BeldarBlog

Texas governor Rick Perry accepts Texas Board of Pardons & Paroles' recommendation to commute death sentence of getaway driver Kenneth Foster

The Associated Press is reporting that the Texas Board of Pardons & Paroles has today, by a six to one vote, recommended to Texas Governor Rick Perry that he spare the life of convicted capital murder defendant Kenneth Foster, about whom I wrote at length earlier this month:

Foster was to die in the state death chamber in Huntsville tonight for being the getaway driver in the 1996 attempted robbery and murder of Michael LaHood in San Antonio.

The vote from the seven-member board was 6-1. Perry doesn't have to accept the highly unusual recommendation from the board, whose members he appoints.

From the Board's website:

The governor has the authority to grant executive clemency upon the written recommendation of a majority of the Board of Pardons and Paroles. Executive clemency includes full pardons, conditional pardons, pardons based on innocence, commutations of sentence, and emergency medical reprieves. In capital cases, the Board considers petitions for commutation of sentence to life in prison and for a reprieve of execution. If the Board recommends clemency in a death penalty case, the governor may grant commutation or reprieve. The governor can also grant a one-time thirty-day reprieve of execution in these cases.

That last sentence isn't what's at issue here. In the typical and ordinary case in which a majority of the Board has not made a clemency recommendation, the only power the Texas governor has is to grant one thirty-day reprieve — requests for which Perry, like most other Texas governors, have almost always refused. But what appears to have happened today is a formal, and statistically very unusual, recommendation by the Board in favor of executive clemency. That opens up a whole range of options to Gov. Perry under Texas Code of Criminal Procedure article 48.01 that generally are otherwise foreclosed to him.  Realistically, however, the most generous degree of executive clemency that Perry might be expected to show would be to commute Foster's death sentence to life imprisonment instead.

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The Board's recommendation must be in writing. I don't know, and the news reports don't say, whether that's been issued yet. At a minimum, I would presume that the governor will want to read it before making any final decision on it.

Because recommendations like this from the Board are so rare, however, I will also hazard a guess that Gov. Perry will grant a stay of tonight's scheduled execution. He could still thereafter, upon due consideration of the Board's written recommendation and its grounds, decline to follow the recommendation, in which event the execution would be rescheduled and would likely proceed.

Nevertheless, precisely because of the Board's role in the Texas system, Perry or any other Texas governor is far, far more likely to pay attention to, and perhaps to go along with, a recommendation from the Board than he is to be affected by lobbying from the likes of the European Union, Amnesty International, or Jimmy Carter. So to go a bit further out on a limb in my predictions:

If the Board's recommendation is based on a general squeamishness about the propriety of executing someone who wasn't a triggerman himself, notwithstanding this particular jury's affirmative findings on every element that Texas law requires in order to impose a capital sentence on an accomplice like Foster, then I would expect Perry to refuse the recommendation, probably with a statement to the effect that deciding whether Texas law can ever permit capital punishment based on one's status as a non-triggerman accomplice is a question properly for the legislature and the executive to decide, not the Board.

Likewise, Perry would be highly unlikely to go along with the Board's recommendation if it were based on a legal re-review (like my critique of the Fifth Circuit panel's ostensible deference to the state-court record). He is not going to agree that the Board has any business second-guessing the Texas and federal trial and appellate courts who have refused to block Foster's execution.

But if instead, as I suspect is the case, the Board's recommendation is closely tied to the specific facts of Foster's case, then I believe Perry will likely go along with it (as he did, for example, in a recent non-capital case). The Board, and then the governor upon its recommendation, are entitled to consider a variety of factors that were not before the sentencing jury and judge — including, for example, the fact that neither of the other two accomplices was sentenced to death. The members of the Board are hardly "bleeding hearts" or easy marks, and they've seen and heard hundreds of contrived and exaggerated tales of woe in capital and other cases. Moreover, I'm highly confident that the Board wasn't swayed by the gross distortions of the facts of Foster's case from death penalty opponents like The Nation's Peter Rothberg. So it will be interesting to see what the six members of the Board's majority have written here, and what Gov. Perry then does with their recommendation.

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Finally, lest you wonder: I'm not a bit distressed by the Board's decision, although I'm certainly intrigued by it. I believe in the system, and in the individuals who do their best to uphold their respective roles in it. The Board has such a role, and I have no more reason to doubt their competency or integrity than I do the prosecution's, jurors', or judges'. I was distressed, and felt that I had an opportunity to influence, the egregious mis-reporting of the facts about Foster's case. That doesn't mean that I would be disappointed were his sentence commuted; and indeed, at the conclusion of my prior post I expressed my position that I would not have joined in the Fifth Circuit panel opinion affirming his conviction and sentence because of a narrow procedural point that I nevertheless believe ought to have been treated more carefully.

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UPDATE (Thu Aug 30 @ 12:30pm): And faster than the speed of blogging (but appropriately quickly, given tonight's scheduled execution): Gov. Perry has indeed already accepted the Board's recommendation and has announced the commutation of Foster's death sentence:

"After carefully considering the facts of this case, along with the recommendations from the Board of Pardons and Paroles, I believe the right and just decision is to commute Foster’s sentence from the death penalty to life imprisonment," Gov. Perry said. "I am concerned about Texas law that allows capital murder defendants to be tried simultaneously, and it is an issue I think the legislature should examine."

The TBPP voted 6-1 to recommend commutation, and the governor signed the commutation papers Thursday morning.

The governor’s action means Foster’s sentence will be commuted to life imprisonment as soon as the Texas Department of Criminal Justice can process this change.

Now that is indeed interesting! But best made the subject of a new post. (I've changed the original title of this post to reflect Perry's action.)

Last point for now: This commutation happened despite the media furor and, in particular, the widespread misreporting of the facts about Foster. Failure to deal candidly with unflattering facts, like rampant regional bigotry (both displayed, for example, in this Huffpo op-ed), saps credibility and otherwise detracts from death penalty opponents' legitimate arguments, and pundits who engage in those tactics do absolutely nothing to help anyone on Texas' or any other state's death row.

Second Circuit Chief Judge Jacobs speaks out against the judicial bias toward seeing law as the solution to every problem

In July, I wrote a pair of posts (here and here) defending a remarkable dissenting opinion by Second Circuit Chief Judge Dennis Jacobs in a case called Hussain v. Springer that included these two sentences:

I concede that this short opinion of mine does not consider or take into account the majority opinion. So I should disclose at the outset that I have not read it.

Many folks, of varying persuasions, thought this was an outrageous thing for him to do and say. I disagreed.

Now, though, via the good offices of my friends at Overlawyered, I've found my way to a reprint of Chief Judge Jacobs' equally remarkable lecture at Fordham Law School in November 2006 entitled The Secret Life of Judges. He explains:

This lecture is about bias, the judge’s inbred preference for outcomes controlled by proceduralism, the adversary system, hearings and experts, representation by lawyers, ramified complexity of doctrines and rules, multiple prongs, and all things that need and use lawyers, enrich them, and empower them vis-à-vis other sources of power and wisdom.

He spends the next eight pages poking rapier-sized holes in the judiciary and the legal profession from which it is drawn. For example:

I am not — I repeat, I am not — speaking about a bias based upon politics or agenda, economic class, ethnicity, or para-ethnicity. When I refer to the secret life of judges, I am speaking of an inner turn of mind that favors, empowers, and enables our profession and our brothers and sisters at the bar. It is secret, because it is unobserved and therefore unrestrained — by the judges themselves or by the legal community that so closely surrounds and nurtures us. It is an ambient bias.

The result is the incremental preference for the lawyered solution, the fee-paid intervention or pro bono project, the lawyer-driven procedure, the appellate dispensation — and the confidence and faith that these things produce the best results....

He sees grave societal consequences from this hidden bias (emphasis mine):

I sometimes think that the problem at bottom is really a lack of respect by lawyers for other people. Judges live chiefly in a circle of lawyers. Our colleagues are lawyers; happily, our friends are lawyers (and I am hoping to keep some after this lecture); the only outside income a federal judge can earn (aside from royalties) is from teaching in law schools (with the idea, I suppose, that they furnish a nonpartisan environment); and the only political and trade organizations we can join are bar associations.

But outside that circle there are people who are just as fully absorbed by other pursuits that deserve consideration and respect. Judges need a heightened respect for how nonlawyers solve problems, reach compromises, broker risks, and govern themselves and their institutions. There are lawyers on the one hand; and just about everybody else is the competition in the framing of values and standards of behavior.

In that competition, judicial bias has eroded the independence and influence of doctors, medical administrators, insurance underwriters, engineers, manufacturers, the military, the police, wardens and corrections officers, the clergy, employers, and teachers and principals

He offers a prescription (emphasis in original) that if I had to reduce to a phrase, I'd describe as "Don't just get over yourselves, judges — try some healthy self-doubt!"

What can be done to correct this bias and to place the legal profession again on a footing of parity and fair competition with other professionals and activities that have a right to influence in our communities and our culture? In a nutshell, judges should lead the bar in exercising the self-restraint and self-discipline that is incumbent on a profession that has a virtual monopoly on legislative power and a monopoly by patent on the power of the judiciary, and that is largely self-regulating.

....

As a matter of self-awareness and conscience, judges should accept that the legal mind is not the best policy instrument, and that lawyer-driven processes and lawyer-centered solutions can be unwise, insufficient, and unjust, even if our friends and colleagues in the legal profession lead us that way. For the judiciary, this would mean a reduced role, but not a diminished one if the judiciary is elevated by considerations of honor, self-restraint, and respect for other influences.

I agree wholeheartedly with Chief Judge Jacobs' observations. About the only thing I would add is that the intrinsic and hidden biases he describes are every bit as common among practitioners as among the judiciary, and that we, too, ought to undertake the responsibility of curbing them.

If you are among the many who are concerned about over-reach by lawyers, judges, and the legal system, you will enjoy reading his speech — perhaps not least for such reassurance as it may provide that at least not every lawyer or judge is blind to these problems. This is an articulate and profound manifesto for judicial conservatism, which is not the same thing as, or necessarily related to, political conservatism at all. But political conservatives certainly ought to want to see judges appointed or elected who harbor this precise sort of self-skepticism.

The answer to the "Why was this a crime?" crowd on the Craig matter

Ed Morrissey, Garrance Franke-Ruta, James Joyner, Dale Carpenter, Jack Shafer, and Radley Balko, among many others, all question whether Sen. Larry Craig actually committed any crime. As Mr. Balko writes,

Craig didn't actually engage in the lewd behavior. Didn't get that far.  Aside from the peeping charge, which was thrown out, the only thing I can see that he's guilty of is looking for a willing sex partner. And I can't see how that is or should be a crime.

Mr. Balko's confusion comes from his assumption that the peeping charge was "thrown out." It wasn't. Instead, the peeping charge was pleaded out — and that's a very, very big difference in this context. In fact, it's the peeping charge that almost certainly explains and makes justifiable Craig's plea to disorderly conduct (even if the latter crime was less obvious or more questionable on these facts).

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Prof. Ann Althouse links, quotes, and examines the two statutes under which Craig was charged. Here's the peeping statute:

(c) A person is guilty of a gross misdemeanor who:

(1) surreptitiously gazes, stares, or peeps in the window or other aperture of a ... place where a reasonable person would have an expectation of privacy and has exposed or is likely to expose their intimate parts, as defined in section 609.341, subdivision 5, or the clothing covering the immediate area of the intimate parts; and

(2) does so with intent to intrude upon or interfere with the privacy of the occupant.

The intent requirement is obviously key, since it is what separates criminal peeping from a casual glance to see if a stall is occupied. Was Craig just casually glancing? The prosecution, I'm sure, felt that with testimony at trial which would be consistent with this paragraph from the police report, and with all of the other circumstances, the State could prove beyond a reasonable doubt that Craig intended to "intrude upon or interfere" with the undercover cop's privacy (emphasis mine):

At 1213 hours, I could see an older white male with grey hair standing outside my stall. He was standing about three feet away and had a roller back with him. The male was later identified by Idaho driver's license as Larry Edwin Craig [redacted]. I could see Craig look through the crack in the door from his position. Craig would look down at his hands, "fidget" with his fingers, and then look through the crack into my stall again. Craig would repeat this cycle for about two minutes. I was able to see Craig's blue eyes as he looked into my stall.

Prof. Althouse correctly notes that the peeping statute much more closely tracks the facts alleged in the police report than the disorderly conduct statute, but she goes on to write, also correctly: "I have to suspect that he decided to plead guilty to disorderly conduct to resolve the matter and that if he hadn't agreed to that, he would have faced the peeping charge."

I would take that a step further with considerable confidence: The dismissal of the peeping charge was not because it was improper or because it would be shown to lack evidentiary support. Instead, the peeping charge was dismissed without objection from the prosecution because that was what the State gave up as its key part of the plea agreement. Thus, Sen. Craig was almost certainly given an accommodation here by the prosecution and the court in being allowed to plead guilty to the crime that, of the two charged, has by far less social stigma attached to a conviction.

Yes, disorderly conduct is a broad and vague charge — one that doesn't much seem to fit the facts alleged. And Craig’s presumably intended but uncompleted conduct (some sort of sex in a public men’s room) would certainly have been considerably more disorderly than anything he actually did before he was arrested. But disorderly conduct's very vagueness — encompassing "offensive, obscene, abusive, boisterous, or noisy conduct or in offensive, obscene, or abusive language tending reasonably to arouse alarm, anger, or resentment in others" — makes it stretchy enough to cover, if barely (and if only for purposes of a plea bargain) what Craig actually did do. Indeed, it's entirely possible that it was charged in the first place as an obvious, attractive basis for compromise, i.e., a charge with at least some factual correspondence to what happened, and upon which a more attractive plea could therefore be negotiated (especially for someone with no criminal record or other indications of dangerousness).

I am not in the least suggesting, either, that the prosecution or the court gave Sen. Craig a better deal than they would have given any non-famous non-senator average citizen. There's no reason to think that Sen. Craig was treated anything but routinely. This sort of plea happens every day in criminal courts around the country, and so long as there's at least some factual basis for the plea, there's nothing exceptional or remotely wrong with it. It's altogether possible that the prosecution would have declined to pursue the disorderly conduct charge if the case had gone to trial; or they might have left it in, figuring that it would give the judge or jury an alternative basis to punish, but less severely. From the prosecution's standpoint too, the peeping charge would have required proof of intent — making it, appropriately, a harder crime on which to secure a conviction. And if the prosecution's case had been objectively less strong, then perhaps the alternate charge (and the resulting plea) would have ended up being, say, "loitering" instead. But since the stigma would have been vastly greater from a peeping conviction, then dropping it — as opposed to dropping the disorderly conduct charge — was a much greater boon to the defendant.

