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What To Do When You're Stopped By Police - The ACLU & Elon James White

What To Do When You're Stopped By Police - The ACLU & Elon James White

Know Anyone Who Thinks Racial Profiling Is Exaggerated? Watch This, And Tell Me When Your Jaw Drops.

This video clearly demonstrates how racist America is as a country and how far we have to go to become a country that is civilized and actually values equal justice. We must not rest until this goal is achieved. I do not want my great grandchildren to live in a country like we have today. I wish for them to live in a country where differences of race and culture are not ignored but valued as a part of what makes America great.

Saturday, July 30, 2005

A U.S. appeals court has rejected a lawsuit charging 1960s psychedelic rocker Country Joe McDonald with copyright

recycling time?Fri Jul 29, 9:31 PM ET

SAN FRANCISCO (Reuters) - A U.S. appeals court has rejected a lawsuit
charging 1960s psychedelic rocker Country Joe McDonald with copyright
infringement for his 1965 protest song "Fixin' to Die Rag," which became
a rallying cry for opposition to the Vietnam War.

In a decision made public on Friday, the 9th U.S. Circuit Court of
Appeals rejected an appeal from Babette Ory, who said McDonald's song
infringed on jazz standard "Muskrat Ramble," credited to her father, Kid

Ory sued in September 2001, claiming that "Fixin' to Die Rag" was
similar to and infringed on "Muskrat Ramble." Kid Ory, who recorded with
jazz great Louis Armstrong, died in 1973.

The appellate judges upheld a lower-court decision saying there was too
long a delay in bringing the copyright lawsuit and awarded McDonald his
attorney fees. Ory obtained copyright to "Muskrat Ramble" in 2001.

McDonald wrote "Fixing To Die Rag" in 1965 to protest the nation's
escalating military involvement in Vietnam and the song's refrain: "And
it's one, two, three, what are we fighting for?" quickly turned into a
rallying cry against the war and figured prominently at the Woodstock
music festival in 1969.


Court Nominee Stood Out for Conservative Rigor - New York Times

Court Nominee Stood Out for Conservative Rigor - New York TimesJuly 31, 2005
Court Nominee Stood Out for Conservative Rigor

They are not exactly father and son, but they share a singular bond in an elite business: 25 years ago this summer, almost exactly half his lifetime ago, John G. Roberts went to work for William H. Rehnquist, and now he stands poised to become the first Supreme Court clerk in American history to sit on the bench alongside the justice he served.

His 13 months in the chambers of Justice Rehnquist spanned the period of the 1980 election and the dawn of the Reagan revolution in Washington. It was a heady time of relentless work, long walks on Capitol Hill discussing cases informally with the justice and sharp-elbowed basketball games in the Supreme Court gym, wryly referred to as the "highest court in the land."

It was a time when the Supreme Court was far different, more liberal, and that made John Roberts stand out among the other clerks.

"John's conservatism was in fact a sign of intellectual courage, coming out of Harvard and being surrounded by law clerks from mainly liberal, East Coast, Ivy institutions," said John A. Siliciano, a law professor at Cornell who clerked for Justice Thurgood Marshall at the same time.

His was "a very solid, rigorous, coherent view of very important social questions," Professor Siliciano said, "about the relations between courts and legislatures, about the relationship between the federal government and the state, between the public sphere and the private."

Fifteen of the 32 Supreme Court clerks in the 1980-81 term agreed to be interviewed about Mr. Roberts, including both of his fellow Rehnquist clerks. They offered a revealing portrait of an affable, ambitious and frankly conservative intellectual, much like his boss.

"John certainly was in sync with his justice," said Paul M. Smith, who clerked for Justice Lewis F. Powell Jr. and is now a lawyer in Washington who frequently appears before the Supreme Court.

At the most recent reunion of former Rehnquist clerks earlier this summer, Judge Roberts and several other former clerks played the chief justice in a humorous skit depicting various stages of his career, beginning with those long, Nixon-era sideburns and culminating in a white-haired man with a cane.

Mr. Roberts's clerkship was bookended by two shocks to the Supreme Court's system. The first was the publication in December 1979 of "The Brethren," an exposé of the court's inner workings by Bob Woodward and Scott Armstrong. The book relied heavily on indiscreet accounts by law clerks who had served in earlier years, which made the justices more cautious, several former clerks said.

When Mr. Roberts left a year later, the court was anticipating the arrival of Sandra Day O'Connor, the first female justice and the one Judge Roberts may now replace. The justices voted to drop the traditional reference to "Mr. Justice" in 1980.

But as far as Supreme Court terms go, Mr. Roberts served during a relatively routine one that included important cases on the First Amendment, federalism and sex discrimination, and ended with a notable affirmation of executive power.

At the time, Justice Rehnquist and Chief Justice Warren E. Burger represented the court's conservative wing. Justice Rehnquist, though, had begun to emerge as one of the court's intellectual leaders, intent on methodically moving his colleagues to the right. His influence grew when he became chief justice six years later.

Sprinkled through the arc of Judge Roberts's career, glimmers of Justice Rehnquist's influence can be detected, in memorandums the young clerk wrote at the time to decisions Judge Roberts, 50, has issued during his two years on the federal appeals court in Washington.

On the last day of the term in 1981, for instance, Justice Rehnquist wrote for a unanimous court to say that Presidents Carter and Reagan had the legal authority to nullify court orders and suspend private lawsuits as part of the agreement with Iran that ended the hostage crisis there. The decision, Dames & Moore v. Regan, took an exceptionally deferential view of executive power.

Judge Roberts cited the decision last year in an opinion accepting the Bush administration's position that it could block claims against Iraq from American soldiers who had been tortured there during the Persian Gulf war.

Few if any of the memorandums found so far from Mr. Roberts's clerkship shed much light on his political leanings. They are, if anything, concise and reliant on procedural points. They do, however, bear the dry wit that so many have cited in describing Mr. Roberts's writings and personality.

Most justices hired clerks who shared their views. But the Rehnquist clerks did not wear their politics on their sleeves, said Robert B. Knauss, a Los Angeles lawyer who also clerked for the justice that year.

"Frankly, the people that did were the liberal clerks, who were more out there, more aggressive, more, frankly, intolerant," Mr. Knauss said. "There were a few that were pretty aggressive that would try to come into the chambers and lobby you."

A Supreme Court clerkship is the ultimate legal status symbol, reserved for students of stunning intellectual horsepower. Almost all of the clerks who served with Mr. Roberts came from elite law schools - seven from Yale, five, including Mr. Roberts, from Harvard - and from prestigious lower-court clerkships.

And many would go on to enormous professional success, particularly in the academy. John E. Sexton, a clerk for Chief Justice Burger, is president of New York University. Michael W. McConnell, a clerk for Justice William J. Brennan Jr., was a noted law professor before he was appointed to the federal appeals court in Denver in 2002. Stephen L. Carter, a clerk for Justice Marshall, is now a law professor at Yale and a best-selling author.

But even in that group, Mr. Roberts stood out.

There were, Professor Siliciano said, two clerks he thought at the time might well end up on the Supreme Court. One was Mr. Carter, and the other was Mr. Roberts.

Only four former Supreme Court clerks have returned as justices: Byron R. White, who clerked for Fred M. Vinson; John Paul Stevens, who clerked for Wiley B. Rutledge; Stephen G. Breyer, who clerked for Arthur J. Goldberg; and Justice Rehnquist himself, who clerked for Robert H. Jackson.

The atmosphere in Justice Rehnquist's chambers was cozy and informal, but it was clear who ran the show, said Dean C. Colson, a Florida lawyer who was the third Rehnquist clerk in Mr. Roberts's year.

"This is a guy you didn't get anything by," Mr. Colson said of Justice Rehnquist. Referring to him by his current title, he added: "The chief would say: 'Here's the way I want to go. Here's the way I want it outlined. Here's the way I want it written.' And then he'd edit heavily."

The three clerks shared a small room with three desks, and the close quarters added to the intensity of the experience, Mr. Colson said. The justices worked harder in those days, deciding 138 cases on the merits in that term. In more recent years, the court has decided about 80 cases.

After Justice Rehnquist read the briefs in a case, he would poke his head into the clerks' office, Mr. Knauss recalled.

"He would point to one of us," Mr. Knauss said, "and say, 'I'd like to talk about such and such a case,' and we would go walking in the neighborhood and walk and talk about the case that would be argued in the next few days."

Clerks for other justices said they appreciated the wry humor than emanated from the Rehnquist clerks.

"I had the impression," said Robert Weisberg, a Stanford law professor who clerked for Justice Potter Stewart, "that they, with the permission and even encouragement of their boss, were prone to take a somewhat sardonic view of Chief Justice Burger's operation, which was pretty absurdly regal."

Justice Rehnquist let the clerks decide who would handle which case. They used a system similar to the NFL draft, but with a twist. The clerks could use a vote to claim a case or to reject one, all before knowing whether Justice Rehnquist would be assigned to write the majority opinion or decide to write a concurrence or dissent.

A clerk who did not vote carefully, Mr. Colson said, "could get stuck with a lot of tax cases."

Mr. Knauss and Mr. Colson declined to discuss the substance of the opinions Justice Rehnquist wrote that year or to say which clerks helped draft which decisions.

Much of the clerks' work consisted of summarizing the thousands of requests that the court receives each year to hear particular cases, known as petitions for writs of certiorari, or cert. petitions. In those days, five justices, including Justice Rehnquist, were part of a "cert. pool," meaning that a single clerk would write a "pool memo" for each case for all five justices. Other justices preferred to have their own clerks review every petition.

Mr. Colson estimated that each clerk in the pool produced 7 to 10 memorandums a week.

The memorandums Mr. Roberts wrote are in Justice Blackmun's papers at the Library of Congress, which were made public in 2004. They generally concern mundane topics, and he almost always concluded that the cases were unworthy of the court's attention.

But Mr. Roberts's memorandums stand out as terse, lucid and even elegant.

