verdict for defense)

Myatt v. Peco Foods of Miss., Inc. (Gordon, J.) (summary judgment for defendant)

Thomas v. Columbia Group, LLC (Smith, J.) (summary judgment; remanded on appeal) (This is, by the way, a rare example of Jim Smith (not the trial court) reversing a defense verdict in a tort case.)

Kennedy v. Maldonado (Green, J.) (verdict for plaintiff reversed & rendered on appeal)

Just thought this might be a handy list.

UPDATE: A friend of a friend points out the obvious: that Ogden's abortive "campaign" against Swan Yerger for Hinds Circuit Court was perhaps devised to prompt Yerger to recuse in Ogden's cases. Sometimes TBA is too innocent for the practice of law.

UPDATE (12/18/2010): The Federation Tower decision above was reversed 4-3 on appeal, with the trial court's $800K additur reversed but the $200K verdict from the jury reinstated (with however the 60% fault allocated to the child's father reversed for insufficiency of the evidence -- the jury had thus awarded only $80K).

Annals of foreshadowing

Number 13 Balaklava Road was going to be our little nest, the place into which we settled down to live happily ever after, the way they do in the fairy stories that [Gloria] was reading not so very long ago.

-- Len Deighton, Spy Hook, at 15.

... "Number 13" or "Balaklava" would either one have done just fine.

(Somehow, Charles Stross's Atrocity Archive has me reading Deighton, whom I'd never picked up before.)

"The Republican View of America ...

"... 80% Male, 20% Female; 75% Over 50, 25% Under 50; 99% White, 1% Horse."

You just really truly honesttogodly CANNOT PARODY THESE PEOPLE.

They do it themselves better than we ever could.

The GOP is, quite literally, dying out.

Grave(s) scrutiny

Justice Graves's nomination to the 5th Circuit (insert allusion to Caligula's horse) draws the attention of Eugene Volokh:

Here’s the issue: In 2004, 2008, and 2009, the Mississippi Supreme Court considered whether state judges should be disciplined for their out-of-court statements that express hostility to particular groups. The key question in each case was whether the judges’ speech was protected by the First Amendment.

In 2004, Justice Graves took the view that a judge was not constitutionally protected against being disciplined for saying (in a letter to the editor of a local newspaper, and in a radio interview) that “gays and lesbians should be put in some type of mental institute.”

In 2008, Justice Graves also took the view that a judge was not constitutionally protected against being disciplined for saying (at a judicial seminar) that “African-Americans in Hinds County [where the judge was serving] can go to hell for all I care.”

But in 2009, Justice Graves took the view that a judge was indeed constitutionally protected against being disciplined for saying (in a speech to a political organiation) that “White folks don’t praise you unless you’re a damn fool,” and “If you have your own mind and know what you’re doing, they [white folks] don’t want you around.”

This particular mix of results strikes me as hard to defend under the First Amendment. Those results of course could be defended by some people on the grounds that the first two statements (in those people’s view) were wrong or unjustifiable, and the third statement was right or justifiable. Such a defense, though, would not be consistent with First Amendment law, under which the constitutional rules cannot turn on whether a reviewing judge agrees with the speech at issue.

But of course I might well be missing some other sensible defense, so I hope the Committee asks Justice Graves: What is the basis for the conclusions you reached, and in particular for the conclusion that speech hostile to gays is constitutionally unprotected against judicial discipline, but speech hostile to whites is constitutionally protected? (As I’ll note below, the 2008 incident involving speech hostile to blacks might be distinguished on other grounds, which is why I primarily focus on the 2004 and 2009 incidents.)

More details at Volokh's post.

... Will Bardwell takes issue with EV's post:

Judges Wilkerson and Boland, to whom Justice Graves ascribed no First Amendment protection, made their statements rather spontaneously and altogether outside the sphere of political campaigns. But Judge Osborne, to whose speech Justice Graves would have granted First Amendment protection, made his remarks before the Greenwood Voters League -- and, I believe, in an election year to boot.

"Electoral" speech by judicial candidates is protected by the First Amendment under Republican Party of Minn. v. White, so that is the relevant distinction, says Bardwell.

... And NMC joins the discussion:

I suspect Will is right that this is at least a try-out of an attack on Justice Graves’s nomination, and I agree with his rejection of the insinuating tone of Volokh’s post. But I’m not really buying that a letter to the editor about an issue of public debate is a “spontaneous” pronouncement clearly distinct from a speech at a political gathering. I don’t see how one can avoid saying they are both protected, or can say one is and one isn’t.

Bloggone

Sorry not to be dispensing the free ice cream this week -- we've had a death in the extended family, and that + a Rule 59 motion due Friday (one of the few graven-in-stone deadlines in my line of work) have been crowding out any recreational activity beyond the occasional blog comment and the not-so-occasional tumbler of Scotch.

Thanks for checking in!

Undefeated Dolphins lead AFC East

-- I may not get the chance to write that again for a while, so I figured I better do it today.

Sex discrimination constitutional, says Scalia

Happily, in a lecture, not in a majority opinion:

The U.S. Constitution does not outlaw sex discrimination or discrimination based on sexual orientation, Supreme Court Justice Antonin Scalia told a law school audience in San Francisco on Friday.

"If the current society wants to outlaw discrimination by sex, you have legislatures," Scalia said during a 90-minute question-and-answer session with a professor at UC Hastings College of the Law.

And just as logically, if the current society wants to impose discrimination by sex, you have legislatures.

The court has ruled since the early 1970s that the 14th Amendment's guarantee of equal protection of the laws applies to sex discrimination, requiring a strong justification for any law that treated the genders differently. That interpretation, Scalia declared Friday, was not intended by the authors of the amendment that was ratified in 1868 in the aftermath of the Civil War.

"Nobody thought it was directed against sex discrimination," he said. Although gender bias "shouldn't exist," he said, the idea that it is constitutionally forbidden is "a modern invention."

The notion that, at a minimum, the 19th Amendment's enlargement of the franchise to women, made them subject to the "equal protection of the laws," must not impress Scalia.

But never mind such elaborate arguments. Here's section one of the 14th Amendment:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Why would any court, presented with the term "any person," resort to "original intent," legislative history, or any such extraneous source, to ascertain whether a "woman" is a "person"? Why should we care what anyone thought the amendment meant, when what it said is not open to ambiguity?