Thus did this plea, like countless others every day, aptly reflect the litigants' well-informed judgments as to their respective risks and benefits from going to trial. This defendant pleading guilty to disorderly conduct, in exchange for the prosecution dropping the peeping charge, made sense for both sides, even if disorderly conduct was not the crime whose elements most obviously and more closely fit the facts. For these reasons, no libertarian ought to be concerned about whether Sen. Craig's been abused by the system, or whether some terrible precedent has been set.

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That said: Once Sen. Craig voluntarily pleaded guilty, he became guilty of disorderly conduct — conclusively and irrebuttably — under the Rule of Law as it speaks for our society. Our system of law emphasizes "the particular importance of the finality of guilty pleas, which usually rest on a defendant's profession of guilt in open court, and are indispensable in the modern criminal justice system's operation," United States v. Dominguez Benitez, 542 U.S. 74, 75 (2004). At the moment Sen. Craig's plea was accepted by the court, then, whether he mighta, could, shoulda won if he'd fought all the way through trial became forever irrelevant. It's unproductive even to speculate about. Sen. Craig has deliberately forfeited his right to even hint — ever, to anyone, for any purpose — that he was "really not guilty" of disorderly conduct in that airport men's room.

My sympathies are with his family and with the people of Idaho who find this whole thing terribly embarrassing, and I can even dredge up sympathy for Sen. Craig to the limited extent that he suffers from inner demons that have caused him to engage in such self-destructive behavior (i.e., committing a crime in an airport toilet), regardless of whether he's straight or gay or bi or whatever.

But I have absolutely no sympathy or patience whatsoever with him attempting to weasel out of the fact of his conviction or the consequences for it. His attempts to do so are gutless and pathetic and offensive, completely without regard to whether he really is or isn't gay. Indeed, I know plenty of openly homosexual men who, when under pressure, have displayed vastly more of the so-called (and it's an admittedly sexist construction) "manly attributes" of character and virtue than Sen. Craig has in his attempts to defend and justify himself. His are the sort of arguments that can only be made a scoundrel who thinks he's arguing to fools — arguments that are insulting to us, and only further degrading to himself.

He should simply resign — immediately and without further ado — and then set about salvaging his personal life in such privacy and dignity as he can find.

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UPDATE (Fri Aug 31 @ 11:00am): In an update with a gracious link to this post, Prof. Althouse tweaked me for being overbroad in my arguments about the conclusiveness of Sen. Craig's guilty plea, as have several of my commenters here.

I'm not licensed in Minnesota, but my quick skim of that state's law leads me to conclude that before all this went public, Sen. Craig had already missed his fifteen-day deadline to file a motion for new trial, as well as his ten-day deadline (disorderly conduct being an ordinary instead of a "gross" misdemeanor) to file a notice of direct appeal as of right. My strong hunch, then, is that his conviction is already considered "final." I did not say, and do not wish to be read to suggest, that there are no legal procedures for challenging a conviction after it has become final. But such "collateral attacks" are highly disfavored and rarely successful. Nothing I've heard or read suggests that Sen. Craig has even alleged facts that could possibly support a successful collateral attack.

I therefore reemphasize that unless and until his conviction is overturned — and that's a possibility that now seems very, very remote — he is guilty in the eyes of the law, and he should be so viewed by every element of society that believes in the law.

Of course he can still call press conferences and pound the table and insist that he's "really innocent." Prisons are full of people who express that opinion about their own convictions. Legally, such assertions are absolutely meaningless; legally, while their convictions are still in place, they are conclusively estopped (i.e., forbidden by the law) from disputing their guilt for any purpose. Thus, for example, Sen. Craig can't sue anyone for defamation for saying he is guilty of the misdemeanor crime of disorderly conduct. Every court would treat the truth of that assertion is having been conclusively established; they will not entertain any contrary proposition for any purpose.

Some of my commenters assert that innocent people sometimes plead guilty. That's a logically and linguistically flawed assertion. Everyone who pleads guilty has, until the moment they've entered their plea, been "innocent" in the eyes of the law. And once their guilty plea is accepted, then unless and until it is set aside, they are guilty in the eyes of the law.

What my commenters presumably mean is, "Well, I'm really sure that if the defendant had gone to trial on Charge X, he would have been acquitted." Fine, then. Go to trial; once the defendant is acquitted, he can say that the state has failed to prove him guilty and that his constitutional presumption of innocence remains intact. Otherwise you're just guessing, no matter how confident you say you are, and you're talking about a species of "innocence" in which that word means something different than what it does in our criminal justice system.

"I just couldn't be bothered to go through with the trial," or "I wanted to be spared the publicity," or "I didn't have confidence in my lawyer," or countless other such motivations may in fact have prompted some defendants to enter guilty pleas in cases in which — from an omniscient point of view — one could opine that had they in fact gone to trial, they would have turned out to have been acquitted. But in the eyes of the law, any statement to the effect of "Oh, I was really innocent" after you've entered a guilty plea, while your conviction is still standing, is simply meaningless nonsense. The law doesn't have a category for "guilty (but really innocent)," and your engaging in that pretense still doesn't make you any less guilty in the eyes of the law, no matter how often you or anyone else says it.

And for other purposes — in our consideration as voters and citizens, for example, of a politician like Craig who makes such a statement — we ought, at a minimum, to be extremely skeptical; we're each entitled to reject such a statement altogether (which is my position here and in almost any similar situation); and we have to acknowledge that the statement may only have any persuasive force if it is offered outside a legal context (i.e., outside "the eyes of the law," to repeat the phrase I've used so often already).

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UPDATE (Sat Sep 1 @ 8:40am): Here is a link to the audio tape of the arresting officer's post-arrest interview with Craig. From an Idaho Statesman article about it:

Despite the denials, Steve Simon, a University of Minnesota law professor, said Craig would not want to have such a tape played before a jury.

"There is an extremely damning statement on that tape. If you listen to the tape, at the very beginning there is an explanation of what's going to happen," Simon said. "Then, totally out of the blue, Craig said, ‘You solicited me.'"

Simon said a prosecutor could argue that Craig interpreted the officer's behavior with the feet as soliciting, and that would raise this question: Why would a proclaimed straight person like Craig recognize that?

"It's an extremely powerful piece of evidence," Simon said.

Whether Craig is gay or straight, and whether or not he was soliciting a sexual encounter or not, his apparent knowledge of the foot-tapping and -rubbing protocols certainly would be relevant to show that he "knew or should have known" his own tapping and rubbing would tend to be offensive and to cause alarm or resentment.

Federal prosecutor WLS, guest-blogging at Patterico's, argues  that the police, prosecutors, and judge all abused Sen. Craig, whose conduct couldn't have been "offensive" to anyone:

Question: If a deaf gay guy used sign language to proposition another deaf gay guy in a gay nightclub, would it be a crime?

If not, then why is a toe tap and a hand gesture under the partition of a men’s room stall a crime?

Answer: Because when a citizen goes into a bathroom stall in a public restroom at an airport, he has a different expectation of privacy than he does standing on the floor of a gay nightclub (or any nightclub). WLS asks (ellipsis his):

So, a toe tap and a running one’s hand along the bottom of the men’s room stall ....

Offensive?  To whom?

Answer: The prosecution was counting on it being offensive to the hypothetical average person who doesn't expect to be stared at while sitting in a public bathroom stall, and then to have the offender's hand and foot intrude into that stall, and then have the offender's foot pressed against the hypothetical average person's. And by pleading guilty, Craig forfeited his right to any benefits of the doubt as to whether his conduct was offensive, and as to whether he knew or should have known that it would tend to arouse alarm or resentment. I respectfully disagree with WLS' analysis, especially insofar as he faults the judge, for reasons expressed both here and in Patterico's comments (so far, here, here, here, and here).

Reports are that Craig is expected to resign this morning.

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UPDATE (Sat Sep 1 @ 11:40am): Craig just announced his intention to resign, effective September 30th, in a short and fairly dignified statement. He apologized "for what I have caused" and for his inability to serve out his term. And he said that "to pursue my legal options as I continued to serve Idaho would be an unwanted and unfair distraction of my job [sic] and for my senate colleagues."

Fox News interprets that as him committing that he will indeed "pursue his legal options," but I am not at all sure he intended to make such a commitment. For reasons I discussed above, I think the chances of his setting aside his conviction via a collateral attack are very small — I'd rate his odds at well under 1%. If he were to succeed, he'd again be subject to the more serious peeping charge, which carries a much stiffer potential penalty. Even trying to set the conviction aside will cause this to linger in the press, with the overwhelmingly likely result simply being to further convince any doubters that his plea was voluntary and binding. And but for its potential political repercussions — which now have played out fully — this was a pretty sweet plea bargain. It will not surprise me if he makes no serious effort to get the plea set aside, and in fact were I his lawyer, I'd advise against it.

WaPo sez Obama knew he should vote for Roberts' confirmation, but voted against for purely political reasons

Does the Washington Post not understand that in the rest of the United States outside the Beltway — and at least outside enclaves of refined intellectual disingenuousness like New York and San Francisco — a story like this ought to be headlined "Presidential candidate admits he allowed craven lust for office to override studied judgment on SCOTUS confirmation vote"?

Sen. Barack Obama had hired Pete Rouse for just such a moment.

It was the fall of 2005, and the celebrated young senator — still new to Capitol Hill but aware of his prospects for higher office — was thinking about voting to confirm John G. Roberts Jr. as chief justice. Talking with his aides, the Illinois Democrat expressed admiration for Roberts's intellect. Besides, Obama said, if he were president he wouldn't want his judicial nominees opposed simply on ideological grounds.

And then Rouse, his chief of staff, spoke up. This was no Harvard moot-court exercise, he said. If Obama voted for Roberts, Rouse told him, people would remind him of that every time the Supreme Court issued another conservative ruling, something that could cripple a future presidential run. Obama took it in. And when the roll was called, he voted no.

"Pete's very good at looking around the corners of decisions and playing out the implications of them," Obama said an interview when asked about that discussion. "He's been around long enough that he can recognize problems and pitfalls a lot quicker than others can."

Hypocrisy, thy name is Barack — and yet the WaPo seems to be oblivious to how its reporting of facts compels that conclusion:

"His familiarity with Washington makes him somebody whose judgment I trust," Obama said. And yet this is the Washington of "cheap political points" and "petty" partisanship that figures prominently in Obama's public speeches these days. "I know I haven't spent a lot of time learning the ways of Washington," Obama tells his audiences. "But I've been there long enough to know that the ways of Washington must change."

Unless ....

Could this be a Hillary-inspired venomous bite disguised as a puff-piece about a key Obama staffer? It's a sad state of affairs when a pundit from the heartland like me can't distinguish between simple MSM cluelessness and inspired MSM intrigue in cooperation (or at least sympathy) with a particular candidate. But there you have it, friends and neighbors. Perhaps you can sort this out in my comments section.

On location

I'm sure this happens more often to people who live in New York or Los Angeles or even Chicago. But just now, flicking up and down the list of saved programs on my TiVo, I cranked up a movie called The Con, which I chose to record based on nothing more than the fact that I like two of the actors listed in the blurb about it (William H. Macy and Rebecca De Mornay), and in the first ten seconds I'm saying to myself: "Wow. That's the Houston skyline." And then: "Wow. That's the church where I got married!" (Christ Church Cathedral, downtown, on April 20, 1985.)

Now I know, as I watch the rest of the movie, that I'll be looking for more locations that I recognize. If one lives in New York or Los Angeles or even Chicago, does one take that more or less in stride, ignoring the familiarity of the locations?

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Update (Mon Aug 27 @ 12:32am): Well, turns out that all but the first ten minutes of the movie were set (ostensibly) somewhere in Mississippi. No more Houston scenes. A predictable, clichéd, silly, sweet (made for TV) movie anyway.

The senator who mistakes our enemy for our friend

Sen. Jim Webb (D-VA) on ABC News' "This Weekend" program this morning (emphasis mine):

Guerrilla warfare is sort of like the game that kids play, Whack-a-Mole.  You know, you move into this area, the guerrilla forces are going to move somewhere else.  And until we can get an umbrella in this region where different countries take responsibility — like for instance, the Saudis need to step up, and in an overt way, take more responsibility for the solution in the Sunni areas, rather than running Saudis in to do a lot of this guerrilla work. The Iranians need to step up. Until we have that, you're not going to have stability in Iraq.

Sen. Webb genuinely perplexes me. From time to time, the man has spoken and written rationally, eloquently, even brilliantly, on military and foreign policy matters. But then he can look directly into the cameras and say, with a straight face, that "stability in Iraq" depends on "the Iranians [stepping] up" to "take responsibility."

What on earth can he possibly have in mind? Leave aside for the moment the notion that we ought to let the House of Saud become the new satraps for what would presumably be the Sunni portions of a dismembered Iraq, a notion that I find problematical even if we indulge in the dubious fiction that the Saudis are our faithful friends and allies (at any time that it doesn't suit them to behave otherwise). How on earth can Sen. Webb possibly expect America to make important strategic policy decisions on the basis of promises from Iran about anything?

Oh, yes: The Iranians are indeed eager to "take responsibility" for Iraq, in exactly the same way that China has "taken responsibility" for Tibet, or that my neighbor's large dog would gladly "take responsibility" for my hamburger. So either Sen. Webb thinks that would be a good thing, or else he must be deranged.

I think it must be some sort of brain lesion — the sort of thing Dr. Oliver Sacks has written about in books like The Man Who Mistook His Wife for a Hat (and Other Clinical Tales). Surely there has to be an organic cause for such a profound perceptual and logical dysfunction.

Sen. Kerry permits last statute of limitations for defamation to lapse, forever barring any defamation claim against SwiftVet authors O'Neill and Corsi

When I first brought it to his attention in September 2005, I reminded Sen. John F. Kerry that — based on the publication date on or about August 25, 2004, of Unfit for Command: Swift Boat Veterans Speak Out Against John Kerry by John E. O'Neill and Jerome R. Corsi — Sen. Kerry had already allowed the one-year statutes of limitations for defamation to expire in Texas (where Mr. O'Neill resides), New Jersey (where Dr. Corsi resides), and the District of Columbia (where their publisher Regnery Publishing, Inc. has its principal place of business and Sen. Kerry has his own regular place of business).

But as I noted then, Sen. Kerry's home state of Massachusetts has a very unusual, extremely generous and pro-plaintiff three-year limitations period for defamation claims. Massachusetts' three-year statute of limitations for defamation claims made it the very last feasible venue in which Sen. Kerry conceivably could file suit and gain his public vindication, if the SwiftVets' allegations about him were false. Those claims were certainly, indeed deliberately, injurious to his reputation; his damages arguably include the loss of the 2004 presidential election, however that might be valued in dollars and cents; and if John Kerry could hope to find a home-town advantage anywhere, surely it would be there. But now he's let the incredibly generous Massachusetts statute of limitations run out, too.

