And The Award Goes To....

Rush Limbaugh, to my knowledge, is the first conservative to rise to the defense of the LRA on the grounds that they're "Christian". Hey, if you guys want to claim them -- more's the worse for you. But if I were Christian, I'd be extra motivated to ensure Joseph Kony either spends the rest of his life in prison or takes two to the head. Just sayin'.

Peretz Parody Alert

Marty Peretz lobs up a basically unsubstantiated hit piece on Elizabeth Warren, which argues ... well, it's difficult to figure out what it's arguing. It claims she made a mistake in bringing up Scott Brown's nude photoshoot, to which I say, yeah, probably. Then it kind of idly muses about whether Elizabeth Warren is or isn't attractive, and whether men do or don't like her. Buried three paragraphs from the end is the claim that Warren "say[s] obvious things" (such as? Alas, we have a whole political party predicated on the notion that asking a factory owner to contribute his fair share is Bolshevik, so I have no idea what is and isn't "obvious" to this polity).

And then finally, two paragraphs from the end, we are asked to wonder whether Warren knows anything about foreign policy. "Ask her about the Arab Spring, Israel, and the peace process, human rights and Africa, the American relationship with Venezuela." Hey, here's an idea Marty: Ask her about China! That will turn out well for you.

Now, I have to say, so far this is a pretty standard entry in the genre of intellectually vapid beltway punditry -- a mix of story-of-the-day (the Brown/Warren barbs over the nude shoot), smart-women-make-the-boys-cry (Hillary Clinton! Nancy Pelosi!), and unsupported babbling about whether Harvard Law Professors are really "qualified" to serve alongside the likes of Jeff Sessions in the US Senate.

But what puts it over the top is the final paragraph. Remember, this elephant of a non-sequitur comes right after Peretz complains about Warren's alleged lack of foreign policy chops:

And then there’s one of the Republican candidates for president, Herman Cain. “When the moon hits your eye … Like a big pizza pie. That’s amore.” He’s running second among all the professional politicians in the Republican race for president. Oh, yes, and he’s a black man. It can’t be. Republicans favoring a … a … a black man? Wow. There’s been very little about this phenomenon in the press. I’ve found no pretense in the man. He’s got common sense. He tells it like it is. Will someone write something serious about him?

Herman Cain. You just finished talking about the need to have thunk deep thoughts about foreign policy, and now you're waxing lyrical about Herman "Palestinian right of return" Cain? A guy who openly brags about his lack of knowledge on foreign affairs? Color me crazy, but I think there's a tension here.

Oh but yes, Cain "tells it like it is". He's bold enough to bravely tell largely White audiences that most Blacks are idiots who can't think for themselves. Surely, it is a minor miracle that the Republican Party finds that sort of Black man appealing (unless he displays the slightest bit of discomfort with the word "niggerhead". Then he's a race-baiter like all the rest).

Elected Officials FTW

The proposed "eviction" of Occupy Wall Street from Zuccotti Park (which -- and I didn't know this -- is apparently privately owned by a company called Brookfield Office Properties) is off after a change of heart from the company. And what caused this change of heart? Pressure from elected officials:

New York Mayor Michael Bloomberg said earlier Friday morning that Brookfield Office Properties -- the real-estate firm that owns Zuccotti Park, considered a home-base for protesters -- made the decision not to clear them out after the company was "inundated" with threatening calls from elected city officials.

The mayor said during his weekly commentary on New York's WOR Radio that he didn't know which officials allegedly made the threats, but that the company decided to work out some form of a negotiated settlement with protesters in the coming days.

Bloomberg added that while he lacked first-hand knowledge of the conversations, he was told the officials generally threatened to "make life more difficult" for the real-estate company.

"Threatening" seems a bit hyperbolic -- when I think "threatening phone calls", I think bomb threats -- but the point is that elected officials stepped up to exercise leverage over a corporate actor on behalf of OWS. Which is a signal that OWS is recognized as an at least potentially powerful voting bloc, of the sort elected officials have to pay attention to. And thus OWS gets a victory.

This, ladies and gentlemen, is how the game is played. It's Stokely Carmichael and Charles Hamilton's basic story about how to move from the margins to the mainstream of political society. Show you've got some muscle behind you, and the politicos will listen. OWS is starting to show that and, lo and behold, folks are listening.

A Spoonful of Sugar

Seriously, what is wrong with these people?

Aside from debating whether or not to vote for a prisoner exchange deal that would set Gilad Shalit free, several members of Prime Minister Benjamin Netanyahu's cabinet offered several lines of action Israel could take following the deal's execution.

