Coyote Blog

Actually, I was back on Saturday, but Sunday was for rest and Monday was for catching up on a mail pile about 2 feet high in my office.  Hawaii was great.  For those of you who have not tried the Big Island, I highly recommend it.  While Maui and Kauai are perhaps more beautiful, the Big Island is a lot, lot less crowded, as Maui in particular is starting to look like Oahu.  The Big Island is also interesting for its active Volcanoes as well as glimpses of holdover ranching and plantation life from the 19th century.

Congress is again on the verge of conferring new Constitutional rights to a narrow subset of American citizenry.  Already the recipient of speech rights that the rest of us don't enjoy, the major media organizations are also about to receive a special pass from cooperating with law enforcement and criminal investigations.  The reason for granting these new rights is in part because the media, with their business model in tatters, has learned a lesson from the steel and airline industry about running to Congress for help.

First there were special speech rights for the Press:  McCain-Feingold

This special treatment began with the McCain-Feingold Campaign Finance Act, which gave journalists unique speech rights during elections by taking away the speech rights of every other non-media-credentialed American in the 30-90 days prior to an election.  Of course, those of us who don't work for the NY Times or CBS were kind of confused about how we had somehow lost our constitutional right to political speech.  Reasonably, many of us in the blogosphere wanted our speech rights back, and campaigned to be called journalists (i.e. to get the media exemption from campaign speech restrictions).  As I wrote back in June:

These past few weeks, we have been debating whether this media
exemption from speech restrictions should be extended to bloggers.  At
first, I was in favor.  Then I was torn.
Now, I am pissed.  The more I think of it, it is insane that we are
creating a 2-tiered system of first amendment rights at all, and I
really don't care any more who is in which tier.  Given the wording of
the Constitution, how do I decide who gets speech and who doesn't - it
sounds like everyone is supposed to...

I
have come to the conclusion that arguing over who gets the media
exemption is like arguing about whether a Native American in 1960's
Alabama should use the white or the colored-only bathroom:  It is an
obscene discussion and is missing the whole point, that the facilities
shouldn't be segregated in the first place.

Now, Congress is Considering Enhanced "Shield" Laws

Now Congress is ready to take another step in the same direction of giving the media special enhanced platinum-level Constitutional rights with the proposed Federal Shield Law.  No doubt inspired by the whole Valerie Plame / Judith Miller mess, this is yet another example of Congress feeling like it has to "do something" with a half-assed solution to a non-problem that no one at this point, except perhaps Ms. Miller, even really understands.  The Federal Shield Law, named in typical Orwellian fashion the "Free Flow of Information Act", would make reporters the only citizens of the United States who can evade subpoenas and legally stand in contempt of court, a right we have determined that not even presidents have.

These shield laws, which I have criticized before, are often justified as necessary supports for the First Amendment.  Beyond the fact that the press in this country has functioned for centuries quite nicely without such shield laws, and have toppled President's without these extra rights, they are somehow now "necessary to help the United States regain its status as an 'exemplar' of press freedom", according to bill sponsor Richard Luger  (a statement made without explaining either why this was true or even how or when the US stopped being an 'exemplar' of press freedom).

Luger is not even shy about admitting that this law effectively creates two classes of citizen in the United States:

Lugar acknowledged that the legislation could amount to a "privilege" for reporters over other Americans.

"I think, very frankly, you can make a case that this is a special
boon for reporters, and certainly for their role in freedom of the
press," he said. "At the end of the day what we will come out with says
there is something privileged about being a reporter, and being able to
report on something without being thrown into jail."

Um, reporters can already report things without being thrown in jail.  Judith Miller, the explicit reason for the bill's existence, according to Luger, was thrown in jail not for her reporting, but her refusing to participate in an investigation.  An investigation that her employer the NY Times cheer-led the government into starting.  She was put in jail for refusing to testify about a source who had in fact already given her verbal permission before she went to jail to reveal his name.

Glenn Reynolds has a nice quote about the proposal:

ONE CHARACTERISTIC OF THE TITLED NOBILITY was its immunity from some
legal rules laid on the commoners; that's why such titles were an
important boon that the King could bestow on favorites. Reading this statement by Richard Lugar on the proposed journalists' shield law, which probably won't cover bloggers, I wonder if we're getting into the same territory

The Licensing Issue:  Who is a Journalist?

This new special privilege afforded to journalists, when combined with the special speech rights conferred in McCain-Feingold, increases the importance of the question "So who is a journalist and who qualifies for these unique privileges?" I predicted way back in February that I thought some type of official licensing program was going to be proposed for journalists.  Well, here it is in black and white in the aforementioned article on the new shield law:

A key reason some journalists oppose the popular federal shield
proposal is fear that giving Congress the power to define who is and
isn't a journalist could lead effectively to the licensing of
journalists.

Back in February, I predicted that the effort at licensing would fail, but now I have changed my mind.  After all, you can't have all of us unwashed folks who actually got good grades in math so we didn't have to default back to a journalism degree in college getting hold of these special privileges.  Only elite people who have proved themselves worth of being beyond legal accountability, folks like Dan Rather or the Katrina reporters, can be trusted with these extra rights and privileges.

Whenever the government by legislation gives a group of people special powers, it always leads to licensing.  It HAS to, else the courts would forever be bogged down with fights over who is in and who is out.  It is much easier to say "the only people who have the right to evade subpoenas are people with this piece of paper."  Using medicine as a parallel example, once you decide the average person can't be trusted to educate themselves enough to make their own medication decisions, you end up with a process where only licensed MD's can issue prescriptions.  The same will be true in journalism.

What is Really Going On Here

To understand what is really going on here, think "steel industry" or "airline industry".  When technology or markets or customers or competition changed in industries like steel, the last desperate defense of the US steel industry was to run to the government begging for import restrictions and price supports and subsidies and pension bailouts and god-knows what else.  Boy-oh-boy wouldn't the steel industry in the US love to have a law that says only licensed steel makers can sell steel in the US, and by the way, the current steel industry participants will control the licensing board.

Think that is a ridiculous exaggeration?  It can't be any more stupid than this form of licensing (or this one;  or this one).  Here are the various trade-specific licenses
you need here in Scottsdale - I would hate to see the list for some
place like Santa Monica.  My favorite is the one that says "An
additional license is required for those firms which are going out of
business."  Or for an exact parallel to my steel industry hypothetical, try this law from Ohio to liscence new auctioneers:

Besides costing $200 and posting a $50,000 bond,
the license requires a one-year apprenticeship to a licensed auctioneer, acting
as a bid-caller in 12 auctions, attending an approved auction school, passing a
written and oral exam. Failure to get a license could result in the seller being
fined up to $1,000 and jailed for a maximum of 90 days.

