Human Rights Watch has released their 2008 world report, and it's getting some play in the Financial Times and other outlets. Here's the FT lead:

The world’s well established democracies are increasingly prepared to give credibility to authoritarian regimes, failing to probe how autocracies conduct flawed elections to bolster their international standing, a leading human rights body said on Thursday.

In its annual survey of democracy across the world, Human Rights Watch argues that the US and the European Union are too quick to support “sham democracies” in states like Pakistan, Egypt, Ethiopia and Kazakhstan, turning a blind eye to their abuse of underlying civil and political rights.

“In 2007, too many governments...acted as if simply holding a vote was enough to prove a nation ’democratic,’ and Washington, Brussels and European capitals played along,” Human Rights watch said in its latest report.

Part of the reason that dictators can hope to get away with such subterfuge is that, unlike human rights, “democracy” has no legally established definition. The concept of democracy reflects the powerful vision that the best way to select a government and guide its course is to entrust ultimate authority to those who are subject to its rule. It is far from a perfect political system, with its risk of majoritarian indifference to minorities and its susceptibility to excessive influence by powerful elements, but as famously the “least bad” form of government, in the words of Winston Churchill, it is an important part of the human rights ideal. Yet there is no International Convention on Democracy, no widely ratified treaty affirming how a government must behave to earn the democracy label. The meaning of democracy lies too much in the eye of the beholder.

By contrast, international human rights law grants all citizens the right to “take part in the conduct of public affairs, directly or through freely chosen representatives” and to “vote” in “genuine periodic elections” with “universal and equal suffrage” and “secret ballot” so as to “guarantee[] the free expression of the will of the electors.” It also grants a range of related rights that should be seen as essential to democracy in any robust and meaningful form, including rights protecting a diverse and vigorous civil society and a free and vibrant press, rights defending the interests of minorities, and rights ensuring that government officials are subject to the rule of law. The specificity and legally binding nature of human rights are their great strength. But when autocrats manage to deflect criticism for violating these rights by pretending to be democrats, when they can enjoy the benefits of admission to the club of democracies without paying the admission fee of respect for basic rights, the global defense of human rights is put in jeopardy. Why bother complying with so intrusive a set of rules as international human rights law when, with a bit of maneuvering, any tyrant can pass himself off as a “democrat”?

Indeed, whether human rights treaties have had any effect on state behavior is a disputed point in both international relations and international law scholarship. Compared to the various waves (and smaller counterwaves) of democratization that have occurred in recent decades, however, the advancement of human rights looks like its lagging pretty badly. So I'm not sure that the codification of human rights law is the great advancement that Roth proclaims it to be.

Al Baker reports on some stunning homicide figures in the New York Times:

New York City is on track to have fewer than 500 homicides this year, by far the lowest number in a 12-month period since reliable Police Department statistics became available in 1963.

But within the city’s official crime statistics is a figure that may be even more striking: so far, with roughly half the killings analyzed, only 35 were found to be committed by strangers, a microscopic statistic in a city of more than 8.2 million.

If that trend holds up, fewer than 100 homicide victims in New York City this year will have been strangers to their assailants. The vast majority died in disputes with friends or acquaintances, with rival drug gang members or — to a far lesser degree — with romantic partners, spouses, parents and others.

The low number of killings by strangers belies the common imagery that New Yorkers are vulnerable to arbitrary attacks on the streets, or die in robberies that turn fatal.

In the eyes of some criminologists, the police will be hard pressed to drive the killing rate much lower, since most killings occur now within the four walls of an apartment or the confines of close relationships.

Hmmm.... come to think of it, most of these shows are set in Manhattan. I wonder if we hae reached the point when the annual number of homicides in that borough are less than the number of homicides that would be portrayed on television. Not just the L&O franchise, but also CSI: NY and the half-dozen other crime shows I'n sure are set in the city.

Readers, go and check this out!

Over at Passport, Mike Boyer alerts me to a unique piece of litigation:

Nebraska State Senator Ernie Chambers has had enough of plagues, famines, droughts, hurricanes, and genocides. Chambers considers these incidents to be terrorists acts. To stop them, he's suing the person responsible for them—God.