Standing head and shoulders above most were Interior Minister Eli Yishai of Shas and his party member Meshulam Nahari, who said Israel should consider releasing Jewish terrorists who carried out attacks against Palestinians.

"It's the right thing to do as part of the balances in Israel's society," Yishai said, adding that such a move would not "undo the releasing of hundreds of [Palestinian] prisoners, but it may sweeten the bitter pill."

Jewish terrorists pose a threat to Israeli security as much as they do to Palestine's. It's cutting off your nose to spite someone else's face. And the idea that releasing terrorists makes the pill "sweeter" -- ugh. It's pathological. Jewish Hamasniks.

Thankfully, the proposal appeared to get no traction, because even amongst the Keystone Kops that comprise the current Israeli government, there are indeed depths of idiocy they won't sink to. Still, Shas, what do we do with you?

Meanwhile, FM Avigdor Lieberman did something useful at the meeting -- he walked out (after voting no). I highly approve of this act, and hope he continues to absent himself from cabinet deliberations.

Of Restrictions Actual and Desired

Clark Neily of the Institute for Justice is guest-blogging at the VC on the subject of "judicial engagement", which is one of those words conservatives use when they want to strike down disagreeable legislation while still keeping the term "activist" in their back pocket. Anyway, Neily's argument is that the court should as aggressively scrutinize whether a congressional act is sanctioned under a constitutional grant of power as they do when an act is said to violate a constitutional restriction on it.

For example, "[i]n cases involving favored constitutional values like free speech and avoiding suspect classifications, judges determine the government’s actual objectives and then evaluate the “fit” between those objectives and the means chosen to advance them." By contrast, Neily complains, in cases involving more general police power claims (interestingly, Neily does not appear to limit his case to federal enactments), courts are far more deferential, engaging only in a bare-bones "rational basis review". "Judicial engagement simply proposes that there should not be a category of cases in which courts totally abandon those inquiries — and the underlying jurisprudential convictions they reflect — as they often do." "[B]asic ... analytical consistency" demands it.

This is impressively atextual. "Free speech" is not just a "favored constitutional value". It is a constitutional restriction -- a thou shalt not right in the text. When courts apply strict standards of review to laws which seem to impinge on it, what they are in effect saying is that "this law appears to breach a constitutional proscription. So if it's going to fly in spite of that restriction, you better have a damn good reason for it." In effect, it is asking when we'll allow overriding social need to trump textual bars.

By contrast, constitutional clauses like the Commerce Clause are grant of power. It makes no sense to apply the same level of scrutiny to laws which facially violate the constitution to those that don't (of course, if the Court doesn't think a law impinges on free speech norms, we never get to strict review in the first place. The finding of a constitutional tension is a prerequisite to heightened judicial scrutiny). Neily is essentially importing in the key facet of the First and Fourteenth Amendments (their status as legal restrictions on governmental authority) into every constitutional clause by abstracting away from the text and calling everything a constitutional "value". While Neily might wish that constitutional grants of power were circumscribed more sharply than they are, the fact is that (particularly with respect to state governments) there is a presumed residual authority to act unless a law violates a particular block on power.

Exodus Origins: The Making and Unmaking of a Myth

There is a Jewish proverb about a man who had been spreading malicious lies about one of his neighbors. Feeling guilty about it, he went to his Rabbi and asked what he could do for penance. The Rabbi told him:

"Take three pillows outside, and tear them open so the feathers are cast to the wind."

The man did so, and returned to the Rabbi. The Rabbi then instructed him to go out and collect all the feathers.

"But that's impossible! The feathers have been scattered; it would be impossible to track them all down."

The Rabbi nodded sadly, and remarked that this is the danger of telling lies -- even if one feels genuinely guilty and wishes to recant, it is unlikely that they every can be truly returned to their box.

Columbia Professor Rashid Khalidi has taken to delivering a speech where he purports to tell the true story behind Leon Uris' famous novel Exodus. Khalidi claims that the novel was "commissioned" by "Edward Gottleib ... one of the founders of the modern public relations industry" and "father of the American iteration of Zionism." Gottlieb hired Uris to write the book and sent him off to Israel to do so.

By all appearances, Khalidi's claim is a complete fabrication. Martin Kramer thoroughly breaks it down -- indeed, I have to say I've rarely read a more systematic rib-cracking than the one Kramer delivers to Khalidi on this point. The supposed connection between Gottlieb (who was, at most, a middling figure in the public relations industry and had little to do with the broader American Zionist movement) and Uris can now be found in several books, including one published by the University of California Press. My guess is that Khalidi was relying on these sources when making his claim. But all the claims trace back to a 1985 (several decades after Exodus was published) PR advice book which recounts the story in similar terms, as an anecdote to aspiring young PR professionals.