In my 2005 post, I offered this free and helpful legal advice to Sen. Kerry (who may need it, since his own bar membership is still on inactive status):

Seriously, though, Senator, some folks might draw the inference that rather than your having just forgotten the one-year anniversary of the publication of Unfit for Command — oopsies! — you're instead desperately afraid to ever face cross-examination under oath, or [to face] document subpoenas of yourself and your hagiographer Doug Brinkley, or the rest of the brilliant spotlight that accompanies a public lawsuit. Folks might become more and more convinced that you've very deliberately let most state statutes of limitations expire already, and that you'll continue to allow the clock to run on any that haven't yet.

So let's drop the snark and call a spade a spade: The very last thing John Kerry wants is to ever give the SwiftVets the legal tools they'd need to conclusively document their claims, because truth is, of course, a complete defense to defamation claims. Kerry doesn't deserve vindication, and he knows he could never get it in court. In court, there would be compulsory discovery of witnesses and documents, followed by a fair and disciplined adversary process, followed by a definitive determination of the truth or falsity of the SwiftVets' charges — a determination that he damn well knows would go against him. Instead, the haze of time and the near-universal bluster of his mainstream media allies (who continue to insist that the SwiftVets' claims were "debunked" and that Kerry was victimized) has given him a far better result than he could ever get in court.

I'll tell ya what, though, Senator: On the off chance that I'm misreading what's behind your allowing limitations to lapse against O'Neill and Corsi, and you really intended to sue them but just, I dunno, forgot:

You have a standing offer from me: Just sue me here in Houston for defamation. After all, I've republished most of the SwiftVets' claims here on my blog, and I've made many of them again in my own voice. I use a pseudonym for my blog name, but it's not anonymous — my name and address are linked on every page of this blog, and have been since the day it started. I'll waive any statute of limitations defense. I'll waive service of process. Hell, I'll meet you at the federal courthouse doors for the Southern District of Texas, Houston Division (you have diversity jurisdiction), and I'll even pay your filing fee!

You think it will be too expensive to have big teams of lawyers? Fine — since you were once a big-time courtroom lawyer, let's just you and me tangle one-on-one, both of us pro se. (I'll agree not to oppose your application for admission pro hac vice to the federal court here in Texas, and I'll even pay the fees to get your law license reinstated in Massachusetts.) Just me at my table, you at yours, and then a set of jurors good and true in the jury box. (I may need a napkin, though, or maybe even a drool-bucket, because the very notion of going one-on-one with you in court is causing me to salivate.) Or, hell, you can have as many lawyers as you want, and I'll still go pro se. Go fetch David Boies, he might do it for free (unless he's already figured out what a loser your case would be). Whatever. As long as there's a judge who can make you shut up each time your turn is over and who'll then give me a fair turn, I'll be satisfied.

My one stipulation is: No confidentiality orders, and no motions to quash. Everything that's uncovered in pretrial discovery has to become part of the public record without delay. We'll put it all on the internet via a neutral host (say, the WaPo). We'll do the pretrial depos on video, too, and jointly move the court to permit TV coverage of the trial, so that the public (and the jury, eventually) can see who sweats under oath under the bright lights.

Doesn't that sound like fun, Senator? Gosh, it does to me.

A shot to the heart of digital restrictions management

I adore competition.

I ought to have known that the roughly $200 I invested at $0.99/song in downloading pop tunes earlier this summer from Yahoo — supposedly "purchasing" them, ha! — was going to leave me with a "digital rights restrictions management"-crippled library that I couldn't easily play even on my other networked computers at home. (Yahoo's same-network streaming feature won't work for me at all; when I sought technical assistance, they offered me a "return refund," meaning they would have zapped my ability to listen to what I'd "purchased" anywhere, but zero actual technical help.) But I still felt like a victimized chump when I realized it.

If there's a retail competitor who ought to be able to get Apple's and Yahoo's and others' attention, however, surely it's Wal-Mart:

Wal-Mart, the largest compact disc retailer in the United States, has begun selling some of its digital songs online for 94 cents each, significantly undercutting the iTunes price, the company said yesterday. More importantly, the music will not be fettered by copy restrictions, which means consumers will be free to burn the songs on CDs, play them on almost any device and send them to friends on the Internet.

The other news in that same story, though, still leaves me gritting my teeth:

Also yesterday, Real Networks said it would combine its Rhapsody Internet music player with the pop-culture power of MTV and sell songs over the Verizon Wireless network to mobile phones and other handheld devices.

My cell service is through Verizon, and for the last year I've routinely used my Motorola KRZR K1m cell phone to listen to music while exercising outdoors or waiting in lines. The software package that Verizon obliges Motorola to install on the phone, though, and the version of Motorola's own "Phone Tools" software that's supposed to sync up my cell phone and my PCs' calendars, contacts, and music libraries, are both crippled — part of Verizon's attempt to push its own music sales program down my throat. Cellular providers collectively are still, comparatively, less subject to competitive pressures, but that shouldn't last too much longer.

On the other hand, about that sock, Carl ...

A day after I scolded Sen. Carl Levin (D-IL) for an egregious case of speaking out of school, this WaPo article may lead some credibility to a possibility that I mentioned but discounted as very unlikely: that Levin's comments about the Maliki government's continued parliamentary viability were made with the Bush-43 Administration's advance approval, as part of a coordinated signals campaign. They're certainly consistent with what Dubya himself said on Monday:

President Bush pointedly declined Tuesday to offer a public endorsement of embattled Iraqi Prime Minister Nouri al-Maliki, expressing his disappointment at the lack of political progress in Iraq and saying that widespread popular frustration could lead Iraqis to replace their government.

"The fundamental question is: Will the government respond to the demands of the people?" Bush said. Stopping short of directly endorsing Maliki, as he has on several previous occasions, Bush continued, "If the government doesn't respond to the demands of the people, they will replace the government."

In apparent response to congressional calls for a change of leadership in Iraq, Bush added, "That's up to the Iraqis to make that decision, not American politicians."

White House aides said later that Bush's comments did not mean he was withdrawing support from Maliki but were simply a statement of reality — that Iraqis were growing frustrated and that under the country's new democratic system, the people could decide to replace the current government with a more capable one. But the president's tough words — together with similar strong statements from the top U.S. diplomat in Baghdad — suggested that the administration's patience with the current leadership is wearing thin....

Bush's remarks came a few hours after the U.S. ambassador to Iraq, Ryan C. Crocker, made similar comments in Baghdad, calling the Iraqi government's political progress "extremely disappointing" and telling reporters that stabilizing the country would require reconciliation among rival factions.

Another possibility is that Levin was ahead of where the Administration yet wanted to be publicly, but the Administration was prodded by Levin's remarks into going public. But if Levin was actually speaking according to a common plan with the Administration, then consider this post to be Beldar dribbling crow feathers down his chin. (Among my potential guests for this meal may be Duane Patterson and Ed Morrissey, good company the both of them.)

In any event, it's fair to conclude that Dubya's comments pretty much mooted any potential fall-out from Levin speaking with a different voice than the Administration on this particular issue and occasion. Pursuant to plan or not, all the American voices seem to be expressing a common sentiment. That's good.

What may be the biggest surprise is near the end of the same WaPo story, though:

Meanwhile, French Foreign Minister Bernard Kouchner used a surprise trip to Baghdad to call on European countries to help the United States repair Iraq. Kouchner's comments represent a major departure from former French president Jacques Chirac's stance on Iraq. Relations between France and the United States were severely damaged after Chirac led global opposition to the 2003 invasion.

Since his election in May, French President Nicolas Sarkozy has sought to strengthen ties with the United States. Kouchner told a French radio station that Iraq's leaders are "expecting something" from the French government and that he planned to assist U.S. efforts.

"The Americans can't get this country out of difficulty all alone," Kouchner said.

That's very good indeed. (My friend and frequent commenter DRJ, guest-blogging at Patterico's, appropriately wonders if this might have more to do with French interest in getting a piece of the Iraqi oil action. It might; but I'd settle for an enlightened French self-interest which recognized that chaos in Iraq is not in the interests of any civilized capitalist country.)

Praying to punish Padilla's interrogators?

Jose Padilla and the Unfinished Business of Justice, by New York attorney Scott Horton in the online Harper's Magazine, is far from the worst analysis I've read on the Padilla verdict.

It's a bit windy, but I'm prone to forgive writers for that; it's reasonably well written and well organized. And it even starts off sounding like it was written by a grown-up!

Mr. Horton duly acknowledges that "in some corners there has been a juvenile tendency to heroize anyone who becomes a target of the Bush Administration." And he acknowledges that there was a legitimate criminal case against Padilla, and ample evidence for him to be found guilty as charged:

... Jose Padilla himself is not an appealing character. I wasn’t at the trial and didn’t follow it in great detail, but what I saw of the evidence convinces me that there was a close but fair basis upon which the prosecutors could have brought the case they did. Padilla was consorting with some “really bad people.” With people who wished to harm the United States and its people and who wanted to use Padilla as a tool to that end.

It doesn’t seem unreasonable for a prosecutor to have brought the charges that were brought. Nor does it seem unreasonable for a jury to find against Padilla on the conspiracy charge that was brought. I think those who are saying that the trial of Padilla was a gross miscarriage of justice are going way overboard.

(Given just what I've written so far, however — in particular, "New York attorney" and "Harper's" — you know there's a big "But" coming, don't you?)

But all villains display relative degrees of villainy. It thus will perhaps not surprise you that in Mr. Horton's eyes, the real villains in his story are, of course, not the sort of (we hope) comparatively rare American citizens who are terrorists like Padilla, but the much more common American citizens who've been  acting through the instrumentalities of the American government, and acting on behalf of the American people, to keep us safe from the likes of Padilla:

Quite apart from the guilt or innocence of Jose Padilla, this case is marked by one other extremely troubling fact: the government-sponsored use of torture on an American citizen who had been neither charged nor convicted of any crime. Of course, the use of torture would have been forbidden even had he been convicted of a serious crime. That is the rule the Founding Fathers laid down.

Was it really torture? Yes. At this point there’s very little disagreement on this score among experts who have studied it....

Mr. Horton then quotes an examining psychiatrist on just how horribly, horribly traumatized poor Padilla is:

Number one, his family, more than anything, and his friends, who had a chance to see him by the time I spoke with them, said he was changed. There was something wrong. There was something very "weird" — was the word one of his siblings used — something weird about him. There was something not right. He was a different man. And the second thing was his absolute state of terror, terror alternating with numbness, largely. It was as though the interrogators were in the room with us. He was like — perhaps like a trauma victim who knew that they were going to be sent back to the person who hurt them and that he would, as I said earlier, he would subsequently pay a price if he revealed what happened.

Well, damn. Hand me another box of Kleenex, because I can barely contain all of my tears that flow from the fact that Jose Padilla is no longer his good ole self — that being, I think we may presume, the good old self who was eager to massacre as many Americans as possible, just because they were Americans. The psychiatrist continues:

He had developed really a tremendous identification with the goals and interests of the government. I really considered a diagnosis of Stockholm syndrome. For example, at one point in the proceedings, his attorneys had, you know, done well at cross-examining an FBI agent, and instead of feeling happy about it like all the other defendants I’ve seen over the years, he was actually very angry with them. He was very angry that the civil proceedings were “unfair to the commander-in-chief,” quote/unquote.

Mr. Horton apparently sees no irony whatsoever in citing, as evidence of the horrible effects of "torture" on Padilla, that he began showing hints of being decent and civilized, instead of being a sociopathic barbarian. "Stockholm syndrome," we might recall, was shocking precisely because through it, good people came to identify with bad guys — not the other way around! In another age, this would, of course, have made Padilla a poster-child for the "rehabiliatory effects" of the criminal justice system, including its interrogation and incarceration components.

But it gets better, friends and neighbors, as Mr. Horton continues in his own voice:

[E]ven as Padilla is convicted and sentenced, when will those who perpetrated crimes against him be prosecuted for their misdeeds? The two things are not comparable....

On that last sentence we can certainly agree! But immediately after, Mr. Horton writes:

... Padilla was charged and has been convicted of complicity in a vaguely defined conspiracy, without his having taken any material step towards an act of terrorism. The Gonzales Justice Department will, characteristically, argue for a heavy sentence. The facts won’t justify that. On the other hand, the crime committed against Padilla is extremely serious, involving long term psychological damage. Justice calls out for a prosecution and a severe sentence in such a case.

Thus would Mr. Horton make quite literal the old sarcastic truism, previously seen mostly elsewhere than in criminal law, that no good deed goes unpunished.

The rest of the article trails off into a shamefully disingenuous conclusion wholly at odds with its beginning acknowledgments that I quoted at the top of this post. Mr. Horton proceeds to argue that Padilla was prosecuted solely for "thought crimes," i.e., that the crimes charged and proved against him relied solely upon the fact that he was "accused of thinking bad thoughts about America and the Bush Administration."

I say "disingenuous" because unless Mr. Horton got his law degree via the internet from a Netherlands Antilles diploma factory, he knows full well — as, indeed, he conceded earlier in this same article — that Padilla was found guilty of conspiracies that as defined in the court's charge included not only thoughts or even shared plans, but also preparatory overt acts:

The key piece of physical evidence was a five-page form Padilla supposedly filled out in July 2000 to attend an Al Qaeda training camp in Afghanistan, which would link the other two defendants as well to Usama bin Laden's terrorist organization.

The form, recovered by the CIA in 2001 in Afghanistan, contains seven of Padilla's fingerprints and several other personal identifiers, such as his birthdate and his ability to speak Spanish, English and Arabic.

"He provided himself to Al Qaeda for training to learn to murder, kidnap and maim," said Assistant U.S. Attorney Brian Frazier in closing arguments.

Most of us would consider applying to al Qaeda for training to become a terroristic mass murderer as a fairly significant and specific overt action all by itself. But the conspiracy indictment lists, and the prosecution proved, dozens of other overt acts, including financing and travel conducted to advance the conspirators' plots.

Nor did the criminal acts charged and proved have anything to do with who in particular presently occupies 1600 Pennsylvania Avenue. During virtually all of the time in question, for that matter, that was not Bush-43, but Clinton-42 — the sort of detail which exposes the extreme silliness of Mr. Horton's extended riff on Orwell's 1984. "One of the principal objects of [torture] process, we learn, is to insure that the subject returns to loving Big Brother," writes Mr. Horton of both Orwell's hero Winston Smith and Padilla. Elsewhere in his essay: "[T]hen we have the words out of the Justice Department itself, gloating in triumph, and the right-wing echo chamber which saw in the verdict another opening for the personal adulation of the Great Leader, George W. Bush." You'll look in vain, however, for the name "Clinton" anywhere in Mr. Horton's piece.

