I don't have to pretend to work next week because I'm taking the week off to go home for Christmas. I'll be out of touch from Saturday 12/20 to Sunday 12/28, more or less. I'm sure Fitz will have some thoughts to pass along, and I'm really hoping he's going to elaborate on my Indian law post. Fitz promised me he would post new stuff now that we've seen the new Lord of the Rings movie. Also, BTQ is new enough that I worry that if you don't click over here for a week you'll get out of the habit.

After I return, we're going to launch the new blog design and post our predictions for 2004. And, lots of other good stuff is on the back burner.

In my absence, allow me to make a few reading suggestions. First, any of the blogs in the blogroll on the right, although Fitz and I will probably shake that up a little on the new site. Second, for an interesting perspective on what's going on in the Middle East, you may want to peruse Beyond Northern Iraq. The author is a BBC reporter (although it's not an official BBC blog) whose foot was blown off by a landmine. Here is my favorite post, kind of a separated-at-birth comparison photo of Saddam post-capture and Chewbacca the Wookie.

In an even more entertaining vein, check out True Porn Clerk Stories (no images, but plenty of potentially work-unfriendly language). The author worked for several years in a Chicago video store, and relates many very funny tales from the experience. Lots of interesting insight into the human condition, but mostly so funny my sides hurt from laughing. She read several of them as part of my very favorite episode of my very favorite radio program, This American Life. (I can't find a permalink to the episode, but if you'd like to hear it, go to the main page, and look up Episode 216, July 12, 2002, "Give the People What They Want." All the stories in that episode are wonderful.)

I hope everyone has a safe and happy week, whether they're celebrating anything or not.

By the way, if you didn't know, this post's title is a reference to a classic Seinfeld episode. I will leave it to you to discover the true meaning of Festivus. But note that Wesley Clark's birthday falls on Festivus. How'd you like to have to compete in the Feats of Strength against him? (Fitz, when you're alone in the office this week, you may want to play a few of these sound clips from the Festivus episode!)

I was flipping through Title 18 of the U.S. Code (containing most of the federal criminal laws) the other day, and my eye caught Chapter 53: Indians. Specifically, 18 U.S.C. sec. 1160:

Whenever a non-Indian, in the commission of an offense within the Indian country takes, injures or destroys the property of any friendly Indian the judgment of conviction shall include a sentence that the defendant pay to the Indian owner a sum equal to twice the just value of the property so taken, injured, or destroyed.

The statute goes on to say that when the offender can't pay or isn't caught, renumeration shall come out of the U.S. Treasury.

I just found this quite interesting. On its face, the law discriminates against non-Indians (for simplicity, I'll adopt the statute's nomenclature). An Indian who destroys property (even an unfriendly one?) doesn't have to pay the double damages. Everyone else does. While I think this is justifiable under either the Indian Commerce Clause (quoted in this post's title) or Section 5 of the Fourteenth Amendment, consider how different the answer might be outside of the Indian frame. A simple property destruction offense outisde "the Indian country" isn't generally a federal crime. The Ninth Circuit seems hell-bent on declaring all kinds of federal laws as falling outside Congress's Interstate Commerce Clause power. I wonder how different the scope of federal power here would be. I don't want to dive back into Seminole Tribe v. Florida, and Fitz is the Indian Law guru, not me. But my quick take is that the history of federal criminal prosecution and concurrent jurisdiction over criminal offenses might be different enough (i.e., fed/tribe v. fed/state) to justify disparate treatment on this count. I'll have to get Fitz's input and ponder on this a little more, though.

I also don't want to get into a rant about "hate crime" laws, but one of my peeves in arguments on that subject is when opponents assert that "we don't penalize people differently based on who their victims are." If they are arguing that we shouldn't, well, reasonable minds can differ. But if they're arguing that we don't, they're just wrong. And 18 U.S.C. sec. 1160 proves it: a property crime is punished differently if the victim is a "friendly Indian" within the Indian country. There are plenty of other, more-commonly-prosecuted examples, like crimes against children or "vulnerable victims" (an enhancement under the U.S. Sentencing Guidelines) or police officers. But sec. 1160 is clear proof that we do have some victim-dependant punishments. So, even if unwise, they aren't "unprecedented."

Note: I'm going to do some more thinking about this statute and will update this post if I find more about it. I don't even know right now if it's ever been used.

