Interesting translation at MEMRI of a call by prominent Palestinians to end the terror attacks on Israel, and the reactions (negative, of course) of Hamas and Fatah leaders. Not a world-changing event, but a cautiously encouraging first step. Translation here.

 
Baby killers! (And not the sort you might be thinking of.) The photograph of a Palestinian baby dressed as a suicide bomber has aroused a firestorm in the press; earlier today, the always-entertaining Fox News ("Could terrorists be targeting the space shuttle launch? Possibly with surface to air missiles?") was intimating that the baby could have been an actual suicide bomber ("infanticide bomber?"). As one friend of mine said, deadpan, "He'd be less of a suicide bomber than a suicide cracker."

Nonetheless, if we're going to make inappropriate generalizations -- and I love to do so -- it goes without saying that this photo says terrible things about Palestinian society. "Awwww, what a cute little baby! Aren't you going to be the bravest little shaheed ever!" Like the interview with Umm Nidal (check the June 21 archives for that), this only makes evident that to many Palestinians, murdering Israelis is either a duty or a matter worth joking about.

 
"A climate of complete impunity." Salon has this story on civilian contractors working for the US military overseas being involved in the international sex trade. Because of jurisdictional problems, prosecutions are essentially nonexistent.


Because of the professionalism and discipline of our volunteer military, such cases are exceedingly rare, and quickly punished, inside the Armed Forces. But civilian contractors -- and let's recognize a garden tool as such, these guys are essentially mercenaries, even if they're mechanics and other noncombat personnel -- aren't military, and the same rules don't apply, as the article makes painfully clear. (Congress did move in 2000 to patch some of these holes, but the implementation of that Act is still far from complete.)


I've known a number of men and women who worked as civilian contractors for our nation's intelligence services (at the CIA station at Alice Springs, for example), and they always acted with the highest integrity. But as the nature of these contracted jobs move from high-end positions such as software development and systems administration to skilled mechanic work, the number of people required increases, and the amount of oversight decreases. If these abuses aren't decisively curbed by the government, expect this to continue into a full-blown scandal that the major outlets can't ignore, even if they're chasing an online magazine's scoop.

Addendum: Sassafrass provides a link to the House testimony by Benjamin Johnston, a civilian contractor who blew the whistle on the scandal.

Diogenes once said, "Dogs bite their enemies; I bite my friends, so I might save them." Conservatives would do well to remember the words of the Cynic. For years, the thinkers on the right decried the left as being intellectually barren and incestuous, and they were correct. But now those same thinkers -- the Safires, Kristols, and so on -- are themselves under attack by the movement they created. Hordes of checkbox conservatives, interested only in rewarding institutional loyalty and rhetorical flattery, aren't just satisfied with going after Clinton and Daschle; they've turned their sights on conservatives who don't exhibit appropriate obesiance to politicians. Gone indeed are the days when a politician such as Goldwater or Reagan could honestly say they were motivated by a Hayek or a Kristol.


Ann Coulter is one of the most shrill of the conservative commissars who police the punditry, looking for signs of unsound thought. (Wiliam Safire will no doubt be forced to spend the rest of his life laboring in the NY Times gulag, exiled from think-tank conferences and Republican fundraisers.) You may remember her as the writer whom the National Review was intellectually honest enough to drop after she argued that "This is no time to be precious about locating the exact individuals directly involved in this particular terrorist attack. Those responsible include anyone anywhere in the world who smiled in response to the annihilation of patriots ... We should invade their countries, kill their leaders and convert them to Christianity."


I've always suspected that Coulter's popularity is due to the fact that she makes the center-left media feel good about themselves; she's a cariacature of intolerance who excels at confirming the worst suspicions of everyone to the left of Rush Limbaugh. Her latest book, Slander, only seems to have deepened this image. A detailed debunking of Coulter's claims is here, and the leftist Scoobie Davis has started a blog on Slander that -- despite its very overt bias -- is starting off as a well-researched piece. Check 'em out if you think that conservatism is best when it hasn't succumbed to the flattery of fools.

 
If you own, administer or work on a Windows PC, chances are you've been exposed to Gator. You know, that obnoxious piece of spyware that piggybacks on popular applications (like the late Audiogalaxy), watches what webpages you're surfing, and sends you ads based on that content (usually for rivals of whatever site you're on at the moment). If you're not familiar with Gator, drop a couple of bucks in the collection plate on Sunday, and read more about it here.

Now a score of media heavy-hitters -- including the New York Times Co, Dow Jones, the Washington Post Co., Tribune, Gannett and Knight-Ridder -- have teamed up to go Gator hunting in federal court, arguing that the so-called 'ambushware' "alters the display of the Web site, which constitutes copyright infringement."

