War on Terrorism II

BurtLaw on the War on Terrorism II
BurtLaw.Com	- LawAndEverythingElse.Com - Copyright (c) 2001 Burton Randall Hanson

Verbal liberalism, verbal conservatism. Justice O'Connor made some critical statements about the death penalty and about our society's over-reliance on lawyers in a speech on 07.02.2001 to an organization of feminist lawyers at the Hilton in Minneapolis. But, in "votes" since then, she has continued "siding" with the majority of the Court in upholding death-penalty challenges. According to this report in the NYT of 09.29.2001, she has spoken once again, on 09.28, this time to some law students in NYC. In this speech she speculated that as a result of governmental responses to the events of 09.11"we're likely to experience more restrictions on our personal freedom than has ever been the case in our country." She also posed some rhetorical questions to the students: "First, can a society that prides itself on equality before the law treat terrorists differently than ordinary criminals? And where do we draw the line between them? Second, at what point does the cost to civil liberties from legislation designed to prevent terrorism outweigh the added security that that legislation provides? These are tough questions," she said, "and they're going to require a great deal of study, goodwill and expertise to resolve them. And in the years to come, it will become clear that the need for lawyers does not diminish in times of crisis; it only increases." I'm in a minority in my views, but I have been and am critical of judges giving speeches like this. Not to focus on Sandra Day, who's an o.k. judge, but in general speeches like this, of necessity, are wishy-washy. Worse, the wishy-washy statements are stereotypically judicial in prose style. Even worse, the statements are delivered in the usual judicial cadences, cadences that say, "I am filling the role of a judge and what I'm saying should sound profound. Because I am a judge, what I am saying must by definition be profound and should be treated as such." (About the last two points, I read recently a comment by Felix Frankfurter that judges should be judicial-minded but not always so judicial-sounding.) Finally, and again I'm speaking generally, judicial speeches, to the extent they say anything, are often, while not intentionally so, in some way misleading. Some judges, perhaps unconsciously, want to sound more "liberal" than they might seem to be in their rulings, e.g., their rulings upholding judicial executions. Verbal liberalism is the result. Pontius Pilate is the prototype, "washing his hands of the matter" of the judicially-sanctioned execution of Jesus Christ, laying the blame on the will of the crowd. On the other hand, other judges, perhaps unconsciously, often go on and on about the importance of judicial restraint. And then they go back to their chambers and somehow convince themselves that, by some happy coincidence, the Drafters of the Constitution had in mind what they themselves now have in mind. Perhaps I'm exaggerating to make a point. My point is this. It's o.k. for some judges, those who have something non-platitudinous to say, to give an occasional speech, assuming they're carrying a full load and are current in deciding cases. Holmes, who always wrote his opinions immediately after oral arguments were over, gave around 30 speeches in his 50 years as a judge. All but two of them (which are major addresses) are collected in a slim volume I have that is called The Occasional Speeches of Justice Holmes. Most all of them are still worth reading. Some, including one I read the other day and linked to, the Memorial Day Address in Keene, NH (click here), are among the greatest speeches ever penned. Most judges, however, would be better off staying in their chambers, doing the work we expect of them. After all, they already have a captive audience. And everything they say gets published, regardless of its merit. (09.30.2001)

Nobel Peace Prize. "We have reached a decision and it will be announced on Oct. 12." So said Geir Lundestad, the director of the Norwegian Nobel Institute, referring to the Nobel Peace Prize. There is much speculation that the United Nations or Secretary General, Kofi Annan, will win the prize. [more] What a laugh. The U.N. and Annan were both big players at the recent anti-semitic, anti-American "conference" in Durban, in which the U.S. and Israel wisely did not participate. Of the Durban Conference, Alistair Cooke wrote: "I doubt there has ever been a conference called by the United Nations that was so well-meaning in intention as the one in Durban but also so ill-considered, so doomed in prospect, a conference more dominated, if not paralysed, by hate-mongering delegates and loony outdoor bigots whom the conference was supposed to pacify or reform...." [more] Some have even speculated that there is a "Durban connection" to the events of 09.11. Opinion (WorldNetDaily). I don't know the answer. But I do know that the "conference," including Annan's sanctimonious remarks, irritated me. Who should get the prize? Give it to the N.Y.P.D. and the F.D.N.Y., the folks who try their damdest to keep the peace and protect people on a daily basis, the folks who gave their lives on 09.11 trying to save the innocent victims of the hateful apostles of anti-Americanism and anti-semitism. (09.29.2001)

Reclusive, quiet leadership. In the days before 09.11 the press was running stories badmouthing Don Rumsfeld, Secretary of Defense, some even saying his days were numbered. Rumsfeld is a low-profile guy who sits at his desk and does his job. He's not the sort of guy who runs around like a chicken with its head cut off. He's not the sort of guy who, upon entering a room, notes where the cameras are and eases his way within their field of vision. He's not a self-promoter. He's living proof of the old adage, "Still water runs deep." At the outset of the Bush Administration last winter, as this article notes, he warned us we needed to increase defense spending and needed to "expect the unexpected from a new breed of enemies." Ever since then he's been "thinking outside the box" -- i.e., thinking creatively -- and struggling to get military leaders to do so in their contingency planning. There's a story about a new, inexperienced judge who announced he was going to clean up the court system. Learned Hand asked rhetorically, "With what, the vacuum in his head?" Rumsfeld knows what he's doing, as do Vice-President Cheney and Secretary of State Powell. Their voices are experienced and different. If the President acts wisely and effectively in the days, weeks, months, and years ahead, not a little of the credit will belong with these men -- and with the President for surrounding himself with battle-tested heavyweights. (09.29.2001)

