24 June 2010

Bastard Progeny of Monster Link Sausages

I don't even have time for publishing news today, nor enough time to really take apart the significant copyright decision (Viacom v. YouTube, which — on first reading — was wrong at a fundamental level on the one hand, but reached a possibly defensible result on the particular facts... given that the only real access to the facts that we have is the formal submissions of the parties and the judge's resolution of their conflicting statements of facts). That said, here are two big, fat, hairy internet link sausages (even bigger, fatter, and hairier than yesterday's):

  • General McChrystal had to go. Bluntly, he and his staff brought shame and disgrace upon the military officer corps that will take about four or five years to recover from... unless things continue to deteriorate. Obama was right to accept McChrystal's resignation, if only on grounds of Article 88, UCMJ (codified at 10 U.S.C. § 888):

    Any commissioned officer who uses contemptuous words against the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, or the Governor or legislature of any State, Commonwealth, or possession in which he is on duty or present shall be punished as a court-martial may direct.

    Of course, this also applies to all of the other US officers who were interviewed, presuming they were accurately quoted (and, although Rolling Stone isn't exactly a paragon of journalistic virtue, it has a much better track record in that regard than virtually any US-based unit of NewsCorp — Fox News, the New York Post, etc.). And even if the statements actually made (if what appears in the RS article is either sufficiently out of context or misquoted or misattributed) aren't quite "contemptuous words," the underlying attitude violates Article 133

    Any commissioned officer, cadet, or midshipman who is convicted of conduct unbecoming an officer and a gentleman shall be punished as a court-martial may direct.

    because the oath of commissioning requires an officer to

    I, (state your full name), having been appointed a second lieutenant, in the United States (branch of service), do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter, so help me God.

    Far be it from me to criticize an unrestricted press for seeking to understand what is going on. And far be it from me to say that officers should be reluctant to hold their own opinions; or to discuss actual, criminal conduct in a lawful manner. But you do not criticize the civilian leadership because its policies or practices are not those you would prefer. As an officer, you either put up with the differences and follow orders, remembering that the entire purpose of a representative democracy celebrates reaching a course of action after vigorous debate... or you resign your commission. And that goes for "gays in the military," and for "political indoctrination in the military," and for "we should invade China instead of stopping at the Yalu River," and for any other policy disagreement. If the civilian leadership gives you an unlawful order, you're entitled to disobey it... but you'd better be right. When it got to the point that I could no longer maintain confidence in the senior uniformed and civilian leadership during the 1990s (primarily over overt political and other discrimination, not over policy differences), I resigned my commission. If McChrystal really held the views attributed to him, and felt strongly enough about them that he was willing to speak to a reporter about them, he should have resigned. The same goes for his chief of staff and the other senior staff members quoted/paraphrased in that article.

    There's another aspect of this sordid state of affairs that has not gotten adequate attention: Why did McChrystal (et alia) think that they were entitled to state these decisions? Bluntly, because they were trained to do so by unprofessional officers in the post-Vietnam era. If nothing else, one of the subsidiary effects of the McChrystal situation needs to be a truly searching reexamination of the military academies. I contend they should be abolished, but I doubt that my views will get any attention. Short of that, at minimum the academies (and, for that matter, the professional military education schools — "officer grad school") need both personnel and curricular housecleaning. I'd start by eliminating the unjust veneration of MacArthur at West Point (Korea wasn't the first, or even most-disturbing, indication that he was unfit for high command) and proceed from there.

  • The Supreme Court was very busy this morning... but still no Bilski! Today's highlights (there were a couple of other opinions, but they're really not of that much interest to me on first, hasty reading):

