Constructing Fire-breaks

OpinionJournal - Best of the Web Today has an interesting post dedicated to the proposition that (a) homosexual marriages would not necessarily lead to polygamous marriages and (b) polygamous marriages are conceptually distinguishable from same sex marriages because of the empirically observable untoward effects of polygamy.

Well, that goes some distance to answering my question about why polygamy and homosexuality should not be compared. On the other hand, the whole argument seems to be an attempt to construct a last ditch firebreak once the fire leaps the fire lines. For instance, the social costs that the WSJ points to wouldn't be considered costs in a society that considers polygamy normal. The dysfunctions that the WSJ adumbrates would be considered the normal attributes of that healthy, functioning community by members of that community.

Don't get me wrong. I agree with the WSJ's point. I also part company with the libertarians in my belief that society may legitimately structure its institutions within certain limits to promote the development of healthy, responsible citizens who enjoy the maximum amount of individual freedom consistent with the maintenance of that society over time. I believe that the institution of companionate monogamous marriage did more to increase the value of women in society than any other institution. But I don't think that the dysfunctions of polygamous societies answers the argument about why polygamy - or incest - wouldn't be entitled to equal protection once the principle that consensual adult activities are entitled to "privacy" is coupled to the idea that the self-fulfillment of individual desires is the sine qua non of constitutional rights.

I mean, who cares if polygamy developes a class of frustrated males and dependent women so long as we get there through a series of free choices by people who individually are maximizing their own happiness? Likewise, who cares if we foster a subclass of society that is prone to suicide and intra-group violence, so long as members of that group feel they are maximizing their individual utlity at the time?

Ooh, be scared. The mighty Europeans are going to challenge Nato.

I guess they can all cut back on their vacations to finance a military. Yeah, like that's ever going to happen.

Mullings: An American Cyber-column By Rich Galen has this post:

The Sunday London Times has a piece, by their Paris correspondent Charles Bremner on European politics which begins thus:
EUROPE'S self-inflicted wounds over Iraq will be on display tomorrow, when the leaders of France and Germany - dubbed the "Axis of Weasels" in America - start to try to lay the groundwork for a European Union military alliance that would compete with NATO.
Pardon me? An alliance which would compete with NATO? The only reason NATO exists is to protect France an Germany against an attack by the Soviet Union. Who are the Germans and the French going to protect themselves against? An attack by Luxembourg (which IS a member of NATO)?

The answer seems surprisingly obvious. I'm amazed that Galen didn't see it right off. The European Alliance would support those who would invade Europe. That way the Europeans can make money selling arms to the invaders and get the benefits of NATO bases subsidizing their local economies. The last time something like this happened was when Milo Minderbinder accepted a subcontract from the Germans to attack a bridge as to which he had a subcontract from the Allies to defend.

Who is ³×À̹ö ÅëÇÕ°Ë»ö :: '', and what are they saying about me in Korean?

Things Armenian

The Corner reminds us that this is the 88th Anniversary of the Armenian Genocide. FrontPage magazine provides the best description of the circumstances of the Genocide that I have seen. Of course, growing up in Fresno, I am not unfamiliar with the Genocide, but I had always attributed it to the dying spasms of the Ottoman Empire. The Front Page article makes it clear that the Young Turks were firmly involved, which makes the Jihadist tone of the Genocide somewhat odd.

The reference to the Armenian Genocide, and something else, put in me in a reflective state of mind, so I googled my old High School debate partner who was moving into the radical world of ethnic politics last time I saw him. Apparently, he is still there. He appears to be the author of a book entitled, Amazon.com: Books: "Gha-Ra-Bagh": The Emergence of the National Democratic Movement in Armenia, which is described in one of the Amazon reviews as "a dangerous book" and "full of hatred and false information." Way to go, Mark. [To be fair, other reviews describe the book as fair and objective.]

On the same note, this weekend I saw a review of Bloodvine by Aris Janigian. Aris was one year behind me in High School. I probably will get Aris's book which I am sure captures the unique colors of the Valley Armenian culture. I will probably never get Mark's book, which probably is a thoroughly partisan project of interest only to those with a desire to know the "inside game" of historical grievances. The funny thing is that when we Juniors in High School, Mark was supposed to be the lawyer and I was supposed to be the bitter ethnic partisan.

unbillable hours has a terrific reflection on his unsettled relationship with Lent and Easter.

As part of my never ending quest to position this site as a place of scholarship and reflection, please allow me to direct you to 300 reasons why we love The Simpsons.

I'm just getting around to annotating the citations that I have collected over the last few days. Here is an essay by Stanley Kurtz at National Review Online. The gist of Kurtz's argument is that Santorum has been unfairly accused of equating homosexuality with polygamy and incest. Kurtz believes, though, that Santorum has alluded fairly to a "slippery slope" argument.

I substantially agree with Kurtz' argument, but I would certainly not describe the extension of any principle announced in the future Texas sodomy decision as being the results of a "slippery slope." Slippery slope arguments, to me, seem to suggest a situation where a small, initial compromise is exploited to create a larger effect because there is no principled point to cut-off the application of the principle. "Slippery slope" arguments contemplate a series of progressively more substantive steps. The extension of employment protections to sexual orientation is a has led to a classic "slippery slope" situation. Gays were provided protection from termination of employment because of their sexual orientation. That concession has in turn led to the exploitation of the "gays as insular minority" point of view - care of Footnote 4 of the Carolene Products decision - which in turn has led to a situation where, through a series of moves, the Boy Scouts' essential beliefs have been subjected to an attempt to limit the Scouts' rights of association and belief. However one feels about the Boy Scouts or their code or homosexuality, you have to agree that this result was not foreseen by anyone as the necessary outgrowth of the enactment of fair employment legislation. In fact, the spectre of homosexual scout leaders would have been dismissed as mere irrational scare mongering.

The privacy interest that may be established in the Texas sodomy case is not a slippery slope situation; it is simply the extension of "law" to analogous situations. The situation is more consistent with the repeal of Jim Crow. Plessy v. Fergusson, of course, allowed Southern States to establish the segregated legal and social regime. Plessy itself, however, dealt with segregation of railroads. The case we all remember as holding that Jim Crow was unconstitutional - Brown v. Board of Education - dealt with segregation in primary schools. Strictly speaking, then, Brown did not overrule Plessy. When was Plessy overruled?

The answer is that it was truly overruled in Brown. Brown held that racial segregation was not consistent with the Equal Protection Clause of the Fourteenth Amendment and the Badges and Indicia clause of the Thirteenth. After Brown, there was a cavalcade of cases that systematically eliminated Jim Crow in the multiple venues that Jim Crow was lodged. One of those unsung cases involved segregation in railroads. But Plessy was in fact overruled long before that case because there was not a razor edge of material difference between segregation in education and segregation in transportation.

Brown, therefore, was not a "slippery slope" situation. It established a principle on its face which transformed Southern society. I would argue that extending the definition of "privacy" to other than the narrow ground that it has previously rested doesn't threaten a slippery slope in which we will find ourselves suprised in some future. Rather, it involves the establishment of a neutral principle, the working out of which is altogether obvious. As Roger Ho notes it was this concern that made Bowers a 5 to 4 decision in the first place. According to Ho, this was stated in Bowers as:

"It would be difficult, except by fiat, to limit the claimed right to homosexual conduct while leaving exposed to prosecution adultery, incest, and other sexual crimes even though they are committed in the home. We are unwilling to start down that road." -- U.S. Supreme Court Majority Opinion, Bowers v. Hardwick, 478 U.S. 186 (1986)

[Note, the swing vote - I think it was Powell - felt that the sodomy laws in Bowers should have been struck down on the basis of the Eighth Amendment. Namely, that the punishment of such private conduct was excessive. Bowers, however, did not involve any actual prosecution, so that issue was academic.] Now, there is something really interesting going on with respect to the attacks on Santorum. One sees consistently the argument that homosexual acts cannot be delinked from the person performing the acts. Former Fresno Bee movie guy, John Scalzi, for example, offers this:

"Rick Santorum, the Senate's third-ranked Republican who is under fire from gay-rights groups and Democrats, says he has 'no problem with homosexuality - I have a problem with homosexual acts.'" -- Associated Press
In logical terms, you could write this as "I have no problem with X, I have a problem with X' " in which X is any particular human condition, and X' is the action by which the condition of X is ascertained; indeed, without X', X exists in an unverifiable state if it exists at all, since it is the performance of X' that establishes X definitively. Thereby, in purely practical terms, if you have a problem with X', you must necessarily have a problem with X.

One interesting thing is that this argument could easily be made against, for example, pedophilia or incest or murder, but Scalzi, and others, absolutely, positively refuse to see that. The premise of the argument is that homosexuality is a "human condition" in a way that pedophilia is not. The other interesting thing is the vehemence in which the argument is stressed that homosexuality should not be equated with polygamy. I personally don't see it. Perhaps that inability is due to my voracious reading of history and science fiction. I could well imagine - thanks chiefly to the endless inventiveness of science fiction writers - societies where homosexuality was the norm - witness the Poul Anderson story collected in Dangerous Visions - or societies where incest was normal - consider the Ptolemaic dynasty - or societies where crime was institutionalized - see Kornbluth's The Syndic. I suspect that anyone in those societies would consider the norms of those societies as, well, normal.