UPDATE, Friday afternoon: As Mr. P points out in the comments to this post and on his own blog, this statute was amended in 1994 to read "non-Indian" instead of "white person." The Supreme Court dealt with this very issue in United States v. Perryman, 100 U.S. 235 (1879). There, the offender was a black man (Crit alert: his white accomplice was nolle prossed!) who couldn't pay the damages for stealing cattle. The Supreme Court held that the "friendly Creek Indian" claimant could not recover damages from the U.S.:

While the negro, under the operation of the constitutional amendments, has been endowed with certain civil and political rights which he did not have in 1834 [when the law was renewed] he is no more, in fact, a white person now than he was then. . . . There may be no good reason for restricting any longer this liability to acts of whites; but until Congress sees fit to change the statute in this particular, the courts are not at liberty to disregard the law as it is left to stand.

(I won't comment here on what "liberties" courts take with statutes these days; that's for another post, or another blog.)

It is good to see that Congress finally got around to changing this -- 115 years later! Thanks for lead, P!

While Howard is busy discussing (see here and here) the contents of one of the magazines I bought tonight (just before my Cinnabon purchase), I'll say a word about an item in the other, Wired. First, though, I found it funny that a magazine dedicated to the cutting edge had a picture of last month's cover on its "current" page when I visited tonight.

Anyway, they have a story entitled, "101 Ways to Save the Internet." Number four is "Appoint Larry Lessig to the Supreme Court. Is he a Democrat or a Republican? Who cares! Laws governing information flow are the new affirmative action, abortion, and gun control rolled into one."

I think that last sentence is a bit of a stretch, and is influenced by the subject matter that fires Wired up. (But it's not totally indefensible -- consider the Fourth Amendment issues, First Amendment issues, surveillance and investigation/"total information awareness" issues, consumer/commercial law issues, etc. that would be included in the category of "information flow.")

Anyway, we could do worse than Lessig, that's for sure. But Lessig might be just as happy if Wired's number fourteen comes to pass: "Dump the Digital Millennium Copyright Act." Hear, hear.

I like Cinnabon, even though the only thing worse for me would be directly pumping the frosting into my veins. (Stop the presses: Lawyer/Blogger could stand to lose a couple of pounds!)

The grocery store I use prints coupons on the back of the receipt. Most are for stores in the same shopping center. Most are worthless, but every once in a while they give me a buy-one-get-one-free Cinnabon coupon. These I hoard.

So, tonight I was ready to cash one in. I got to the store around 8:00, and they close at 9:00. I handed the clerk the coupon and she gets me two of the beauties. I ask for a bag, and she says, "Sure, but I've got to get you another one."

Me: "Oh, was that what the coupon was for?" (Thinking it might have actually been a buy-two-get-one-free deal.)

She: "No, but I'm going to give you another one anyway."

Me: "Well, I'm not going to fight you over it."

So I got three Cinnabons for $2.75. That's what I call. . . a sweet deal! (Cue wacky sitcom "wah-wah-wah" music.)

Howard has collected several links related to the decision here. The ruling can be found here. Go here for Larry Solum's post, here for the CNN story, and here for the MSNBC report.

Note that the court in its decision does not suggest that Padilla cannot be turned over to civilian authorities and tried in a civilian court. Jose will not be walking around a free man (unlike my new neighbor, John Hinckley).

To the tune of (what else?) Brown Sugar, by the Rolling Stones. I like to imagine Strom belting this out on stage with Mick and Keith.

Ole Strom Thurmond's got a secret past,
Had me a baby with a nigra lass.
I got famous 'cause I raised some hell,
But I kicked her to the curb with a "Fare thee well!"

(Chorus) -- Brown sugar, how come you taste so good?
Brown sugar, just like a young girl should.

Drums beatin', cold Thurmond blood runs hot,
Miss South Carolina wonders when it's gonna stop.
They get no schoolin' but I get what I like,
Hear me with the wimmin just around midnight!

Chorus

You know her Momma kept the mansion clean,
But I knocked her up when she was just sixteen.
No miscegenatin' was the way of the world,
But still I turned my back on my own little girl.

Chorus

Note: This is a parody. As such, I used language (one word in particular) that Strom used but I don't. Also, the "Miss South Carolina" reference: As I recall, Strom married two former Miss South Carolinas.

It was bad enough that Strom had this child he never acknowledged, but for me what stood out was that the girl's mother was so young and in his employ when this happened. Even leaving aside the age difference (Strom was 22), and when it happened (1925), the power imbalance was so great that I doubt the girl could have given meaningful consent. I'm not calling it "rape," and I'm not saying all sex between people of different stations in life is coercive. Far from it. Maybe they were even in love, although if that's the case, Strom's public positions are even more troubling. I never liked Strom, and this incident just reinforces my feelings about him. But I guess today he was my muse.