Peggy Noonan's 1998 essay. Peggy Noonan, the one-time Reagan and Bush (#41) speechwriter, wrote an essay for the 11.30.1998 issue of Forbes titled, "There Is No Time, There Will Be Time -- We live in such unprecedented comfort! But can it last?" The essay began with the sort of critique implicit in the famous statement by Senator Paul Tsongas of Massachusetts that "Nobody ever says on his death bed, 'I wish I had spent more time in the office.'" Noonan wrote: "Does family life spill over into work life? No. Work life spills over into family life. You do not wind up taking your son for a walk at work, you wind up teleconferencing during softball practice. This is not progress. It is not more time but less. Maybe our kids will remember us as there but not there, physically present but carrying the faces of men and women who are strategizing the sale." But the essay was striking for what followed, its prescient (we now know), mystical, Yeatsean sense of foreboding (see, e.g., Yeats' A Prayer for My Daughter), its sense that something not only could, but would, happen to "change things." She wrote:

When you consider who is gifted and crazed with rage...when you think of the terrorist places and the terrorist countries...who do they hate most? The Great Satan, the United States. What is its most important place? Some would say Washington. I would say the great city of the United States is the great city of the world, the dense 10-mile-long island called Manhattan, where the economic and media power of the nation resides, the city that is the psychological center of our modernity, our hedonism, our creativity, our hard-shouldered hipness, our unthinking arrogance. If someone does the big, terrible thing to New York or Washington, there will be a lot of chaos and a lot of lines going down, a lot of damage, and a lot of things won't be working so well anymore. And thus a lot more...time. Something tells me we won't be teleconferencing and faxing about the Ford account for a while. The psychic blow -- and that is what it will be as people absorb it, a blow, an insult that reorders and changes -- will shift our perspective and priorities, dramatically, and for longer than a while. Something tells me more of us will be praying, and hard, one side benefit of which is that there is sometimes a quality of stopped time when you pray. You get outside time....

While England slept, while America.... Long before he was President JFK wrote a book-length thesis called While England Slept -- about England's having been militarily asleep in the years before WWII. It now appears, as if we didn't know it, that America was militarily asleep in the 1990's. According to Joe Klein, writing in the New Yorker, "[T]here seems to be near-unanimous agreement among experts [that] in the ten years since the collapse of the Soviet Union, almost every aspect of American national-security policy -- from military operations to intelligence gathering, from border control to political leadership -- has been marked by...institutional lassitude and bureaucratic arrogance...." [more] It is, I believe, a telling fact that little attention was paid in the last Presidential campaign to foreign policy and national defense. I also believe that the lassitude and arrogance in our national security policy was but one external manifestation of a pervasive core superficiality that manifested itself in many other ways, including in our search after mammon -- mammon in the form of quick and easy profits, gas-guzzling SUV's, "lite" spirituality focusing on superficial self-realization (how many airheads have you heard repeat the cliche that they are "spiritual," not "religious"), escapist fun ("fun, fun, fun"), escapist travel ("I just love Provence and Tuscany"), "lite" self-promoting TV news, voracious consumption, etc. Why have so many people in the days following the attack found meaning in the W. H. Auden poem September 1, 1939? Perhaps the phrase "a low dishonest decade" in the first stanza resonates with them, as I think it should. There's an interesting (and long) profile of Arthur Schlesinger, Jr., the historian, in First Things that I just read last night. Schlesinger was influenced in developing his "view of man" by the prominent Harvard theologian, Reinhold Niebuhr, and by the influential Harvard historian, Perry Miller. The latter passed on to Schlesinger "insights into the dark power of the Augustinian strain in Christianity, the anguished awareness of human finitude, failure, guilt, corruptibility, the precariousness of existence and the challenge of moral responsibility." "Lite" naïve spirituality tries to "fly away" from, to ignore, to repress the realities of human nature. For ten years people like James Hillman, the depth psychologist, have been warning us that life without soul and depth is impossible. Sooner or later the sun toward which we fly melts our waxen wings and we crash. Gravity pulls us down to earth and to reality, and literally and figuratively we experience an "ashes time." We are offered the opportunity during this "ashes time" to learn once again the old lesson that everything has a price. We are offered the opportunity to learn once again what Jefferson tried to teach us, that liberty's price is eternal vigilance. I hope we will relearn these old lessons. I would be more optimistic than I am if I didn't detect already in the voices of so many people a kind of proud football-fan mentality that seems to think the solution to the mess we're in is as easy as saying "We're #1 and let's prove it to the world." Excessive pride, and a seeking after quick-and-easy artificial "high's," are what preceded the fall. (09.28.2001)

Harvesting the neighbor's crop. There's an old tradition in rural Minnesota, in rural America, perhaps in most societies. If a farmer has a heart attack or his wife is ill or if he dies, the neighbors form crews and help tend the crops. During WWII, local businessmen formed crews and worked in the late afternoon and early-evening to help short-handed farmers tend their crops. Of late in NYC it's been some big law firms who've needed help. Arguably, neighboring law firms are more in competition with each other than neighboring farmers are. Nonetheless, the events of 09.11 seem to have brought out the "old farmers" inside many of them. "Lawyers," for example, "have gone out of their way to help those whose offices were destroyed or rendered unusable." They actually have been "extremely kind." [more] (09.28.2001)