It is odd that the failure of imagination is on the side of the critics of Santorum. For them, homosexuality is a fixed, invariant characteristic n a way that other sexual preferences are not. The effort to obtain Carolene Products status, however, has resulted in a worldview that puts homosexuality in a different conceptual category than, say, incest or polygamy. In short there is a "paradigm" in operation which defines how some people think about homosexuality. There is nothing irrational or illogical about the paradigm since the paradigms defines the rules of the argument. [What makes a paradigm illogical is either its own internal incoherence or its lack of consistency with the empirical world.]

Finally, perhaps the paradigm shift is pragmatically useful. Perhaps the belief that homosexuals have a higher moral status than polygamists will serve the function of institutionalizing and domesticating homosexuality by creating the web of duties and demands that any effective social construct must have. The best argument in favor of homosexual marrigage in my mind is that it may tend to make homosexuals more bourgeoise. Other than children, nothing makes a person more middle-class - more likely to be faithful, more likely to go to work in the morning, more likely to weed the crabgrass from the lawn - than the prospect of alimony payments and the hourly rates of divorced lawyers.

Which is why one gay friend of mine is so absolutely opposed to gay marriage. "It's just not needed" says this guy, who has already gone through one expensive heterosexual divorce.

Maybe it's about time, but we are all learning about Islam. The Raven has a post showing a photograph of the Shi'ites celebration of a feast of Mohammed's grandson Ali's death. The photograph shows people who are really quite bloody in their commemoration of the death of Ali. This Shia practice isn't easy to understand for everyone, apparently even the Sunni look with some concern at the practice according to alt.muslim - your muslim news community:

The Shia holiday of Ashura, celebrated this past weekend, is perhaps the biggest lightning rod for conflict between Shia Muslims and the majority Sunni Muslims. The traditional public displays of self-flagellation and bloodletting - meant to emulate the pain that Imam Hussain felt during his martyrdom - is difficult for Sunni Muslims to understand and is often responded to with jeering or even murder. However, this practice is banned in Iran and frowned upon in Lebanon. Many Shia clerics are calling for participants to donate blood instead of spilling it on the streets, although this call is resisted by those who feel that suffering is an integral part of the commemoration.

Apparently, questions about the practice aren't limited to Xians.

Actually, this article prompted some questions about Islam, as to which I felt there was no better time to ask than ... Easter. My parents invited their neighbors ... actually neighbors who moved in next door to the family home around the time that I left for law school...to Easter brunch. They are Persian - don't call them Arab - and they told me that the Persians are historically Shi'ite because of the tie between nationalism and religion. Like the Polish or the Irish, the Persians embraced Islam in order to avoid the homogenizing tendency of the dominant culture. Interestingly, for the first time in twenty years, I learned that Mrs. E. was ethnically Georgian. Apparently, after the Communist Revolution, her grandfather moved to Persia and Islamicized. If you have read any history of the Byzantium Empire circa 700 to 1100 A.D., you will recognize that pattern as the norm of the Caucasian nobility, which regularly moved between the Great Powers of Persia and Rome, or Byzantium, or whomever, throughout history.

Fascinating.

Mullings has a nice essay today.

Free Speech, Anyone?

Kevin Holtsberry has a post on some Blogville reaction to Senator Santorum's statements on homosexuality. Apparently, certain groups are trying to "Trent Lott" Santorum for his statement. Here is the precis of the statement:

In a wide-ranging interview with The Associated Press two weeks ago, Santorum, R-Pa., said he believes homosexual acts are a threat to the American family. He drew criticism from gays and Democrats after parts of the interview - during which he compared homosexuality to bigamy, polygamy, incest and adultery - were published Monday.

''I have no problem with homosexuality - I have a problem with homosexual acts, as I would with acts of other, what I would consider to be, acts outside of traditional heterosexual relationships,'' Santorum said during an interview taped April 7 in his Senate office.

''And that includes a variety of different acts, not just homosexual,'' he said. ''I have nothing, absolutely nothing against anyone who's homosexual. If that's their orientation, then I accept that. And I have no problem with someone who has other orientations. The question is, do you act upon those orientations? So it's not the person, it's the person's actions. And you have to separate the person from their actions.''

Given a chance to clarify his comments before the story was published, Santorum said: ''I can't deny that I said it, and I can't deny that's how I feel.''

In other words, Santorum is being criticized for being a practicing Catholic. Santorum makes the same distinction between homosexuality as an orientation or condition and homosexuality as a practice or act that the Catholic Catechism makes. So, it appears that, once again, some groups are attempting to develop a de facto concensus that Catholics may not be elected to public office.

But, incidentally, why is Santorum wrong? What is the principle that allows us to divide homosexual acts from, say, incest? Does the argument that the constitutional right of privacy includes consensual sexual relations in the bedroom where the government should be barred not apply with equal force to consensual private activities between brother and sister (after the age of consent)? If the right of privacy means that members of the same sex should be allowed to marry because the state or society has no right to impose its value judgment on gays, why should the state or society be allowed to impose a value judgment on those who are genetically disposed to love more than one person at a time?

What precisely is the principle? Emotional disgust? But thirty years ago, homosexuality evinced the same reaction that pedophilia causes today. How can we be sure that our emotional reaction against pedophilia won't look naive thirty years from now?

Is the principle simply that the distinction between incest and homosexuality is obvious? But how common is incest? Is there really a need for laws against incest? Why do we care what brothers and sisters do after the age of consent? Do we really think that brothers and sisters will start pairing off when they get old enough to vote. That hasn't been my observation about the relationship between siblings. [Don't even attempt to argue that the offspring of incestuous union are prone to health risks and imbecility. That view is superstitious and unscientific, particularly in the short run. In the long run, inbreeding and cross-breeding are ways of establishing "hybrid vigor." So, if you want to stake your prejudice against incest on science, realize that you are relying on a week reed.]

Finally, if you read Griswold, which held that the nebulous right to privacy included the right to purchase contraceptives, you will see that the actual constitutional right - the actual right to privacy - is the right to privacy in the individual's decision to have children. There is a solid argument to made that the State should not have the practical ability to either breed its citizens, or to mandate that its citizens breed, or that they selectively not breed. These were real concerns at the time. The eugenic policies of the Third Reich were not that far in the past at the time of Griswold. Likewise, the Supreme Court had made its own unfortunate foray into eugenic policy in Buck v. Bell where Justice Holmes had declared that "three generations of imbeciles are enough." In that historical light, Griswold made some kind of sense.

Roe, therefore, follows in the same line by protecting the "privacy" in making decision about reproduction. I may have been the only person not surprised by the prior sodomy decision, but I wasn't. Sodomy - homosexual practices - have nothing to do with reproduction and therefore don't fall into the Griswold line.

[By the way, I'm not making up any of this constitutional exegesis. It's all in the cases. Go read them.]

"Privacy" is an unfortunate term. "Privacy" would seem to implicate what one does in the bedroom. But that wasn't what the Supreme Court has meant by "privacy" in the past. Like I said, under prior case law, "privacy" meant "autonomy in decision-making," not "the right to do anything with your genitals that want to do so long as you do it in your own bedroom."

My prediction is that the Supreme Court has taken up the Texas case to knock-down sodomy laws. All things remaining the same - in a straight line projection of normal legal development - I think that decision will result in decision in the next twenty years constitutionalizing polygamy and striking down incest laws will follow. I suspect that there is a sufficient distinction concerning pedophilia to keep those laws intact, until someone start nicking at the age of consent, probably with scientific studies showing that children are really more mature than was previously believed. Does that sound incredible? Well, consider this, wouldn't it have seemed incredible twenty years ago that the Boy Scouts would be denied public accommodations because they refuse to allow homosexual scoutmasters? And we - members of the elite policy-making "new class" - think that development is unexceptional.

Check back in a decade and I wil say I told you so.

Update: That was faster than I thought. Here is an excerpt from The Volokh Conspiracy which theoretically justifies the decriminalization of bestiality:

Nonetheless, this is a distinctly secondary concern. Bans on bestiality are not, I think, justified, but neither are they tremendously oppressive. Bans on a form of behavior that is vitally important to many people's most important relationships -- that is as important to them, in fact, as heterosexual behavior is important to the human relationships in which we heterosexuals engage -- are indeed tremendously oppressive. Even someone who tolerates modest burdens on liberty should reject burdens that are as grave as this.

There is nothing wrong with this line of thought as a theoretical construct. There may, in fact, be nothing wrong with the application of this theoretical construct to human action. Is there a real risk that rampant "goat-love" willl break out? Probably not. And if the focus of constitutional jurisprudence is a utilitarian analysis of the individual's self-fulfillment, then the conclusion may be mandatory.

There are, I submit, several problems here. First, recent jurisprudence to the contrary notwithstanding, just as the Constitution does not enshrine "Mr. Spencer's social statics," it doesn't enshrine Benthamite utilitarianism or Millsian utilo-romanticism (romantic utilitarianism?) Nowhere does the Constitution say that legislative branch must enact legislative programs from the standpoint of whether a particular individual's happiness is concrete or that his neighbor's discomfort is mere comstockery. Pretty much, outside of narrowly defined constitutional interests, the legislative branch has broad discretion to make such value decisions.