The first person diagnosed with autism

... was from Forest, Mississippi:

Donald was the first child ever diagnosed with autism. Identified in the annals of autism as “Case 1 … Donald T,” he is the initial subject described in a 1943 medical article that announced the discovery of a condition unlike “anything reported so far,” the complex neurological ailment now most often called an autism spectrum disorder, or ASD. At the time, the condition was considered exceedingly rare, limited to Donald and 10 other children--Cases 2 through 11--also cited in that first article.

Donald today is 77, still living in Forest, after a career as a teller at a family bank. (As one Forest neighbor puts it, "In a small southern town, if you’re odd and poor, you’re crazy; if you’re odd and rich, all you are is a little eccentric.")

The article doesn't dwell on it, but Donald's father had some of the traits that point to autism's genetic factor:

... the former mayor’s son, an attorney named Oliver Triplett Jr. With a degree from Yale Law School and a private practice located directly opposite the county courthouse, Oliver would later hold the position of Forest town attorney and would be admitted to the bar of the Supreme Court of the United States. He was an intense man who had suffered two nervous breakdowns, and who could get so lost in his thoughts that he’d return from walks in town with no recollection of having seen anyone or anything along the way. But as a lawyer, he was considered brilliant ....

* * * [Child psychiatrist Dr. Leo] Kanner would always seem slightly perplexed by the intensity of the letter he had received from Donald’s father in advance of their meeting. Before departing Mississippi, Oliver had retreated to his law office and dictated a detailed medical and psychological history covering the first five years of his elder son’s life. Typed up by his secretary and sent ahead to Kanner, it came to 33 pages. Many times over the years, Kanner would refer to the letter’s “obsessive detail.”

Excerpts from Oliver’s letter--the outpourings of a layman, but also a parent--now hold a unique place in the canon of autism studies. Cited for decades and translated into several languages, Oliver’s observations were the first detailed listing of symptoms that are now instantly recognizable to anyone who knows autism. It is not too much to say that the agreed-upon diagnosis of autism--the one being applied today to define an epidemic--was modeled, at least in part, on Donald’s symptoms as described by his father.

Operation Enduring Freedom

Y'know, there are much worse pastimes than trash-talking our friends' college ball teams:

The U.S. soldiers hatched a plan as simple as it was savage: to randomly target and kill an Afghan civilian, and to get away with it.

For weeks, according to Army charging documents, rogue members of a platoon from the 5th Stryker Combat Brigade, 2nd Infantry Division, floated the idea. Then, one day last winter, a solitary Afghan man approached them in the village of La Mohammed Kalay. The "kill team" activated the plan.

One soldier created a ruse that they were under attack, tossing a fragmentary grenade on the ground. Then others opened fire.

According to charging documents, the unprovoked, fatal attack on Jan. 15 was the start of a months-long shooting spree against Afghan civilians that resulted in some of the grisliest allegations against American soldiers since the U.S. invasion in 2001. Members of the platoon have been charged with dismembering and photographing corpses, as well as hoarding a skull and other human bones.

The subsequent investigation has raised accusations about whether the military ignored warnings that the out-of-control soldiers were committing atrocities. The father of one soldier said he repeatedly tried to alert the Army after his son told him about the first killing, only to be rebuffed.

Two more slayings would follow. Military documents allege that five members of the unit staged a total of three murders in Kandahar province between January and May. Seven other soldiers have been charged with crimes related to the case, including hashish use, attempts to impede the investigation and a retaliatory gang assault on a private who blew the whistle.

Army officials have not disclosed a motive for the killings and macabre behavior. Nor have they explained how the attacks could have persisted without attracting scrutiny. They declined to comment on the case beyond the charges that have been filed, citing the ongoing investigation.

But a review of military court documents and interviews with people familiar with the investigation suggest the killings were committed essentially for sport by soldiers who had a fondness for hashish and alcohol.

To randomly kill Afghans and get away with it, presumably you have to be more prudent in your drug use and souvenir-keeping. Or fly a F-18.

An isolated occurrence, no doubt?

Gibbs, whom some defendants have described as the ringleader, confided to his new mates that it had been easy for him to get away with "stuff" when he served in Iraq in 2004, according to the statements. It was his second tour in Afghanistan, having served there from January 2006 until May 2007.

Dep't of Bwa-ha-ha-ha-haaaa!

How's that easy schedule working for ya, Rebs?

And if she wins, it'll be proof she never really quit

Last night, Bill Maher played a previously-unaired 1999 video clip of Delaware U.S. Senate candidate Christine O'Donnell (R) in which she said she once "practiced witchcraft."

Said O'Donnell: "I dabbled into witchcraft -- I never joined a coven. But I did, I did... I dabbled into witchcraft. I hung around people who were doing these things. I'm not making this stuff up. I know what they told me they do... One of my first dates with a witch was on a satanic altar, and I didn't know it. I mean, there's little blood there and stuff like that. We went to a movie and then had a midnight picnic on a satanic altar."

Maher joked that he's going to show a new clip of O'Donnell every week on his show until she agrees to appear on his show again.

-- Political Wire.

... Y'know, a little more seriously, why does America put up with this kind of shit?

Christine O’Donnell’s spokesman Evan Quietsch went on the Rick Jensen Show yesterday afternoon on WDEL, and said that O’Donnell will not show up unless she was provided all the questions to be asked of the candidates before hand.

Excuse me. You're asking to become a member of the United States Senate. To guide the fortunes of the richest, most powerful nation on earth.

And you're scared to be asked questions you haven't vetted in advance?

What is wrong with America that such cowards aren't laughed out the door?

Great moments in book reviewing

This fictional account of the day-to-day life of an English gamekeeper is still of interest to outdoor-minded readers, as it contains many passages on pheasant-raising, the apprehending of poachers, ways to control vermin, and other chores and duties of the occasional gamekeeper. Unfortunately, one is obliged to wade through many pages of extraneous material in order to discover and savor these sidelights on the management of a Midlands shooting estate, and in this reviewer’s opinion the book cannot take the place of J. R. Miller’s Practical Gamekeeper.)

-- Book review of Lady Chatterley's Lover in Field & Stream magazine (quoted here).

(It really appeared, but as a humor item.)