Chambers, who before becoming a state legislator was a barber, filed a lawsuit last Friday in Nebraska's Douglas County District Court, naming himself as the plaintiff and God as the defendant, a permanent injunction "ordering defendant to cease certain harmful activities and the making of terroristic threats."

Before the Voloh Conspiracy and Opinio Juris get a hold of this, I have to sday that my favorite bit is this: "Defendant has made and continues to make terroristic threats of grave harm to innumerable persons." Whoa there -- Chambers has concrete information about these new threats?

After an allegation like that, if I was God's lawyer I'd advise him to smite Chambers until his tongue fell out and his flesh was covered with boils countersue for libel.

The New York Times Magazine offers a sneak preview of next week's cover story -- Jeffrey Rosen's article about Jack Goldsmith's experiences at the Justice Department's Office of Legal Counsel (Full disclosure: Jack is a good friend and I've blogged about him before). Goldsmith is the author of The Terror Presidency: Law and Judgment Inside the Bush Administration , due out in the next week.

This paragraph from Rosen's story should sound familiar to those who have observed Bush's foreign policy style:

In Goldsmith’s view, the Bush administration went about answering [national security law] questions in the wrong way. Instead of reaching out to Congress and the courts for support, which would have strengthened its legal hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of executive power. As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave the presidency stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand presidential power have diminished it.”

In Goldsmith’s view, the Bush administration went about answering __noun__ questions in the wrong way. Instead of reaching out to __noun__ and __noun__ for support, which would have strengthened its __adjective__ hand, the administration asserted what Goldsmith considers an unnecessarily broad, “go-it-alone” view of __noun__ . As Goldsmith sees it, this strategy has backfired. “They embraced this vision,” he says, “because they wanted to leave __noun__ stronger than when they assumed office, but the approach they took achieved exactly the opposite effect. The central irony is that people whose explicit goal was to expand __noun__ have diminished it.”

Via Jonathan Adler, I see that while I was away FCC chairman Kevin Martin did not react well to the Second Court of Appeals decision to strike down the FCC's policy governing "fleeting expletives". The court characterized the policy -- designed to make the network liable when someone unexpectedly swears during a live broadcast.-- as "arbitrary and capricious."

Martin's response -- on the FCC's web site, no less -- contains the following:

I completely disagree with the Court’s ruling and am disappointed for American families. I find it hard to believe that the New York court would tell American families that “shit” and “fuck” are fine to say on broadcast television during the hours when children are most likely to be in the audience.

The court even says the Commission is “divorced from reality.” It is the New York court, not the Commission, that is divorced from reality in concluding that the word “fuck” does not invoke a sexual connotation.

1) Did Martin write this himself or did people with actual training in press relations whip this statement up?

2) By the FCC's interpretation, is Martin is obnoxiously hitting on erveryone who reads his statement?

3) Am I obviously encouraging rape and bestiality when I say, "F#$% Kevin Martin and the horse he rode in on?" or could I have a different intent in mind?

4) As Adler asks, "Given the Second Circuit's ruling, could a network air Martin's remarks without fear of federal sanction?"

"Striking the proper balance on intellectual property rights" is one of those ideas I put in my conceptual hope chest along with "unilateral elimination of all agricultural subsidies" or "fiscal conservativism" or "NBC renewing Friday Night Lights for another season" as policies I'd really like to see but don't expect to happen.

So, it's a pleasant surprise to read the Economist's tech.view column explain that the Supreme Court actually took a positive step on patent rights:

In a unanimous decision that is being hailed as the most important patent ruling in decades, the Supreme Court early this week swept aside the non-obviousness test used by the appeals court. In its place, a common-sense standard based on real-world conditions is to be applied to all patent applications that combine (as most do) elements of existing inventions.

The case ruled on by the justices concerned an accelerator pedal developed by a Canadian company called KSR. The pedal could be adjusted for a driver’s height and used an electronic sensor, rather than a mechanical cable, to change the engine speed. Teleflex, a rival manufacturer, demanded royalties, claiming the device infringed one of its patents.

KSR argued that Teleflex had combined existing elements in an obvious way, and that its patent was therefore invalid. A district court in Detroit agreed, but the decision was subsequently overturned by the appeals court in Washington, DC. Under the Supreme Court’s new definition of obviousness, Teleflex would have been lucky to get a patent for the pedal in the first place.