In terms of historical evidence, this is a very thin reed. And it stands alone: Gottlieb's name does not show up in Uris' papers, he is unknown to either of Uris' biographers, there is no contemporaneous evidence or documentation relating any connection between Gottlieb and Uris whatsoever. The author of the 1985 anecdote says that it was recounted to him by Gottlieb himself, but -- given the time lag, lack of corroboration, and the tendency for PR professionals to perhaps slightly exaggerate while self-promoting -- he admits that he cannot vouch for its accuracy. In fact, Gottlieb's chief assistant on matters related to Israel claims to have no knowledge of such a link between her boss and Uris, and firmly concludes that none exists. The odds that this story is true, in sum, is almost infinitesimally small.

So Khalidi is engaging in abysmal history to weave a typical narrative of Zionist perfidy and malignancy, and now it has been debunked. Which is good. And Khalidi is a trained historian, so that makes his terrible methodology all the more scandalous. But unfortunately, the genie probably still won't be returned to the bottle.

True historical research -- digging up primary source documents and interviewing surviving subjects -- is hard work, and work I personally find breathtakingly boring. It's one reason why going into the field of History never interested me. I know what good historical methodology is, but I don't practice it -- I'm reliant on actual historians to do their job right the first time. I assume that when someone like Khalidi tells a tale like this, that he got his information via true historical exploration (or at least relies on others who did) -- not simply taking a trade paperback at face value. The problem, though, is that every time such a story -- even if false -- is recounted by people with impressive-sounding Columbia University titles or prestigious university presses -- it provides another secondary source which the average person (myself included) generally relies upon in order to understand history.

The New Peasant Class

One of the major questions that has floated around the "Occupy Wall Street" movement is the simple "what do they want?" Obviously, we can answer this in abstract terms: economic justice, easing of burdens on the lower and working classes, and (slightly more concretely) accountability for the people who got us into this mess in the first place (namely, Wall Street). But there has been very little in the way of specific policy proposals. Indeed, even the overall ideology is fuzzy -- supporters range from Ron Paulites (they are everywhere, aren't they) to socialists and communists, to mainstream unions, to some Democratic politicians, to relatively apolitical Americans who are simply overcome with frustration. My friend Matt Cole makes a decent defense of this mode of operation -- not making "demands" of the system but rather expressing itself in a more "aesthetic" or expressivist sense.

But Rorty Bomb has done some interesting work parsing the "We are the 99%" tumblr to try and figure out what the movement wants. And the results are sobering. OWS is not about mid-twentieth century liberalism -- increasing unionization leading to the suburban house and the two-car garage. Nor is it about socialist revolution -- smashing the capitalist state and redistributing power and dignity to the workers. What the 99% want, RB argues, is decidedly pre-modern -- bearing most in common with historical peasant revolts. They want to be free from the burden of crushing debt, have access to enough resources so they're not consistently living hand-to-mouth. That's it.

To people who think OWS is the first step to the opening a new horizon, this is profoundly demoralizing. There is nothing bold about these desires. They are ancient and basic; if anything, they are the result of people too downtrodden to dream of anything more.

But at the same time, the very simplicity of what is being asked for here also gives it greater moral punch. Surely, in a country as rich as ours, with the bounty we possess, we can give them this much.

It's Judeo-Christian!

For my own health, I try to avoid paying attention to the Christian Right. This means that I didn't notice they had their big "value voters" summit this week, which in turn means I didn't notice it overlapped with Yom Kippur.

And Back Atcha!

The Chinese Restaurant Association sends thanks to the Jewish people for our Christmas-day patronage. We, in turn, thank the Chinese Restaurant community for being open that day and welcoming us with open arms.

Project Runway PSA

If you're a Project Runway fan, I assume you've already discovered this, but in case you're like me and are late to the party ....

Laura Bennett has a Project Runway blog. It is incredible.

That is all.

Children of the Corn

Everybody around here is sniffly and stuffy -- myself included. Apparently, it's not a virus. Rather, it's the ongoing corn harvest, which supposedly sets off allergies left and right. Including, it seems mine -- worse even than I had in Minnesota (where I believe my New Student Week group was worried I would actually keel over and die while working in St. Paul).

Now, I'm allergic to many things. Some of them (grass, cats) I've even managed to nail down. Mostly, it's a mystery when my eyes suddenly start running water or my skin breaks out in hives. But I'm pretty sure I'm not allergic to corn. I mean, I eat corn all the time. Corn syrup is in literally 85% of the food I eat. How could a corn harvest set off an allergic reaction.

Oh whatever. At least it will be over in ... a month? It takes a month to harvest all the corn.