Strict constructionist. In recent days we've heard a bit about the history of "code names" for military operations. The best article I've read on the subject was in the Moscow Times (click here). It was based on an unclassified 1995 article by Gregory Sieminski, a U.S. military intelligence officer. Sieminski quotes Churchill as saying, "The world is wide, and intelligent thought will readily supply an unlimited number of well-sounding names which do not suggest the character of the operation or disparage it in any way, and do not enable some widow or mother to say that her son was killed in an operation called 'Operation Bunnyhug' or 'Operation Ballyhoo.' Operations in which large numbers of men may lose their lives ought not to be described by code words which imply a boastful or overconfident sentiment." According to the Times' article, "These days, code names are publicly declared (so they are technically considered nicknames, not codes), and are designed to achieve specific and subtle public relations goals." There are "code names" and "code words" and "code phrases." In the law, "strict constructionist" is one of the most-often used code phrases. The phrase, when used to describe an appellate judge, is supposed to convey on one level that the judge, in interpreting and applying the constitution or a statute, will act in a neutral manner, looking to the objective text of the governing language and not read his or her personal opinions on partisan political issues into the text. But increasingly commentators have argued that, at least when used by Republican Presidents and Presidential candidates, the phrase is a code phrase meaning "a judge who, if given the opportunity, will vote to overrule or restrict Roe v. Wade." An article in the New York Times yesterday (click here) quotes a memo William Rehnquist wrote in 1969 as an assistant attorney general, a memo that President Nixon or his advisers presumably read before appointing Rehnquist to the Supreme Court in 1971. In the memo Rehnquist confided what he really meant when he used the term: "A judge who is a 'strict constructionist' in constitutional matters will generally not be favorably inclined toward claims of either criminal defendants or civil rights plaintiffs." Give the guy credit for being honest and forthright in his confidential memos. Don't give him credit for his fashion sense. Rehnquist wore "a pink shirt with a psychedelic necktie" to his first meeting with Nixon, who thought he looked like a "clown." (09.28.2001)

Birth, death. "Joy mixed with numbing grief yesterday as a family celebrated the baptism of a baby boy -- and mourned his father's death at the same time. A priest baptized 1-month-old Robert Phillip Spencer, then held the infant during a wrenching memorial service for his missing dad, Robert Andrew Spencer." More (NYDailyNews). We're going to be reading more reports like this, and many stories of young widows giving birth to babies conceived before 09.11.2001. Since 09.11 I've been taking most of my lake walks at Lake Harriet rather than Lake Calhoun. Lake Calhoun's clientele are "younger" and more "with it." I think I'm drawn to Harriet these days because it's more of a family lake and I maybe need, in some way, to see the mothers pushing the prams on sunny weekday afternoons. On my son's 25th birthday, on 09.15, the words that came to me were "Children are a gift of God." My neighbors, Tim&Lo, certainly believe that. They have been in the Westchester area outside NYC all month to help welcome into the world their first grandchild, the daughter of John Schroedel and their daughter Jenny. I received an e-mail from John the other day with a pic of him holding the lovely new baby, Anna Pepper, born 09.21. Yesterday, sitting in the sun by the fountain in downtown Edina reading some letters of Wallace Stevens, the great lawyer and poet, I came across this line from a letter Stevens wrote on May 4, 1948: "[T]he physical never seems newer than when it is emerging from the metaphysical." In the margin, I wrote: "For example, a baby." There's an old Norsk saying I've always liked about newborn babies that I translate: "It's a remarkable thing about Life! How small it begins but how far it can go! When you look at the newborn baby and think of the grown individual -- what a difference!" Is this still a good world for babies? Some adults say no and choose not to have kids. But I believe babies make the world better, just by being born. And they seem to want to be born, regardless.... Or so Robert Frost, and other poets, have speculated, directly or indirectly. See, e.g.,Frost's Trial by Existence and Stevens' The Poems of Our Climate. (09.28.2001)

Birth, death -- and maybe some play in between? "Throughout the metropolitan area and across the nation, the tradition of recess has been quietly disappearing. The phenomenon started building in the 1990s and then picked up momentum as increased academic demands put a time squeeze on the school day...." From Many schools pull plug on recess -- lack of playtime generates debate, by Bonnie Miller Rubin (Chicago Tribune). If I were running for class president, PTA president, or school board -- any one of them -- my slogan would be the same, "A Vote for Me is a Vote for Recess." (09.27.2001) More and more....

Ari Fleischer needs to watch what he says. Yesterday, White House spokesman Ari Fleischer, after unnecessarily commenting on a statement by Bill Maher, who already had apologized, added: "Americans...need to watch what they say." No, Mr. Fleischer -- you need to watch what you say. As Governor Nelson Rockefeller said at the 1964 Republican Convention, when the rabid Goldwater delegates tried to hoot him down, "Ladies and gentlemen, it's still a free country." Of late I've noticed that our President's more "conservative" supporters have been trying to silence or discredit those who don't necessarily agree with every one of their views on how our country should respond to the terrorists' attack. For example, they've been trying to discredit Secretary Powell. Many of those folks aren't really "conservatives" -- they're right-wingers. Real conservatives value free speech. They don't like hearing a Presidential spokesman saying "Americans need to watch what they say." They don't believe in shouting down well-meaning Americans who have a different viewpoint than they have. (09.27.2001)

Mad about Dick. Karen Hughes and Karl Rove -- with their vast combined experience in government (what is it, a couple years' worth?) -- are said, in this report, to have been furious with Dick Cheney for his honest, forthright presentation to Tim Russert on Meet the Press of what he did on 09.11.2001. Who the hell are those clowns to be furious with Cheney, who is after all the Vice President? Fact is, Dick Cheney's performance in the debate a year ago won the Presidency for Bush. Fact is, his performance on Meet the Press the Sunday after the attack reassured all of us. He merely laid out, honestly and in lawyer-like fashion, the facts as to what happened and what he did. As citizens, we're the bosses and we are entitled to no less. (09.27.2001)

Our crazed new world? From a report in the Washington Post on 09.26.2001of comedian Jerry Seinfeld's planned comedy benefit at Carnegie Hall on 10.08.2001: "[I]sn't Seinfeld worried that his infant daughter, Sascha, has to grow up in the new world? 'Yeah, I'm worried. But the world that you and I grew up in had some problems, too.'" Indeed, it did. I remember going with my parents to the Great Northern Ry. Depot in my hometown of Benson, MN and watching the local contingent of the National Guard leave for Korean War duty. I remember when I was 9 years old being in Rochester, MN with my parents for "Ploughville, MN Celebration" and being patted on the head by General Eisenhower as he came down the grand stairs of the hotel and walked by us.

