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Wednesday, June 30, 2004

Would a filmic Fisking of Farenheit 9/11 pass “fair use” muster? Could it be decentrally coordinated?

The internet is filling up with point by point exposes of Michael Moore’s deceptions. (See for instance MooreWatch, fahrenheitfact, and various reviews.) Would it be legal to compile these Fiskings into a filmic refutation of Fahrenheit 9/11, using the same video feeds that Moore uses, and some of his own footage? Would it be “fair use” to in effect take clips from Fahrenheit, replace Moore’s narration with honest narration, and run the modified clips side by side with the originals?

Perhaps the effort could be decentralized, with lots of people or little groups of people each putting together individual snippets. Surely fair use allows a person to put together one little comparison piece. These could then be compiled on a website or a DVD. Maybe some of the best could even be run as TV ads. People who saw the movie would then get to see some examples of the day that they were duped into thinking was night. Some such effort should be legal, and it and has the potential to provide an extremely powerful antidote to Moore’s traitorous propaganda, letting viewers who see how dishonestly they have been manipulated against their own country’s war efforts. Something needs to be done, because a lot of gullible people ARE being duped by this slick traitor (and paying for the privledge). Any lawyers out there who can weigh in on what would and would not be legal?

Consider one example of the effect a filmic Fisking could have. There is a point in the film where Moore has just depicted Bush as chummy with the Taliban, and only interested in waging war in Afghanistan so that Unocal and Halliburton can lay a gas pipe. So we kick Taliban butt (not mentioned) and Hamid Karzai is installed as President. “Who was Hamid Karzai?” Moore asks. Not a legitimate Afghan leader, only “a former advisor to Unocal.” Moore then narrates:

Faster than you can say Black Gold Texas Tea, Afghanistan signed an agreement with her neighboring countries to build a pipeline through Afghanistan carrying natural gas from the Caspian Sea. Oh, and the Taliban? Uh, they mostly got away. As did Osama bin Laden and most of al Qaeda.

Cut to President Bush saying: “Terror is bigger than one person. And he's just, he's, he's a, he's a person who's now been marginalized, so, I, I don't know where he is, nor... and I just don't spend that much time on it, Ellie, to be honest with ya.” [Blockquote from Fahrenheit transcript Part II, available on RedLineRants, along with Part I.]

It would be a simple matter to take the exact same footage and treat it honestly. Karzai is a respected Afghan leader (even if he lacks the charisma of the Northern Alliance leader who Al Queda managed to assassinate just before 9/11). There is no gas pipeline. Narration: “And how did Bush respond to naysayers who tried to depict the routing of Al Queda and the Taliban as a failure because Bin Laden had not been caught?" “Terror is bigger than one person…” Put in actual context, the Bush clip is totally stand up, as everyone will immediately recognize. We smashed the state they were holed up in and some of the cockroaches made it to holes in other states--Pakistan, Iraq, Syria, and Iran--where there were already lots of other cockroaches. Its going to be a long war. We are going to kick the shit out of the terrorists in a lot of countries. Get hungry for it, or get used to it. Your choice. Remember this picture? WTC, 9/11.

Showing the effect of the voiceover HAS to be fair use (according to this non-expert). This could be done for dozens of spots. Show the CNN shot of the errant claim that Gore would have won in 2000 if the Florida recount had proceeded, then rerun the same piece with honest narration: “Some in the press jumped to the conclusion that Gore would have won.” Show the CNN clip. “But a through study conducted by abcd…xyz newspapers found the opposite, that Bush would have won under any recounting rules.” Show an honest headline. (This tidbit, by the way, is hammered by Christopher Hitchens in his Slate review.)

The fact that the film is presented as a documentary would seem to open the door to broader “fair use” than with other copyrighted forms. Moore is making claims to an honest characterization, which is certainly subject to citation and refutation in the same medium. In liability law, people who have pushed themselves to become “public figures” have substantially weaker legal rights than ordinary folks. The same rationale—public interest—would seem to be raised with documentary claims.

Second, much of the film uses video that is public domain, so Moore’s contribution here is just his editing points and his commentary. The editing points are a legitimate subject for critique, which ought to bring them under fair use, and the commentary would alternately be critiqued and replaced. It only seems fair that Moore’s actual work in amassing the public footage and executing the editing points not be stolen, so it might well be necessary to collect the various feeds and splice them by hand, but that shouldn’t be too hard, given either a bit of funding, or a cooperative decentralized effort by bloggers and others sharing information over the internet.

