[Guest post by DRJ]

The Instapundit links a Time Magazine Swampland blog entry by Joe Klein entitled “Are We Winning in Iraq?” Klein’s bottom line is that Democrats should not become too invested in symbolism like cutting off troop funding because things are improving in Iraq. (Subtext: The US might just win this war.)

Along the way, Klein deplores right-wing triumphalism and mollifies anti-war Democrats with this passage acknowledging modern leftist truths:

“Let me reassert the obvious here: The war in Iraq has been a disaster, the stupidest foreign policy decision ever made by an American President. It has weakened America’s moral, military and diplomatic status globally. It can not be “won” militarily. The best case scenario is a testy stability, most likely under a Shi’ite strongman, who will be (relatively) independent of Iran and (relatively) independent of us.”

There’s nothing I can add that hasn’t been said a thousand times. So here’s my prediction: If we (and the Iraqi people) win the Iraq war, the next Democratic talking point will be that we didn’t win the war the right way.

That means we should prepare ourselves for renewed complaints about illegal domestic surveillance, allegations of torture by the CIA, military, etc., and condemnation of government action that endangered civil liberties and Constitutional rights.

In other words, the left will continue to litigate the war.

— DRJ

L.A. Observed reports that Tim Rutten is moving to the op-ed pages. An internal memo from Jim Newton states in part:

We are delighted to announce that Tim Rutten, a veteran of The Times and one of its most distinguished and intelligent writers, will bring his talents to the Op-Ed page beginning Jan. 1, 2008. He will write two columns a week, one on local politics and the other on intellectual life and culture. Tim’s move will bring his already-signature work on culture and politics to our Op-Ed page while also allowing him the opportunity to write about topics closer to home.

Tim is well known to all serious readers of The Times and no stranger to this department. A native Southern Californian, he joined The Times in 1972 and, since then, has served variously as assistant Op-Ed editor, Opinion Editor, assistant National editor, editorial writer, columnist, local news analyst, City/County Bureau chief, cultural correspondent and associate features editor. For the past four years, he has written Calendar’s Regarding Media column and, for the past two, has served as the paper’s principle book critic — a role in which he will continue even as he takes up duties as an Op-Ed columnist.

Rutten is also someone who recently made numerous errors in a column about the Scott Beauchamp affair, and then hid behind the sophistry of the “Readers’ Representative” — much of said sophistry no doubt originating with Rutten himself.

Another reason to avoid the Los Angeles Times.

P.S. What’s a “principle book critic”? Someone who criticizes books about principles?

[Guest post by DRJ]

Have you ever gone to vote and had one race where you don’t like the candidates or know nothing about them so you write in a vote for a celebrity?

“His recent presidential bid may have hit the skids, but Stephen Colbert’s political career looked like it might not be dead yet.

In a development that seemed sure to boost the comedian’s résumé — or at least his jokes — an election official in Williamsburg said this morning that Colbert was in a three-way tie for a seat on the Colonial Soil and Water Conservation District Board. His base of support in the historic cradle of democracy? Three voters.

Win Sowder, the voter registrar in Williamsburg, confirmed the three-way tie this morning. However, Chris Faia, secretary of the Williamsburg Electoral Board, said later in the day that it had been a misunderstanding and that Colbert had received one less write-in vote than the other two men, meaning he was not in the running for the position.”

The Colonial Soil and Water Conservation District is an unpaid, elected position that oversees government-subsidized aid to drought-plagued and other ailing farmers. Up until now, it wasn’t a well-known entity.

Two William and Mary students tied for second place with 3 write-in votes each while Colbert had 2 write-in votes. Had Colbert made the runoff, earlier reports indicated the position would have been decided (if I recall correctly) by drawing a name from a hat.

It looks like Colbert missed the runoff by *that* much, proving once again that every vote counts.

— DRJ

[Guest post by DRJ]

Christopher Antcliff, who I believe was one of the attorneys representing convicted Border Patrol agent Jose Compean, has been appointed a District Court Judge for El Paso County by Texas Governor Rick Perry. I’m sure his appointment has nothing to do with the Ramos-Compean trial but if it did, it was only because Antcliff did an excellent job in that case. In fact, of all the attorneys, I thought he did the best job examining witnesses.

In addition, oral argument in the Ramos-Compean appeal has been set for Monday, December 3, 2007, at 9:00 A.M., before the Fifth Circuit Court of Appeals in New Orleans. The panel of judges hearing the case will be available the week prior to oral argument.

Update 11/15/2007: Osvaldo Aldrete-Davila was arrested today on 2005 drug charges. More on that here.

— DRJ

Over the weekend, I asked a question about the morality of waterboarding. It was directed primarily at the self-righteous chest-pounders who like to pretend that the moral issues are easy and obvious — that of course we should never consider waterboarding under any circumstances, no matter how dire. The question was:

Let’s assume the following hypothetical facts are true. U.S. officials have KSM in custody. They know he planned 9/11 and therefore have a solid basis to believe he has other deadly plots in the works. They try various noncoercive techniques to learn the details of those plots. Nothing works.

They then waterboard him for two and one half minutes.

During this session KSM feels panicky and unable to breathe. Even though he can breathe, he has the sensation that he is drowning. So he gives up information — reliable information — that stops a plot involving people flying planes into buildings.

My simple question is this: based on these hypothetical facts, was the waterboarding session worth it?

Further assume that no less coercive tactic would reveal the information.