And my commentary on it:

Note that under this system, auctioneers
have an automatic veto over new competition, since all potential
competitors must find an existing auctioneer to take them on as an
apprentice.  Imagine the consumer electronics business - "I'm sorry,
you can't make or sell any DVD players until Sony or Toshiba have
agreed to take you on as an intern for a year".  Yeah, I bet we'd see a
lot of new electronics firms in that system - not.

This is exactly what is going on with the media.  The world, at least for the US media, is changing.  Subscriptions and ad revenues have been falling year after year after year.  People either giving up this media all-together or switching to new competitors, such as online media, in large numbers and there is no indication that this trend will stop.  As a result, the traditional media finds itself with its back against the wall.

What to do?  What every other industry has done - run to Congress!  Major media groups were extraordinarily strong supporters of McCain-Feingold, knowing that by limiting speech of everyone else, it added to its own influence and power come election time.  Over time, Congress will continue to add new privileges for the media, like the shield law, in part because it knows that it needs to stay in good with the only group of people who have full speech rights come election time.

The one thing I disagree with in the quote above about licensing is the notion that many in the press oppose it.  They are right to see the prospect as scary (see unintended consequences below) but once a licensing system is in place, I GUARANTEE that the licensed press will be huge supporters of licensing.  Just like lawyers and doctors, the press will find a way to take control of their own licensing and use it to keep out competitors they don't like.  Those pajama-clad bloggers irritating you - well, just make sure that they don't get licensed.  Come election time, they will all have to shut up, because only licensed journalists will have the media exemption in McC-F.  Milton Freedman described this process years ago:

The justification offered [for licensing] is always the same: to protect the consumer. However, the reason
is demonstrated by observing who lobbies at the state legislature for
the imposition or strengthening of licensure. The lobbyists are
invariably representatives of the occupation in question rather than of
the customers. True enough, plumbers presumably know better than anyone
else what their customers need to be protected against. However, it is
hard to regard altruistic concern for their customers as the primary
motive behind their determined efforts to get legal power to decide who
may be a plumber.

And as I said here:

Such credentialing can provide a powerful comeback for industry insiders under attack.  Teachers, for example, use it every chance they get to attack home schooling and private schools,
despite the fact that uncertified teachers in both these latter
environments do better than the average certified teacher (for example,
kids home schooled by moms who dropped out of high school performed at
the 83rd percentile).  So, next time the MSM is under attack from the blogosphere, rather than address the issues, they can say that that guy in Tennessee is just a college professor and isn't even a licensed journalist.

Hit and Run described how doctors use the licensing process, and even hazing of interns, to keep their numbers down and therefore their salaries (and their fees to us) up:

When Kevin Drum commented on the New England Journal
article, he said that the system's defenders "sound like nothing so
much as a bunch of 50s frat boys defending hazing after some freshman
has been found dead in an arroyo somewhere."

Hazing is the right metaphor. The system serves the same
purpose: It's a brutal initiation to a privileged club. Medical hazing
is part of the set of barriers that limit entry to the profession;
whatever other reasons there are for it, it's ultimately a byproduct of
occupational licensing.
Those long shifts don't just undermine public health. They drive away
qualified men and women, reducing the supply of doctors and allowing
those who survive the trial to charge more for their services.

Unintended consequences

Of course, all this has unintended consequences, as does any government meddling in individual decisions, limitations of rights, or attempts to pick industry winners. 

The first unintended consequence, or more accurately I guess I should call it the first irony because I am not sure that it is unintended, is that laws meant to keep the elite from having undue influence vs. the little guy in politics (via spending limits) have done just the opposite - concentrated political speech in a few elites in the media and squashed the one medium, blogging and the Internet, that hold the promise of giving individuals like myself new, inexpensive ways of influencing politics.

The second unintended and really scary consequence is that in attempting to remove a lever of government control over media - the subpoena power - Congress is potentially creating a larger one - that of licensing.  Of all the news-oriented media in the world, which is the most bland?  I would answer local TV and radio (by this I mean their local programming, not the syndicated stuff they air).  Why?  Because they are already subject to government licensing that to this point other media, such as newspapers, have not.  Local broadcast outlets are VERY self-conscious about protecting their license, and tend to keep their programming bland to avoid irritating some government bureaucrat.  Just look at how many rolled over immediately and dropped Howard Stern when the government started looking cross-eyed at Stern's raunchiness.  Do we really want all the media subject to this kind of pressure?

Technorati Tags:  Media

Hariett Miers, the anti-libertarian:

One White House
source says the positions she took in staff meetings might surprise her
business supporters. He said she leaned conservative on social
questions and liberal on economic issues. Bruce Packard, a former
partner at Ms. Miers' law firm, also cautions that she may be more
complicated than people expect. 'She is very reticent to ever discuss
her own views and liberal on issues other than abortion,' he told me."

Yes, I am still out in Hawaii for the week, so blogging continues to be light.  See you next week.

I discussed why I like the Football Outsider rankings of NFL teams and players here.  Typically defenses and offenses are ranked by total yards (given up and gained, respectively).  This is a really poor metric, as evidenced in part by the fact that Arizona is something like 3rd in the NFC in offense and 5th in defense by these traditional rankings.  The better football outsiders team rankings are here. 

A couple of observations

• Cincinnati #1 after five weeks.  Wow!  Both offense and defense in the top 6.  I know it is early, but the Outsider's way of ranking teams tends to be more reliable than traditional statistical approaches.  For example, last season after week 5 they had Philadelphia and New England ranked #1 and #2, and these two teams eventually met in the Super Bowl.  Cincinnati has had a pretty easy schedule to date, which will get harder as the season continues
• San Diego is by far the best 2-3 team out there.  They have had a brutal schedule, which gets better going forward.  They still should be considered a good playoff bet.
• Washington is easily the worst 3-1 team out there.  Expect them to start losing soon, particularly as their schedule remains tough.
• Philadelphia may continue to struggle.  The rankings show that their 3-2 record is no fluke, and they have perhaps the toughest schedule left to play of any team in the NFL
• San Francisco and Houston are really, really bad.  Historically bad.  I had been hoping that Arizona had a chance in the Matt Leinart / Reggie Bush sweepstakes, but SF and Houston will be tough to beat.
• Chicago is working on the Baltimore Ravens award, with the #1 defense to date in the NFL and the third to last offense.  Chicago has also been one of the least consistent teams (highest variance), but has one of the easiest schedules for the rest of the year, so still may have a chance if it can just to anything on offense.
• NY Giants and Indianapolis are solid #2 and #3, though you have to worry about the Giant's high special teams score pulling them up - these scores tend to regress to the mean over the season.  Is there anyone who wouldn't love to see a Manning-Manning Superbowl?

I got a fair amount of grief for being unfair when I posted this about Louisiana politics.  Based on emerging evidence, I stand by my assessment:

Acting New Orleans Police Superintendent Warren Riley said Thursday
that as many as 40 officers from the department's 3rd District,
including the commanding captain, are "under scrutiny" for possibly
bolting the city in the clutch and heading to Baton Rouge in Cadillacs
from a New Orleans dealership.