All through the fall of 1980, Mr. Roberts plowed through a huge range of cases, from an Osage Indian income tax dispute, to a complex cattle transaction, to a claim that a faulty search warrant had led to a cocaine conviction, to the validity of a lien for payment of repair of an aircraft propeller for a bankrupt airline, to the question of whether a hunting and fishing lodge owned by a foundry and used for entertaining customers was tax deductible. None of the cases made it to the court.

Some of the memorandums contain faint flashes of the sarcastic humor that Mr. Roberts would employ in internal communications in later years as a government lawyer. One of the "more modest claims" in a petition from the Christian-Bull Moose-Fighting Tiger Party, he wrote, "is that all the election laws of all the states are unconstitutional."

Twenty-five years after the clerkships ended, the memories that remain most distinct for many of Mr. Roberts's co-clerks involve basketball.

The Rehnquist clerks were a force to be reckoned with "on that horrific cement court above the library," recalled James J. Brudney, a law professor at Ohio State who clerked for Justice Blackmun. But Mr. Roberts brought more enthusiasm than skill to the game.

"He played an aggressive style of basketball that left other co-clerks with the bruises to show for it," Mr. Knauss said of Mr. Roberts.

Professor Brudney recalled that Mr. Colson was the best athlete in the group and so was not shy about shouting commands. When one of Mr. Roberts's shots went awry one afternoon, Professor Brudney said, "Dean Colson screamed 'way off!' to tell people where to position themselves."

That did not sit well with Mr. Roberts.

"You heard this somewhat meek but still assertive voice," Professor Brudney said, recalling Mr. Roberts's words: " 'Just "off" would have been sufficient.' "

Wednesday, July 27, 2005

Files From 80's Lay Out Stances of Bush Nominee - New York Times

Files From 80's Lay Out Stances of Bush Nominee - New York TimesJuly 27, 2005
Files From 80's Lay Out Stances of Bush Nominee

COLLEGE PARK, Md., July 26 - As a young lawyer in the Justice Department at the beginning of Ronald Reagan's presidency, John G. Roberts advocated judicial restraint on the issues of the day, many of which are still topical, documents released Tuesday by the National Archives show.

He defended, for instance, the constitutionality of proposed legislation to restrict the ability of federal courts to order busing to desegregate schools.

On other civil rights issues, he encouraged a cautious approach by courts and federal agencies in enforcing laws against discrimination.

Judge Roberts, now on the federal court of appeals for the District of Columbia Circuit, also argued that Congress had the constitutional power "to divest the lower federal courts of jurisdiction over school prayer cases."

In another memorandum, he maintained that the Supreme Court, to which he is now nominated, overreached when it denied states the authority to impose residency requirements for welfare recipients.

This was an example, he wrote, of the court's tendency to find fundamental rights, like the right to travel between states, for which there was no explicit basis in the Constitution. "It's that very attitude which we are trying to resist," he wrote.

The documents released on Tuesday were the files, about 14,000 pages in all, that Judge Roberts kept from September 1981 to November 1982, when he was special assistant to Attorney General William French Smith. Judge Roberts was 26 when he took the position, his first job after working as a clerk for William H. Rehnquist, then an associate justice on the Supreme Court.

In a memorandum, Judge Roberts noted that he had spent his first day at the Justice Department helping Sandra Day O'Connor prepare for her confirmation hearings. In a line that will perhaps resonate as his own Supreme Court confirmation hearings draw near, he wrote: "The approach was to avoid giving specific responses to any direct questions on legal issues likely to come before the court, but demonstrating in the response a firm command of the subject area and awareness of the relevant precedents and arguments."

David J. Mengel, a supervisor at the Archives, said the Justice Department reviewed the files over the weekend and copied some but did not remove any. He said the archivists deleted some personal information like home addresses and removed two documents altogether to protect grand jury secrecy and personal privacy. These files were cleared for release by the Clinton administration, but had received little attention before Judge Roberts's nomination to the Supreme Court one week ago.

Senator Arlen Specter, the Pennsylvania Republican who is chairman of the Judiciary Committee, received copies of the files from those years on Tuesday. Republicans and Democrats on the panel are at an impasse over the timetable for the confirmation hearings, and over access to other documents pertaining to Judge Roberts's government service.

Although Judge Roberts's stint at the Justice Department was brief, the new Republican administration was rethinking and changing many of the policies that had been established in the Carter administration and earlier. Judge Roberts then moved to the White House counsel's office, where he stayed until 1986. About 4,000 pages of Judge Roberts's files those years are available at the Ronald Reagan Presidential Library in Simi Valley, Calif. Judge Roberts's duties seemed to cut across many of the hottest matters before the Justice Department. He addressed a wide variety of issues in his memorandums and quoted the views of legal scholars ranging from Chief Justice John Marshall to Antonin Scalia, a law professor at the time who is now an associate justice on the Supreme Court.

In one handwritten memorandum, Judge Roberts suggested his view of how the Constitution should be interpreted, saying, "real courage would be to read the Constitution as it should be read," without attention to what outside commentators were writing.

On the matter of proposed legislation limiting the power of courts to order school busing, such a restriction would not have "an invidious discriminatory purpose," he wrote in a memorandum to Mr. Smith. "Indeed," he said, "the bill would protect all students from transportation to schools distant from their homes, irrespective of their race."

"We do not believe busing is necessary" to ensure equal educational opportunity, he declared.

Judge Roberts's views on abortion are not laid out in what he wrote in these years. But in October 1981, he attended a conference at the American Enterprise Institute on judicial power and observed that most of the participants "recognized a serious problem in the current exercise of judicial power" as illustrated "by what is broadly perceived to be the unprincipled jurisprudence of Roe v. Wade."

On civil rights laws, Judge Roberts recommended against an expansive approach to enforcement.

In December 1981, the United States Commission on Civil Rights issued a report broadly defending affirmative action as a way to combat pervasive discrimination. Judge Roberts wrote a blistering critique, saying the "obvious reason" affirmative action programs had failed was that they "required the recruiting of inadequately prepared candidates."

In a memorandum to the attorney general in August 1982, he expressed support for a federal district court decision limiting the reach of a law against sex discrimination in educational institutions receiving federal aid. Judge Roberts said the law, called Title IX, applied only to specific programs that received federal aid, not to the entire university that maintained the programs.

"Under Title IX federal investigators cannot rummage willy-nilly through institutions but can only go as far as the federal funds go," he wrote.

Such restraint is a theme that ran through much of Judge Roberts's work and was evident in some of his comments on judicial reasoning. In reviewing the decisions of one judge, for example, Judge Roberts criticized a tendency to decide issues that were ultimately irrelevant to the case.

Judge Roberts also worried about the ability of courts to cope with an ever-rising number of cases unworthy of judicial attention. In one memorandum, he strongly criticized what he called the overuse of the writ of habeas corpus, a legal procedure often employed to challenge criminal convictions.

He argued that the writs overwhelmed the courts, were "frequently frivolous" and made "a mockery of the entire criminal justice system." In later years, Congress did set limits on the use of habeas corpus.

In several memorandums, Judge Roberts displayed a shrewd understanding of how Washington works. Responding to a letter from the American Jewish Committee in 1981, he asked a supervisor, "Is this draft response O.K. - i.e., does it succeed in saying nothing at all?"

Robert Pear, Jonathan D. Glater, Glen Justice and Kristen Lee contributed reporting for this article.

Thursday, July 21, 2005

Final Exam Thursday July 28th at 12:30 pm or 2:00 pm

All students seekig to take the exam at 12:30pm on Thursday July 28th 2005 should first come by my office. Students taking the exam at 2:00pm should meet me in the classroom. Classes will be held as usual on Wednesday morning July 27th 2005.

Final Exam PodCasts Summer Semester 2005

Final Exam Review PodCasts Summer Semester 2005

Download these mp3 44.1 bps files to your
computer and listen to them in Microsoft
Windows Media Player on your desktop
computer or transfer it to your mp3 player.
        II)Essay Instructions PodCast

* This addendum clarifies some definitions
that I was not satisfied with after
I completed the the initial Podcast(I).

In Search of John Roberts - New York Times

In Search of John Roberts - New York TimesJuly 21, 2005
In Search of John Roberts

HERE is what liberals and conservatives can agree on about John Roberts, President Bush's first Supreme Court nominee: He is perhaps the most impressive Supreme Court advocate of his generation, extremely intelligent, thoughtful and able - a lawyer's lawyer. In a reasonable world, that should be enough to assure his confirmation with bipartisan enthusiasm. Unfortunately, Washington politics is anything but reasonable.

Judge Roberts takes pride in representing both sides of the political spectrum. He delighted environmental groups by convincing the Supreme Court that a freeze on development in an unspoiled part of Lake Tahoe didn't violate the private property rights of the affected landowners. He has argued for and against the constitutionality of affirmative action. For Mr. Roberts, the ability to "argue a case round or argue it flat," as the lawyers say, is a point of pride.

As both an appellate lawyer and an appellate judge, he earned the reputation of a legal craftsman who didn't come to cases with preconceived grand theories, but took positions based on the arguments and legal materials in each case.

Judge Roberts is, by all accounts, a very nice man: funny, humble and decent. He treats judges and litigants with a Jimmy Stewart-like courtesy. He sends notes to associates whose children are sick. His winning personality has raised the hopes of conservatives who understand that the most influential justices are those who work well with their colleagues.

But here is where conservatives and liberals may part company about John Roberts: Conservatives hope he will be a William Brennan of the right, using his intelligence and charm on behalf of his deeply conservative views to move the court far to the right of where it was under the moderate influence of Justice Sandra Day O'Connor; liberals fear that conservatives are correct.

Liberals worry that a Justice Roberts might take a narrow view of Congress's power to regulate the economy that would impose severe limitations on the regulatory state. And they fear that he would vote to overturn Roe v. Wade, because in 1990, when he was a deputy solicitor general, he signed a brief in an abortion-financing case that included a footnote calling for Roe to be overturned.