Since they're mice, they'll probably be Senate Democrats

Mark Kleiman notes that GOP Senate candidate Christine O'Donnell -- who is like Sarah Palin, but without the keen intellect -- has identified the next scientific threat to humanity:

O'DONNELL: ... these groups admitted that the report that said, "Hey, yay, we cloned a monkey. Now we're using this to start cloning humans." We have to keep...

O'REILLY: Let them admit anything they want. But they won't do that here in the United States unless all craziness is going on.

O'DONNELL: They are — they are doing that here in the United States. American scientific companies are cross-breeding humans and animals and coming up with mice with fully functioning human brains. So they're already into this experiment.

Her concern is doubtless genuine, since if the mice's brains are fully functioning, they'll vote Democratic.

"It is not the least charm of a theory that it has been often refuted ..."

"... therein lies its charm to subtler minds," said Nietzsche.

This aphorism reaches what I very much hope will be its ultimate verification, in Galileo Was Wrong: The Church Was Right, a 2007 book defending geocentrism.

Let's skip right past the book itself. What kind of 5-star comment on Amazon.com does a book defending geocentrism get?

The emperor has been called out on his nakedness, and we'll be faced with a choice: we can side with our own pride in humanity's intellectual abilities, indeed our very ability to define truth as we see fit, our hope in that man's ingenuity will figure things out eventually and lead us into the glorious future; or we can humble ourselves before the Creator of reality (and matter, and photons, and Planck dimensions) and trust in His Word as truth, in His knowledge of all things, and in His power to restore everything again.

This book exposes THE most widespread belief about reality as a myth. The only thing that could cause you to reject this (as you've been trained to do) is the reluctance to believe that humans, especially those we call "geniuses", could be so mistaken on such a widespread scale. If you're ready to see the side of things that your history books, your physics books, your mainstream science sources, your teachers and even your church is completely ignorant of (or trying to cover up), then I recommend this book.
_____________________________________________________________

Galileo was wrong, The Church was Right brilliantly exposes the scientific evidence that has been available for over 100 years which proves that the Earth is stationary at the centre of the universe. This book is of interest to the layman (like myself) and also to anyone with a university education in Physics. It is a book I will be studying for years to come.

This seminal book is a key part of the Great Awakening, when Man finally realises that much of what we accept as being true in the field of medicine, biology, physics, economics etc is wrong.

Geocentricity - Earth stationary at the centre of the universe would be an inconvenient truth because we will have to throw out 500 years of physics. More importantly it would be an inconvenient truth for the scientists who are almost exclusively secular humanists to admit that there is a Creator to whom we are all accountable.

Robert Sungennis & Robert Bennett are brave honourable men, and true scientists, who will be ridiculed now but who will eventually be regarded as heroes in the hopefully not too distant future. I salute them and their wonderful book which has opened my eyes. This book has been a wonderful voyage of discovery for me. Thank you!

Equal time for geocentrism in schools? Why not?

... You can attend the "Galileo Was Wrong" conference in South Bend, Indiana, if you like.

Next up: were the Church Fathers correct in placing Jerusalem at the center of the world? Learn the secret truth hidden from you by generations of secular-humanist cartographers!

... GOP Senate candidate Christine O'Donnell, when not campaigning against masturbation, campaigns against teaching evolution:

Well, as the senator from Tennessee mentioned, evolution is a theory and it's exactly that. There is not enough evidence, consistent evidence to make it as fact, and I say that because for theory to become a fact, it needs to consistently have the same results after it goes through a series of tests. The tests that they put — that they use to support evolution do not have consistent results. Now too many people are blindly accepting evolution as fact. But when you get down to the hard evidence, it's merely a theory. But creation —

* * * Well, creationism, in essence, is believing that the world began as the Bible in Genesis says, that God created the Earth in six days, six 24-hour periods. And there is just as much, if not more, evidence supporting that.

I'm not aware that she's taken a public position on geocentrism, but I am half tempted to e-mail that Galileo link to Chris Coons's campaign and ask them to be sure and get her opinion on the subject. Hell, think how much of her base she could lose denying that the earth orbits the sun!

Matters of life and death

NMC has three posts (thus far) on what should be the judicial shocker of the year in Mississippi: James T. Kitchens, Jr., a sitting circuit judge (not the plaintiffs'-lawyer-turned-Justice Kitchens), gave false testimony (= "lied"?) as an assistant DA and lied again in a PCR hearing after his accession to the bench, all in an effort to send a murderer to the death chamber.

Judge Mike Mills, himself a Miss. Supreme Court justice before taking a seat on the federal bench, has vacated the death sentence in Quintez Hodges' case and ordered a new trial on sentencing.

ADA Kitchens was called in rebuttal to the testimony given by Petitioner and his mother. (See id. at 1025). He stated that he had met with Petitioner’s attorney on the prior burglary charge, and that the defense attorney informed him that Ms. Tatum did not want Petitioner to go to prison. (See id. at 1026-27). ADA Kitchens testified that he then spoke to Ms. Tatum, and she confirmed that those were her wishes. (See id. at 1027). He testified that Petitioner put on witnesses to ask for a more lenient sentence, and that the State requested a sentence of fifteen years. (See id.). * * *

In closing argument, the prosecutor argued that Petitioner had already been given “a huge measure of grace” . . . “whether he wants to acknowledge it or not” because of Ms. Tatum’s intercession, and that he killed her son “after being given a second chance of monumental proportions.” (Trial Tr. Vol. 20, 1077). * * *

The testimony of Mr. Kitchens at Petitioner’s trial and in this Court is factually at odds with what is contained in the record, and DA Allgood should have known that the testimony given by ADA Kitchens was false. * * * The Court notes that
the first statement made by the court that sentenced Petitioner on the prior burglary plea is that “[t]he State has made no recommendation as to a sentence. . .” (Evid. Hr’g Ex. 4, 16). Also, there is no indication anywhere in the record that Petitioner’s attorney, Mr. Bambach, ever spoke to Ms. Tatum in person or that she expressed to him a desire that Petitioner not go to prison. (See Pet. Memo Ex. 4, 10-12). Moreover, ADA Kitchens, having been given notice that he would likely give testimony about this prior plea at the sentencing phase of a capital murder trial, apparently took no measures to ensure that he had an accurate recollection of what transpired. (See Evid. Hr’g Tr. Vol. I, 32; 52; 65). Even if Ms. Tatum stated that she did not want Petitioner to go to the penitentiary, that statement was never made in open court. Therefore, even if it occurred, it occurred off of the record and outside of Petitioner and his mother’s presence.

