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Gay rights and terrorism

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Andrew Sullivan points the way to an almost indescribably idiotic column by Dennis Prager in Town Hall Magazine.

America is engaged in two wars for the survival of its civilization. The war over same-sex marriage and the war against Islamic totalitarianism are actually two fronts in the same war — a war for the preservation of the unique American creation known as Judeo-Christian civilization.

So a radical faction of gay marriage activists have teamed up (perhaps in Vermont-style civil partnerships) to drive jet planes into skyscapers? Perhaps the right thing to do, then, is to declare gays “enemy combatants” and ship them off to Guantanamo.

Believe what you will about gay marriage: Although I generally favor allowing gay marriage, there are plenty of good folks on the other side. Even if there weren’t, though, I’d hardly think it apt to compare them to the 9-11 terrorists. Perhaps Prager has forgotten, but the 9-11 terrorists killed 3000 innocents in a day in pursuit of their cause. How many people have the proponents of gay marriage killed to block the FMA? How serious a threat is the Popular Front for the Red Brigades of al-HomoMarriagistas? Did I miss a memo?*

It is not often that idiocy is married to immorality with such aplomb. I suppose, Dennis Prager, that congratulations are in order.

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And three makes a trend.

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I have no idea how the average Iraqi feels about his situation, but Kevin Drum, David Adesnik, and Bird Dog at Tacitus all feel pretty darn good about our progress. Here’s a sentence I thought I’d never write: Drum, Adesnik, and Bird Dog are in agreement on Iraq. All three posted before today’s round of … Read more

Fools. And knaves.

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Well, Bush did it:

“Today,” Bush said, “I call for the Congress to promptly pass and send to the states for ratification an amendment to our Constitution defining and protecting marriage as a union of a man and woman, as husband and wife.”

Bush could have endorsed an Amendment that merely held that a gay marriage in one state need not be recognized as a marriage in another — an Amendment that lets the states decide. It would’ve had broad support.* (Indeed, even Rep. Barney Frank, the openly gay Massachusetts Congressman, has endorsed this approach.) Instead, Bush has endorsed an Amendment designed to prohibit the states from conducting their own affairs. Bush — the freely-spending champion of “limited” government — has decided that the federal government should now reach into the bedrooms, town halls, and churches of communities around the nation.

And so Bush feeds a narrow constituency, at the expense of the whole.

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Man bites dog

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Here’s an interesting man-bites-dog story:

A New Jersey woman, one of the hundreds of people accused of copyright infringement by the Recording Industry Association of America, has countersued the big record labels, charging them with extortion and violations of the federal antiracketeering act.

Via Glenn Reynolds, who thinks “she might just have a case.” (Slashdot has a similar take.)

I don’t. Or, I should say (having not seen the Complaint): “I think it highly unlikely.”

The Racketeer Influenced and Corrupt Organizations Act (RICO*) was originally passed to combat organized crime. Clever lawyers, however, have tried to apply its broad language to pretty much everything under the sun — from simple fraud cases to abortion protestors.

At the heart of every RICO claim are two elements: A “pattern” of “predicate offense” (fraud, extortion, bribery, etc.) and an “enterprise” through which those offenses are committed.** Both elements need to be met to state a claim. Moreover, under the law, both elements have to be alleged with specificity: a general or blanket allegation that X is an enterprise, for example, won’t do.***

Without going into it too far, I doubt that either element can be sufficiently alleged. The alleged “predicate offenses” by the RIAA appear to be alleged “extortions.” Apparently, the theory is that each copyright infringement lawsuit filed by the RIAA is an unlawful attempt to extort money from the target. But the filing of a copyright infringement lawsuit is generally a protected activity, and you have to show bad faith to overcome that presumption and even begin to make an extortion claim. Bad faith ain’t merely a “maliciousness” (though that’s probably needed); some knowledge by the RIAA that the lawsuit itself was frivolous at the time that it was filed is likely needed. I can’t see a plaintiff making that showing. The RIAA’s lawsuits may be heavy-handed, but they ain’t frivolous — there are real copyright violations going on.

The other problem is with the RICO enterprise. An enterprise can’t be a bunch of people who get together to commit a bunch of predicate acts; in some circumstances (a RICO claim under Section 1962(c), if you must know), it also can’t be one of the named defendants. Remember — the original purpose of RICO was to target the mafia. Think of the “enterprise” as, say, the 70s Teamsters: a legitimate organization that’s been infiltrated by ne’erdowells. With this in mind, I just don’t see an “enterprise” that survives Court scruntiny.