Second, individual preferences can result in substantial social dysfunction because individuals can be quite irrational. As much as I want to believe in the beneficence of the "individual hand" as a libertarian fellow-traveler, it is not the case that the sum of felicitious individual decisions is felicitious social utility. An interesting book on this subject is Sick Societies: Challenging the Myth of Primitive Harmony by Robert B. Edgerton which describes how various social perceptions would result in tribes starving because they could not fish in a specific lake because of taboos. [Edgerton's book is a nice counterpoint to Marvin Harris' anthropological works that find the rationality behind various irrational taboos and, for that matter, Posner's book on law and economic which does the same thing for the common law.] Imagine, if you will, a society composed of individually satisfied bestialists. Would we believe that the maximizaiton of their separate individual utilities offset the broader social dysfunction in their society? [By which I mean, there would be happy contented man-goat relationships, but no children.]

Finally, what is the cost of constitutionalizing the value judgment that individual sexual self-fulfillment is the sine qua non of the legal order. We may think that today, but what if we're wrong? As Justice Scalia noted, however misguided our ignorant ancestors were, at least they bequeathed the opportunity to correct their mistakes. How certain are we that our descendants will share our value judgments?

If history offers any perspective, I submit that we should be extremely skeptical that they will.

This is timely. My partner - not the sensible Canadian, the other one - was just giving me the horse laugh about "organizing a scavenger hunt" to look for "weapons of mass destruction" because Rumsfield had admitted that "we weren't going to find any." I said that that didn't make any sense what with an Iraqi scientist pointing out sites which had housed WMD. Man Without Qualities explains that my partner's urban legend is coming out of Rumsfield statement that he didn't expect US troops to find WMDs, he expected that the the Iraqis would point out the sites.

Personal note. Blogging was light because I was in Los Angeles for depostions last week. I had kind of an epiphany. You see, I hate LA. I hate the traffic. I hate the traffic jams. I hate not knowing whether I will get where I expect to be when I expect to be there or whether I will be stuck in traffic for an interminable length of time for no apparent reason. I hate the "muscle memory" of the freeways.

Coming into LA on Wednesday night is a case in point. I arrived south of Castaic at about 9:30 p.m., when the flow of traffic went from 70 mph to a craw. After threading my way for an hour and about 5 miles, I went past a couple of flares and was up to 70 mph in a matter of seconds. Obviously, there had been an accident there several hours before and the traffic was still reacting to the obstruction like a python trying to clear an orange from its digestive track.

So, then I was talking to the LA attorney who we are working with. He had to go from from downtown to Simi Valley, which is a distance of about 15 to 20 miles. I asked him how long the trip would take at 4:30 p.m. He said, "not bad...about an hour." An hour to go 20 miles. Heck, I expect to be north of Merced in an hour. Then I realized that the problem was my expection. An hours to go 20 miles is not bad if that's what you're used to. I guess I just need to rethink my attitude about LA. I need to lower my expectations. LA's not that bad; it just takes three times as long to get anywhere.

In my humble estimation, this deserves circulation. Penner brought my attention to this Cold Fury post on Hillary Clinton's fabrication of telephone records, which her staff provided to Stephen Brill in what appears to be a petty attempt to pad her resume relative to New York's Senior Senator. As is the case with most such fabrications, a cursory investigation proved it to be fraudulent. [Also, note from the article how reports of Chelsea's location on 9/11 moved progressively closer to the World Trade Center with every report that Schumer's child was actually within five blocks of ground zero.]

It is endlessly amazing to me that people never change. I see it in my job all the time. I have noticed that con-men never change their con. The con stays the same; it just gets bigger and more complicated. It seems that personalities get formed early and they get formed permanently. You can easily imagine a sixteen year old Hillary padding her resume with imaginary accomplishments in her college applications. Probably her entire career has had similar recurrences of petty fabrication and evasions. It's really pathetic.

Catholic and Enjoying It! is back in business. Which is fortuitously timed since my Lenten deprivation was reading CAEI. [Also, William Sulik should be back in operation after his Lenten break.]

Instapundit hooks into an article on Burt Rutan's bid for the "X Prize." Here is Rand Simberg's links on the same subject.

When I was representing Scaled Composites and the Rutan Brothers - Home Town alert: they are both originally from Fresno - I visited the Scaled Composite place of business in Mojave a couple of times. I remember thinking that Burt and his crew had every twelve year old boys dream - they got to build model airplanes and fly them. They are actually a pretty goofy crew. I remember when my firm was representing them they were working on a low altitude, low speed, ground troop support aircraft for the Marines. I guess it didn't make it into production, but it was a fairly small plane - I think it was canard style - with a cannon mounted on one side of the fuselage. They loved telling stories of buzzing Mojave businesses with this really neat plane and just wanted some ammo for the cannon.

I hope Burt wins the prize. Actually, I hope anyone does.

The Command Post has been a redesigned.

Kieran Healy's Weblog has a post on plling data that shows that Republicans predominately think that homosexuality is "caused by upbringing," while Democrats feel that homosexuality is caused by genes. He then provides this:

This confirms a throwaway comment I read a few years ago, I think in the context of the Bell Curve debate. Conservatives think that everything but being gay is determined by the genes and Liberals think everything except being gay is caused by the environment. There’s a moral there somewhere.

I think the formulation is off the mark about Conservatives. I don't, for example, think that outside of some cliche of snobby country club elitism, Conservatives would argue that criminal activity or business success are caused by genetics. There is too much Pelagianism in the Conservative warp and woof for that. I will, though concede that it seems that arguments about the genetic basis of IQ have a conservative bent, although this may be modern well-poisoning. For example, Justice Homes - a darling of the liberals in other areas - was a major proponent of eugenics. See Buck v. Bell ["three generations of imbeciles are enough."]

On the other hand, the snide remark about Liberals seems true. No liberal would be caught dead arguing for genetic differences in any form of behavior, such as criminality or academic performance, nonchalantly accept the most egregious assertions of genetic determinism if it involves the infinitely nuanced behavior known as sex.

Husband charged in Laci Peterson case. Told you to pay attention to the boat.

This is pretty neat if you are interested in time travel. movieblog provides a link to a "Vertigo" tour which provides before and after photos of the same spot in San Francisco. One photo is from the 1958 movie, Vertigo, and the other is a 2003 photo of the same spot. Some of the photos show tremendous redevelopment, others show nothing more than the growth of a tree. Like I said, pretty neat, particularly if you know San Francisco.

I've been getting jumped by some anti-war friends on the civilian casualty issue. The unstated assumption is that the casualty count is in the tens of thousands. Accordingly, I'm posting this link as a prophylactic against future urban legends. Here's the conclusion:

So how many civilians have actually died in Iraq? The simple answer is that it's far too early to come up with anything resembling an accurate count. But it is striking that, as of this writing, the Iraq Body Count Project's maximum stands at less than 1,800. And if there's one thing we can say for sure about the Iraq Body Count Project, it's that the maximum is undoubtedly a true max: Given the group's methodological biases, the chances of the actual number of civilian deaths being higher than its maximum figure seem very, very small. By comparison, the best estimate of civilian deaths in the first Gulf War--where the military task was significantly less demanding and the number of people liberated significantly smaller--was between 2,000 and 3,000.

For the record. Instapundit links to the story that Abu Abbas, who masterminded the murder of Leon Klinghoffer, an American, who incidentally was also disabled and Jewish, has been captured in, of all places, Iraq.

Not that there is any connection between Iraq and terrorism - apart from all those terrorist training camps - or that this war is anything but a distraction from the War on Terror. Oh, and by the way, now that we're downsizing from our commitment to Iraq, I take it that the drumbeat of the Left that we should be unleashing our military against North Korea, which was so strong last month, will be heard again.

Or was that just a strategic gambit and not based on deeply held beliefs?

There was more diversity in the old Soviet Politburo

[Via Best of the Web] My alma mater continues to provide sound reasons for my refusal to provide financial support. The Daily Bruin Online reports:

A groundbreaking but controversial resolution condemning the war in Iraq was passed 180 to 7 by UCLA faculty Monday, but not before a fiery debate about whether they could even take a valid vote.

180 to 7?!? Somehting like 70% of Americans, and 2/3 of Democrats, support the war. Not that this supports the view that elite education is out of with mainstream America.

No more than CNN's complicity with Iraqi manipulation supports the view that mainstream media is hostile to American interests.

The OmbudsGod reads a sententious newspaper the riot act. Cool.

This is a trifle tardy, but The Blog from the Core reminds us that this is the anniversary of Lincoln's assassination. Out of curiosity, I checked my copy of Abraham Lincoln: Speeches and Writings 1859-1865 (Library of America) for the Lincoln's last writings before his assassination. Here is the last entry, which is dated April 13 or 14, 1865:

Concerning passes to Richmond

No pass is necessary to authorize any one to go to or return from Petersburg & Richmond. People go & return just as they did before the war."