I remember when I was 10 years old, after Ike was President, reading the long lists of returning P.O.W.'s in the Minneapolis Star every day to see which ones were from Minnesota. I remember watching the films of H-bomb tests as part of the Movietone news, which, in the days before good TV reception came to Benson, preceded the movies. I remember being instructed how to brace oneself at one's school desk (see pic at right) in case of attack. I remember Governor Rockefeller of New York urging a national program for people to build bomb shelters in their backyards. I remember my mom ordering "bomb shelter kits" for $30 or so. I remember sitting at a nook table in the cafeteria at Centennial Hall at the U. of MN and listening to Kennedy's bellicose Cuban Missile Speech, which scared hell out of some of us. I remember sitting in my dorm room at Centennial on 11.22.1963 and listening on my transistor radio to the report by Walter Cronkite that President Kennedy had died. I remember attending a speech by Clean Gene McCarthy on Brattle Street in Harvard Square shortly before he announced his anti-war candidacy. I remember standing outside the Episcopal Church near Harvard Square to get a glimpse of Martin Luther King after he emerged from a meeting relating to his opposition to the continuation of the war. I remember watching TV in the spring of 1968 when the program was interrupted with the news he'd been shot. I remember watching the first TV report that Bobby Kennedy had been shot in June of 1968 following the California Presidential Primary. I remember being grateful when Richard Nixon ended the draft. As Jerry said, "[T]he world that you and I grew up in had some problems, too." Robert Frost said the same thing, in his unique way: "[Y]ou will often hear it said that the age of the world we live in is particularly bad. I am impatient of such talk....All the ages of the world are bad -- a great deal worse anyway than Heaven....[I]t will always be about equally hard to save your soul...your decency, your integrity." (09.27.2001)

The Durban connection. "I doubt there has ever been a conference called by the United Nations that was so well-meaning in intention as the one in Durban but also so ill-considered, so doomed in prospect, a conference more dominated, if not paralysed, by hate-mongering delegates and loony outdoor bigots whom the conference was supposed to pacify or reform...." So wrote Alistair Cooke in an excellent "Letter from America" to the folks back in England on the anti-semitic, anti-American "conference" in Durban, in which the U.S. and Israel wisely did not participate. [more] Is there a "Durban connection" to the events of 09.11? Some believe that there is. Opinion (WorldNetDaily). I don't know the answer. I do note that countries all around the world, including good ol' right-thinking, sanctimonious Norway, from which all my ancestors hail, are going to suffer economically from the events of 09.11. And so it should be. Will the sanctimonious America-scolders pause and perhaps engage in a bit of healthy self-examination? I doubt it. I also don't doubt that in a time of real need they'll come whining to us for help. They always do. (09.26.2001)

Bomb Afghanistan with food? According to this story in the Berkshire Eagle, some Williams College professors have "urged restraint in the so-called war on terrorism...with one of them calling upon America to bomb Afghanistan not with explosives but with food and medical supplies." The suggestion we "bomb" Afghanistan with food sounds naive. It all reminds me of an experience of mine in September of 1994, when my daughter was starting her second year at Harvard College and my son his first. We shipped boxes and boxes of my son's personal items to the receiving site in the Science Center. One would think the big brains at Harvard would have figured out a way to allow shipments directly to the freshmen dorms, but they hadn't. We all, parents and kids, flew into Boston and it was our responsibility to pick up the boxes and transport our son's boxes to his dorm, about six blocks away. We assembled the boxes on a street outside the Science Center and called a cab to transport the boxes to our son's dorm. The can driver who arrived threw a fit. We should have asked for a station wagon cab, he shouted. He didn't have to do it, he finally said, but he would. There was room in the cab only for the boxes and me. My now ex-wife and kids walked to the dorm. I rode along, so I could unload the boxes and pay the cabbie. After I unloaded the boxes onto the sidewalk, I asked the cabbie, who hadn't helped, how much I owed him. I think it was $3.00, maybe $4.00. I don't know why but I gave him a $10 bill, told him to keep the change, and thanked him. Suddenly, and I mean suddenly, he was a new man. "I'm sorry! I guess I got up on the wrong side of the bed this morning," he said. "Let me make it up to you. What an ass I've been! I'll drive you anywhere you want for free." "No," I said, "I know what it's like to get up on the wrong side of the bed." There are lessons to be drawn from this story, I believe, lessons similar to Emerson's dictum that you can sometimes coax an unruly colt into the barn with a lump of sugar much more easily than by trying to pull him in. But I'm not a naive fool in matters political, and the lesson I proffer is not that we should try win bin Laden over with kindness, as if that were possible. In fact, I draw no applicable lesson from the story other than that we shouldn't forget that our task is not just to catch and punish the terrorists (blast 'em off the face of the map), who are responsible, but also to make sure, as best we can, we don't harm those who aren't responsible and don't make matters worse for ourselves. How do we walk that fine line? I don't claim to know. I didn't run for President. (09.26.2001)

William James on the enemy within. "The deadliest enemies of nations are not their foreign foes; they always dwell within their borders. And from these internal enemies civilization is always in need of being saved. The nation blessed above all nations is she in whom the civic genius of the people does the saving day by day, by acts without external picturesqueness; by speaking, writing, voting reasonably; by smiting corruption swiftly, by good temper between parties; by the people knowing true men when they see them, and preferring them as leaders to rabid partisans or empty quacks." William James (1842-1910), from Memories and Studies (1911). More quotes: here and here.