As many as 200 cars may have been stolen from this dealership by police deserting their posts in New Orleans.  Those trying to defend the police as merely commandeering the vehicles in an emergency will have to explain why 1) They were leaving the city without leave from their commanders and 2) Why Cadillacs are missing but Chevy's from the same district appear to be mostly undisturbed.

There is an interesting discussion about liability going on at Overlawyered and Prawfsblawg.  The original subject was Eddy Curry, the basketball player who may or may not have a genetic heart condition.  The Chicago Bulls refused to play him until he had submitted to a series of tests that would let them determine for themselves if it was safe for him to play (Curry had already said that he wanted to play).

The Bulls have been derided in a number of venues for requiring privacy-invading tests which Curry reasonably refused to submit to.  However, in today's legal world, the Bulls are being entirely rational and in fact entirely consistent with the law, at least as it is practiced in courts today.  Many courts, including those in particular in legal hellhole Illinois, have pretty much thrown out most liability wavers.  Effectively, courts have said that Curry has no right to make risk-reward trade-offs for his own body and self, and if he gets hurt playing for the Bulls, it is the Bulls fault and they can be sued.  So, reasonably, the Bulls want the necessary information to make that safety decision, since the fact that Curry has already decided for himself holds no weight in courts today.

I have long lamented this statist tendency to treat us all like incompetent children, effectively revoking our ability to make decisions for ourselves and our own lives.  Where the discussion gets interesting, though, is when a lawyer suggests that Curry's liability waiver should hold more water than the average person's, since he is wealthy and has access to a full range of professionals to advise him.  Which suggests that there is some point, either in terms of wealth or education, where Americans may actually regain the right to make decisions for themselves and be held responsible for them.  I remember when I was working on an acquisition of a company, and was concerned whether a non-compete agreement I had the other party sign was enforceable.  After all, I had in the past had non-competes signed by my employees routinely thrown out by judges.  My attorney told me that it is assumed that the average ordinary employee does not know what they are doing when they sign an agreement, but that wealthy business people in a transaction are treated like big boys and it is assumed they actually understand and really mean what they sign their name to.

Overlawyered concludes:

A fascinating epitomization of the litigation culture: "ordinary"
people can't make intelligent and free decisions, but elites"”presumably
including lawyers and judges"”can properly advise them how to do so.

Paul's proposed rule of emancipation upon reaching a certain wealth
level has interesting ramifications. It would be fascinating to see
what democratic political consensus would develop for where to set the
Gowder Line above which people are permitted to make free decisions.
Many doctors and attorneys would be sufficiently wealthy to qualify,
but would public interest and government attorneys protest that,
through no fault of their own, they don't have the same rights as
BigLaw partners and their children? Would college professors lobby for
the same emancipation rights as wealthy millionaires because they're
already sufficiently sophisticated? And once that happens, would the
NEA dare to suggest that teachers aren't entitled to the same status?
Before you know it, every Sneech will have a star on his belly.

I made myself clear about this long ago:  We have got to move to a point where adults can be trusted to make decisions for themselves and take responsibility for those consequences.  However, the temptation is just too great, it seems, to act like you know more about someone's best interest than they do.

Update: By the way, we discuss this all in terms of capability and competence and knowledge.  One important factor not discussed above is that every person has a different set of values.  Mr. Curry may rank the value of playing basketball, or making lots of money, higher than the risk of losing his full four-score and ten year lifespan.  Or he might feel just the opposite.  I have heard athletes who have said they would have played pro sports even if they knew for sure they would only as a result live until 50, and I have heard athletes call those others insane.  We all have different values, and even beyond relative confidence and information in making decisions, it is IMPOSSIBLE for other people to make quality decisions about your life, because they are not going to share the details of what you value and how much.  But of course they do all the time.  And if we assign others liability when we make the wrong choice in our life, then we are just asking for other people to take over our decision-making. 

In a free society, I suppose you can delegate the decision-making for your life to others, if you lack confidence in your abilities, but don't give away mine!

Update #2:  Here is another decision adversely affected by lawsuits:

We've reported before (Mar. 18, 2004)
on how, after court decisions in Arizona eroded the state's
longstanding immunity from being sued over the actions of wild animals,
lawyers began obtaining large verdicts from public managers over
humans' harmful encounters with wildlife -- with the result that
managers began moving to a "when in doubt, take it [out]" policy of
slaughtering wild creatures that might pose even a remote threat to
people. The continuing results of the policy came in for some public
discussion last month after a bear wandered into a residential area
near Rumsey Park in Payson, Ariz. and was euthanized by Arizona Game
and Fish personnel:

[Ranger Cathe] Descheemaker said
that the two Game and Fish officials were no doubt following procedure,
and that bears are routinely destroyed ever since the agency was sued
when a bear mauled a 16-year-old girl in 1996 on Mt. Lemmon near
Tucson.

"Since Game and Fish lost that lawsuit, they do not relocate any
bears," she said. "The fact that bear was in town was its death
warrant."

President Bush has passed even Lyndon Johnson for the title of worst spender in the last 40 years.  While it is probably not a surprise that real military spending has grown an outrageous 8.8% per year during his tenure, it is amazing to see that domestic spending has grown 7.1% (yes, that's real, excluding inflation) per year.  Absolutely shameful.  More here in this Cato report (pdf).

Revised data released during the summer by the Congressional Budget Office (CBO) provide analysts the ability to make side-by-side comparisons of the spending habits of each president during the last 40 years.1 All presidents presided over net increases in spending overall, though some were bigger spenders than others. As it turns out, George W. Bush is one of the biggest spenders of them all. In fact, he is an even bigger spender than Lyndon B. Johnson in terms of discretionary spending.

It is interesting to note that Bill Clinton, who drove Republicans into a frothing hatred, can rightly be classed, along with Reagan, as one of the two most fiscally conservative administrations in 40 years.  Granted the Republican Congress kept him honest on spending and carved off his roughest edges (e.g. Hillarycare) while Reagan had to fight his Congress tooth and nail, but this spending record in the Clinton years combined with his passage of NAFTA and welfare reform make him a far better free market defender than either of the Bushes that bracket him.  I wonder if, in turn, liberals who are driven into a frothing hatred for Bush, will someday come to appreciate the work he has done for them in expanding the size of government and slowing the pace of free trade.

Sometimes entrepreneurs are successful enough to buy themselves sexy toys:  It may just be a nice pool table for the office, or it might be that new Gulfstream jet bought with the IPO proceeds.  But little did I know that entrepreneurial success would allow me to buy this beauty (click to enlarge):

This septic tank truck can really haul a load, carrying over 3800 gallons of, uh, poop.