    • In Morrison v. National Australia Bank Ltd., No. 08–1191, a decision that will probably get less attention than it deserves, the Court continued a promising trend in civil procedure jurisprudence: Rolling back the mistreatment of subject-matter jurisdiction. In the end, it didn't help the plaintiffs get a better result, because the same arguments that were (mis)treated as jurisdictional by the Second Circuit (slip op. at 4–5) sufficed to demonstrate that on the merits the plaintiffs could not prevail... but that's not at all the same thing as getting barred from the courthouse in the first place, as we saw in Muchnick earlier this term (which — not coincidentally — was another Second Circuit case).
    • In the largely-coordinate cases of Black v. US, No. 08–876, and Skilling v. US, No. 08–1394, the Court somewhat narrowed the "honest services" component of mail and wire fraud (18 U.S.C. § 1346) to require a bribery or kickback mechanism, or other direct financial gain. Much as I'd like to go after corporate-officer sleazebags, I have to reluctantly conclude that the Court got it just about right... on the wording of the statute. As the Court points out in its extensive discussion in the Skilling matter, the entire area of law rather misdeveloped over time without much internal or external consistency (Skilling, slip op. at 38–51). The entire structure of mail and wire fraud, and what constitutes a constitutionally consistent offense under those theories, seems to require a zero-based rethinking — not for the underlying conduct's propriety, but for when economic misconduct crosses the line into criminal offense.

      The Skilling matter also involved questions about fair jury selection, while the Black matter also involved questions about the form of jury verdicts. These are highly technical and fact-specific issues that seem to me less meaningful than the core question of whether the crime(s) with which they were charged passed constitutional muster... and they were resolved against the respective corporate-officer sleazebags in any event. Being a corporate-officer sleazebag, though, is not a criminal offense; the problem here is that the civil side has been so procedurally eviscerated over the last thirty years that criminal charges are often actually easier to prove, which just reinforces my belief that this area needs zero-based rethinking.

    • Finally, today's real biggie: the petition signers. In Doe v. Reed, No. 09–559, the Court held that people who signed a petition presented to the government seeking to overturn a state gay-marriage law do not have a broad, inherent, continuing privacy right in the factual material they put on the petition, like their names and addresses. This essentially 8–1 decision (only Thomas dissented; there were a couple of concurrences, including a couple that were labelled "concurring in the judgment" but presenting their own reasoning, and six Justices signed on to the main opinion) drew a sensible line between two major rights issues: The right to free and fair elections and the right to participate in the political process without fear of reprisal. The key point as to the latter, though, is this: Any "reprisal" that petition-signers might have faced would have been private reprisal, not a government act. And, as despicable as private reprisal can be, there was nothing in the record that legitimately made potential reprisals against petition-signers parallel to what civil-rights advocates faced in the 1940s, 1950s, and 1960s. Put another way, the advocates of "privacy" in this context did not demonstrate the kind of overlap between state and private action that was prevalent in pre-Voting-Rights-Act America.

      The key distinction here is that this was a petition process, requiring actual identification of petitioners as registered voters. It was not an attempt to invade the ballot box and the secret ballot. The "privacy advocates" tried desperately to imply that the two are inherently linked; the Court held otherwise (slip op. at 10–13) at this stage of the litigation. As Chief Justice Roberts notes near the end:

      The problem for plaintiffs is that their argument rests almost entirely on the specific harm they say would attend disclosure of the information on the R–71 petition, or on similarly controversial ones. But typical referendum petitions “concern tax policy, revenue, budget, or other state law issues.” Voters care about such issues, some quite deeply — but there is no reason to assume that any burdens imposed by disclosure of typical referendum petitions would be remotely like the burdens plaintiffs fear in this case.

      Plaintiffs have offered little in response. They have provided us scant evidence or argument beyond the burdens they assert disclosure would impose on R–71 petition signers or the signers of other similarly controversial petitions. Indeed, what little plaintiffs do offer with respect to typical petitions in Washington hurts, not helps: Several other petitions in the State “have been subject to release in recent years,” plaintiffs tell us, but apparently that release has come without incident.

      Slip op. at 11–12 (citations omitted). What is important in Doe is that the case is not over; it is being returned to the District Court to allow the plaintiffs to develop a record that would meet Justice Roberts' objections. This is the distinction between a "facial challenge" (that a given statute/regulation/whatever always violates the constitution) and an "as-applied challenge" (that, in the specific context of the specific case, the given statute/regulation/whatever violates those plaintiffs' constitutional rights, but not necessarily the rights of anyone else or plaintiffs in different contexts). It also points out the subtle distinctions among standards of review... but there's no way that I can possibly condense a fundamental meme that it takes about a year and a half of law school to beat into the heads of even the brightest students for this blawg, so I won't screw it up by trying. See slip op. at 10 n.2.