Honor Trial

I haven't written much in the last week, largely because I haven't had a lot of time to be online. Even moreso because the thing that has suddenly taken up so much of my time is something I can't discuss in much detail. Those familiar with the University of Virginia Honor System probably know that a student accused of an Honor violation is entitled to a trial before a jury (made up of either random students, Honor Committe members, or a mix). Well, through contacts between one of my professors and a local law firm, I have been asked to serve as defense counsel for an upcoming honor trial. We go to trial on April 10, and I first met the accused student last Friday, so you can imagine how quickly these things proceed.

In addition to the mere time pressures resulting from this accelerated schedule, this is just a stressful time for all law students. Exams are just around the corner, I just finished a citecheck on Monday and am getting another on Friday. So things are busy. But even beyond the quantitative pressures on my ability to juggle these various responsibilties, the qualitative weight of the responsibility of being a defense counsel on an Honor Trial is pretty heavy. I am exercising real discretion and bear real responsibility for a real client who is facing serious sanctions (the single potential sanction, in fact, is permanent expulsion). That is not something I was expecting to experience while still in law school. That is obviously the great benefit of being involved in such an endeavor, but the sudden epiphany of the scope of an advocate's duty and responsibility to his client has come as quite a shock.

From what I have gathered, that weight is all the heavier in cases where a defense attorney is truly convinced of their client's innocence. There is no way to seek solace in the event of defeat by recognizing that ultimately, it is the client's fault for having committed the crime. When the client really is innocent, it seems that much harder to see a conviction as anything other than a failure on your part as defense counsel. Let's hope I don't have to bear that burden right out of the gates.

Michael Chabon

I attended a reading by Michael Chabon on Saturday as part of last weeks Virginia Festival of Books, and it was quite a delight. Having already read Wonder Boys (and seen the movie many times), it was particularly fun to see Chabon in a book festival setting. Just seemed fitting, like Grady Tripp and James Lear were lurking somewhere in the back of the room.

Chabon was much more soft-spoken than I had expected. I somehow envisioned a boomy bass-filled voice, but was instead greeted by a somewhat dimunitive man with a somewhat diminutive voice. He read a deleted chapter from his Pulitzer Prize-winning novel, The Amazing Adventures of Kavalier and Clay, which I've not yet gotten around to, even though I bought it as soon as it made it to paperback. Though I thus did not have a very good sense of who the characters were, it was not at all difficult to detect Chabon's devotion to detail, the way he immerses himself in the world that he creates. After the reading, he talked about this at length, the division of his life between the fantasy world of his novels and the more mundane world that he really lives in, and how it was largely this dichotomy that he was trying to explore in Kavalier and Clay.

I thought this jived with the intuition I've previously expressed about a reader becoming a part of the world of the books he reads. It can, of course, only be that much more powerful for someone who is actually creating the world. Chabon, for example, said he spent four and a half years writing Kavalier and Clay. Imagine four years of sitting down in front of the computer, creating and crafting and sculpting in this fictional land, and then having to take the kids to soccer practice, pick up the dry cleaning, take out the garbage, and so on. I mean, I feel that disconnect after spending a few days reading a book. I can hardly imagine how an author must feel. I guess that's yet another reason to start Kavalier and Clay. I think I'm going to read his first novel before that, however. It might be nice to have read that and Wonder Boys before starting on his latest work. It's much shorter, as well, so it fits better into my currently hectic schedule.

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is Thich Nhat Hanh's commentary on the 5th Precept: Diet For a Mindful Society.

The Framers' Views of Restraining State Sovereignty

Incidental to a discussion on standing in today's Federal Courts class, Professor Caleb Nelson presented a view of the 1st Amendment's Establishment Clause as a purely federalist protection. Under this view, the clause prevents Congress from both forcing or prohibiting a state from endorsing or not endorsing a particular religion. Likewise, it cannot declare an official national religion as this would preempt the states' power to choose their own. This would, of course, mean that the 1st Amendment would have no problem with a particular state, say Virginia, declaring that Episcopalianism is the official state religion. In fact, it was intended to protect that precise choice.

Now this is clearly not the present understanding of the Establishment Clause. It is now widely viewed as a protection of individual liberty, enforceable against both federal and state governments. Yet the federalist theory raises some interesting historical questions about which I have remained largely ignorant. Whether the 1st Amendment was originally intended to protect the states against the federal government, or the people against the federal government, the one thing it clearly did not do was protect the people against the states. So the obvious question is this: what was going to protect the people against the states?

My understanding is that the traditional answer, and the one I've been unquestionably following my whole life, is that the Framers' held a belief that the very nature of state government, due to its proximity and accountability, would restrain it from infringing on the types of liberties with which no government (whether state or federal) should interfere. Yet this view includes at least two assumptions which I think ought to at least be questioned: 1) that the Framers' really did believe that there were rights which even the states ought not be able to infringe upon; 2) that the very nature of state government would prevent such infringement. My discussion of these two prongs is going to be interrelated, but I'll try to parse it out a little.

I'm not at all familiar with the alternative view of the first prong, but it apparently goes something like this: what the Framers' were most concerned about was not the protection of individual liberties against all infringement by any government, but the infringement by governments which are distant (even "foreign") and unaccountable to those they seek to govern. This might be best represented by the classic grievance of "no taxation without representation." Here the complaint is not necessarily a libertarian claim that taxation is somehow incompatible with the proper role of government, but merely that it is a power that can only be wielded by a government properly answerable to those it seeks to tax.

Under this view, the Constitution generally, and the Bill of Rights in particular, should not be seen as limiting the federal government so as to protect individual rights of the people from all regulation, but merely to ensure that such regulation is conducted by state governments. As such, these Framers' might have no legal qualms with Virginia having an official state religion, or New York imposing prior restraint rules, or Pennsylvania police conducting all searches and seizures without warrants. See, for example, Article III of the Massachussetts Constitution:

[T]o promote their happiness and to secure the good order and preservation of their government, the people of this Commonwealth have a right to invest their legislature with power to authorize and require, and the legislature shall, from time to time, authorize and require, the several Towns, parishes, precincts and other bodies politic, or religious societies, to make suitable provision, at their own Expense, for the institution of Public worship of God, and for the support and maintenance of public protestant teachers of piety, religion and morality, in all cases where such provision shall not be made voluntarily.

Keep in mind that this claim would not be inconsistent with particular Framers' opposing such laws on policy grounds. The claim is merely that they would not think it outside the sovereign power of a state to have such policies.

The second prong suggests that, assuming that the Framers' did want the states to refrain from infringing on these rights (unlike the view just articulated), it was the very nature of state government that would guarantee this restraint. This is a pretty broad articulation, and I'm not sure how closely this really tracks the traditional view. But I'd like to at least explore a couple possible interpretations and the implications of them.

The first possible interpretation is that state legislatures would themselves be restrained, because the legislators are so proximate to their constituents and thus very accountable to them. This is an appealing belief, and would seem to fit nicely with many modern day federalists' and their longing for a shift of power to state legislatures and more local governmental bodies (city councils, school boards, etc.). Yet this view seems inconsistent with the existence of state constitutional provisions securing many of the same liberties as the federal Constitution seems to do. If the Framers' really trusted state legislatures, would any of the various state constitutions have included provisions guaranteeing the freedom of speech, the right to a jury, the prohibition on capital punishment, as the Virginia Constitution does? Additionally, would it really make more sense to read the 1st Amendment as protecting the states against the federal government, and the Virginia Constitution as protecting the people against the state, rather than reading both as protections of individuals against two different sovereigns?

Of course, another interpretation of this presumed trust that state governments will be able to restrain themselves might actually proudly present the various state constitutions as evidence that the people of the state, if not the legislature itself, are fully capable of enshrining the various protections. This view might be questioned a bit if one sees, for example, a tension between the individual freedom of religion and the provision of the Massachussetts Constitution quoted above. Compare that provision to Article I, Section 16 of the Virginia Declaration of Rights:

That religion, or the duty which we owe to our Creator and the manner of discharging it, can be directed by reason and conviction, not by force or violence; and therefore, all men are equally entitled to the free exercise of religion, according to the dictates of conscience; and that it is the mutual duty of all to practice Christian forbearance, love, and charity towards each other.

And this brings us back to the first prong, I think. To the extent that these disparate approaches to the protection of freedom of religion at state level would be acceptable to the Framers', I think it supports a view that they were concerned not so much with a particular vision of individual liberties as with the protection of the states' sovereign power to make unique and independent determinations of how to regulate those rights. To the extent that a particular Framer would think that Massachussetts' approach is an unacceptable infringement on the individual right of religious freedom, than we ought to be able to gather two things about his views: 1) the Bill of Rights does not merely protect spheres of state power from interference from the federal government, but in fact articulates and protects individual liberties; 2) to the extent that a state like Massachussetts has failed to refrain from interfering with those rights, it represents a failure of the theory that states are somehow inherently restrained from such behavior. This latter point, I think, is likely the source of much of the modern opposition to calls for "states' rights," and is now felt to be largely supported by the experience of slavery to some extent, but especially the experience of Jim Crow.