* * * In this instance, the State, seemingly unconcerned with the accuracy of the testimony to be given in a trial where the result could be death, provided the jury with false information. That information was elicited to show that Petitioner is a remorseless liar who was shown kindness that he refused to acknowledge and which he repaid by murdering the son of the woman who extended it. In light of these facts, this Court concludes that there exists a reasonable probability that this testimony affected the jury’s judgment.

No word yet of any reaction by Allgood or Kitchens, both of whom should resign immediately.

The case also involved a faulty instruction on the possibility of parole and a mentally unstable defense attorney who was using drugs and generally breaking down during the trial, but it's the cold-blooded presentation of false testimony in a deliberate effort to kill a man that makes Judge Mills's opinion so shocking.

Let's not overlook, however, the procedural games played by the Mississippi Supreme Court in its own zeal to affirm the sentence. First, the MSSC denied a moiton to supplement the trial-court record with the transcript of the plea hearing; then on PCR review, with the transcript before it, the court held the issue previously resolved:

Petitioner’s trial counsel would have had no reason to believe that they would need an actual transcript of Petitioner’s prior burglary plea at the capital murder trial in order to correct the State’s presentation of false testimony. To the extent cause and prejudice are required to overcome the determination that this claim is barred for counsel’s failure to contemporaneously object, Petitioner has established same. See, e.g., Coleman, 501 U.S. at 750. Moreover, the failure to consider the plea transcript on direct appeal and then determining the issue res judicata on post-conviction review is a Catch-22 that has improperly denied Petitioner a fair opportunity to present his claim.

This same week, the Clarion-Ledger reports on three men in Mississippi prisons who've been exonerated by DNA evidence in the same crime: Bobby Ray Dixon and Phillip Bivens, who served 32 years in prison; and Larry Ruffin, who served only 23 years ... because he died behind bars in 2002.

... the eyewitness in the case, Patterson's 4-year-old son, told authorities there was one assailant, not three. Dixon and Bivens had pleaded guilty and fingered Ruffin as the rapist after allegedly being beaten.

The actual rapist, Andrew Harris, is serving a life sentence for another rape he committed two years after the State of Mississippi helped him evade conviction of the rape and murder of Eva Gail Patterson. Nice work.

... Beating black guys to make them confess is a time-honored Southern tradition, but it's not always necessary, as the NYT reports:

New research shows how people who were apparently uninvolved in a crime could provide such a detailed account of what occurred, allowing prosecutors to claim that only the defendant could have committed the crime.

An article by Professor [Brandon] Garrett draws on trial transcripts, recorded confessions and other background materials to show how incriminating facts got into those confessions — by police introducing important facts about the case, whether intentionally or unintentionally, during the interrogation. . . .

Professor Garrett said he was surprised by the complexity of the confessions he studied. “I expected, and think people intuitively think, that a false confession would look flimsy,” like someone saying simply, “I did it,” he said.

Instead, he said, “almost all of these confessions looked uncannily reliable,” rich in telling detail that almost inevitably had to come from the police. “I had known that in a couple of these cases, contamination could have occurred,” he said, using a term in police circles for introducing facts into the interrogation process. “I didn’t expect to see that almost all of them had been contaminated.”

(H/t Adler.)

"Judicial notice" an oxymoron?

Scott Horton writes about the awful decision in Mohammed v. Jeppesen Dataplan, which we ranted against last week. The case

involved claims by an individual that he was seized and then tortured in a proxy arrangement directed by the CIA. Jeppesen Dataplan was directly involved, restraining and transporting the victims with knowledge that they would be tortured; that knowledge is exhibited, for example, in briefings to the company’s employees. These facts were established beyond any reasonable doubt without the need to turn to classified information. Indeed, one of the most respected courts in the English-speaking world--the Court of Appeal in London--had already viewed the formidable evidence and demanded a criminal investigation, now pending. The British court concluded, just as the Ninth Circuit was legally obligated to do, that state-secrecy claims could not be used to block discovery of evidence of crimes. Under the International Convention for the Protection of All Persons from Enforced Disappearance, which adopts the position that the U.S. Justice Department took in 1946, the crime of disappearance connected to torture is a crime against humanity, with no statute of limitations and no defense of superior orders applicable.

The Holder Justice Department would have us believe that it is protecting state secrets essential to our security. That posture is risible, and half of the court saw through it. The dilemma faced by the Justice Department was rather that evidence presented in the suit would likely be used in the future (not in the United States, obviously) to prosecute those who participated in the extraordinary renditions process. Twenty-three U.S. agents have already been convicted for their role in a rendition in Milan. Prosecutors in Spain have issued arrest warrants for a further 13 U.S. agents involved in a botched rendition case that touched on Spanish soil. Prosecutors in Germany have opened a criminal investigation into the use of Ramstein AFB in connection with torture and illegal kidnappings. Prosecutors in Poland are pursuing a similar matter. And Prime Minister David Cameron was recently forced to brief President Obama on his decision to direct a formal inquiry which could lead to prosecutions tied directly to the subject matter of the Mohamed case. This is the remarkable background to the case decided by the Ninth Circuit, and remarkably not a single word about this appears anywhere in the opinion--or even in most of the press accounts about it.

This is bad, people. This is ve-must-halt-these-proceedings-in-the-name-of-Reich-zecurity bad. Whatever the merits of the case -- and we may find those out in the UK proceeding -- it's outrageous that the feds can get a case dismissed on the face of the complaint by merely alleging to the courts that "state secrets" are implicated.

Getcher antioxidants today -- at McDonald's!

Robert Waldmann complains that McD's gets a bad rap for its food being "filled with preservatives":

I think that BHA and BHT are good for you.

The weird thing is that health food enthusiasts are convinced of two things -- that anti-oxidants are healthy and that preservatives are unhealthy. The only problem is that "anti-oxidant" and "preservative" are synonyms.

This is not (quite) a logical inconsistency. Their view is that natural preservatives are healthy and that synthetic anti-oxidants are unhealthy. There is essentially no evidence supporting this hypothesis and people have been looking for such evidence for decades. * * *

To get technical, preservatives are anti-oxidants and oxidative stress (roughly rusting) is allegedly implicated in cancer and cardio-vascular disease. I note that there was a dramatic increase in US life expectancy in the 70s (similar to the increase in the 40s following the introduction of penicillin). This was due to reduced incidence of heart attacks. It was ascribed to improved diet and increased exercize. Sure mac, that's why we are so much thinner than we used to be.