Negative capability. Earlier, on 09.16, I said that "George W. Bush has many weaknesses. He spent the better part of the first eight months of his administration engaging in a photo-op Presidency. But he has some notable virtues. I believe his greatest attribute as a public leader, paradoxically, is that he realizes his weaknesses. He realized them so well a year ago that he picked the best person possible to be his Vice President, Dick Cheney...and he has surrounded himself with a group of experienced advisors. If he is smart, he will also call not just on #41, his dad, but on #'s 38, 39 and 42 -- as well as, yes, on Al Gore and some of the other people from prior administrations -- for their advice and help." (Jonathan Alter subsequently made the same points, and expanded upon them, in his column at MSNBC/Newsweek dated 09.20.2001.) The President thus far has performed admirably, particularly in his effective delivery of a well-crafted speech before the Congress, in not doing anything rash and imprudent (which, I believe, is what the brain trust of the fanatic terrorists hoped he would do), and in speaking out firmly and repeatedly against harassment of people on the basis of ethnicity or religious belief. The same columnists who were bashing Bush on September 11 have been singing his praises in recent days. David Broder, e.g., wrote a gushing column in the Washington Post comparing Bush's performance thus far to that of Lincoln. [more] Two words of caution: First, it's early in the game. Second, and it's related to the first, there's a risk that Bush will start believing his press clippings. We need a confident President, but paradoxically we also need a humble one. The President doesn't read much. But Lincoln's Second Inaugural isn't very long. I urge him to read it. Very slowly. Very carefully. Lincoln was a great president because he was a statesman with the heart of a poet. Keats, in a letter, spoke of "negative capability," which he said was the capability "of being in uncertainties, mysteries, doubts, without any irritable reaching after fact and reason." In the crisis we're in, we as citizens -- and our President -- need more than ever to insist on the facts and to insist that our country's course be based on reason. But we -- including our President -- also need to cultivate our "negative capability." Robert Frost wrote, "Only in a certain type of small scientific mind can there be found cocksureness, a conviction that a solution to the riddle of the universe is just around the corner." The President in his speech to Congress cautioned us against thinking that there is an easy way to rid either our country or the world of terrorists or the threat of attack by terrorists. I hope that in addition to reading Lincoln's Second Inaugural, he will reread his own speech from time to time. There is wisdom in it. (09.26.2001)

Propaganda. The word "propaganda" comes from the Latin and originally was the name for the college or congregation of Roman Catholic cardinals charged in 1622 with propagating the faith. The term now generally refers to the material and techniques used by proponents or opponents of a cause or doctrine. Aaron Delwiche, a fellow connected with the University of Washington, has created a web site, Propaganda (via MetaFilter), devoted to educating people about propaganda. As Delwiche puts it, "[P]ropaganda can be as blatant as a swastika or as subtle as a joke. Its persuasive techniques are regularly applied by politicians, advertisers, journalists, radio personalities, and others who are interested in influencing human behavior. Propagandistic messages can be used to accomplish positive social ends, as in campaigns to reduce drunk driving, but they are also used to win elections and to sell malt liquor." Delwiche "discusses various propaganda techniques, provides contemporary examples of their use, and proposes strategies of mental self-defense." For an example of our military propagandists at work picking "operation code names," like the discarded "Operation Infinite Justice," click here. I like to think that people here in America are becoming more "sophisticated" in recognizing those who use words and images and music and logical fallacies to try manipulate us. One of the reasons people have appreciated Mayor Giuliani so much in the days following 09.11 is that he didn't try hide his pain, didn't try adorn his speech, didn't try be someone he wasn't, didn't try sell us a bill of goods, didn't try manipulate us. He told us the truth and he "told it straight." Emerson said, "Nothing astonishes men so much as common sense and plain dealing." He also said, "[A]ll nature helps him who speaks the truth. Speak the truth & the very roots of the grass...move & stir to bear you witness. Speak the truth & the innocent day loves you & serves you." And, finally, he said, "[I]t is by no means necessary that I should live, but it is by all means necessary that I should act rightly." History, with its cold eye, ultimately will sift through all the facts, the footprints each of us leaves behind in the sands of time, and will tell the true story of that which we do in the days ahead. It is therefore "by all means necessary that [we] should act rightly." (09.25.2001)

Too big to fail? Not long after the attack on 09.11 I briefly alluded to the notion that some businesses are "too big to fail" and "the curse of bigness." Click here. John D. Donahue, who teaches at Harvard’s John F. Kennedy School of Government and is co-author with Robert B. Reich of New Deals: The Chrysler Revival and the American System, has written an interesting opinion piece for TomPaine.Com on the general subject of when taxpayers should save big corporations and more specifically on the proposed (or possibly already-enacted) bailout of the airline industry. Click here (via MetaFilter). Donahue begins by saying, "The federal government is poised to bail out the airline industry, devoting staggering amounts of public money to fix a shifting and ill-defined problem with little analysis and even less public debate." The history books are filled with sad stories of legislators rushing to "just do something" in times of national crisis. Minnesota has its own sad example, mirroring the federal congress' example, of legislative stupidity in the days following American entry into WWI. Click here. Some cool heads are taking a look at Attorney General Ashcroft's legislative proposals. (See, e.g., Dave Kopel's opinion piece in NRO, 09.24.2001.) Those of us who care about civil liberties -- our liberties -- should be thankful for that and should be doing our best to influence our leaders to do the right thing, with speed but not without adequate deliberation. Congress needs to be similarly cool-headed and deliberative in dealing with other emergency legislative requests and proposals. More... (09.25.2001)