The complaint alleges that Gator "is essentially a parasite that free rides on the hard work and investment" of electronic publishers, which is hard to deny, but I must confess mixed feelings for this case, akin to my feelings about the Microsoft antitrust case. On one hand, you love to see the bad guy get backed into the corner. On the other, the same posse that hanged him high could be coming after you next, and never is this more likely than in the world of electronic publishing. The Slashdot crowd is happy right now, but wait until the same case law is used on their pet GPL'd projects.

In the end, Gator is part of the user experience -- although the user, especially technically unsophisticated users, may not always realize that it's installed and running (however, it's not Gator's fault if we don't read the EULA). And if content providers can legally dictate how their data is going to display on your computer, then a lot of us, whether we're using the "block pop-ups" feature in Mozilla, or writing Perl scripts to suck down and compile our daily news feeds, are going to be in trouble. Goodbye, innovation, hello, questionable business models.

 
Design a political system, create a world leader, or just test where you stand on the globalization debate at Fantasy World Order. I'm evidently a skeptical regulating liberator, whatever that might mean.

The old ways are best: Kausfiles links to this WP story discussing how test scores at an impoverished Washington, D.C. school skyrocketed following several administrative changes, including reducing the lunch period to half an hour, grouping students into classes ranked by current skill level, and -- get this -- segregating classes by gender. The result? "The percentage of students scoring in the two highest categories -- "advanced" and "proficient" -- on the math portion of the Stanford 9 test had jumped in one year from 49 percent to 88 percent. On the reading portion of the exam, the percentage of students in the top two categories had shot up from 50 percent to 91.5 percent."

 
Since we all don't have Martha Stewart as a financial advisor ("Today, we're going to make some lovely curtains for your federal prison cell using nothing more than this orange jumpsuit and a shiv made from a bedspring"), it's disturbing to contemplate the magnitude of betrayal people from old-guard stalwarts like MCI are feeling right now. I've been on the phones since yesterday with old friends and co-workers from WorldCom, all former MCIers, and even those who were expecting a major scandal (the executive team not exactly having the confidence of employees) are staggered by what's happened. I keep hearing things like, "Our company [MCI] got killed by a milk truck driver," referring to one of former CEO Bernie Ebber's previous jobs. (Maybe his future job, too, come to think of it.) A nice, fall-of-Rome blog on the demise of WorldCom is here.

The irony is compounded by a quote from today's NYT article on Scott Sullivan, the disgraced former WCOM CFO: "Mr. Sullivan 'was the most credible C.F.O. in the entire industry,' said Richard Klugman, an analyst at Jeffries & Company, who has followed WorldCom since 1993. 'He knew the minutiae of the numbers and he could go all the way up to the big picture.' " Sounds like a witness for the prosecution to me.

Yesterday's Newdow decision has set the chattering class all a'chatter, with a blistering editorial in the Washington Post ("If the court were writing a parody, rather than deciding an actual case, it could hardly have produced a more provocative holding than striking down the Pledge of Allegiance while this country is at war.") and a schoolmarmishly disapproving note ("This is a well-meaning ruling, but it lacks common sense.") from the Times.

Credit where credit is due: The WSJ asks about Arthur Levitt, "And where were Bill Clinton's cops on the securities beat while he was trying to keep the boom going past the last Election Day?" Trying to tighten accounting rules, and getting mugged by the Journal's editorial page for it, if I remember correctly ...

 
Well, looks like the sky is falling, the wolves are at the door, and the sun is guttering out, thanks to those loony judges at the 9th Circuit Court of Appeals. As everyone with a pulse knows today, the Pledge of Allegiance has been ruled unconstitutional, thus proving that lawyers are un-American monsters out to destroy our traditional values and expose us to terrorism. Or at least that's what I've been given to understand by Fox News, anyway.

As usual, it's not quite that simple. For one thing, the Pledge itself is safe, though two little words -- "under God" -- are in court-ordered peril. For another, although the result of this decision puts us somewhere beyond the Constitutional looking-glass, it's not so easy to dismiss this as another case of the judiciary run amok.

There's little question that virtually everyone other than Judges Goodwin and Reinhardt (and petitioner Michael "Raging Atheist" Newdow, natch) considers this to be a completely insane decision. But what makes it so instructive is that the process used to reach the decision is in fact pretty uncontroversial, even though the final result happens to directly contradict the decisions of not only other federal courts, but the Supreme Court itself.

To place the case in some context: the petitioner, Michael Newdow, is an atheist, and has a daughter who attends public school in California. Each day, her school gives the Pledge of Allegiance as required by a school district policy, which in turn was adopted to satisfy the requirements of the California Education Code. Students are not required to participate in the Pledge (the Supremes decided that case already, in Barnette).