More importantly than anyone's name-calling: The goal of Padilla's conspiracies was not merely to leave Americans "changed" or "weird" or "troubled," but dead, dying, or maimed. Indeed, if inflicting "psychological damage" on a single subject is criminal, thereby justifying severe punishment for Padilla's interrogators, then what punishment would be just for Padilla's intention to inflict "psychological damage" on roughly 300 million Americans, plus hundreds of millions of other civilized people throughout the world?

I'm taking this opportunity to offer to buy Mr. Horton a nice meal when and if he ever visits Houston (since I don't often get to New York anymore.) I'm sure I can have a perfectly pleasant debate with Mr. Horton over dinner. At the end of it, we'll shake hands and go home, safely I'd hope, to our respective homes — him thinking me a polite fascist barbarian, and me thinking him an articulate naïve child.

As we travel to our respective homes, however, evil men — men who are indistinguishable from Jose Padilla in every respect except present notoriety and status as a captive — will be plotting and preparing, gathering their will and their financing and their matériel and their opportunities. Their goal is to kill Mr. Horton and me and as many of you, or as many like us all, and our children, as they possibly can. Their goal is to do so in as horrific a fashion, and with as little mercy or remorse, as they can manage. And those men are quite literally praying to Allah, begging to be given the chance to do just those things.

If Mr. Horton will come dine with me, my own prayers that night, as every night, will be for the safety of my sons and daughters against such menaces. Now, I don't know if Mr. Horton prays or not, but if he does, I wonder: Is he praying instead for the punishment of those who captured and imprisoned and interrogated Jose Padilla, and eventually brought him to a very formal justice?

Novak's anecdote regarding JFK's November 1963 trip to Dallas

Over at Patterico's Pontifications, guest-blogger WLS promises a multi-part review of Bob Novak's wickedly titled new memoir, The Prince of Darkness: 50 Years Reporting in Washington. In his first installment, WLS writes about "an incredible anecdote about an [Evans & Novak Report] column that sparked an incident that seems to have contributed to JFK making the fateful trip to Dallas in late Nov. 2003":

Novak received a tip from a Texas confidant of his wife that LBJ was secretly planning to put the weight of his vast Texas political machine behind  a run by Jim Wright — LBJ’s Texas protege’ and future Speaker of the House — to run for the Senate in 1964 against an incumbent Democrat Senator, Ralph Yarborough.  Yarborogh was an extreme liberal with whom LBJ had long clashed when they were both in the Senate, and Yarborough was clearly in the Kennedy camp after the 1960 election.  The E&N column detailing LBJ’s plan to go after Yarborough was published on November 8, 1963, and titled "Johnson v. Kennedy."

The column made JFK very unhappy because Yarborough was one of the few southern Democrats that JFK could count on for unqualified support of his New Frontier programs.  After the E&N column was published on Nov. 8, and knowing that Johnson’s muscle against Yarborough put Yarborough at risk, Kennedy scheduled the swing through Texas for the benefit of showing his support for Yarborough’s reelection, and to try and short-circuit LBJ’s plan.  That trip, as everyone knows, ended with JFK’s assassination in Dallas on Nov. 22 — two weeks after the column first ran.

It is a fascinating anecdote, and I'm grateful to WLS for recounting it so succinctly as part of a longer post that includes one other meaty anecdote and associated commentary. I'm thoroughly intrigued by the entire complex history of the relationship between JFK and LBJ (and its subsequent effects on LBJ's presidency). That's one reason I'm (metaphorically) holding my breath waiting for the fourth and presumably concluding volume of Robert A. Caro's series, The Years of Lyndon Johnson, which will pick up with LBJ's service as vice president; Caro's third volume from 2002, Master of the Senate, remains the single best book on modern American politics I've ever read.

Here, though — in keeping with Patterico's oft-repeated advice to me that I spend too much time writing comments on others' blogs, when I ought to be posting on my own — is a cross-post (without block quotes) of the mildly cautionary comment I left there:

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WLS: Thanks for this first episode in a running book review!

With due respect to Novak, however, the split within the Texas Democratic Party between conservative (LBJ-protégé) Gov. John B. Connally and populist/liberal Sen. Yarborough was obvious without respect to anything Novak or any other Washington pundit might have said about it. Yarborough was a reliable supporter on New Frontier domestic programs, but he was just as likely to be a gadfly to JFK on foreign affairs, as Yarborough later proved in spades during the Johnson Administration. Yarborough's liberalism, including his anti-Vietnam War position, eventually led to his defeat in the 1970 Texas Democratic primary by Lloyd Bentsen.

And I don't doubt that showing support for Yarborough was one reason for the November 1963 trip, but there were certainly others. Texas was, and is, an enormous source of fund-raising opportunities for candidates from both parties (which is why you'll see Hillary Clinton in Texas these days). LBJ certainly had his fingers on large parts of that pulse, but JFK was independently interested.

Kennedy also wanted to shore up his support in Texas and Florida (the latter of which he had visited earlier in November 1963) because of concerns that his civil rights proposals might make those states go Republican in 1964. Kennedy had only carried Texas by 46,000 votes in 1960, notwithstanding the presence of favorite-son LBJ on the ticket. (Wags said that with LBJ’s fate at stake in any important election, however, there would always be at least a 40,000 vote margin, at least until Duval County and other parts of South Texas ran out of corpses willing and able to vote Democratic in alphabetical order.)

Kennedy also wanted to run in 1964 against a "hard Right" candidate like Goldwater, not someone like Nelson Rockefeller. Dallas was famously the home of John Birch Society right-wingers like retired general Edwin Walker (whom Lee Harvey Oswald had already tried, unsuccessfully, to assassinate). Visiting Texas, and Dallas in particular, was a thumb to the hard Right's eye, intended both to show that Kennedy wasn't awed by the hard Right and, perhaps less directly, to begin framing the 1964 election as being between their values and his. The enthusiastic crowds in Dallas, of course, were what led Nellie Connally to say the last words JFK would ever hear: "Mr. President, you certainly can’t say Dallas doesn’t love you!"

Stuff a sock in it, Carl

Elections have consequences. Unfortunately, sometimes those consequences are to push previously mostly-harmless idiots into positions from which they can exercise a genuinely dangerous megalomania.

The one in November 2004 meant that George W. Bush will be the President of the United States until January 2009. But the one in November 2006 apparently meant, among other things, that a magnificent idiot like Sen. Carl M. Levin (D-MI) has suddenly come to think he's leap-frogged the office of the Presidency of the United States to become Czar of the World, including Iraq — and thus he's entitled to tell the Iraqi people "that Iraq's parliament should oust Prime Minister Nouri al-Maliki and his cabinet if they are unable to forge a political compromise with rival factions in a matter of days."

Let me be precise: Even if he's right, he's wrong. Even if this is good advice, it's incredibly, unequivocally, unarguably bad for a United States senator, even the chairman of the Senate Armed Service Committee — especially the Chairman of the Senate Armed Services Committee — to start acting in this way as a free agent, an unguided missile, in sensitive matters of foreign policy.

Bodadpaf, but Sen. Levin should be metaphorically horsewhipped by every politician and pundit of either party who has the slightest notion about how foreign policy ever has worked or ought to work now. He's out of his field, out of his expertise, and so far outside of his mandate as to be out of his mind. This is the kind of colossal misjudgment and misconduct that, in a sane era, would result in this nincompoop being stripped not only of his chairmanship, but of his committee membership. This is the kind of thing a willful, not-very-bright sixth-grader, pretending to be a senator, might do before he's corrected by his civics teacher.

Will Hillary or any other prominent Democrat tell him, "Stuff a sock in it, Carl"? Or are we just going to hear more from the Dems about how "amateurish" the Bush-43 administration is in its foreign policy efforts?

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UPDATE (Tue Aug 21 @ 6:50pm): "Stormy70" has this comment over on a post by James Joyner on Outside the Beltway:

By all means, lead the way, Levin. Show Maliki how to aspire to the heights of a 14% approval rating, and a do nothing label. You are the man.

That's genuinely funny. What's not funny — and what I failed to articulate adequately in my own original post — is that statements by someone in Levin's current position, i.e., Chairman of the Senate Armed Forces Committee, may be read by both our allies and our enemies to mean more than they really do. "That's why we have a State Department, to explain to foreigners how little most of this speechifying really means," says my commenter Steve Forsberg below; and he's correct, too, that some abroad will indeed treat Levin's remarks dismissively.

But either the very unsophisticated (who aren't privy to our State Department spin) or the very sophisticated (who already thoroughly understand the American system and therefore draw their own conclusions) are likely to read Levin's remarks as a not-very-veiled threat, made by America's most senior legislative branch official who has specific responsibility for funding and oversight of the American armed forces that could either foment or block an Iraqi coup d'état pretty much at will. When I read Levin's remarks, what I immediately recalled were the disastrous and equally inappropriate comments made by Henry Cabot Lodge, Jr. when he was the U.S. Ambassador to South Vietnam — comments that were way ahead of, and very possibly contrary to, the intentions of the Kennedy Administration, but that nevertheless directly brought about the Diem coup, with a resulting multi-year set-back in the war effort there. Before that coup, Kennedy knew that Lodge was habitually out of line, but he refused to recall or replace Lodge because of concerns about how that might play in the 1964 presidential election, in which Lodge was expected to be a leading candidate for the GOP nomination.

My point in this post is not to defend the Maliki government. But whether, and how, the United States of America withdraws its support from that particular Iraqi political coalition is a damned important, and damned dangerous, and damned delicate subject. Unless his comments were made at the suggestion of the Administration (e.g., as part of a "signals campaign" designed to exert pressure that's not directly traceable to the White House), which strikes me as quite unlikely, then he was out of line in making them.

R.I.P. Bloomberg 2008 independent campaign — hah!

The utter silliness of the idea that NYC Mayor Michael Bloomberg might mount an effective challenge in the 2008 presidential election is demonstrated by his apparent choice of information medium through which to announce his decision not to run: Dan Rather. (H/t NRO Meida Blog.)

Conservative pundits (and candidates) should avoid uni-dimensional analyses of our candidates' positions on multi-dimensional issues

Hugh Hewitt writes on his blog today:

"If the defense of traditional marriage is one of your key issues, Fred Thompson can't be your candidate."

Hugh and I agree about most things, and I like and respect him immensely, but I'm disappointed in the single-dimensional analysis of Hugh's post. It's based on this post in which NRO's K-Lo quotes a Thompson campaign statement which includes this sentence: ""Fred Thompson does not support a constitutional amendment to ban gay marriage."

It would be equally true — but equally shallow and potentially misleading — for me to write of Romney:

"If curbing the power of the federal government to override the States and intrude in Americans' personal family lives is one of your key issues, Mitt Romney can't be your candidate."

I know beyond any doubt that Hugh is as thoroughly familiar with principles of federalism as anyone on the planet. I know that he supports the notion at least most of the time. And I know he must have read the rest of the Thompson campaign's statement, which makes very, very clear that Thompson's lack of support for a federal constitutional amendment banning gay marriage is based on Thompson's very traditional federalist belief that laws affecting family relationships are for the state governments to make — not the federal government. Thompson also pointedly insisted that one state ought not be able to force its views on another, and that he's against these issues being decided by courts instead of state legislatures.

Here's the question that Hugh ought to be putting to the Thompson campaign, if he wants to flesh out the rest of Fred's position in a fair way that acknowledges his federalism concerns: "Sen. Thompson, if you were a state legislator voting on a proposed state statute that would permit gays and lesbians to marry, how would you vote?"

Fred, or any politician in his shoes, would probably answer that in the first instance by saying, "But I'm not running for any state legislature; I'm running for president of the United States, and you should vote for me, or refuse to, based on what I would do in that office." And that too is a valid point.

But I don't think presidential candidates can avoid sharing their views even on subjects that they would not be in a position to decide or directly influence as president. Someone at that level should have a well-developed, fully integrated viewpoint, including views on matters that traditionally — and I would say appropriately, for I agree with Thompson's federalism point — are matters for the states to decide upon. That fully-integrated viewpoint in turn gives important indications as to how a candidate will react when some new twist or turn on one of these issues pops into public discourse.

Being willing to stake out a position in which one believes, but which polls and focus groups and traditional wisdom about "party bases" tells us may be unpopular with primary voters, is something that ought to distinguish Republican candidates. I'm not sure how Fred would answer the "If you were a state legislator" question. But when and if it's asked, if it hasn't been yet "on the record," I hope he'll address it directly, and let the chips fall where they may.

Likewise, if Mitt were pressed by this question — "Isn't your support of a federal constitutional amendment depriving states of their rights to define marriage inconsistent with the principles of federalism?" — he should freely admit that. And then he should explain why he thinks that's justified in this particular instance.

The hints of that explanation are in Hugh's post: "[P]roponents of the amendment have long pointed to the threat of sudden, judge-imposed changes in the law that would see DOMA struck down without warning." That's a short-hand rendition of an argument that I know Hugh has elsewhere discussed in more length. It's basically a concern that depending on how Justice Kennedy interprets the sweet mysteries of life in any given Court Term, the SCOTUS might suddenly turn America upside down by purporting to require every state to give full faith and credit to, for example, gay marriages from Massachusetts — notwithstanding the existing federal statute from the Clinton era designed to prevent that.

Romney's arguing for a prophylactic federal constitutional amendment that would not only tie the hands of the Supreme Court, but of state courts and state legislatures. That would be a radical step. Conservatives, including even conservatives who vehemently oppose gay marriage, can disagree in good faith as to whether it's justified by the current risk. And one can't meaningfully assess that risk without also talking about SCOTUS appointments. If the GOP can hold the White House in 2008, then there will almost certainly be a chance to add to Dubya's good works in the Roberts and Alito appointments, such that Justice Kennedy's mysticism would be unlikely to be a factor when and if a constitutional challenge to the existing federal Defense of Marriage Act makes it to the SCOTUS docket.

All of which is to say: You simply can't discuss these things intelligently — or fairly! — in one dimension. They're genuinely multi-dimensional problems. And it's not fair, when conservatives are discussing our various candidates' positions, to frame the issues in a way that truncates half of one candidate's rationale. If pundits like Hugh or me have a "job," it's to illuminate and educate.

That's also part of the challenge for our candidates. And for them, being candid, even when it means telling people other than what you think they want to hear, is what ought to define our side. Otherwise, our candidates are just Hillary in a necktie, triangulating madly every time they speak to a different audience.

