Calling back Guards?

I read somewhere a couple weeks ago that a bunch of cities/townships in Vermont had moved to bring their Guard units currently in Iraq home. And it occurred to me to ask if this were a binding resolution, would it be enforceable?

(Wait, I found a 'somewhere'. Here. Read this. 57 communities pondered some form of this resolution, and 48 passed it, 3 voted it down, one tied, and the other 4 tabled it for later.)

The resolution, as introduced, calls for the Vermont Legislature to study the effect of National Guard deployments on the state; implores the state's congressional delegation to work to restore a "proper balance" between state and federal control of the Guard; and asks Congress and the administration of President Bush to withdraw U.S. forces from Iraq at a quick but "humanitarian" pace.

So, the bulk of Vermont has just passed a nonbinding resolution that their Guard units should come home. What happens if, say, tomorrow, they pass a binding resolution? I guess the real question is, does a state still have control over its Guard units, when they've been called up for Federal service? Note that I'm assuming the state has some control over its Guard units at all.

Well, OK. Let's address the latter note first. Article 1, Section 8, clauses 15 and 16 of the Constitution talk about providing "for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;" and providing "for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States..."

(Now, to back up an even further step: State and National Guardsmen are not Navy, not Army (the two types of forces explicitly mentioned in the Constitution). They must be something. Therefore, militia.)

If the Congress has to "call forth" the militia, and provide for organizing, arming, and disciplining the part of the militia employed in the service of the US, then when the militia or a part of it has not been called forth, that militia must be in the service of the State, not the United States.

Otherwise, there wouldn't be any calling forth to begin with, because the Guard has to be under some authority, somewhere.

What isn't clear from the Constitution is whether a State can simply demand its Guard back. I doubt, structurally, that it could.

If the Militia has been called forth into federal service (service of the United States rather than service of its own State), they're placed under the command of the Executive branch in the Executive's role as Commander in Chief of the Armed Forces. ("The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States..." Const. Art. II, §2, cl. 1.)

The President can't make use of these forces as forces - strategically and tactically - if a State were permitted to reclaim them without the Executive's permission or at least acknowledgement. To do so would diminish the Executive's authority on the battlefield, by permitting another authority to supersede his in the direction of troop movements, which directly contradicts the Constitutional delegation of power to the President as Commander in Chief.

Furthermore, the Congress has the authority to "make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers" -- a list of powers which included the power of calling up and providing for militias in US service. Const. Art. I, §8, cl. 18. The power to call up, to hold, should also include the power to release, should it not?

However, there's another problem. What if the Militia's use is unConstitutional?

Art. I, §8, cl. 15 lists the tasks for which the Militia may be called up: to "execute the Laws of the Union, suppress Insurrections and repel Invasions". Is invading and occupying another country on that list? Is that list exclusive? (Expressio unias est exclusio alterius. Specifying one is to the exclusion of others.) And even if that list is not comprehensive, all three elements are of a domestic nature - internal regulation, policing, and defense from physical invasion by an enemy. All tasks for which you need to be here, in the US, to perform. Deployment on the other side of the world in a war against and occupation of another country certainly sounds like foreign, not domestic affairs.

So, I am not at all certain that even if this list of jobs for the Militia is just a starting point, that non-domestic tasks should be included.

Finally, Muslim clerics start policing Bin Laden

Bin Laden fatwa

This is good news. Do you get why? For the same reason that the US can't impose democracy somewhere.

Change has to come from the people. We - that's the outsider 'we', the international community 'we' - can offer assistance, whether that assistance is money or guns or food or what have you, but that's it. The real work, the real change, the real commitment, has to come from the people who live there. Or, in this case, worship the same.

This fatwa? Spain has a large Muslim community, and this fatwa is supported by Muslim leaders from Morocco, Algeria and Libya. With it these communities are using the normal channels of their religion to discipline Bin Laden, to distinguish him from themselves, and draw the line that says "a good Muslim does not do these things".

This is important. This has the possibility for real impact.

Thanks to Green Knight for the tip.

The answer is "Yes"

May we call them fascists NOW?