The only original Moore footage that would be important to use are some choice scenes with him in them, which could be augmented by what he edited out. Remember the Congressman who was asked about Congressmen needing to “send their children” to Iraq. He was annoyed when Moore did not include his reply—that he had two nephews serving in Iraq—and would probably be glad to say so on film. Such brief uses of Moore’s actual footage and voiceovers, together with editing points of public footage where the editing points are subject to legitimate scrutiny, seems like it ought to be protected. Can any lawyers clarify?

Monday, June 28, 2004

Left Supremes out to Mirandize enemy combatents, eviscerate the power to suspend habeas corpus

To establish the proper baseline, start with Hamidi v. Rumsfeld, where Justice Scalia takes the defensible position that if the government wants to hold citizens suspected of terrorism without granting them access to the courts (habeas corpus), it must first suspend habeas corpus (as the constitution allows for in times of war—Article I, section 9, PP 2). I don’t think Scalia is quite right here. In particular, his position conflicts with the Court’s WWII precedent that, in time of war, citizens caught working for the enemy can be treated the same as foreign enemies. Still, the two positions can easily be squared.

Nothing in Article I section 9 requires that a suspension of habeas corpus must be formally declared as a suspension of habeas corpus. Scalia’s objection can be met by arguing that, as soon as an order is given to hold a civilian without due process, habeas corpus HAS been suspended and the only question is whether the conditions under which suspensions are allowed have been met. If Scalia thinks it is important for suspension of habeas corpus to be officially declared, fine, the formality is easily supplied, but it seems incorrect to put the formality over the substance, especially when the formality is not specified in the Constitution.

Justice Stevens’ dissent in Rumsfeld v. Padilla (joined by Breyer, Ginsberg and Souter) does not explicitly mention the power to suspend habeas corpus, but his sweeping language makes clear that he sees detention for purposes of questioning as constitutionally barred WITHOUT QUALIFICATION, regardless of the fact that the Constitution explicitly provides for the use of extreme measures in time of war. Listen to this posturing. You’d think he was giving a graduation speech at Brown University instead of addressing the imperatives of a nation at war with mass murderers (like the one in front of him, accused of plotting to irradiate a city):

Whether respondent is entitled to immediate release is a question that reasonable jurists may answer in different ways. There is, however, only one possible answer to the question whether he is entitled to a hearing on the justification for his detention.

At stake in this case is nothing less than the essence of a free society. Even more important than the method of selecting the people's rulers and their successors is the character of the constraints imposed on the Executive by the rule of law. Unconstrained Executive detention for the purpose of investigating and preventing subversive activity is the hallmark of the Star Chamber. Access to counsel for the purpose of protecting the citizen from official mistakes and mistreatment is the hallmark of due process.

Set aside that the hallmark of Star Chamber was the investigating and preventing of BLASPHEMY (which is why it was an outrage), not mass murder. (Right, 16th Century England would have really gotten up in arms about using harsh techniques on mass murderers. Their penalty for almost everything was death.) The serious problem with Justice Stevens' rant is the lack of qualification, which suggests that he would rule that even an explicit suspension of habeas corpus must be held unconstitutional, at least when it comes to the questioning of detainees. Already this position is asserted implicitly, given that, as noted, the Constitution does not say that suspension of habeas corpus must be explicitly declared. Arguably, we are right now under a constitutionally authorized suspension of habeas corpus, and Stevens is rejecting it because enemy combatants are being questioned.

Unfortunately, supreme court precedent on suspension of habeas corpus opens the door to this kind of travesty. Ex Parte Milligan is a perfect example of the adage that hard cases make for bad law. Milligan had been prosecuted under President Lincoln’s suspension of habeas corpus, but he didn’t come up for execution until after the Civil War was over. Lincoln was going to pardon Milligan, but got assassinated first. Not wanting to execute someone for taking sides in a war that was over, the Supremes needed an excuse to declare continued prosecution under Lincoln’s suspension of habeas corpus unconstitutional. The excuse they came up with was far too broad. It is not founded in the Constitution, and it makes no sense.