Bush v. Powell? William Kristol, the "conservative" commentator and former aide to Dan Quayle, writes in today's Washington Post, in a piece titled Bush v. Powell, "Since his speech to Congress last Thursday, virtually every major political figure has gone out of his way to support the president. Except for his secretary of state. On the Sunday talk shows, Colin Powell revised or modified many of his boss's remarks." I'm suspicious of Kristol's opinion on this. Few people have been scouring the web's news and opinion sources as much as I in recent months. My opinion, based on what I've been reading, is that for some time "conservatives" who don't like Powell -- and that's most "conservative" commentators -- have been going out of their way to discredit Powell in Bush's eyes. There are a number of reasons they don't like him. One, of course, is he's "pro choice" on the matter of government regulation or restriction or outlaw of abortion. Another is he persuaded #41 not to authorize the military to "go after" Sadam Hussein and "finish him off" in the Gulf War -- they seem to assume, as if it's transparent, that we wouldn't be in the mess we're in now if #41 had ordered the military to do so. (Those are two reasons they don't like him. You can use your imagination as to their other reasons. You might or might not be right.) They apparently want a homogenous, not a farraginous, White House inner circle. In my opinion, one of the virtues of the Bush inner circle is that it is not a homogenous bunch of flatterers all telling the President the same thing, all toeing the "conservative" party-line, but a group of advisors with vast experience, all of it valuable, not all of it the same. Powell's the military man. He served in Viet Nam. He personally has experienced the horror of war. If he is a voice for prudence, a voice for calm, a voice for deliberation -- as Ike was both as Supreme Commander and later as Commander in Chief -- we should all be glad. But many of the "conservatives," who have their own agenda that isn't necessarily the right agenda for America in all respects, aren't glad about that. They were discrediting Powell before 09.11 and they're continuing to do so now. (09.25.2001)

What kind of a guy is General Powell? I think you can tell a lot about him from reading his widely-distributed 18-lesson Primer on Leadership and from reading this profile of him published in May by Salon. (09.25.2001)

Top 10 signs your wife is having an affair with the Jolly Green Giant. Dave Letterman showed us last week that he's not just good at irony. He was quite moving the first night back after the 09.11 attack, and throughout the week the musical performers -- including Tori Amos and Jewel -- were astonishing. Last night's show featured some amazing contrasts: Rudy Giuliani, who was given a couple well-earned standing ovations; Miss "Woo Hoo!" America (see below), who acted like, well, the typical Miss America; and his top 10 list. Dave's top 10 lists have been pretty lame in recent months. Last night's one - Top 10 signs your wife is having an affair with the Jolly Green Giant - was loaded with hilarious double-entendres. See, e.g., #'s 6, 4 & 2. Dave seemed to blush as he read them. (09.25.2001)

Can she "unify the nation"? Who? Miss "Woo Hoo!" America, of course -- a 21-year-old Oregonian. According to The Oregonian, she greeted media on Sunday "with a 'woo hoo!'" and announced that she loves to "be there" for people and that she sees her role "really to rally the spirit of the American people," to "bring healing to the nation," and to "unify the nation." The article quotes her fifth grade teacher as saying, "She's very humble -- an everyday sort of person." (09.24.2001)

Words matter. Last week I found myself pulling down from a book shelf a volume of Lincoln's writing, and rereading his Second Inaugural Address. I don't know whether it was effective as a speech (any more than his Gettysburg Address was), but it is an amazing literary document, mystical and moving, and rather obviously the work of a man with a great heart and enormous depth. Saturday night I pulled out my trusty copy of Justice Holmes' Occasional Speeches and read a bit in it. Sunday I received an e-mail from a law student I know pretty well, who did not know I'd been revisiting Lincoln and Holmes. She wrote, in part: "Have been re-reading some patriotic stuff...Holmes's address at Keene, NH, 1884, Lincoln's 2nd inaugural, which I have a hard time imagining ever being matched by any U.S. president, ever...." I think I like that kid's taste. :-) I pulled out Holmes' speeches again and reread the Keene, NH speech. It was delivered on Memorial Day, May 30, 1884, before John Sedgwick Post No. 4, Grand Army of the Republic, 18 years before Holmes was appointed by Teddy Roosevelt to the U.S. Supreme Court. If you haven't read it, you should. Justice Frankfurter, Holmes' disciple, described him once as "a literary genius of the first magnitude." The speech bears that out. I'm always touched by this passage:

It is not of the dead alone that we think on this day. There are those still living whose sex forbade them to offer their lives, but who gave instead their happiness. Which of us has not been lifted above himself by the sight of one of those lovely, lonely women, around whom the wand of sorrow has traced its excluding circle -- set apart, even when surrounded by loving friends who would fain bring back joy to their lives? I think of one whom the poor of a great city know as their benefactress and friend. I think of one who has lived not less greatly in the midst of her children, to whom she has taught such lessons as may not be heard elsewhere from mortal lips. The story of these and her sisters we must pass in reverent silence. All that may be said has been said by one of their own sex ---

But when the days of golden dreams had perished,

And even despair was powerless to destroy,

Then did I learn how existence could be cherished,

Strengthened, and fed without the aid of joy.

Then did I check the tears of useless passion,

weaned my young soul from yearning after thine

Sternly denied its burning wish to hasten

Down to that tomb already more than mine.

Times have changed. But words still matter. We saw that in the early gaffes -- in the use of the word "crusade" and the phrase "infinite justice" -- gaffes that suggest not errors of the heart but a heedlessness of nuance and a lack of grounding in history and literature. But we also saw it in the writing of President Bush's speech before the joint session of Congress, a beautifully, carefully crafted speech, delivered as well as any Presidential speech I've heard, and I've been listening to them for 50 years. (09.24.2001)