Of course, I could be wrong ‘bout all this — as I said, I haven’t seen the complaint. But the smart money’s on the RIAA.****

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Cause and Effect

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Russian President Vladamir Putin has announced that he intends to develop a new generation of nuclear missiles. This the country that can barely keep track of its existing nuclear weapons. They now want more. That’s not all, however: Some military analysts said his statement could indicate the revival of Soviet designs for nuclear warheads that … Read more

Stake in the heart

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CNN reports that the WB has is cancelling Angel — you know, Buffy-spin off, ’bout the vampire with a soul — after five seasons. Having been a closet, then open, then BUFFY IS THE BEST SHOW ON TV AND I WILL TELL YOU WHY fan, I’ll say it: The end of an era (of good writing, wrapped up with a giant warm-to-the-nerd-soul bow).

Never was a huge fan of Angel, though; something to do with killing off my wife’s favorite character early on.* After that, I never heard the dialog — all I heard was the gal sitting next to me, fulminating (“this would be soooo much better, if only ______ was still around.”)

Consider this a commemorative open thread, to the extent one is needed.

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Filed my motion . . . .

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. . . . and life is goooooood Time to reflect: Seventeen things that I have learned in my thirty years and three days on the Earth . . . . 1. Those who call themselves moderates usually aren’t. (As ObWi’s self-proclaimed “moderate,” perhaps I confess too much.) 2. Money does buy love, or a … Read more

You know what’s missing from all our lives? Larry Flynt.

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And down we go . . . . First, Bush was “AWOL” from the Air National Guard. This is almost certainly incorrect (in both the legal and colloquial senses), but, hey, at least there was some weak evidence. (Kudos to Drum for maintaining objectivity, despite his partisan instincts.) Then Kerry’s a morally-suspect, limp-wristed cretin for … Read more

Bayh for VP?

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The Indianapolis Star is following up on a classic, election year non-story story: Who will be the Democratic Vice Presidential candidate? Unsuprisingly, the Star is touting Senator Evan Bayh (D-Ind.) as a top choice. Here’s the Star’s case (Take note that the Star’s case is based almost entirely on the musings of Larry Sabato, “a political analyst and professor at the University of Virginia”):

There are, Sabato said, lots of potential candidates for vice president, “but there aren’t many who can actually help.”

Bayh, Sabato said, could be dispatched to campaign in only three states — Indiana, Ohio and West Virginia, all carried by Bush in 2000.

“If (Bayh) turns those states,” Sabato said, “no way Bush can win. It’s literally over.”

. . . .

“Having Evan on the national ticket would very likely make a difference in whether Indiana voted for the Democratic nominee for president or not,” said Gov. Joe Kernan [D], who’s running in November for his first full term as governor. But Kernan added: “It’s not a gimme.”

As mentioned in these (virtual) pages, Indiana has been trending Democratic of late. Once a solid “red” state, with Bayh on the ticket it could conceivably end up Blue. But, contrary to Sabato, Bayh’s effects in Ohio and West Virginia really can’t be known. It may amaze you, but Ohio is not Indiana is not Iowa is not Kansas. And Indiana is especially not West Virginia.

There is a common demoninator, though (aside from the flat accents): Voters in each of these states tend to be moderates.* And nothing turns off a moderate voter like the perception of extremism.

A reason for Bush to soften his image, I think, and not to make a divisive “Marriage Amendment” plank #1 of his national campaign. And a pretty damn good reason for Northeasterner Kerry to choose Bayh as his VP, in my humble opinion.

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“Who would’ve thunk the Thirteenth fell on Friday? . . .

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. . . . I say hello, and it’s goodbye again.”

I’m beyond busy at work, but I did want to comment on the Thirteenth. Consider this your unlucky open thread.

(Speaking of unluck, I turn thirty tomorrow. Big party planned: I’ll wake up at 7 a.m., sit down in front of my computer, and write legal arguments ‘tll nightfall. Livin’ la vida loca, baby.)

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Mixed feelings.

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Here is the latest on the Plame game. Courtesy of the Washington Post:

A federal grand jury has questioned one current and one former aide to President Bush, and investigators have interviewed six others in an effort to discover who revealed the name of an undercover CIA officer to a newspaper columnist, sources involved in the case said yesterday.

. . . .
Several sources involved in the leak case said the questioning suggests prosecutors are preparing to seek testimony from Novak and perhaps other journalists. “There’s a very good likelihood they’re going to litigate against journalists,” one source said.