The Court’s ruling in Milligan is that habeus corpus can only be suspended when civilian courts are not in operation! That is, habeus corpus can only be suspended for some when it is suspended for all! That is insane, and it has been sitting there like a time bomb for a hundred and forty years. The bogus moral posturing and extra-constitutional language of Stevens et al. suggests that, if President Bush or some successor is driven by the exigencies of the terror war to formally suspend habeas corpus, we can expect the left wing of the Court to use every means at its disposal to attack this power, which will mean using the Milligan time bomb to excise Article I section 9 from the Constitution.

Milligan is not all bad. The Court in Milligan was probably correct to rule that the writ of habeas corpus itself is not eliminated by suspension, but rather that it loses its force when the conditions that allow habeas corpus to be suspended obtain. This allows the Court to review to make sure that these conditions do obtain. Once review is opened up, it can go in different directions. For instance, it could be used to introduce some much needed treating of different cases differently. So long as treating different cases differently does not devolve into regular judicial oversight, but only acts at the most general level to separate cases where national security requirements are plausibly alleged vs. cases where they are not (a la Korematsu), this would seem to be a legitimate balancing between the power to suspend habeas corpus and the constitutionally protected rights that such suspension compromises. Surely these rights can take precedence when the conditions that call for executive discretion do not apply, and it should be possible to go some way in this direction without infringing that proper discretion.

Milligan’s application of oversight actually goes the other direction, treating all cases the same, but the scheme of oversight that Milligan advances really is an open door. Justice Stevens’ opinion in Padilla reveals how he and his comrades want to go through it. They want to bring in an exclusion on questioning that is absolutely not indicated in Article I section 9:

Executive detention of subversive citizens, like detention of enemy soldiers to keep them off the battlefield, may sometimes be justified to prevent persons from launching or becoming missiles of destruction. It may not, however, be justified by the naked interest in using unlawful procedures to extract information.

Following Milligan, the Court has some leeway to decide WHEN it has no oversight, but it has no leeway to decide HOW it has no oversight. Suspension of habeas corpus means no oversight and no oversight means no oversight. Partial oversight, allowing detention but not questioning, is not on any plausible constitutional menu. Does the Constitution specify that detention is a legitimate object for suspension of habeas corpus while questioning is not? Bullshit.

Why in the world is Justice Stevens so eager to block questioning that he calls in a childishly incompetent allusion to Star Chamber to trump the Constitution? How is information gathering less important in times of war than incapacitation? Stevens is in effect trying to Mirandize enemy combatants. Under Miranda, it is unlawful to question people who don’t want to be questioned. This would seem to be the gist of Steven's reference to "unlawful procedures." Not only does the Court’s left wing want to extend the protections of civilian law to those who wage war against us, it wants to make sure that they receive all the excesses of civilian protection that the Court has concocted over the years. Even when prudence requires that enemy combatants be held, they still shouldn’t be questioned!

Leftist motivations are always a puzzle, but one possibility is that Justice Stevens’ anti-questioning tear is an example of post-Abu-Ghraib psychosis. Maybe he is whacked out about questioning because he is under the delusion that the guy in the pictures with wires on his fingers was actually being given shock treatment. Stevens sounds like that New York judge who compared Bush to Hitler. His ridiculous reference to Star Chamber has the same demented ring as the “Got Democracy?” posters that have gone up all over San Francisco. The descent of the Democrats into unhinged leftism seems to have spiraled all the way up to the Supreme Court, where it now has half the Court sucked into its toilet bowl swirl.

This is serious stuff. Left Court is out to cripple our ability to defend ourselves. “Tut tut. Tie that arm. Marquis of Queensbury!” Wrong. That is what suspension of habeas corpus means. The gloves are off and the ref is out cold. Not your call Stevens. Not now. Not ever. You’ll be dead long before we half-way finish dealing with terrorist scum.

Saturday, June 26, 2004

Time for Jews to sell Israel, and buy Araby

The Jews are one of mankind’s greatest treasures, especially valuable now for their scarcity. It is a mistake to keep so many of these eggs in one basket. Zionism was a beautiful ambition, but a Jewish state greatly increases the chances of another Jewish genocide. This is not a risk that the Jewish people, or the world, can afford to take.