How can the Senate cast light on the question of whether Judge Roberts is a conservative ideologue with an agenda to transform the law or a conservative incrementalist who may surprise liberals and conservatives alike with his independence?

To begin with, senators should forget about the government briefs Mr. Roberts signed about Roe v. Wade, school prayer and other hot button issues. It's clearly not fair to hold him accountable for defending the George H. W. Bush administration's official positions. After all, that was, at the time, his job.

Instead, the Senate should explore Judge Roberts's judicial philosophy and temperament. He has been on the appellate court for only two years, however, so clues in his judicial record are necessarily sparse.

But based on his record throughout his career, he does not appear to be a rigid Constitutional "originalist" in the tradition of Justices Antonin Scalia and Clarence Thomas. These men believe that the Constitution should be strictly interpreted in light of its original understanding; they are willing (to different degrees) to overturn years of Supreme Court precedents in the name of constitutional fidelity.

Having spent decades arguing before courts rather than sitting on them, John Roberts has never embraced one grand legal theory to the exclusion of all others. On the contrary, he has been trained to cast a wide net in order to reach a convincing result. Inflexible originalism is a theory embraced by academics and crusaders, not practicing lawyers who must persuade judges of different stripes.

At the same time, Judge Roberts is not a former legislator - as was Justice O'Connor - and therefore he is not likely to be as willing to split every difference between liberals and conservatives. As an appellate lawyer forced to apply legal precedents, he was trained to believe that judges should provide clear answers to legal questions rather than keeping the country guessing.

So, are conservatives right to hope, and liberals right to fear, that as a justice, he would vote to overturn many of the 5-4 cases where Justice O'Connor sided with her more liberal colleagues? The best way for the senators to find an answer to this question is to explore Judge Roberts's view of precedents, which the lawyers call stare decisis, or "let the decision stand."

In the confirmation hearings for his appellate judgeship, Mr. Roberts said he was bound to apply the Supreme Court's precedents. That was a good answer at the time, but it is no longer terribly relevant: as a Supreme Court justice, he would be free to overturn the court's earlier rulings. Would he read precedents broadly or narrowly? And under what circumstances might he vote to uphold precedents with which he disagrees?

The truth is that Judge Roberts probably doesn't have a well-thought-out theory of stare decisis. As an appellate lawyer and judge, he had no need or occasion to develop one.

IN fact, very few Supreme Court justices have developed a theory of stare decisis that is entirely satisfying. At one extreme there is Justice Thomas, who, according to his colleague Justice Scalia, is willing to overturn any precedent he thinks is inconsistent with the original understanding of the Constitution. At another extreme have been justices like John Marshall Harlan, who, in the name of judicial continuity, are very reluctant to overturn precedents, even those with which they disagree.

Perhaps one clue to Judge Roberts's leanings on the force of precedents can be found in the outlook of one of his judicial heroes, Henry Friendly, an appellate judge for whom he became a clerk in 1979. Friendly was famously cautious, a man devoted to incremental rather than radical legal change. It might be illuminating for the senators to ask Judge Roberts what he admired about Friendly, and why.

Another potentially fruitful line of questioning might center on Judge Roberts's views about the scope of Congress's power to regulate the environment and the economy.

As an appellate judge, his record on this crucial issue has been indistinct. In one case, he took an expansive view of Congress's power to condition the receipt of public funds on an agency's promise not to discriminate. In another, he took a much more restrictive view of Congress's power to regulate the environment. Some of his comments suggest that he thinks the court is correct to strike down federal laws on rare occasions, but that he may be unlikely to try to resurrect what some conservatives call "the Constitution in exile," overturning decades of precedents and dismantling the regulatory state root and branch.

While it is appropriate for senators to ask Judge Roberts about specific cases, they might get him to reveal more of himself if they asked him about his vision of the role of the courts in democracy. When I interviewed him three years ago, I was impressed with his reverence for the law as something distinct from politics, his belief that courts should operate according to independent ideals of professionalism and neutrality, and, most of all, his apparent lack of anger, which sometimes mars the opinions of Justices Scalia and Thomas.

If his confirmation hearings confirm this impression, Judge Roberts may prove to be not only a great justice, but one whom principled liberals can embrace with gratitude and relief.

Jeffrey Rosen is a law professor at George Washington University and the legal affairs editor at The New Republic.

Time for a Federal Shield Law - New York Times

Time for a Federal Shield Law - New York TimesJuly 21, 2005
Time for a Federal Shield Law

It was immensely encouraging to see Republican and Democratic lawmakers testify together yesterday about the need for the federal government to follow the lead of 49 states and guarantee that journalists are allowed the right to protect the names of confidential sources in most circumstances. Two Republicans, Senator Richard Lugar and Representative Mike Pence of Indiana, and Senator Christopher Dodd, Democrat of Connecticut, spoke eloquently about the role of a free press in a democracy. They have also shown that drafting a responsible shield law is not as hard as some critics say. Just this week, they amended bills pending in both houses of Congress to address the government's concern that the rights of reporters should not override the security of the nation when it faces an imminent threat.

But the day's testimony was also disturbing. Witnesses spoke of the dozens of subpoenas that have been issued to journalists in recent times and the half-dozen or more reporters who have been found to be in contempt of court for doing their jobs - some journalists, like Judith Miller of The Times, have actually been jailed. As Mr. Dodd pointed out, the idea that jailing reporters will inhibit journalism is not a theoretical worry. Norman Pearlstine, editor in chief of Time Inc., testified yesterday that since his decision to turn over notes in the Valerie Wilson case to the federal prosecutor, Time reporters had shown him mail "from valuable sources who insisted that they no longer trusted the magazine." The Cleveland Plain Dealer has announced it will not publish two investigative reports because they are based on leaked documents and the paper fears the possibility of subpoenas. Its editor said, "Jail is too high a price to pay." We regret that decision, but it should at least ring alarm bells for Congress.

The amendments added this week to bills before the Senate and the House would provide for the forced disclosure of confidential sources "to prevent imminent and actual harm to the national security." It is a narrow exception that journalists should support, because as William Safire, the retired Times columnist, testified yesterday, "We are not seeking an absolute privilege." We second Mr. Safire's caution that an imminent threat means an actual and urgent threat, not a potential threat.

Mr. Safire and the other witnesses deftly refuted the arguments that have been used to cloud the debate. There is no case on record, for example, of a newspaper's claiming the right to protect a violent criminal. Nor is there any reason to believe that a journalistic privilege would hamper prosecutions any more than the privileges already granted to doctors, psychiatrists, lawyers and spouses. There is no case on record where prosecutions have not been brought or have failed because of shield laws in states where such laws - including many providing absolute protection - have been on the books for decades.

We wish the Justice Department had shown enough interest to send a witness to this important hearing at the Senate Judiciary Committee. But there should be no doubts left about bipartisan support for a federal shield law, or about the practicality of drafting one that protects both a vital institution of democracy and national security. Congress, which has managed to consider pork-barrel spending and corporate giveaways, should be able to find the time to pass such a vital law in this session.

An Interview by, Not With, the President - New York Times

An Interview by, Not With, the President - New York TimesJuly 21, 2005
An Interview by, Not With, the President

WASHINGTON, July 20 - When President Bush sat down in the White House residence last Thursday to interview a potential Supreme Court nominee, Judge J. Harvie Wilkinson III of the United States Court of Appeals for the Fourth Circuit, he asked him about the hardest decision he had ever made - and also how much he exercised.

"Well, I told him I ran three and a half miles a day," Judge Wilkinson recalled in a telephone interview on Wednesday. "And I said my doctor recommends a lot of cross-training, but I said I didn't want to do the elliptical and the bike and the treadmill." The president, Judge Wilkinson said, "took umbrage at that," and told his potential nominee that he should do the cross-training his doctor suggested.

"He thought I was well on my way to busting my knees," said Judge Wilkinson, 60. "He warned me of impending doom."

Judge Wilkinson's conversation with the president about exercise and other personal matters in an interview for a job on the highest court in the land was typical of how Mr. Bush went about picking his eventual nominee, Judge John G. Roberts, White House officials and Republicans said. Mr. Bush, they said, looked extensively into the backgrounds of the five finalists he interviewed, but in the end relied as much on chemistry and intuition as on policy and legal intellect.

"He likes to have the info, he likes to have the background, but he also is a field player," said Dan Bartlett, the counselor to the president, in a briefing to reporters on Tuesday night. "He likes to size people up himself, make his own judgment."

White House officials and Republicans said Mr. Bush, who prides himself on his instincts about people, had clicked with Judge Roberts and what a friend calls his Midwestern "regular guy" demeanor in an hourlong interview in the White House on Friday, the day after the president met in the same setting with Judge Wilkinson. But Mr. Bush was particularly impressed, Mr. Bartlett said, with the judge's "impeccable credentials" from Harvard College and Harvard Law School and his record of arguing 39 cases before the Supreme Court.

Equally important, Republicans close to the White House said, Mr. Bush knew that Judge Roberts was acceptable to conservatives but came with such a sterling résumé and ties to Washington's establishment that Democrats would find it hard to go on the attack. "For the last 15 years, he's been in the talent pool for where you start to look for a Supreme Court nominee," said C. Boyden Gray, the White House counsel to Mr. Bush's father and the chairman of the Committee for Justice, an organization he formed three years ago to lobby for the president's judicial nominees.

Mr. Bush also conducted an additional interview on Friday and two on Saturday. Republicans close to the administration said they thought the interviews were with three other federal appellate judges: Edith Brown Clement, Edith H. Jones and J. Michael Luttig. White House officials would not disclose the names of the also-rans, but Mr. Bartlett told reporters that Mr. Bush's interviews had included women.

As is Mr. Bush's style, the interviews he conducted with Judge Roberts and Judge Wilkinson focused heavily on the upbringing of the two men. "He wanted to know about his personal life and about where he came from," Mr. Bartlett said of Mr. Bush's interview with Judge Roberts, noting that the judge had been president of his high school class and also captain of the football team.