God damnit. I miss Chicago.

RIP Derrick Bell

Derrick Bell -- civil rights warrior, pathbreaking law professor, founder of critical race theory, and tireless advocate for justice, has passed away at age 80.

I never met Derrick Bell. I had the opportunity once when he came to speak at Carleton, but I was going out of town. I remember pulling aside my roommate -- a Math major with zero interest in politics, law, race, or anything primarily expressed via words -- handing him my copy of And We Are Not Saved, and informing him that he was going to Professor Bell's talk and he was getting my book autographed. Which my (quite saintly) roommate proceeded to do, and I still have that book on my desk to this day.

Bell was a model to generations of students. He accomplished more in one lifetime than the average person could hope to do in three. I was introduced to him as an academic writer -- progenitor of "interest-convergence theory" and CRT founder -- but it is worth remembering that academia was really Bell's second career. He started off as an in-the-trenches warrior in the fight for civil rights, leading the NAACP in dozens of successful anti-segregation suits in the Jim Crow south. After a brief stint at the University of Southern California, Bell became the first tenured Black professor at Harvard. He eventually left Harvard in protest of their failure to hire a Black woman. The claim, as always, was that they couldn't find a "qualified" one. How they said that with a straight face to Bell -- who graduated from the decidedly non-elite University of Pittsburgh law school and proceeded to become one of the most influential scholars of the last quarter century -- is beyond me.

Rest in peace, professor. Be assured that your legacy lives on.

Who Gave Steve King a Magic Lamp?

Ah, Steve King. The Republican from Iowa has graced the pages of my blog at several points as among the dumbest members of Congress -- defending the "mendacity" of Republican leaders, worrying that women will never have babies if we allow them access to birth control, and referring to America as a nation of slackers. And today, we get a new entry: pining for a return to 19th century voting rules, where only propertied (White) men could vote. You think I'm exaggerating:

“[T]here was a time in American history when you had to be a male property owner in order to vote. The reason for that was, because they wanted the people who voted — that set the public policy, that decided on the taxes and the spending — to have some skin in the game."

King was making a "skin in the game" argument, and we'll put aside my general objections to that argument. I'm not 100% convinced that the only reason voting was restricted to white male property owners was that they, unlike the rest of the population, had "skin in the game". Call me a skeptic if you like.

But if the goal is to see America return to pre-Voting Rights Act electoral rules, King may be getting his wish. Check out this story from Tennessee, where a 96-year old Black woman who was able to vote during Jim Crow is facing disenfranchisement due to the state's draconian new voter ID requirement. The woman actually has a photo ID, just not one that counts under the law. So she went to get one that would qualify, but showing the clerk her (a) rent receipt, (b) lease copy, (c) voter registration card and (d) birth certificate wasn't enough to satisfy the clerk and get the card.

Rape and the Man on the Street

You know, I like the Harry's Place blog, but for whatever reason they are consistently terrible on the topic of rape. Today, HP co-blogger Libby T calls out as "hate speech" the following passage from Cath Elliot:

[R]apists don’t rape because they’re somehow evil or perverted or in any way particularly different from than the average man in the street: rapists rape because they can. Rapists rape because they know the odds are stacked in their favour, because they know the chances are they’ll get away with it. (Emphasis added by Libby)

Libby claims that Elliot is saying that all men are rapists-in-the-closet -- awaiting only the right opportunity. This, to me, is a misreading so egregious one wonders if it is willful.

The italicized portion of Elliot's quote references the empirically true claim that rapists are not demographically different from the population at large. In our heads, we have a vision of the rapist as this sort of sociopathic, damaged person with wild eyes and unkempt hair. But that isn't the case. The fact is there is little distinguishing him from the average person on the street (other than, of course, that he's a rapist). This is the case with most other "moral monsters" -- the banality of evil, so to speak. This doesn't mean that most men secretly harbor a desire to rape. What it does mean is that those men who do rape do so not because they scarred, diseased, or otherwise marked off from the general population in any noticeable way. The explanation for their conduct has to come from elsewhere.

This leads to Elliot's bigger point. The advantage of reframing the image of the rapist into one of this deviant soul is that it absolves the community of any responsibility for creating what is sometimes called by feminists "rape culture". Instead, under this view, rapists rape because they are pure evildoers so committed to malice that they will overcome society's strongest taboos and proscriptions to satisfy their depravity.