The justices’ opinion has been welcomed by the high-tech community. It is impossible to build a laptop, mobile phone or video recorder without infringing dozens of the thousands of patents that cover the various components involved. Computer firms have responded by engaging in a patents arms race and negotiating cross-licensing deals with everyone they expect will be involved.

This is wasteful enough for the Intels, Microsofts and IBMs that can afford such profligate practices. But it can be life or death for smaller, innovative firms. When challenging incumbents’ old-fashioned ways, upstarts like Vonage can find themselves forced out of the market by dubious patent litigation rather than actual competition.

The Supreme Court’s ruling this week will make such anti-competitive practices harder to sustain. Vonage, for one, may be the first of many to seek legal redress from all the shoddy patents endorsed by America’s over-eager courts.

I've been remiss in not posting about the brewing brouhaha about the role that Republican members of Congress, as well as the White House, played in the removal of several U.S. Attorneys in December 2006. Comment away.

If this New York Times story is accurate, then this story has the perfect storm of tidbits to fuel numerous news cycles: Harriet Miers, Karl Rove, White House overreaching, and the kind of investgation that promises regular tidbits of new information.

UPDATE: Ah, the Washington Post's Dan Eggen and John Solomon feed the storm:

The White House suggested two years ago that the Justice Department fire all 93 U.S. attorneys, a proposal that eventually resulted in the dismissals of eight prosecutors last year, according to e-mails and internal documents that the administration will provide to Congress today.

The dismissals took place after President Bush told Attorney General Alberto R. Gonzales in October that he had received complaints that some prosecutors had not energetically pursued voter-fraud investigations, according to a White House spokeswoman.

Gonzales approved the idea of firing a smaller group of U.S. attorneys shortly after taking office in February 2005. The aide in charge of the dismissals -- his chief of staff, D. Kyle Sampson -- resigned yesterday, officials said, after acknowledging that he did not tell key Justice officials about the extent of his communications with the White House, leading them to provide incomplete information to Congress.

Lawmakers requested the documents as part of an investigation into whether the firings were politically motivated. While it is unclear whether the documents, which were reviewed yesterday by The Washington Post, will answer Congress's questions, they show that the White House and other administration officials were more closely involved in the dismissals, and at a much earlier date, than they have previously acknowledged.

Over at the Council on Foreign Relations web site, Dan Ikenson and Robert E. Lighthizer are debating whether the WTO dispute settlement system is too robust for its own good.

Meanwhile, at the International Economic Law and Policy blog, my colleague Joel Trachtman discusses why Indonesia has decided to sell Baxter HealthCare exclusive access to its avian flu virus samples.

The international law blog Opinio Juris announces what I believe to be a first -- an executive branch official openly participating in a blog:

Opinio Juris is very pleased to announce that John Bellinger will be guest blogging with us for the week of January 15. As our readers well know, Bellinger is the State Department Legal Adviser, the top lawyer at the Department of State. In that capacity he is the principal adviser on all domestic and international law matters to the Department of State, the Foreign Service, and the diplomatic and consular posts abroad. Full details of his bio are available here.

The format will be as follows. Bellinger will post six posts over the course of next week. The discussion will begin on Monday morning with an introduction to the Legal Adviser’s office, and then turn to substantive discussions of the treatment of detainees, international humanitarian law, and sovereign immunity.

Comment away on the Hamdan decision and its implications.

No, wait, before you do that, click over to see what Randy Barnett, Orin Kerr, and Jack Balkin think about the decision (Pajamas Media has a big roundup post as well).

Balkin first:

What the Court has done is not so much countermajoritarian as democracy forcing. It has limited the President by forcing him to go back to Congress to ask for more authority than he already has, and if Congress gives it to him, then the Court will not stand in his way....

I repeat: nothing in Hamdan means that the President is constitutionally forbidden from doing what he wants to do. What the Court has done, rather is use the democratic process as a lever to discipline and constrain the President's possible overreaching.

It has long seemed clear to me and many others who are otherwise sympathetic to its policies that the Bush administration made two colossal errors in prosecuting the general war on terror.

First: Not seeking quick explicit congressional authorization for such policies as incarceration, military tribunals, etc. The Hamdan case was just one result of this failure. Now, such involvement is much more difficult to accomplish; then it would have been relatively easy. Just not as easy as going it alone, which has proved to be the harder course in the long run.