Beldar re-thinks his handicapping of the Democratic presidential primary

My own intensely negative reaction to Sen. Hillary Clinton (D-NY) makes me doubt my objectivity in trying to handicap the Democratic presidential race. But that can't stop me from trying. My working assumption is that Clinton has no political soul, and that she will say or endorse anything that she and her advisers (and their polls and focus groups) tell them will attract a plurality of Democratic primary voters; then she'll shed that skin, and say or endorse whatever's necessary to attract a plurality of general election voters. My certainty in this regard is based on close observation of her husband's political life going back to the early 1980s. It worked for him, and she rightly regards herself, I think, as a more disciplined candidate, so it ought (she believes) to work for her too.

My working assumption has also been, however, and to some extent continues to be, that when we get past the excruciatingly long run-up of pre-primary debates and rallies, when Democratic voters actually cast their votes in the primary, some very significant segment of them who would indeed be satisfied by all of Hillary's policy positions will vote against her. Some will do so out of generalized populist anti-dynastic concerns. Some will do so out of sexism — for yes, even among Democratic primary voters, there are still some people (of both sexes) who in the privacy of the polling booth will show themselves still unready to vote for any female presidential candidate. (That's going to be an enormously smaller segment than it would have been in 1968 or 1988, but it's a non-zero number — my wild guess is 3%.) Some will do so because even though Hillary's policies smell good to them, even delicious (for they've been lab-crafted to that purpose), those voters can't help sniffing out the corruption and insincerity and viciousness that wafts from the Clintons like the smell of rotting carrion cuts through even a continuous mist of Glade air freshener. All of which is to say, my working assumption has been, and continues to be, that Hillary is vulnerable because of her combination of "high negatives."

That led me to conclude sometime during the past spring that Sen. Barack Obama (D-IL) would beat her in the Democratic primaries.

Obama, I knew, was inexperienced on the national scene, but if there's a tough training and proving ground for producing sharp-elbowed, canny politicians, it's Cook County, Illinois and the Illinois legislature. He's smart, hungry, charismatic, and above all, new. He is an ideal candidate to exploit fully the residual guilt that many white voters (not just liberals) carry, or to describe the flip-side of that coin, their hunger to prove that a black man can be elected president despite our national history with racism. (There's a corresponding guilt/hunger to see a woman president among most of those same voters, but I don't think Hillary exploits it well, precisely because she's been First Lady for eight years and, in the eyes of many, already a co-president.) So my working assumption was that most of the voters who'd refuse to vote for Hillary in the Democratic primaries would turn to Obama, rather than to the transparently shallow and callow (and comparatively slow-witted) John Edwards. In a sentence: I've thought that Barack Obama would become 2008's John F. Kennedy, edging out more experienced and accomplished rivals (including the "Master of the Senate," Lyndon B. Johnson, among many others).

I'm beginning to think, though, that I failed to take into sufficient account the effect of the long, long run-up to the primaries. There's not yet been anything remotely like a permanent, fatal error, but the Obama campaign continues to pop out small- to middle-sized unforced errors just about every week. Here's the latest:

Inundated by dozens of invitations, Sen. Barack Obama will turn down requests to join future debates and forums this fall, his Democratic presidential campaign announced Saturday.

Strategically, the decision itself is a sound one. But they could have simply made that decision at the top, and stopped accepting invitations without ever revealing that it was pursuant to a new policy. It's not like he's short of individualized excuses. If the pattern of refusals began to look suspicious, he could accept one or two in particularly low-risk situations and favorable venues. But what incredible moron decided to announce this decision to the world? And if it wasn't his own decision to make the announcement, how could Obama have failed to detect, and override, that moronic decision?

The Obama campaign might as well have taken out an advertisement on the front page of every major newspaper in the country that reads: "OBAMA CAMPAIGN RUNNING SCARED, SEEKS TO LIMIT FURTHER FREQUENT DEBATE GAFFES."

I'm not yet convinced that Hillary has the nomination sewn up. I genuinely don't believe that the polling numbers are meaningful, which is to say, I believe her negatives are higher than the polls reflect because many people don't want to admit, even to themselves, that they're affected by those negatives. But Obama has already shot off several of his own toes. I'm not sure if he can remain standing — i.e., if he will still be a credible candidate — when Hillary's negatives finally kick in at the primary polls. Her campaign is professional, and his, so far, has been amateurish — and the long campaign season is grinding away the charisma veneer from his campaign that might otherwise have largely concealed that.

Of .orgs and .coms and cybersquatters

I'm advised that my domain name, "beldar.org," is up for renewal soon. My original preference, "beldar.com," has long been the home to some sort of cable TV/internet business in Virginia, which is why I was obliged to use the ".org" suffix. It's particularly inapt because I'm not particularly well organized in my blogging or in my personal life.

But I was surprised to just learn that, apparently for some years, some troll has been cybersquatting on "beldarblog.com," using it as an autolink to some legal referral page. My small consolation is that they almost certainly wasted their money: I can't think of a single new client who's employed me as a direct result of my blogging over the last four years. (I did once get a nice referral of a potential client from a reader, but it turned out that I was unable to be of much use to him, and so I more or less talked him out of engaging me.)

I looked into the process for making a cybersquatting complaint. It compares unfavorably with the complexity of getting a foreign company served with process under the Hague Convention; even as a lawyer, I'm not eager to start through what appears to be a ridiculously slow, cumbersome, and likely-ineffective process.

So I suppose I'll stick with "beldar.org" — "beldar.blogs.com," via my hosting service, Typepad, will also work. Perhaps this is a karmic message that I need to get better organized.

On the Rutgers' player's defamation case against Imus

On Overlawyered, my very ethical and articulate lawyer friend David Nieporent and I have engaged in an extended debate, in the comments to a post of his, regarding the merits (or lack thereof) in Rutgers' basketball player Kia Vaughn's just-filed defamation lawsuit against once-and-future radio shock jock Don Imus. Ms. Vaughn's suit is based on Imus labeling her and her teammates "nappy-headed ho's [whores]" for his national listening and/or viewing audience.

David thinks the case is frivolous. As I argued (from a decidedly minority position) in last night's OTB web broadcast, however, I think it's a very plausible case — indeed one of "defamation per se" under long-established common law.

David ultimately ended up conceding at least my point that "[f]ifty years ago, Vaughn would have won easily on these facts." But at a minimum, he's still unconvinced that in today's coarse world, she was genuinely damaged, or that calling someone a "ho" is anything more than a generalized insult like calling someone an SOB. In any event, I enjoyed the civil back and forth with David, so I commend the post and its comments to your attention there, rather than trying to summarize them further here. As always, gentle reader, it is for you to make up your own mind whose arguments you find persuasive, and to what extent.

Giuliani in Foreign Affairs: "Stay the Course ver. 2.0"

I was prepared in my guest role in OTB's BlogTalkRadio broadcast tonight to also discuss Rudy Giuliani's article in Foreign Affairs entitled "Toward a Realistic Peace." My host there, probably not alone among conservatives and certainly with vast numbers of liberals, have reacted with outright derision; Dr. Joyner's post, for example, is entitled Rudy Giuliani’s Dangerously Stupid Foreign Policy Vision. And at least his co-blogger Alex Knapp was prepared to agree; I'm not sure about Steve Verdon. So I was prepared for a spirited discussion in which I'd be heavily outnumbered. Alas, we ran out of time. (The others may think I filibustered to achieve that result, but I didn't intend to!)

I've left a couple of comments on Dr. Joyner's post already that I won't repeat here, but for those of you whose other commitments as such that you can't spare time to read the roughly 6000 words in Rudy's piece, I'll give you my take here.

The article's own summary is kind of bland, although generally accurate:

The next U.S. president will face three key foreign policy challenges: setting a course for victory in the terrorists' war on global order, strengthening the international system the terrorists seek to destroy, and extending the system's benefits. With a stronger defense, a determined diplomacy, and greater U.S. economic and cultural influence, the next president can start to build a lasting, realistic peace.

The key big-picture paragraph is at the end:

After the attacks of 9/11, President Bush put America on the offensive against terrorists, orchestrating the most fundamental change in U.S. strategy since President Harry Truman reoriented American foreign and defense policy at the outset of the Cold War. But times and challenges change, and our nation must be flexible. President Dwight Eisenhower and his successors accepted Truman's framework, but they corrected course to fit the specific challenges of their own times. America's next president must also craft polices to fit the needs of the decade ahead, even as the nation stays on the offensive against the terrorist threat.

Giuliani is prepared to be Ike to Dubya's Truman, in other words (except for Ike's defense spending cuts). But he's still going to be somewhere between 178 and 182 degrees directly opposite the course that Sen. Clinton or Sen. Obama would take. (If you want to bring John Edwards, Dennis Kucinich, or Ron Paul into the comparison, we're going to need to extend the metaphor into at least four dimensions, and my math isn't that good.) This is traditional Daddy-party Republicanism, and Daddy's wearing a tie, but he also is wearing a belt and he sometimes has a short temper, so don't make him come back there. And if there's an over-riding theme to the entire piece, it's that we should play to our strongest points, not stand pat on them or let them degrade.

Another shorthand description: Giuliani's talking a continuation of the Wilsonian/Neocon approach rather than a Brent Scowcroft/James A. Baker III "realism" approach. "Idealism should define our ultimate goals; realism must help us recognize the road we must travel to achieve them." I read that to mean: "If possible, I'll be 'realistic' enough to keep us out of any new specific engagements that will require longer commitments than the American attention span is suited for. (But no guarantees.)"

One major revision between ver. 1 and ver. 2: No more Pollyanna. Rudy promises to tell it grim when it looks grim.

If Afghanistan and Iraq can get "accountable, functioning governments that can serve the needs of their populations, reduce violence within their borders, and eliminate the export of terror," that's a win there in Rudy's book. He's pretty clearly thinking South Vietnam circa 1972 as the model, where our ground forces are mostly out, our young allies can stand up mostly on their own, but we're still actively backing them as necessary with air and naval power, intelligence, and economic and military aid until they can grow to look more like South Korea does now.

More defense spending, and a bigger military, starting with 10 new combat brigades. (I interpret this to mean Stryker-type forces for counter-insurgency operations.) Tanker aircraft, subs (probably rigged to drop SEALs and gear), and long-range bombers, all of which I again read (contra Dr. Joyner) to be intended jointly for strategic and counter-insurgency use. Star Wars ver. 2.0 to shoot down a North Korean nuke or the like.

Re-evaluate NATO and foreign basing. Don't talk to enemies just for the sake of talking; be willing to menace silently, glower, and manipulate with gusto whenever appropriate. (Those are of course my blunt paraphrases, since they'd be undiplomatic for him to write.) Teddy Roosevelt "speak softly/carry a big stick" diplomacy, in other words. Ad hoc coalitions as need be, regionally or otherwise (special hat tips to Britain, Japan, South Korea, Australia, and India). A vigorous slap for the U.N., which "can be useful for some humanitarian and peacekeeping functions, but we should not expect much more of it." And this will pucker some orifices in one particular balmy Caribbean "people's paradise": America "must stand ready to help the Cuban people reclaim their liberty and resist any step that allows a decrepit, corrupt regime from consolidating its power under Raúl Castro." (Apparently the 1962 missile crisis deal expires when Fidel does, the Soviet Union having already preceded him to Hell.) Similarly: Get really righteous with us on terrorism if you ever want to see that Palestinian state, y'all over in Gaza and the West Bank; in the meantime, we're standing in Israel's corner.

Finally: Giuliani's "respect yourself enough to insist on fixing the damned broken windows every time they get broken" theory writ global: Use capitalism aggressively to win everywhere long term around the world. Make have-not countries into stakeholders in civilization. Private direct investment, not foreign aid. Cultural exchanges between the U.S. and "Muslim countries that we hope to plug into the global economy."

That's about it. I like it. This is meat and potatoes for the GOP base. I'll be surprised, though, if the other major GOP candidates have much more or different to say on these same foreign policy topics. The question is: Can they say the same stuff as convincingly as Rudy does?

Beldar on BlogTalkRadio

Dr. James Joyner and two of his co-bloggers at Outside the Beltway, Alex Knapp and Steve Verdon, were kind enough to host me tonight on their BlogTalkRadio show, talking about the Foster capital punishment case, felony murder more generally, and a couple of other current legal topics. It was fun, and I'm grateful for the invitation. You will not be surprised to read that I hogged far more than my share of the internet airtime, but if you'd like to listen to the hour-long program, it's linked here.

If we're all living in The Sims ...

How should you live your life if, as InstaPundit and his linkees postulate, we're all actually living inside a massive computer simulation run by super-advanced post-humans?

Well, duh. Act like you're not in a simulation. Otherwise you'll be inducing a software error. So, what — do you want to become the cosmic equivalent of the lines in the famously defective original Intel Pentium chip's microcode which caused that rare but catastrophic floating point division bug? Well, do you?

Pants defendants make Pearson an offer he ought not refuse

This is brilliant:

The dry cleaners aren't pressing their case against the Pants Judge.

In a surprise turn yesterday, the small-business owners sued by D.C. Administrative Law Judge Roy Pearson withdrew their demand that he pay nearly $83,000 for their legal bills, saying that enough money had been raised from supporters to cover the expenses and that they want to end the fighting.

The cleaners want Pearson, who could soon be out of a job, to do the same.

In the motion filed in D.C. Superior Court, the owners of Custom Cleaners ask Pearson, who lost his famous $54 million lawsuit two months ago, to call a halt to the legal proceedings. If he intends to appeal a judge's rejection of his lawsuit over a supposedly missing pair of pants, he has until tomorrow to file notice.

"With their losses and expenses now almost completely recouped, all Defendants want to do is make this case go away," Christopher Manning, an attorney for Soo Chung and her family, wrote in the seven-page motion. "Defendants' lives have been devastated and they want nothing more than to quietly return to running their dry cleaning business." ...

In case he does appeal, the Chungs  are reserving their right to seek attorneys' fees for any future proceedings.

The reason this is brilliant, instead of just altruistically admirable, is that the chances that the Chungs ever would have effectively collected on their award of attorneys' fees, assuming their sanctions motion were granted, were very remote. Odds are that Pearson is soon to be unemployed again. Even if he hangs on to his civil service job (meaning that there'd be a ready wage stream for the Chungs to garnish), Pearson undoubtedly would have appealed, dragging things out and inflicting more attorneys' fees on the Chungs that they very likely couldn't collect. And if Pearson's appeals ultimately failed, he probably would have declared bankruptcy.

This move, by contrast, creates a dramatic incentive for Pearson to drop everything and sink back into the slime of his pathetic existence. The Chungs cauterize their own fee bloodflow. And they've made their point in the best dramatic fashion possible. They're already heroes of the tort reform movement. And no appellate opinion is going to do better than restate the bench-slap that the trial judge already administered to Pearson.