I don't have any conclusions to draw from this discussion, it is simply a series of issue I've not really had raised in my academic experience. Were the Framers' as truly committed to individual liberties as our modern day heroic view suggests? Or were they more interested in guaranteeing state sovereignty, and less concerned with whether the states would use that power to infringe on the rights we so cherish today? And to the extent that some of the Framers (and here I should explicitly acknowledge that much of the confusion may be caused by the fact that many of the Framers held very different, often conflicting views and theories of government) were committed to individual rights, but failed to enact Federal Constitutional provisions protecting these rights against state interference, was it the result of simply having misguided views about the likelihood of state self-restraint? Was this caused by naivety? Knowledge of a need to compromise with other factions in the Constitutional Convention?

Any guidance, answers, or suggested reading would be most welcome.

UPDATE: Several people have written to recommend Akhil Amar's The Bill of Rights, which fortunately for me is sitting on my shelf right now. I guess it is time to take it off the shelf.

Green Valley Book Fair

I had the great pleasure yesterday of hopping in my car and making the hour drive out to Harrisonburg for the Green Valley Book Fair:

Located just south of Harrisonburg, Virginia, in the heart of the beautiful Shenandoah Valley, the Green Valley Book Fair is a discount book outlet store featuring over 500,000 new books at incredible bargain prices.

It is essentially a Sam's Club-sized warehouse of remaindered books (check this story for pictures), and it was probably the closest I'll ever get to being a "kid in a candy shop." I found many books I've been wanting to buy (one of the dangers of becoming so cognizent of great literature is that there are always many books I want to buy), and just could not resist the bargains. The only book I paid more than $6 was the first volume of David Tod Roy's new translation of The Plum in the Golden Vase, which I got for $7.50, a substantial discount from its Amazon price of $29.25. Amonst the literature selections, I picked up Doris Lessing's The Golden Notebook, Richard Wright's Black Boy and Native Son, John Cheever's The Wapshot Chronicle, O.E. Rolvaag's The Giants in the Earth, and several others. They also had nearly every work by Fitzgerald, Hemingway, and Wharton (which I would have bought if I did not already own them; alas, the only downside to owning a book is that I cannot buy it again... unless, of course, a really cool new edition comes out).

Their history and biography selection was also excellent, and I was able to find several books I've long desired to purchase: Richard Rhodes' The Making of the Atomic Bomb, Daniel Yergin's The Prize, David Herbert Donald's Lincoln, Howard Zinn's A People's History of the United States, and several others.

All in all, I highly successful and rewarding trip. I'll probably go again after this summer, when I have even more disposable income. Here's this year's schedule:

March 20 thru April 4
May 15 thru 31
July 3 thru 18
August 21 thru Sept 6
October 9 thru 24
Nov. 26 thru Dec. 12

I highly recommend all book lovers in the area find a way to attend at least once. I guarantee it is worth the drive.

Recently Read

I just added several reviews for books I read last week, and thought I'd include them here. I'm afraid I'm spending so much time reading that I've paid little attention to what others consider newsworthy, thus the lack of commentary on the tragedies of the moment. These reviews are, of course, just one man's opinion.

Neuromancer - William Gibson

>I think this is one of those novels that is probably more noteworthy as a landmark than as a piece of literature. Its vision and prescience are remarkable, and there can be little doubt that it has had a tremendous influence on the last couple decades of science fiction. It is, for example, hard to imagine The Matrix without Neuromancer. To the extent that cyberpunk can indeed be traced to this novel, I am largely grateful it was written. Yet it was a bit of a disappointment to read. Gibson is so wrapped up in the style of what he is creating, the world of cyberpunk, that the substance of the story gets left aside. We get inklings of existentialism, some faux-Eastern philosophy, and lots of name dropping (e.g. the police are called "Turing agents"). It had a sleek sheen, but little more.

Grade: C

How to Be Good - Nick Hornby

I am a big Nick Hornby fan. In fact, it is hard to imagine how I could have avoided becoming a big Nick Hornby fan. I'm a music obsessive (and a music snob!), and have always loved making "top 5 lists." So I pick up High Fidelity and love it. I pick it up again, and love it even more. I currently include it in my top five favorite books. Fandom secured, I go looking for more. About a Boy intrigued me, and I think a second reading of it could be in the works anyday now. Then I ran across Fever Pitch while browsing the biography section. By this time I have been an Arsenal fan for almost 4 years (having adopted them upon my return from Europe in summer 1996, where I had become obsessed with European football; my favorite player during Euro '96 was Dutchman Dennis Bergkamp; Arsenal was his club, so it became my club, and that was all she wrote). Turns out Hornby is an Arsenal fan. No, not just a fan, an obsessed man who writes an entire memoir of his life framed in relation to Arsenal matches.

So when Nick Hornby came out with a new novel, I was interested. I would have picked it up immediately, but I began hearing lukewarm reviews. So I did not buy it right away, and slowly it faded out of my attention. Until, that is, a few weeks ago when I found it on one of the discount online bookstores I frequent. I purchased a remaindered copy for $3.99, and put it on my shortlist.

For once, I would have been better off listening to the reviews. It was just not very good. It took me a few days to figure out what I didn't like. It is not just that Katie is so unlikeable. Most of Hornby's protagonists have rough edges, with the reader constantly wavering between antipathy and sympathy. But this one is different. First, everyone else is unlikeable too. No charming (or even amusing) side characters or subplots. Before his "conversion", her husband is wretched and unbearable. Afterwards, he and GoodNews are one-note parodies of themselves. Same with the children, her friend Becca, and her patients. Second, she had no character arc. She starts out self-involved, selfish, pessimistic, and confused and stays the course throughout the book. Though there are supposed to be signs of change (she moves out, she moves back in, etc.), these physical plot pieces seem unrelated to any actual internal evolution.

If there had been a strong plot, perhaps the book would have been more enjoyable. At least there might have been enough tension to create some desire to turn the page. But Hornby is never really about plot, he just wants vehicles to give his characters room to play, to grow. With unlikeable, two-dimensional characters and a distinct absence of internal development, this book is left with little to recommend it. The best that can be said is that Hornby's prose is easy to read, making it even simpler to breeze through its vacuity. A huge disappointment.

Grade: D

Big Fish - Daniel Wallace

This is not a big or complex novel, and it does not aspire to be so. But it is a simple pleasure, offering one of the most unique and creative takes on the difficulties of fatherhood that I've seen. In its breezy 180 pages (big font, big margins), Wallace takes the oft-explored tension between absent fathers and their distant sons and turns it into a story of wonder and wisdom. The influence of Greek mythology is evident throughout, and it certainly has the flavor of that grandeur and glee, the pure pleasure of storytelling. Yet there is a sad undercurrent which comes to the surface in the recurring scenes at the father's deathbed. That these wondrous stories are all the son has to construct his father's life with is a testament to the tragedy of the emotionally inaccessible. As one who is always on the lookout for stories offering a new take, some new wisdom on the father/son relationship, this was a welcome cautionary tale that I will keep on the shelf until it can serve me as a vocational tool as well.

Grade: B

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is Thich Nhat Hanh's commentary on the 4th Precept: Deep Listening and Loving Speech.

You Are What You Read

There is, of course, long-standing wisdom that you are what you eat. I think for book addicts, those of us who fill some or most of our free time with reading for leisure, there is a real sense in which we are what we read. Just as viewing a moving film, or listening to music can effect your mood, so too can the reading of a book. And while those activities can have lingering effects, they are at least themselves normally finished within an hour or two. You watch the movie, then it is over. You listen to the album, then it is over. Whereas a book of any substantial length can be a part of your active life for days or weeks (sometimes months if the book is long enough or life is busy). So there is a sense in which part of a book addict's active existence is always occurring within that sphere, within that book.

This is not a ground-breaking idea. It is exemplified most obviously in the idea of "beach reads," which are supposed to be light and breezy just like you want your vacation to be. But for some reason, I had not fully internalized that this same line of thinking applies to all reading at all times. And thus it was that yesterday I decided that perhaps I should put Joseph Conrad down for a while. He is just not an author to be reading when you are already experiencing inklings of pessimism or aimlessness, unless of course you are a teenager who wants to confirm and wallow in the righteousness of your depression. Certainly I should not have been reading Conrad and Dickens side-by-side. It is just too much darkness to take, too depressing of a fictional world to be occupying when the real world is already getting you down.

No, I need to keep the proper balance in my leisure reading between intellectual and emotional challenge and the pleasures of escape. That is, after all, why I normally read two books at once. I try to read one great and/or difficult work of literature, and another book that takes less effort or at least operates on some other level. The second book has often been a history or biography, and has often been a work of science fiction. Today it is Nick Hornby's How to Be Good, which I believe is the only novel of his I have not read. All of his other work gave me great pleasure, and though this novel is so far a bit darker and harder to connect to, I was able to get through 100 pages in an hour and a half. It took me 4 days to get through the 100 pages of Heart of Darkness.

My Professors' Political Contributions

I was poking around Open Secrets and thought it would be interesting to see if any of my law professors showed up. Boy, did they ever! Two of my four current professors turn out to be quite active donors, with a third making more modest contributions.