It is a real investigation, and it is continuing. Moreover, the fact that a grand jury has been impaneled indicates that the decision to prosecute will mostly be in the hands of our fellow citizens — not the Justice Department or the prosecutors assigned to the case. (Of course, the Grand Jury will only see and hear the evidence that the prosecutors can muster.)*

I’ll admit to mixed feelings at this point. On one hand, nothing annoys me more than self-identified superpatriots — except for, I suppose, self-identified superpatriots who expose CIA agents for political gain. On the other hand, however, the suggestion that the prosecution may start “litigat[ing] against journalists” sends shivers down my spin. Though I occasionally find Bob Novak a bit creepy (it’s the eyebrows), I hardly want him subpoenaed and possibly thrown in jail for protecting a source.

Indeed, protecting confidential journalistic sources isn’t just yippity-do-dah liberal crap; it’s vital to the newsgathering process. Sure, it gets abused. Everything that happens in secret eventually does. (Lesson applicable to the Guantanamo detainees, I note.) Without confidential sources, however, more than a few important stories would never have seen the light of day.

So: continue the investigation. (And when do we get to the Vice President’s office?) But don’t subpoena Bob. The exposure of a semi-retired CIA agent (who, it turns out, is a bit of a publicity hound once freed from the shackles of secrecy) isn’t worth it. If we went subpoena-happy every time confidential information got leaked (and that’s the rule you’d be endorsing by subpoenaing Novak, if consisistency matters to you), Washington journalists would spend all their time in court.

The ends, I’m told, don’t always justify the means.

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Well Played.

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More on Gay Marriage: President Bush unequivocally supports a constitutional amendment defining marriage as being between a man and a woman, Sen. John Cornyn of Texas said Thursday. The White House has hedged on the president’s position on a constitutional ban on gay marriage. But Cornyn said that after a weekend discussion with Bush, he … Read more

Bush Names Intelligence Panel

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Bush has named the members of the commission to investigate the intelligence failings in Iraq: Mr. [Charles] Robb, 64, . . . a Democrat; Judge Silberman, 68, was appointed to the United States Court of Appeals for the District of Columbia Circuit by President Ronald Reagan in 1985. . .; Senator John S. McCain, Republican … Read more

Children of the Corn

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Mickey Kaus passes along the rumor that, if nominated, Kerry may pick Evan Bayh as his running mate. Why? Because Bayh may win Indiana for Kerry:

kf hears semi-reliably that Kerry’s polling shows that Edwards on the ticket doesn’t win any states for Kerry, even in the South–while Evan Bayh does win Indiana (which is hard to believe, Indiana being a pretty Republican state). … Might as well go after him, John!

Actually, Indiana is probably more in play this election cycle than it ever has been. Once a reliably Republican state (outside of the college towns of Lafayette/West Lafayette and Bloomington, and the Chicago suburbs of Gary and Hammond), it has been trending steadily Democratic of late.* It’s current Democratic governor, Joe Kernan, is popular — and a solid favorite over his high-profile GOP opponent, former Bush Budget Director Mitch Daniels.** Indianapolis, once a Republican stronghold, easily re-elected its Democratic mayor and has elected a majority-Democratic City Council for the first time in living memory. (A slight exaggeration, but not by much.) Democrats even expect to pick up a seat or two in the Indiana legislature.

Losing Indiana won’t cost Bush the election in and of itself. But, if once-solid Indiana’s looks to be in play, what does it say about perennially-on-the-fence Ohio? Or Illinois, for that matter?

p.s. Is it too late to call off my bet with Harley? I took Bush for a fifth of Beefeater Gin, him ABB for a fifth of Vodka (brand escapes me).

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It’s all about impressin’ the Russ

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Pretty darn big news for political junkies: “President Bush has decided to appear Sunday on ‘Meet the Press’” for an hour-long interview with Tim Russert. And I’m supposed to go skiing this weekend. Rats! My insta-reaction shall be tape delayed.

Made beds, and the need to sleep in same.

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Andrew Sullivan employs some sloppy reasoning in his latest defense of gay marriage. Understand, please, that I believe that gay marriage is the right thing to do. (And keep movin’ on down the street with your limp-wristed “civil union” compromise — half way is half right, and why stop at half right?) Here’s Andrew’s basic argument:

If the Constitution guarantees equal rights for all, and marriage is one of the most basic civil rights there is, and gay couples can and do fulfill every requirement that straight couples can, what leeway does any Court have? I’m constantly amazed by these claims of judicial “tyranny.” Was Brown v Board of Education tyranny? It’s exactly the same principle as operates here: separate but equal won’t do.

