IsThatLegal?

I'm a professional cynic,
but my heart's not in it.
-- Blur, "Country House"

Naturally I have no idea why Sandy Berger would walk out of the National Archives with a classified report tucked in his leather portfolio.

I'll tell you what, though. I do know that the procedures the National Archives used for Berger were pretty irregular.

Much of my writing depends on archival research, and I've done research with records at National Archives branches in D.C., College Park (MD), Denver, Seattle, Laguna Niguel (CA), and San Bruno (CA).

Here are some excerpts of Berger's lawyer's statements on CNN last night:

Sandy Berger had been reviewing thousands and thousands of pages of classified documents. He did it so that he could give informed answers to the 9/11 commission. And so the very documents that have formed the basis of their report could be produced. He did that by himself because no one else could do it or would do it. So he has a table. He's working openly. There are Archives people there and there are thousands of documents. And in the course of his review it was clear to everyone he had a leather portfolio. He brought it in openly. The Archives people knew it. And anyone who has works with Sandy knows he always has that leather portfolio and there were lots of business papers that have nothing at all to do with this commission.

And perhaps . . . there was too much informality by Sandy and maybe too much informality by the Archives people. But at some point when he leaves, the memorandum got caught with his business papers and he walked out. It was inadvertent.

The lawyer makes it sound like Berger was at a table with thousands of documents all over the place. It's not supposed to work that way. When I do research, the Archives people won't give you more than a couple of boxes of documents at a time, and they even wander around to make sure you don't have more than one folder from inside a box out and open at any one time.

The lawyer says that Berger brought in his leather portfolio with him, and had it with him at the table. Another no-no. When I do research, I'm required to put all of my stuff in a locker, and may take in with me only papers that get pre-screened and stamped on the back, along with my laptop. I'm not even allowed to bring the laptop's case in with me, which is a big pain in the ass, believe you me.

The lawyer also says that Berger "inadvertently" took the classified report with him. A couple more no-nos. First, a person is ordinarily not even allowed to photocopy a classified document unless it has first been declassified. Second, and far more importantly, there's an Archives employee at the exit who carefully looks over everything a person leaves with, to make sure that there's nothing in the person's papers that shouldn't be.

So there were lots of deviations from Archives policy in this case. I understand fully that the former National Security Adviser probably gets the red carpet treatment that the Archives doesn't offer to disheveled law professors like myself. Still, it's worth noting that the Archives has numerous policies in place to prevent this sort of thing from happening. It sounds like they all failed.

I am at work this summer on an article about draft resistance at the Poston Relocation Center, one of the 10 concentration camps in which the U.S. government jailed the West Coast's ethnically Japanese population during World War II.

Poston was plopped down onto the Colorado River Indian Reservation in Arizona, over the objection of the reservation's Tribal Council.

Late in 1945, as Japanese Americans were finally permitted to leave Poston, American Indians came to occupy portions of the Relocation Center that the Japanese Americans were abandoning.

Looking through archival material, I came across this touching account of what a Hopi leader said to the departing Japanese Americans:

"Things were terrible when we [the Hopi] came here last Saturday (Sept. 1, 1945). It was hot and there were no coolers (another man interjected the remark that he had stayed up all night fanning his two small children). We've gotten coolers since then, but we weren't sure at first whether we would stay. . . .

"The Japanese have been very good to us, giving us things they don't need. A man living near me has given me a couple of pools full of fish. The other day I saw a pool with two turtles in it and I asked what was going to happen to them. The [Japanese American] man said he was going to eat them. When I asked him to save me the shells, he wondered why. When I said that they would be used in a dance, he said he hoped we would dance while the Japanese were still in camp. A lot of Japanese have said they would like to see us dance, but we are going to wait until our crops are planted. . . .

"I told the leader of the Japanese that I talked to that I thought his people had been treated pretty badly by the government. I said we had been mistreated by the government for 300 years, and had learned that the thing to do was to make the best of the help that the government gives you."