My tax professor, John C. Harrison:

9/24/1998 $300 National Republican Congressional Cmte
9/25/1998 $300 Neumann, Mark W
9/29/1998 $500 Inglis, Bob
9/30/1998 $500 Boozman, Fay W III
10/7/1998 $200 Smith, Linda
10/16/1998 $200 Inglis, Bob
1/15/1999 $1,000 Republican National Cmte
1/20/1999 $1,000 National Republican Senatorial Cmte
6/30/1999 $1,000 Abraham, Spencer
7/6/1999 $1,000 Allen, George
7/6/1999 $1,000 Allen, George
12/31/1999 $1,000 Republican National Cmte
1/7/2000 $1,000 National Republican Senatorial Cmte
2/11/2000 $1,500 National Republican Congressional Cmte
3/2/2000 $1,500 National Republican Congressional Cmte
3/9/2000 $300 Bush, George W
5/20/2000 $300 Lazio, Rick A
7/31/2000 $1,500 National Republican Congressional Cmte
9/30/2000 $200 Franks, Bob
10/5/2000 $200 McCollum, Bill
10/7/2000 $300 Lazio, Rick A
10/18/2000 $200 Gorton, Slade
10/18/2000 $1,000 National Republican Congressional Cmte
10/19/2000 $1,000 Republican National Cmte
10/23/2000 $1,000 Republican Party of Virginia
10/31/2000 $300 Franks, Bob
11/15/2000 $1,000 House Managers PAC
1/29/2001 $1,000 Republican National Cmte
1/31/2001 $1,000 National Republican Senatorial Cmte
9/24/2001 $250 Republican Party of Virginia
9/27/2001 $300 Coleman, Norm
11/29/2001 $200 Graham, Lindsey
12/27/2001 $250 Ganske, Greg
12/29/2001 $300 Talent, James M
1/9/2002 $1,000 National Republican Senatorial Cmte
2/8/2002 $1,000 Republican National Cmte
1/22/2003 $1,000 Republican National Cmte
1/22/2003 $1,000 National Republican Senatorial Cmte
7/16/2003 $500 Toomey, Pat
8/19/2003 $250 Toomey, Pat
1/23/2004 $1,000 Republican National Cmte

My Free Speech and Press professor, Lillian BeVier:

5/14/1999 $500 Goode, Virgil H Jr
7/8/1999 $500 Bush, George W
6/2/2000 $300 Allen, George
6/5/2000 $500 Republican National Cmte
6/7/2000 $500 Bush, George W
9/7/2000 $750 Republican National Cmte
9/12/2000 $500 Lazio, Rick A
10/10/2000 $500 Republican National Cmte
3/28/2002 $500 Republican National Cmte
6/16/2003 $2,000 Bush, George W

My Constitutional History professor, Michael Klarman:

1/21/1992 $1,000 Clinton, Bill
11/5/2002 $750 Democratic Senatorial Campaign Cmte

Now that's obviously too small a sample to draw any conclusions about the political leanings of law professors, but it is probably food for thought.

Publishing Volokh

I'm very excited to hear that Professor Volokh has accepted the Virginia Law Review's offer to publish his latest work, entitled Crime Severity and Constitutional Line-Drawing. The essays editor who called to make the offer is a good friend of mine, and she was very excited to tell me that she'd gotten to call him. I'm glad he called back with good news. I've previously made clear in what low esteem I hold most of the academic writing we see submitted to the Law Review, so it is all the more pleasing to be able to publish something of the quality Professor Volokh is known for.

Stewart's Grounds for Appeal

Martha Stewart's attorneys think they have grounds for an appeal:

Martha Stewart's lead attorney Robert Morvillo intends to appeal her conviction by arguing the judge unfairly prevented him from explaining to the jury Stewart had not been charged with criminal insider trading, according to a person close to the defense team.

"We think that was important," a person knowledgeable with the strategy told CNNfn. "Some of the jury comments afterwards indicated they felt they were punishing her for the trade. We should have been able to explain you're not being asked to judge the propriety of the trade."

The article suggests that this is unlikely to succeed, though it does probe at some of the questions I was considering yesterday. I think it pretty clear that one of the large motivations for this prosecution of Stewart on lesser, collateral crimes is that the prosecutors truly believe she is guilty of the larger, underlying illegality. After all, they are bringing a civil suit where they don't have to meet the "beyond a reasonable doubt" standard:

While Stewart was never charged with criminal insider trading for her sale of ImClone, she is facing a civil lawsuit from the Securities and Exchange Commission alleging that her sale of ImClone was an illegal inside trade.

What is more worrisome is the idea that the jury has convicted her of the collateral crime in some part because they are convinced she was actually guilty of some other crimes. To the extent that Stewart's attorney was not allowed to defend against the prosecution's innuendo to that effect, I think there has been some injustice. Probably not enough to overturn her conviction, but just another difficult aspect to a case already difficult to reconcile with my competing intuitions.

OH Suspect Slipped Through

It looks like OH police had their sniper suspect within their grasp on multiple occasions:

The man authorities seek in connection with 24 Ohio shootings was pulled over twice for speeding after the attacks began last May, court records show.

Charles McCoy Jr. was ticketed for speeding May 26 -- more than two weeks after the shootings began. He was ticketed again November 4 -- three weeks before the one fatal shooting in the series of firings.

Imagine the frustration the police must feel upon learning about this. Though of course they likely had no reason to suspect or detain the man any longer than they did, this is the kind of thing that just eats at you.

This part caught my eye as well:

Pappas also said the suspect is considered "suicidal with homicidal tendencies," although he declined to say how authorities came to that conclusion.

It's a shame that people with suicidal and homicidal tendencies so often seem to act on the latter before the former. I think suicide is a tragic and terrible thing, but I don't think it's too cold-hearted to wish that a lot of the murders and murder/suicides we see were just suicides instead. Not much way to encourage such behavior though:

If you are planning to kill your family, your friends, your co-workers, or random strangers before killing yourself, please consider the alternative of simply killing yourself and wreaking no further harm or havoc on the world.

There's no hotline for that. Though sometimes I think there should be.

Blogger Sorrow

You've probably seen the story about the tragic murder of several Americans doing missionary work in Iraq:

On Monday, while scouting sites for a water purification plant, the McDonnalls and three other American missionaries were gunned down by unknown assailants in the northern city of Mosul.

Larry Elliott, 60, and Jean Elliott, 58, were new to Iraq after serving as missionaries for more than 20 years in Honduras. Among other projects, Larry Elliott drilled wells and set up water purification plants for Honduran communities.

Well, it turns out the Elliots' son is a blogger, so you can go to his site and express condolences if you're so inclined. A very sad event, losing good people just trying to bring a bit of hope to a troubled region. Thanks to James Joyner for the heads-up.

Collateral Prosecutions Pt. II

I wanted to say a few more words about what I'm calling "collateral prosecutions," where individuals are charged for crimes either committed as a result of or simply uncovered by a criminal investigation into some other potential illegality (the "root crime"), and which would not have been investigated or prosecuted on their own.

I wanted to discuss the prosecutor's side. When those prosecuting Martha Stewart (or Bill Clinton, or whomever) realize that they either cannot bring charges or win a conviction for the root crime, what should their next course of action be? Should they ignore the collateral crime? Should they prosecute for it?

My intuition suggests that it might depend on whether or not the prosecutor is still convinced that the individual really did commit the root crime, but that it simply cannot be proven beyond a reasonable doubt. I'm sure it is often the case that prosecutors continue to believe the individual is guilty of higher crimes, even if they cannot prosecute him for them. As such, they feel fully justified in sending him to jail for whatever they've got him on. And in some cases, this is pretty clearly the right result. An easy example would be Al Capone. Did anyone consider it unjust that he go to prison for tax evasion, even assuming that were a crime that would not have been investigated or prosectuted on its own? I think not, and I think this is a result of our widespread, firm belief that he was in fact guilty of many other crimes, and thus deserved to be punished.

I also think this is more true where, like in Hypothetical B below, there is a greater nexus between the root crime and the collateral crime. Perhaps the prosecution just feels less arbitrary, perhaps the collateral criminal behavior seems less excusable.

Anyhow, I suspect this explanation does much (most?) of the work in explaining prosecutorial behavior in these cases, and why we often see lesser collateral charges brought even though other intuitions suggest such prosecution seems petty or vengeful.

But let us assume for a moment that the prosecutor himself is now convinced of the individual's innocence of the root crime, though certain that they are guilty of the collateral crime. What then? Many would see any collateral prosecution as a product of simple vindictiveness, or bruised prosecutorial egos. But I still think there are good explanations for why a prosecutor would bring the case.

Most basic is the fact that they are duty-bound to pursue law violators and see them punished. Of course this is nearly begging the question, since built into a prosecutor's position is a great deal of discretion about where and when to bring charges.

One factor favoring prosecution would be public and political pressure. Though the individual would never have been investigated just for the crimes he is actually being charged with, in this case he was investigated because of now-disproven suspicion regarding the root crime. The evidence of the collateral crime was gathered, and illegalities have been shown. With so much attention, both from the media and from superiors, it might be very difficult for prosecutors to simply overlook crimes of which they have clear and convincing evidence. That sort of discretion goes on every day, I'm sure. But not under the spotlight that some of these cases bring. As such, perhaps the discretion of the prosecutors is severely narrowed, or at least they feel it was, and as such saw no other choice but to charge for the crimes they think it clear they can prove were committed.