Judge Wilkinson said he was not asked about his views on issues like abortion or even a particular legal case in his interview with Mr. Bush as well as in interviews with others on the White House staff; he would not say if he had talked to Vice President Dick Cheney. "I wasn't crowded in any way," Judge Wilkinson said. "There was no litmus test applied." Scott McClellan, the White House press secretary, said in a briefing on Wednesday that neither Mr. Bush nor White House staff members asked any of the finalists about their positions on issues.

Neither Judge Wilkinson nor any one at the White House would shed light on Wednesday on why Mr. Bush had not selected a woman for the job, particularly after his wife, Laura Bush, had said that was her wish. The first lady's comments were interpreted by Republicans as a reflection of Mr. Bush's thinking, which fed a daylong frenzy of rumors on Tuesday that Judge Clement in New Orleans was the president's pick. A woman who answered the phone in Judge Clements' chambers on Wednesday would only say that the judge was not available, then hung up.

But retiring Justice Sandra Day O'Connor quickly weighed in on the president's nomination for her replacement, calling Judge Roberts "good in every way, except he's not a woman." Justice O'Connor made the comments in an interview on Tuesday after a fly-fishing trip with the outdoor editor of The Spokane Spokesman-Review, where she was also quoted as saying that she was almost sure Mr. Bush would not appoint a woman to replace William H. Rehnquist because she did not think he would want a woman as chief justice.

"So that almost assures that there won't be a woman appointed to the court at this time," Justice O'Connor said.

Former Senator John Breaux, a centrist Democrat from Louisiana, the home state of Judge Clement, said the rumors got so out of hand on Tuesday that people in New Orleans informed him that Judge Clement was on a plane bound for Washington, with her next stop presumably the White House.

In an interview on Wednesday, Mr. Breaux speculated that Judge Clement might never have been a real candidate. "Maybe they were all along working on Roberts and they misled everybody," Mr. Breaux said. Mr. McClellan, the White House press secretary, countered later on Wednesday that the administration had never sent out signals that Judge Clement was the pick.

What is clear is that Mr. Bush made up his mind only hours before he called Judge Roberts on Tuesday at 12:35 p.m. to offer him the job. He told only a handful of people before he picked up the phone, an administration official said, and asked them to tell no one else. Only after the call was made did Mr. Bush inform the other senior members of the White House staff.

By 7:30 p.m. on Tuesday, as Mr. Bush was informing important members of the Senate before his 9 p.m. televised announcement, Karl Rove, the president's political adviser, was calling key conservatives to tell them that Judge Roberts was the pick. One of Mr. Rove's first calls was a conference call with Mr. Gray; Leonard Leo, the executive vice president of the Federalist Society and the head of Catholic outreach for the Republican Party; Jay Sekulow, the chief counsel of the American Center for Law and Justice, an evangelical group; and former Attorney General Edwin Meese III of the Heritage Foundation.

Mr. Sekulow and Mr. Leo were part of an outreach team of lawyers assembled by the White House to push Mr. Roberts with conservative groups. Both said on Wednesday that they had known Judge Roberts for years and attested to his conservatism with others in the movement.

Judge Wilkinson said on Wednesday that Mr. Bush had given him an extensive tour of the family quarters of the White House, including the Lincoln bedroom and a handwritten copy of the Gettysburg Address. "He just could not have been more gracious," he said.

Judge Wilkinson said he could offer no insight into how the president made the decision that he did, but he did say that "I was given a good shot, and you just can't find a better person or a better judge than John Roberts."

David D. Kirkpatrick contributed reporting for this article.

Wednesday, July 20, 2005

The Boondocks 7-20-5 Is this appropriation? Is this defamation? Posted by Picasa

Tuesday, July 19, 2005

President Chooses Conservative Judge as Nominee to Court - New York Times

President Chooses Conservative Judge as Nominee to Court - New York TimesPresident Chooses Conservative Judge as Nominee to Court

WASHINGTON, July 19 - President Bush is nominating John G. Roberts Jr., a conservative federal appellate judge from Washington, D.C., to the first vacancy on the Supreme Court in 11 years.

President Bush was to announce the selection of Judge Roberts, who sits on the United States Court of Appeals for the District of Columbia Circuit, on television at 9 p.m. But news of the selection leaked out in advance of the White House ceremony.

News of Judge Roberts's selection came at the end of a day of whirlwind speculation that, for several hours, had put Judge Edith Brown Clement of the federal appeals court in New Orleans, then Judge J. Michael Luttig of the federal appeals court in Richmond, Va., at or near the top of the list of candidates.

Judge Roberts, 50, once clerked for Chief Justice William H. Rehnquist when the chief was an associate justice and is viewed as one of the more accomplished lawyers to argue before the Supreme Court, having won more than two dozen cases before becoming a judge.

The judge has been on the Court of Appeals for the D.C. Circuit since May 2003. That court has often been a springboard for the Supreme Court; indeed, three current members of the high court, Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg, were once on the D.C. Circuit.

Mr. Bush had playfully deflected questions earlier in the day about whom he might choose, telling reporters as he has many times before that he would pick a jurist "who will not legislate from the bench."

If confirmed, Judge Roberts might tilt the balance of the court rightward. Justice O'Connor, who has been on the tribunal for 24 years and was the first woman on the Supreme Court, was widely regarded as a swing justice between the liberal and conservative blocs.

The nominee will now undergo a background investigation. Then his nomination will be considered by the Senate Judiciary Committee, whose chairman, Senator Arlen Specter of Pennsylvania, has said he wants to schedule hearings by late August or September.

If recent history is a guide, the nominee will be questioned extensively about his views on divisive social issues, especially abortion. Republicans have a 10-to-8 advantage on the Judiciary Committee, and they have 55 seats in the Senate, so chances for confirmation would appear to be good - unless the nominee's views arouse enough opposition to inspire a Democratic filibuster.

Nor can opposition from conservatives be entirely ruled out. While Judge Roberts is viewed as a conservative, has yet to rule on any major abortion case. Consequently, some conservatives have worried that he could be "another Souter."

Justice David H. Souter, installed on the Supreme Court in 1990 by the first President Bush, has been more liberal than some conservatives had expected, to their great consternation. Many conservatives have never shed their bitterness from the Senate's 1987 rejection of Judge Robert H. Bork's nomination to the Supreme Court.

While it can be dicey to speculate on how the confirmation debate will unfold, it will not be surprising if some people in and out of Washington express disappointment that the president did not choose another woman to replace Justice O'Connor, or perhaps use the vacancy to nominate the first Hispanic justice.

Judge Roberts was born in Buffalo and graduated summa cum laude from Harvard. He was a magna cum laude graduate of Harvard Law School. He was a clerk for Judge Henry J. Friendly of the Court of Appeals for the Second Circuit in 1980 and 1981 before working for Justice Rehnquist.

Earlier in the day, Mr. Bush had been coy about when he might announce his choice.

"I'm comfortable with where we are in the process," Mr. Bush said at a news conference, adding that he has been interviewing candidates "from different walks of life," some of whom he knows well and others with whom he is less familiar.

Republicans close to the White House said in recent days that a leading candidate for the position was Judge Clement of the United States Court of Appeals for the Fifth Circuit, in New Orleans. The president declined to answer directly when asked whether he thought it important to select a woman to replace the retiring Justice O'Connor.

Groping momentarily for words, Mr. Bush said he was trying for a reply "that sounds profound to you without actually answering your question." Turning more serious, he reiterated his position that he wants a jurist "who will not legislate from the bench."

"I'll let you know when I'm ready to tell you about it," the president said at a question-and-answer session with Prime Minister John Howard of Australia.

Administration officials said on Monday that that the selection process was moving far faster than they had expected. They also said that Mr. Bush's remarks on Monday morning in an East Room news conference, in which the president suggested that he would take more time to interview candidates, did not rule out a quick announcement.

A Republican with close ties to the administration said that Judge Clement was interviewed as a potential nominee at the White House about a month ago, when the administration was preparing for the possible retirement of Chief Justice Rehnquist. Since then, Justice O'Connor has announced that she will step down while Chief Justice Rehnquist, who has thyroid cancer, has said that he will remain on the job as long as his health permits.

David Stout contributed reporting for this article.



Jul 19 2005

Dad's rollicking inspired champ

By David Mccarthy

TIGER WOODS' father once called him a disgrace for quitting on the course How the rest of the world's golfers must wish Earl Woods had kept his mouth shut the day he delivered a rollicking his 13-year-old son never forgot.

For that was the last time Woods failed to give his all with a club in his hands.

And his refusal to quit and desire to become a better golfer every day have fuelled a career in which Woods has bagged a milestone 10 Majors five and half months short of his 30th birthday.

Coach Hank Haney has been credited with changing the world No.1's swing over the past year.

Woods used it to deadly effect at St Andrews last week to win his second Open at the Fife links.

But 50-year-old Texan Haney believes Tiger's father has had a much bigger influence.

He said: 'The thing that amazes me most about Tiger is he has absolutely no quit in him. None.

'Last year at Tiger's wedding I had a chance to talk to his father and asked how he instilled that in him.

'Earl traced it to a junior tournament on Tiger's 13th birthday. Even then people knew who Tiger Woods was - the gallery sang Happy Birthday to him on the first tee.

'Tiger proceeded to play poorly, and in full view of everyone he began pouting, whining and slapping the ball around the course.

'Earl took him into the snack bar after the round, locked the door and they had a little talk.

'He told Tiger his behaviour was a disgrace and reminded him the game didn't owe him anything, the course didn't owe him anything and he, Earl, sure didn't owe him anything.

'He told him pouting and whining were just other forms of quitting. Earl said Tiger didn't talk to him on the flight home and gave him the silent treatment for two days after that.

'On the third day Tiger told him, 'Pop, I heard every word you said. I promise I'll never quit again,' and he never has.

'Tiger has 42 career victories and more than 100 top-10 finishes but it's his record cut streak that shows best of all that he never quits.