In an effort to one-up Peter Jackson, I have initiated a casting call for my re-make of the Lord of The Rings trilogy. Here are the people I have gotten commitments from so far:

Frodo: George W. Bush
Sam: Dick Cheney
Meri: Don Rumsfeld
Pippin: Colin Powell
Gandalf: Karl Rove
Aragorn: OPEN (but talks with Governor Arnold are on-going)
Gimli: OPEN
Legolas: OPEN
Arwen: OPEN
Faramir: Jonah Goldberg
Aoewyn: Ann Coulter

Sauron: Bill Clinton
Saruman: Al Gore
Nazgul #1: Howard Dean
Nazgul #2: John Kerry
Nazgul #3: Dick Gephardt
Nazgul #4: Joe Lieberman
Nazgul #5: Jon Edwards
Nazgul #6: Wes Clark
Nazgul #7: Dennis Kucinich
Nazgul #8: Al Sharpton
Nazgul #9: Carol Mosely-Braun
Urak-hai: The Deaniacs
Wormtongue: Jacques Chirac

If you have not blown your top by the time you read this line, you have hopefully deduced that I was being ironic in my casting choices. The easy and obvious casting - at least according to "real" Hollywood insiders - would have been to cast Bush as Sauron and Clinton as Aragorn. That is just too easy. Call me crazy, but I like to cast against-type. There are many other spots to be filled – Treebeard, Gondorian soldier #3, Cave Troll #5, and many more. If you have any suggestions, let me have 'em!

Former North Carolina State basketball star David Thompson is getting his degree today, some 28 years after he left school. I am a huge college basketball fan, and ACC basketball in particular. Even though Thompson's college career was over before I was born, I still consider him one of, if not the best college basketball players of all time. His pro career was a let-down because of drugs and injuries, but seeing the old footage of him playing for the Wolfpack is simply awe-inspiring. He could do things no one else could at the time, and few have been able to do since. During his last two years at State (back in the days before freshman eligibility), his teams lost only two games (I think). His game against Bill Walton's UCLA team in the 1974 Final Four was a masterpiece. So, congrats to Thompson for getting his life back in order a few years ago, and now taking this step.

I have a feeling my pronoucement above might cause some debate, so here is my defense. I am basing my judgment only on what the player did while in college. Not on what he did in the pros, or even the potential he showed while in college. Championships are the most important criterion, but not the only one, especially when we're talking about a truly transcendant player. One great season is not better than three or four very good ones. I won't try to rank these folks in a precise order, but the rest of my top ten (semi-arbitrarily -- in the last 40 years) is probably (some tweaking possible) this: David Thompson (NC State), Bill Walton (UCLA), Pat Ewing (Georgetown), Phil Ford (UNC), Len Bias (Maryland), Christian Laettner (Duke), Oscar Robertson (Cincinnati), Lew Alcindor (UCLA), Bill Bradley (Princeton), and Mateen Cleaves (Michigan State).

I know it looks like there's an ACC bias there, and I admit I went to an ACC school, but most of these guys won multiple championships, and almost all at least went to multiple Final Fours. I guess there should probably be someone from Kentucky or Indiana there, especially, but no one stood out as having multiple great seasons or that special something. (As for what is probably the most glaring individual omission, Michael Jordan wasn't even the best player on his team the years he was at UNC.) I welcome your suggestions, and you might even be able to convince me to change a few of these (I'm probably forgetting someone really obvious), but you won't be able to convince me on Jordan based only on his college performance. (That would be like saying Keith Smart was a better college player than Steve Alford.)

The L^3 guys have a post up now about the F-bomb and the FCC. Check it out here.

The Return of the King, the final movie in Peter Jackson's three-part adaptation of J.R.R. Tolkien's The Lord of Rings opens today and by all accounts it is a fitting conclusion to the trilogy. There is talk that Peter Jackson could win the Oscar for Best Director (my prediction is that, as with the first two installments he and the movie will be snubbed by the Academy in the major categories, perhaps only picking up awards in technical categories). Among many movie fans the conclusion of the LOTR trilogy raises the question which is the better movie trilogy: the original Star Wars or The Lord of the Rings?