Newdow's claim is that "his daughter is injured when she is compelled to 'watch and listen as her state-employed teacher in her state-run school leads her classmates in a ritual proclaiming that there is a God, and that our's [sic] is 'one nation under God.' ' " The appellate court decided to consider Newdow's claim of standing (which was denied in district court), and his request that the court "order the President of the United States [Bill Clinton at the time of filing, in case you were wondering] to 'alter, modify or repeal' the Pledge by removing the words 'under God'; and to order the United States Congress 'immediately to act to remove the words 'under God' from the Pledge.' "

The court begins by correctly noting that Newdow's request is, well, bizarre. The President cannot amend a statute (the words "under God" were added to the Pledge by Congressional law in 1954), and no court could legally carry out Newdow's request, at least not without shredding the Constitution on the way through. Nonetheless, they forge on, first reinstating Newdow's standing, arguing that "Newdow has standing as a parent to challenge a practice that interferes with his right to direct the religious education of his daughter," that his daughter is enrolled in a California school district, and that "The mere enactment of the 1954 Act in its particular [legislative] context constiutes a religious recitation policy that interferes with Newdow's right to direct the religious education of his daughter." (I realize that many people are going to pause here and note that Newdow is actually directing the irreligious education of his daughter, but the principle remains the same. Imagine Newdow to be Hindu if you like, or pretend that the Pledge contains the words "one nation under atheistic secular humanism" and that Newdow is a Christian.)

The court then turns its attention to the Establishment issue. The opinion considers three separate tests: the all but canonical Lemon test, which requires that "the government conduct in question (1) must have a secular purpose, (2) must have a principal or primary effect that neither advances nor inhibits religion, and (3) must not foster an excessive entanglement with religion;" the "endorsement" test (from O'Connor's concurring opinion in Lynch, famous nativity scene case), which forbids "excessive entanglement with religious institutions" and "government endorsement or disapproval of religion;" the third is the "coercion" test, "formulated ... when [the Supreme Court] held unconstitutional the practice of including invocations and bendictions in the form of 'nonsectarian' prayers at public school graduation ceremonies" in Lee, and which requires that "at a minimum, the Constitution guarantees that government may not coerce anyone to support or participate in religion or its exercise, or otherwise to act in a way which establishes a state religion or religious faith, or tends to do so." The opinion's interpretation of Lee is that "primary and secondary school children may not be placed in the dilemma of either participating in a religious ceremony or protesting."

The court first examines the "endorsement" test, arguing that "In the context of the Pledge, the statement that the United States is a nation 'under God' is an endorsement of religion. ... To recite the Pledge is not to describe the United States; instead, it is to swear allegiance to the values for which the flag stands: unity, indivisibility, liberty, justice, and -- since 1954 -- monotheism. ... [T]he school district's practice of teacher-led recitation of the Pledge aims to inculcate in students a respect for the ideals set forth in the Pledge, and thus amounts to state endorsement of these ideals."

Next, the court consider the "coercion" test. "[T]he [school] policy and the [1954] Act place students in the untenable position of choosing between participating in an exercise with religious content or protesting. ... [U]nder Lee, the fact that students are not required to participate is no basis for distinguishing ... the case at bar [from a Supreme Court case holding that children could not be forced to recite the Pledge] because, even without a recitation requirement for each child, the mere fact that a pupil is required to listen every day to the statement 'one neation under God' has a coercive effect."

Finally, the court looks at Lemon. "[T]he legislative history of the 1954 Act reveals that the Act's sole purpose was to advance religion, in order to differentiate the United States from nations under communist rule ... [and] to take a position on theism, namely, to support the existence and moral authority of God .... Such a purpose runs counter to the Establishment Clause, which prohibits the government's endorsement or advancement not only of one particular religion at the expense of other religions, but also of religion at the expense of atheism. [Emphasis in original]" The court also argues that the school policy, although it has a secular purpose and thus passes the first Lemon prong, fails the effects prong of Lemon: "Given the age and impressionability of schoolchildren, as discussed above, particularly within the confined environment of the classroom, the policy is highly likely to convey an impermissible message of endorsement to some and disapproval to others of their beliefs regarding the existence of a monotheistic God."

The majority opinion concludes by holding "that (1) the 1954 Act adding the words "under God" to the Pledge, and (2) [the school district's] policy and practice of teacher-led recitation of the Pledge, with the added words included, violate the Establishment Clause." Some news outlets have reported that the court declared the entire Pledge unconstitutional; the truth is somewhat narrower, as the holdings make clear.