After all, every cry of "prosecutorial overreach" can be quickly turned into a cry that "rich defendants always get off." The defendant that is martyr to some is often anathema to just as many. There is also, of course, pressure to get results at the end of a long and expensive investigation. Though that would not be a particularly satisfying explanation, it is still much more sympathetic than the portrayal of prosecutors as bloodthirsty and vengeful. And that's the idea I'm getting at generally with this post. I tend to dislike the stereotyped caricatures that we assign to various public actors, and wanted to dig a little deeper into potential explanations for what is often characterized as unpleasant and unjustified behavior.

Collateral Prosecutions Pt. I

I'm taking a short course (meets every morning for 90 minutes for two weeks) on White Collar Crime, and today's class probed into an area of prosecutorial discretion which I've long been troubled by: the prosecution for crimes either caused by or uncovered by a criminal investigation into some other potential illegality (the "root crime"), and which would not have been investigated or prosecuted on their own. I'll call this "collateral prosecution."

The most obvious contemporary examples of this would be President Clinton and Martha Stewart. I also spoke about this to some extent in my discussion last month regarding the case against Captain Yee, in which the young chaplain was originally suspected of espionage. During the course of the investigation, those charges were dropped and replaced by charges of adultery and pornography possession. Many argue that these are crimes that would likely not be investigated or prosecuted on their own, and that the prosecution against Captain Yee is a result of prosecutorial stubbornness, pride, or vengefulness.

I think this is a very difficult area to wade into, both legally and morally. On the one hand, it seems clear that, more likely than not, these individuals are in fact technically guilty of the collateral crime which they have actually been charged with. We do want to discourage misrepresentations to police and federal investigators, because in many (most?) cases they are investigating, there is some root crime to be uncovered. And even where there is not, we would rather our investigators be able to quickly discover that, so they can move on and expend resources elsewhere. Any obfuscation or obstruction is thus costly to our system, and we want the obstructors to bear the cost, as well as deter future obstruction.

And yet many of us, myself included, have an intuition that there is something unfair about the government being able to subject an individual to such intense scrutiny, and then charge them with some collateral crime. Perhaps this is because we do not think our own lives would withstand such scrutiny. Considering the size and duration of the various investigations into the Clintons, this seems a likely source of sympathy for them. It is even more true when the collateral crime is not perjury, false statements, or obstruction in the course of the investigation, but is in fact some charge wholly unrelated to the original investigation. It seems the case against Captain Yee would be a perfect example of this. Here we have a young officer suspected of terrorism-related espionage. The whole weight of the military criminal investigation system bears down on his life, and lo and behold, he cheated on his wife and possessed pornography. How confident are each of us that a similar invesigation would leave us in the free and clear? How confident are we that we would not be caught in any untruths, any concealment?

And even if we are confident that we ourselves would emerge unscathed by criminal sanction, perhaps we see something unseemly about the process itself. That these people should have to undergo such an ordeal only to be caught in these minor crimes, which would not have been investigated or prosecuted on their own.

I think, however, that this sympathy can go too far. One line I would draw would question what the nexus is between the collateral crime and the alleged root crime. Let's take false statements as an example.

Hypothetical A: An individual is being investigated for insider trading (of which he is totally innocent), and is being questioned about his phone records, to see which calls came to and from his stock broker. One of the recurring numbers is a woman he is having an affair with, which he does not want to divulge (maybe his wife is there, who knows). He tells the investigators it is his brother's number. Has he committed a crime? I'm not yet clear on the details of these laws, but let us stipulate that yes, he has technically violated the law against false statements.

Hypothetical B: Now let us take the same individual, still being investigated for insider trading, still totally innocent, but now let us say that phone calls really were to and from his stock broker. He tells the investigators it was his brother. Let's stipulate that this is the same technical violation of the law.

Do these situations seem different? I think they do. I think the nexus between the lie and the investigated root crime in Hypothetical B make that a more severe case. Whether it be because we think the individual is more culpable (e.g. they are actually trying to divert the investigation, rather than simply hide an affair) or because it comes at greater cost to our investigators (since the lie effects the main focus of their investigation), I think we can distinguish between the two.

I have to run to class now, but I'll have further thoughts in a few hours.

The Socialist Victory in Spain

It is hard to know what to make of the Socialist victory in Spain, and I think this is true for a few reasons. For one, it is virtually impossible to disaggregate the various causes for this electoral outcome. In particular, we cannot assess how much of a effect the recent bombing had. Nor is it clear what effect that would be. Polling before the bombing suggested Aznar's Populist Party would win re-election, but they did not. As Kevin Drum has pointed out, there seem three broad possibilities to explain this: 1) the Socialists would have won without the bombing. This still leaves many questions unanswered, not least whether the ruling party's support for the Iraq war was a primary cause of opposition. 2) The bombing itself caused a shift in support, largely because the electorate blamed the Populists for angering al-Qaeda by supporting the Iraq War. 3) The bombing itself did not shift support, but the Populist Party's seemingly opportunistic handling of the investigation (trying to pin the blame on ETA) angered a grieving nation.

I should think that the third explanation raises few interesting questions. It seems pretty straightforward that misuse of national tragedies for blatant political purposes is not a smart strategy in the days before of an election. All President Bush has to do is include video from 9/11 in his campaign ads and he gets a firestorm of criticism.

The second explanation just does not seem highly plausible to me. I don't see a larger number of Spaniards saying "they blew up a lot of people, let's stop fighting against them" than saying "now that they are coming after us, we really need the Populists in power." I'm sure there are some people who said both. But would there really be so many more of the former than the latter that it would change the election's outcome? Now I have to concede that Spanish popular opposition to the war was always extremely high, so perhaps I am underestimating how betrayed they felt by the present government. But if that were true, than I'm skeptical that the Populists would have won anyhow. That level of opposition to the Iraqi war, and blame on the Populists, would seem to me to suggest that the first explanation was just as likely as the second. What may have changed, however, is not individual voter's views. What may have changed, and what I consider the strongest support for the second explanation, is that voter turnout changed. Perhaps those who opposed the war and opposed the Populist Party felt like they had that much more reason to go the polls, now that al-Qaeda had struck home.

Let us say though, for argument's sake, that there are Spaniards who did follow the logic of "al-Qaeda attacked us because of the Populist Party's support for the war in Iraq, and thus I am going to vote for the Socialists." There were surely some such people, though it is impossible to know whether there were enough to have changed the results. Here the second major difficulty is presented. How do we interpret this position? Do we read it as cowardice, that they are simply afraid of terrorist attacks and will do anything to avoid them? That they are caving in to terrorists? That this is a victory for al-Qaeda?

I don't buy that. Opposition to the war was so strong, that surely these people are not saying "I supported the war and I supported the Populist Party before, but because of the bombing I do not." Instead, it seems more likely that their position was something like this: "I have always opposed our involvement in Iraq, but until now the costs have been sufficiently low that it was not a deciding factor in my voting preferences; that is no longer true, and I'm no longer willing to overlook a misguided policy now that it has cost so many lives."

This latter position seems pretty defensible to me. Terrorist attacks are a cost to be taken into account, just like the effect on domestic crime rates is taken into account when debating crime legislation. If the costs of the policy outweigh the benefits, it is easily opposed. For those Spaniards who never saw much benefit to the war in Iraq, it is pretty obvious that any large-scale terrorist attacks are too costly.

Just because some in America would weigh the costs and benefits differently does not mean that Spanish voters have done anything cowardly or irrational.

Of course, this is all speculation hampered by a very limited understanding of Spanish politics. Unfortunately, that is true of much of the blogosphere's commentary on this incident. I have no comprehension of the domestic political differences between the parties, nor their general foreign policy approaches. Thus trying to understand the Spanish electorate is highly speculative for me.

What I think I can do is try to identify with the Spanish voter on a more general, abstract level. How would such an attack effect my voting preferences? If I already felt that my country's policies were misguided, the fact that terrorists also thought my country's policies were misguided is not much of a reason to change my vote. However, if my pre-attack policy preferences were at least somewhat based on a view of terrorism that was altered by the attack, then perhaps those preferences should change as well. I think this is a key area where American and Europeans part ways. For us, 9/11 was a watershed moment, the first truly successful, devastating foreign terrorist attack on our soil. We see the "war on terrorism" as starting on that date, and most of us had little or no opinions on terrorism in our general foreign policy preferences. Thus, for many Americans "9/11 changed everything."

We take that attitude, and we project it onto Spaniards. We expect that they should have the same reaction to this bombing as we had to ours. Or at least some similarly visceral, world-view altering reaction. And yet Europe has had a much different experience with terrorism than has America. We did not experience the IRA, the Red Brigades, ETA, etc. We had Patty Hearst. So even here, on this abstract level, I think it difficult as a young American to understand how this bombing appears to the average Spaniard.

The Secret Agent, Terrorism, and Dual Monologues

I finished Conrad's The Secret Agent last night, and I must confess to genuine disbelief that it was written by the same author as Heart of Darkness. Though both works of tremendous value, they are so disparate in their style and setting as to serve as true testament to Conrad's amazing life experience and his quality as an author. As such, I can recommend The Secret Agent both to those who loved and those who hated Heart of Darkness.

Of particular note in distinguishing the novels would be these two points: 1) The Secret Agent has a bit more plot. It is still not the focus of the book, remaining always in the background with pivotal events often described after the fact. Yet there is still a better sense of why things happen, what led from one thing to the next, and even occasionally a sense of dramatic tension. 2) The characters are much fuller. Conrad purposefully and exquisitely left the characters in Heart of Darkness with a great deal of mystery, Kurtz being the most obvious example of this. In The Secret Agent, we get a better sense of the history, the motivations, and the sensibilities of the characters. We get inside their heads. In fact, several of the characters are as well-crafted as some of Dickens' more memorable creations, quite a feat for an author trying to operate more on our intellect than our emotions (in contrast to Dickens).