That's all. A return to the right of free travel that Americans had enjoyed before the war.

But there is a universe in those simple sentences. For example, Lee had surrendered only some seven days before. Less than a week before, Richmond had been the enemy capitol. It might have been expected that some delay would have been prudent before allowing unfettered access and a continuation of military passes. It wouldn't have been inconceivable that guerrillas, saboteurs and assassins might have enjoyed the right of free travel. Yet, to Lincoln, the risk was apparently worthwhile in order to stitch together the nation through commerce and social intercourse.

And consider the singularity of the absence of internal passports. Other countries had a tradition of internal passports. Le Miserable describes the system which made Jean ValJean an outcast with his yellow passport. The Russians maintained their internal passport system until at least the fall of the Soviet Union. But not America. And Lincoln was not going to wait one moment to restore that particular status quo ante. [But not, incidentally, slavery. Even a cursory review of Lincoln's last writings concerning reconstruction shows that slavery was dead by Lincoln's instructions. For those who want to denigrate the role that slavery played in the Civil War or Lincoln's role in ending slavery, this would seem to be another blow to their worldview.] The gist of Lincoln's last directive was that people should be allowed to return to life.

Our country was fortunate to have a man like Lincoln at that point in its history. Let us pray that Iraq can find its Lincoln.

The Raven provides some observations on the treasures that were looted from Iraq's National Museum. For example,

Another priceless loss is the Vase of Uruk, which is "important as an early example of narrative art using pictures." This is directly associated with the invention of writing, as the bands of pictures that you can see in the detail tell a story, and these were meant to be "read" from the bottom upward.

Possibly of even greater importance is the fact that the Vase of Uruk is "the earliest known depiction of a ritual." This was, literally, our oldest surviving example of religious art. I certainly hope that whoever has this isn't using it as an ashtray or an umbrella stand.

I think we - humanity, that is - will get it back. Something like that is extremely identifiable and collectors won't pay the price such artifacts command without checking out the object's provenance. Also, the next Iraqi government will have an incredible incentive to restore the treasures in the interest of promoting tourism. There is some precedent to this kind of situation. Remember the theft of the Mona Lisa in 1911?

Luckily, the painting was recovered 27 months after it was stolen. An Italian man named Vincenzo Perugia tried to sell the work to the Uffizi Gallery in Florence, Italy for 500,000 lire ($100,000). Perugia claimed he stole the work out of patriotism. He didn't think such a work by a famous Italian should be kept in France. What Perugia didn't realize was that while the Mona Lisa was probably painted in Italy, Leonardo took it with him to France and sold it to King Francis I for 4,000 gold coins.

One of the more bizarre footnotes in history.

Again, I question the failure to put a "tank in front of the museum." But I have more faith in the American military than armchair military strategists. I recognize the fatuity of questioning the judgment of the "man on the ground." I am confident that due attention was paid to protecting the museum, and, if I'm wrong, then the planners deserve to be criticized so they can make the right decision next time. But there are a host of salient questions that would have to be answered before an informed judgment coulf be reached. Was the museum accessible to military intervention? Was it too much to expect a few Baghdad policemen to recognize their duty to protect their country's treasures? How would it have played for an American soldier to have been killed in an ambush on the way to the museum?

But for the posters at the No War Blog the looting of the National Museum is counterpoised against a purported American rush to protect the building which housed the Ministry of Oil. The subtext is that the looting is proof positive of American philistinism and perfidy.

And, still, the stories circulating about the looting smack of urban legend. Certainly, they will be played up for years to come in gauchista circles as evidence that Americans care only about lucre and not art. But, seriously, when did the two events occur? Who witnessed (a) the looting of the museum and (b) the protection of the Ministry? As for the looting, why didn't the curators do something sensible like take the collection down to some secure site - like a safe - to protect it from bomb damage or looting by Americans? Did they trust Americans not to act like, well, Iraqis? By the way, how do we know that the artifacts were even there to be looted? It wouldn't be the first time that a fascist dictator and his hyennas created their own private collections. How about the curators? How do we know that they didn't find the chaos and anarchy a good cover to supplement their pensions?

Now, if all these questions seem impertinent, as suggesting that Iraqis were responsible for the theft of their own treasures in a way apart from the actual looting, well, why shouldn't they be asked? Where is it written that the burden of proof is on America?

Major operations may have concluded, but The Command Post - A Warblog Collective is still in operation.

relapsed catholic points to a couple of posts on the Spider Robinson brouhaha that surfaced last week. One of the posts is the fisking of Spider's apparently pointless column on the war - I mean pointless literally, incidentally. What the heck was his point, apart from communicating some kind of attitude. The other is K. Shaidle's prior bitch-slap about Spider's obsession with John Lennon.

Geez, what's it been? Two decades? Get over it, Spider. Lennon wasn't Mozart. He wasn't Mahatma Gandhi. He wrote dated rock and roll and will be forgotten when the last hippy dies.

As for Spider's anti-American rant, I remember reading a similar rant in one of his Callahan"s Bar short stories. Something about aliens manipulating America's slide into decadence. I've been waiting a long time for someone to return the favor.

relapsed catholic links to a couple of articles gesturing toward the ethno-demographic disaster which is France. Chief among the symptoms is the phenomena of "tournantes."

Everything sounds more cultured and worldly in French, even "gang rape."

Jay Manifold posts on the "Disaster in Baghdad." The disaster being the looting of the National Museum. Although as disasters go this one wasn't as bad as, say, a last ditch gas attack on a civilian population, it is tragic. I suspect that Iraqi officials will spend the next decade retreiving what was looted in less than a day and that many irreplaceable treasures of unreplaceable history will never be recovered.

Like Jay, I have to wonder how this could happen. I don't make it my practice to criticize the experts. Hindsight is always 20/20. But the military plans for contingency on contingency. It is surprising that there was no plan to place some troops at the National Museum. I can see allowing the looting of palaces and banks, but not the museums. I am fairly certain that somewhere in the basic playbook for the investiture of cities there must be something about taking control of the old regime's places of wealth. Does the failure to protect the museum suggest that the soeed of the Ba'athist's collapse suprised our military? Perhaps, it simply was not militarily feasible to put American troops into the Museum area given the near instantaneous transition from order to anarchy and the fluidity of the military situation. I hope we get an explanation someday. I also hope that the military incorporates this contingency into future planning.

The things that you learn on the internet. The SciFi channel is reprising the short run, but memorable, Darren McGavin series, The Nightstalker, and I decided to skip over to IMDB to look up Darren McGavin. I was surprised to find that he was born in San Joaquin, which is an extremely small, dusty farm town in western Fresno County. It's original "Grapes of Wrath" country. Nothing significant here, just local interest. And as long as I've discovered the IMDb, here's the page for my cousin Dan Bradley, which also contains surprises. I knew he was the stunt coordinator for Independence Day, but Monkeybones and Jackass, The Movie? [Actually, there's a number of surprisingly good films listed in there. I haven't seen the guy since I graduated from law school and grandma died. I couldn't be prouder.]

So Cal Law Blog provides a link to a case which affirms that the "case within a case" methedology applies with equal force to bad settlements as it does to bad judgment. [In other words, the client must show that a better outcome would have occurred if not for the negligence.] The Parichan case is distinguished on the grounds that the firm [PRCH] was acting in a dual capacity - as both the attorney for the insured and a "business advisor" for the insurance company. Since it was the insurance company that sued, the case within a case approach was disregarded and the insurance company merely needed to show that it would have accepted a lower offer if it had been provided negligently omitted information.

Now, that distinction strikes me as strained. Case law recognizes the attorney-client relationship between the insurance company and the attorney selected by the insurance company for the insured. In fact, the real relationship is often with the insurance company and not with the insured. [Or so I was loudly advised by an drunken claims adjustor at the Buena Vista the one time I went to the Association of Defense Counsel convention.] Further, clients often rely on the exact same advice to make identical settlement decisions. So, why are insurance companies provided an easier case to prove? It's not entirely clear, but it appears to work in practice as a bit of corporate welfare for insurance companies.

Legal Theory Blog offers his view on the current reasessment of the judicial legacy of Justice William O. Douglas.

Sovereignty and Self-determination

C-Span is covering the Los Angeles anti-war rally. Watching two speakers in a row use the same phrase, I take it that "sovereignty and self-determination" is being tested-marketed by the irrelevant left as the nostrum for deterring critical thought. However, the phrase does provide a springboard for some reflection on the historical meanings of liberalism.

Classically, liberalism was defined by two equally important meanings. Under one definition liberalism meant the liberation of the individual from archaic and irrational vestiges of the ancient regime. Under this definition, feudal dues and superstition were to be eliminated in the interest of increasing the individual's freedom in society. The other definition is equally valid and important. Under the second definition, liberalism meant the liberation of one's nation from foreign control. Under this definition of liberalism, movements of national liberation were fostered. Nationalism was a derivation of this meaning of liberalism where the liberty of the nation was viewed as fundamental to liberty as that of the individual. This movement also, therefore, fostered wars of national unification, such as that which organized Germany and Italy as nations rather than geographical descriptions for the first time in history during the Nineteenth Century.