Personally, I agree without about half of the court's application of the three tests. The "endorsement" test is hard to argue with, thus its primacy in the opinion. However, the "coercion" test seems weak at best, especially inasmuch as in Barnette, a case cited in the majority opinion, the Supreme Court held that children could not be forced to recite the Pledge, but did not rule that the Pledge could not be recited at all. (The dissent by Fernandez makes this point.) The applicability of Lee, with the differences between a daily and largely informal Pledge vis a vis solemn graduation ceremony prayers, is not spelled out, and I don't find it convincing.

The Lemon test goes two ways with me: I agree with the court's assertion that the 1954 Act fails the purpose prong, but disagree -- for substantially the same reasons above -- that the school policy fails the effects prong.

The problem here is not that the court applied the tests badly; it's that it applied the tests at all. Such is the point made in the dissent by Fernandez: "legal world abstractions and ruminations aside, when all is said and done, the danger that 'under God' in our Pledge of Allegiance will tend to bring about a theocracy or suppress somebody's beliefs is so miniscule as to be de minimis. ... Some, who rather choke on the notion of de minimis, have resorted to the euphemism 'ceremonial deism.' ... But whatever it is called (I care not), it comes to this: such phrases as 'In God We Trust' or 'under God' have no tendency to establish a religion in this country or to suppress anyone's exercise, or non-exercise, of religion...."

Fernandez makes, I think, an important point: the fact that the Act or the policy fails one or more Establishment tests is not necessarily dispositive. It seems, especially in light of this case, that some government acts can in fact fail those tests without making a federal case about it, so to speak.

Opponents of this theory will argue that the end result will likely be the public tiger being devoured by theocratic ants, and it is to this objection that Fernandez's dissent needs to play. However, other than a short nod in that direction -- "I do not say ... that there is such a thing as a de minimus constitutional violation. What I do say is that the de minimus tendency of the Pledge to establish a religion or to interfere with its free exercise is no constitutional violation at all" -- his argument never manifests. To say that I agree with the dissent is not to say that I believe it to be a well-argued or even convincing dissent; although Fernandez believes there is a clear demarcation between the two scenarios, as do I, he does not provide a legal or philosophical argument sufficient to show that the subtlety of his argument does not hide a tendentious and sophistic distinction.

The chances of this decision surviving the Ninth Circuit at large are slim; passing the Supreme Court, nonexistent. But that is not to say that Newdow is trivial or facially incorrect law; to the contrary, it raises serious questions and brings them to an absurd conclusion. When this case is overturned, new law will be created, with ramifications far beyond the Establishment Clause.

 
If Pakistan is the spiritual forebear of Islamist radicalism, Algeria is the spawning place of Islamist terror. Earlier this week, six children were murdered by Islamist terrorists at a playground in the resort town of Zeralda, near Algiers. The Algerian New Press image service has photos of the terror scene here, and the childrens' funerals here.

In related news, the Algerian Arabic newspaper El Khabar reports that an Islamist terror network has been dismantled by authorities:

El Khabar has been told by knowledgable sources that a group of nine terrorists belonging to the Salafist group led by Hassan Hattab surrendered to the police in Tebessa (634 km east of Algiers) during the past few days.

According to the same sources, those terrorists are from the same region except one, from the town of Ain Beida, in Oum Bouaghi (500 km east of Algiers).

 
I'm shocked, just shocked at the news that WorldCom is having to restate "$3.055 billion for 2001 and $797 million for first quarter 2002" after CNBC's David Faber reported that the company illegally treated regular costs as capital expenditures, thus inflating profits on revenues. (The finances were reviewed by -- another shock -- Arthur Andersen, but Andersen seems to once again be the victim of a company lying to its auditor.) WorldCom promptly fired its CFO, who appears to have been behind the machinations, and accepted the resignation of the company controller. Unsurprisingly, the embattled stock (I always love calling a company other than Apple "embattled") went into freefall in after-hours trading, as of this posting just a hair over a quarter a share (a five year chart of the stock price can be seen here).

WorldCom's survival appears to have dropped from "doubtful" to "damned near impossible," as the company frantically tries to slash workforce and expenses, culminating in a 20% (17,000 employee) layoff starting this Friday, just the latest in a long series of cuts. (Full disclosure: In a previous life, I worked as a consultant on contract to WorldCom. My contract was terminated during the first round of layoffs, in the comparatively rosy days of early 2001.) Both long term loans and commercial paper are pretty much impossible for the company to get, as analysts and lenders wait for what seems to be the inevitable smoking crater.

Addendum: CNBC reports this morning that WCOM hit a low of $0.09/share in after-hours trading; NASDAQ has held trading on the stock.

 
Bags o' Babies: California schools are forsaking science and the arts in exchange for bags of flour and "Family Life" curricula that portray babies as robotic, mewling, crack-addicted nuisances. What's a better predictor of teenage pregnancy: educational attainment, or hauling cooking supplies around for days on end? Is this any way for the state to raise our children?