Pearson, of course, has the proverbial fool for a client. Not just an ordinary, garden variety fool, but a magnificent, pustulating, gibbering fool. There's still, therefore, a significant chance that he'll reject the Chungs' offer and go ahead with his notice of appeal.

Regardless, though, my hat's off to the Chungs and their lawyer for this move. Is there a German equivalent for "realpolitik" that would apply to litigation? "Realrechtsstreit?" "Realgerichtsverfahren"? Anyway, on the Chungs' part, that's what this is a fine example of.

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UPDATE (Wed Aug 15 @ 1:25am): Sure enough, Pearson has proved me right by rejecting the Chungs' offer.

Is Texas about to execute Kenneth Eugene Foster just because he was an "innocent bystander" to a murder? (Important update at end!)

This post by Steve Verdon at Outside the Beltway, like the Radley Balko link he provided, and like the op-ed from The Nation's Peter Rothberg that Balko linked (and Verdon quoted from), all seriously chap my behind. Here's Verdon's entire post:

Kenneth Foster is innocent of murder. Even the State acknowledges this fact, but in three weeks Foster will be executed for the murder of Michael LaHood. Consider this another installment of "Our Stupid Judicial System."

LaHood’s actual killer, Mauriceo Brown, was executed in 2006. Foster, who was in a car about 100 yards from the crime when it was committed, was convicted under the controversial Texas state “law of parties,” under which the distinction between principal actor and accomplice in a crime is abolished. The law can impose the death penalty on anybody involved in a crime where a murder occurred. In Foster’s case he was driving a car with three passengers, one of whom, Brown, left the car, got into an altercation and shot LaHood dead. Texas is the only state that applies this statute in capital cases, making it the only place in the United States where a person can be factually innocent of murder and still face the death penalty.

Now, if someone has principled opposition to the death penalty in all forms no matter the crime, that's one thing. If someone wants the U.S. Supreme Court to re-read the Eighth Amendment (again) to constrict the operation of the felony-murder rule in capital cases, that's at least an honest viewpoint (if, in my view, badly wrong). But these are just gross distortions, originally promulgated by capital punishment opponents, and then willingly swallowed wholesale and republished by people like Verdon and Balko who ought to know better. Instead, they've made themselves chumps for propagandists who are both willing and eager to tell lies by omission.

[Update (Mon Aug 13 @ 11:10pm): Prompted by this post from Patterico, let me make clear that I don't think either Verdon or Balko are "chumps" generally. I agree with the former often, and with the latter more than occasionally, and I respect both as a general matter, but I expect better of them than that they swallow this sort of stuff uncritically, which I think they must have done here. Also, I note that The Nation's online home page links to this op-ed with the blurb (italics mine): "Texas' insane capital punishment guidelines have condemned a man to death for witnessing a murder." One can't really blame whatever editor wrote that, however, since that's the logical reading of the facts Rothberg chose to include. — Beldar]

Here's a couple of hints that the op-ed is written with a bias and by someone who either knows or cares not about an honest discussion of capital punishment law: First, in the first sentence of the op-ed (which Verdon didn't quote), there's a gratuitous reference to the fact that Foster is black. There's no mention of race anywhere else in the op-ed, nor any issue about his race in the case. It's just a gratuitous detail inserted solely to play on regional bigotry and the assumption that, yup, all us Texans are racial bigots, happily convicting and executing our black folks without much regard to anything but their skin color. Second, read the last sentence of that quoted paragraph. What kind of statute could the "this statute" reference be to, such that it even potentially could be applicable nationwide in defining what is or isn't murder? Well, yes — Texas is the only state in the Union that applies the Texas felony murder statute. In Florida and Arizona and a bunch of other states that follow the traditional felony murder rule, they apply their own state statutes (some of which are very comparable, and others less so).

To his credit, OTB top blogger James Joyner added a couple of useful updates to Verdon's post to suggest that there might be more to the story, and for a non-lawyer, he did a fine job — identifying one of the two key SCOTUS precedents on point, and questioning the ridiculous assertion that no other state besides Texas permits executions under the felony murder rule.

I decided to look more deeply, however, and sure enough, the Fifth Circuit's opinion in Foster's case deals explicitly and in detail with all of this: Foster v. Quarterman, 456 F.3d 359 (5th Cir. 2006), cert. denied, __ U.S. __, 127 S. Ct. 2099 (2007).

Let's start with the "Foster was just driving, Brown got out of the car and got into an altercation 100 yards away" version. Here's how the Fifth Circuit describes the actual crime, based on the trial record (boldface mine):

On the evening of 14 August 1996, Foster and three others — Mauriceo Brown, DeWayne Dillard, and Julius Steen — embarked on armed robberies around San Antonio, Texas, beginning with Brown's announcing he had a gun and asking whether the others wanted to rob people: "I have the strap, do you all want to jack?" During the guilt/innocence phase of Foster's trial, Steen testified he rode in the front seat, looking for potential victims, while Foster drove. Steen and Brown testified to robbing two different groups at gunpoint that night; the four men divided the stolen property equally. The criminal conduct continued into the early hours of the next day (15 August), when Foster began following a vehicle driven by Mary Patrick.

Patrick testified: she and Michael LaHood, Jr. were returning in separate cars to his house; she arrived and noticed Foster's vehicle turn around and stop in front of Michael LaHood's house; Patrick approached Foster's vehicle to ascertain who was following her; she briefly spoke to the men in the vehicle, then walked away towards Michael LaHood, who had reached the house and exited his vehicle; she saw a man with a scarf across his face and a gun in his hand exit Foster's vehicle and approach her and Michael LaHood; Michael LaHood told her to go inside the house, and she ran towards the door, but tripped and fell; she looked back and saw the gunman pointing a gun at Michael LaHood's face, demanding his keys, money, and wallet; Michael LaHood responded that Patrick had the keys; and Patrick heard a loud bang.

Michael LaHood died from a gunshot wound to the head. The barrel of the gun was no more than six inches from his head when he was shot; it was likely closer than that. Brown had similarly stuck his gun in the faces of some of the night's earlier robbery victims.

(Apparently The Nation's Mr. Rothberg thinks that if your very diligent and accomplished armed robbery co-conspirator travels more than a few feet from the getaway car you're driving before he caps your joint robbery victim at point-blank range, that gets you off the hook. Sort of like you can't get XP in World of Warcraft if the other members of your party are too far away.)

Dr. Joyner [update: prompted by comments from Mr. Verdon, see comments below] was correct that Enmund v. Florida, 458 U.S. 782 (1982), is an important part of the governing precedent, but it has to be read against Tison v. Arizona, 481 U.S. 137 (1987). Tison permitted the execution of a capital defendant who was guilty of murder only under a "felony murder" theory, holding that "major participation in the felony committed, combined with reckless indifference to human life, is sufficient to satisfy the Enmund culpability requirement."

Under a trio of Supreme Court cases decided between 2000 and 2004 (Apprendi v. New Jersey, Ring v. Arizona, and Blakely v. Washington), a jury — not a judge or appellate court -- is now required to make both of those determinations.  However, those cases were not retroactive, and Foster's crime was in 1996.

The Fifth Circuit searched the entire record of the state-court proceedings to see whether any state court had made the requisite Tison/Enmund findings.  Like the federal district court, it quickly concluded that the trial jury had indeed made a finding of at least recklessness because it had affirmatively concluded, in answering one of the verdict questions, that Foster actually "anticipated that a human life would be taken." There was ample evidence in the record to support this conclusion by the jury. As the federal district court had written:

Foster could not have helped but anticipate the possibility that a human life would be taken in the course of one or more of his co-conspirators' armed robberies. By transporting a pair of pot-smoking armed robbers to and from one robbery after another, Foster clearly displayed the type of "reckless disregard for human life" the Supreme Court had in mind when it employed that term in Tison. Foster knowingly engaged in criminal activities known to carry a grave risk of death ....

So the jury was presented with, and the jury deliberately rejected as a factual matter, Foster's "I didn't realize anyone might be shot" pitch.

As to the "major participant" prong, the federal district court had agreed that there was ample evidence from which a jury could have made such a finding, if it had been asked that question in those words:

[W]hen arrested, Foster had a pair of cellular telephones from robberies committed a few nights before the murder of Michael LaHood; on the night Michael LaHood was killed, Foster drove his co-defendants around neighborhoods with which he was familiar; he shared in the proceeds of the night's earlier robberies; no evidence suggested anyone directed Foster "to take up his extended pursuit" of Mary Patrick's vehicle as she drove to Michael LaHood's house; and Steen believed Foster was in charge that night because he controlled where the conspirators drove and when they stopped.

Moreover, in summarizing the evidence against Foster, the Texas Court of Appeals had written (emphasis mine) that he

(1) actively participated in the group's robberies; (2) knew members of the group were using a gun to commit them; (3) shared the proceeds from them; (4) was the getaway driver; and (5) expressed no remorse when Michael LaHood was murdered. [Additionally,] after Brown shot Michael LaHood, Foster "drove him away ..., all the while telling Brown to hide the gun"; further, when police pulled over the vehicle, Foster encouraged Brown to hide the gun in his underwear.

The Texas Court of Criminal Appeals had also noted that "a day or two before Michael LaHood was murdered, Foster, Steen, Dillard, and Brown had participated in another armed robbery; and, previously, Foster and a friend shot at people in a truck while driving alongside them on a highway."

Given the Fifth Circuit's disagreement with the federal district court as to whether only a specific jury finding of "major participation" was required to uphold the sentence, the Fifth Circuit held that the federal courts are bound by the findings of the Texas Court of Criminal Appeals on that subject.

There are reasonable grounds for argument as to whether, even given the non-retroactive nature of Apprendi and its progeny, the Fifth Circuit ought to have given this deference to the Texas Court of Criminal Appeals' opinion. The Fifth Circuit opinion does a sort of "See, here's how the SCOTUS picked and chose among record facts and appellate-court characterizations of them in Tison, and that's what we're doing too" routine that I find not terribly convincing. My guess, without having read the cert petition, is that that's what Foster's lawyers concentrated on as well, but they obviously couldn't get four votes for SCOTUS review. And if you want to write an outraged op-ed about that, then fine. [Update: See my extended wee-small-hours update below for more about this.]

In the meantime, I wish the opponents of capital punishment like Mr. Rothberg would quit lying by omission, trying to make someone like Foster look like an innocent bystander randomly sentenced to death by those fiends down in Texas just because he's black. Your dishonesty does your cause a disservice, and thereby ultimately makes you into an enemy of those on death row.

And Messrs. Verdon and Balko — grow some B.S. receptors, please? If you're going to post about a case like this one, at least read the danged opinion whose results you're condemning first, okay?

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UPDATE (Tue Aug 14 @ 2:30am): I'm sufficiently troubled by Judge Barksdale's opinion for the Fifth Circuit panel to conclude that, had I been on the panel, without more than the explanation contained in his opinion, I would not have joined in it.

The problem is this: If you were to ask any of the Texas state-court judges — at the trial-court level, on the Texas Court of Appeals, or on the Texas Court of Criminal Appeals — the following question, I'm concerned that they'd have no answer: "Where exactly in the record is a specific finding, either by the jury, the trial court, or an appellate court, establishing Foster's 'major participation in the felony committed'"? Rather, I suspect they'd say, "Well, actually, we didn't make a finding on that one way or the other. That would have been for the jury to do, if anyone."

Yes, on this record, a jury clearly could have so found. Indeed, it's very, very hard to imagine that any rational jury would have failed to so find. Note that the relevant "felon[ies] committed" were the armed robbery and the conspiracy to commit armed robbery of LaHood — not the murder. Foster was up to his eyeballs in the plan to rob. But Foster's jury didn't find Foster guilty of "major participation in the felony committed" — not in those words — because it wasn't asked to.

On the other Tison component — "reckless indifference to human life" — I'll buy into the panel's conclusion that the jury's determination that Foster "anticipated that a human life would be taken" logically compels the conclusion that he was recklessly indifferent to human life. And according to a dissenting opinion from the Texas Court of Criminal Appeals: "The jury was also expressly instructed that should it find that in killing LaHood, Brown 'was acting independently of [Foster] in the commission of the offense of robbery,' it should acquit [Foster]." That certainly further ties Foster in.

And it's also true that, under the AEDPA, federal courts are supposed to defer to state appellate court factual findings just as they defer to state trial court findings. The bold-faced language from the Texas Court of Criminal Appeals opinion that I quoted above in my original post (before this update) is close. But it's not quite a cigar. It's just barely conceivable to me that a jury might have found that Foster "actively participated," as the Court of Criminal Appeals wrote, and that Brown was not acting independently of Foster, and that Foster anticipated that someone might well be killed — but that, nevertheless, Foster's active and non-independent participation in the armed robbery didn't rise to the status of "major."

The real problem here, of course, is the SCOTUS making stuff up out of thin air, effectively grafting undefined and ill-considered federal constitutional requirements atop all states' widely varying felony murder statutes, all as part of trying to describe the moving target of the Eighth Amendment in a "living, breathing Constitution." Inhale, exhale, sneeze — it sort of comes down to what Anthony Kennedy feels are the sweet mysteries of life in any given SCOTUS Term. But given that Tison and Enmund are on the books, however, Texas and all the other states probably ought to have rewritten their felony murder statutes to track them. And Texas hadn't, at least when Foster was tried.

This seems, I know, like the narrowest of technicalities that I'm arguing. And indeed, it is. I have no doubt that Foster is a very bad man. Personally, I think it is overwhelmingly likely that if this same jury had been asked, "Was Foster's participation in the felony major?" they would have said that it was.

But that's the thing about due process. You have to dot the i's and cross the t's with the real jury, not with the imaginary one that you or I or Judge Barksdale might conceive. My guess and my doubts aren't what count. Neither are yours. Neither, to a considerable degree, are the appellate courts'.  Given that Tison had been on the books for some years before Foster's trial, someone — court or jury — in the Texas state-court system ought to have addressed its two requirements in those exact (if ill-defined) words. And I don't think either the jury nor any Texas state court has yet done so — not directly, not in anything that can fairly be characterized as a "factual finding." (I frankly doubt that Texas criminal procedure would permit the Texas appellate courts to do so, even if AEDPA would require the federal courts to defer to them if they did.)

Does that mean Foster is "innocent," or that he's being railroaded? Of course not. And I stress that (1) I haven't seen the entire record, and (2) this is, at best for Foster, a very close question. The people whose job it is to make these decisions — a category in which I'm not included — don't agree with me, and the odds are overwhelmingly likely that Foster will indeed be executed before this month is out. But there certainly are better, if vastly more technical and boring, arguments to be made in favor of Foster getting a retrial (limited to punishment) than those which Rothberg advanced.