Now continuing improvement can be partly explained by statins (one can be overweight, eat lots of saturated fat, never exercize and have low LDL cholesterol these days -- that's my plan). Also some by bypass surgery and shunts and stuff. This is mostly post 70s. There is a huge mystery in the data which can be explained if it is noted that anti-oxidants reduce arterio-schlerosis in model systems (over-fed rats).

In any case, the claim that anti-oxidants prevent arterioschlerosis is absolutely totally very respectable and BHA and BHT are anti-oxidants. There is a fairly large literature asserting that this or that food contains anti-oxidants. In each case which I checked, the anti-oxidant was compared to BHA or BHT (or both).

So why are people so deeply convinced that BHA and BHT are bad for our health ? One reason is that extremely large doses cause cancer of the fore-stomach in mice and rats.

This result was part of the evidence which convinced people (including the guy who taught me organic chemistry) that organic chemistry was a menace, because many many synthetic organic chemicals are carcinogenic. In 1979, he predicted a big increase in cancer in the 80s roughly 20 years after they began flowing into our diet (20 year lag from aggregate cigarette smoking and lung cancer). That didn't happen -- aggregate cancer incidence is almost completely explained by age (to the fifth) and cigarette smoking. My view is that many compounds which are carcinogenic in huge doses are safe in small doses and in other cases the carcinogenisis depends on the fifth power of the dose which amounts to pretty much the same thing. Also I am not a mouse and don't have a fore-stomach.

Now if only the value meal came with a beer. (H/t Drum.)

The translation error that broke the world

As someone who just quit reading a translation of Oblomov upon finding the word "alright," I take pleasure in relaying the information that an error in translation caused the Great Depression. This from a comment (by "Justin") at a Tyler Cowen post about the effects of France's "gold hoarding" from 1927-32:

From Kindleberger, "The World in Depression":

"The central issue at the first Hague Conference [in August 1929] had been the unwillingness of Philip Snowden, the Labour chancellor of the exchequer [for UK] to accept the experts' recommendation on the division of [WWI] reparations... The Prime minister and the foreign office thought it absurd [for Snowden] to raise an international conflict and threaten to break up the conference over 80% of 2.5million pounds sterling. In the course of the debates, Snowden called an argument by Chéron, the French minister of finance, "ridiculous and grotesque," an expression strong in English but still stronger in French [see footnote]. This led to difficulty. Shortly thereafter, Quesnay [from the Bank of France], in the company of two other experts, Pirelli from Italy and Francqui from Belgium waited on Leith-Ross [UK economic advisor] and stated that the French government viewed Snowden's attempt to change the division of the Young Plan as inadmissible. If he did not change his demand, he went on, the French government would convert its sterling into gold and transfer it to Paris. As he tells the story, Leith-Ross rang for a messenger and had the men shown out without a reply. Most opinion holds that the serious British gold losses of August and September, which amounted to $45 million, were the result of capital flows to New York after the Federal Reserve discount rate was finally raised. On the other showing, the words "ridiculous and grotesque" led to French conversions in London and forced the Bank of England to put up its discount rate. This, rather than the failure of the Hatry companies, triggered off the rise in the Bank of England discount rate and the collapse of the New York stock market."

"[footnote]: Schmidt, who was present at the The Hague as a German interpreter, claims that ridicule et grotesque is an inexact translation of "ridiculous and grotesque". The latter expression could be used in the House of Commons; the former would not be accepted in the Chamber of Deputies... When I happened to recount this story for Rene David, a french professor of international law, he extended it. He had been in London at the time, and he said that the French interpreter, realizing his mistake, apologized the next day and offered the press a correction. "Ridiculous", he explained, meant "laughable", "funny" or "amusing", while "grotesque" meant "bizaare", "curious" or "original". He therefore should have translated "ridiculous and grotesque" as amusant et original."

A cautionary tale for translators everywhere!

(Post title of course alluding to this book, possibly on a bargain table in a bookstore near you, and very much worth reading. Ahamed notes that ridicule et grotesque implies "bad faith and utter stupidity," and adds that Chéron "sent his seconds to demand an apology -- the French were only just weaning themselves off the practice of dueling.")

Nietzsche and the will to power: notes from a CLE class

As readers of Nietzsche know, he tinkered with a project for a book called The Will to Power, but abandoned it well before he went mad. His enterprising sister published selections from his notebooks under that title as if it were his "unpublished masterpiece," creating no end of misunderstanding for many years.

Much moreso than "the superman" or "the eternal recurrence," the will to power has a good claim to be a central part of N's thought. A problem for his readers has been that, while being the anti-metaphysician par excellence, N. has also been accused of making "will to power" into some kind of metaphysical substrate of reality. Besides being a rather odd error for N. of all people to make, this reading also relies heavily on the notebooks, tho not entirely so.

The will to power is best understood in terms of interpretation, as may be seen from those who best exemplify it in N's view -- the creators of moral systems, those who invent and implement values for a society. N.b. that after he abandoned the Will to Power project, his next notion was for a magnum opus called The Revaluation of All Values (of which The Antichrist was supposed to be vol. 1).

Reading in a modern selection from the notebooks, I think I've identified some of what N. was up to with his "metaphysical" notions of will to power. Take what appears a troubling note from June-July 1885:

The triumphant concept of "force," with which our physicists have created God and the world, needs supplementing: it must be ascribed an inner world which I call "will to power," i.e. an insatiable craving to manifest power; or to employ, exercise power, as a creative drive, etc. The physicists cannot eliminate "action at a distance" from their principles, nor a force of repulsion (or attraction). There is no help for it: one must understand all motion, all "appearances," all "laws, as mere symptoms of inner events, and use the human analogy consistently to the end.

This "must" is, to say the least, spectacularly unconvincing. One would think N. would prefer to escape "the human analogy" altogether.

Leaving aside the very dubious grasp of even late 19th-c. science possessed by a prematurely retired professor of classical languages, I think what's up here is that N. (1) believes in a fundamentally a-human, value-free, indifferent cosmos, and (2) finds that belief utterly useless for the creator of values. True, the world is alien to human desires and fears and couldn't care less if we prosper or perish; but then, why should we let the truth distract us from the project of creating civilized humans? One "must" imagine nature in terms of "the human analogy" because anything else is boring to Nietzsche.