We have a new facility at Pyramid Lake  we run in LA County, where, due to its location, all the bathrooms run into series of underground holding tanks.  At some point in the past, someone converted all the bathrooms into flush toilets, which in this area makes for a real waste of water and creates a lot of liquid waste we have to pump out and dispose of, at the cost of over $80,000 a year.  This truck is the intermediate solution, letting us cut our pumpong costs in half.  The long-term solution we are working with the US Forest Service on is to replace the bathrooms with a great composting technology from Bio-Sun, which will cut the waste and water use both to near zero.

Yeah!  Last night my wife won the Arizona Rising Star Fashion Award for best new Arizona accessory designer for her funky handbags at Kate Groves Creations.  It was an interesting evening, being about the only male, and perhaps the only straight male, in a room of about 100 women.  I will try to supply pictures, including some of her award, but right now I am piling my family on an airplane for Hawaii (yes, you can email me your condolences, but someone has to support the hotel industry).  I will leave you with some pictures of her bags:

Via Kevin Drum, perhaps the most ridiculous example yet of eminent domain abuse in our post-Kelo Amerika:

On May 24, the five-member township committee voted unanimously to authorize
the municipality to seize Segal's land through eminent domain and name its own
developer.

"They want to steal my land," Segal said. "What right do they have when I
intend to do the exact same thing they want to do with my property?"

.... Segal...signed a contract last week to sell his property to Centex Homes
for about $13 million, contingent upon local approval. Centex, a nationally
known developer with projects in Middlesex, Morris and Monmouth counties, would
then build 100 townhouses on Segal's property....

Florio and Capodice [the mayor and deputy mayor] said they preferred AMJM
because it is a local company.

"I've never heard of Centex," Capodice said. "They're not Union County
people."

Un-freaking-believable.  Who wants to bet that AMJM has Tony Soprano on the board, or that AMJM has made some nice donations to the township committee's various election funds. 

By the way, the post title comes from this closing remark from Drum:

Still, it smells pretty bad, and it couldn't have happened if Kelo had
gone the other way. Libertarians should feel free to feel vindicated.

Missed this Gem:  Sorry, the contributions revelation is right up front:

On May 21, Albert G. Mauti Jr. and his cousin Joseph [owners of AMJM] hosted a fundraiser for
Assemblyman Joseph Cryan at the Westmount Country Club in Passaic County. The
two developers and family members picked up the $10,400 dinner tab, donated
another $8,000 and raised more than $70,000 that night for the powerful Union
County Democrat, according to state election records.

Three days later, the governing body in Cryan's hometown of Union Township --
all Democrats -- introduced an ordinance paving the way for the Mautis to build
90 or so townhouses on six acres of abandoned industrial land along the Conrail
line in town.

I hate to be the only one in the blogosphere who does not link it, and since this is the only blog my mom reads, here is George Will's take on the Harriet Miers choice.  I am not sure there is much more to say than this.  First, he dispatches the Bush "trust me" argument:

It is not important that she be confirmed because there is no evidence that she
is among the leading lights of American jurisprudence, or that she possesses
talents commensurate with the Supreme Court's tasks. The president's "argument"
for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments
about competing approaches to construing the Constitution. Few presidents
acquire such abilities in the course of their pre-presidential careers, and this
president particularly is not disposed to such reflections....

In addition, the president has forfeited his right to be trusted as a
custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in
a private act betokening an uneasy conscience, he signed the McCain-Feingold law
expanding government regulation of the timing, quantity and content of political
speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a
considered response from him, he had been told in advance that he would be asked
-- whether McCain-Feingold's core purposes are unconstitutional. He
unhesitatingly said, "I agree." Asked if he thought presidents have a duty,
pursuant to their oath to defend the Constitution, to make an independent
judgment about the constitutionality of bills and to veto those he thinks
unconstitutional, he briskly said, "I do."

Then he takes on Miers's credentials:

Furthermore, there is no reason to believe that Miers's nomination
resulted from the president's careful consultation with people capable of such
judgments. If 100 such people had been asked to list 100 individuals who have
given evidence of the reflectiveness and excellence requisite in a justice,
Miers's name probably would not have appeared in any of the 10,000 places on
those lists....

It is important that Miers not be confirmed unless, in her 61st year,
she suddenly and unexpectedly is found to have hitherto undisclosed interests
and talents pertinent to the court's role. Otherwise the sound principle of
substantial deference to a president's choice of judicial nominees will dissolve
into a rationalization for senatorial abdication of the duty to hold presidents
to some standards of seriousness that will prevent them from reducing the
Supreme Court to a private plaything useful for fulfilling whims on behalf of
friends.

Quoting Bill Paxton:  "That's it man, game over man, game over".  I understand that politicians want to reward their supporters, but that's what ambassadorships to friendly countries are for.  Not FEMA.  And certainly not the Supreme Court.

  Is it too late to nominate Billy Carter to the high court?

Government censors often try to rewrite the past, but Reason's Hit and Run passes on this funny story of British attempts to rewrite the future:

Britain's Meteorological Office has instructed forecasters to describe the
country's damp, dismal, seasonal-affect-disorder-inducing, godawful weather in
Bob Rossian terms:

Prolonged sunshine is expected under new "positive" forecast
guidelines issued by the Meteorological Office...

There is no need to dwell on a "small chance of showers" when "mainly dry"
tells a better story. If there are "localised storms" then it must be "dry for
most". Clouds over Manchester mean generally clear visibility for motorway
drivers

I don't know what the Brits are complaining about in a forecast such as "small chance of showers".  In the States, the same forecast would be communicated as "huge, civilization ending storm approaching - details at 11".  When I lived in St. Louis, I remember that the local news successfully predicted 11 of the last 3 snowstorms.

Update:  I appears that the media has also been reporting 11 of the last 3 murders:

Five weeks after Hurricane Katrina laid waste to New Orleans, some local, state
and federal officials have come to believe that exaggerations of mayhem by
officials and rumors repeated uncritically in the news media helped slow the
response to the disaster and tarnish the image of many of its
victims.

Claims of widespread looting, gunfire directed at helicopters and
rescuers, homicides, and rapes, including those of "babies" at the Louisiana
Superdome, frequently turned out to be overblown, if not completely untrue,
officials now say.

The sensational accounts delayed rescue and evacuation efforts already hampered
by poor planning and a lack of coordination among local, state and federal
agencies. People rushing to the Gulf Coast to fly rescue helicopters or to
distribute food, water and other aid steeled themselves for battle. In
communities near and far, the seeds were planted that the victims of Katrina
should be kept away, or at least handled with extreme caution.

I had my own commentary about media malpractice here.

I am a big supporter of the work FIRE does to support openness and individual rights in universities.  Today, FIRE turns its attention on Phoenix's own Arizona State University:

State-sponsored racial segregation has found a home at Arizona State University
(ASU).  ASU's ironically named 'Rainbow Sections' of English 101 and 102 have
been advertised on flyers and on the university's website as being open to
'Native Americans only.'