Here’s the problem with Andrew’s argument: Unless you believe the Constitution to be a “living document” (and Andrew, it appears, does not), the Constitution does not guarantee “equal civil rights for all.” Rather, the Constitution only guarantees certain civil rights. These are the civil rights that are specifically ennumerated in the Constitution. “Gay marriage” was not among them. (Racial equality was among them, however — in the 13-15th Amendments — which is why Andrew’s reference to Brown v. The Board of Education is a red herring.)

Even if you believe that the Constitution’s meaning was not fixed at the time of its drafting, however, Andrew’s argument still isn’t as self evident as he tires to portrary it. There are dozens of “basic civil rights” that even proponents of a living Constitution do not endorse.* Some are arguably more basic than the right of gays or straights to marry. Such as: The right to a job. The right to have adequate shelter. The right to an education. The right not to be discriminated against — in the workplace, in your personal life, in government, etc. — based on your looks, or your intelligence, or your athletic prowess, or the color of your hair, or the color of your eyes, or the shape of your earlobes, or the noises you make when you walk**, etc., etc.

It doesn’t matter that people are probably born gay. People are also born with blue eyes, rotten earlobes, and (to an extent) good looks — and yet the Constitution does not prohibit discrimination on those grounds in marriage, school, or work. Instead, the issue is whether the discrimination is based on an innate characteristic is worthy of protection. The Constitution clearly protects against discrimination based on your being born Black (again, see the 13th-15th Amendments). Whether the Constitution protects against discrimination based on your being born gay, is, well, much less clear . . . .***

The task of those who support allowing gay marriage through judicial (rather than legislative) means is to demonstrate that gays fall into a category deserving of specific protection under the Constitution. I think that’s a case that can be made. But Andrew Sullivan doesn’t make it with a platitude and a quick cite to the Brown decision.

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A Third Blog on Von’s Blogroll!

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You’re a casual reader of the site. You take a look at the blogroll. The mutual roll seems solid, noncontroversial. You got your standard ‘pundits (Insta and Cal), your even-steven Tac, a little Sully and TPM, the Kos and the Volohks, and a few other worthies. Moe’s and Katherine’s rolls are also solid — solid … Read more

Interesting.

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As some of you may know, I do a fair bit of work on actual-, near- and quasi- white collar criminal matters. (Hmm, that didn’t come out right. Perhaps I’d better say that I do a fair bit of work as an attorney representing persons and companies facing potential actual-, near- and quasi- white collar … Read more

Fare thee well, Ninja-man

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. . . . . Echoing the eminently echo-able Moe Lane, I’m sorry to see the Ninja depart from the race. Joey from the CT, you handled yourself with class, integrity, and honor. You were my man in the race.

It’s all fun until someone loses an eye

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CNN has an intriguing — and admittedly meaningless — poll out (via Glenn Reynolds): The poll, based on interviews with 1,001 adult Americans, including 562 likely voters, was conducted in the days after the New Hampshire primary. . . . . When the 562 likely voters were asked for their choice from a Bush v. … Read more

Explanation requested.

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We’re pulling out of Baghdad: American commanders have ordered a sharp reduction in the presence of occupation troops in Baghdad, senior officers announced Sunday. The most visible role of policing the capital is being turned over to local forces while American troops pull back to a ring of bases at the edge of the city. … Read more

Comparisons

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I shall be brief:

1. John Edwards is Clinton in ’92 — charismatic Southern, moderate, handsome, populist — but without “bimbo eruptions.” I’ll be the last to say it: Edwards is the Democrat most likely to beat Bush. (But consider: Edwards is so good on his feet, anything less than total victory in a debate with Bush will be considered as “below expectations.”)

2. Richard Cheney is Spiro Agnew. It’s as much an image problem as anything else.* Take another look at his picture with Pope John Paul, for instance. Were this a Hollywood movie, would there be any doubt that Cheney is a “bad man”?

3. George Bush needs to mimic Ronald Reagan even more. For example, look again at how Bush enters a room to speak. Bush has the quick, bent forward stride of someone one step shy of a public-speaking phobia. Reagan, on the other hand, was completely at ease — a natural. C’mon, George: you’re the leader of the free world. Slow down.

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The point, here. You, over there.

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There’s been an immense amount of hand wringing over whether Bush said that Iraq was an “imminent” threat, or merely a “threat.” (For recent examples, see Trickster‘s entry at Tacitus or Kos over at The Daily Him.) It’s not worth your time. Whether the threat was “imminent” or “not-imminent” — and who said what about … Read more

I’m watching her go.