On Thursday [a local business] was contacted by someone who claimed to be a "federal agent" and told that they were not allowed to display any signs critical of President Bush or his plans to dismantle Social Security.

Yes. Yes, you may.

I'm going to take this opportunity to also say:

Please don't let publishing this information online be the only "press release" this story gets. Call the local paper in Memphis. When we -- that's the Internet 'we' -- publish online, we forget that not the whole world (or local community) read the same blogs we do, or reads online at all.

Clever Girl, Part II

A bit more reading on Frienditto's legal policy. See my previous post. It's all so fascinating. Bear in mind that when I talk about copyright owner and archivist, I'm doing so on the hypothetical that they're two separate users.

6. Copyright infringement
The Service does not make any claim to copyright for any of the user entries submitted and will immediately remove any content with a proper request from the copyright owner. Users of the Service agree that at the time of submission they have proper permissions from the copyright owner. Frienditto does maintain copyright to all pages that it creates or generates, exclusive of the archived entry content.

Here's their statement that they will recognize an owner's copyright.

8. User Conduct
While using the Service, you agree not to engage in any criminal, threatening, harassing or indecent behavior. Violation of this clause may result in immediate termination of access.

How? How can you terminate access to someone that's completely anonymous, in the case of archiving public posts? In the case of someone who's archiving 'friend-locked' posts, you have their username and could try to blacklist them, but doing so would only be an incomplete termination of access to Frienditto, because they could still archive LiveJournal posts anonymously. Just not 'friend-locked' posts.

9. Violations and Grievances
To report any violations of this agreement or to file a grievance, please contact the administrator at legalthreats@frienditto.com. We will make every effort to get to your report or request in a timely fashion. Plz to be advised that any information sent to this email address other than legal threats will be ignored. Please do not make repeated submissions, as this will generally not expedite the handling of your report or request.

10. Correspondence with Frienditto
Should you choose to present your e-mail address, physical home address, telephone number, full name or other personally identifying information to Frienditto by any means whatsoever, we reserve the right to publish said personal information in whole or in part. Should you chose to contact any member of Frienditto.com by any communication means, Frienditto reserves the right to publish the conversation, in whole or in part, as seen fit to do so. Any and all e-mails may also be published in whole or in part. By communicating with Frienditto.com staff, you consent to said publication and acknowledge you have no expectation of privacy whatsoever under federal or state law for materials discussed and/or submitted. Legally privledged materials and communication, and/or communication concerning an active ongoing law enforcement investigation will be kept confidential as required by law.

God, I love my contracts teacher.

This, friends, is an unconscionable adhesion contract. Here, look: You can't contact Frienditto without consenting to this arrangement, so there's no real consent on your part. That's procedural unconscionability right there! And substantively, if you're reporting an infringement and requesting removal of material, you can't do so without more copyright infringement - the very problem you're contacting them trying to resolve. This policy is being used as a threat against copyright owners to keep them quiet out of fear of further infringement. In addition, there's no consideration being offered the copyright owner here - no benefit, as the infringement the owner is asking to have removed is in bad faith to begin with. Frienditto has already posited it as an obligation (and even if they didn't, it would be one, it against the law to infringe copyright); fulfilling a duty because you ask them to is not the same thing as offering an actual benefit to you.

Clever Girl

You know that bit in "Jurassic Park" where the big-game hunter guy (the one with the bush hat) is stalking the velociraptor only to find he's been stalked by the other velociraptors? He says, "clever girl".

This *is* clever. But not clever in a humans-going-to-get-eaten kind of way.

There's this blogging/journaling/what-have-you system called LiveJournal, much like Blogger in that it's offsite from the user, it's not something you install yourself and run on your own website. It has an interesting function that seems unique to blogging called 'friending'. If you friend someone, you can make posts to your LiveJournal that only *they* can read. So, LiveJournal has public posts and posts that your 'friends' have to log into LiveJournal themselves to see.

There's also this brand-new archiving system someone wrote called Frienditto, that lets you archive any public (non-friend-'locked') post on LiveJournal onto another server. Allegedly, it doesn't retain any information about the person doing the archiving, which seems pretty useless to me for people who want to mirror their own journals for redundancy purposes, because you can't find anything and you can't seem to search Frienditto entries by LiveJournal username or anything.