'Earl Woods, in my opinion, has done the greatest job in coaching anyone has done in the history of sport.

'That's the reason I told Tiger to never refer to me as his coach-I'm just a friend who helps him out once in a while with his swing. Tiger's parents, Earl and Tida, are his coaches, and they've done a remarkable job.'

Haney went on to send out a message that should induce a shudder in the rest by insisting Woods is nowhere near satisfied he is playing as well as he can.

He said: 'He keeps getting better and better and better. He basically works 12 hours a day, working out and practising. Not just in the run-up to tournaments, all the time.

'But I don't think he'll ever get to where he wants to be. He is always going to want to keep getting better.

'He had knee surgery and now the knee is stronger than ever. He's never had back problems and he spends two hours a day in the gym trying to make himself stronger.

'It's hard to get him to take a day off and that's what gives him an edge. He's a man who doesn't tire.

'All the talk is about Vijay Singh being the hardest worker in the game but if he works harder than Tiger, he's found a way of putting more than 24 hours into a day.'

Haney hooked up with Woods after spending years coaching Tiger's best mate Mark O'Meara.

He believes it was only a matter of time before the game's top player put on the kind of show that thrilled the 200,000 fans who visited St Andrews last week.

Haney said: 'The way he was striking the ball, I told him the only way he wouldn't come home with the trophy was if he didn't spend enough time on his putting.

'He took his game to another level last week. He's had that other level on the driving range for some time and now he is finally trusting it on the golf course.

'Golfers come into their prime in their 30s so there's no reason why he won't keep getting better. There's a very good chance he can get to Jack Nicklaus' record of 18 Majors.

'Tiger will continue into his 40s because he's the most motivated man I know.'

Haney's words echo Woods' own after his win on Sunday.

The champion cuddled the Claret Jug and said: 'The drive is always to get better. You can always get better, no matter what.

'You never get there - that's the fun of it. No matter how well you play, you can always play better. That's what makes it exciting the next day.'

If you were at St Andrews and thought you heard thunder rumble about 8pm on Sunday, it wasn't.

It was merely the collective groan from Singh, Woods, Monty, Mickelson, Goosen and the rest.

Woods is going nowhere. And while he's around, they'll be going nowhere either

Monday, July 11, 2005

The New York Times > Books > Sunday Book Review > 'The World Is Flat': The Wealth of Yet More Nations

The New York Times > Books > Sunday Book Review > 'The World Is Flat': The Wealth of Yet More Nations The New York Times
May 1, 2005
'The World Is Flat': The Wealth of Yet More Nations
A Brief History of the Twenty-First Century.
By Thomas L. Friedman.
488 pp. Farrar, Straus & Giroux. $27.50.

OVER the past few years, the United States has been obsessed with the Middle East. The administration, the news media and the American people have all been focused almost exclusively on the region, and it has seemed that dealing with its problems would define the early decades of the 21st century. ''The war on terror is a struggle that will last for generations,'' Donald Rumsfeld is reported to have said to his associates after 9/11.

But could it be that we're focused on the wrong problem? The challenge of Islamic terrorism is real enough, but could it prove to be less durable than it once appeared? There are some signs to suggest this. The combined power of most governments of the world is proving to be a match for any terror group. In addition, several of the governments in the Middle East are inching toward modernizing and opening up their societies. This will be a long process but it is already draining some of the rage that undergirded Islamic extremism.

This doesn't mean that the Middle East will disappear off the map. Far from it. Terrorism remains a threat, and we will all continue to be fascinated by upheavals in Lebanon, events in Iran and reforms in Egypt. But ultimately these trends are unlikely to shape the world's future. The countries of the Middle East have been losers in the age of globalization, out of step in an age of free markets, free trade and democratic politics. The world's future -- the big picture -- is more likely to be shaped by the winners of this era. And if the United States thought it was difficult to deal with the losers, the winners present an even thornier set of challenges. This is the implication of the New York Times columnist Thomas L. Friedman's excellent new book, ''The World Is Flat: A Brief History of the Twenty-First Century.''

The metaphor of a flat world, used by Friedman to describe the next phase of globalization, is ingenious. It came to him after hearing an Indian software executive explain how the world's economic playing field was being leveled. For a variety of reasons, what economists call ''barriers to entry'' are being destroyed; today an individual or company anywhere can collaborate or compete globally. Bill Gates explains the meaning of this transformation best. Thirty years ago, he tells Friedman, if you had to choose between being born a genius in Mumbai or Shanghai and an average person in Poughkeepsie, you would have chosen Poughkeepsie because your chances of living a prosperous and fulfilled life were much greater there. ''Now,'' Gates says, ''I would rather be a genius born in China than an average guy born in Poughkeepsie.''

The book is done in Friedman's trademark style. You travel with him, meet his wife and kids, learn about his friends and sit in on his interviews. Some find this irritating. I think it works in making complicated ideas accessible. Another Indian entrepreneur, Jerry Rao, explained to Friedman why his accounting firm in Bangalore was able to prepare tax returns for Americans. (In 2005, an estimated 400,000 American I.R.S. returns were prepared in India.) ''Any activity where we can digitize and decompose the value chain, and move the work around, will get moved around. Some people will say, 'Yes, but you can't serve me a steak.' True, but I can take the reservation for your table sitting anywhere in the world,'' Rao says. He ended the interview by describing his next plan, which is to link up with an Israeli company that can transmit CAT scans via the Internet so that Americans can get a second opinion from an Indian or Israeli doctor, quickly and cheaply.

What created the flat world? Friedman stresses technological forces. Paradoxically, the dot-com bubble played a crucial role. Telecommunications companies like Global Crossing had hundreds of millions of dollars of cash -- given to them by gullible investors -- and they used it to pursue incredibly ambitious plans to ''wire the world,'' laying fiber-optic cable across the ocean floors, connecting Bangalore, Bangkok and Beijing to the advanced industrial countries. This excess supply of connectivity meant that the costs of phone calls, Internet connections and data transmission declined dramatically -- so dramatically that many of the companies that laid these cables went bankrupt. But the deed was done, the world was wired. Today it costs about as much to connect to Guangdong as it does New Jersey.

The next blow in this one-two punch was the dot-com bust. The stock market crash made companies everywhere cut spending. That meant they needed to look for ways to do what they were doing for less money. The solution: outsourcing. General Electric had led the way a decade earlier and by the late 1990's many large American companies were recognizing that Indian engineers could handle most technical jobs they needed done, at a tenth the cost. The preparations for Y2K, the millennium bug, gave a huge impetus to this shift since most Western companies needed armies of cheap software workers to recode their computers. Welcome to Bangalore.

A good bit of the book is taken up with a discussion of these technological forces and the way in which business has reacted and adapted to them. Friedman explains the importance of the development of ''work flow platforms,'' software that made it possible for all kinds of computer applications to connect and work together, which is what allowed seamless cooperation by people working anywhere. ''It is the creation of this platform, with these unique attributes, that is the truly important sustainable breakthrough that has made what you call the flattening of the world possible,'' Microsoft's chief technology officer, Craig J. Mundie, told Friedman.

Friedman has a flair for business reporting and finds amusing stories about Wal-Mart, UPS, Dell and JetBlue, among others, that relate to his basic theme. Did you know that when you order a burger at the drive-through McDonald's on Interstate 55 near Cape Girardeau, Mo., the person taking your order is at a call center 900 miles away in Colorado Springs? (He or she then zaps it back to that McDonald's and the order is ready a few minutes later as you drive around to the pickup window.) Or that when you call JetBlue for a reservation, you're talking to a housewife in Utah, who does the job part time? Or that when you ship your Toshiba laptop for repairs via UPS, it's actually UPS's guys in the ''funny brown shorts'' who do the fixing?

China and India loom large in Friedman's story because they are the two big countries benefiting most from the flat world. To take just one example, Wal-Mart alone last year imported $18 billion worth of goods from its 5,000 Chinese suppliers. (Friedman doesn't do the math, but this would mean that of Wal-Mart's 6,000 suppliers, 80 percent are in one country -- China.) The Indian case is less staggering and still mostly in services, though the trend is dramatically upward. But Friedman understands that China and India represent not just threats to the developed world, but also great opportunities. After all, the changes he is describing have the net effect of adding hundreds of millions of people -- consumers -- to the world economy. That is an unparalleled opportunity for every company and individual in the world.

Friedman quotes a Morgan Stanley study estimating that since the mid-1990's cheap imports from China have saved American consumers over $600 billion and probably saved American companies even more than that since they use Chinese-sourced parts in their production. And this is not all about cheap labor. Between 1995 and 2002, China's private sector has increased productivity at 17 percent annually -- a truly breathtaking pace.

Friedman describes his honest reaction to this new world while he's at one of India's great outsourcing companies, Infosys. He was standing, he says, ''at the gate observing this river of educated young people flowing in and out. . . . They all looked as if they had scored 1600 on their SAT's. . . . My mind just kept telling me, 'Ricardo is right, Ricardo is right.' . . . These Indian techies were doing what was their comparative advantage and then turning around and using their income to buy all the products from America that are our comparative advantage. . . . Both our countries would benefit. . . . But my eye kept . . . telling me something else: 'Oh, my God, there are just so many of them, and they all look so serious, so eager for work. And they just keep coming, wave after wave. How in the world can it possibly be good for my daughters and millions of other young Americans that these Indians can do the same jobs as they can for a fraction of the wages?' ''

He ends up, wisely, understanding that there's no way to stop the wave. You cannot switch off these forces except at great cost to your own economic well-being. Over the last century, those countries that tried to preserve their systems, jobs, culture or traditions by keeping the rest of the world out all stagnated. Those that opened themselves up to the world prospered. But that doesn't mean you can't do anything to prepare for this new competition and new world. Friedman spends a good chunk of the book outlining ways that America and Americans can place themselves in a position to do better.