Second: Not involving the American public directly in supporting the war....

The administration essentially opted for a one-branch war, and the country is now paying the price for that decision. While the failure to involve Congress is merely hard to rectify at this point, the failure adequately to involve the public may now be impossible to remedy.

Neither of these observations is original to me. Both points were made by others when the GWOT began, which is why it is not hindsight to point them out on a day that a very large chicken has come home to roost.

The combination of the Mayer article and the Hamdan case today brings up an interesting question: To what extent did lawyers in the Administration expect the courts — and in particular, the Supreme Court — to agree with the Addington view of the law? Did they think there were five votes in support of the Addington approach, or that the Court would stay away from the issues? Alternatively, did they figure that the first priority was to do what was needed to protect the country in the short term, and that it was better to push the envelope and have the Courts strike down their efforts than not to push at all?

UPDATE: Stephen Bainbridge ponders next steps for Congress.

"It is often not at all the situation that the president doesn't intend to enact the bill."

Getting rid of the double negative, and this translates into, "the president often intends to enact the bill." Not always, but often. Which is great, but I always thought that when Congress passes a law -- no matter how stupid that law might be -- the president is always supposed to implement it. UPDATE: Obviously, the president can veto a bill. Signing a bill and only partially implementing it, however, is another kettle of fish entirely.

To be fair, let's see how Boardman expands on her comments:

Michelle Boardman, a deputy assistant attorney general, said the statements were "not an abuse of power."

Rather, Ms. Boardman said, the president has the responsibility to make sure the Constitution is upheld. He uses signing statements, she argued, to "save" statutes from being found unconstitutional. And he reserves the right, she said, only to raise questions about a law "that could in some unknown future application" be declared unconstitutional.

I'm not opposed to signing statements in principle -- indeed, they probably serve as useful guidance for executive branch agencies. However, quotes like the one above give me hives.

ANOTHER UPDATE: Thanks to Appalled Moderate for adding more context to Broadman's comments.

YET ANOTHER UPDATE: Orin Kerr puts his finger on the larger problem:

It seems to me that the Bush Administration’s approach to Article II powers has two features: (1) an unusually broad view of Article II powers and (2) a refusal to explain in detail the Administration’s broad view of Article II powers. Most criticism of the Administration’s approach has focused on (1). I’m no expert on these issues, but my sense is that, from a structural perspective, the real difficulty is the combination of (1) and (2).

The Senate is going to vote today on a flag-burning amendment, an act that even the conservative base knows is meaningless. Seriously, is this really a problem in this country? Utah Senator Bob Bennett points out the obvious: "The only time there's any significant amount of flag burning is when the flag amendment is introduced and people go out and burn flags in opposition to the amendment."

If you must think about this kind of nonsense, go read this Julian Sanchez post about the proposed constitutional amendment to ban flag-burning. And then try to think of an even sillier amendment to the Constitution and post it in the comments.

UPDATE: Thanks to the reader who linked to this John Scalzi post from last year on this very topic.

Last month I blogged about the Newsweek story on the rebellion of politically-appointed Justice Department lawyers against the Dick Cheney/David Addington approach of how to run the war on terror and the executive branch.

I got a powerful whiff of déjà vu upon seeing that The New Yorker's Jane Mayer has a story about Alberto J. Mora, the general counsel of the United States Navy until January of this year. Why? Well, three reasons.

First, the rebellion story sounds awfully familar:

One document, which is marked “secret” but is not classified, is a twenty-two-page memo written by Mora. It shows that three years ago Mora tried to halt what he saw as a disastrous and unlawful policy of authorizing cruelty toward terror suspects.

The memo is a chronological account, submitted on July 7, 2004, to Vice Admiral Albert Church, who led a Pentagon investigation into abuses at the U.S. detention facility at Guantánamo Bay, Cuba. It reveals that Mora’s criticisms of Administration policy were unequivocal, wide-ranging, and persistent. Well before the exposure of prisoner abuse in Iraq’s Abu Ghraib prison, in April, 2004, Mora warned his superiors at the Pentagon about the consequences of President Bush’s decision, in February, 2002, to circumvent the Geneva conventions, which prohibit both torture and “outrages upon personal dignity, in particular humiliating and degrading treatment.” He argued that a refusal to outlaw cruelty toward U.S.-held terrorist suspects was an implicit invitation to abuse. Mora also challenged the legal framework that the Bush Administration has constructed to justify an expansion of executive power, in matters ranging from interrogations to wiretapping. He described as “unlawful,” “dangerous,” and “erroneous” novel legal theories granting the President the right to authorize abuse. Mora warned that these precepts could leave U.S. personnel open to criminal prosecution.