Insofar as the book concerns revolutionary terrorism at the turn of the 20th Century, I was constantly reminded of Albert Camus' play, The Just Assassins. Much of the early conversation between Conrad's various revolutionaries could probably have occurred just as easily amongst Camus' characters, though of course colored by the distinctive philosophy of that author. What this really brought to mind, however, is just how much about terrorism has changed, and yet how little. The thing that seems to have changed most is merely the scale. The anarchists and socialists of the late 19th century were simply incapable of the sort of mass destruction which al-Qaeda or Hamas are capable of. They did not have the training, the organization, or the equipment. The other big change seems to be the targets. Instead of targeting government buildings or other property, or at most individual political leaders, today's terrorists purposefully target civilians. It seems they are also more likely to be foreigners operating in their enemy's territory, rather than homegrown discontents.

What has stayed the same is the purpose: to frighten the populace, to effect public opinion and public discourse in disproportion to their strength and support, to provoke a fierce but misguided response by the government. Sadly, it was all too easy to see universal themes of discontent and discord in Conrad's revolutionaries.

And yet it was by no means entirely a political novel. My favorite scene occurs late in the book, between one of the main characters and his wife. I will give no further details on what they discuss, as it would ruin the plot. Instead, I'll say that what I loved was just how oblivious they were to what was going on in each other's heads. Conrad does a tremendous job giving the reader the inner thoughts of each of them, and it is almost as if they were occuping wholly different dimensions. This got me thinking about just how many of our daily conversations must be this way. Perhaps all of them. If I had to give it a name, I'd call them "Dual Monologues." The two people think they are having a conversation, think they are communicating, but in reality they are miles apart in their thoughts, intentions, understandings. They have little or no knowledge of what is actually going on in the other person's head, and as such have little comprehension of what the conversation means to that person, how they are hearing what is being said, how they are meaning what they say. The conversation that Conrad presents is such an extreme example of this that it is impossible to miss the difficulty that must surely attach to all our personal interactions to some extent.

It is something I have and will continue to grapple with: recognizing that words do not always sound or mean the same to those who hear them as those who say them. This means being mindful of my own words, being careful that proper tones are taken, that jocularity is not taken as harshness, constructive criticism not taken as condemnation. It also means being a more mindful listener, looking to the motivations and the state of mind of the speaker, the undercurrents of the dialogue. It is a lifetime endeavor, but I think a worthwhile one.

De Novo

Four of my former co-bloggers at En Banc have launched a brand new blog called De Novo. They are off to a great start with a truly excellent and original idea: a recurring blogging symposium. The new blog should become an instant must-read, and I'm glad to be able to say that it is a group blog in the truest of senses: they planned, designed, and executed the site as a group, and I think it shows. Go check them out.

Confessions of a Masked Blogger

I have got to be honest here. This has not been the greatest semester for me. I have fallen behind in all of my classes, and do not even have the excuse of interviewing, as I did last semester. I am tired of being in school, after 19 straight years of it. I feel totally disconnected from the world, without power or responsibility for anything but myself. And this is a step backwards for me, even though I did not take time off to work before law school.

Having been one of only 4 members of Army ROTC in my class, I had a lot of responsibility my junior and senior years of college. I functioned primarily in the cadet non-commissioned officer positions, because that was what I was good at. I was good at the practical side of things: man-management, supply, scheduling, discipline. Most of all, I liked having people depending on me, knowing that my actions every day were having an effect, hopefully positive, on their lives.

That may seem silly and quaint from the perspective of those who have had real jobs and real responsibility, but compared to what I have now in law school, it was wonderful.

Now I could have joined student groups here at the law school, perhaps even earned a leadership position. But none of them really appealed to me. At least not enough to overcome my 1L focus on schoolwork, on grades. And that focus paid off, at least as much as it could. I made law review. But I did not pursue a leadership position in that organization either, choosing simply not to apply. Why? I've made it no secret that I have a strong distaste for legal academic journals and legal academic writing. I think there is too much of it, with too little quality. Don't get me wrong, I do not think I am capable of doing much better. There is simply too much pressure on professors to publish, thus too much literature, and the average quality is inevitably pretty low.

Even if it were not, I do not really buy the idea that law students are qualified to do anything more than the menial editing and citecheck work that they end up doing. Lofty ideas of shaping the course of legal theory or doctrine are quickly dissolved. Whether this view is right or wrong, it is how I feel and I think it clear that someone with such views is probably better off not seeking leadership positions on a law journal. So even though there are opportunities there for teamwork, camaraderie, responsibility, it is all done in the pursuit of an activity which I do not really respect. Just not for me.

Yet I am still an editorial board member, and that means citechecks. Probably two more this spring, plus one during the week after school ends in May. Still a lot of time. And I have to catch up on my work. So my options are limited in the pursuit of what I've come to think must be the only school-related activity which could provide any measure of fulfillment: pro bono work. I've been in law school for over three semesters and have yet to volunteer for anything. I had easy rationalizations last year, focusing on schoolwork to make law review, and last semester, with interviews taking over my life. But this semester I've had no such excuse, and I won't next year. So that's an area with a lot of potential and I'm going to start looking into it.

My normal attitude has long been that school cannot provide that sort of fulfillment. It is an academic experience, which is valuable, but there must be external pursuits for true happiness. I did ROTC in college, was in a fraternity, collected live bootleg CDs, went to a lot of concerts, visited the Cambridge Zen Center and read a lot of books. In law school, I've done the latter, but none of the rest. Instead, my other primary hobby has been this. Blogging. And though overall I am quite pleased that I became a blogger, it has been a rollercoaster ride for me. It is very easy to lose track of why I blog, and without that purpose in mind it can seem rather aimless, or even a chore. Not the sort of thing I like to spend my free time on.

Long, long time readers will know that I've expressed some of this dissatisfaction before. The truth is that though I have been largely a legal and political blogger, those are not the things that I really want to be blogging about. At least not all the time. That was one of the motivations for En Banc: I could do some legal blogging there, and make this solo blog more personal. Unfortunately, having two blogs proved too much work and I ended up shutting this one down. Then I was left with an even worse situation: I was on a group blog devoted almost entirely to legal and political blogging, even though that was exactly what I was trying to get away from. After agonizing over what to do, I decided to shut down En Banc. I did it quite suddenly, and did not give either my co-bloggers nor the readers adequate warning or discussion. Some were confused about why I did not simply hand over EB to my co-bloggers, but in my mind En Banc was at bottom a creation of mine, a failure of mine (in my mind), and I thought it better that we make a clean break. I think it has worked out pretty well, as my former co-bloggers are about to unveil their new blog, wonderfully crafted by them as a group, the way it should be.

That was a difficult experience. A lot of harsh things were said about me, and perhaps they were deserved. At best, I was very guarded about discussing why I had shut down En Banc and that left people with nothing to do but speculate. At the time my reasoning just felt too personal to splash on the web site or give to strangers, but I tried to explain it in private emails with my co-bloggers. Some were satisfied, some not.

But if I had thought shutting down En Banc would be some sort of cure-all, I was wrong. It was just one problem and not the root. If everything else in my life were giving me pleasure and fulfillment, I'm sure my displeasure with En Banc could have been dealt with and solved. But I am still glad I shut it down, as it was the straw breaking this camel's back. Something had to give, and in the scheme of things a website is a pretty easy thing to let go off. The real root problem was the restlessness I've discussed above, the feeling that, so long as I'm in school, I have little aim, purpose, or responsibility. And to the extent that blogging exacerbates rather than alleviates that feeling, it is of little use to me.

As such, I'm going to try again to make a change in tone around here. I will not discontinue my legal and political blogging, as those are still things that interest me. But I no longer want to think of myself as a political blogger. I need more of a personal outlet than that. Now that does not mean I'm going to start talking about my girlfriend or my friends here; I have pretty high walls when it comes to those things. But I want there to be more about what I am thinking, what I am feeling. Not just my reaction or analysis of this or that court decision or news story. We'll see how it goes.

Day of Mindfulness

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is Thich Nhat Hanh's commentary on the Third Precept: Sexual Responsibility.

Bombings in Madrid

I'm sure everyone has seen the horrible news out of Madrid today, with multiple bomb blasts in train stations killing almost 200. There is a lot of confusion about where responsibility might lie. ETA, the Basque separatist terrorist group, is the usual suspect any time a bomb goes off in Spain, and rightly so. Initial tests suggest the explosives involved "were a type of dynamite that the ETA normally uses."

Yet my hazy memory has ETA as employing more targeted attacks, car bombs and assassinations, rather than the mass murder of civilians seen here. There are some incidents that go against this trend (the FOX story cites a 1987 supermarket explosion in Barcelona). But if that is generally correct (and I'm not sure it is), then I think there are three likely explanations:

1) This was not an ETA attack. The most likely alternative would be al-Qaeda or a similar Islamist terrorist group. A spokesman connected to ETA denied responsibility for the attack and pointed the finger at Arabs:

"The modus operandi, the high number of victims and the way it was carried out make me think, and I have a hypothesis in mind, that yes it may have been an operative cell from the Arab resistance," Otegi said.