This rather cavalier dismissal of scientific thought is made more clear when we compare the above passage to a somewhat later notebook entry:

A force we cannot imagine (like the allegedly purely mechanical force of attraction and repulsion) is an empty phrase and must be refused rights of citizenship in science -- which wants to make the world imaginable to us, nothing more!

Again, this is a remarkably narrow notion of what "science" (presumably, wissenschaft, which can mean more like "academic discipline" than a hard science) is properly concerned with. But again, N. is concerned with what the world means to humans, what we can imagine. I guess he would've had no use for the world of quantum mechanics, where we can use mathematics to make amazing predictions of real events, but at the cost that, quite plainly, we cannot imagine what it is we are describing. (As Bohr said, whoever thinks he understands quantum physics, doesn't understand it.)

In short: N. did not "really think" that the world, or organic matter, was "made of" will to power; he simply thought that, inasmuch as thought's inseparable from interpretation (and thus from will to power), the question of what the world "is really made of" was simply not very interesting, and at worst, an invitation to nihilism ("atoms and the void"). Far better, in N.'s view, to believe a value-supporting falsehood about the world, than to pursue an ultimately nihilistic "will to truth" to the point of undoing our values and, therefore, ourselves.

Torture: it's not a crime, it's a "state secret"

People like Jon Chait enjoy professing to be dumbfounded by liberals' lack of enthusiasm for the Democrats in 2010.

Perhaps that's because Chait et al. don't much care about news like this:

Plaintiff Ahmed Agiza, an Egyptian national who had been seeking asylum in Sweden, was captured by Swedish authorities, allegedly transferred to American custody and flown to Egypt. In Egypt, he claims he was held for five weeks “in a squalid, windowless, and frigid cell,” where he was “severely and repeatedly beaten” and subjected to electric shock through electrodes attached to his ear lobes, nipples and genitals. Agiza was held in detention for two and a half years, after which he was given a six-hour trial before a military court, convicted and sentenced to 15 years in Egyptian prison. According to plaintiffs, “[v]irtually every aspect of Agiza’s rendition, including his torture in Egypt, has been publicly acknowledged by the Swedish government.”

* * * “even the most compelling necessity cannot overcome the claim of privilege if the court is ultimately satisfied that [state] secrets are at stake.” United States v. Reynolds, 345 U.S. 1, 11 (1953). After much deliberation, we reluctantly conclude this is such a case, and the plaintiffs’ action must be dismissed. Accordingly, we affirm the judgment of the district court.

(First excerpt plucked from LGM; opinion here.)

The dissent -- there is, thankfully, a dissent -- notes the backstory of Reynolds:

Even in Reynolds, avoidance of embarrassment—not preservation of state secrets—appears to have motivated the Executive’s invocation of the privilege. There the Court credited the government’s assertion that “this accident occurred to a military plane which had gone aloft to test secret electronic equipment,” and that “there was a reasonable danger that the accident investigation report would contain references to the secret electronic equipment which was the primary concern of the mission.” 345 U.S. at 10. In 1996, however, the “secret” accident report involved in that case was declassified. A review of the report revealed, not “details of any secret project the plane was involved in,” but “[i]nstead, . . . a horror story of incompetence, bungling, and tragic error.” Garry Wills, Why the Government Can Legally Lie, 56 N.Y. Rev. of Books 32, 33 (2009). Courts should be concerned to prevent a concentration of unchecked power that would permit such abuses.

So you would think.

I'll leave you on this 9/11 eve with two sets of quotes, one from Antonin Scalia (quoted in the above dissent) --

Arbitrary imprisonment and torture under any circumstance is a “ ‘gross and notorious . . . act of despotism.’ ” Hamdi v. Rumsfeld, 542 U.S. 507, 556 (2004) (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)). But “ ‘confinement [and abuse] of the person, by secretly hurrying him to [prison], where his sufferings are unknown or forgotten; is a less public, a less striking, and therefore a more dangerous engine of arbitrary government.’ ” Id. (Scalia, J., dissenting) (quoting 1 Blackstone 131-33 (1765)) (emphasis added).

-- and the other from the late David Foster Wallace:

... can we trust our elected leaders to value and protect the American idea as they act to secure the homeland? What are the effects on the American idea of Guantánamo, Abu Ghraib, PATRIOT Acts I and II, warrantless surveillance, Executive Order 13233, corporate contractors performing military functions, the Military Commissions Act, NSPD 51, etc., etc.? Assume for a moment that some of these measures really have helped make our persons and property safer—are they worth it? Where and when was the public debate on whether they’re worth it? Was there no such debate because we’re not capable of having or demanding one? Why not? Have we actually become so selfish and scared that we don’t even want to consider whether some things trump safety? What kind of future does that augur?

Osama bin Laden and his thugs never had the power to disgrace the United States of America. George W. Bush and Barack Obama have done so. Fuck 'em, all three.

The present economic situation, in technical terms

If a seasoned blogger like Brad DeLong can steal ("quote") an entire blog post from Karl Smith, well, who is TBA not to emulate his bettters?

There is a critical point that I fear the commentariat is just not getting. In my darker moments I fear that some of my fellow economists aren’t getting it either but we aren’t going to go there.... We have very low capacity utilization (75%) and very high unemployment (10%). That is, we have factories sitting idle for lack of workers – low capacity utilization. At the same time we have workers sitting idle for lack of factories – high unemployment. There are machines waiting to be worked and people waiting to work them but they are not getting together. The labor market is failing to clear.

This is a fucking disaster.

Excuse my language, but you have to get that this is a big deal. This is not a big deal like the GOP doesn’t appreciate public goods. Or, Democrats don’t understand incentives. Or some other such second order debate that could reasonably concern us in different times. This is a failure of our basic institutions of production. The job of the market is to bring together willing buyers with willing sellers in order to produce value. This is not happening and as a result literally trillions of dollars in value are not being produced.

Let me say that again because I think it fails to sink in – literally trillions of dollars in value are not being produced. Not misallocated. Not spent on programs you don’t approve of or distributed in tax cuts you don’t like. Trillions of dollars in value are not produced at all. Gone from the world entirely. Never to be had, by anyone, anywhere, at any time. Pure unadulterated loss.