My John Kerry-like answer is: Yes. Not helpful, I know, but I am torn. This is a question without an easy answer. Here are some factors you might consider in reaching an answer:

(1) Will either trilogy remain relevant in 10, 20, or 50 years?
(2) To the extent that commercial success is a measure of greatness, will LOTR match or surpass Star Wars in gross box office take? In merchandising? In home-video/DVD sales?
(3) Do the advances in visual effects make LOTR better than Star Wars?
(4) If you have a Saturday afternoon to kill watching a movie, are you more likely to slip in the Two Towers DVD or Return of the Jedi?
(5) If Peter Jackson receives the Academy Award for Best Director does this accolade establish that his direction of the LOTR trilogy is superior to George Lucas's direction of the original Star Wars?
(6) Is Tolkein's story better than Lucas's story?
(7) Should the utter stupidity of Episodes I and II be taken into account when assessing the merits of the original trilogy?

Of course there may be other factors I am leaving out and you may disagree with the criteria I have set out above. That is fine. I am not a professional film critic, just a movie buff with opinions and an outlet for those opinions. But before I post my "answer" I would like to get some comments from our readers on this question. So, I now pose the question to you, dear readers. Which trilogy is better, Star Wars or the Lord of the Rings? Chime in and let me know what you think!

BTQ readers will be pleased to know that we are in the early stages of a revolutionary visual transformation of the site. We were fortunate enough to secure the services of the very talented may*star who has graciously agreed to give this site the face lift it so desperately needs. And when I say face lift, I mean something more like a face transplant a la "Face/Off" - the movie where John Travolta's daring undercover agent, John Archer, switches faces with the notorious terrorist Castor Troy, played by Nic Cage (query who - Big John or Little Nicky - got the short end of the stick in that trade?).

Have no fear, though, the high-quality content you have come to expect from Milbarge and (to a lesser extent) yours truly will survive the metamorphosis.

Also note that, in coordination with the de facto re-launch of BTQ, we will soon post our top predictions for 2004. Some predictions will be serious, some will be light-hearted, all are guaranteed to come to pass - or maybe not (if John Kerry can waffle, why can't I?).

Read this excellent post by Gregg Easterbrook on the time-honored Arab tradition of selling out your friends and neighbors and why that tradition has not yet resulted in the capture of Osama bin Laden.

Mr. P mentions the Ethical Selector Philosophy test. The test is here.

Let me say that I know very little about philosophy, at least in terms of knowing who thought what and which moral theory means killing people is wrong or whatever. (Apparently, many philosophical theories take that stance.) I had heard of almost all of the philosophers/philosophies listed in my results, but probably could have only described the belief set of maybe half a dozen out of the nineteen. I feel the odd need here to defend myself: I'm not stupid. I just don't know a lot about the specific phiosophical tenets of particular thinkers. Also, I took the quiz in a hurry.

So, my top result was the Epicureans (100%). The site describes their theory as "Pleasure is the ultimate moral end." Well, hard for me to argue there. I don't think "Hedonist" is on the list. (Actually, I'm pretty sure the Epicureans don't -- didn't? -- think the same way about pleasure, but whatever.) My next few results were J.S. Mill (93%), Jeremy Bentham (90%), and then Ayn Rand and Immanuel Kant at (83%). I'm a little surprised at #2 and #3 because I don't consider myself a utilitarian. And what kind of weirdo has exactly the same amount in common with Rand and Kant? This one, apparently.

Mentioning Rand reminds me of a funny line I had once, and since this is my blog, I can make myself seem witty by presenting such anecdotes. I once accused a friend of mine of being selfish in some position he was taking. His response: "I'm only looking out for number one." Me: "Uh, that's the very definition of being selfish." I guess I learned that from Rand.

Catching up in The Corner, I saw this story. Pakistani President Pervez Musharaff narrowly escaped an assassination attempt the other day. Plotters blew up a bridge maybe a minute after Musharraf's car crossed it.

Musharraf isn't a perfect leader or ally by any stretch, but it would be a very bad thing if Pakistan lost him now. (Granted, I don't know the country well enough to know who the likely successors would be, so take that for what it's worth.) Even if the transfer of power were peaceful (cross fingers!), the next leader might not be as helpful an ally. Civil war or the installation of extremists, ala Iran, would be even worse. Of course, having a footprint in Iraq now would mitigate the need to operate out of Pakistan, but we certainly don't need a hostile Pakistan situated on the other side of Iran and right next to Afghanistan. Also note that Pakistan has harbors on the Arabian Sea, which would allow the ingress and egress of, well, just about anything from anywhere.

Finally, perhaps most importantly, who knows what a new leader in Pakistan would do about India? And a new regime might consider selling nuclear info (or the bombs themselves) to North Korea.