What Elliot is arguing, though, is that many rapists lack the sense that they are doing anything wrong in the first place. They think that the dominant sexual ethos of our society in fact sanctions their behavior (compare my post on Jewish extremist violence from earlier today) -- and this belief, of course, runs stronger when we remember that most rapes are not of the archetypical "stranger in a dark alley" variety. Armed with a belief that "no means yes" or pushing away is just playing "hard to get", they think that they are engaging in normal, uncontroversial social action. They might recognize the existence of some technical or formal bar against rape, but probably don't conceive of themselves as violating it. And in terms of social stigma, they are quite confident that nobody will stand in their way. They see themselves, at worst, as ordinary men in extraordinary situations (if they even see themselves as wrongdoers at all).

None of this implies most men think this way. That isn't the problem. The problem is that the minority of men who do think this way are not being informed that their behavior is intolerable. Rather, the message (e.g., from the rape jokes that are Elliot's target) is that they're a hilarious, endearing embodiment of mainstream masculinity.

"We Call Them Terrorists", Part II

A "price tag" attack by suspected Jewish extremists on an Israeli mosque has drawn condemnation from across the Israeli political spectrum. As well it should -- it is a despicable act that is an insult to Judaism as much as it is vicious to Muslims.

But the fact remains, the attack happened. And it is not a one-off: the "price tag" campaign is just that -- a campaign, promoted by extremist Jews who have decided "there are no innocents" and view the entire Muslim world as their targets. Jewish Hamasniks, in other words. And, like Hamas, they view themselves as authentic representatives of the faith and of their people. So the question is how to disabuse them of that notion.

A few years back, I wrote in defense of hate crimes laws that the perpetrators of anti-gay violence are morally indistinguishable from terrorists. Both are attacking not just to harm the particular victim, but also to send a message of hate to the group the victims are a part of (Jews, Muslims, Americans, or what have you). And part of the reason we have anti-terrorism laws is our recognition that this motivation is particularly malign and dangerous, and needs to be countered in the most forceful way possible.

In that post, I also talked about another reason why hate crimes laws are important: preventing the perpetrators from believing, even post-incarceration, that they were really speaking for the silent anti-gay majority. I drew the analogy to lynch cases, where, even if the perpetrators were prosecuted (and that was rare enough),

nothing was done to breakdown the notion that the motivation, too, was immoral. In such a context, it is so important to be very explicit in sending the opposing message. The South needed to be told--in the clearest possible way--that not only was murder wrong, but that the entire desire to force Black Americans into submission was reprehensible and rejected by the broader community.

Crafting special legislation for that problem (the ban on lynching that failed so many times in Congress) was such a signal.

So returning to Israel. It is clear that the extremists who enact "price tag" policies are willing to go to jail. That, indeed, is something they're proud of -- something they say with strength. But what if, instead of just calling them criminals (which they are), Israeli political leaders also called them terrorists?

It's a perfectly apt descriptor: surely, if a Palestinian set fire to a Jewish synagogue with the stated desire for vengeance against Israel's Palestine policy, nobody would hesitate to append the label. But in Israel, "terrorist" has a particular moral weight -- it represents the crystalline distillation of the threats and perils Israel and Israelis face on a daily basis. It is the emblem of all it means to be "against Israel". One can go to jail and still be a civil disobedient, boldly defending the silent Israeli majority via one's courageous acts of arson. It is difficult to maintain that sense of communal backing when the community has given you the label terrorist.

UPDATE: I see the "terror" label has in fact started to come out amongst Israeli institutions: the Shin Bet referred to it as "Jewish terror", and Sephardic Chief Rabbi Shlomo Amar also called the attack an act of "terrorism".

Herman Cain and the Legacy of Booker T. Washington

Ta-Nehisi Coates has a characteristically excellent post on Herman Cain and ill-conceived comparisons to Booker T. Washington. The claim is that Washington, unlike more "protest" modeled Black leaders, emphasized a program of self-uplift which is absent amongst dependency-minded Black leaders today. That's descriptively so wrong on every level as to be insulting, but Coates also observes that Washington's defining characteristic was that he was a leader in the Black community. "He built a black institution, that educated black people, and took his message to black audience. In short, Washington was a legitimate organic black conservative, rooted in the black community, propelled forth by his relationship to that community."

Cain, on the other hand, targets his message not to Blacks but to White populists largely hostile to Blacks. Coates thus draws a different analogy, to one William Hannibal Thomas, who once wrote the following:

The negro not only lacks a fair degree of intuitive knowledge, but so dense is his understanding that he blindly follows weird fantasies and hideous phantoms. So great is his predilection in this direction, that he appears incapable of understanding the difference between evidence and assertion, proof and surmise. These facts warrant the conclusion that negro intelligence is both superficial and delusive, because, though such people excel in recollections of a concrete object, their retentive memories do not enable them to make any valuable deductions, either from the object itself, or from their familiar experience with it.