The Foundation for Individual Rights in Education (FIRE) has written to the
university to demand that the classes be opened to all students. Shockingly,
this marks the second time in less than four years that FIRE has been forced to
protest a racially segregated course at ASU.

It is appalling that ASU would resurrect segregated classes five decades
after Brown v. Board of Education," stated David French, president of
FIRE.  "The idea that a class can be 'separate but equal' was discredited long
ago.

The 'Rainbow Sections' of English 101 and 102, ASU's freshman composition
courses, were advertised as "restricted to Native Americans only" on the faculty
webpage of Professor G. Lynn Nelson, the course instructor.  A flyer
addressed to 'Native American Students' states that they 'are invited to enroll
in special Native American sections of ENG 101 and 102.'  It also discusses some
of the differences between the special sections and the 'standard First Year
Composition classes,' making it clear that the special sections offer a
different educational experience.

Anyone heard of Brown vs. Board of Education here?  I wouldn't have a particular problem with private groups offering such education with these restrictions, after all I have said many times that the right of free association implies a right not to associate with whoever you want.  But public institutions have different obligations in this regard.  Its actually not that hard to deal with, and even ASU knows what the solution is:

FIRE last wrote
to ASU in April 2002 to protest a segregated Navajo history class that
limited enrollment to Native American students. At that time, ASU simply dropped
the racial restriction in response to FIRE's letter.

Its OK to have different versions of the same coursework, and probably OK to advertise one version as specially targeted at a particular group, as long as you let individual students make the final decision on which of the University-sanctioned versions are right for them.

Via Instapundit comes the separation of powers is slowly starting to work, with the Senate starting to reign in the Administration:

In a break with the White House, the Republican-controlled Senate
overwhelmingly approved a measure Wednesday that would set standards for the
military's treatment of detainees, a response to the Abu Ghraib scandal and
other allegations that U.S. soldiers have abused prisoners.

Sen. John McCain, R-Ariz., a victim of torture while a prisoner during the
Vietnam War, won approval of the measure that would make interrogation
techniques outlined in the Army Field Manual the standard for handling
detainees in Defense Department custody and prohibit "cruel, inhuman or
degrading" treatment of U.S.-held prisoners.

Its good to see Congress getting off its butt and seeing it stop relying on the Supreme Court to deal with these issues.  I thought this was overdue a while back when I posted this.

Of course GWB, who is the only president in history to go 5 years without vetoing anything, is threatening a veto of this sensible regulation:

The White House has threatened to veto the $440 billion military spending
bill to which the measure was attached, and Vice President Dick Cheney has
lobbied to defeat the detainee measure. White House spokesman Scott McClellan
objected that the measure would "limit the president's ability as
commander-in-chief to effectively carry out the war on terrorism."

Uh, how?  Glenn Reynolds responds:

This resistance seems to me to be a mistake. First -- as Lamar
Alexander noted on the Senate floor, in a passage I heard on NPR
earlier this morning -- it is very much the Congress's responsibility
to make decisions like this; the President might do so in the first
instance, but we've been at war for more than four years and Congress
is actually doing its job late, not jumping in to interfere. If the
White House thinks that the Senate's approach is substantively wrong,
it should say so, but presenting it as simply an interference with the
President's Commander-in-Chief powers is wrong. Congress is entitled,
and in fact obligated, to set standards of this sort. It's probably
also better politically for the White House, since once the legislation
is in place complaints about what happened before look a bit ex post facto.

Perhaps current practices are producing a treasure trove of
intelligence that this bill would stop, but I doubt that -- and if I'm
wrong, the Administration should make that case to Congress, not stand
on executive prerogatives. And this bill seems to be just what I was calling for
way back when -- a sensible look at the subject by responsible people,
freed of the screeching partisanship that has marked much of the
discussion in the punditsphere. That should be rewarded, not blown off.

A Bush veto of this measure is likely to touch off the perfect political storm within his own party.  This would make the trifecta of alienation from the more sober parts of the Republican Party, following on his profligate spending tendencies as revealed post-Katrina and his cronyism as reveled first at FEMA and now with his recent Supreme Court nomination.

A number of politicians are calling for taxing "windfall profits" driven by the "price bubble" in gasoline and oil.  Previously, I narrow-mindedly opposed this, arguing that the whole point of the pricing signal being sent is to call for new supplies, which won't happen if the government takes the money away from suppliers.

I say narrow-mindedly, because I have had an epiphany.  I realize now that it is indeed unfair for sellers to benefit from such a pricing bubble.  However, I think the politicians are wrong for looking at oil, since that bubble is only small potatoes.  I propose we start with the much bigger bubble:  In housing prices.  In a time of housing shortages, it pains my heart to Americans profiteering from artificially high prices.  Besides, oil companies actually do something useful with their windfall profits, like finding more oil; home sellers will just blow their proceeds on a big screen TV or something.

My proposal is that the government set a "fair price" for housing, based on a standard rate of appreciation.  The price of the house in a base year, such as 1970, adjusted for the CPI is a good starting point, but a process can be created modeled after Hawaiian gas pricing regulation to set up the exact standard.   Every house in the country then will be appraised.  Any house selling for or appraised for an amount above the 1970 price+CPI adjustment will be deemed as having reaped windfall profits.  The government is authorized to seize 100% of these windfall profits.  When this program is a success, we should then consider a retroactive program to seize windfall profits from the Internet stock bubble.

So, for all you who were supporting government intervention into gasoline pricing and profits, this must make you feel even better, since it is a much, much bigger bubble.  Right?  Or was it somehow more fun when Exxon was a target instead of, say, you?

Update:  I thought it was obvious, but I guess not from the email I have gotten:  I am being sarcastic here.  I would oppose a "windfall" profits tax on oil, houses, Internet Stocks, Pokeman cards, or whatever. 

The WSJ ($?) had this editorial on Saturday:

We keep hearing the word "bubble" to describe
industries with rapid and unsustainable rising prices. Hence, the
Internet bubble, the telecom bubble, stock market bubble, and now, some
analysts believe, a housing bubble. Yet for some mysterious reason no
one speaks of the oil bubble -- though prices have tripled in two years
to as high as $70 a barrel.

Reviewing the history of oil-market boom and bust
confirms that we are in the midst of a classic oil bubble and that
prices will eventually fall, perhaps dramatically. Despite apocalyptic
warnings, the world is not running out of oil and the pumps are not
going to run dry in our lifetimes -- or ever. What's more, the
mechanism that will surely prevent any long-term catastrophic shortages
in energy is precisely the free-market incentive to make profits that
many politicians in Washington seem to regard as an evil pursuit and
wish to short circuit.