Israelis got their land the moral way. They bought it, then they defended it (if only they had driven their Arab attackers hundreds of miles back, instead of tens of miles). It is time now for our Jewish brothers and sisters to cash in the equity they have built up, and move to safer climes. Please, return to Diaspora, where you cannot be murdered en masse again.

No need for all to leave, and no need to sell to Arabs. It is time for non-Arabs to start buying up and taking over Arab lands. Just as the Jews need to go back into diaspora for their safety, Arab lands need to be riven by foreigners for the safety of the world, and what better foothold than Israel. There are plenty of Russians, Romanians, Philippinos, Chinese, Africans, Mexicans and others who would gladly move to Israel to work for Jewish companies, buy land, and become citizens. Then just keep buying outwards.

Soon enough the river Jordan will be inside the new Israel, then Jordan itself. Buy Egypt. Own the Nile. Find something useful to do with Saudi Arabia. Those Arabs that can devote themselves to productivity rather than racist evil will be absorbed. The rest will be pushed back to what miserable dirt they can afford. Their labor will never be needed. The rest of the world can supply the workforce for an expanding Middle East economy until, like the Jews, the Arabs are everywhere in diaspora (everywhere but Iraq, perhaps), which will be an incidental bit of cosmic justice.

States used to be formed by force. Israel has pioneered a new form, where states are created by buying the land. Let this new form march across the Muslim world the way the United States marched across the North American continent. It can and should happen, but it will take time, time that the Jews do not have, as Iran and Syria and Hamas and Al Queda feverishly try to get their hands on just one Pakistani, North Korean, Russian or Chinese nuke to wipe out the one people who most directly thwart their racist ambitions. Christian Arabs ought not to be included in this indictment. It is a Muslim thing, spanning Persian, Pakistani and Indonesian boundaries. Eventually, all Muslims who are devoted to bigotry will be bought out, but first things first. The Jews must live.

Spread yourselves out in the safe havens of Australia, the Americas and Eastern Europe, leaving plenty behind to run your businesses and hire people from outside of the middle-east until non-middle easterners become the new Israeli majority. If non-Middle-Easterners do not become the new majority, then not enough Jews will have left for the Jewish race to be secure, and not enough foreigners will have come for the expansionary state be enabled.

Whether or not Jews leave Israel for safer homes (I can't fault people for being too brave), Israel should pursue policies of economic and population expansion by opening the door wide to non-Jewish, non-Muslim immigration. Let this be the new Zionism: not a Jewish state per se, but a Jewish creation: a United States of Israel, spreading over and moralizing what was the Muslim world.

Thursday, June 24, 2004

Got full information?

The San Francisco Chronicle recently ran a whole story about the photograph of the hooded Iraqi prisoner with wires attached to his fingers without mentioning that the prisoner in the photo was being spoofed: that he was not actually harmed, but was being given a fright.

The Chronicle’s pretext for this malfeasance? It seems that a dizzy San Francisco novelist named Robert Mailer Anderson has been plastering San Francisco with posters of the infamous picture superimposed over the American flag and with the caption "Got Democracy?" underneath. The Chronicle essentially took up Anderson's campaign, reprinting his poster on the front of an inside section and publishing Anderson’s gripes about the government. The story can even be taken as suggesting that the shock treatment shown in the picture is real. Instead of describing the photo as a picture of an Iraqi prisoner with fake electrodes on his fingers, the story refers to “the most enduring image of the Abu Ghraib prison scandal—the Iraqi man, hooded, his hands tied with electrodes.”

People can go back and forth about whether fake electrodes can legitimately be called “electrodes,” so Chronicle reporter Jonathan Curiel might be absolved of misrepresenting the facts by commission, but he is certainly guilty of misrepresentation by omission. The picture depicts fake shock treatment, and a story about the picture ought not to leave that fact out. This is particularly pertinent in a story about a campaign that is plastering the picture all over the city without including any information about what the picture actually depicts. San Franciscans looking for the most basic information about this suddenly ubiquitous image won’t find it in the Chronicle, even in a story about the image.