Vance's bright idea. As I've said, we need to encourage creative thinking on ways to defend ourselves against domestic terrorism. But we also must remember that the creative process is at least a two-part process. The first part, the creative-blockbusting part, involves divergent thinking. We in America, with our creative freedom, are better at that than anyone. A teacher of creative writing at an Ivy League school told me that the students who come from so-called "communitarian" cultures are not particularly good at that. We are. But there is also a less-creative part to the process -- the part when we step back and rationally consider and evaluate that which we have created. What I'm saying is, although we should welcome and consider all ideas and shouldn't emotionally shout down any of them, we also should subject each of them to rational scrutiny. Rational scrutiny of a creative idea to defend ourselves against domestic terrorism includes asking questions such as a) whether the idea is consistent with our values, b) whether the potential benefits of the idea are outweighed by the costs, and c) whether the idea is common-sensical. Comes to the front an idea by Vance Opperman of Wayzata, MN, a wealthy businessman with considerable contributor's clout in Minnesota Democratic Farmer-Labor politics and national Democratic politics, including as a prominent contributor to Clinton and Gore Presidential campaigns and to the Gore-Lieberman Recount Fund. Mr. Opperman has ways of getting attention that some of us do not have. In a guest opinion piece on 09.23.2001 in the Minneapolis Star-Tribune, a paper that has not always been kind to him (click here), Mr. Opperman proposes a "Homeland Defense Corps" that will be "a new branch of the military." Repeatedly using the refrain "So draft us now," he argues that no one is too old to serve in the "HLDC" (which sounds to me like another New Deal "alphabet agency"). He says he'd "be honored to serve" in a unit protecting a recreation center or a mosque or a water plant, so "draft us now." I heard Mr. Opperman give his first oral argument before the Minnesota Supreme Court years ago in a case in which he was seeking the suppression of drugs seized from his client in an automobile search. He is an effective rhetoritician, and I'm surprised he's still financing others' campaigns instead of entering the fray himself. He can do that without being "drafted" if he wants. He has the money to fund his own campaign, and he has the ability. Similarly, he can volunteer to help guard a recreation center or other public building without being "drafted," if he wants. We all can volunteer to help and undoubtedly huge numbers of us will, each in our own way -- which, after all, is the American way. And we will do so without some government bureaucrat, employed by an expensive government agency (the "HLDC"), telling us we must do so, must do it now, must do it his way, or be sent to jail as a draft violator. In my opinion, if one wanted to create opposition to the war, one couldn't come up with another scheme more likely to do so. If you've been following reports of life in Iran and in Afghanistan, you know that the way of some Islamic fundamentalist governments is to tell their people what they may do and not do. (Click here and here.) For example, in Afghanistan some Taliban officer can drag you out of your home and force you to say your prayers or punish you for not growing a beard if you're a man. That is not the American way. In Kashmir the other day, an edict went out to women to wear the Islamic veil in public -- or risk having disfiguring acid thrown in their faces, something that has occurred already. (Click here.) That obviously is not the American way. I respectfully submit that Mr. Opperman is a good man with a bad idea. The way for America to respond to a terroristic attack by fascist fanatics is not to make our system like unto theirs, a system that relies on military coercion to force people to be good citizens. In my opinion, if we do that, we will have lost the battle to protect our country and our values before we have even begun it. We will have become the enemy. (09.23.2001) Update: How to protect the homeland, by Joseph Nye (NYT, 09.25.2001).

Imagining, anticipating. I suggested the other day that in protecting and defending ourselves against possible further acts of terrorism, we should employ one of the techniques used in big cases by good trial lawyers, who typically assign a member of the firm to play the role of the opposition, to think like the opposition, to come up with as many possible opposition strategies and arguments as possible. Our leaders either haven't been doing enough of this or haven't been listening to those who have been doing it. The targets attacked on 09.11.2001 rather obviously were buildings that were/are symbols of the American economy and military. There is reason to believe that the target of the fourth plane was the Capitol. Now we are reading a) that the FBI has warned Hollywood's major film studios that one or more of them may be the target of a terrorist attack (click here), and b) that the Attorney General has warned Boston to be on especially high alert this weekend (click here). American movies are products and symbols of American creative freedom that are exported around the world. The Boston area is the intellectual hub of America with upwards of 40 colleges and universities. Fanatical terrorists don't like our freedom, and it's clear their targets are and will continue to be symbols of that freedom. Use your imagination and you can probably identify possible, even likely, domestic targets -- all across America. Many of them have been targets before. (For example, during the Cold War era the state capitol complex in St. Paul, MN, in which I worked for 28+ years, was widely believed, for obvious reasons, to be one of the most-likely Minnesota targets of a Soviet missile in the event of an all-out nuclear war.) Jefferson long ago said that the price we have to pay for our liberty is "eternal vigilance." It is still true, and being "vigilant" is a creative ongoing activity. (09.22.2001)

The "adjournment of politics"? Not. The New York Times editorial today is titled "Politics is Adjourned." Click here. The title is an allusion to Woodrow Wilson's unfortunate, and self-serving, declaration in 1918 that "Politics is adjourned." While the editorial board spins the phrase and makes some valid points, I wish it had resisted resurrecting the phrase. It is an odious one. As Justice Felix Frankfurter said in 1945 in his 70th birthday salute to Thomas Mann, the great novelist, "The adjournment of politics is precisely what Fascism is." Felix Frankfurter, Of Law and Men 346-51 (1956). As Frankfurter added, democracy either "is a government of the people or [it] is a sham." And if it is the government of the people, then there can be no adjournment of politics. Mann, a German, first "disassociated himself" from the Nazi rulers, then escaped them by going to Switzerland and eventually to America. He thought at first that was enough, that he should be silent. But, as Frankfurter said, "Soon he found that it was not possible for him to be silent. He realized that there is only one way in which a poet can keep silent when his feelings are stirred: by silencing forever the poet in him." Writing in this week's New Yorker (click here), John Updike quotes a neighbor of one of the terrorists as saying he didn't like America. "He said it was too lax. He said, 'I can go anywhere I want to, and they can't stop me.'" The Fascists didn't like our freedom. And the fanatical terrorists don't either. They don't like it that women here in America can wear makeup and walk around with their faces uncovered and run for public office. And they don't like it that each of us holds office -- that of citizen -- and can express our political opinions without being shouted down or whipped in public or imprisoned or judicially executed. If we let those bastard fanatics bring about the "adjournment of politics," then they will have won before we've even had time to grieve the "adjournment" of the lives of over 5,000 of our brothers and sisters. (09.20.2001)