So, the point of this software, at first glance, seems to be to make it easy for people to make copies of OTHER LiveJournal user's posts to their LiveJournal.

The problem with that is that the author may not have given permission for their work to be copied on Frienditto, in which case the archivist has just infringed copyright.

The even bigger problem is that there's additional functionality that permits 'friends' to enter their LiveJournal username and password into Frienditto - a very stupid thing indeed for a LiveJournal user to do, from a security perspective - and the URL of one of *your* friend-'locked' posts, and archive *it*, making a quasi-private post ('friends'-only) in a semi-closed community (only LiveJournal users can 'friend' other LiveJournal users) completely public on another website.

Aye, *there's* the rub.

Now, then. Follow this:

1. Frienditto's TOS (the contract with their users) indemnifies themselves and places all responsibility (or tries to) on the user. That's the archivist, the person archiving a post onto Friendditto. Not the copyright owner, unless they happen to be one and the same.

Note, there's lots of stuff in contracts law about whether a boilerplate contract like this is enforceable. That's beside the point, as archivists who want to sue FD can't show they've been injured by FD, *because*,

2. The Frienditto software system destroys information about the archivist, from every archived post. Deliberately. Anonymity of the archivist is described as a core function of the software in the FAQ.

3. Their TOS and legal policy are only going to be read (if at all) by someone archiving posts. Not necessarily by the copyright holder. The copyright owner makes no agreements, implicit or explict, with Frienditto.

4. You as copyright holder don't know who to sue for copyright infringement.

This completely destroys accountability - you can't sue the archivist because you don't know who they are, and Frienditto will just say "oh, we're providing a service, it's the users who are violating your copyright". Which won't, in the long run, in my first-year-legal-scholar opinion, wash, for a couple reasons (and probably many more):

a. ISPs have consistently been responsible - or held responsible - for policing their users for copyright infringement, or at least violations of the TOS. Regardless of which of their users put something copyright-infringing up, an ISP will take it down once their attention is drawn to it.
b. If you took FD to court, I think you could argue that their software is, at its core, for the purpose of infringing copyright, and very little other purpose, if any (which is the kind of question they wrangle over in court about Napster and file-sharing and whatnot), and that FD knew or should've have known this use would occur, and did nothing to prevent it.


My bet is the velociraptor's going to go down on this one. Clever. But cute clever, not copyright-owners-are-screwed clever. 'Sides, their legal policy (http://www.frienditto.com/legal.php) says they'll honor a request from a copyright owner to remove material. I think everyone on LiveJournal should pre-emptively request that their material not by archived there.

Another Materialistic Moment

I want The Cocktailian Gazette.

A forum for mixology and barware scholars that's long been overdue, the first annual volume of Mixologist: The Journal of the American Cocktail (ISBN: 0-9760937-0-7)will come hot off the presses on March 21, 2005.

This just sounds cool.

(Thanks to Looka, for the tip.)

If America Is Richer, Why Are Its Families So Much Less Secure?

All this "we're America, the business frontier, where you make or break on your own merit" baloney is just that: baloney. (And I say that as a frontier gel mah ownself.)

If America Is Richer, Why Are Its Families So Much Less Secure?

Los Angeles Times reporter Peter G. Gosselin has spent the last year examining an American paradox: Why so many families report being financially less secure even as the nation has grown more prosperous. The answer lies in a quarter-century-long shift of economic risks from the broad shoulders of business and government to the backs of working families. Safety nets that once protected Americans from economic turbulence — safeguards like unemployment compensation and employer loyalty — have eroded or vanished. Familes are more vulnerable to sudden shifts in the economy than any time since the Great Depression. The result is a daunting "New Deal" for many working Americans — one that compels them to cope, largely on their own, with financial forces far beyond their control.

*Wipes Eyes*

Oh, my goodness, that was funny. Once again, I managed to study for my legal writing paper (on parody as fair use of copyrighted material) and laugh my ass off at the same time.

Longmire does Romance Novels -- "re-imagined" romance novel covers.