The best evidence for an oil bubble comes from the
lessons of America's last six energy crises dating back to the late
19th century, when there was a great scare about the industrial age
grinding to a halt because of impending shortages of coal. (Today coal
is superabundant, with about 500 years of supply.) Each one of these
crises has run almost an identical course.

First, the crisis begins with a spike in energy prices
as a result of a short-term supply shock. Next, higher prices bring
doomsday claims of energy shortages, which in turn prompts government
to intervene ineffectually into the marketplace. In the end, the advent
of new technologies and new energy discoveries -- all inspired by the
profit motive -- brings the crisis to an abrupt end, enabling oil and
electricity markets to resume their virtuous longterm downward price
trend.

The limits-to-growth crowd has predicted the end of
oil since the days when this black gold was first discovered as an
energy source in the mid-19th century. In the 1860s the U.S. Geological
Survey forecast that there was "little or no chance" that oil would be
found in Texas or California. In 1914 the Interior Department forecast
that there was only a 10-year supply of oil left; in 1939 it calculated
there was only a 13-year supply left, and in 1951 Interior warned that
by the mid-1960s the oil wells would certainly run dry. In the 1970s,
Jimmy Carter somberly told the nation that "we could use up all of the
proven reserves of oil in the entire world by the end of the next
decade."

We can ridicule these doom and gloom predictions
today, but at the time they were taken seriously by scholars and
politicians, just as the energy alarmists are gaining intellectual
traction today. But as the late economist Julian Simon taught, by any
meaningful measure oil (and all natural resources) has gotten steadily
cheaper and far more bountiful in supply over time, despite periodic
and even wild fluctuations in the market.

Technorati Tags:  Energy, Economics

For quite a while, I have wanted to see that someone address the question of comparing a richer and warmer world with a poorer and cooler world, and not just assuming that the latter is superior.  As I wrote here, this is one of the most important questions ignored to date by Kyoto supporters.  Supporters of immediate climate change action shout warnings about the dangers of raising the earth's temperature a degree or two.  But what if that comes at the cost of reducing world economic growth a percentage or two?  There is still a lot of work to be done to understand the impacts of a 1-2 degree temperature rise, but it is very, very well understood what 1-2 extra points of economic growth can do, especially in developing countries.  Economic growth reduces starvation, increases life expectancy, improves health care and sanitation, and increases the ability to survive natural disasters.

The Commons Blog links to this study by Indur Goklany on just this topic.  I have not had time to get through it all -- I am just happy someone is even asking the question -- but the Commons Blog folks have:

If global warming is real and its effects will one day be as devastating as
some believe is likely, then greater economic growth would, by increasing
greenhouse gas (GHG) emissions, sooner or later lead to greater damages from
climate change. On the other hand, by increasing wealth, technological
development and human capital, economic growth would broadly increase human
well-being, and society's capacity to reduce climate change damages via
adaptation or mitigation. Hence, the conundrum: at what point in the future
would the benefits of a richer and more technologically advanced world be
canceled out by the costs of a warmer world?

Indur Goklany attempted to shed light on this conundrum in a recent paper
presented at the 25th Annual North American Conference of the US Association for
Energy Economics, in Denver (Sept. 21, 2005). His paper "” "Is a
richer-but-warmer world better than poorer-but-cooler worlds?" "” which can
be found here, draws
upon the results of a series of UK Government-sponsored studies which employed
the IPCC's emissions scenarios to project future climate change between 1990 and
2100 and its global impacts on various climate-sensitive determinants of human
and environmental well-being (such as malaria, hunger, water shortage, coastal
flooding, and habitat loss). The results indicate that notwithstanding climate
change, through much of this century, human well-being is likely to be highest
in the richest-but-warmest world and lower in poorer-but-cooler worlds. With
respect to environmental well-being, matters may be best under the former world
for some critical environmental indicators through 2085-2100, but not
necessarily for others.

This conclusion casts doubt on a key premise implicit in all calls to take
actions now that would go beyond "no-regret" policies in order to reduce GHG
emissions in the near term, namely, a richer-but-warmer world will, before too
long, necessarily be worse for the globe than a poorer-but-cooler world. But the
above analysis suggests this is unlikely to happen, at least until after the
2085-2100 period.

It is particularly important to do the economic work using the same assumptions that the climatologists use. As I posted before, climate studies tilt the playing field in the favor of warming by assuming huge economic growth rates in developing nations.  This ups CO2 emissions estimates, because it is also assumed that these countries remain inefficient energy consumers.  I have criticized this approach in the past, since it yields ridiculous outcomes (many of these smaller nations end up with economies larger than the US in 2050).  However, if they are going to insist on these assumptions, that should also be the backdrop for estimating economic impact of reductions. Presumably, since in their model CO2 comes disproportionately from developing country growth, then the costs will be seen disproportionately in terms of reduced developing country growth.  Which will have predictable results in terms of malnutrition, starvation, disease, and shorter lifespans.

Technorati Tags:  Environment, Economics

The Club for Growth has identified one of the most ridiculous pieces of government spending I have seen so far. 

So, you landed a big king salmon this summer? It can't
compare to the colossal king Alaska Airlines plans to land this morning in
Anchorage.

The Seattle-based carrier has painted nearly the full
length of a Boeing 737-400 passenger jet as a wild Alaska king, or chinook,
salmon. The airline has dubbed its flying fish the "Salmon-Thirty-Salmon."

It's a bold promotional move to celebrate wild Alaska
seafood and also the carrier's role in hauling millions of pounds of fresh
salmon, halibut, crab, shrimp and other seafood out of the state each year.

The plane is kind of cool looking, in a creepy sort of way:

But here is what was buried deep in the article on the "bold" plan:

A local nonprofit agency, the Alaska Fisheries Marketing
Board, gave Alaska Airlines a $500,000 grant to paint the jet. The money came
out of about $29 million in federal funding U.S. Sen. Ted Stevens of Alaska and
his congressional colleagues have appropriated to the marketing board, created
in 2003, to promote and enhance the value of Alaska seafood. The senator's son,
state Sen. Ben Stevens, is chairman of the agency's board of directors.

Maybe they can use the plane to fly the route to New Orleans.  The scary part is the article plays this whole project straight up, as if it is perfectly normal and natural, even bold and innovative.

Spending other people's money, taken from them by force, on projects they don't necessarily support, does not make you bold, or compassionate, or caring, or innovative.  It just makes you a politician.

Truck and Barter is not very impressed with Bush's call for us all to drive less. 

I'd like to know just why I should conserve. We supposedly live in a
capitalist society based on property-rights and free-trade; why, all of a
sudden, do you ask that I not trust that the price of fuel incorporates all the
scarcities at every level of production? What economic lever broke in the past
month? Why do you think the price system is failing so bad that we need to
"conserve" more than the price signal warrants?