 
Another day, another lawsuit against Microsoft -- in this case, another patent-infringement suit, according to the latest Cringely column at PBS. If you remember when Stac's FAT compression code somehow ended up in an MS-DOS release, this is a similar case (though it's the algorithms, not the code itself, that's the macguffin here).

As long as we're on the topic of MS, the Reg has a story on Microsoft's plans to lock down control of users' desktops in the name of security. There are good reasons why I use Solaris and MacOS X at home, yes.

 
"Europe is as twitchy as a teenager. There is a general dissatisfaction with the traditional parties, their lack of ideas and aspiration and their glutinous rhetoric, and the media is more distinctly US-unfriendly than for many years. Is this a sign of change to come?" Michael Stenton has a rundown for the conservative-right magazine Chronicles of what is starting to look like some sort of red-brown-green sentiment in Europe, the political equivalent of a Jackson Pollack painting.

So Cornel West is now persona non grata to certain neocons, according to this Slate article. I think that this is a serious mistake on the part of the boycotters: political philosophy has to confront its critics (think The Republic, or Aquinas) to remain vital, and West is a serious critic (as K. Anthony Appiah also is, and Skip Gates is not). That's not to say I agree with much of his philosophy, but you have to engage him on the merits. The Slate article puts it neatly: "These are the same intellectuals who for a quarter-century now have been exposing the smug pieties and suffocating groupthink of the academic left .... So, why are they now enforcing a rigid orthodoxy and unspoken agenda of their own?"

Mali is the Mayberry of Africa, sleepy and quiet, but its recent democratic transfer of power (to the former coup leader who toppled dictator Moussa Traore in 1991) makes it a bright spot in an impoverished part of the world, especially inasmuch as it is the rare example of a truly democratic Muslim country. It's also going to host a development conference in Siby (Siby?), a village "considered an ideal venue for the conference because it shows 'no trace of development'." (Thus, a perfect place for a regional conference, I suppose.) Although World Bank HIPC efforts are failing for most participants, Mali has reached a sustainable debt level, giving it hope for economic growth. (Hey, sometimes things work out after all!)

 
The post below, (on today's Ring v. Arizona decision from the Supreme Court) demonstrates why Blogger needs a "copy editor" function. Read on, if you dare. (Hey, you try boiling Sixth Amendment case law into three paragraphs!)

 
If Supreme Court opinions could be movies -- not the cases, mind you, just the opinions -- then today's ruling in Ring v. Arizona would be film noir all the way. Tangled alliances, murky motives, and inadvertent betrayal all play roles in the five opinions that were released.

Ring really begins with Walton v. Arizona, a 1990 Court case that ruled Arizona's death penalty sentencing system -- in which a jury finds a defendant guilty of a crime that carries the possibility of death, and the sentencing judge then determines aggravating and mitigating circumstances, then weighs the two in order to determine if capital punishment is merited -- to be constitutional. Justices White, Rehnquist, O'Connor, and Kennedy were in the majority; Brennan, Blackmun, Stevens, and Marshall dissented on Eighth Amendment grounds; Stevens dissented on Sixth Amendment grounds; Scalia concurred in part, on the grounds that the Court under Furman had engaged in "[t]he simultaneous pursuit of contradictory objectives" which "necessarily produces confusion," forcing the states to adopt systems like Arizona's in order to comply with federal case law.

Then came Apprendi, in which the Court found unconstitutional a New Jersey hate crime statute that resulted in a sentencing judge making a factual determination that increased a carjacking sentence to two years more than the maximum without the hate crime factor. Stevens, Souter, Thomas, and Ginsburg formed the majority; Scalia concurred, citing Sixth Amendment concerns (Thomas also issued a concurring opinion, which is filled with, as usual, 150-year-old case law, albeit relevant case law, that reads like a gallery of the obscure); O'Connor, Rehnquist, Kennedy and Breyer dissented. O'Connor's dissent -- and this is important! -- argued that the majority opinion in Apprendi was not only inconsistent with Walton, but "baffling." Her dissent is worth quoting at length:

The key to that distinction [between Walton and Apprendi] is the Court’s claim that, in Arizona, the jury makes all of the findings necessary to expose the defendant to a death sentence. ... As explained above, that claim is demonstrably untrue. A defendant convicted of first-degree murder in Arizona cannot receive a death sentence unless a judge makes the factual determination that a statutory aggravating factor exists. Without that critical finding, the maximum sentence to which the defendant is exposed is life imprisonment, and not the death penalty. Indeed, at the time Walton was decided, the author of the Court’s opinion today understood well the issue at stake. See Walton, 497 U.S., at 709 (Stevens, J., dissenting) (“[U]nder Arizona law, as construed by Arizona’s highest court, a first-degree murder is not punishable by a death sentence until at least one statutory aggravating circumstance has been proved”). In any event, the extent of our holding in Walton should have been perfectly obvious from the face of our decision. We upheld the Arizona scheme specifically on the ground that the Constitution does not require the jury to make the factual findings that serve as the “ ‘prerequisite to imposition of [a death] sentence,’ ” ... , or “ ‘the specific findings authorizing the imposition of the sentence of death,’ ” .... If the Court does not intend to overrule Walton, one would be hard pressed to tell from the opinion it issues today.