Thomas (who fought for the Union in the Civil War and was wounded in combat) had great appeal to White populists at the turn of the century, but his support within the Black community was virtually nil even as Washington was at his apex. The problem isn't that there is no Washingtonian tradition in the Black community (if anything, it is found more in quasi-nationalists like Rev. Jeremiah Wright). The problem is that Black people don't like to be lectured out by "leaders" whose only connection to the Black community writ large is to harangue them.

Boxing Roundup: 10/2/11

I didn't watch the cards from last night, so this only a recap of tonight's HBO action, plus two of the fights earlier today in Germany.

Yoan Pablo Hernandez (25-1, 13 KOs) TD6 Steve Cunningham (24-3, 12 KOs)

Poor Cunningham. He can't catch a break (even the AP article mislabels its photo -- Cunningham is landing the punch, not eating it). He's got the building blocks to be a star: he's charismatic, has a good back story, a cool nickname ("U.S.S." -- he's a Navy guy), has a physique like Conan the Barbarian, and tends to be in exciting fights despite not having the most pop on the block. But of course, he isn't a star, because he's a cruiserweight, and Americans don't care about cruiserweights. So he fights in Europe, where bad things happen.

And tonight, a bad thing happened against Hernandez. In the first round, Cunningham was dropped, hard. He barely made it to his feet before the count was up (in fact, Hernandez's corner protested the count was long), and was out of it even when he did rise. It could have been stopped there, but Micky Vann let it continue, and Cunningham escaped the round.

After that, though Cunningham steadied himself and took over the rest of the fight. However, there was a headbutt that opened up a gash high on Hernandez's forehead. It wasn't a bad cut -- while it was bloody, it wasn't in a particularly dangerous location and didn't seem to be affecting Hernandez's vision. But inexplicably, the fight was stopped after six. And that cut short Cunningham's rally, where he was starting from behind on the cards but picking up momentum. Even accounting for that, I had the fight 57-56 (four rounds to two) for Cunningham. 57-56 Hernandez also would have been acceptable. But 58-55? 59-54? Outrageous.

And let's return to the stoppage again. What was that about? Here's the ring doctor:

Ring doctor Walter Wagner said he recommended the fight be stopped.

"The cuts weren't dangerous but the blood could have run into the eyes and affected his vision. I think the head clashes that the referee felt were accidental weren't entirely accidental. You can have different opinions there. Hernandez was at a disadvantage from the cuts, so I gave the recommendation," Wagner said.

Umm...what? The cuts weren't dangerous. They could have run into the eyes (but apparently were not). Hernandez was "at a disadvantage" -- which is not the standard for stopping the fight. And it isn't the doctor's job to determine whether the clashes were "accidental" or not (I think the announcers had it right in saying it was "reckless"). This is just a textbook case of a doctor completely botching his role, and it turned what was shaping up to be a dramatic comeback into a controversial victory for the wrong fighter.

Grzegorz Proksa (26-0, 19 KOs) RTD3 Sebastian Sylvester (34-5-1, 16 KOs)

A star fades, a star is born. Sylvester, a long-time German veteran last seen losing his middleweight title to Daniel Geale, was now facing rising prospect Grzegorz Proksa. Proksa picked him a part until Sylvester quit on his stool (a mix of accumulated punishment and an actual, factual, serious cut).

Proksa definitely impressed tonight. He was cocky, particularly for an Eastern Europe fighter, boxing with his hands down and moving with a fluidity one does not associate with fighters from that region. A little Sergio Martinez-esque. But in any event, one can say Sylvester is past his prime, and maybe. But he was a titlist the fight before this, and this is still a definite feather in Proksa's hat. Count me as one who wants to see more.

Andy Lee (27-1, 19 KOs) UD10 Bryan Vera (19-6, 12 KOs)

A rematch of Lee's first professional loss, a slugfest which I recall watching as one of the great upsets of 2008. I did think, however, that the stoppage in the fight was premature. And the fact remains that Lee still had the tools to be a blue-chip prospect, while Vera is Vera -- a game but exceedingly limited brawler.

Tonight, Lee seemed more concerned with exorcising the demon than with dazzling the crowd, boxing his way to a wide decision. Anyone who fights with a modicum of skill -- and can avoid being muscled around -- can beat Vera, and Lee certainly meets both of those qualifications. He certainly looked better than he did in the first Vera fight, or even than he did against Craig McEwan (where he needed a come from behind knockout to win). But he didn't look great, and I'm still left wondering how high his ceiling is.

Sergio Martinez (48-2-2, 27 KOs) KO11 Darren Barker (23-1, 14 KOs)

Darren Barker got no respect entering this fight. Hell, even Michael Buffer mispronounced his name. But he certainly earned one by exceeding expectations, even though all that meant in this case was that he was soundly beaten instead of obliterated.