Time and time again I see people speak about recessions as if they are a bad harvest – an unfortunate event wherein we have to figure out how to go with less. Some say we should all sacrifice – some say the sacrifice should be based on X or Y. Some say each family should take their lumps as they come.

However, they are all getting the basic idea wrong. This is not a bad harvest. The problem isn’t that there is less to go around. The problem is that we are creating less, building less, making less.

We have people who would be working but are instead watching Judge Judy. We have machines that could be spinning but are literally rusting for lack of use. This is a coordination disaster.

The question is how do we end this thing as quickly as possible. How do we stop wasting our basic resources (men and machines), day-after-day, month-after-month, year-after-year.

So when I hear this debate drift oft into how Republicans don’t appreciate the value of infrastructure – I suffer infinite eye roll. This is the time for this? You would watch the core economy grind down while you argue over the need to fix a pothole!

When I hear the GOP running some nonsense about how Obamacare is scaring small business I find myself beating back the desire for autodefenestration. Can we let this go already! There are real issues that need to be dealt with.

Now maybe some people want to explain to me how what appears to be a massive market failure is actually something else: a skill mismatch, a great recalculation, etc. I am willing to have that debate.

Of those that agree that this is the result of insufficient aggregate demand we can debate the fastest means of spurring such demand: aggressive monetary policy, payroll tax cuts, something else we haven’t thought of – I am all ears.

However, these are the limits of rational disagreement.

Side arguments that are basically proxy battles for your general theory of government are sadistic tribalistic grandstanding. You chatter and dawdle while Rome burns.

See the original post for charts, update, etc.

Lies, damned lies, and lawyerly lies

Legal news you probably can't use, except as cautionary tales:

-- Philip Thomas reports on Judge Mills' discovery sanctions against Harrah's. The case arose out of a charter-bus accident, but the present issue is some stunningly brazen misconduct, including old-fashioned lying to the court, regarding some materials requested in discovery. (NMC had some good posts on the case, but they seem to've been casualties of his former blog host's own misconduct.)

Anyway, Judge Mills's sanction is that he's resolving against Harrah's the issue of whether the charter bus was Harrah's agent. We had thought this was a disappointingly slight punishment, but NMC (commenting at Thomas's post) corrects us:

The view up here among lawyers is that this ruling was devastating to Harrah's-- apparently, the bus wreck is all but indefensible. You also are missing the part where he says he's going to apply Ark. law and there are no damages caps.

Throughout the part of the hearing I attended, Harrah's was saying that a dispositive sanction about joint venture meant it was doomed.

It was not a slap on the wrist. It's a zap that will cost Harrah's way into the millions.

One wonders if they'll seek to recover against their attorneys.

-- The other legal news is that the sealed court order in the dispute between State Farm and Jim Hood has been unsealed, thanks to Alan Lange and some Mississippi TV stations who persuaded the district court to unseal the entire document. NMC gives the background. Lange and NMC flag the contrast between what Hood told the court --

Judge Bramlette: All right, Mr. Hood, you’re going to be approached by the media and we want to know what you’re going to say. And you’ve already said it off the record. There’s a request that it be on the record. And go ahead and say that, sir.

Mr. Hood: Yes, your Honor. In order to protect the seal, certainly, the only comment would be that the the case was dismissed. And, of course, they’ll ask me about the criminal case; and I would not make any comment, which is always what I’m bound ethically to do, is not to make any comment about the criminal case, say “I can’t comment about that”.

-- and what he told the public:

allegations lodged against me by this insurer (State Farm) were shown to be false when a federal judge recently threw out a lawsuit it had filed against my office.

Disappointing, to say the least.

The Great Leap into Famine

Last week, NMC flagged a roundup of topics that China experts would love to know more about. Leading the list was the famine of 1959-62, during the "Great Leap Forward" under Mao.

All the details may never be known, but there's a new book about it:

In brutal fact, between 1959 and 1962, at least forty-three million Chinese died during the famine .... Most died of hunger, over two million were executed or were beaten or tortured to death, the birth rate halved in some places, parents sold their children, and people dug up the dead and ate them.

The cause of this disaster, the worst ever to befall China and one of the worst anywhere at any time, was Mao, who, cheered on by his sycophantic and frightened colleagues, decreed that before long China's economy must overtake that of the Soviet Union, Britain and even the US. Mao suggested that 'When there is not enough to eat people starve to death. It is better to let half of the people die so that the other half can eat their fill,' and declared that anyone who questioned his policies was a 'Rightist', a toxic term eventually applied to thirteen million Party members. * * *

Now Frank Dikötter, a professor at the School of Oriental and African Studies in London and at Hong Kong University, has laid out the vast horror in detail, drawing on local and provincial archives that have only recently become available to approved foreign scholars.

An interesting assertion is that local archives are sometimes more accurate than central ones:

Until recently, Dikötter states, most accounts of the famine have been based on central government sources that are often incomplete or untrue. What he found during his years rummaging in archives throughout China was that such central documents were transmitted in fuller, less censored versions to the provinces and below. In addition, the archives he saw contained letters of complaint or justification from local officials and even ordinary people, minutes from local and even central meetings, and statistics which were either falsified to hoodwink Mao or local superiors, or were subtle enough to reveal that awful things were happening. For example, in 1960 in the 'model province' of Henan, in Xinyang alone 'over a million people died ... Of these victims 67,000 were clubbed to death with sticks'. When this came to Mao 'he blamed the trouble on class enemies'. On another occasion, when the Chairman learned that there had been terrible deaths in one town he had hitherto admired, 'Mao simply switched his allegiance to the next county down the road willing to outdo others in extravagant production claims.' Mao and his cronies insisted, as one of them put it as reports of deaths rolled in, that 'This is the price we have to pay; it's nothing to be afraid of. Who knows how many people have been sacrificed on the battlefields and in the prisons [for the revolutionary cause]? Now we have a few cases of illness and death; it's nothing!' Every detail was locally recorded and explained - or obscured. Take this report from 25 February 1960 in Yaohejia village: 'Name of culprit: Yang Zhongsheng ... Name of victim: Yang Ecshun. Relationship with Culprit: Younger Brother ... Manner of Crime: Killed and Eaten. Reason: Livelihood Issues.'