This guy hasn't yet learned that as a progressive he is required to hate Richard Posner. (Geez! A fellow progressive even told him he was required to hate Posner, and he's reading Posner's book with an open mind anyway! The nerve!)

Take this test.
Shockingly (to me), I was significantly to the red of center.

Jenny speaks!
Now if only her damn computer would listen.

I feel like I ought to be saying something funny about this story. But I'm not coming up with anything.

Sorry to leave you hanging.

A very, very small point about the blogosphere's "coverage" (as it were) of one Annie Jacobsen's recent frightening experience on a Northwest Airlines flight:
 
Why the cheap potshots at this other Annie Jacobsen?

Every now and then I still come across something on the net that makes me say quietly to myself, "this is an amazing thing."
 
I went here, and was able (from my home office desk here in Chapel Hill) to manipulate a webcam at the top of the Credit Lyonnais tower in Lyon, France.
 
Just amazing.
 
UPDATE:  link fixed, je crois.
UPDATE:  link fixed. J'en suis sur.

Doug Berman's got the go-to blog for figuring out the implications of the Supreme Court's recent Blakely decision for the federal sentencing guidelines.

I was out of the country when the Supreme Court decided the Guantanamo, Hamdi, and Padilla cases, so you were spared my musings.

I have every confidence that the blogosphere's experts said all there was to say about the decisions, and then some. Indeed, others may already have said what I'll say here. But I thought I'd mention it anyway.

One striking feature of the decisions was the Court's repudiation of the basic thesis of the Chief Justice's 1998 book on civil liberties in wartime, All the Laws But One. After reviewing certain episodes from the Civil War, World War I, and World War II, Rehnquist argued there that in times of crisis, the balance between liberty and security inevitably shifts toward security, and (more to the point) that judges do not and should not interfere with wartime actions of the Commander-in-Chief. Applying the Latin maxim "inter arma silent leges," Rehnquist argued that in times of war the laws will inevitably be silent—and that this is probably how it ought to be.

Linda Greenhouse noted a week ago that given Rehnquist's interest in the issue, one might have expected him to write an opinion in the recently decided cases, and that his silence in the cases was therefore especially notable. That's true, but I think we can say more. Whatever the Guantanamo and Hamdi cases might mean at the micro level, it's impossible to view them at the macro level as anything but a repudiation of Rehnquist's thesis. Linda Greenhouse was

Justice Scalia, in fact, went out of his way (in his Hamdi dissent, formally joined only by Justice Stevens but on a point with which many others on the Court seemingly agree) to bury the thesis of Rehnquist's book. He had the (perhaps uncharacteristic) charity not to cite the book directly, but here's what he said:

Many think it not only inevitable but entirely proper that liberty give way to security in times of national crisis–that, at the extremes of military exigency, inter arma silent leges. Whatever the general merits of the view that war silences law or modulates its voice, that view has no place in the interpretation and application of a Constitution designed precisely to confront war and, in a manner that accords with democratic principles, to accommodate it.

In a review of Rehnquist's book (.pdf file) that I published in the University of Chicago Law Review several years ago, I worried that the book might take on the status of quasi-precedent because it was from the pen of the Chief Justice. I'm very happy to see that, at least in the context of the post-9/11 world, I have turned out to be wrong.

One of the biggest surprises of our trip awaited us when we walked out of the Santa Maria la Blanca synagogue into the narrow streets of the old Jewish "Call" (or neighborhood). It was a Judaica shop, called "Casa de Jacob."

Below is its owner, a charming and outgoing woman with the very Jewish name of Maria Teresa. She explained that her family (some 500 years ago!) were "conversos"--Jews who chose to convert to Christianity rather than face expulsion. She has taken a strong interest in Judaism and lived in Israel for several years. She opened the shop a few years ago, and boasts that Casa de Jacob is the first Judaica shop opened in Spain in more than 500 years.