These two aspects of liberalism have sometime been at odds. French revolutionary armies viewed themselves as agents of liberty because they overturned the old order. On the other hand, French revolutionary, and later Napoleonic, armies did not advance the national liberty of the peoples they forcibly incorporated as, for example, the Batavian Republic.

The phrase "sovereignty and self-determination" therefore has a historical pedigree which plays on the ambiguous relationship between liberty as the freedom of the citizen within a nation and liberty as the freedom of the nation. Sometimes, vindicating one means intruding on the other. Germans in 1946 may had more liberty than they had in 1944, but it was at the expense of their national sovereignty.

Now, do these people really mean what they seem to be saying? Traditionally, the roots of the modern left have been in the camp which extols the liberty of the individual. The tradition of the French Revolution, if you will. As I have understood it from listening to them during the last twenty years, the liberty of the individual in South Africa or Chile entitle the intrusion into the nationalistic prerogatives of sovereign states. Has this viewpoint changed? Have they thrown in with the nationalists and the tradition that led to pan-Germanism and National Socialism?

Likewise, it is quite touching to read the new found interest expressed by some leftists in the virtues of order. This entry from No War Blog for example:

Liberation from Social Order

Saddam is gone, and that's a good thing. Too bad there's literally nobody there to take his place.
No government at all is not really an option, no matter where you live. But especially if you're living in a hospital after being in a country that was bombed...

A reader is allowed to draw his own conclusion, which is that order under repression may be preferrable to suffering under liberty. Of course, this argument identifies itself with the apologetics for Pinochet, Franco and the other strongmen of history.

Finally, that anti-war rally is just plain silly. Apparently, they have a virtually unlimited supply of speakers and performance artists to whom they allot approximately two minutes to do their thing. And, also, in counterpoint to those who argue that the photographers went out of their way to find absurd or outrageous signs in order to trivialize the anti-war movement, I can spot a sign equating Bush to the Anti-Christ within the first rows from the speakers podium and C-Span just flashed on a poster with Bush as Hitler and Cheney as Napoleon and the legend "1984" - I presume as an homage to George Orwell. The whole show seems like high camp.

Read this Victor Davis Hanson column for his response to Maureen Dowd. Fascinating, Hanson gets quoted by Vice President Cheney so he finally becomes important enough for Dowd to notice. I like Hanson's response for two reasons. First, he's a Fresno guy from the part of California that Californians "flyover" on their travels from the Bay Area to Southern California and back again giving the Countess of Condescension a round of what-for. Second, it's no contest. Hanson has read Machievelli and he can quote Sherman and Thucydides. He really shows what this country lost when it traded knowledge of the classics for courses of study based on balkanized interest groups.

It really makes me think about changing my party registration and starting a grass roots campaign to replace Cal Dooley.

James Lileks tries to reconstruct the thought processes required for someone to think that a prison for children would ever be a good idea.

Hometown Pride Moment

The Corner on National Review Online mentions that Vice President Cheney quoted Victor Davis Hanson. I didn't hear that, but I did hear Secretary Powell quote Hanson on his opinion that the campaign to Baghdad will be studied as a classic of military strategy. It makes me want to forgive his mother for passing on the opportunity to hire me as a law clerk for the Fifth DCA. By the way, don't underestimate the beneficial influence of war gaming. Hanson's statements that he is a lifelong Democrat from a family of Democrats is absolutely accurate. Justice Pauline Hanson was well known as extremely liberal by Fresno standards, which would make her mildly conservative by New York standards. I do know from some fencing, science fiction, war gaming buddies of mine that Hanson himself was an inveterate war gamer and, as they say, the rest is history. In any event, it is so nice to hear something on national news related to Fresno which does not involve a serial killer or the declaration of a dump as a national historical monument.

Richard Brookhiser at The Corner on National Review Online has this anecdote:

A favorite moment of mine is the exchange--although that's not quite the right word--that occurred when Geoffrey Hoon, explaining the situation in the House of Commons last week, said that 'Umm Qasr is a city similar to Southampton...."

Getting word of this, a British soldier fighting for Umm Qasr felt he had to disagree: "There's no beer, no prostitutes, and people are shooting at us. It's more like Portsmouth."

Sounds like Clovis, except for the part about beer.

Jane Galt notes that the anti-war movement seems to be aging, which would explain the tired cliches and retread political props.

"Americans are coming to free us."

[Via the Corner] Check out this story about Jailed Iraqi children run free as marines roll into Baghdad suburbs.

Around 150 children spilled out of the jail after the gates were opened as a US military Humvee vehicle approached, Lieutenant Colonel Fred Padilla told an AFP correspondent travelling with the Marines 5th Regiment.

"Hundreds of kids were swarming us and kissing us," Padilla said.

"There were parents running up, so happy to have their kids back."

"The children had been imprisoned because they had not joined the youth branch of the Baath party," he alleged. "Some of these kids had been in there for five years."

I had asked previously for some reflection why anti-war protesters - much less the human shields - are not equally culpable under the standard applied to criticize Pope Pius XII for his "silence" about the Holocaust. The question will become sharper as more and more of these examples are disclosed. It is certainly the case that anyone with an ounce of intelligence knew that this kind of thing was occurring in Iraq but no one who hasn't been there could have really "known" - appreciated, understoond, accepted - the full import of what it means to have a fascist regime in full control of a country for more than three decades. Similarly, we all are pretty much sure that comparable things are occuring in North Korea and Syria, perhaps Saudi Arabia, but right now none of us can really say that we know that those places are engaging in such horrifying practices.

By the way, it is a fine republican tradition to drink a toast to the death of tyrants. I drank one such when Brezhnev translated to the dark and fiery place. [Not that I had any more personal animosity against Brezhnev than I would have had against a Fuehrer Speer if the Third Reich had lasted as long as the Soviet Union.] With any luck, I'll soon be drinking one for Saddam when he takes up his new position as Baphomet's bung-boy.

SCOTUS Blog links to the Supreme Court's decision in the "cross burning" case.

By the way, the SCOTUS held that a state law criminalizing cross burning with an intent to intimidate is constitutional. The decision places cross burning under the "threats" exception to the right of Free Speech. It seems that the "threats" exception is getting quite a work-out these days as the basis for criminalizing "speech acts." For example, the Nuremburg anti-abortion web site was a "threats" case [See this earlier post] , as was a recent decision that put a juvenile in prison for handing a fellow student a not atypical angst filled poem. [See the last entry in this The Raven post. or So, it appears that this is the season to justify limiting speech because someone somewhere feels threatened.

I am in no way a First Amendment absolutist. I can understand Justice Posner's point that much of jurisprudence is, or ought to be, pragmatic. The Supreme Court is not a collection of philosophers working out rules of behavior divorced from a real social context. It is the case that in our country we have had racism and the Ku Klux Klan which used the symbol of the burning cross to intimidate and threaten. Ridding society of that evil may require controlling the symbols used by those villians.

But I also have to wonder. Threats are subjective. Threats only exist because another person feels threatened. As the Nuremberg case, supra, pointed out, threats are actionable even if they can't be carried out or are impossible from an objective point of view. A person can be threatened by voodoo, which, in essence, is what happened in the Nuremberg web site case. Are we giving some people a "sensitivity veto."

Likewise, much to the consternation of one of my partners, I think that flag desecration laws are justifiable on historical grounds. We have one symbol that unifies us as a people. Many worthy people have sacrificed themselves for that piece of cloth. Depriving folks of one symbol of protest does not deprive them of all symbols to burn or desecrate. William Lloyd Garrison, for example, burned the Constitution, which certainly was more logical than most flag burning protests inasmuch as the Constitution recognized slavery and Garrison was virulently opposed to slavery.

Feel free to disagree with me. You've already won the argument since the Supreme Court has held that flag burning is protected speech.

But what if I feel threatened by flag burners? After all, history shows us that a small group of zealots can take over the mechanism of the state and use it to create gulags, starve populations and launch aggressive wars against neighboring countries, and those people hated the things that the United States stood for. Those people would equate the flag with capitalism and shoot the capitalists. Perhaps, the flag burning case needs a fresh look.

Does that sound silly? What may not be silly is the use of "threats" to create a basis for content based discrimination. Thus, abortion critics and racists are threatening, but PETA and enviro-whackos and protesters with signs that support only "troops who shoot their officers" are demonstrating a wicked sense of social satire. Is the incessant use of red banners and flags in various protest intended simply to inspire class solidarity, or do those symbols communicate a threat to those who are not be committed to whatever fantasy the Stalinist are currently concocting?

Doesn't it seem like there's an awful lot of political prejudice being incorporated into constitutional law. Thus, for example, Communists are just "liberals in a hurry" but Nazis are hate-filled thugs. My estimation, incidentally, is that they are both hate-filled thugs. A further point is that under even this analysis the famous Skokie case - where Nazis marched through a township with a high concentration of death camp survivors - was wrongly decided. If any of Skokie's residents felt threatened - which seems reasonable - wouldn't the township have been constitutionally justified in denying the permit to march? Perhaps the Skokie case needs a rethink. [On the Skokie march, check out this column by Eric Burns at FOXNews in which Burns discloses that he loathes the ACLU because of its position on the Skokie march.]