In important ways, Mora’s memo is at odds with the official White House narrative....

Mora thinks that the media has focussed too narrowly on allegations of U.S.-sanctioned torture. As he sees it, the authorization of cruelty is equally pernicious. “To my mind, there’s no moral or practical distinction,” he told me. “If cruelty is no longer declared unlawful, but instead is applied as a matter of policy, it alters the fundamental relationship of man to government. It destroys the whole notion of individual rights. The Constitution recognizes that man has an inherent right, not bestowed by the state or laws, to personal dignity, including the right to be free of cruelty. It applies to all human beings, not just in America—even those designated as ‘unlawful enemy combatants.’ If you make this exception, the whole Constitution crumbles. It’s a transformative issue.”

Mora—whose status in the Pentagon was equivalent to that of a four-star general—is known for his professional discretion, and he has avoided the press. This winter, however, he agreed to confirm the authenticity and accuracy of the memo and to be interviewed.... Mora, a courtly and warm man, is a cautious, cerebral conservative who admired President Reagan and served in both the first and the second Bush Administrations as a political appointee. He strongly supported the Administration’s war on terror, including the invasion of Iraq, and he revered the Navy. He stressed that his only reason for commenting at all was his concern that the Administration was continuing to pursue a dangerous course. “It’s my Administration, too,” he said.

Without Mora’s knowledge, the Pentagon had pursued a secret detention policy. There was one version, enunciated in [Pentagon general counsel William] Haynes’s letter to [Senator Patrick] Leahy, aimed at critics. And there was another, giving the operations officers legal indemnity to engage in cruel interrogations, and, when the Commander-in-Chief deemed it necessary, in torture. Legal critics within the Administration had been allowed to think that they were engaged in a meaningful process; but their deliberations appeared to have been largely an academic exercise, or, worse, a charade. “It seems that there was a two-track program here,” said Martin Lederman, a former lawyer with the Office of Legal Counsel, who is now a visiting professor at Georgetown. “Otherwise, why would they share the final working-group report with [head of Southern Comabd General James] Hill and [Guantánamo commander General Geoffrey] Miller but not with the lawyers who were its ostensible authors?”....

The senior Defense Department official defended as an act of necessary caution the decision not to inform Mora and other legal advisers of official policy. The interrogation techniques authorized in the signed report, he explained, were approved only for Guantánamo, and the Pentagon needed to prevent the practices from spreading to other battlefronts. “If someone wants to criticize us for being too careful, I accept that criticism willingly, because we were doing what we could to limit the focus of that report . . . to Guantánamo,” the official said.

In fact, techniques that had been approved for use at Guantánamo were quickly transferred elsewhere. Four months after General Miller was briefed on the working-group report, the Pentagon sent him to Iraq, to advise officials there on interrogating Iraqi detainees. Miller, who arrived with a group of Guantánamo interrogators, known as the Tiger Team, later supervised all U.S.-run prisons in Iraq, including Abu Ghraib. And legal advisers to General Ricardo Sanchez, the senior U.S. commander in Iraq at the time, used the report as a reference in determining the limits of their interrogation authority, according to a Pentagon report on Abu Ghraib.

A lawyer involved in the working group said that the Pentagon’s contention that it couldn’t risk sharing the report with its authors “doesn’t make any sense.” He explained, “We’d seen everything already.” The real reason for their exclusion, he speculated, was to avoid dissent. “It would have put them in a bind,” he said. “And it would have created a paper trail.”

ANOTHER UPDATE: I've met John Yoo several times at conferences, and each time I've found him an engaging individual with a lively mind. But I have to think he's engaging in wishful thinking in this response to a Foreignpolicy.com interview:

I would like to say that it is my understanding that the United States does not engage in torture, and that the reports of abuses that have occurred in Iraq or elsewhere appear to have been the result of individuals acting outside official policy. Abuses, while regrettable, sometimes happen in large organizations when individuals violate the rules.