People in advanced countries have to find ways to move up the value chain, to have special skills that create superior products for which they can charge extra. The UPS story is a classic example of this. Delivering goods doesn't have high margins, but repairing computers (and in effect managing a supply chain) does. In one of Friedman's classic anecdote-as-explanation shticks, he recounts that one of his best friends is an illustrator. The friend saw his business beginning to dry up as computers made routine illustrations easy to do, and he moved on to something new. He became an illustration consultant, helping clients conceive of what they want rather than simply executing a drawing. Friedman explains this in Friedman metaphors: the friend's work began as a chocolate sauce, was turned into a vanilla commodity, through upgraded skills became a special chocolate sauce again, and then had a cherry put on top. All clear?

Of course it won't be as easy as that, as Friedman knows. He points to the dramatic erosion of America's science and technology base, which has been masked in recent decades by another aspect of globalization. America now imports foreigners to do the scientific work that its citizens no longer want to do or even know how to do. Nearly one in five scientists and engineers in the United States is an immigrant, and 51 percent of doctorates in engineering go to foreigners. America's soaring health care costs are increasingly a burden in a global race, particularly since American industry is especially disadvantaged on this issue. An American carmaker pays about $6,000 per worker for health care. If it moves its factory up to Canada, where the government runs and pays for medical coverage, the company pays only $800. Most of Friedman's solutions to these kinds of problems are intelligent, neoliberal ways of using government in a market-friendly way to further the country's ability to compete in a flat world.

There are difficulties with the book. Once Friedman gets through explicating his main point, he throws in too many extras -- perhaps trying to make that chocolate sundae -- making the book seem slightly padded. The process of flattening that he is describing is in its infancy. India is still a poor third-world country, but if you read this book you would assume it is on the verge of becoming a global superstar. (Though as an Indian-American, I read Friedman and whisper the old Jewish saying, ''From your lips to God's ears.'') And while this book is not as powerful as Friedman's earlier ones -- it is, as the publisher notes, an ''update'' of ''The Lexus and the Olive Tree'' -- its fundamental insight is true and deeply important.

In explaining this insight and this new world, Friedman can sometimes sound like a technological determinist. And while he does acknowledge political factors, they get little space in the book, which gives it a lopsided feel. I would argue that one of the primary forces driving the flat world is actually the shifting attitudes and policies of governments around the world. From Brazil to South Africa to India, governments are becoming more market-friendly, accepting that the best way to cure poverty is to aim for high-growth policies. This change, more than any other, has unleashed the energy of the private sector. After all, India had hundreds of thousands of trained engineers in the 1970's, but they didn't produce growth. In the United States and Europe, deregulation policies spurred the competition that led to radical innovation. There is a chicken-and-egg problem, to be sure. Did government policies create the technological boom or vice versa? At least one can say that each furthered the other.

The largest political factor is, of course, the structure of global politics. The flat economic world has been created by an extremely unflat political world. The United States dominates the globe like no country since ancient Rome. It has been at the forefront, pushing for open markets, open trade and open politics. But the consequence of these policies will be to create a more nearly equal world, economically and politically. If China grows economically, at some point it will also gain political ambitions. If Brazil continues to surge, it will want to have a larger voice on the international stage. If India gains economic muscle, history suggests that it will also want the security of a stronger military. Friedman tells us that the economic relations between states will be a powerful deterrent to war, which is true if nations act sensibly. But as we have seen over the last three years, pride, honor and rage play a large part in global politics.

The ultimate challenge for America -- and for Americans -- is whether we are prepared for this flat world, economic and political. While hierarchies are being eroded and playing fields leveled as other countries and people rise in importance and ambition, are we conducting ourselves in a way that will succeed in this new atmosphere? Or will it turn out that, having globalized the world, the United States had forgotten to globalize itself?

Fareed Zakaria, the editor of Newsweek International and author of ''The Future of Freedom,'' is the host of a new current affairs program on public television, Foreign Exchange.

Unnecessary Powers - New York Times

Unnecessary Powers - New York TimesJuly 11, 2005
Unnecessary Powers

The Patriot Act already gives government too much power to spy on ordinary Americans, but things could get far worse. Congress is considering adding a broad new investigative power, known as the administrative subpoena, that would allow the Federal Bureau of Investigation to gain access to anyone's financial, medical, employment and even library records without approval from a judge and even without the target knowing about it. Members of Congress should block this disturbing provision from becoming law.

The Senate is at work on a bill to reauthorize parts of the Patriot Act that are scheduled to expire later this year. In addition to extending those provisions, the Senate Intelligence Committee is proposing to add an array of new "investigative tools." The administrative subpoena is not the only one of the new provisions of the current bill that would endanger civil liberties, but it is the worst.

When the F.B.I. wants access to private records about an individual, it ordinarily needs to get the approval of a judge or a grand jury. The proposed new administrative subpoena power would allow the F.B.I. to call people in and force them to produce records on its own authority, without approval from the judicial branch. This kind of secret, compelled evidence not tied to any court is incompatible with basic American principles of justice. It would also make it far easier for the F.B.I. to go off on fishing expeditions.

The bill would allow the F.B.I. to order that the subpoenas be kept secret. That means record holders, like banks or employers, would not be able to inform the person whose private information was being handed over. It would also make it difficult for Congress, and the public, to know whether the F.B.I. was abusing its enormous new powers.

Defenders of the bill argue that a subpoena could still be challenged in court, but this is a hollow right. In many cases, the person whose records would be turned over - who has the greatest incentive to fight the subpoena - would not know what was going on. The record holder, who would be in a position to challenge the subpoena, may have little incentive to spend the money and time to do so.

The bill's defenders note that administrative subpoenas are already allowed in other kinds of investigations. But these are generally in highly regulated areas, like Medicaid billing. The administrative subpoena power in the new bill would apply to anything the F.B.I. deemed related to alleged foreign intelligence or terrorism, and could, in practice, give the F.B.I. access to almost any private records it wanted.

The proposed new administrative subpoena power is a solution in search of a problem. In testimony before Congress, the F.B.I. could not point to examples of national security investigations that were deterred by its lack of administrative subpoena power.

There could be a case that the F.B.I. should have this power in true emergencies, but that would require a very narrowly drawn provision that applied only in exigent circumstances. The Senate is considering something far more sweeping and dangerous: giving the F.B.I. an open-ended license to invade the privacy of ordinary Americans.

Saturday, July 09, 2005

We're Not in Watergate Anymore - New York Times

We're Not in Watergate Anymore - New York TimesJuly 10, 2005
We're Not in Watergate Anymore

WHEN John Dean published his book "Worse Than Watergate" in the spring of 2004, it seemed rank hyperbole: an election-year screed and yet another attempt by a Nixon alumnus to downgrade Watergate crimes by unearthing worse "gates" thereafter. But it's hard to be dismissive now that my colleague Judy Miller has been taken away in shackles for refusing to name the source for a story she never wrote. No reporter went to jail during Watergate. No news organization buckled like Time. No one instigated a war on phony premises. This is worse than Watergate.

To start to see why, forget all the legalistic chatter about shield laws and turn instead to "The Secret Man," Bob Woodward's new memoir about life with Deep Throat. The book arrived in stores just as Judy Miller was jailed, as if by divine intervention to help illuminate her case.

Should a journalist protect a sleazy, possibly even criminal, source? Yes, sometimes, if the public is to get news of wrongdoing. Mark Felt was a turncoat with alternately impenetrable and self-interested motives who betrayed the F.B.I. and, in Mr. Woodward's words, "lied to his colleagues, friends and even his family." (Mr. Felt even lied in his own 1979 memoir.) Should a journalist break a promise of confidentiality after, let alone before, the story is over? "It is critical that confidential sources feel they would be protected for life," Mr. Woodward writes. "There needed to be a model out there where people could come forward or speak when contacted, knowing they would be protected. It was a matter of my work, a matter of honor."

That honorable model, which has now been demolished at Time, was a given in what seems like the halcyon Watergate era of "The Secret Man." Mr. Woodward and Carl Bernstein had confidence that The Washington Post's publisher, Katharine Graham, and editor, Ben Bradlee, would back them to the hilt, even though the Nixon White House demonized their reporting as inaccurate (as did some journalistic competitors) and threatened the licenses of television stations owned by the Post Company.

At Time, Norman Pearlstine - a member of the board of the Committee to Protect Journalists, no less - described his decision to turn over Matt Cooper's files to the feds as his own, made on the merits and without consulting any higher-ups at Time Warner. That's no doubt the truth, but a corporate mentality needn't be imposed by direct fiat; it's a virus that metastasizes in the bureaucratic bloodstream. I doubt anyone at Time Warner ever orders an editor to promote a schlocky Warner Brothers movie either. (Entertainment Weekly did two covers in one month on "The Matrix Reloaded.")

Time Warner seems to have far too much money on the table in Washington to exercise absolute editorial freedom when covering the government; at this moment it's awaiting an F.C.C. review of its joint acquisition (with Comcast) of the bankrupt cable company Adelphia. "Is this a journalistic company or an entertainment company?" David Halberstam asked after the Pearlstine decision. We have the answer now. What high-level source would risk talking to Time about governmental corruption after this cave-in? What top investigative reporter would choose to work there?

But the most important difference between the Bush and Nixon eras has less to do with the press than with the grave origins of the particular case that has sent Judy Miller to jail. This scandal didn't begin, as Watergate did, simply with dirty tricks and spying on the political opposition. It began with the sending of American men and women to war in Iraq.

Specifically, it began with the former ambassador Joseph Wilson's July 6, 2003, account on the Times Op-Ed page (and in concurrent broadcast appearances) of his 2002 C.I.A. mission to Africa to determine whether Saddam Hussein had struck a deal in Niger for uranium that might be used in nuclear weapons. Mr. Wilson concluded that there was no such deal, as my colleague Nicholas Kristof reported, without divulging Mr. Wilson's name, that spring. But the envoy's dramatic Op-Ed piece got everyone's attention: a government insider with firsthand knowledge had stepped out of the shadows of anonymity to expose the administration's game authoritatively on the record. He had made palpable what Bush critics increasingly suspected, writing that "some of the intelligence related to Iraq's nuclear weapons program was twisted to exaggerate the Iraqi threat."