Though Martinez won by knockout and was in control, this was not his most scintillating performance (of course, it was the fight I elected to introduce my non-boxing fan dad to Martinez). He seemed a little tentative, and rather unwilling to lead. Martinez remains a natural counterpuncher, and Barker took away that part of his game by keeping a high guard and just walking in without throwing punches. Martinez didn't want to let go until Barker did, but Barker closed the gap enough where it largely neutralized Martinez's speed advantage. Unfortunately, Barker didn't throw many punches either, so Martinez's pot shots were winning the early rounds.

As the fight progressed, Barker began to open up more, and Martinez was happy to oblige. Still, little was landing flush and the fight looked headed to a decision. A combination in the 10th wobbled Barker, however, and Martinez kept up the pressure in the 11th. The final punch that ended the fight did not appear to connect flush -- grazing Barker's glove before landing behind the ear -- but it was an accumulation of punishment that saw Darren Barker go down and out for the count.

Martinez continues to be in a situation where there just aren't that many fights for him. Middleweight is a wasteland -- Andy Lee is a top 10 guy at this point, and Martinez would tear him apart. Junior middleweight isn't all that much better, though Cotto or Margarito lurk there, it's not clear Martinez brings enough coin to get them to the table. Larry Merchant asked about fighting Bernard Hopkins at 170 lbs, but Martinez (correctly) demurred, noting that weight was simply too high for him (he's comfortable at middleweight, but certainly not particularly big for the 160 lbs division). It's unfortunate, because he really does have star potential. He's just the wrong body size at the wrong time.

What's Scary and Not About Anwar Al-Awalki

Anwar Al-Awalki, an American citizen affiliated with al-Qaeda, has been killed in a drone strike. This has set off a torrential debate about the legality of such strikes.

What's odd is that there is something worrisome about Al-Awalki -- but not what's getting most of the attention. It's not that he's a citizen. It's not that he was killed. It's rather a deeper lacuna in the laws of warfare and how they work (and don't work) in international conflicts against an enemy like al-Qaeda.

Let's start at the beginning, though. The argument being put out by folks like Glenn Greenwald is that liberals who were deeply concerned about President Bush's detainment policies should be apoplectic now that Obama has killed a man. There's obviously something intuitively plausible about this (killing is more serious than even indefinite imprisonment), but as a matter of law I think it's rather obviously wrong. In an armed conflict, the right of a party to kill opposing combatants is not controversial (it is subject to many restrictions, but none relevant here); however, if the combatant is captured, a plethora of new legal obligations open up.

Take a very uncontroversial example: The United States and Germany are engaged in a conventional war. An American soldier sees a German soldier. He shoots and kills him. Obviously, there is no legal problem with that. That's just war. One doesn't need a warrant or a trial, or even give an opportunity to surrender. On the other hand, if the soldier is captured, then a great many legal protections open up. One cannot, for example, summarily execute the person whom 10 minutes ago one would have had every legal right to kill. In fact, if one wants to charge them with a crime or impose any sort of punitive sanctions (POW confinement is considered non-punitive and for that reason standards attached to it are relatively generous), one has to afford considerable procedural protections. This, of course, is reflective of the peculiar status of war: it's legally sanctioned killing of individuals who have probably not committed (much less been convicted of) a crime.

Notably, nothing in the above argument turns on whether the German soldier was an American citizen or not. And it's not clear why it should -- a citizen who is engaged in armed conflict for a foreign party should, in the midst of such hostilities, be treated as a member of that armed group. And that seems reflected in both the letter and structure of the relevant law. First, as Matt Yglesias observes, one can lose one's citizenship already by "Entering or serving in the armed forces of a foreign state engaged in hostilities against the U.S." (8 U.S.C. 1481(a)(3)) -- it is more or less a failure of updating that this doesn't encompass non-governmental military actors engaged in hostilities against the U.S.. Second, in Ex Parte Quirin, 317 U.S. 1 (1942), the Supreme Court in fact directly dealt with a situation where a German belligerent was also an American citizen.* Third, the Fifth Amendment doesn't restrict itself to citizens anyway (rather encompassing "persons") -- and that's good, for (as I'll explain below), the real worries about operations like this don't really become any less significant if the target is a non-citizen.

Andrew of Coffee House Talks tries to argue that because the Constitution carves out a specific crime of treason, an American citizen effectively can't be a military belligerent but must be charged with that particular crime. This is simply wrong: one can both be a combatant subject to the rules of warfare and a traitor. As explained above, once captured a person who has allegedly committed treason must be afforded constitutionally required procedural protections; but that does not mean they are somehow exempted from the normal (non-criminal) rules of war (the upshot of Andrew's argument is that every shot fired by the Union in the Civil War was illegal).