I won't pretend that market prices don't exist, or that markets have suddenly
stopped working; I won't pretend that prices are inefficient allocators of
resources; I won't pretend that I cannot buy as much gasoline as I can afford at
current prices.

Furthermore, Mr. President, I will not pretend that you have legal or moral
authority to tell me how much gasoline I may purchase. I will not pretend that
your feeble call to use less has any impact whatsoever on my psyche. I will not
pretend that the Federal Government knows better than me how much gasoline I
should purchase.

Awesome, well said.  Maybe if Bush had worn a cardigan, like Jimmy Carter did when he asked the same thing, he might have been more successful.  Or then again, maybe Bush should have thought twice about channeling Jimmy Carter on any energy or economics related issue.

By the way, there is much more to the post - make sure to read it all.

Update: This one attracted a number of comments fast.  Here are some additional thoughts

Doesn't it make sense to conserve gas?  Isn't what Bush said correct?

Sure it makes sense, but I didn't need Bush to tell me.  Seeing my average 15 gallon fillup go from $30 to $45 nearly overnight told me everything I needed to know.   I adjusted my driving behavior based on how I value various types of trips.  And so, apparently, did everyone else, as gas consumption in this country dropped almost 10%.  Bush doesn't have to tell you to refinance your home when mortgage rates drop, or to buy less OJ when the orange crop failed -- prices signal these things quite nicely.

By the way, I limited my driving years ago (e.g. I live 1 mile from my office) but not because of gas prices.  Lets say 1 hour of driving gets me 30 miles in the city, and requires 1.5 gallons of gas.  The recent increase in gas prices has increased the cost of that 1 hour of driving by about $1.50.  That is NOTHING compared to how I have increased how I value my free time as I have grown older.  That hour may use up five bucks of gas but hundreds of dollars of my leisure time.  I have often told people that the biggest change you go through getting older is how much your internal valuation of your own free time goes up.  In college, I would wait for 8 hours in a line to get concert tickets at face value.  Today, I buy them market up at eBay, because that 8 hours is now worth far, far more to me than the markup.

Wouldn't voluntary conservation beyond what you have already cut back help reduce gas prices in the US?

Sure, if everyone cut back some percentage more than what they would have already done due to the price increase, then yes that might help push prices down.  Of course every person who did this would lose from doing so.  When the price increases, everyone eliminates their marginal use of gasoline, ie every use or trip that is worth less to them than the cost in fuel.  That means that the trips that remain are worth more to them than the gas (and other)  costs.  Therefore, remaining trips are a net increase to their well-being.  If a remaining trip is then eliminated voluntarily, or the cost of that trip is increased due to the increased hassle of carpooling or using public transit, then their well-being is reduced. 

However, this is the great thing about America:  If you personally value voluntarily reducing your gas consumption to help reduce prices for others, in a free society, no one is going to stop you.

By the way, here is the reason I don't worry about it:  I am old enough to have been driving in the late 1970's.  And I know from experience that allowing prices to shoot up for a period of time, without government price caps or windfall profit confiscation silliness, is going to lead to more supply and lower prices in the future.

Don't you think its unethical not to conserve in times like this?

No.  I don't associate consumption and ethics.  If it is sold legally at a certain price, and I can afford and wish to pay that price, then I don't see that morality or ethics come into play.  While there certainly can be ethical problems spending money unwisely (e.g. blowing money on coke or gambling that was needed to feed your kids), that is a different situation.  I don't feel guilty about consuming gas.

Isn't it a security issue?  Shouldn't we be asked or forced to conserve more to make the US independent of foreign oil?

There is only one time this argument makes any sense - if the world is in a full scale shooting war and all foreign trade and international markets are halted, and then we would have much bigger problems.

Short of the breakdown of world trade and markets, being "independent of foreign oil" is a mirage, an impossible non-goal.  Lets say that the world energy supply and demand was exactly the same as it was today, except that the US produced domestically exactly enough oil to satisfy domestic demand.  But in this case there is still a world market for oil.  The price of oil and gas in this country would not be more or less than it is today, except maybe for a few cents of transportation cost differences.  And if there is an oil supply shock, the pricing in the US will be virtually the same in this hypothetical situation as it would be in today's structure.

Shouldn't the President be doing something?

Sure.  Get the hell out of the way of the people who can fix the problem.  Rethink the regulatory regime that is preventing refinery construction.  Revamp the licensing approach for nuclear power.  Open up oil drilling in proscribed areas.  And find his lost veto pen and ax any dumbshit regulation out of Congress managing energy prices, taxing windfall profits, or attempting to pick winners via subsidies.

Technorati Tags:  Energy, Economics

Its always interesting when someone successfully challenges a widely-held assumption.  Like much of America, I have always accepted the notion that the all-volunteer army attracted a disproportionate number of poorer enlistees.  This made sense, since a large part of the recruiting message is one of education and opportunity, which should be powerful inducements to folks trying to get themselves out of poverty.  A few have argued that this is not true, that messages of duty, honor, and country resonate with all classes, but we have all been trained of late by the cynical media that those are dated and powerless concepts.  The main difference in perception about army demographics has been between those who thought the perceived demographic skew was bad and those who thought it just was.  A number folks of late have actually supported a draft due to this perception of a demographic bias.

So it was interesting to see this study by Tim Kane, as unearthed by Mark Tapscott, that tends to explode this myth.  Not having family income data for army enlistees, the study chose as a reasonable proxy the relative wealth of their home zip code.  Based on this methodology, we find that the all-volunteer army actually skews rich rather than poor:

As with all studies like this, I caveat that I have not seen their methodology, etc. etc.  However, it is interesting in that it is completely opposite of public perception.  Since I didn't really find anything horrible about the old perceived skew, this study doesn't change any of my opinions on the army or the draft, but it will be interesting to see if Charlie Rangel reverses course and starts criticizing the army for being a rich kid's boondoggle.

I know nothing about Bush Supreme Court nominee Harriett Miers other than she adds yet another possible way for people to misspell my last name.  Todd Zwycki at Volokh has this take, and it doesn't sound too good:

These appointments thus seem to confirm a common criticism of this
President--that he is uninterested in ideas and interested only in
power. While they may both turn out to be perfectly fine Justices, both
Roberts and Miers appear to be both uninspired and uninspiring in terms
of providing intellectual leadership on the Court. The Administration
seems to be narrowly obsessed with winning minor tactical victories
(here, an easy confirmation of a stealth candidate) while consistently
failing to follow-through with meaningful long-term strategic victories
(an opportunity to change the legal culture).

In the end, of course, the lack of a strategic vision means that
even the tactical victories tend to be reversed (for instance,
temporary tax cuts will likely fall victim to the inability to control
spending). As Reagan understood, you have to first have the long-term
strategic vision in mind so that you know when to make tactical
compromises. Ideas are the long-run motivating force of history.
Tactics without strategy, by contrast, leaves you rudderless.