All in all, I'd say we (Musharraf and the U.S. both) had a lucky break over there.

Ken Lammers has a post on his very good CrimLaw blog entitled "A Week in the Life of a Defense Attorney." It's a good read, funny and frustrating at the same time. It makes me even more sure that I made the right decision to go into appellate work. Ken drives all over the place visiting clients and explaining to them why their best bet is to plead guilty and still get "only" whatever the mandatory minimum is. I sit in front of a computer all day. No clients ever call me. I don't have to visit people in jail.

On the other hand, Ken has some pretty good stories. My best stories are like talking about your favorite law school exams -- "Ooo, I really spotted a good issue in that one!" Don't worry: that won't be a regular feature on BTQ.

UPDATE, an hour later: Crescat guest blogger Toby Stern (aka Mr. P) linksto this amazing story. A law firm in Orlando was really a front by convicted drug dealers who sought money from the families of other prisoners, promising reductions in sentences. (Well, who would understand the Guidelines better...?) As happy as I am that I don't have to do all the yeoman work Ken Lammers does, I am even happier that these folks aren't opposing counsel.

Only kidding! But there is a lot of speculation about whether the capture of Saddam Hussein spells the end for Howard Dean's campaign. I don't have a lot of analysis to add, except to say that I think Dean probably won't lose any support during the primary season as a result of Saddam's capture. His current supporters hate Bush more than anything else and a Bush success in Iraq will not likely sway them (it will just make them more angry). I think the real threat to Dean posed by Saddam's capture is the potential for Saddam's war-crimes trial to dominate the news next summer in the run-up to the November presidential election. Dean's opposition to the war will stand in sharp contrast to the testimony of victims and survivors of Saddam's rule.

What should concern Deaniacs now, and especially once he obtains the nomination, are statements like this one detailed by Slate's Chatterbox (here) about September 11, which have received surprisingly little coverage from the major media outlets:

"There are many theories about it. The most interesting theory that I've heard so far, which is nothing more than a theory, I can't—think it can't be proved, is that he was warned ahead of time by the Saudis. Now, who knows what the real situation is, but the trouble is that by suppressing that kind of information, you lead to those kinds of theories, whether they have any truth to them or not, and then eventually they get repeated as fact. So I think the president is taking a great risk by suppressing the clear, the key information that needs to go to the Kean commission."

Dean made this statement on December 1, 2003, on the Diane Rehm radio show. On December 9, at the Durham, New Hampshire debate, Dean fielded a question from reporter Scott Spradling about his comments on the Diane Rehm show:

"Scott Spradling, WMUR-TV: Governor Dean, you had once stated that you thought it was possible that the president of the United States had been forewarned about the 9/11 terrorist attacks. You later said that you didn't really know.

A statement like that, don't you see the possibility of some Democrats being nervous about statements like that leading them to the conclusion that you are not right for being the next commander in chief?

Howard Dean: Well, in all due respect, I did not exactly state that."

Dean went on to pretend that the subject was first brought up on Fox News Sunday and never acknowledged his comments originally made on the Diane Rehm show.

In all due respect, this is incredibly irresponsible rhetoric from a major presidential candidate, and justly brings into question his suitability for the job of Commander-in-Chief. Charles Krauthammer really takes Dean to task for it here but otherwise major coverage of this looney tunes conspiracy theory (which seems more appropriate to the Kucinich camp, frankly) is nowhere to be found. Is this not news-worthy? Do Dean's statements not seem remarkable? Didn't this kind of conspiracy mongering essentially end the political career of Cynthia McKinney? It looks like the good doctor will avoid having to answer any tough questions about these comments (at least until after his "coronation" as the Democratic candidate).

For Milbarge and others who keep urging me to take a hard look at Howard Dean, I am. And, so far, I don't like what I see.

Again, thanks to Chatterbox who deserves full credit for the quotes and the facts.

I have added a new blog to the blogroll and I commend it to those of you with any interest in military affairs in general or the Iraq war in particular: Acquire, Identify, Engage. Mr. Lewis' comments provide the kind of insight into military matters that can only come from experienced soldiers. He currently has several excellents posts regarding the Army's decision not to court-martial the "so famous he's in-famous" Lt. Col. West. Check him out.

Saddam Hussein has been captured outside of Tikrit. A news conference is scheduled for 7a.m. Congratulations to the U.S. forces for a job well done.

CNN reports on it here, MSNBC here, and Fox News here.

I hope he gets a full body-cavity search in hopes of turning up the missing WMD.

(cue "No where to run" by Martha Reeves and the Vandellas)