Why does Anderson deserve to be called “dizzy”? This poster campaign is his reaction to being delayed at the airport when his two year old daughter turned out to have the same name as someone on homeland security's “no-fly” list. While our soldiers risk their lives for his freedom, Anderson takes extreme umbrage at being the least bit put out for national security. (“We almost missed our flight,” he says.) Letting his imagination run wild (an occupational hazard for novelists?) Mr. Center of the Universe decides that America must no longer be a democracy. This is worse than we thought. Who knew that imaginary torture was contagious?

Freedom of speech for churches?

A recent “Politics and the Church” piece in the San Francisco Chronicle (“Bush woos the faithful with religious fervor”) offers a good example of how the news article format is being used to tell only one side of the “separation of church and state” story.

Chronicle religion writer Don Lattin starts with a list of cases where President Bush appeals to churches and the religious for support and where support for Bush is offered by churches and the religious. Lattin then turns for commentary to the Reverend Barry Lynn, executive director of Americans United for the Separation of Church and State. But here the discussion is conducted, not in terms of the constitutional issues, but in terms of tax law.

The crux of the article reads:

Under Internal Revenue Service laws, churches and other religious organizations can lose their tax exempt status if they endorse political candidates.

Enforcement of that provision, however, is complicated by the fact that churches are free to speak out on political issues -- such as whether the government should outlaw abortion or gay marriage. And clergy are able to speak out for candidates if they do it as private individuals, not as representatives of their church.

"What's different this year is the Bush/Cheney campaign are initiating efforts to get churches to break the law by becoming centers of Bush campaign activity,'' said Lynn.

Churches are not just left free by tax law to speak on political issues, they have a First Amendment free speech RIGHT to speak on political issues. That same free speech right applies to the direct endorsement of political candidates. The First Amendment does not say “Congress shall pass no law abridging the freedom of speech, except regarding the endorsement of candidates by churches.”

As easily as Lattin found Reverend Lynn to speak against the participation of churches in politics, he could have found someone to speak out for the political rights of churches. (David Limbaugh recently wrote a book on the subject.) Obviously he does not want to go there, even though his discussion of the tax issue gets him close enough to the constitutional issue as to make it implicit! Instead, he contents himself with noting that the Bush Administration denies that it is putting any churches in violation of tax law, since it is sending its appeals out to congregation members directly. Yup, everybody agrees, it’s just a tax issue, all tied up with a bow on top.

Lattin then goes on to cite Lynn’s criticism of President Bush’s politicking with the Pope. “It’s incredible,” Lynn is quoted as saying about President Bush’s effort to get John Paul to reign in left wing Catholic bishops. “Bush is doing the very thing Kennedy vowed not to do.” But in fact the issue Lynn is concerned about is the opposite of the one that Kennedy addressed. Kennedy was Catholic while Bush is Methodist. The issue with Kennedy was whether HE was too under the influence of the pope. Bush, in contrast, is accused of trying to influence Pope John Paul II. American are supposed to worry now about the pope being influenced by the president? Why? Are we supposed to be Catholics before we are Americans? Lynn flips Kennedy on his head and calls it the same thing.

We should be able to count on a newspaper’s religion writer to note such a misrepresentation, and surely Lattin is knowledgeable enough to pick it up. He just doesn't let himself go there, presumably because, as with letting himself grasp the First Amendment, it wouldn't support his anti-Bush, anti-traditional religion, presumptions. Consciously or self-deludedly, Lattin is a model of meretricious reporting. Why am I not surprised that the Chronicle’s religion writer is an intellectually dishonest anti-religious bigot?

The unaddressed constitutional issue is subtle and important. Every claim of value or priority springs from some kind of comprehensive moral view, and at the level of abstraction at which the Constitution operates, all comprehensive moral views must be regarded equally as religions. There is traditional religion and there is secular religion. In these terms, President Bush’s politicking with Pope John Paul is no different than if Vice President Gore had gone politicking with the European leadership of Greenpeace, urging that American Greenpeace branches increase their support for his environmental policies.

As for what to do with the tax law tangle, cut the Gordian knot by eliminating tax exempt status for all churches and charities. American churches are sitting on vast resources of real estate and buildings that go horribly underused because churches cannot rent them out or even let them be used free of charge for any but non-profit purposes without risking their own tax exempt status. Instead of being a vital part of the community, tax exempt status forces churches to the sidelines. Tax exempt status for non-profits also violates the fundamental principle that the tax base should be broad so that tax rates can be low.

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