I am driving at a moral question here. What I really want to know is: do you consider the waterboarding session to have been the most moral choice under the circumstances?

Self-righteous chest-pounders like nosh, Oregonian, and Semanticleo all checked in at this blog since I put up the post. But none of them answered the question.

It wasn’t easy to get people to answer the question. The thread is over 470 comments, and it consists mostly of obfuscation and evasions. But I have gotten answers from many commenters.

I have follow-up questions for the people who answered the question. But before I get too far into the follow-ups, I want to make sure I have all the liberals here on record answering the question. Especially the self-righteous ones like those named above.

To answer the question or leave a comment, go here.

Remember the Higazy case, in which the Second Circuit tried to withdraw an opinion that mistakenly revealed material filed under seal — material embarrassing to the government, because it revealed that an FBI agent had threatened an innocent man’s family in Egypt?

Via cbolt in comments at Volokh comes evidence that the sealed material in the Higazy case was sealed at the request of the government, and not Higazy. It turns out Higazy’s lawyer wrote Judge Rakoff in 2002 and said:

Dear Judge Rakoff.

I write to inform the Court of my view on the question of unsealing of the material relating to the above referenced matter. It is both my and Mr. Higazy’s position, that the entire matter should be unsealed. Transparency of the judicial process should be the order of the day.

This is a well established principle of our body politic and system of jurisprudence. It is only in exceptional instances which have been clearly identified and firnily rooted in our system of justice, that this rule does not apply. The government has failed to provide any authority to support continuing the shroud of secrecy currently blanketing the matter.

. . . .

[T]he events which have unfolded . . . are of great importance to the American public, as it concerns how our government has gone about its business investigating this case. I truly believe that there are valuable lessons to b[e] learned from an examination of the investigation herein and public discourse thereof.

Clearly, none of this can occur in a vacuum, therefore, it is imperative that the facts of this come to light. I trust this Court will do what is just and proper, and unseal the subject material herein.

Sincerely yours,

[Signature]

Robert S. Dunn

So, although the Second Circuit may have acted on its own in trying to withdraw the opinion that revealed the sealed material, it was obviously sealed to begin with at the request of the government.

Color me entirely unsurprised.

I agree with Jonathan Adler:

I agree that there are [often] legitimate reasons for the government to file information under seal, and there are even legitimate reasons for the government to keep its interrogation protocols under wraps. In this case, however, what is at issue is not the government’s standard interrogation methods or guidelines, but specific allegations of government misconduct in a specific interrogation. Such allegations, and the public’s interest in allegations of government malfeasance, would seem to outweigh the government’s interest in keeping its interrogation methods secret, particularly since such secrecy could be a means of preventing the disclosure of government malfeasance.

Yup.

Dahlia Lithwick has a jurisprudence essay about the death penalty that cites Neutral Expert™ Deborah Denno:

Deborah Denno, a Fordham University law professor and expert on lethal injection, highlights this same political inertia in a recent article in the Fordham Law Review (PDF). State death-penalty procedures are screwed up because while courts and lawmakers want to be tough on the death penalty, they don’t want to dirty their hands with execution. Denno writes that “the entities most responsible for implementing the state’s death sentence never want to be associated with the details of it—not the legislatures, not the courts, and until September 27, 2007, not the Supreme Court.”

Well. Denno is a little more than a “law professor and expert on lethal injection.” She is a partisan opponent of the death penalty. I explained here, in a post that whacked L.A. Times partisan Henry Weinstein for citing Denno as a neutral expert.

Of course, nobody thinks Dahlia Lithwick is neutral — so I guess we should expect her seemingly neutral experts to be partisans. Right?

[Guest post by DRJ]

Judge Samuel Kent of Galveston, Texas, has served as a federal district court judge for 17 years. In May, an employee of the clerk’s office filed a sexual harassment complaint against Kent and as a result Kent was removed from the bench for 4 months. Following a confidential judicial investigation, the Fifth Circuit Court of Appeals subsequently reprimanded and suspended Kent.

The Galveston Daily News has published several articles on Judge Kent here and Volokh has discussed it here and here.

Now more details of the allegations against Judge Kent have been made public:

“In March, U.S. District Judge Samuel Kent didn’t just sexually harass Cathy McBroom — he physically assaulted her, her attorney and her mother said.
***
McBroom’s mother, Mary Ann Schopp of Seabrook, and McBroom’s attorney, Rusty Hardin, confirmed a report by the Houston Chronicle that McBroom had accused Kent of something far more serious than harassment.

McBroom’s contention is that, on a Friday afternoon in March, Kent called her, a married mother of three, into his chambers. McBroom complained that the judge grabbed her, pulled up her shirt and bra and put his mouth on her breast, and then he shoved her head toward his crotch, Schopp and Hardin confirmed.

Kent and his attorney, Maria Boyce, have ignored repeated requests for comment.

The incident came after years of other incidents in which Kent verbally and physically harassed McBroom, her mother said. McBroom in 2003 complained to her boss in the federal clerk’s office in Galveston that Kent had groped her, but her boss told her she could lose her job if she filed a complaint, Schopp and Hardin confirmed.

Other women also have accused Kent of unwanted touching. Others have accused him of appearing in court after drinking. In addition, he has been accused of playing favorites among the lawyers that appeared in his court.”

Both Republican and Democratic members of the House Judiciary Committee have called for an investigation into whether Kent should be impeached.

— DRJ