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UPDATE (Tue Aug 14 @ 9:30am): Steve Verdon has linked this post as part of a follow-up in his original post on OTB. Radley Balko has a new post up responding to this one. Mr. Balko seems immune to the concept of regional bigotry and insists that the death penalty is inherently racist, yada yada — all still without a hint that either race or Texas' history actually played any part whatsoever in any aspect of this case. But both writers have acknowledged that the case isn't as Rothberg described it, and I greatly appreciate their civil reponses. There are also some good comments, and some that are merely entertaining, over at Patterico's. If Mr. Rothberg has reacted — and I've left a couple of comments over on The Nation — I'm as yet unaware of it.

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UPDATE (Tue Sep 18, 2012 @ 3:00am): I noticed this in the news at the time, but didn't remember to update this post until I came upon it tonight: On August 30, 2007, based on the recommendation of the Texas Board of Pardons and Paroles, Texas Gov. Rick Perry commuted Foster's death sentence to life imprisonment.

Biggest political whopper of the month of August

From Saturday's Houston Chronicle (boldface mine):

Saying "it will take a woman" to clean up the problems in the White House, Sen. Hillary Rodham Clinton today urged about 1,000 Houston-area voters to support her campaign to change America.

"Bring your brooms," the Democratic presidential candidate told the crowd at a union hall in downtown Houston.

"There's a lot of work that needs to be done. Stay with me all the way to November. We're going to make Texas blue again."

It would have been much more honest, and even refreshing, if she had said instead, "Candidly, I don't have a snowball's chance in hell here in Texas, but please donate some money so I can buy advertising in other states where I do!" That's the subtext anyway, for all but the most naïve among her Lone Star State fans.

Credibility on the ground in Iraq

The following paragraph, from one of war correspondent Michael Yon's latest dispatches, vividly and directly states a theme that has been implicit in much of his writing:

Large numbers of Iraqis detested us after the prisoner abuse stories, and some over-the-top attacks on Fallujah, for example. But through time, somehow the American military has managed to establish a moral authority in Iraq. It’s not the only authority, but the military has serious and increasing moral clout. In the beginning, our influence flowed from guns, or dropped from the wings of jets. Later it was the money. Today, the clout still is partially from the gun, and definitely the money is key, but there is an intangible and growing moral clout and it flows from an increasing respect among Iraqis for our military. Washington has no moral clout in Iraq. Washington looks like a circus act. The authority is coming from our military. The importance of this fact would be difficult to understate.

There's much anticipation among pundits and, perhaps, the public to hear what Gen. Petraeus will have to say in his promised status report in September, and I don't mean to suggest that it's going to be unimportant. But the reason I value Yon's writing so much is that he gives us rolling, on-going first-person observations, along with status reports, from the captains and the majors and the lieutenant colonels in the field. It's not sugar-coated, and it's not larger than life reporting; to the contrary, it is usually very granular and specific. But it aggregates.

I'm reasonably sure that the best single thing I can do to "support the war effort" is to encourage people back here to read Yon's reports regularly. Cumulatively, and along with reports from a handful of similar (mostly nontraditional) correspondents and military bloggers, they give the most credible answers I'm aware of to key questions like, "What the hell are we still doing over there, and is it worth it?" And those answers come not from Yon's mouth — he works hard to stay in the roles of observer and photographer and scribe and messenger — but from the mouths of those American captains and majors and lieutenant colonels, and from the mouths of the Iraqi officers and policemen and civilians with whom Yon watches them interact daily.

My point in this post is that for me, Yon's reports on the ground in Iraq have credibility. The point of his reports, though, is that our military forces, through both words and deeds, have earned and continue to earn large and growing amounts of credibility among the Iraqis.

If we are to have a political society that is as morally worthy as the military forces that we've fielded to protect that society from a hostile world, then members of that political society ought to be aware of the facts about our military forces' credibility and authority among Iraqis, as part of our becoming more broadly aware of what's actually happening on the ground in Iraq in addition to the weekly casualty and expenditure reports (on which the mainstream media relentlessly focuses).

Fund-raising birds' nests on the ground for Fred Thompson in Texas (and an unrelated Beldar trial lawyer war story about Iowans)

Reading the press accounts of the Iowa straw polls, anyone with any sense of proportion can't fail to be struck with how incredibly silly they are.

Now, I spent a lovely winter in Des Moines back in 1983-1984. (Okay, it was just a couple of weeks in November and December, but it seemed like a whole winter.) It's a fine state full of very fine people.* And I don't say this as a knock on Mitt Romney: He and his campaign staff are to be congratulated on their win if only because it's something they set out to do, spent a ton of time and money on, and accomplished. Maybe a year from now, in hindsight, his win in the Iowa straw poll will be viewed as having been the true beginning of his roll to the nomination, and in fifteen months, maybe it will be seen as his campaign's first big step toward general election victory in November 2008.

But on its own, as a national political event, the Iowa straw poll is a distraction and a diversion, important only to the extent it's dangerous, dangerous only to the extent that anyone anywhere else thinks it really mattered after it's over. I rank it right up there in cosmic significance with the cell-phone text-messaging polls on the GOP "debate winners" that Rep. Ron Paul's team have so effectively ballot-stuffed.

If you want a genuinely interesting political story this Sunday morning, friends and neighbors, it's in this article in today's Houston Chronicle: "Bush's loyal Texas fundraisers on sidelines: Supporters who raised millions for 2000, 2004 races take their time to choose candidates." The money quote — and I mean that very literally — is right there in the two-paragraph lede:

Two-thirds of President Bush's most loyal Texas campaign supporters, whose record-breaking fundraising vaulted him into early dominance in the 2000 presidential race, remain on the sidelines in the wide-open race to replace the state's favorite son.

A Houston Chronicle analysis of Federal Election Commission disclosure reports found that only 97 of the 296 Texans who pledged to raise at least $100,000 for Bush's presidential campaigns in 2000 or 2004 have donated to any candidate in the 2008 White House race.

I'm no fund-raiser. I'm a partisan pundit, but I'm not much of a political donor myself. But I am very confident that I am well enough acquainted with my fellow Texans who are major political donors to say with a very, very high degree of confidence that they haven't suddenly become uninterested in presidential politics. Nor have they likely become permanently tight-fisted. Nor are they likely to sit out the 2008 presidential election. Nor are they likely to give less money in 2008 than they did in 2004 or 2000.

The Chronicle's story says that Giuliani and Romney can each so far claim the backing of only around 10 percent of "Bush's Pioneers, who each raised at least $100,000 in campaign cash for Bush, or Rangers, who gathered upward of $200,000." That's notwithstanding the fact that they've both been formal candidates for months. That's notwithstanding the fact that Rudy Giuliani, in particular, is (and has been since 2005), a name partner in a Houston-based law firm, Bracewell & Giuliani.

The Chronicle describes these big Texas donors as being "on the fence." That's the wrong metaphor, because it's entirely possible that an upside-down turtle balanced on a fence post might just stay there, and these folks won't. No, these donors are birds' nests on the ground waiting for someone to scoop them up — and I'm sure that the Giuliani, McCain, and Romney campaigns have been trying already, obviously without conspicuous success.

Romney winning the Iowa straw poll isn't going to knock any of these donors off the fence, nor make them into suddenly graspable birds' nests.

Nor will making his formal campaign announcement, by itself, be enough for Fred Thompson to suddenly acquire gluey fingers for these birds' nests either. But if Fred's the candidate I frankly hope he'll be, then someone right now in his (proto-)campaign had better be far advanced in planning for the dramatic events — well earlier than year-end or January primaries that will suddenly turn some of those birds' nests into graspable items. Texas campaign money could catch him up to his GOP competitors in, well, a New York minute.

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*A trial lawyer's war story, by way of a footnote about my own limited Iowa connection but affection for Iowans:

The reason I was in Des Moines in late 1983 was to represent a large health insurance company headquartered there in a nasty federal court lawsuit that was pending here in Houston. I was there producing hundreds of thousands of documents and many, many deposition witnesses (including the company CEO) as part of an extraordinary expedited discovery plan. It was in a high-profile case in which the trial judge had already announced his intention to grant summary judgment against my client, and to proceed to a jury trial in January 1984, during which he was going to instruct the jury from the outset that my client had deliberately breached its contractual and fiduciary obligations, and that the jurors' sole job was to decide how severely my client ought to be punished for that. Thus, to say that the trial was going to be an uphill battle was a considerable understatement. That made my time in Des Moines more grim than it otherwise probably would have been.

As things happened, when our trial began, Houston was experiencing one of its rare genuine winter cold snaps — three or four days in a row with below-freezing temperatures, sleet, and high winds. We don't handle such things very well; there were busted pipes and fender-benders galore, all over town.

On the third or fourth day of the trial, I was riding the elevator down for lunch with Craig and Sandy — he, the senior claims manager from my client who was serving as the corporate representative, and she, an in-house lawyer who was also there to observe and assist. They were both tall, clean-cut, wholesome folks in their early 30s who looked like they could have stepped right out of a Norman Rockwell painting. And they were genuinely decent and competent people with whom I'd enjoyed working even under these very challenging circumstances.

With us on the elevator was one of the jurors — an elderly woman, probably in her late 70s, who was accompanied by a (non-juror) friend who'd come to meet her for lunch. The two Iowans and I, of course, clammed up to avoid any hint of improper contact with the juror, but other folks in the elevator were making predictable small-talk about just how cold it was outside. At that point, the little-old-lady juror — without ever speaking directly to us — suddenly seized the sleeve of Craig's overcoat between her thumb and forefinger, and with her other hand gestured to him and to Sandy. "These young people," she told her friend, "are from way up north in Des Moines, Iowa! Ooooh! I'll bet they know what freezing-cold winter weather is really like up there!"

We all shivered involuntarily, but for differing reasons. I was afraid the juror was about to pinch one of Sandy's naturally freckled and apple-colored cheeks, and both Sandy and Craig were blushing wildly while all three of us bit our lips. My team literally fled the elevator as soon as we reached the ground floor, lest we do anything that could be deemed improper, or lest the juror stray beyond what was probably permissible (but very borderline) small-talk into outright juror misconduct.

But were we heartened by the elevator incident? Oh, yeah. It was consistent, mind you, with the looks and body language we had been getting from both this juror and the rest of the jury all week — just much more vivid. And I supposed (and warned my client) that it was still entirely conceivable that this juror could still vote to punish my client with a seven-figure award, and in any event, she was only one juror out of six. But I had a hard time reconciling the hypothetical notion that this juror was eager to punish my client with her spontaneous, affectionate tug on Craig's overcoat sleeve.

The case ended up settling while my motion for directed verdict was pending. Even two decades later, as much as I'd love to — because there are many other war stories, ranging from funny to sad and disturbing, from that case's pretrial proceedings and trial — I still wouldn't feel comfortable blogging about many of the other details of that case, or even generally describing how the settlement came about. I can say, I suppose, that we enormously improved our settlement position during the course of the trial.

Yet while the elevator incident does provide anecdotal evidence that reflects well on Iowa and at least these two of its business-people, I never had the chance to find out just how appealing my corn-fed Iowans were to either that juror or her fellows when it came to answering the specific questions the judge would have asked them. It was the client's fully-informed decision to settle the case on the terms it did, and I'm confident that I did my very best in representing that client (and, indirectly, the many cheerful, earnest Iowans who worked there). Nevertheless, on a personal basis, for a variety of reasons, I've always wished the case had gone to a verdict — even though that would have meant a certain appeal, even if we'd won with the jury.

Weirdest appellate case name I've seen recently

I'm reading, and pondering blogging at more length about, the D.C. Circuit's decision from August 3rd on U.S. Representative William Jefferson (D-LA)'s challenge to the FBI raid on his congressional office. Lyle Denniston at SCOTUSblog has a good description of the ruling, as part of which he writes:

The D.C. Circuit Court ruled on Friday that the Justice Department and FBI violated the constitutional rights of a member of Congress when it seized paper files from his Capitol Hill office during a bribery investigation, finding that at least some of those documents involved "legislative material." The case has appeared to be destined for the Supreme Court in a major test of separation of powers doctrine. The Justices have never ruled on the constitutional issues at stake; the search of the lawmaker's office was the first ever by the Executive Branch of a sitting member of either House or Senate.

Such "privileged" material is protected by the Constitution's Speech or Debate Clause, the Court found in a 2-1 ruling concluding that FBI agents went too far in carrying out a warrant in an overnight search on May 20 last year of the legislative office of Rep. William Jefferson, Louisiana Democrat.

Editorialists at the Los Angeles Times are concerned that "this decision will provide cover for corrupt members who seek to hide evidence of their wrongdoing among their official papers." By contrast, editorialists at the Wall Street Journal are concerned that "allowing the executive branch to review the documents and make its own judgments about privilege is like allowing Congress to pass judgment on the limits of executive privilege unilaterally — something this newspaper has also long opposed, although Congress is once again trying to do precisely that." (H/t for both to Howard Bashman.)

The one thing I know without further reflection, however, is that the name of the appellate decision is an absolute hoot: United States of America, Appellee, versus Rayburn House Office Building, Room 2113, Washington, D.C. 20515, Appellant. (I'm not quite sure why the D.C. Circuit opinion has the appellee's name listed first, but that's not what makes it such a peculiar case name.)

As silly as it seems, there's actually a reason for the case to have been brought in that name, since that was how the target of the FBI's search warrant was specified. (Law books are filled with similarly odd names, especially from seizure and forfeiture cases, along the lines of "Brown Shoebox Containing $31,021.11 and Four Marbles v. United States.") But do not be confused: Rep. Jefferson is the "real party in interest," meaning his lawyers spoke for, erm, Room 2113, and it was Rep. Jefferson's rights and interests that the D.C. Circuit weighed.

And apparently, there were also several amicus briefs filed, including at least one (on behalf of former House Speaker "Thomas M. Foley et al.") that may have provided a slightly different "take" on the legislative branch's legitimate interests than Rep. Jefferson's own lawyers might have done alone. His interests as an individual congressman, and the House of Representatives' and/or the Senate's interests as institutions, may be out of alignment in very important respects.

Kerry's and Beauchamp's shared pre-traumatic stress disorder

Others have noted the parallels between fraud Scott Thomas Beauchamp and fraud John F. Kerry in their lies about their fellow servicemen, but it wasn't until I read Charles Krauthammer's op-ed today — in which he noted (as have others) that the "whole point of [the "melted face in the Iraq mess hall"] story was to demonstrate how the war had turned an otherwise sensitive soul into a monster" — that I suddenly remembered Sen. Kerry's own episodes of pre-traumatic stress disorder, about which I blogged at some length (albeit without that wonderfully descriptive diagnosis) on August 29, 2004, in a post entitled "The war-torn soul of John Kerry."