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She divorced her alcoholic husband, went to Columbia, and got a Masters in Library Science. It was just before World War II. When she met and married my grandfather, only he (and she) were happy among their relations. They settled in Worcester, Massachusetts. They worked as librarians for Clark University. My grandfather’s portrait hangs in … Read more

Ow! That knife hurts!

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I just caught Howard Dean on The Daily Show. Jon Stewart had his “Sister Souljah” moment. Unfortunately, Dean was cast in the role of the good Sister. (Where is Sister Souljah, anyway? For that matter, where’s MC Ren? How ’bout Slash?) Good luck up in the wilds of New Hampshire, Katherine. That you’re supporting Dean, … Read more

All the Federales say, they could’ve had him any day; we only let him slip away out of kindness, I suppose . . . .

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The Supreme Court has reaffirmed Miranda (via Glenn Reynolds) with a nine-to-zero vote.

There’s no word about concurrences,* but I’m frankly surprised that at least one conservative justice didn’t peel away from the pack. Although the Miranda warnings have infiltrated US popular culture, they’re really not part of the Constitution. Indeed, the Miranda Court itself suggested that communities might be able to opt-out of the Miranda warnings, so long as they replaced those warnings with other, equivalent measures. (What form those measures could take, it didn’t say.)

UPDATE: A federal District Judge has declared unconstitutional a portion of the USA Patriot Act that bars giving expert advice or assistance to groups designated international terrorist organizations.

The Humanitarian Law Project, which brought the lawsuit, said the plaintiffs were threatened with 15 years in prison if they advised groups on seeking a peaceful resolution of the Kurds’ campaign for self-determination in Turkey.

The judge’s ruling said the law, as written, does not differentiate between impermissible advice on violence and encouraging the use of peaceful, nonviolent means to achieve goals.

The decision on the Patriot Act seems about right to me. (As for the Supreme Court’s decision, well, I’ve never been particularly fond of Miranda . . . .)

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Forget Everything But This:

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Last year, David Kay (search) had confidently predicted weapons would be found. But after nine months of searching, he said Sunday: “I don’t think they exist.” . . . . . . Asked whether President Bush (search) owed the nation an explanation for the discrepancies between his warnings and Kay’s findings, Kay said: “I actually … Read more

Forgive this . . . .

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. . . . But I’m gonna just talk off the top of my head, here. (It’s a blog, ain’t it?) 1. I’m pretty freakin’ dissatisfied with President Bush. I don’t like his social conservatism (I’m pretty liberal, socially), I don’t like his fiscal liberalism (I’m a bit of a deficit hawk), I don’t like … Read more

SNAFU

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From today’s Washington Post, a mixed bag: Commanders are heartened by a sharp reduction in the number of attacks on U.S. forces and say that an overhaul of intelligence operations has produced a series of successes that have weakened the anti-occupation insurgency. . . . That’s the good news. Then, five paragraphs in, a buried … Read more

You can’t please everyone

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Andrew Sullivan thinks last night’s SotU “the worst Bush SOTU yet.” Not a big surprise, given the red-meat Bush tossed to his fiscally liberal, culturally conservative base.* Kevin Drum, in turn, calls the Democrat’s response “crappy,” and offers some advice.

Sheesh. Everyone’s unhappy — save me. I missed both speeches.

Now, go read Katherine‘s latest on Arar (Arar #14). It’s important.

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Interesting

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I’ll be at a Markman hearing in beautiful Orlando, Florida the next few days, so there will be (even) lighter posting from me. Before I go, however, a couple non-insightful, relatively-boring thoughts: 1. Dean has to do well in New Hampshire now. He can survive a close second, but anything worse is the end of … Read more

I am shocked — shocked! — to see y’all smoking in this here back room.

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The Washington Post is reporting that Kucinich and Edwards have struck a last-minute, backroom deal: Kucinich has asked his supporters to swing their support to Edwards in precincts where he doesn’t receive the 15 percent minimum support needed to continue. Edwards has instructed his people to do the same for Kucinich. Both campaigns confirmed this … Read more

Faint Damnation

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Matthew Yglesias wonders why the Bush administration doesn’t mention our cooperation with Kosovo Muslims during NATO’s intervention in Kosovo in order to “ dispel [the] ‘war on Islam’ talk.” Tacitus sends a “Note to Yglesias: It’s possible that we didn’t highlight our close relationships with Muslim leaders in Bosnia and Kosovo after 9/11 in part … Read more