And so we come to Ring. The syllabus, further reduced in size, puts the particulars of the case thus:

At ... Ring's Arizona trial for murder and related offenses, the jury ... found Ring guilty of felony murder occurring in the course of armed robbery. ... The death sentence [in felony murder cases] may be imposed only if the judge finds at least one aggravating circumstance and no mitigating circumstances sufficiently substantial to call for leniency. ... Citing accomplice testimony at the sentencing hearing [which was not given during the jury trial], the judge found that Ring was the killer. [Emphasis added]

Ring appealed on Sixth Amendment grounds, arguing that the jury trial right was violated because the judge was determining matters of fact, not law, that raised the maximum penalty (since the jury was not legally able to find any factors that would raise the penalty beyond imprisonment). The Arizona Supreme Court took the case and, while reviewing applicable law, noted that, although they were constrained by Walton, the dissent by O'Connor "precisely ... described" the way capital sentencing worked in Arizona: "Defendant's death sentence required the judge's factual findings."

The Supreme Court seized upon this finding, observing that a state's interpretation of its own laws is controlling. Thus, if O'Connor was right in her dissent, then the majority was in the wrong: Walton and Apprendi could not be reconciled. Suddenly, the Court had a free pass to resolve a nasty tension between two pieces of case law that went together like peanut butter and gasoline.

One might expect O'Connor to celebrate her vindication, but her victory is entirely Pyrrhic: the majority, having to overrule one case or the other, overruled Walton, resulting in the very outcome she wanted to avoid in Apprendi. An interesting coalition of justices came together for Ring:the majority opinion by Ginsburg concentrates on the incompatibility of the two previous controlling decisions; Breyer's concurring opinion is based entirely on his belief that sentencing a defendant to death by judicial fiat violates the Eighth Amendment's "cruel and unusual" clause; Kennedy's unhappy concurrence -- he was in the majority for Walton and the minority for Apprendi, remember -- boils down to "I concur, damnit" ("Though it is still my view that Apprendi ... was wrongly decided, Apprendi is now the law, and its holding must be implemented in a principled way");and Scalia's opinion would do Alexander Pope proud, turning a concurrence into a masterpiece of invective, arguing that the entire history of Court rulings from Furman onwards was only so much dross for a duchess:

[M]y observing over the past 12 years the accelerating propensity of both state and federal legislatures to adopt "sentencing factors" determined by judges that increase punishment beyond what is authorized by the jury's verdict, and my witnessing the belief of a near majority of my colleagues that this novel practice is perfectly OK ... cause me to believe that our people's traditional belief in the right of trial by jury is in perilous decline. ... We cannot preserve our veneration for the protection of the jury in criminal cases if we render ourselves callous to the need for that protection by regularly imposing the death penalty without it. Accordingly, whether or not the States have been erroneously coerced into the adoption of "aggravating factors" [by the Court's decision in Furman], wherever those factors exist ... they must be found by the jury beyond a reasonable doubt. [Emphasis in original]

In other words, a magisterial "told ya so." His attack on Breyer's concurrence is worth reading in its entirety, so I'll refrain from adding to what's already a quote-heavy posting ("Concisely put, Justice Breyer is on the wrong flight; he should either get off before the doors close, or buy a ticket to Apprendi-land").

O'Connor's dissent, joined by Rehnquist, largely argues that the Court should have upheld Walton, not Apprendi, because the latter decision "threw countless criminal sentences into doubt and thereby caused an enormous increase in the workload of an already overburdened judiciary. The decision today is only going to add to these already serious effects" and "the need to evaluate ... [Ring] claims will greatly burden the courts" in affected states. Why this should be dispositive, or in fact considered at all in a matter of law -- though the same argument does show up, now and again, in both Supreme and appellate court decisions -- is not adequately explained.

Nonetheless, O'Connor is surely right in that a flood of Ring claims will appear. As with last week's decision in Atkins, death penalty law has just become a lot more complex for the states.