Although I wrote it during the middle of the SwiftVets controversy, that particular post — and the transparent phoniness it demonstrated — relied solely on Kerry's own wartime writing, and on the date and place from which he was writing to his then-sweetheart:

From biographer Douglas Brinkley's Tour of Duty: John Kerry and the Vietnam War, we get this powerful portrait of young John Kerry's anguish, quoting a lengthy letter he wrote to his sweetheart (pp. 82-83; boldface mine):

Judy Darling,

There are so many ways this letter could become a bitter diatribe and go rumbling off into irrational nothings.... I feel so bitter and angry and everywhere around me there is nothing but violence and war and gross insensitivity.  I am really very frightened to be honest because when the news [of the combat death of his college friend, Dick Pershing] sunk in I had no alternatives but  to carry on in the face of trivia that forced me to build a horrible protective screen around myself....

The world I'm a part of out there is so very different from anything you, I, or our close friends can imagine.  It's fitted with primitive survival, with destruction of an endless dying seemingly pointless nature and forces one to grow up in a fast — no holds barred fashion.  In the small time I have been gone, does it seem strange to say that I feel as though I have seen several years experience go by....  No matter [where] one is — no matter what job — you do not and cannot forget that you are at war and that the enemy is ever present — that anyone could at some time for the same stupid irrational something that stole Persh be gone tomorrow.

You can practically hear the mortar rounds shriek overhead Kerry's foxhole, can't you?  Everything around him "is nothing but violence and war" — "endless dying," the enemy "ever present."

Except that this letter was written in Febuary 1968, while Kerry was an ensign aboard the missile cruiser U.S.S. Gridley as it plied the dangerous waters of war-torn Pearl Harbor, Honolulu, Hawaii, USA.  The Gridley was still almost 6000 miles and many weeks away from the waters offshore of Vietnam....

Same sort of drama queens; same exaggeration; same self-aggrandizement; even the same bad writing (especially if the comparison is to Beauchamp's blog writing, which obviously lacks the benefit of TNR's copy editors). They're definitely birds of a feather, those two. Sort of a three-way cross between peacocks, vultures, and mocking-birds (although I suspect even vulture-lovers would object to that comparison, and it's definitely unfair to mocking-birds, but they're the first kind of bird I can think of who're frauds, sort of).

Four years of blogging, but Beldar isn't holding his breath waiting for the big blue and white jet

Exactly four years ago, I put up my first post on BeldarBlog: What do I mean when I describe myself as a "trial lawyer"?

I wrote that post because I'd just finished the graphic for the blog heading (including the subtitle), and I figured readers were likely to mistakenly assume from my self-description as a "long-winded trial lawyer" — admittedly a redundancy — that my primary practice involves representing injured individuals in personal injury cases. Indeed, I've always included a link to that first post in my sidebar.

Despite some long dormancies, I've kept up the TypePad subscription (and I continue to be happy with its features, reliability, pricing, and especially, customer service). Thank you, TypePad.

Sitemeter indicates that I've had well over 1.5 million "visits" and 2.2 million "page views" since then. That's many times more visitors than I'd ever have predicted four years ago, but small potatoes in comparison with many other bloggers, including several whose blogs are much newer. I'm always grateful to those who've read, commented, emailed, and/or linked to my stuff. Thank you, folks.

While I was visiting my 84-year-old father in early July, we watched some talking heads TV together (Fox and PBS, mostly), and I was able to boast to him several times: "Hey, there's another pundit who's linked to my blog!" and "Oh yeah, I've traded emails back and forth with her!" Or: "Yeah, Dad, that guy wrote that I'm doing a better job explaining their positions than the President's and Vice President's own staffs are doing, and that they ought to hire me!"

At which my father drawled, with gentle skepticism: "So what time exactly is Air Force One landing to pick you up?"

Beldar & sons' Grand Canyon road trip

I'm still recuperating from a just-completed five-day 3000-mile road trip with my sons Kevin (19) and Adam (14). Our main goals were to get some vacation time with each other and pay a short visit on my father in Lamesa, Texas. But our secondary goal was to see the Grand Canyon — albeit only during a couple of hours of strolling along the south rim, rather than in the greater detail available through a guided tour or an ambitious hike — along with some of the mountainous country of southern Colorado, and the varied Texas countrysides of all sorts that we would traverse en route.

Herewith follow more pictures and comments:

Road trips include pizza. Hiking and camping trips probably don't.

Adam will be a freshman at Houston's Bellaire High School this fall.

Kevin begins his sophomore year in the University of Houston's Honor College program in about two more weeks.

One of our "campsites" (on the two nights we didn't stay at my dad's house). This one was a budget motel in Flagstaff, Arizona; the other was in Pagosa Springs, Colorado.

We were surprised how little of the rim was railed or fenced, and at how many tourists were venturing out onto sharp tongues of rock, from which a small slip would obviously lead to painful and probably fatal consequences. Perhaps my sons and I have watched too many Roadrunner cartoons, but we had no desire to imitate Wile E. Coyote, and we generally stayed well clear of the edges.

The interplay of the fast-moving clouds' shadows on the canyon cliffs' colors can't really be captured in a still photo, but it's pretty neat.

Adam in profile, against an amazing backdrop. There had been heavy rains before we arrived, which may have diminished the typical August crowds at the Grand Canyon, but they made for a temperate partly-cloudy afternoon that we much enjoyed.

Kevin bought a camouflage-patterned fishing hat in the Grand Canyon village outside the park. We'd watched the IMAX film there, correctly figuring it would give us some appreciation of views from the river and from other parts of the canyon that we wouldn't be able to see from the relatively short span of the south rim we'd have time to visit. Kevin plans to wear the hat on campus this fall. I pointed out that some of his professors might think that the words "Grand Canyon" sewn onto the front of the hat might reflect poorly on what currently fills the space between his ears. His riposte was that the words describe capacity, not current contents, and were thus an implicit challenge to his professors rather than an admission against his own interests.

On the drive home, as we were passing through San Angelo, Texas, I noticed (but neglected to get a photo of) a nifty set of highway signs denoting three available destinations depending on how one turns: "Eden," "El Dorado," and "Big Lake." All three place-names involve substantial hyperbole. By contrast, we decided that the Grand Canyon's name is appropriate or even modest.

I was struck by the relatively large number of tourists who were speaking languages other than English, and the relatively low number of obvious tour groups. My sons were struck by the relatively large number of tourists who were attractive young women in flattering, skimpy summer clothes.

We saw one brief but moderately vivid rainbow while strolling the rim. Later that night, while dining outside in Tuba City, Arizona, we saw a better one — actually a double rainbow — over the Painted Desert's landscape. I probably ought to have taken pictures of it, too, and I certainly should have photographed some of the mountain views that we saw driving back through Durango, Colorado, and Taos, New Mexico. But I didn't, so we'll just have to remember them, and you'll just have to imagine them.

Nor am I a proficient enough photographer to even have tried to capture the amazing night skies that we stopped to study about 20 miles outside of Santa Rosa, New Mexico, far from any competing "light pollution." Growing up in Houston, my boys weren't even familiar with the Milky Way other than from photographs, and my ability to identify constellations beyond the Big Dipper and Polaris has long faded since my Boy Scout days. But I think they'll remember this trip, and all of the sights we saw on it, for a long time — as will I.

Mainstream media flunks basic fact-checking by ignoring No. 2 & 3 Google returns on whether Jeri Kehn Thompson is or isn't an attorney

Entitled "The Truth About Jeri Thompson," this post today by WaPo staffer Alec MacGillis on the newspaper's campaign blog, "The Trail," follows up on a Sunday, August 5th front-page news article from MacGillis and his colleague John Solomon that was entitled "The Rise Of Jeri Thompson." I don't know if the text of MacGillis blog post will also be in tomorrow's print edition or not, but as I write this, the breathlessly provocative title is prominently featured on the main WaPo web page. In it, MacGillis claims (boldface mine):

It is a measure of how rapid Jeri Kehn Thompson's rise to prominence has been that there has been widespread confusion about a basic fact of her background: whether or not she is a lawyer.

Several major news organizations — including USA Today, the Associated Press, Chicago Tribune, and The [Washington] Post — have in recent months referred to Jeri Thompson as both a political consultant and lawyer in articles about Fred Thompson's nascent presidential campaign, in which his wife has taken a leading role.

And supporters of the Thompsons have repeatedly invoked Jeri Thompson's status as an attorney to challenge insinuations that the 40-year-old mother of two is a mere "trophy wife" for the 64-year-old actor and former Tennessee senator. On Fox News last week, host Chris Wallace quoted a letter from a viewer attacking NPR's Juan Williams for having previously used the 'tw' phrase in reference to Thompson: "You chauvinist pig. Jeri Thompson is an intelligent, accomplished woman. She is a lawyer. And she has worked in the public policy arena." Added conservative blogger Ed Morrissey last month: "Anyone with access to Google knows that Mrs. Thompson worked as an attorney and media consultant in DC."

Well, presumptuous as it may be to challenge the holy writ that is Google, the hard fact is that Jeri Thompson is not a lawyer. There is no trace in public records of Thompson holding a license to practice law in D.C. or any of the states in which she has resided. And today, campaign spokeswoman Linda Rozett said conclusively, "Jeri Thompson does not have a law degree."

Despite the reference to the WaPo itself as having made this error "in recent months," Solomon and MacGillis' August 5th story made no assertion one way or the other about whether Mrs. Thompson is or isn't an attorney; perhaps they were still waiting to hear back from Ms. Rozett, and decided to finesse the question in order to make the Sunday front page. And notably missing from MacGillis' blog post is any claim that either Sen. Fred Thompson, Jeri Thompson, or the Thompson campaign has ever misrepresented her non-lawyer status. In another WaPo blog post today, Mary Ann Akers asserts that the Thompson proto-campaign "hasn't done itself any favors by being so evasive when it comes to questions about Mrs. Thompson." Nevertheless: The only even moderately interesting issue here is whether those writing about Mrs. Thompson, whether in the blogosphere or the mainstream media, ought to have figured out sooner whether she is or isn't an attorney.

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As is unfortunately but typically sloppy for posts in many mainstream media newspaper "blogs," MacGillis didn't bother to link to either the WaPo's own previous error (which presumably occurred before the August 5th news article), nor to any of the other MSM errors, nor to the July 8th post from Captain's Quarters from which he included a direct quote from Ed Morrissey, but here's the link to Captain Ed's referenced post. (And here's one to Ed's post about MacGillis and Solomon's August 5th front-page article.) It would be very interesting to know, however, whether MacGillis or Solomon had found Ed's July 8th post before they wrote their August 5th news article. If they had, and if they'd actually bothered to even skim its comments, they surely would have found my comment on that post (posted "July 11, 2007 10:32 PM," and currently fairly prominent as the very last comment to that post), the first paragraph of which reads:

Ed, here's a small correction of no great weight: In response to my emailed inquiry as part of my follow-up to a couple of posts I've written about Jeri Thompson (here and here), a trusted source close to the Thompson organization (one whom I believe you'd also have grounds to trust) confirmed for me that although she was employed as a political and media consultant in the Washington office of the Verner Liipfert law firm (which merged into DLA Piper in 2002), she is not, by training, an attorney. Verner Liipfert employed a number of other high-profile non-lawyers for the services it offered in addition to legal representation, including, for example, the late former Texas governor Ann Richards.

Now, how had I come to post that comment in mid-July?

I'm not a high-powered, well-connected Washington, D.C. political reporter, nor even a very high-powered political blogger. But some time after writing my first post about Mrs. Thompson on June 4th — about the time that the first round of nasty "trophy wife" remarks started circulating in the blogosphere and the mainstream media — I had become curious about whether Mrs. Thompson was or wasn't a lawyer. In my second post about her (on June 24th), I ended with a long parenthetical note:

(A last comment: It's by no means crucial to Ms. Kehn's own list of accomplishments, but I'm not certain that she is in fact an attorney, as has been reported — or quite possibly simply assumed — at various places around the net. The Nashville Post story that I quoted earlier, for example, said that she "was an attorney and political media consultant at the once-powerful Washington [law] firm of Verner, Liipfert, Bernhard, and McPherson and Hand ... [b]efore that firm merged with DLA Piper in 2002." But Verner, Liipfert offered services besides legal advice, and it hired a fair number of politically savvy and well-connected non-lawyers, among them a famous former Governor of Texas, the late Ann Richards. I don't find Ms. Kehn's name among the online list of current members of the D.C. Bar Association, although that could also simply reflect her retirement from practice. If anyone can lay hands on definitive info one way or the other, please let me know by email or in a comment. Thanks!)

One of my regular commenters posted a link to another media source that had listed Mrs. Thompson only as being a "media consultant" at Verner, Liipfert, but I still decided to do some very light non-Google research of my own.

And it took me exactly one email exchange to get a provisional answer from a very reliable source I know who is, as they say, "close to the campaign" — someone whose name I already knew from blog and newspaper reading. After doing his own upstream checking, my source followed up with a more confident answer within a few hours. On June 26th, then, I published an update to my June 24th post stating that I'd been "advised — via an email from a trusted correspondent who's well connected to do such checking, and who was kind enough to do so (but prefers not to be named) — that Sen. Thompson's spouse generally goes by 'Jeri Thompson,' and that she is not a lawyer herself."

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Whether or not its writers were sloppy in not reading the comments on Captain Ed's post that they quoted from directly, how much solace can the WaPo take in the fact that it and other mainstream media outlets jumped to the same mistaken conclusion that he did? Well, let's start by checking — as MacGillis' blog post suggests — the "holy writ that is Google."

As of this moment, if you Google search on "Jeri Kehn Thompson attorney" (either with or without internal quotation marks around her name), my June 4th and June 24th posts are the second and third entries. Indeed, if you simply enter the term "Jeri Kehn Thompson" into Google with quotation marks around it, my June 4th post is the third result listed out of 26,600. (Without the quotation marks, my post only drops to fifth.) From that post, you're only one link away (via my own trackback there to my June 24th post) from my update on June 26.

This precisely fits what the National Review's Byron York quotes Sen. Thompson as saying:

Some [recent mainstream media] reports, Thompson said, have contained substantial factual errors. "Things that you would think could have been checked fairly readily," he told me, "but things that are clearly erroneous — like she’s not a lawyer and she’s never been married before. I listened to a news show with an expert commentator about a week ago talking about Jeri, and in a short segment he had four totally erroneous factual errors about her."

The bottom line: Back as of early June, neither Captain Ed nor I nor anyone else could very easily have determined, via the first few entries in the "holy writ that is Google," whether Jeri Kehn Thompson is or isn't an attorney. But certainly as of late July or August, someone damn sure could have. And should have. So the only story here is that WaPo and other mainstream media have been very, very sloppy in their basic fact-checking. And as I wrote at the beginning of this post: That's only moderately interesting at best, and hardly a surprise anymore.