How To Talk to a Christian, Parts I-IV

Why should a rational person use religious symbolism? For the same reason an American ought to learn Spanish. It makes it easier to communicate with someone who doesn't speak your language.[Emphasis added.]

How to talk to a Christian, Part I
Part II
Part III
Part IV

Having Fun with Photo-ops

I managed to amuse the hell out of myself, and indirectly work on my paper for legal writing, by committing social criticism in an amusing way, over in the comments section at Shakespeare's Sister.

I'm not going to repost here, because today, I'm pushing Shakespeare's Sister.

Gee, Where Are All the Women Bloggers?

WOMEN'S OPINIONS

Kevin, good grief. You've been online for how long? And it only occurs to you *now* to turn around and say, "wow, we've got some gender inequity going on here in cyberspace, how about that?"

The only reason you get to ignore the glass ceiling, the omnipresent media messages of Not Being Good Enough (as woman, as wife, as mommy, as whatever), the slow, grinding, pressure to avoid technical careers, the near-complete lack of old girls networks in comparison to the depth and breadth of the old boys networks that have run and continue to run our government, our businesses, and our society since before the Union's founding - is because you're in the "right" section of the gene pool. The white XY section.

It takes generations to catch up from this kind of bullshit, this heavily-weighted-against-a-minority system. It ain't gonna happen just because Tim Berners-Lee had a really cool idea*, and the nice folks behind Blogger had another one.

Don't be surprised if women bloggers - or whatever other minority is catching your eye - fail to be impressed that you've noticed our unequal numbers, noticed that women, gays, the disabled, whatever, are maybe, you know, oppressed by society or something; don't be suprised if we fail to jump up and down with glee over the removal of your blinders for one brief, shining moment.

Keep them off, then we might be impressed.

Women's Opinions
Women and Blogging

*Ah, for my readers who aren't familiar with the references: if you're reading this web page, if you're reading any web page, you have Tim to thank for it. The folks behind Blogger, are...the folks behind blogger.
Oh, and while you're at it, go learn about Admiral Grace Hopper, who coined the programming term "bug" and invented the compiler, and Ada Lovelace, who gave the world its very first computer program. A little women's history is good for you. It'll build character.
One final note of disclosure: the comments thread in the second article linked here refers to the University of California at Irvine, my alma mater, with respect to the availability or lack thereof of non-stereotypical women. As a woman with a B.S. in physics from that university, I probably fall in this category. I became aware of Kevin online back in those halcyon days when he was CalPundit. I don't *believe* we've met in person, but I could simply be failing to make a necessary connection between face and online presence.

I am sheep. Hear me baa.

As any regular reader of Parenthetically Speaking may know, I avoid memes. There's one going around Livejournal about 10 Things I've Done You Probably Haven't, that is rather amusing, but there are a great many things I've done you probably haven't. Some of them are really weird (Sled dogs! Theater stuff! Sleeping in trees!), and some are entirely mundane, as one blogger pointed out, but unique because I am the one doing them, at the precise moment I did them. I like that.

So, a meme approacheth, and I say, 'bah, humbug', and then over at Alas, A Blog, I find out Bean has a new blog, and I surf on over, and durned if there's not another meme-like object there.

My brain is trying to say "bah". But it sounds more like "baaaaa".

Cribbed from Bean:

1. Grab the nearest book.
2. Open the book to page 123.
3. Find the fifth sentence.
4. Post the text of the sentence in your journal along with these instructions.
5. Don’t search around and look for the "coolest" book you can find. Do what’s actually next to you.

The book within most obvious visual range is a Japanese-English/English-Japanese dictionary, but I've actually used it for a meme like this before, so I'm letting it off the hook. Plus, it's a dictionary.

The book within easiest reach (a whole five inches closer than the dictionary, literally just barely not touching my forearm, it does qualify as "nearest") doesn't have 123 pages. So, I cheated and went for page 61 - that's half of 123, accurate to within an order of magnitude. Naturally, p. 61 has an illustration: Lactuca sativa.

Pliny has many references to lactuca, but he applies the name to many plants that are not lettuce.