Not entirely clear how credible this guy is, but it is at least one indication that ETA might not have been involved.

2) ETA was involved, but coordinated with another group that encouraged and assisted in this attack. The possibility here is that ETA leaders and/or operatives have been networking with (most likely) al-Qaeda, either executing a plan designed by the Islamists or finally implementing their grandest designs with the newfound assistance of the well-funded and well-connected Arab group.

3) ETA planned and executed the attack alone. In this possibility, I think the change in tactics might easily be credited to the bar that has been set by al-Qaeda in its various Saudi bombings, and of course 9/11. ETA is no longer satisfied by the publicity and response to their traditionally smaller terrorist acts, and planned a larger, more deadly, and more random attack on civilians in the style of the Islamists.

It is hard to say which of these possibilities is the most worrisome. Scenario 1 raises the specter of a still active al-Qaeda, able to plan, organize, and execute a highly deadly attack in yet another Western nation. Scenario 2 involves synergistic cooperation between terrorist groups with little in common other than their violence and their enemies. Scenario 3 suggests that al-Qaeda is no longer the only group able and willing to engage in mass terrorism against civilians, and that the response to al-Qaeda has not discouraged those who would copy their tactics. None of these explanations are particularly reassuring.

Army Out, Marines In

If there is one easy to follow guideline governing American force deployment, it is probably this: the Marines go in first, and then the Army relieves them. That's what the Marines are trained for: rapid deployment and a quick, shocking, overwhelming attack capability. So when we see the Marines coming back in to replace the Army, I think it is safe to say that something is probably wrong:

The I Marine Expeditionary Force is replacing the Army�s 82nd Airborne Division in the country�s contentious An Anbar province. In the western portion, the Twentynine Palms, Calif.-based 7th Marine Regiment is replacing the Army�s 3rd Armored Cavalry Regiment, which is returning to its home in Fort Carson, Colo., this month.

The story does not add much information for analysis, but I don't think it takes much speculation to posit that the return of Marines likely means a strategy shifting back towards the Marines' great strength: violence of action. Though capable of a wide range of missions, the one in which the Marines really outshine the Army is in hunting and killing. That these units are being brought back to the most volatile areas is surely no coincidence.

Army Retraining

Since the day the Cold War ended, the Army's allocation of resources between its internal branches has been outdated. Now, the Army Reserves are getting a massive re-training and re-organization:

Strapped to fill critical jobs in places like Iraq and Afghanistan, the U.S. Army is retraining thousands of tank operators, artillerymen and others who were essential in the cold war to take jobs in long-term stability operations: military police officers, civil affairs experts and intelligence analysts.

The aim is to redesign the Army to be faster to the fight, to relieve the stress on a relatively small number of U.S. Army National Guard and Reserve soldiers who have been called up repeatedly in recent years, and to tap 500,000 reservists who have not been activated at all in the past decade. Since 1990, according to the Defense Department, only 7 percent of the 876,000 reserves assigned to specific units have been involuntarily mobilized more than once.

And despite recent news suggesting that Air Force retention was going well, the Army appears to be having more difficulty:

We have too few guard and reserve forces with certain skill sets that are in high demand and too many guard and reserve with skills that are in little or no demand, Rumsfeld told Congress in late February.

Getting this balance right is critical for the Army's war- fighting abilities and the long-term health of its recruiting and retention efforts. Army officials said this week that retention rates for active-duty and reserve soldiers were lagging despite re- enlistment bonuses of at least $5,000.

If we continue to stress these very high-use units, we risk losing them, said Thomas Hall, assistant secretary of defense for reserve affairs.

I am not qualified to pass judgment on whether this is the best re-organization strategy, but it has been clear for some time that change was much needed to meet the challenges of our current international situation, and it is a relief to see the Army making large-scale efforts in that direction.

A Day of Mindfulness

(I am leaving this afternoon to spend the weekend in Colonial Williamsburg. I do not want to miss my normal weekly Zen update, so I am posting it a day early. Since I won't be able to update this page with new content until I return, I will include the full text both here and in the Zen section.)

Each Saturday I make an effort to devote the day to mindfulness. As part of that effort, I will largely refrain from blogging on Saturdays. I will, however, provide a weekly update to the section of this website on Zen.

This week's offering is a talk given by Zen Master Seung Sahn entitled What is Happiness, What Is Sadness?, given in London in 1978.

What is Happiness, What Is Sadness?

Long ago in China there was a famous student of Zen Master Ma Jo named Han Ong. Everyone said to him, "You are lucky, you are happy." Then he said, "What is luck? What is happiness?" He always spoke like this.

He had a good horse, which he liked to ride every day. One day the horse disappeared, so everyone said, "Oh, are you unhappy? Are you sad?" He said, "What is sadness? What is happiness?" No feeling. His horse ran away, but he only said, "What is sadness? What is happiness?" Everyone said, "This man has no feeling.'' Usually, if someone is attached to something and it goes away, then he is very sad. But Han Ong only said, "What is sadness? What is happiness?''

A week later Han Ong got a very good horse; we say, jun me. This means it only has to see the shadow of the whip and it runs. This is a very clever horse. So everyone said, "You are happy. You are lucky." He said, "What is luck? What is happiness?" Only this. No feeling. Then everybody said, "This man is very lucky." His son liked the horse and rode it every day. He only had to mount the horse and it would go, so he rode around and around, very happy. Then one day while riding, he fell and broke his leg. So everyone said, "Ah, I am sorry your son broke his leg. Are you sad?" He said, "What is sadness? What is happiness?" No feeling.

Soon after this, there were many wars, with North China and South China fighting each other. All the young people had to go to the army. But Han Ong's son had a broken leg, so he could not go; he stayed at home and only helped his parents. His leg was not so bad, so he could work in the garden and help them with their chores. Everybody said, "You are lucky. You are happy." So he said, "What is luck? What is happiness?" This style speech.

This is Han Ong's famous, "What is happiness? What is sadness?" His whole life he used only this speech to teach other people. Outside, happiness appears, luck appears, sadness appears, but he is not moving. "What is true happiness? What is sadness?" Not moving. This mind is very important. Originally there is nothing. If you attach to something, then you have luck, happiness, sadness, suffering -- everything appears. If you don't attach, this is clear mind. Then there is no sadness, no happiness, no unhappiness -- they all disappear. So if you attach to name and form, if you attach to words, then your mind is also moving. Don't attach to anything. Then your mind is enough. Then appearing, disappearing, whatever happens outside doesn't matter. Then teaching other people is possible. So Han Ong's friends and all his students learned from him. Only one word: "What is sadness? What is happiness?" This means your mind moving is no good. If you make happiness, if you make sadness, that's no good. Don't make anything; don't attach to anything; don't hold anything. Then you are complete. This was his teaching.

So our Europe trip is almost finished. We too have had many kinds of happiness, appearing and disappearing. Put it all down, O.K.? Only go straight: "What is luck? What is happiness? What is sadness?" We have had a lot of luck, a lot of happiness, a lot of suffering, a lot of sadness. But what is happiness? What is sadness? What is luck? Only go straight.

The Day After

Now that the Democratic primary season is over, the media is desperately in search of the next story line. Unfortunately, here's a sign of the fair and balanced things to come, all oriented towards making this the least informed electorate yet. I'm almost frightened to think of just how little role the real and important differences between the candidates will play in the election. These are the current top headlines from CNN, CBS, The New York Times and FOXNews, respectively:

cnn_040304.gif cbs_040304.gif nytimes_040304.gif fox_040304.gif

I'm not picking on FOX for ignoring the 9/11 ad issue. Quite the contrary, I actually think it's a pretty silly story the others are running. But those are going to be our choices for the next 8 months. We can read dumbed-down stories brimming with hostility, fluff pieces ignoring real flaws, or nothing at all. This is just my way of paying homage to the biased, low brow coverage we can expect from media all over the spectrum. Here's to the circus show of tangents and irrelevancies that make up the presidential campaign season.

Blackmun's Papers

It's not often that deceased Supreme Court justices make the news, but today is one of those days. Five long years after his death, Justice Harry Blackmun's much-anticipated private papers have been unveiled:

A vast new trove of material on the hidden workings of the U.S. Supreme Court becomes available today as the Library of Congress opens the papers of former Justice Harry A. Blackmun, covering 24 years of internal court deliberation on issues such as capital punishment, school prayer and especially abortion.

They provide a striking self-portrait of the author of Roe v. Wade, the 1973 opinion legalizing abortion, in which Blackmun is at first oblivious to its potential controversy ("I didn't appreciate it," he says) and then hounded by it for years, buried in mail pro and con, picketed at a speech, wishing it would recede but simultaneously defending it from successive challenges.

Some of the most interesting documents have been put online by the Library of Congress. Though the full archives won't be available until tomorrow, exclusive previews were given to NPR and The New York Times, and Linda Greenhouse at the Times has a long story on what the papers tell us about Harry Blackmun:

They disclose behind-the-scenes shifts during decision-making and the origins of important rulings, including Roe v. Wade. The papers show the disarray of the Burger court and the relative calm of the Rehnquist court. They also tell a very human story: how the long friendship between Warren Burger and Harry Blackmun could not survive the cauldron of their joint service on the nation's highest court.