So the problem isn't that Al-Awalki was killed. And the problem isn't that Al-Awalki's a citizen. So what is the problem?

Two spring to mind. The first is whether Al-Awalki actually was a belligerent. Recall that this is basically the same worry that was most salient about the Bush administration's detainee policy -- there is no problem detaining actual enemy belligerents and neither is there a problem killing them, but there is a huge problem about doing those things to random innocent schmoes. But with Al-Awalki the controversy isn't really about that: nobody seems to dispute he was part of al-Qaeda, rather, the controversy seems to stem from his supposedly non-combat role. Now, as I understand it one can be part of an armed group while serving in a non-armed capacity (e.g., a radio operator or a quartermaster) and still be a valid target. But this is an area, though, where I simply don't know the relevant facts about Al-Awalki's role.

In any event, at best I can say that while Al-Awalki may not be the troublesome case, we can easily imagine a situation where the target denies being involved with al-Qaeda at all. And then we have a problem. In normal war, you know who the enemy is -- they wear a uniform. In fact, it's a breach of the laws of war not to. And that's because we want to make sure we can easily distinguish valid military targets from bystanders. But of course, al-Qaeda does not operate like that, and that makes things considerably more complex. We can say this is one more thing dickish about al-Qaeda and other terrorist organizations who do not distinguish themselves from civilian populations, but (while that's 100% true), it doesn't actually resolve the problem.

The second problem is that the above analysis does not have a spatial restriction. It could easily apply to alleged al-Qaeda belligerents on American soil. And this is difficult. On the one hand, it can't be the case that once someone reaches American soil, we have to treat them as a criminal and not a belligerent (see, e.g., the Civil War, and Quirin for that matter). On the other hand, if Al-Awalki had stepped off the plane in New York City, I think we'd all agree the proper response is to try and arrest him, not shoot him in the face.

The best answer I can give is that in areas where America exercises police power (i.e., American soil), there should an extremely high presumption in favor of using the police power to arrest alleged enemy belligerents, excepting only if they are currently engaged in hostilities. I don't know if a presumption of that variety is encoded in current positive law (the Posse Comitatus Act comes closest). But there are certainly excellent prudential reasons to prefer this -- aside from the importance above of ensuring we get the right guy, where do get said guy there's more intelligence to be gained from a live mind than a dead body.

* The citizen (Haupt) was executed. I think Quirin is problematic, not because Haupt was a citizen, but because once the belligerents were confined the procedural protections accorded were too lax.

Vicente Fox News

I think Mitt Romney has to be the odds-on favorite to win the GOP nomination. And when he does, this ad will guarantee that he'll be throttled amongst Latino voters.

Never Before Has the Supreme Court Been Asked To Uphold The Acronym "PPACA"....

Commenting on the United States' cert petition in the PPACA litigation, the Justice Department wrote:

Throughout history, there have been similar challenges to other landmark legislation such as the Social Security Act, the Civil Rights Act, and the Voting Rights Act, and all of those challenges failed. We believe the challenges to Affordable Care Act — like the one in the 11th Circuit — will also ultimately fail and that the Supreme Court will uphold the law.

Randy Barnett replies:

Each of those laws enjoyed bipartisan support when enacted; none were passed on a straight-line party vote. In fact, enacting so massive a social-welfare measure that affects every man, woman, and child in the United States in so partisan a manner was ... wait for it ... unprecedented.

For starters, I'm not sure what the argument is here. Does the Constitution change because Republicans threw a temper tantrum about this bill that was ... wait for it ... unprecedented in American legislative history? For that matter, I don't even know what it means to pass a law in a "partisan manner". It's hardly the case that Democrats acted to specifically prevent Republicans from joining the legislation, or locked them out of negotiations. Indeed, given the scope and breadth of GOP intransigence, I'd say they made (wait for it!) unprecedented efforts to include Republican voices. There are laws which were drafted specifically so as to "box out" the other party so they couldn't join on to an otherwise salutary policy accomplishment (e.g., The Unborn Victims of Violence Act). But PPACA wasn't anything like that.

But the entire subtext here is misleading. The Civil Rights Act was "bipartisan" primarily because America hadn't undergone the massive realignment whereby the South shifted from Democratic to Republican. But the fact that Southern Dixiecrats split ranks with their soon-to-be-ex-colleagues hardly implies anything about that law being less controversial at the time of passage. It just illustrates that we live in a political climate where party label more accurately reflects polarization.