Why term limits are stupid. If it weren't for NYC's term-limit law, Rudy Giuliani would be a candidate for re-election and the people of NYC undoubtedly would re-elect him in November by the largest margin in the history of NYC politics. There are some valid policy arguments in favor of term-limit laws, just as there are some valid policy arguments in favor of laws that states like Minnesota have mandating retirement of elected judges at age 70. But the arguments against these laws are much stronger. And the strongest argument, of course -- one that even by itself is conclusive -- is that the laws deprive supposedly-free citizens of a supposedly-free, supposedly-representative democratic country the right to decide who will serve as judges and who will represent them in executive and legislative offices. In my quiet noncampaign in 2000 for Chief Justice of the Minnesota Supreme Court, I articulated in detail why I disagreed with the Minnesota Supreme Court's decision upholding the law mandating retirement of judges at age 70 and why I thought the law was bad public policy. I concluded: "There are thus many reasons why mandatory retirement is not sound policy for the management of our court system. But beyond all that, mandatory retirement is antidemocratic, depriving people of their right to elect judges of their choice." Click here. Our great local newspapers and local TV "news" shows, which sometimes seem to cover everything but the news, never once reported on my views on this issue (or, for that matter, on any other issues I identified). But I as a failed candidate am not the one with the greatest standing to complain

about that. The ones who should complain about that kind of reporting are those who occupy what Justice Felix Frankfurter described as "the most important office in a democracy," that of citizen. For that matter, citizens, you and I, are the ones who also should be complaining that the journalistic lite-weights haven't been covering international news. They haven't been covering it because, as Linda Ellerbee said, "International news is not as sexy as...slinging mud at a politician." Click here and here. Citizens, you and I, are the ones who also should begin working now, right now, to challenge all term-limit laws, which by definition deprive us of our right to decide who will represent us. The place to start is in NYC. There is growing talk there of repealing the term-limit law, before the postponed primary is held, and allowing Mayor Giuliani to file late and run. Click here. I am not sure that way is the way to go nor that it would withstand a judicial challenge. Is there an alternative to retroactively amending the law and reopening filing? One alternative is for the supporters of retaining Giuliani as mayor to conduct a massive voter-education campaign on how to "write-in" Giuliani's name as their choice. In other words, the voters should rise up and assert their right to choose their representatives. Write-in campaigns are difficult. They sometimes succeed at the local level. In Minnesota one such campaign "succeeded" in the 1952 Republican presidential primary in Minnesota, in which "Ike," still in the military and therefore not yet declared as a candidate, received a phenomenal 108,000 write-in votes, second behind the 129,000 received by the listed candidate, Harold Stassen. I know all about that write-in campaign because I witnessed it first-hand as an 8-year-old boy: my mother, Beatrice Herfindahl Hanson, was one of the prime grass-roots organizers of it (and is pictured, along with my father and a number of other organizers, in the March 31, 1952 issue of Life magazine, the one with the cover story titled "Li’l Abner & Daisy Mae Get Married"). Harold Stassen, a great American who never was afraid to stand alone and was often ridiculed for doing so, later said, "If it wasn't for the Minnesota primary in '52, Eisenhower never would have been president." Click here. I believe that if the voters of NYC assert themselves, Rudy Giuliani will continue to be NYC's greatest mayor during the Reconstruction Era. Let me put it this way, as Mr. Dooley said, judges follow the election returns, and there's not a one in the land who will uphold the NYC term-limit law against a successful grass-roots election day citizen revolt against it. (09.20.2001). Update: Pataki urges voters write-in Giuliani (NYT, 09.22.2001).

Planning. Robert Trent Jones, Jr., the golf course architect, was asked about a course he designed in east France at Bossey. He said, "Dirt is my office. Because the terrain is so steep, the site was very difficult, a design puzzle that confounded other architects. While people were making these extravagent proposals that were way over budget, I got down in the dirt and found solutions." Edward Kirsch, NYT Sunday Magazine, 11.13.1988, p.49. Many of us have worked in big organizations as the "grunts" who do most of the work that makes the "higher ups" look good. One might think that when architects design the plans to build new offices or buildings for these organizations, the architects would get down in the dirt and talk with us grunts, not just with the big shot bosses who'll be occupying the fancy offices and getting the big paychecks. But, unlike Jones, often they don't. At least, the bad architects don't. And, quite predictably, it usually shows in the finished product. It now appears that the folks who are responsible for airline safety, the security experts, haven't talked much with (or haven't listened to) the grunts who actually fly the planes. Some reporters have been talking with the pilots, and many of the pilots are saying that "no matter what changes are made on the ground, terrorists will still find a way to sneak aboard commercial flights with weapons," and that the key is "preventing them from breaking into the cockpit and taking over the flight controls once they’re aboard." The pilots have some pretty good ideas how to do that and, according to them, hiring armed guards to ride on each flight is not a good idea. More (WorldNetDaily). (09.19.2001)

War on Terrorism continued...

Earlier entries...

Library of Congress September 11 Web Archives. BurtLaw's Law And Everything Else, i.e., this website, is part of the Library of Congress September 11 Web Archive, which preserves the web expressions of selected individuals, groups, the press and institutions in the United States and from around the world in the aftermath of the attacks in the United States on September 11, 2001. Date Captured: September 20, 2001 - December 17, 2001.

Announcement. We've finally gotten around to launching our new webzine/blawg: BurtLaw's The Daily Judge:

It is not an online newspaper and is not affiliated with or intended to be mistaken for any existing or previously-existing newspaper or journal. Rather, it is a so-called "blawg," a law-related personal "web log" or "blog," one with a subjective, idiosyncratic, and eccentric sociological and social-psychological slant that focuses not on the latest judicial decisions of supposed great importance but on a) the institution of judge in the United States and in other countries throughout the world, b) the judicial office and role, c) judicial personalities, d) the great common law tradition of judging as practiced here and throughout the world, e) judges as judges, f) judges as ordinary people with the usual mix of virtues and flaws, etc. We link to newspapers and other sources in order to alert the reader to ideas, articles, stories, speeches, law books, literary works and other things about "judges" that have interested us and that may interest the reader.

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