I have no real answer to the conundrum of reconciling my agreement with laws that attack historic social evils and my agreement with the proposition that laws involving speech should be content neutral. All I know is that you can (a) burn flags whenever you want and (b) not burn crosses if someone might feel intimidated.

I am, however, confused as to whether you can wrap a flag around a cross and then burn it.

So Cal Law Blog has a case on the imperviousness of unjust enrichment causes of action to demurrer, which is useful since I have a couple of those going on right now.

This may prove interesting. Follow the links at the So Cal Law Blog to a transcript of the oral arguments on the Supreme Court affirmative action case.

No War Blog has moved into self-parody. Here is an excerpt of a post on "end game strategy:"

But as much as the major media buzzes, there won't be real discussion because *that* requires a wide range of voices to be heard. This http://www.fair.org/press-releases/iraq-censorship.html media advisory from the New York-based Freedom and Accuracy in Reporting was read on Radio Havana last night. It opens, "Although the invasion of Iraq is being fought under the name 'Operation Iraqi Freedom,' it has constricted the range of expression sanctioned by media outlets within the U.S....

Radio Havana?!? The source is a "media advisory" from "Freedom and Accuracy in Reporting" heard on "Radio Havana."

Who are these people? How come they are allowed near keyboards or any other object with points?

Incredible

On Fox, Eleanor Clift looks like she is sucking on a lemon as she acknowledges that America is poised to take Baghdad two weeks after the commencement of military action. The Fox legal analysis guy points out that the Ba'athist war criminals have killed 100,000 to 200,000 Kurds, have a morgue with hundreds of bodies and documents memorializing how the individuals were killed and committed other war crimes.

Cliff's response?

12 years ago the government did nothing.

For crying in the church, these people opposed the last Gulf War. They opposed this war. If they had their way Saddam would be merrily killing Shi'ites and Kurds with even better WMD than he had available to use. And they presume to assume a moralistic position that (a) America is immoral for prosecuting this war and (b) America was immoral for allowing the slaughter of the Kurds 12 years ago by presumably not renewing the war at that time. [I don't think Clift supported the Gulf War in 1991. Although I do not have direct information on this, I strongly suspect that she would have sided with the 47 Senate Democrats who voted against that war. Does she, therefore, have any moral claim now for a policy which was consistent with her presumed position at the time that that the war should not be prosecuted? Likewise, ten years from now will Eleanor Clift be entitled to condemn America for not being aggressive now inasmuch as she is now criticizing America's policy as overly-aggressive? Is life nothing but a blank check for Clift?]

As I have heard one judge say to a prevaricating attorney, "you have to take a step back and think about what you are saying."

The real point of this post was to draw a parallel between the further information that we have about Saddam's crimes against humanity - but which we really have had all along - and Pius XII purported "silence" about the Holocaust. As I understand it, the modern indictment of Pius is that he didn't speak out against the Nazis and that this in some way demonstrates some moral failing on his part, even, perhaps, making him a crypto-Nazi or "Hitler's Pope" [Let's put to the side the inconvenient historical facts of the anti-Nazi encyclical "Mit Brennender Sorge" and the equal "silence" of Roosevelt and Churchill. Let's just note that Pius is popular branded a Nazi supporter for his "silence" regarding the evils of the Holocaust.

How, then, shall we think of the "anti-war" or "peace" activists? When the war crimes trials start and we are forced to face the enormity of Saddam's crimes, will the folks who staged "vomit-ins" or went to Iraq to support Saddam's regime or simply remained silent about his crimes be viewed as crypto-fascists or supporters of murder?

If not, why not?

Further Reflection: After looking at this post further I realized that I wanted to make it clear that the questions asked are in the nature of questions - perhaps Socratic questions - but questions. How do people of that mindset distinguish between the left's criticism of Pius XII and the anti-war position on Saddam, which ranged from silence and explicit denials of evil - unlike Pius, who to my knowledge certainly never affirmatively claimed that the Nazis were not committing war crimes - to active support in the form of human shields? Is Eleanor Cliff really unaware of the inconsistency of her position? Is silence qua silence, like that attributed to Pius tantamount to support, and, if it is, why doesn't the same rule apply to the anti-war protestors? Is it the case that the Pius is to be held to a uniquely higher standard vis a vis the anti-war movement? But why should that be the case? Did Pius's "silence" hinder the Allies' war efforts? On the other hand, what effect did pictures of protestors have on the resolve of the Ba'athists not to leave Iraq? What about the "anti-war" efforts of France and Germany in submarining America's attempt to get soldiers to Iraq's northern front? Does that conduct make Chirac "Saddam's Premier." Is the rule that those with lesser standards of morality are not held to the same scrutiny? But, if that's the case, why should anyone listen to them? Why should they think that what their positions should be given any moral weight?

Or is the moral position of the anti-war protestors simply the opportunistic manipulation and posturing that Socrates condemned as sophistry?

pro deo et patria aka Bill Cork's blog has a number of cool entries. First there's the Eric Burns' column pointing out that objectivity is not the same thing as neutrality. There's also a link to John Keegan's latest column that "Even the Iraqis can't deny who has the upper hand." Finally, there is Bill Cork's own compare and contrast between "two young idealistic girls" - Rachel Corrie and PFC Jessica Lynch. Go there and read the post - it's worth it, particularly if you are, like me, the father of daughters. [Look to Friday at 7:59 PM - for some reason internal jump links don't work.]

Military.com looks like an interesting site for military information.

Here's the on-line site for the U.S. Naval Institute: Current Proceedings which it seems like I've been sporadically reading since High School thanks to the Old Man's habit of leaving them lying around.

Man, I thought that conservatives were supposed to be the hate filled spewers of vitriol unredeemed by the simple love for one's fellow man. There's no way that any conservative I've ever been exposed to could manage to match the comments left on the Democratic Underground's web site about the death of Mike Kelly.

Perhaps, they used up all of their love of fellow man in supporting a criminal regime in Iraq?

"This is a deeply mysterious war."

In January, Penner and I tried a case where the other side had refused to offer any real money. They were facing several hundred thousand dollars in exposure. The law seemed clearly on our side. Yet, we got nothing but nuisance offers. So, we went to trial. Every day I waited with baited bated breath for the surprise - the evidence or legal authority that I had overlooked which would destroy our case in one fell swoop. It never came and after 10 days we settled the case on terms we would have always accepted.

John Keegan points out that "Saddam's" war strategy has a similar appearance. Maybe Saddam has some brilliant counterstroke planned. Maybe his plan was to allow the capture of his bridges. Maybe his plan was to lose his only port within ten days. Maybe his plan was to allow the Coalition to advance into the suburbs of Baghdad. Maybe his plan was to allow the decimation of his Republican Guard units. That all may be true but it certainly doesn't sound like a coherent strategy according to Keegan.

Hopefully, the counterstroke will not be a gas attack - although Fox is reporting contradictory statements by the Iraqi Information Minister, who is now being openly mocked by a Fox News reporter, that tonight will be night for "nonconventional attacks." On the other hand the lack of chemical attacks is being used to indict the war. Here's a post from No War Blog - Sadaam: Responsible, Clever, or Insignificant?

Either: (1) Sadaam is showing an "astonishing degree of responsibility and restraint in the teeth of extreme provocation" by not using his weapons. (2) The US is heading into a trap. Or, (3) there are no WMDs to begin with.

At some point I wish that historians would end their endless political posturing and actually start teaching history. [See generally, History News Network.] Consider, for example, Adolph Hitler. One of the odd things about World War II was that Hitler - who had no significant moral qualms to gassing civilians - never unleashed gas on Allied troops. Why not? Perhaps fear of a counter-response. Perhaps a residual sense of honor among the Wermacht. It certainly wasn't evidence of Hitler being "responsible, clever or irrelevant."

Likewise, I read an article in Proceedings, the Journal of the Naval Institute, during the late 70s where the author opined that (a) the USSR could never achieve its utopian Marxist fantasy, (b) its economy would collapse because its inherent dysfunctions - both of which were brilliantly prescient - and (c) faced with collapse the Soviet regime would use nukes before it went into the darkness - which turned out to have been somewhat off the mark. The question, though, is why not? For that matter, why didn't the Soviet regime fire on the protesters in the street during the communists counter-stroke? A mere fourty years before, Stalin would have.

Let's pray that whatever historical forces which spared the side of decency from such attacks in the past still applies today. Whatever the answer, the answer is not that the Ba'athist's restraint "proves" that Sadam is "responsible, clever or irrelevant."

"Does this [guy] know he's a verb?"

The Command Post memorializes Robert Fisk's report from the Saddam Baghdad International Airport. For the record, Fisk reports that he was at the airport and didn't see any Americans. He then incorporates a few snide comments about the Americans. He compares the Americans to the Nazis. He files his story.

The Americans then take the airport and rename it.

What a doof.

A Good Iraqi

And a lawyer too. Read The Command Post on the Iraqi who decided to tell the Americans where PFC Lynch was being held.

The Blog from the Core asks "Why Can't American Journalists Route for the Home Team During Wartime?"

Good question.