Up until that point, the White House had consistently stuck by the 16 incendiary words in President Bush's January 2003 State of the Union address: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." The administration had ignored all reports, not just Mr. Wilson's, that this information might well be bogus. But it still didn't retract Mr. Bush's fiction some five weeks after the State of the Union, when Mohamed ElBaradei, the director general of the International Atomic Energy Agency, announced that the uranium claim was based on fake documents. Instead, we marched on to war in Iraq days later. It was not until Mr. Wilson's public recounting of his African mission more than five months after the State of the Union that George Tenet at long last released a hasty statement (on a Friday evening, just after the Wilson Op-Ed piece) conceding that "these 16 words should never have been included in the text written for the president."

The Niger uranium was hardly the only dubious evidence testifying to Saddam's supposed nuclear threat in the run-up to war. Judy Miller herself was one of two reporters responsible for a notoriously credulous front-page Times story about aluminum tubes that enabled the administration's propaganda campaign to trump up Saddam's W.M.D. arsenal. But red-hot uranium was sexy, and it was Mr. Wilson's flat refutation of it that drove administration officials to seek their revenge: they told the columnist Robert Novak that Mr. Wilson had secured his (nonpaying) African mission through the nepotistic intervention of his wife, a covert C.I.A. officer whom they outed by name. The pettiness of this retribution shows just how successfully Mr. Wilson hit the administration's jugular: his revelation threatened the legitimacy of the war on which both the president's reputation and re-election campaign had been staked.

This was another variation on a Watergate theme. Charles Colson's hit men broke into the office of Daniel Ellsberg's psychiatrist, seeking information to smear Mr. Ellsberg after he leaked the Pentagon Papers, the classified history of the Vietnam War, to The Times. But there was even greater incentive to smear Mr. Wilson than Mr. Ellsberg. Nixon compounded the Vietnam War but didn't start it. The war in Iraq, by contrast, is Mr. Bush's invention.

Again following the Watergate template, the Bush administration at first tried to bury the whole Wilson affair by investigating itself. Even when The Washington Post reported two months after Mr. Wilson's Op-Ed that "two top White House officials" had called at least six reporters, not just Mr. Novak, to destroy Mr. Wilson and his wife, the inquiry was kept safely within the John Ashcroft Justice Department, with the attorney general, according to a Times report, being briefed regularly on details of the investigation. If that rings a Watergate bell now, that's because on Thursday you may have read the obituary of L. Patrick Gray, Mark Felt's F.B.I. boss, who, in a similarly cozy conflict of interest, kept the Nixon White House abreast of the supposedly independent Watergate inquiry in its early going.

Political pressure didn't force Mr. Ashcroft to relinquish control of the Wilson investigation to a special prosecutor, Patrick Fitzgerald, until Dec. 30, 2003, more than five months after Mr. Novak's column ran. Now 18 more months have passed, and no one knows what crime Mr. Fitzgerald is investigating. Is it the tricky-to-prosecute outing of Mr. Wilson's wife, the story Judy Miller never even wrote about? Or has Mr. Fitzgerald moved on to perjury and obstruction of justice possibly committed by those who tried to hide their roles in that outing? If so, it would mean the Bush administration was too arrogant to heed the most basic lesson of Watergate: the cover-up is worse than the crime.

"Mr. Fitzgerald made his bones prosecuting the mob," intoned the pro-Bush editorial page of The Wall Street Journal, "and doesn't seem to realize that this case isn't about organized crime." But that may be exactly what it is about to an ambitious prosecutor with his own career on the line. That the Bush administration would risk breaking the law with an act as self-destructive to American interests as revealing a C.I.A. officer's identity smacks of desperation. It makes you wonder just what else might have been done to suppress embarrassing election-season questions about the war that has mired us in Iraq even as the true perpetrators of 9/11 resurface in Madrid, London and who knows where else.

IN his original Op-Ed piece in The Times, published two years to the day before Judy Miller went to jail, Mr. Wilson noted that "more than 200 American soldiers have lost their lives in Iraq already," before concluding that "we have a duty to ensure that their sacrifice came for the right reasons." As that death toll surges past 1,700, that sacred duty cannot be abandoned by a free press now.

Copyright literature current awareness

Copyright literature current awarenessAbout the “Current copyright literature” website:

The "Current copyright literature" website is a resource for keeping informed of current articles related to U.S. copyright law. This service is edited by Tobe Liebert, the Assistant Director for Collection Development & Special Projects at the Tarlton Law Library.

Here's the process: I review law journals and law reviews (and a great many other legal periodicals) as they are received in the library. I examine the table of contents of all of these publications and identify any article concerning U.S. copyright law. I then input the basic bibliographic information about each article into this database, and scan the first page of the article. The availability of the first page of the article should better enable readers to know if they are interested in reading the whole article.

I anticipate that this website will be updated a couple of times a week, depending on the volume of cites.

My position on “fair use”: Only the first page of an article will be scanned and images will be deleted after 60 days. This service is for non-commercial, educational purposes only.

Copyright literature current awareness

Copyright literature current awarenessAbout the “Current copyright literature” website:

The "Current copyright literature" website is a resource for keeping informed of current articles related to U.S. copyright law. This service is edited by Tobe Liebert, the Assistant Director for Collection Development & Special Projects at the Tarlton Law Library.

Here's the process: I review law journals and law reviews (and a great many other legal periodicals) as they are received in the library. I examine the table of contents of all of these publications and identify any article concerning U.S. copyright law. I then input the basic bibliographic information about each article into this database, and scan the first page of the article. The availability of the first page of the article should better enable readers to know if they are interested in reading the whole article.

I anticipate that this website will be updated a couple of times a week, depending on the volume of cites.

My position on “fair use”: Only the first page of an article will be scanned and images will be deleted after 60 days. This service is for non-commercial, educational purposes only.

Tech Law Advisor: Willful Copyright Infringement/ Summary Judgment

Tech Law Advisor: Willful Copyright Infringement: "Tech Law Advisor

� Man Charged With Stealing Wi-Fi Signal | Main | Blogger Faq on Labor Law �
July 08, 2005
Willful Copyright Infringement

William Patry: Since June 28th, the Second Circuit has handed down two opinions on willful copyright infringement....

Island Software and Computer Service, Inc. v. Microsoft Corp., 2005 U.S. App. LEXIS 12766 (2d Cir. June 28, 2005)

GMA Accessories, Inc. v. Oliva Miller, Inc., 2005 U.S. App. LEXIS 13368 (2d Cir. July 5, 2005).


Friday, July 08, 2005

The Clicker: Was Grokster really the important Supreme Court decision? - Engadget -

The Clicker: Was Grokster really the important Supreme Court decision? - Engadget - www.engadget.comThe Clicker: Was Grokster really the important Supreme Court decision?

Posted Jul 7, 2005, 7:26 PM ET by Peter Rojas
Related entries: Displays, Features, HDTV, Home Entertainment

Every Thursday Stephen Speicher contributes The Clicker, a weekly column on television and technology:

The key to all good magic, as it has been explained to me, is misdirection. The magician must engage in some large, eye-catching gesture that, when all is said and done, is rather meaningless. Meanwhile, under the cover of the aforementioned grandeur, the real work is performed.

For instance: in the early nineties, David Copperfield would, with pomp and glory, make large jets, the Grand Canyon, even the Statue of Liberty disappear into thin air. These, of course, were just the WOW-type distractions he needed to accomplish his real goal, attracting supermodel Claudia Schiffer.

As it turns out – Justice Rehnquist and the rest of his Supreme Court posse are also fans of the ancient art of illusion. When the Supreme Court delivered the recent raft of decisions it deftly used the attention-grabbing, yet rather meaningless, Grokster case to grab the attention of the public. Meanwhile, a second, arguably more important, ruling has quietly solidified Comcast et. al.’s legal classification as an “information service” and not as a “telecommunication” service. In doing so, the Supreme Court has set the stage for cable giants such as Comcast to, with impunity, disallow such competitive services as Vonage, Skype, and even perhaps Akimbo, MovieLink, and a host of IPTV services.

A small, Santa Monica-based Internet company, Brand X Internet LLC, brought suit against the cable industry claiming that, under common carrier regulations, Brand X had a right to deliver its Internet services over the cable giants’ broadband networks. Brand X argued that, just like DSL, cable lines were telecommunication instruments. As such, just like the Bells are forced to open DSL lines to third-party providers, so too should third-party companies be afforded access to the cable infrastructure.

Brand X’s argument was not without basis: In 2000, the Ninth Circuit Court of Appeals held in AT&T v. the City of Portland that cable modem services were a mixture of both information services and telecommunication services and should be subject to the regulations of both bodies. However, in response to that ruling, the FCC later (2002) issued an opposing statement that cable modem services were information services and that they were not subject to telecommunications regulations. The Brand X case became the Supreme Court’s chance to set the record straight.

In the 6-3 decision delivered by Clarence Thomas, the court re-affirmed the FCC’s classification of cable modem services as information services.

The ruling has caused a lot of speculation about whether the cable industry will use its newly-reaffirmed status to make life difficult for its competitors in the VoIP industry. Under telecommunication regulations, providers must open their networks on non-discriminatory terms. Information services are not bound by the same regulations. Cable companies could engage in port-blocking and other countermeasures used to stop VoIP services from traversing their networks.

What’s even less clear is how the decision muddies the waters with respect to IPTV services. While not yet as developed as VoIP, the emerging IPTV market has just as much to lose. IPTV is also closer to the cable companies bread and butter services. It’s unclear that, without non-discriminatory terms, cable companies would have the proper incentive to allow third-party video services to traverse their networks. Value-add services such as VOD have been at the backbone of nearly all cable battles, and cable companies have fought hard to maintain their monopoly there. It’s unlikely that they wouldn’t at least consider cutting their competition off at the knees.