Sadly, in the relatively short time the store has been open, they've had eight or nine incidents of anti-semitic graffiti scrawled on their wall, as this photo attests.


Casa de Jacob has a website. Check it out!

This lovely structure is the other surviving Toledo synagogue, charmlingly called "Santa Maria la Blanca." (Yes, you guessed it. After 1492 it became a church.)

The architecture is decidedly Moorish; this, it was explained to us, was because the best architects and builders in Toledo at the time of the synagogue's construction were Muslims.
Tour guides in Toledo like to brag that the city was a model of tolerance, with Christians, Jews, and Muslims coexisting peacefully for centuries. This building, I think, demonstrates that ... and it also demonstrates (most obviously in the name that it carries) that this era of harmony came to an end more than half a millenium ago.

Before the late fifteenth century, the Spanish city of Toledo was the leading city of Sephardic Judaism. Two former synagogues remain. This one is the Sinagoga del Transito.

It was built in the 1330's on the orders of Samuel Ha-Levi, who was King Peter I's treasurer. After the Jews were kicked out of Spain, the synagogue was taken over by the church and used for various purposes, including the stabling of horses.

One wonders: is this piece in the "Arts & Ideas" Section of today's Times a spoof?

It's a puff-piece about some guy named Robert W. Fuller and a book he wrote called "Somebodies and Nobodies." The thesis of the book is, I think (it's hard to tell, even though the article about it goes on for 26 paragraphs), that our society is "rankist," which means that it privileges "bullying behavior of people who think they are superior."

Although the article tells us nothing more about Fuller's idea than that, the article does note that the book was blurbed by Betty Friedan, Bill Moyers, Frances Fukuyama, and Studs Terkel. And that the book has sold 33,000 copies and that the author's website gets 2,000 to 3,000 visits per week, and that Fuller has lived off the largesse of a patron, Robert Cabot, "a novelist and diplomat . . . and heir to a family fortune" for the last 15 years." It also tells us a lot about how brilliant Fuller was as a "student wunderkind."

This is just precious: a rant against rank and elitism, penned and plugged by the ranked elite, maxes out on the rankist and elitist scale by scoring an intellectually empty p.r. piece in the "Arts & Ideas" section of the New York Times.

Oh, one other thing. The article does mention that Mr. Fuller has, in his itinerant career, twice left a wife and two children for another woman. This is obviously a person to consult on "the bullying behavior of people who think they are superior."

This is Cadaques, the town along the Costa Brava about 10 miles or so south of the French border where Dali did a lot of his painting. It's a gorgeous spot, if you can tolerate its touristy-ness (which we easily could). The light and the scenery in this village appear in various ways throughout Dali's work.

Of course, Heironymous Bosch was also a wacked-out dude, and he preceded Dali by several hundred years. This is from the Prado in Madrid.

We visited the Salvador Dali Theater-Museum in Figueras, Spain. He was a very wacked-out man, to be sure, but his painting was often superb. This one's actually a bit gimmicky -- a trompe l'oeil -- but it was the best photo I came away with.

There's a great line in the Marc Cohn song "Walking in Memphis," in which Cohn, having attended an inspiring revival meeting and been invited to play one of his tunes, is asked whether he's a Christian. "Ma'am, I am tonight," he responds.

This Rogier van der Weyden painting of Christ being taken from the Cross isn't enough to make me convert, but it comes close. It's just an unbelievable achievement. The depictions of grief in the Virgin Mary and in the dude with the funky robe (St. John, maybe?) holding Christ's legs are just staggering. The depiction of emotion in this painting was a quantum leap beyond where all painting of that era had been.

I'm a big fan of pre-18th century Netherlandish art, and I got to go to both the Prado in Madrid and the Kunsthistorisches Museum in Vienna. For a fan of Netherlandish art, this is rather like dying and going to heaven.

A few examples will follow.