Instapundit demands that we go immediately to The Bleat and he's right. Here's an offhand comment that merits meditation. Lileks initially notes that the Ba'athists are now calling for resistance not in the name of Pan-Arabism or Socialism, but in the name of Allah. He then points out:

By using them, the dying regime helps discredit them - those who see the war in those terms will learn again that Allah has declined to intervene, and they’ll have to wonder what that bodes. (It's interesting that Christianity's founding moments incorporate the concept of divine indifference - Jesus himself asks God has forsaken him, thereby introducing from the start the idea that God's plan may not necessarily conform to the immediate needs of man.)

Interesting observation vis a vis the perenial question about why God allows bad things to happen - look how He treated His Son. His plans are a mystery.

And then there's this passage which will make any parent verklamptwhen he writes about dealing with his daughter's fear of "monsters:"

So we went back to her room, made sure the light was on, cued up some music, and I tucked her in with the promise we would make cupcakes tomorrow after we went to Target. Then I told her I would sprinkle Magic Sleep Dust on her, and it would send her off to slumber - but only if she believed that it worked. “Trust the dust,” I said.

“Okay, Daddee.” She grinned and tucked her hands under her cheek and smiled. She closed her eyes and I sprinkled the dust. Kissed her goodnight and left the room. Not a peep since. She truly did want to sleep; I just came up with the right words that let her do what she wanted to do, and once I left the room she shut out the dark and turned her mind to cupcakes.

Jay Manifold answers the charge that "America has never started a war before now." Right, I'd forgotton those.

Actually, the truth is that - like Russia - America is a "Country Made by War." Which is why I carefully hedged a previous post by claiming that America has not started a war in the last 100 years.

Instapundit offers an example of the end result of multiculturalism, which affords me the opportunity to post an excerpt of a Conversation with John Searle, which I have just located:

Yes, well now this is a particular manifestation of what I was talking about, and I think, in a way, it's the worst single manifestation of this. We have abandoned the idea that the university invites the student to become part of a universal community of scholars, part of a universal community of human civilization, where you achieve individual self-definition through participating in a universal human civilization. Now what we tell you is, what's your ethnicity? What's your race? What's your gender? That's who you are. You don't define yourself. You are defined by race, gender, class, ethnicity, and cultural background. And that isn't just stupid, that's evil. I'm fighting against that, but I think a lot of people now accept that. They think that's perfectly legitimate. And one way to put it is to say that traditionally in America, such things at that were regarded as accidental. It's like you're blue-eyed or you're left-handed. You don't build your life around being left-handed, and you don't build your life around your ethnicity or your race. These are just stupid accidents of your birth.

From the interview, it appears that Searles helped initiate the Free Speech Movement at Berkeley, which he recognizes subsequently became vulgarized as a pattern for subsequent Leftist protest - a development which he appears to regret.

Dodd has a post on Jane Fonda's support for the war in Iraq. Read the post. And be sure to click on the links which contain other bits of useful information. I particularly support the Alabama legislature's efforts to change the value of Pi to "3." There is no place in our pragmatic society for the holdover of primitive superstitions such as co-called irrational numbers.

Interesting theory about how 101-280: Michael Moore fans might be thinking, particularly in light of the many, many fabrications contained in Moore's "fictomentaries." I like the point that calling them uniformly "stupid" is simply dressing up Marx's "false consciousness" rhetoric in new clothes.

The next time you hear one of the anti-war pro-appeasement types pontificate that America is attacking Iraq because of "racism," tell them politely to get "bent."

Let me be first on the block to draw this historical parallel between the situation facing Coalition forces who are facing Ba'athist paramilitary forces using the Ali mosque as a sanctuary and the situation facing Allied forces in World War II who were facing Nazis using Monte Cassino Monastery as a fortress. We, of course, levelled the Christian holy place.

Now, note the Allies didn't destroy Monte Cassino immediately. Due weight was given to the religious and historical importance of the monastery. Warning to the monks were given. Much ex post facto recriminations occurred.

But we bombed the Christian monastery into rubble.

From this site comes the following anaysis:

Was the destruction of the monastery a military necessity? Was it morally wrong to destroy it?

The answer to the first question is 'yes'. It was necessary more for the effect it would have on the morale of the attackers than for purely material reasons.

The answer to the second question is this: when soldiers are fighting for a just cause and are prepared to suffer death and mutilation in the process, bricks and mortar, no matter how venerable, cannot be allowed to weigh against human lives. Every good commander must consider the morale and feelings of his fighting men, and, what is equally important, the fighting men must know that their whole existence is in the hands of a man in whom they have complete confidence. Thus the commanding general must make it absolutely clear to his troops that they go into action under the most favourable conditions he has the power to order.

In the context of the Cassino battle, how could a structure which dominated the fighting field be allowed to stand? The monastery had to be destroyed. Withal, everything was done to save the lives of the monks and their treasures: ample warning was given of the bombing.

The great Benedictine monastery, from which a magnificent view of the surrounding country can be gained, has been completely rebuilt in cut stone. Both outside and in, it has been restored to its former condition, even down to the marble work and interior decoration.

The bombs of the Allied air forces had left nothing of the building standing except part of one of the outer walls - all else was a heap of rubble. Yet amidst this appalling destruction St. Benedict's tomb, in the centre of the monastery, went utterly unscathed.

Now, no one should be advocating a similar treatment of the Ali mosque now or any time in the future. The political ramifications of such a move would be too dreadful to contemplate. Nonetheless, if in the future a similar military decision is made, can we at least be spared the knee jerk accusations of racism and imperialism.

Or are Christian shrines deserving of less protection?

Cousins

I jumped over to Mystique et Politique looking for something on which I could base a snide reference to Canadians - to cheese off Penner, my Canadian law parner - and to the use of French in the names of blogs. What do I get instead? A supportive essay about America and a referral to a moving article by a Canadian officer about America's unquestioning willingness to go into harms way in Bosnia for their Canadian "cousins."

Now, I just feel awful about my mean spirited desire to engage in Canadian bashing.

This probably means that I have to buy Penner a drink tonight.

I have made it a routine to go check out the No War Blog on a regular basis. My thinking was that the different perspective might be useful in keeping fully informed. My current thinking is "what a waste of time."

In the last 24 hours, we have had a POW liberated, crowds cheering American forces, solid evidence that Saddam is enjoying his virgins and the decimation of the "elite" Republican Guards. So what does the No War Blog talk about? Certainly not those stories. Instead, they are masticating a rumour that the US may be running out of JDAms, the BBCs complaints about the "lie machine," "self-inflicted" disasters in the battle for the hearts and minds of the Iraqi people, and the - I assume - evil attempts of the US and UK to buy the loyalty of Iraqi tribal sheiks.

I guess the left feels that if it doesn't let you sneer at the stupidity and cupidity of the Americans it isn't worth thinking about.

Likewise, on the way to work, I flipped on NPR. What are they reporting? America's destruction of the Republican Guards? The effect that this story will have on the length of the war. No, of course not. They have one of their classic human interest pieces on one of the last remaining American human shield who gets awakened at 8 PM so he can stand around in a power plant.

Yup, the liberals need their own network to combat the influence of AM talk radio.

Ben Domenech provides a link to a really great map of the Iraqi theater of operations. [Scroll all the way down to the link to the Agonist.] Actually it looks like the map is being updated since the "blue boxes" have moved quite a distance toward Baghdad since I first "blogged" this post last night.

The OmbudsGod has an amazing "compare and contrast" showing dramatically different attitudes of two newspapers concerning showing pictures of American POWs.

FOXNews has this text of "Saddam's" speech on its site. The speech seems, well, nuts. It doesn't sound like the secularist Ba'athist tyant who has so memorably oppressed his proud land for so long.

Hey, maybe he's road kill.

Giving "tawdry American-hating weasels" a bad name.

Mona Charen provides her perspective on Peter Arnett, and, incidentally, promotes her book. This, I did not not know:

This is hardly Arnett's first slip. As it happens, Arnett makes an appearance in my book "Useful Idiots" for his reporting from Vietnam. Remember the phrase, "We had to destroy the village in order to save it"? It has become totemic. Arnett was the originator of the phrase. The trouble is, as first B.G. Burkett and then I discovered after a little investigation, the report was wrong. It wasn't the United States that destroyed Ben Tre (a town, not a village), but the Vietcong. And the soldier Arnett was most likely quoting remembers saying, "It was a shame the town was destroyed," not the fatuity Arnett made famous.

Fresno's very own Victor Davis Hanson offers a decade of thoughts about the American "way of war." I like this one:

(9) Our military no longer is just a fighting force per se, but is asked to preserve oil fields, clear waterways, organize oppressed peoples like the Kurds, feed those without food and water, and under fire distinguish killers from innocents. It is hard to fight a force that employs everything from dolphins to satellites. When it clears Iraq of Saddam Hussein, it will have been done more to feed and help the Iraqi people than all the efforts of the U.N. of the last two decades.

The Command Post: Saddam Speaks? Nope.

Do we need a law to protect the civil rights of our most recent minority group? [The fact that this guy parlayed $800 into $350 million would support his claim in every book I have read on the subject.]