Fifteen months ago, Dana Milbank had a Washington Post story that touched on the tension that existed between David Addington, Vice President Cheney's longtime lawyer and new chief of staff, and other national security lawyers in the administration:

Even in a White House known for its dedication to conservative philosophy, Addington is known as an ideologue, an adherent of an obscure philosophy called the unitary executive theory that favors an extraordinarily powerful president....

On the job, colleagues describe Addington as hard-edged and a bureaucratic infighter who frequently clashes with others, particularly the National Security Council's top lawyer, John Bellinger. Officials say disputes between Addington and Jack Goldsmith, head of the Justice Department's Office of Legal Counsel, led Goldsmith to resign after eight months in the job; Addington had sought to persuade OLC to take a more permissive line on torture.

Still, even foes admire Addington's work ethic and frugality; he takes Metro from his home in Alexandria instead of using his White House parking space.

James Comey, a lanky, 6-foot-8 former prosecutor who looks a little like Jimmy Stewart, resigned as deputy attorney general in the summer of 2005. The press and public hardly noticed. Comey's farewell speech, delivered in the Great Hall of the Justice Department, contained all the predictable, if heartfelt, appreciations. But mixed in among the platitudes was an unusual passage. Comey thanked "people who came to my office, or my home, or called my cell phone late at night, to quietly tell me when I was about to make a mistake; they were the people committed to getting it right—and to doing the right thing—whatever the price. These people," said Comey, "know who they are. Some of them did pay a price for their commitment to right, but they wouldn't have it any other way."

One of those people—a former assistant attorney general named Jack Goldsmith—was absent from the festivities and did not, for many months, hear Comey's grateful praise. In the summer of 2004, Goldsmith, 43, had left his post in George W. Bush's Washington to become a professor at Harvard Law School. Stocky, rumpled, genial, though possessing an enormous intellect, Goldsmith is known for his lack of pretense; he rarely talks about his time in government. In liberal Cambridge, Mass., he was at first snubbed in the community and mocked as an atrocity-abetting war criminal by his more knee-jerk colleagues. ICY WELCOME FOR NEW LAW PROF, headlined The Harvard Crimson.

They had no idea. Goldsmith was actually the opposite of what his detractors imagined. For nine months, from October 2003 to June 2004, he had been the central figure in a secret but intense rebellion of a small coterie of Bush administration lawyers. Their insurrection, described to NEWSWEEK by current and former administration officials who did not wish to be identified discussing confidential deliberations, is one of the most significant and intriguing untold stories of the war on terror.

These Justice Department lawyers, backed by their intrepid boss Comey, had stood up to the hard-liners, centered in the office of the vice president, who wanted to give the president virtually unlimited powers in the war on terror. Demanding that the White House stop using what they saw as farfetched rationales for riding rough-shod over the law and the Constitution, Goldsmith and the others fought to bring government spying and interrogation methods within the law. They did so at their peril; ostracized, some were denied promotions, while others left for more comfortable climes in private law firms and academia. Some went so far as to line up private lawyers in 2004, anticipating that the president's eavesdropping program would draw scrutiny from Congress, if not prosecutors. These government attorneys did not always succeed, but their efforts went a long way toward vindicating the principle of a nation of laws and not men.

The rebels were not whistle-blowers in the traditional sense. They did not want—indeed avoided—publicity. (Goldsmith confirmed public facts about himself but otherwise declined to comment. Comey also declined to comment.) They were not downtrodden career civil servants. Rather, they were conservative political appointees who had been friends and close colleagues of some of the true believers they were fighting against. They did not see the struggle in terms of black and white but in shades of gray—as painfully close calls with unavoidable pitfalls. They worried deeply about whether their principles might put Americans at home and abroad at risk. Their story has been obscured behind legalisms and the veil of secrecy over the White House. But it is a quietly dramatic profile in courage.

The fact that Addington, Cheney, and by extension Bush managed to force out people like Goldsmith and Comey means that the legal consensus within the administration is way, way outside the legal mainstream.

Oh, and one other thing: Henry Farrell is right. Those who criticized Goldsmith's appointment to Harvard Law School on ethical grounds (click here for one example) have a hell of a lot of crow to consume.