 
Richard Hofstadter once wrote of "the paranoid style in American politics." Insofar as the Middle East is concerned, one might well speak of "the political style in Arab paranoia." Sassafrass today links to this story on five twentysomething Israelis, arrested on September 11, who may have been working for the Mossad. Or not. It's all very murky. And no charges have been filed, anyway. But you can bet that this information will get rolled into the vast paranoid conspiracy that the Arab media (and the French) love to keep alive.

 
Hey, a job's a job. NPR's Marketplace reported today that the pets.com sock puppet -- you remember, that assemblage of elastic, cotton, and big googly eyes that sang, without a trace of irony, "What goes up, must come down" mere weeks before the stock market crash -- has, unlike most of his former co-workers, a new gig: doing local TV commercials for a California auto dealer who specializes in poor credit risks.

The pork barrel rolls on: The Hill reports that J.C. Watts (R-OK) is stumping to get the embattled Crusader artillery system back onto the Pentagon's budget sheets, even though the military brass has cooled on it and Don Rumsfeld has explicitly killed it. Yes, the Crusader was slated to be manufactured in Watts' district.

Trouble with a capital 'T' and that rhymes with 'E' and that stands for ... eschatology? Well, yes, according to a recent Time article, anyway. As an Episcopalian, I'm not exactly clued into the apocalyptic strain of thought, but I will admit that the end-times congregation is simply carrying forth a Christian tradition that extends back to Mark 13:32.

Not to keep harping on the Atkins decision, but today's "Breakfast Table" entry at Slate is worth checking out. Former acting Solicitor General Walter E. Dellinger, III and Slate legal editor Dahlia Lithwick have been trading e-mails, and today Dellinger makes some trenchant comments on Atkins and the "extraordinary, across-the-board activism" -- on both sides of the ideological divide -- of the current Court.

 
Good news for epileptics: you're not more likely to end up in prison, according to this article. I feel safer already.

Stanley Fish, the departed doyen of the Duke department of deconstructionists, has written an article for the most recent issue of Harper's (no online link available) that does a fine job of defending postmodernist thought (or at least his own peculiar strain of postmodernism) against the charges of weakening Western society against its cultural enemies.

As much as I despise the entire post-1968 clique of French philosophy, I've got a soft spot in my heart for American pragmatism and pragmaticism, which Fish is a modern exponent of. (Others are a diverse cast including personalities as disparate as Rorty, who I'm less pleased with, and the always-entertaining Honorable Richard Posner.) Fish's response will not placate critics, who are enraged that Fish and other postmodernists argue that that our beliefs -- including the belief that flying airplanes into crowded buildings is a Bad Thing -- are not universal constants. Fish's reply basically consists of saying that it doesn't matter, which isn't exactly calculated to bring the William Bennetts of the world around to his point of view. Whether you agree with Fish or not, the article is definitely worth perusing.

I think that a snippet from a recent Crosscurrents interview with theologian Stanley Hauerwas is worth reproducing here:

Hauerwas: And philosophically, as far as I'm concerned, [cultural conservatives] just don't get it. When they hear me, they keep saying "Well how do you defeat relativism?" They assume if you don't have a theory about how you defeat relativism, then the Nazis are around the corner.


Quirk: It's as if Wittgenstein or Gadamer never existed. . .


Hauerwas: Exactly. And I want to say, Look, where you go wrong is beginning to think that you know what relativism is, which you then need to defeat.


Quirk: Or that to defeat the relativist, or the Nazi, they think you need ...


Hauerwas: They think you need a theory! That's absolutely crazy.

Speaking of Harper's, you can check out the Smarter Harper's Index, which comments on the numerical compendium the aforementioned publication puts together each month. Like most collections of numbers shorn of context or reasonable analysis (like, say, The Bell Curve), the Harper's Index is at best cocktail-party trivia, and at worst entirely misleading.

 
The self-referential world of blogs has arrived on my doorstep, with a kind note from Kristin Anderson, of Sassafrass Log, a repository of political, technological, and social eclectica with a great deal of depth. (And I'm not just saying that because she's the first blog to link back to me. Really.) Politically, it seems to be primarily establishment/left of center (more NPR than Pacifica), with an impressive density of links.

The dystopic world of Saddam's Iraq further exposed by, of all outlets, the Beeb. Sadly, none of this will surprise anyone familiar with the charming Husayn family. My Open Sources research database (which I've been remiss in keeping up for the last few months), has hundreds of referenced articles filled with examples of 'Udayy Husayn's capricious cruelties, including murders, rapes, his control of Iraq's organized crime rackets, and the existence of what must be the only Olympic stadium to have its own torture dungeon.

The new world of AIDS -- patients living longer and symptom-free, but also living with survivor's guilt -- can be found on today's Andrew Sullivan. While I tend to usually disagree with blogging's Iron Queen (well, what would you call an openly gay Thatcherite?), his very personal, very human posting today is worth a moment of silence or two for his departed friends: "Their ghosts hover in this town - on the beach at sunset, in corners of bars, as the sunlight rises on shingles."