And they help explain one man's journey. Justice Blackmun did not simply stand still while the court around him became more conservative. His movement across the court's spectrum was not just relative, but absolute; while the court went in one direction, he went in another.

Greenhouse goes on to detail Blackmun's movement on capital punishment and the catalyst that was Roe v. Wade. There is no worthwhile way to summarize or excerpt, and it really is an article worth reading from start to finish.

The Times also has a story detailing what can be learned from the papers regarding other justices, like in this exchange over abortion between Justices Kennedy and Blackmun:

Justice Kennedy then sent Justice Blackmun a handwritten letter. "After much hesitation, I decided it would be best for our collegial relation and, I hope, mutual respect to tell you that I harbor deep resentment at your paragraph in the dissenting opinion," he said. "You say my hyperbole is to incite an inflamed public. To write with that purpose would be a violation of my judicial duty. I am still struggling with the whole abortion issue and thought it proper to convey this in what I wrote."

Justice Blackmun replied the next day. "In the thought that it will help to assuage your feelings," he said, he would limit himself to calling the opinion inflammatory in "result" rather than in its purpose "This should help, but, of course, I do not know whether it will," he concluded.

Or this admission of frustration by Scalia at the end of the 95/96 term, when then-retired Justice Blackmun sent Scalia a note of encouragement:

Replied Justice Scalia: "You are right that I am more discouraged this year than I have been at the end of any of my previous nine terms up here," Justice Scalia replied. "I am beginning to repeat myself and don't see much use in it any more. I hope I will feel better in the fall. A cheering note from an old colleague � one whom, God knows, I was not always on the same side with � sure does help."

Needless to say, all of these stories are worth reading in their entirety. This truly is a treasure trove.

Tortious Bad Blood

It is times like these that make me wish I'd paid more attention in tort law. So many interesting cases! The latest is a Jehovah's Witness suing a hosopital over an allegedly unconsented blood transfusion, with an interesting twist concerning malpractice damage caps:

Claims based on provision of medical services without proper informed consent typically are framed as medical malpractice. A battery claim, however, could sidestep Florida's new statutory cap on noneconomic damages in malpractice actions. The suit cites no specific injury to Cordero other than "trespass against his body."

"The battery charge is based on my client's total lack of consent," said Cordero's attorney, George Bender, a partner at Bender Bender & Chandler in Coral Gables, Fla. "He is extremely devout. It is his deep and firm belief that transfusion is unacceptable for religious reasons."

The story also provides an interesting history of the Witnesses' abstention from blood transfusions and the medical community's reaction. It seems pretty clear to me that, since Witnesses have a right to refuse this treatment, any nonconsensual interference with that right ought to be subject to some remedy in tort. Whether battery makes sense, and whether it can be used as an end-run around the malpractice damage limits, remains to be seen.

Soldiers' Nonmonetary Incentives

Some anecdotal evidence suggests that the Army's policy of trying to buy re-enlistment through increased bonuses may not be as effective as some think. It is an interesting question, isn't it? What is the price point for agreeing to stay in Iraq? On the one hand, money is probably at least some part of every soldier's re-enlistment calculations. The young soldier who says he wouldn't re-enlist for "even a million dollars" is probably mispredicting his own behavior, but it is a rather unlikely scenario so his hyperbole is well-taken.

But just how much weight does the money have? I think our intuition (if not our idealism) thinks of soldiers as being motivated more by camaraderie and patriotism than a paycheck:

First Lieutenant Colin Crow, from Louisiana, said the extra cash might be an incentive for some troops, but for most soldiers "it's not the money, it's the guys you're serving with and the job you're doing."

And yet when the Army wants these soldiers to re-enlist, they go straight to the wallet. And maybe they have good reason:

Private First Class David Quintero, from Texas, said he believed the bonus might encourage "soldiers who are sitting on the fence over to reenlist."

"But if I had something better lined up in the private sector I probably wouldn't," he said as he sat in his Humvee vehicle on the Army base here in the palace compound of the ousted Iraqi leader.

Particularly when a bad economy is one of the Army's best recruiting tools, increased monetary benefits ought to be especially useful. It increases the economic contrast between re-enlistment and private sector opportunities, and if that is the deciding factor than the Army is on the right path. That said, however, money is clearly only a piece of the puzzle in each soldier's calculations. Continue to increase the costs of service, the length of separation from family, the risk of death in foreign lands, and the benefits will have to rise pretty high to encourage re-enlistment.

So high, perhaps, that service can no longer be fully voluntary. We've seen the beginnings of that with various stop-loss initiatives, and murmurs about a new draft just won't seem to go away. I do not think it will be necessary or desirable, but it not inconceivable that at some point the compensation required to keep soldiers re-enlisting may outweigh the benefits of an all-volunteer force.

Further Thoughts on the Assault Weapons Ban

I'm sticking to my position that the defeat of gun manufacturer immunity in exchange for non-renewal of the Assault Weapons Ban is a victory for Democrats and gun control proponents. Though the liability issue has been less salient with a Republican administration in office (and thus no federal support for lawsuits against gun manufacturers), in the long run I think it is an issue that really scares the makers of firearms. That's why the Republicans were pushing it so hard, and why they'll continue to do so.

On the other hand, the Assaults Weapon Ban has always been little more than a cosmetic canard that does little to prevent gun crime. It does not even really do much to ban the very weapons people think it bans. Today, with your credit card, you can buy a near replica of the Army's excellent M-4 rifle. I know, because I owned one last year before deciding it was too much money to have invested in a single firearm. The only differences? There's no flash suppressor, there must be a pistol grip, and the buttstock is not collapsible. Real effective, huh?

Not at all. And that is why, though an excellent public relations tool for Democrats (black guns are scary), it was never of much functional value and will not be much missed if it expires. On the contrary, it is the perfect gun control poster issue for Democrats, not entirely unlike the partial-birth abortion ban for Republicans. Just as even many pro-choice voters are uncomfortable with these late term abortion procedures, so are many hunters and handgun owners uncomfortable with military-style weaponry in the hands of private citizens.

And yet both laws cover such a small number of cases, they serve better as PR vehicles than as actual legislation. If the AWB expires in September, expect to hear about it in closely contested races come November. I think the Democrats are better off letting the gun issue die a quiet death, but if they choose to continue to fight, this is the best terrain they're going to get. Unfortunately for Democrats, the vote came in such a convoluted and confusing manner (heck, most Democrats and most Republicans voted against the bill) that it may not be an easy sell.

In addition, Bush may have bought himself some cover with his continued public support of the AWB, and I've suggested before that he may have done so knowing full well that congressional Republicans would never let it pass, thus keeping the NRA heat off his back. Looks like that strategy has worked pretty well, but we won't know for sure until September.

Short Primary Success?

Was the Democrats' shortened primary a success? Kevin Drum says yes. He cites three reasons: 1) it ended early, giving the nominee (Kerry) plenty of time to prepare for the race to November; 2) it forced the candidates to get on message early, making them seem relatively polished by the time anyone starting paying attention; 3) it was exciting, which resulted in lots of good news coverage for the Democrats without giving Bush a chance to really fight back or control the news cycle, which has traditionally been one of the incumbent's greatest strengths.

My intuition says Kevin is essentially correct, but it is really too speculative to know. It's been a decade and a half since the Democrats had a well-contested primary season, and even then there was no incumbent to challenge. So it's not very easy to disaggregate all the changes which have taken place, including not least the Internet. For example, I don't think the "electability" issue which seems to have so strongly favored Kerry is a result of the shortened primaries. But whatever the reason, I think Kevin is right to suggest this new primary system worked out almost perfectly.

Whether it will end up being much help to the Democrats is another story. There are probably as yet undetermined costs to the process. I can think of one. As a good Democrat, Kevin failed to mention what many consider evidence of a potentially fatal flaw: it resulted in a candidate named John Kerry.

Heart of Darkness

I just finished Heart of Darkness after two days of reading, which considering its mere 100 page length ought to tell you something about just how dense a novella it is. In fact, among those who've seen me reading it in the hallways the past couple days, the density of the book is the one thing most remembered. I'd say the other really striking thing is just how serious a book it is, and how seriously it takes itself. I do not think many would question what an important and brilliant novel David Copperfield is, but read it side-by-side with Conrad and the comic overtones that Dickens employs stand out all the more starkly. Heart of Darkness is, appropriately, almost entirely devoid of humor. Combine that with its density and it is little wonder that high school students have cursed the name of Joseph Conrad for generations.

As I said yesterday, it is the recent unpleasantness in Haiti, combined with our efforts in Iraq and Afghanistan, which finally inspired me to re-read Conrad's novella. I'm not sure I found exactly what I was looking for, but I think the light/darkness motif has at least a couple potential interpretations which would be of some relevance.

The first intepretation of light/darkness I see would be as a contrast of civilized versus savage, at least in the eyes of Marlow and his European contemporaries. One line early in the text stood out, and strikes me as the lynchpin not only to understanding this aspect of the book, but in some ways understanding the relationship Americans (and Europeans before us) have with what we consider the dark and troubled parts of the world:

And this also has been one of the dark places of the earth.

With that line, Marlow interrupts the unnamed narrator's account of the great adventures and conquests that have been launched from London and the Thames, and conjures images of the Romans landing at Britain and finding savage barbarism wholly inferior to their Roman lifestyles.