Mike Hughlett reports in the Chicago Tribune that the Justice Department would like to access Google's records:

Google Inc. is refusing to obey a Justice Department demand that it release information about what people seek when they use the popular search engine, setting up a possible battle with broad implications for Internet privacy rights.

The Justice Department asked a federal court this week to force Google to turn over a trove of information on how people use the Internet. A subpoena, first sought over the summer, seeks activity on Google's search engines for a single week, a request that Google says could lead to identifying millions of people and what they were looking at.

The government, which says its request will not result in identifying individual computer users, wants to use the information to resurrect an online pornography law shot down last year by the U.S. Supreme Court. It wants to search Google queries to see how often users inadvertently run across sexual material.

The Internet's rise has raised issues of whether users would be vulnerable to electronic eavesdropping of all kinds, but Google's stand represents the first big public face-off between the world's leading search engine and the government....

Yahoo, which has the second most popular Internet search engine, acknowledged Thursday it has complied with the government on a "limited basis."

Other Internet search engines also appear to have complied with the request, said Chris Winfield, president of 10e20 LLC, a New York-based search engine marketing firm. "It looks like Google against everyone," he said.

I'm not competent to comment on the legality of the request, but the thing that struck me is that the DOJ is being unbelievably lazy.

The DOJ wants to show that online searches lead to inadvertent stumbles into porn. It is true that the best way to show this would be to retrieve a sample of searches. However, almost as good would be for the DOJ to commission some social scientist to do the research for them. It would not be hard for a researcher to run an experiment to gather this kind of data, and the results would be just as useful to the Department of Justice.

There's something else that disturbs me about this request. If Yahoo! and other search engines have already complied, then the DOJ doesn't really need Google's data. All of the search algorithms are pretty much identical -- which means that Justice already has a sufficiently large sample. Even if the differences are more important than I think, the companies cooperating with the DOJ already represent a larger combined market share than Google, so it's not clear that their cooperation is really necessary for the DOJ to make its evidentiary argument.

So why continue to press Google?

I see one of two possibilities:

1) The data they have doesn't support the administration's supposition, and they're hoping Google will bail them out;

2) They don't care about the data for this case as much as they do about establishing a legal precedent and/or intimidating Google into compliance.

UPDATE: One other quick thought -- although I doubt they acted for these reasons, this is brilliant PR for Google. Their spectacular growth and ever-increasing range of activities had threatened to turn cultural perceptions against the firm. By resisting the Bush administration -- in contrast to Yahoo's capitulation -- Google will look very, very good to all the syberlibertarians oiut there.

Orin Kerr has a good post up explaining why the Supreme Court's 6-3 ruling in Gonzales v. Oregon favor of Oregon's assisted suicide law could be a harbinger for how the Court will rule on NSA surveillance or other executive-legislative disputes.

UPDATE: Stephen Bainbridge has a good post up on what the ruling reveals about Scalia's jurisprudence.

The Associated Press reports that Major League Baseball is about to get into a legal war with fantasy baseball:

A company that runs sports fantasy leagues is asking a federal court to decide whether major leaguers' batting averages and home run counts are historical facts that can be used freely or property that can be sold.

In a lawsuit that could affect the pastime of an estimated 16 million people, CBC Distribution and Marketing wants the judge to stop Major League Baseball from requiring a license to use the statistics.

The company claims baseball statistics become historical facts as soon as the game is over, so it shouldn't have to pay for the right to use them....

CBC, which has run the CDM Fantasy Sports leagues since 1992, sued baseball last year after it took over the rights to the statistics and profiles from the Major League Baseball Players Association and declined to grant the company a new license.

Before the shift, CBC had been paying the players' association 9 percent of gross royalties. But in January 2005, Major League Baseball announced a $50 million agreement with the players' association giving baseball exclusive rights to license statistics....

Major League Baseball has claimed that intellectual property law makes it illegal for fantasy league operators to "commercially exploit the identities and statistical profiles" of big league players....

Ben Clark, a St. Louis attorney who specializes in intellectual property rights, said a win by Major League Baseball could "send a shudder through the entire fantasy industry," he said.

On the other hand, he said, it stands to lose the rights to any royalties for use of statistics.