Beyond his evaluation of Miers, I really like his assessment of Bush, which strikes me as dead-on.  I still think Janice Rogers Brown was the choice.

Update:  Apparently, she was on the Dallas City Council when I lived there in the early 90's, but I sure don't remember having heard of her.  And how serious a candidate can anyone be for the Supreme Court if they were on a freaking city council a decade ago -- can you see any of your city council members on the Supreme Court in 10 years?  And by the way, what are the odds that Bush's personal friend and lawyer will do anything to reign in the new powers to suspend habeas corpus that the administration has granted itself.

Apparently, this is one of the top new features MS is touting to get people to pay hundreds of dollars a screen for MS Office upgrades:

The new version of Microsoft Corp.'s Office
software will let users save documents in the popular PDF format, as
part of efforts to broaden the appeal of the new Office product and get
people to upgrade.

 Office 12, which is due out by the end of
2006, faces some of its stiffest competition from existing users who do
not see the need to upgrade from previous versions. Microsoft is
aggressively touting new functions, such as the PDF support, to try to
spur upgrades and appeal to people who might otherwise not buy Office
at all. The Office suite retails for between $149 and $499, depending
on which edition a user chooses.

Oooo, that's really going to do the trick.  Kind of like urging you to trade-in your car because the new one has more cupholders.  Of course, Open Office is free, is working great for us, and already has a built-in export to pdf.

I fear that this administration has effectively reenacted the much-hated Alien and Sedition Acts of the early 19th century.  Using the "war" on terror as its excuse, the Bush administration is rapidly expanding its ability to grab and hold people indefinitely without charge or trial.  This is not a huge surprise -- many presidents have tried to do similar things in time of war or in reaction to internal security threats.  Much of the Patriot Act was originally proposed by Bill Clinton, after all.

What is new is that the courts and the opposition party are letting him get away with it.

The Sept. 9 court ruling concerning Jose Padilla, an
American citizen locked up in a military prison in South Carolina for
three years, is a case in point. The ruling should send shockwaves
through the American public since the decision seriously undermines
constitutional rights.

A federal appellate court ruled that constitutional rules
that apply to the police do not apply to military personnel.... The federal
government has been given a green light to deprive Americans of their
rights to due process. No arrest warrants. No trial. No access to the
civilian court system. You may not be able to see it on television, but
this court decision is the equivalent of a legal hurricane-and it is no
exaggeration to say that this is a level 5 storm with respect to its
potential havoc for civil liberties.

Federal agents arrested Padilla at O'Hare International
Airport in Chicago just after he arrived on a flight from Pakistan. The
feds claim that Padilla fought against U.S. troops in Afghanistan,
escaped to Pakistan and returned to the United States to perpetrate
acts of terrorism for al-Queda. Instead of prosecuting Padilla for
treason and other crimes, President Bush declared Padilla an "enemy
combatant" and ordered that he be held incommunicado and interrogated
by military and intelligence personnel.
Padilla has not yet had an opportunity to tell his side of
the story. For two years the government would not even permit Padilla
to meet with his court-appointed attorney, Donna Newman. Newman has
nevertheless defended Padilla's rights, arguing that the president does
not have the power to imprison Americans without trials.

Bush has not made any dramatic televised address to the
country to explain his administration's attempt to suspend habeas
corpus and the Bill of Rights, but his lawyers have been quietly
pushing a sweeping theory of executive branch power in legal briefs
before our courts.

I actually am fairly radical on this - I don't think the fact that he is a citizen or not should even make a difference.  Citizenship does not confer rights, and governments don't hand them out -- rights are ours based on the fact of our existence.   While some of the rules of due process may change for non-citizens, just the fact that they are from a different country doesn't give us the right to lock them in a room indefinitely.  This is why I support free and open immigration - there is no reason why a person born in Mexico should have fewer rights to contract with me for a job or a home than an American citizen.  The right to associate, to contract, to agree on wages, to buy a particular home, all flow from being human, not from the US government.

So I wouldn't support Padilla's treatment if he was a Iranian citizen and I certainly don't support it for an American.  Yeah, I know, he may be a bad person.  But we let bad, dangerous people out of jail every day.  Our legal system is structured based on the premise that it is worse to lock an innocent person away than let a guilty person go free.  Its a trade-off that we have made for hundreds of years and I for one am pretty comfortable with.

I also get the argument that we are at war -- in Iraq.  If someone is captured in Iraq, that may be another story.  But Chicago is not in the war zone, by any historic definition of that term (unless you want to use WWII Japanese internment as a precedent, which I doubt).  Just calling it a "war on terror" does not make Chicago a war zone any more than declaring a "war on drugs" makes Miami a war zone where suspected drug users can be put in jail without trial.  Perhaps if Bush could get Congress to officially declare war, he might have firmer legal footing, but I don't think that's going to happen.  As I wrote here:

Yes, I know that there is a real risk, in fact a certainty, that
dangerous people will be let out on the street.  But that is the bias
of our entire legal system - the "beyond a reasonable doubt" standard
and other protections of the accused routinely put bad people back on
the street.  We live with that, because we would rather err in putting
bad people back on the street than in putting good people behind bars
for life.  Give them a trial, deport them, or let them go.  Heck,
airdrop them into Paris for all I care, but you have to let them get
due process or go free.

Sure, terrorists are using our free and open society against us, and its frustrating.  But what's the alternative?  I just don't think there is a viable alternative which says that we should destroy our open society in order to save it.  We've got to learn to be smart enough to work within the rules, and it may be that we have to expect that in the future our freedom comes at some statistical increase in the danger to ourselves (by the way, isn't that exactly the trade-off we have enforced on Iraq, without even asking them -- citizens are much freer that under Saddam but at  an increased risk of terrorism?).

By the way - where the hell is Congress?  Stop grandstanding in confirmation hearings and get to work reigning this stuff in.

Yes, it has a stake in its heart along with a couple of silver bullets, but a number of members of Congress are attempting to reanimate the broadcast flag.  I celebrated its demise here, perhaps prematurely.  I am sad to say that my Congressman John Shadegg, according to Boing Boing, seems to be among the twenty Frankensteins responsible for this effort.  I have given props to Shadegg a couple of times, and now I have to express my deep disappointment in him.

I know, I know. We keep killing
this thing, and it keeps on coming back. But the important thing is
that we keep killing it. Us. They put tens of millions of bucks into
this bid to make technology subservient to the superstitious fantasies
of venal film execs, and we killed it by sending thousands and
thousands and thousands of letters, calls, and faxes to DC. We made it
happen. We'll make it happen again. They're not going to win this one,
EVER

Do you think you know your geography?  If so, try this quiz.  I did well on most of the other regions of the world, and even got most of the Balkans and the former Soviet republics rights, but this particular quiz is a bear.  I might have done better back in the day when I was a student of WWII.