The matter is further complicated by the dearth of information-service regulations. The FCC has been in a holding pattern with regards to broadband regulations.

The Supreme Court’s decision, according to FCC Chairman Kevin Martin, allows for that to change. Martin said in a statement: “This decision provides much-needed regulatory clarity and a framework for broadband that can be applied to all providers… We can now move forward quickly to finalize regulations that will spur the development of broadband services for all Americans.”

But, until regulations do change, the Brand X decision leaves the Internet in an unusually precarious position. With a) many regions of the country operating under a broadband-access monopoly and b) with access to broadband services becoming more and more important in both communication and entertainment services, the courts just bestowed upon the cable companies a disturbing amount of power.

It’s time for FCC to take some of that power back from the cable companies. It’s time for Martin to enact neutrality regulations. It’s one thing to allow cable companies sole use of their own networks. It’s an entirely different thing to allow them the power to block the competitive services that travel over those networks, and while we’re in limbo that’s what they’ve done.

Thursday, July 07, 2005

Daily Kos: Rehnquist tomorrow?

Daily Kos: Rehnquist tomorrow?Rehnquist tomorrow?
by kos
Thu Jul 7th, 2005 at 14:59:24 PDT

The big DC rumor is that Rehnquist will announce his retirement tomorrow between 10-11 a.m. ET.

If that happens, would Bush split the difference -- Gonzales and some winger to pacify the Dobson brigades?

Judith Miller Goes to Jail - New York Times

Judith Miller Goes to Jail - New York TimesJuly 7, 2005
Judith Miller Goes to Jail

This is a proud but awful moment for The New York Times and its employees. One of our reporters, Judith Miller, has decided to accept a jail sentence rather than testify before a grand jury about one of her confidential sources. Ms. Miller has taken a path that will be lonely and painful for her and her family and friends. We wish she did not have to choose it, but we are certain she did the right thing.

She is surrendering her liberty in defense of a greater liberty, granted to a free press by the founding fathers so journalists can work on behalf of the public without fear of regulation or retaliation from any branch of government.

The Press and the Law

Some people - including, sadly, some of our colleagues in the news media - have mistakenly assumed that a reporter and a news organization place themselves above the law by rejecting a court order to testify. Nothing could be further from the truth. When another Times reporter, M. A. Farber, went to jail in 1978 rather than release his confidential notes, he declared, "I have no such right and I seek none."

By accepting her sentence, Ms. Miller bowed to the authority of the court. But she acted in the great tradition of civil disobedience that began with this nation's founding, which holds that the common good is best served in some instances by private citizens who are willing to defy a legal, but unjust or unwise, order.

This tradition stretches from the Boston Tea Party to the Underground Railroad, to the Americans who defied the McCarthy inquisitions and to the civil rights movement. It has called forth ordinary citizens, like Rosa Parks; government officials, like Daniel Ellsberg and Mark Felt; and statesmen, like Martin Luther King. Frequently, it falls to news organizations to uphold this tradition. As Justice William O. Douglas wrote in 1972, "The press has a preferred position in our constitutional scheme, not to enable it to make money, not to set newsmen apart as a favored class, but to bring to fulfillment the public's right to know."

Critics point out that even presidents must bow to the Supreme Court. But presidents are agents of the government, sworn to enforce the law. Journalists are private citizens, and Ms. Miller's actions are faithful to the Constitution. She is defending the right of Americans to get vital information from news organizations that need not fear government retaliation - an imperative defended by the 49 states that recognize a reporter's right to protect sources.

A second reporter facing a possible jail term, Matthew Cooper of Time magazine, agreed yesterday to testify before the grand jury. Last week, Time decided, over Mr. Cooper's protests, to release documents demanded by the judge that revealed his confidential sources. We were deeply disappointed by that decision.

We do not see how a newspaper, magazine or television station can support a reporter's decision to protect confidential sources even if the potential price is lost liberty, and then hand over the notes or documents that make the reporter's sacrifice meaningless. The point of this struggle is to make sure that people with critical information can feel confident that if they speak to a reporter on the condition of anonymity, their identities will be protected. No journalist's promise will be worth much if the employer that stands behind him or her is prepared to undercut such a vow of secrecy.

Protecting a Reporter's Sources

Most readers understand a reporter's need to guarantee confidentiality to a source. Before he went to jail, Mr. Farber told the court that if he gave up documents that revealed the names of the people he had promised anonymity, "I will have given notice that the nation's premier newspaper is no longer available to those men and women who would seek it out - or who would respond to it - to talk freely and without fear."

While The Times has gone to great lengths lately to make sure that the use of anonymous sources is limited, there is no way to eliminate them. The most important articles tend to be the ones that upset people in high places, and many could not be reported if those who risked their jobs or even their liberty to talk to reporters knew that they might be identified the next day. In the larger sense, revealing government wrongdoing advances the rule of law, especially at a time of increased government secrecy.

It is for these reasons that most states have shield laws that protect reporters' rights to conceal their sources. Those laws need to be reviewed and strengthened, even as members of Congress continue to work to pass a federal shield law. But at this moment, there is no statute that protects Judith Miller when she defies a federal trial judge's order to reveal who told her what about Valerie Plame Wilson's identity as an undercover C.I.A. operative.

Ms. Miller understands this perfectly, and she accepts the consequences with full respect for the court. We hope that her sacrifice will alert the nation to the need to protect the basic tools reporters use in doing their most critical work.

To be frank, this is far from an ideal case. We would not have wanted our reporter to give up her liberty over a situation whose details are so complicated and muddy. But history is very seldom kind enough to provide the ideal venue for a principled stand. Ms. Miller is going to jail over an article that she never wrote, yet she has been unwavering in her determination to protect the people with whom she had spoken on the promise of confidentiality.

The Plame Story

The case involves an article by the syndicated columnist Robert Novak, who revealed that Joseph Wilson, a retired career diplomat, was married to an undercover C.I.A. officer Mr. Novak identified by using her maiden name, Valerie Plame. Mr. Wilson had been asked by the C.I.A. to investigate whether Saddam Hussein in Iraq was trying to buy uranium from Niger that could be used for making nuclear weapons. Mr. Wilson found no evidence of that, and he later wrote an Op-Ed article for The Times saying he believed that the Bush administration had misrepresented the facts.

It seemed very possible that someone at the White House had told Mr. Novak about Ms. Plame to undermine Mr. Wilson's credibility and send a chilling signal to other officials who might be inclined to speak out against the administration's Iraq policy. At the time, this page said that if those were indeed the circumstances, the leak had been "an egregious abuse of power." We urged the Justice Department to investigate. But we warned then that the inquiry should not degenerate into an attempt to compel journalists to reveal their sources.

We mainly had Mr. Novak in mind then, but Mr. Novak remains both free and mum about what he has or has not told the grand jury looking into the leak. Like almost everyone, we are baffled by his public posture. All we know now is that Mr. Novak - who early on expressed the opinion that no journalists who bowed to court pressure to betray sources could hold up their heads in Washington - has offered no public support to the colleague who is going to jail while he remains at liberty.

Ms. Miller did not write an article about Ms. Plame, but the prosecutor, Patrick Fitzgerald, wants to know whether anyone in government told her about Mr. Wilson's wife and her secret job. The inquiry has been conducted with such secrecy that it is hard to know exactly what Mr. Fitzgerald thinks Ms. Miller can tell him, or what argument he offered to convince the court that his need to hear her testimony outweighs the First Amendment.

What we do know is that if Ms. Miller testifies, it may be immeasurably harder in the future to persuade a frightened government employee to talk about malfeasance in high places, or a worried worker to reveal corporate crimes. The shroud of secrecy thrown over this case by the prosecutor and the judge, an egregious denial of due process, only makes it more urgent to take a stand.

Mr. Fitzgerald drove that point home chillingly when he said the authorities "can't have 50,000 journalists" making decisions about whether to reveal sources' names and that the government had a right to impose its judgment. But that's not what the founders had in mind in writing the First Amendment. In 1971, our colleague James Reston cited James Madison's admonition about a free press in explaining why The Times had first defied the Nixon administration's demand to stop publishing the Pentagon Papers and then fought a court's order to cease publication. "Among those principles deemed sacred in America," Madison wrote, "among those sacred rights considered as forming the bulwark of their liberty, which the government contemplates with awful reverence and would approach only with the most cautious circumspection, there is no one of which the importance is more deeply impressed on the public mind than the liberty of the press."

Mr. Fitzgerald's attempts to interfere with the rights of a free press while refusing to disclose his reasons for doing so, when he can't even say whether a crime has been committed, have exhibited neither reverence nor cautious circumspection. It would compound the tragedy if his actions emboldened more prosecutors to trample on a free press.

Our Bottom Line

Responsible journalists recognize that press freedoms are not absolute and must be exercised responsibly. This newspaper will not, for example, print the details of American troop movements in advance of a battle, because publication would endanger lives and national security. But these limits cannot be dictated by the whim of a branch of government, especially behind a screen of secrecy.

Indeed, the founders warned against any attempt to have the government set limits on a free press, under any conditions. "However desirable those measures might be which might correct without enslaving the press, they have never yet been devised in America," Madison wrote.

Journalists talk about these issues a great deal, and they can seem abstract. The test comes when a colleague is being marched off to jail for doing nothing more than the job our readers expected of her, and of the rest of us. The Times has been in these fights before, beginning in 1857, when a journalist named J. W. Simonton wrote an editorial about bribery in Congress and was held in contempt by the House of Representatives for 19 days when he refused to reveal his sources. In the end, Mr. Simonton kept faith, and the corrupt congressmen resigned. All of our battles have not had equally happy endings. But each time, whether we win or we lose, we remain convinced that the public wins in the long run and that what is at stake is nothing less than our society's perpetual bottom line: the citizens control the government in a democracy.

We stand with Ms. Miller and thank her for taking on that fight for the rest of us.