"You just wonder whether it's a fight Major League Baseball wants to have," he said.

Over at Baseball Musings, David Pinto has some useful links, including this nugget of information that appears to completely undercut MLB's case:

IP lawyer Kent Goss is quoted as citing an interesting 2001 case in which MLB themselves claimed that player names and statistics were (as far as I can interpret) both in the public domain and free for others to profit from, and the California Court of Appeal upheld MLB's right to use the names and stats of historical players. "A group of former players sued MLB for printing their names and stats in game programs, claiming their rights to publicity were violated," Goss said. "But the court held that they were historical facts, part of baseball history, and MLB had a right to use them. Gionfriddo v. Major League Baseball, 94 Cal. App. 4th 400 (2001)."

This leads me to a question I can't answer -- what on earth prompted baseball to adopt such a hard-line position on an issue it knows it probably can't win in the courts?

Ah, I see that Samuel Altio's confirmation hearings begin before the Senate Judiciary Committee today.

When the hearings were held for John Roberts last year, there was a lot of silliness uttered by a lot of people -- mostly members of the Senate Judiciary Committee.

So, the hard-working staff here at danieldrezner.com announces its first contest -- finding the single dumbest thing a Senator says during the hearings.

For example, my winner for the Roberts confirmation would have been Senator Tom Coburn of Oklahoma, who averred, "[I am using] my observational capabilities as a physician to know that your answers have been honest and forthright as I watch the rest of your body respond to the stress that you're under." Diane Feinstein gave Coburn a run for his money, but this was stupidity in its purest form.

So, listen closely and post your nominations in the comments below. Be sure to provide a link to the source of the quotation for our legal staff here. [What does the winner receive?--ed. Hmmm.... suggest your own reward as well, and I'll see what the staff can whip up.]

To kick things off, consider this example from Patrick Leahy's opening statement:

Last October, the President succumbed to partisan pressure from the extreme right of his party by withdrawing his nomination of Harriet Miers. By withdrawing her nomination and substituting this one, the President has allowed his choice to be vetoed by an extreme faction within his party, before hearings or a vote. That eye-opening experience for the country demonstrated what a vocal faction of the Republican Party really wants: They do not want an independent federal judiciary. They demand judges who will guarantee the results that they want.

a) Opposition to Harriet Miers was across the board;

b) The most significant pressure came from.... members of the Senate Judiciary Committee.

c) Patrick Leahy apparently believes that all NARAL really wants is for justices to "vote their conscience."

UPDATE: Click here to find out who won!

Vincent J. Schodolski has a story in today's Chicago Tribune about the unothrodox sentences judges sometimes impose on defendants. Here's how it opens:

There is a song in Gilbert and Sullivan's light opera "The Mikado" in which the title character reveals that one of his goals is "to let the punishment fit the crime." It appears that a number of judges around the country share that objective.

In various jurisdictions and for various crimes, judges have ordered individuals to spend a night in the woods, act as a school crossing guard, stand along busy streets with signs around their necks proclaiming their misdeed and even watch a film about violent neo-Nazis, "American History X."

Some of the judges involved said that they imposed these sentences to make criminals better understand the harm they caused or could have caused.

This month, an Arkansas woman who passed a stopped school bus and struck and killed a child was sentenced to spend one day a year in jail for 10 consecutive years, with the date to coincide with the date on which the child died.

At first I thought this was an error in the Trib story -- but it's not:

Tiffany Nix, 25, was ordered to spend every September 28 through 2015 in jail for the 2004 death of 9-year-old William "Isaac" Brian.

Nix pleaded guilty Tuesday to manslaughter and passing a stopped school bus.

The judge ordered Nix to pay Isaac's family $5,694.62 for his funeral expenses. She will also be on probation for 10 years and must perform 400 hours of community service.

The boy's father, Kelly Brian, said after the hearing that he and his wife, Shari, were satisfied with the sentence.

Prosecutors had said Nix had opiates and amphetamines in her system at the time of the accident. She had initially been charged with negligent homicide, but prosecutors upgraded the charge after receiving results from laboratory tests.

In a written statement included in a police report, Nix said she saw the school bus but did not see its stop sign. She said she did not realize the bus was stopped until she saw the boy running in front of it.

Isaac's death prompted legislator