Society completely unravelled. In the newly established communes, peasants following Mao's lunatic advice ploughed their paddies uselessly deep. They dismantled their houses to use as fertiliser, and melted down their tools to make the steel Mao had decreed was the mark of an advanced socialist country (after all wasn't Stalin 'the man of steel'?). Other peasants abandoned their fields and marched miles to work all night constructing mammoth water schemes that often came to nothing, while their families died without grain at home. The only reason millions more didn't starve, as Dikötter describes in detail, is because of their desperate ploys to steal food.

Naturally, few Chinese learn about this today, and what they do learn is mostly lies.

"No littering" is clear -- "no torture" isn't. So now you know.

Quoting David Luban's post in full:

Today the Ninth Circuit Court of Appeals overturned the conviction of Daniel Millis, convicted of littering because he left sealed bottles of drinking water in a desert wildlife refuge. He explained that he left them "along frequently traveled routes for unlawful entrants to the United States." He belongs to a group called "No More Deaths," and the opinion quotes his testimony: "humanitarian aide [sic] is never a crime."

The majority overturned his conviction because a reasonable person might not understand that leaving drinking water for people dying of thirst is littering. The United States countered that the water bottles constitute "garbage" in the sense of the statute. After foraging through some dictionary definitions of "garbage" and "discarded," the majority concludes that the regulation is too ambiguous to enforce in this case.

Judge Jay Bybee - he of the torture memo - dissents. Littering is littering, and Bybee finds that the regulation is as clear as a sunny day in the desert. This is the same Jay Bybee who thinks that terms like "torture" and "severe suffering" are so vague that it would be unfair to apply statutes prohibiting them to interrogators who waterboard people and keep them awake for a week at a time, naked and hanging in chains.

The man should be in prison, and instead he's one of the highest judges in the land. Shameful.

... Bybee's colleague in crime, John Yoo, isn't very articulate in his own defense, it appears. (Via LGM.)

Is it the birth certificate thing?

Stopped by the store last night and saw the cover of Newsweek:

For those of you with normal vision, that's:

The Making of a Terrorist-Coddling, Warmongering, Wall Street-Loving, Socialistic, Godless Muslim President*

*who isn’t actually any of these things

by Jonathan Alter

Why does Jonathan Alter think that Obams isn't actually president? When did *this* rumor start?

I'm guessing "healthcare" wouldn't go over too well, either

Use "case law" rather than "caselaw.” See Memorandum from Charles Fried to OSG Attorneys (Oct. 2, 1987) (calling for "total extirpation" of this "barbarism").

Thus the USDOJ Office of the Solicitor General Style Manual, a document of which I learned via a Volokh post. Not linked on the OSG's site, but they will e-mail you a copy, it turns out.

The manual's purpose is to supplement the Bluebook for the stylistic peculiarities of the Supreme Court. It seems that there must be a Supreme Court Style Manual on which this document is patterned, and indeed, there must be a fair number of ex-clerks working in OSG, so the exact genesis of this manual would be of interest.

Anyway, now you can cite the SG way! Use only as directed.

In Iraq till 2020? Or a coup first?

Tom Ricks is back from vacation and passes along some Iraq pessimism unallayed by Obama's declaration of "Mission Accomplished":

Meanwhile, in the under-reported Iraq story of the month, the Iraqi army chief of staff said the U.S. military needs to stay in Iraq for another decade. "If I were asked about the withdrawal, I would say to politicians: "the US army must stay until the Iraqi army is fully ready in 2020," said Lt. Gen. Babaker Zebari.

And in the second most under-reported story of the month, here is a comment from an Iraqi politician, quoted by the awesome Anthony Shadid of the New York Times:

A leading politician related a recent conversation he had with a top Iraqi general. The politician asked about the possibility of a coup. The general, he said, deeming the talk serious, pulled out a map of the capital and provided a disconcertingly elaborate plan to execute one: overturning trucks to block the route from the main American base to the Green Zone, seizing television stations, besieging Parliament, and so on.

Whatever happens in Iraq is not, ultimately, in America's control.

Titanic ... bitchslapped a pussy lil iceberg on my way to NY

If Historical Events Had Facebook Statuses.

Drinkers live longer

If that's a good thing:

Moderate drinking, which is defined as one to three drinks per day, is associated with the lowest mortality rates in alcohol studies. Moderate alcohol use (especially when the beverage of choice is red wine) is thought to improve heart health, circulation and sociability, which can be important because people who are isolated don't have as many family members and friends who can notice and help treat health problems.

But why would abstaining from alcohol lead to a shorter life? It's true that those who abstain from alcohol tend to be from lower socioeconomic classes, since drinking can be expensive. And people of lower socioeconomic status have more life stressors — job and child-care worries that might not only keep them from the bottle but also cause stress-related illnesses over long periods. (They also don't get the stress-reducing benefits of a drink or two after work.)

But even after controlling for nearly all imaginable variables — socioeconomic status, level of physical activity, number of close friends, quality of social support and so on — the researchers (a six-member team led by psychologist Charles Holahan of the University of Texas at Austin) found that over a 20-year period, mortality rates were highest for those who were not current drinkers, regardless of whether they used to be alcoholics, second highest for heavy drinkers and lowest for moderate drinkers.

Nietzsche had the answer: the human organism can handle only so much reality. Or possibly that was Lovecraft. Same difference. (H/t 3QD.)

"How to Lose a Case in 100 Pages or More"

That's the subtitle of the article "Writing Bad Briefs," a how-(not-)to by NY judge Gerald Lebovits. The endnote to his article indicates that the same rhetorical device has been used many times before, but Judge Lebovits applies it with zest:

The more typefaces in your brief, the more you’ll distract the judge from finding any good arguments your client might have. You’re closer to losing than you think if your brief looks like a ransom note. Challenge yourself to write each paragraph in a different typeface. If you really want to signal that you and your brief are losers, write each sentence in a different typeface: one in Times New Roman, another in Courier, and a third in Garamond. When neon lights fail, bold, underline, and italicize, preferably all at once, and all in quotation marks. How else are you going to emphasize your lack of forthcoming content, show sarcasm, and prove your paranoia? Then uppercase as many words as you can. Capitalizing excessively makes your writing memorable, albeit unreadable.

I will have to plagiarize all this for a CLE one day.

H/t Max Kennerly.