That's from p. 60 of A Pompeiian Herbal, which I like to keep near the computer or the bed and thumb through idly as the mood strikes.

The book underneath A Pompeiian Herbal is one I hauled out recently in response to a law-school-related tragedy: C.S. Lewis' A Grief Observed. No page 123 either.

Next closest book is either the 2004 Federal Rules of Civil Procedure, or a block of books including my ALWD (legal citation) manual, another book on legal writing, law dictionary, Gannon's book on Civil Procedure, and then The Anti-Federalist Papers (The Federalist Papers are in the other room) cradling gently on top of it The Strange Case of Dr Jekyll and Mr Hyde, and other stories, by Robert Louis Stevenson.

Dead Kid. Why?

Off-Duty Customs Officer Shoots Teen in Head

Shouldn't the media be all over this?

'Cause the White House is for Lovers

What the hell, let's talk about PropaGannonGate, aka "The Manchurian Beefcake Candidate".

So, there's this guy, see? He's a journalist for a conservative "news" site (Talon News), having something to do with GOPUSA.com, though they're scrambling to disown him now. He likes to ask very slanted questions of Scott McClellan, of the "Has <name of liberal here> stopped beating his wife yet?" variety.

People (bloggers) think to themselves...Hm! Who is this schmuck lobbing softballs at the Prez like there's no tomorrow?

Hey! Who is this schmuck who's actually getting to ask the Prez a question? (We all know how much this President loves to give press conferences.)

Hey!! Who is this schmuck who maybe got to see the Valerie Plame Leak Memo?

Well, who this schmuck is, apparently,...is a gay hooker.

So he ain't all bad.

---

Reporter with prostitution links and false name got access to Bush: Questions surface on relationship with White House staff

EXPOSE: A man called Jeff

Propaganda-Gate: Jeff/Jim Gannon/Guckert Still Does Not Get It

[T]here is only one real story here. That is that for the past few years a man with a fake name, working for a fake news agency, infiltrated the White House Press Pool. That fake reporter then was relied upon by Scott McClellan and even George W. Bush in press conferences, where he would serve up the most inane, partisan, softball questions imaginable that had ZERO journalistic integrity and value. This same fake reporter may have got his hands on a secret internal CIA memo that he mentioned in an interview he had with Valerie Plame's husband, former ambassador and administration critic Joseph Wilson. This is the only story. This is a serious story. This is a story that needs REAL journalism to get to the bottom of.

There is only one story here and that is the continuing unraveling of the propaganda machine utilized by this administration. It is not “Gannongate”, because Jeff/Jim does not deserve that much attention. It is about Armstrong Williams, Maggie Gallagher, and Michael McManus. It is about an administration that thinks it can massage the truth, frame the truth, buy the truth or create the truth. It is about a President that thinks that it is ok to have Karl Rove give an exclusive interview to Sean Hannity so he can pimp the social security scam, and call it journalism. It is the abhorrent practice this administration has in assuming that the American people are just too plain stupid to realize that they are being manipulated and lied to.

How Do You Spell 'Education'?

Previously Untargeted Programs at Risk

The White House released the list of program cuts in response to congressional requests, sending it to lawmakers late on a Friday afternoon, when it would receive relatively little attention heading into the weekend.

Typical Administration manevouring.

The timing underscored the political calculations involved as Bush attempts to fulfill his vow to cut the federal deficit in half by 2009 while still paying for wars in Iraq and Afghanistan and financing his ambitious proposal to restructure Social Security. While it may be politically advantageous to announce that 154 programs would be eliminated or reduced, it becomes far dicier on Capitol Hill once they are identified.

The White House claims these programs "don't work well". But basically, the White House just wants all money to go to funding federal counterterrorism efforts, and nothing else.

The NEA thinks this sucks.

Budget Should Reflect Americans' Values

"On Monday, parents, educators, and school employees will learn how the Administration plans to invest in America's public schools for the coming year. America's teachers and education employees agree with the President when he says that for America to succeed in the future, we must invest in children today."

So let's invest in them, instead of chopping 100,000 students out of their Pell Grant eligibility.

NEA Press Center

Thanks to twistedchick for the links.