It seems there are two ways to read this line. Either as a warning to imperialists who rest their claims on inherent superiority, or as encouragement to those who can find hope in the fact that even the great civilizations of today started somewhere. In other words, who can tell what greatness will arise from the less modern parts of the contemporary world. I think it fair to say that Conrad's novel is primarily, and rightly, considered to harbor strong anti-colonial sentiment. But I think there is a touch of hope in that line about dark places, suggesting that even from the darkness, light can emerge.

The second interpretation of light/darkness I see is a contrast between good and evil. And here, the two important questions seem to be: 1) Is there really a darkness, or is it just the condescending perspective of the white Europeans that sees such a darkness?; 2) If there is a darkness, how can we be so sure we didn't just bring it with us? I think this latter question is particularly important for current American forays into foreign lands. Our goals and conduct in those pursuits tell us at least as much about ourselves as they do about the objects of our behavior. If we see a darkness in these places, perhaps it is a darkness revealed in ourselves, carried into foreign lands and exposed under fire.

Haiti and High School English

Kevin Drum has essentially my view of the situation in Haiti:

Aristide is no poster boy for human rights, but he was elected fair and (mostly) square. The rebels, by unanimous consent, really are just a gang of thugs, but it's possible they're better than Aristide. Or maybe not. What's more, the United States might have been backing them with arms and support. Or maybe not.

Whose fault was the breakdown in Haiti? Was Aristide just reaping what he sowed? Maybe. And did Aristide leave of his own (sort of) free will, or was he forced at gunpoint by U.S. troops. Who knows?

As a matter of policy, should the United States always back democratically elected leaders? Or is it OK to sometimes back the opposition, even armed opposition, if the elected leaders have clearly failed?

Yeah, it's a mess. And for those who claim to know what the right answer is? I'd say Vaclav Havel's wisdom seems particularly apt:

Keep the company of those who seek the truth, and run from those who have found it.

In fact, and I know this is quite a tangent, the only thing I gathered from the whole situation is that I should read Conrad's Heart of Darkness again. It's been sitting on my shelf, and what with our nation-building in Afghanistan, Iraq, and now Haiti (again), I thought it was about time. The book is apparently (and unfortunately) destined to be perpetually timely.

It's been about 8 years since I was tortured with that novel in high school, and I have been wanting to rehabilitate Conrad for some time. There are a number of authors who are ruined forever for most high school graduates because of the way they are taught in the classroom. Off the top of my head: Conrad, Dickens, Shakespeare. In other words, the greatest writers in the English language.

If it happened to me, if I learned to dislike these authors because I was forced to read A Christmas Carol and Heart of Darkness while keeping a "diary" of important quotes and being inculcated with the teacher's interpretation of the text, then I'm sure it happened to millions of other young Americans. I've had the good fortune to be motivated enough to reclaim these authors. It started last year with Dickens' Great Expectations, which I loved, and continues now with Heart of Darkness and David Copperfield.

Senate Votes to Extend AWB

The Senate voted today to extend the Assault Weapons Ban past its current September expiration, as well as closing a loophole in gun show sales:

By a 52-47 vote, the U.S. Senate on Tuesday moved to reauthorize the 1994 assault weapons ban, which is to expire in September.

The measures, along with another that allows off-duty and retired police officers to carry concealed weapons across state lines, are attached to a Senate bill that insulates gun manufacturers from potentially ruinous lawsuits except those involving illegal sales or defective parts. That bill was still awaiting a vote.

The Senate also voted, 53-45, in favor of an amendment that closes a loophole on sales of weapons at gun shows.

I predict both of these amendments will fail to pass the House, but it'll be interesting to see what happens in conference. Many a progressive Senate amendment has died in conference, and I wouldn't be at all surprised to see that happen here.

UPDATE: Wow. With those amendments attached, the gunmaker immunity bill was defeated 90-8:

Idaho Republican Sen. Larry Craig, the bill's principal sponsor, said the issue "will not go away." But he said the bill, as amended, was a "bad bill."

"I would not send to this president or any president a bad bill of the kind that was crafted here in the Senate through the amendment process over the last several days," he said.

Is this how it is all going to end up? No gun manufacturer immunity from lawsuit, but no more Assault Weapons Ban? Considering how absolutely silly, ineffective, and unnecessary I think the latter is, this would actually amount to an excellent exchange for gun control proponents.

Guns and Politics

In an article largely devoted to the new positioning of Democrats on gun issues comes this interesting tidbit about the upcoming vote on renewal of the Assault Weapons Ban:

Guns have been largely silent in this presidential campaign. But Congress is forcing the issue into the open with a vote scheduled Tuesday on renewing the ban on assault-type weapons and extending background checks to gun shows.

Candidates John Kerry and John Edwards, the only Democrats to miss a Senate vote on another gun issue last week, have been summoned back from campaigning to bolster the party's ranks for what is expected to be a close vote.

And some interesting stats from the last election:

In the 2000 election, roughly half of voters were from gun-owner households, and they voted for Bush by 61 percent to 36 percent, according to exit polls. The voters from non-gun owner households, voted for Gore by 58-39.

I added some emphasis there, because I suspect that many of the people in the circles I travel in (and thus those most likely to read this blog) are relatively unaware of how widespread the gun culture is in this country, for better or worse.

Some might see those statistics and think that support for gun control may have helped win a lot of the 58% of non-gun owners who voted for Gore. But I think common sense suggests that the people who view gun control as a deciding factor in voting tend to be those who oppose it. I thought this was a losing issue for Democrats from the get-go, and the past ten years have done nothing to change my opinion. And even if none of the current proposals are particularly controversial, the Democrats are fighting an uphill battle to remove the "anti-gun" label which they've been tainted by for some time.

China and Human Rights

I have a longheld admiration for the propaganda talents of the Chinese government. I'm not an apologist for their horrific human rights record, and took several classes in college trying to figure out a sensible way of dealing with them back when they were the "next big threat" (this was in the couple years before 9/11, when all the Harvard international relations people had shifted from Cold War studies to Sino studies). But in the same way that one can be in awe of a truly talented compulsive liar, I am often delighted at China's anti-American propaganda. One of their favored tactics is to criticize our internal problems as human rights violations, suggesting we have no right to challenge them.

It is hard to take such criticisms seriously, considering the source. But it does provide an opportunity for some self-reflection, since even the slurs of a repressive regime might bear kernels of truth. And they've just released their fifth annual report on the state of America:

The 22-page appraisal, based on articles in U.S. newspapers and U.S. government statistics, reeled off snapshots of America�s social ills, from murder, rape and homelessness to the journalistic scandal over fabricated stories that befell The New York Times.

It seized on nationally publicized incidents like the fatal clash last November between Cincinnati police and a 41-year-old black man, the latest incident of racial tension in the Midwestern city which was hit by race riots in 2001.

I'm sure someone must have noted the irony of being able to ascertain the problems facing America from American newspapers. You know, that free press thing. And the Jayson Blair scandal! Shocking, shocking. Capitalist pigs.

On the other hand, on its face I largely (thought not fully) subscribe to this statement:

�Forty years after Martin Luther King�s �I Have a Dream� speech, the equal rights pursued by America�s blacks and other minorities remains a dream that can be aspired to, but not attained,� the report said.

That's a mostly apt criticism, and something I take very seriously. But again, consider the source. I'd be curious to see how many minorities in this country would trade their position for that of the average Chinese citizen.

And it turns out we don't have entirely democratic elections:

China also tried to expose the weight big business exerts on the American electoral process, quoting Britain�s Independent newspaper as saying President George W. Bush�s had amassed $200 million for the 2004 campaign.

�The presidential election, viewed as a symbol of American democracy, in reality is a money game played by the rich.�

Fair enough, that's another criticism which carries some weight. But at least we're talking about elections. Real elections. Where the people vote. You remember them, right? The people? How many votes did Jiang Zemin need to take power? How many members of the Chinese Politburo are there?

Anyhow, I thought it was worth a few laughs and a little bit of self-reflection.

Catholic Charities and Birth Control

The California Supreme Court has ruled that a Catholic charity group must provide birth control coverage in its health care plan:

The 6-to-1 ruling could reach far beyond the 183 full-time employees of Catholic Charities and affect thousands of workers at Catholic hospitals and other church-backed institutions throughout the state.

The Supreme Court ruled that the charity was not a religious employer because it offered such secular services as counseling, low-income housing and immigration services to the public without directly preaching about Catholic values.

The one dissenter? You guessed it:

Justice Janice Rogers Brown dissented, writing that the Legislature�s definition of a �religious employer� was too limiting if excludes faith-based nonprofit groups like Catholic Charities.

I didn't even realize there were state laws requiring contraceptive insurance coverage, but apparently they are relatively widespread:

Versions of the law considered in Monday�s ruling have been adopted in 20 states after lawmakers concluded that private employee prescription plans without contraceptive benefits discriminated against women.

The 20 states that require private-sector insurance coverage for prescription contraceptives are Arizona, California, Connecticut, Delaware, Iowa, Georgia, Hawaii, Maine, Maryland, Massachusetts, Missouri, Nevada, New Hampshire, New Mexico, New York, North Carolina, Rhode Island, Texas, Vermont and Washington.

Not a whole lot of surprises on that list, though Texas stands out.