 
Tilting at Windmills in The Public Square: The Filipino military warns that the war against Abu Sayyaf is "far from over" ... Russian land ownership reform, advanced by the Kremlin and now being read in the Duma, has come under attack from an unexpected source: Putin himself, whose volte face has left many in Russia and beyond concerned about the possibility of a land grab by Russian plutocrats not unlike the fixed auctions and sub rosa deals that gave away oil and mineral rights in the 1990s ... The Pakistani Defence Journal has an unusually strong anti-American article suggesting that the war on terror is no more than a facade for an American power grab. What makes this unusual is that the Pakistani military has historically been a fairly strong ally of America, unlike its internal rival, the ISI ... The DoE has released for comment a review plan for evaluating license applications for storage of radiological waste. 474 pages, so I don't expect to finish reading it until the end of the week at least ... Finally, the Jerusalem Post fronts remarks by Israeli military head Amos Gilead that Arafat could be sent into exile if terror attacks continue.

As long as I'm throwing out Larry King-like non sequitors, this week's anthrax story -- resulting from FBI reports that carbon dating tests of the anthrax sent through the mail last year revealed that the pathogen had been cultured within two years before the postal attacks -- reminds me of an interesting story I heard from a source about six months ago. It seems that the FBI carried out a simulated biological attack against the Dallas water supply in late 2001 (I would assume using bacillus subtilis, a close but nonpathogenic cousin to b. anthracis), and provided a secret report to federal, state, and local authorities that concluded that water treatment technology was insufficient to kill anthrax spores. The bright spot is that it would, of course, take a lot of anthrax to pose a danger to the populace because of the sheer volume of water that would be contaminated -- far too much for any organization to actually muster outside of a Tom Clancy novel.

 
The Iraqi National Congress has posted a copy of a London Times article suggesting that Iraq may have used aid flights as a smuggling conduit for equipment used to enrich uranium for military use. This comes as Iraq is working to restore ties to other Arab states, including a recent round of diplomatic overtures made to Kuwait via the United Nations.

The INC is, IMHO, the Iraqi version of "the gang that couldn't shoot straight," but they do keep an eye on the international media, making them a pretty good (and oft-updated) clearinghouse for Iraq-related news. Check out their article archives here. (If you read Arabic, you also might get something out of their newspaper, posted in PDF form -- but I wouldn't know.)

Somehow I missed this one, but the opinionated (and my fellow Texan) Jennifer Gray, the Girl on the Right, caught a story about Al Gore's own struggles with airline security. I've spent enough time getting my laptop and shoes swabbed for explosives that I can only sympathize with the man who would be Prez.

 
Sometimes the strangest relations can be made between times. While reading a work on Jewish theology recently, I came across a parable by the 18th century preacher Jacob Krantz of Dubno that, to my mind, goes a long way to explaining Anton Scalia's distate for the doctrine of the "living Constitution." The parable was written to explain the commandment in the Torah to neither subtract from nor add to the word of the Lord. The question, of course, is, why would it be objectionable to add to the Torah, if one were to increase only for the good?

One day, a man was asked by his neighbor to let him borrow his silver candlesticks. The man did so, and the next day, his neighbor returned the two candlesticks, plus a third, smaller one. When asked, the neighbor explained that the two candlesticks had a child the night before and, since the child naturally belonged with its parents, he was returning the entire family. The man, though he knew that inanimate objects could not of course give birth, was overjoyed by his fortune (and the apparent gullibility of his neighbor), and accepted the three candlesticks without comment. The next week, the neighbor asked to borrow the man's silverware, and again returned it with a smaller set of silver, saying that the silver had also had children, and that he was returning the family. Again, the man wondered at the idiocy of his neighbor, but took the new silver, thanking him for keeping the family together.

A week later, the neighbor returned, and asked to borrow all of the man's silver -- candlesticks, silverware, goblets, plates, the whole schmeer. The next day, the neighbor appeared on the man's front step, hat in hand, with no silver. Apologetically, he explained that there had been a terrible plague that had killed off all the silver, from the candlesticks to the fish forks. The man angrily told his neighbor, "Don't be a fool! There's no such thing as a plague that kills off silver!" His neighbor put his hat back on and replied, "So, you tell me that your candlesticks can have children, but they can't die as well?"

In addition to adhering to the timeless "three-beat" rule of comedy, this parable neatly summarizes what seems to be Scalia's entire legal philosophy: when courts get into the business of adding rights, they are by definition also taking the power to remove rights as well. And, at least where certain issues are concerned -- such as those brought up in Atkins -- I'm compelled to agree.