IsThatLegal? opines that Peter Arnett probably would not not be found guilty of treason, but not because he did not give "aid and comfort" to the enemy. Instead, he may not have had the intent to betray his country.

Maybe, but if I recall correctly, people are presumed to intend the natural and probable consequences of their actions.

Frankly, I'll confess, though, that I don't know if that rule applies to what may be a mens rea element in criminal law. Anyone else know?

Bjorn Staerk sees the light! (Again)

[Via Command Post] John Keegan weighs in with an assessment of the Coalition's strengths and weaknesses. He has this to say about the war coverage:

The headless chickens whose cluckings and splutterings currently fill the media are more blameworthy. War has been their staple diet for much of their professional lives, but they seem to have made precious little effort to understand what they are paid to report. And in the age of rolling news, even the fair-minded are hampered by the scramble to react to the last reported event.

Speaking of military mistakes [see post immediately below], please consider this post by David Frum on the many mistakes of D-Day. I do not profess to be a "military history guy," so I was surprised to find out from my father - Lt. Bradley (Ret.) - that there were instances during the Italian campaign of paratroop units being wiped out by friendly fire. This came out of my inquiry as to whether the incredible percentage of non-combat deaths relative to combat deaths we see in the current conflict had a historical precedent. What may be significant about the current situation is not the number of deaths at the hands of those who are not the enemy; it may be the fact that there are so few deaths by enemy action. [And let us pray that that situation doesn't change.]

Stanley Kurtz has an intelligent explanation of American mistakes in this young conflict. His point is to recognize the mistake and learn from it. On a deeper level, it looks like the age-old dream of surgical wars played a role in planning for this war. Since at least Kennedy, there has been the optimistic belief that wars might be won by air power. I think history has rather conclusively established that wars can only be won by sending in the ground troops. The other issue Kurtz discusses, which Kurtz mentions in the context of the debate between "pragmatic hawks" and "optimistic hawks," is the phenomenon of an expensive, technologically sophisticated weapons platform being defeated by a cheap, low tech weapons system. This phenomenon is not new; it was noticed in the Nineteenth Century by Rudyard Kipling in the poem "Arithmetic on the Frontier:"

A scrimmage in a Border Station --
A canter down some dark defile --
Two thousand pounds of education
Drops to a ten-rupee jezail --

Here's The OmbudsGod comprehensive, continually updated list of newsites, which I want to keep at the top of my posts until I can figure out how to update my template.

Fantastic! I get to keep my subscription to National Geographic.

National Geographic Fires Peter Arnett. I particularly like how the National Geographic puts the word "misjudgment" in quotes.

INTEL DUMP suggests that support for the troops be expressed by donating to Army Emergency Relief or the USO Care Package Program.

Thanks for the idea.

This weekend I was told by a CNN viewer that while there may have been one or two instances of Iraqis expressing support for the Coalition, there had been no large instances of such support. One hopes that this story from Lycos News is the precursors of a hopeful future:

Hundreds of Iraqis shouting "Welcome to Iraq" greeted Marines who entered the town of Shatra Monday after storming it with planes, tanks and helicopter gunships.
A foot patrol picked its way through the small southern town, 20 miles north of the city of Nassiriya, after being beckoned in by a crowd of people.
"There's no problem here. We are happy to see Americans," one young man shouted.
The welcome was a tonic for soldiers who have not always received the warm reception they expected after U.S. and British leaders told them the Iraqi people were waiting to be freed from repression under President Saddam Hussein .

Bill Cork points to an interesting article in ArabNews. The title of the article is ": Exclusive: Civilians Caught in Basra Carnage," but the text contains more ominous news for the Baathists. Read this excerpt:

The father of three Iraqi soldiers walked his sons through a British-manned checkpoint and told them to surrender themselves.
When asked by Arab News why he did this, he said: “This battle is growing more and more hopeless every hour. The Iraqi soldiers are dispirited and running out of ammunition. They are no match for the Americans, and they will be killed. I don’t want that. I would rather that they stayed alive as prisoners of war.”
Arab News asked the three surrendering soldiers — aged 17, 23 and 26 — whether they had actively fought the Americans in Basra.
Their reply was “No, no, no.”
“We are deserting the army,” one of them explained. “We are surrendering to the British because we do not want to fight anymore. We want the protection of the coalition forces as we will surely be hanged by the Iraqi Army for refusing to fight.”
On the way out of the city, as Arab News passed an Iraqi, he asked this correspondent whether I spoke Arabic. He became furious, despite the fact I lied by saying that I did not.
“You’re Arabic, and when this war is over, you will see what we are going to do to the Arabs,” he said. “We will kill the Arabs. They are bastards.”

The image of a father requiring his sons to surrender is striking. More striking is the defeatist attitude expressed by the soldiers. In fact, they ought to be defeatist. What person in their right mind would what want to be facing an apparently invincible enemy? And they look at the last ten days of war and the fact that the Iraqis have managed to kill less then fifty Coalition troops, invincible is not an irrational assesment.

Perhaps it is an outgrowth of the continuing "Vietnam Syndrome," but a lot of Americans still harbor a visceral defeatist attitude about American military actions. Heck, I should know. I was in High School when Jimmy Carter botched the hostage rescue. [Of course, it wasn't Jimmy Carter, but the idea of American military incompetence wasn't helped by Carter's policy decisions.] I expected the military to fail. After all, that was the message that had been drummed into my young head by the popular media.

Likewise, before Gulf War I, there was a large contingent of experts who were declaring a military disaster. Remember, at that time, Saddam's army was the fourth largest in the world. His troops had extensive battle field experience. Our tanks would not operate in the desert where there intakes would clog with sand and dust.

Gulf War 1 should have created an image of American invincibility. That image is a military asset, not merely propoganda. The importance of such an asset can't be discounted. Think of the militaries that have succesfully capitalized on such a reputation - the Spartans, the Romans, the Prussians, the French (circa 1805), and Germany. What was the value of the idea in the mind of the militaries of those powers, and in their enemy minds, of their invincibility.

Which is why Saddam displayed the mechanics captured in the first days of the war. He needs to communicate to his forces that the Coalition's troops are not supermen, but can be defeated. Likewise, my concern with news reports in the American media, not limited to Peter Arnett's interview, that express defeatist attitudes is that they squander a not insignificant military asset.

The Command Post - A Warblog Collective links to a report that China has interrupted oil to North Korea in order to exert pressure. Here's a quote which may explain some of China's thinking:

. . . "When the administration started this war in Iraq, they sent a message to countries who have or have had conflicts with the U.S., a clear message: The U.S. is not a paper tiger, it's a real tiger. And also that as a major power, the U.S.'s voice and principles should be listened to closely," said Zhang Liankui, a Central Party School professor. "If the U.S. quickly finishes this war successfully, the North Koreans will be more cautious in the future."

CNN reporter lauds discipline of Berlin under the Nazi's. Er, I meant to say Baghdad under the Baathists.

Fox News has been showing clips of Peter Arnett's interview with an Iraqi government official where Arnett explains that the US military plan is in disarray.

What has happened to the Western World? Have the principles of propoganda been repealed simply because Westerners are too sophisticated to be taken in by propoganda? I care nothing about the truth about what Arnett says or the effect it might have on American troops, but isn't it obvious that Arnett's interview will have a tendency to become a self-fulfilling prophecy? What the US needs is to present the image of inevitability, of the hopelessness of the Baathist cause. What Arnett does is give hope to the Baathists and their "useful tools." One can see the thought processes of a potential suicide bomber who might be induced to believe that his sacrifice may bring about the end that Arnett assures him is possible and therefore travels to Iraq to participate in bringing about Arnett's glorious vision.

Obviously, Arnett's statements are not accidental. It is not a coincidence that he has been given unusually broad freedom by the Iraqi government.

The other thing you have to wonder about is why Arnett has not had a "road to Damascus" experience like so many other naive leftists have had. Is he talking to average Iraqis? If not, why not?

What then is the difference between Arnett and Tokyo Rose? Except, of course, for the facts that Tokyo Rose was a Prisoner of War ordered by Imperial Japan to make propoganda broadcasts who was assured by the American and Australian POWs who wrote the script that she wasn't doing anything illegal.

The other difference is, of course, that Tokyo Rose was innocent of treason.

Update: Instapundit reports that NBC has canned Arnett.

Second Update: Arnett has reportedly apologized on the Today Show for the interview as a "stupid misjudgment." Amazing how being hit in the wallet causes an increase in "wisdom." Anyhow you can see how easy it is to make a "stupid misjudgment" by voluntarily and intentionally appearing on the propoganda machine of a government your country is at war with in order to say things that would foreseeably stiffen resistance among its supporters and which would obvously lead to more deaths among your country's military in order to increase your visibility and career.

That kind of thing happens all the time.

Yet another update: The Corner references NBC's initial defense of Arnett and the focus in media criticism about Arnett's "bad judgment" in becoming an "actor" instead of a reporter. What about becoming an "actor" in support of a regime that commits mass murder? Doesn't that have any traction in analyzing Arnett's misbehavior?

[Via Command Post]A majority of English speaking world believes that UN was mistaken in not sanctioning action against Iraq.