The Navy brought these six guys back to Virginia in April after they fired on the USS Ashland, in what was probably a case of mistaken identity (I mean, who thinks piracy against the US Navy is a good idea?!?). They were charged with a bunch of things, but the most important and obvious of the charges was piracy, which carries a mandatory life sentence.

The defense raised a troubling argument: "piracy" is not defined in statute, but rather by Supreme Court case law. In particular, an 1820 case: "We have, therefore, no hesitation in declaring that piracy, by the law of nations, is robbery upon the sea," Justice Joseph Story wrote for the majority in United States v. Smith. The defendanst argued that they did not complete their act of piracy (they didn't actually rob the USS Ashland because it blew their little raft to smithereens) and so cannot be properly charged as pirates. This would be distinct from an attempted piracy charge, which I guess wasn't or couldn't be (?) made.

The judge bought it.

A judge on Tuesday dismissed piracy charges against six Somali nationals accused of attacking a Navy ship off the coast of Africa, concluding the U.S. government failed to make the case their alleged actions amounted to piracy.

The dismissal of the piracy count by U.S. District Judge Raymond A. Jackson tosses the most serious charge against the men, but leaves intact seven other charges related to the alleged April 10 attack on the USS Ashland in the Gulf of Aden. A piracy conviction carries a mandatory life term.

"The court finds that the government has failed to establish that any unauthorized acts of violence or aggression committed on the high seas constitutes piracy as defined by the law of nations," Jackson wrote in granting the defense motion to dismiss.

Five other Somalis are before a different district court judge and making the same argument. One Somali pleaded guilty. Bet he feels like an idiot.

Much more on the background of the piracy issue was in the Wall Street Journal over the weekend.

More:

This grates so much, like many court decisions these days, because it bugs our common sense. Just see the Stolen Valor post below. Most of the commenters noted quite correctly that obviously these jerks aren't lying about having military medals just for the sake of lying. They're doing it to get stuff: attention, donations, political support, free drinks, whatever. That's freakin' obvious.

And that's part of what makes lying about having service medals objectionable in the first place. These guys are taking recognition that rightfully belongs to actual service medal winners. So they're harming the good guys and they're harming the public at large. Obvious.

So why didn't Congress put that in the Stolen Valor Act? Courts these days demand that every little thing be spelled out in triplicate, so it doesn't matter that this is obvious to everybody. If it doesn't appear in the statute, the courts aren't going to go out of their way to interpret it in. Particularly in a case that runs smack up against the First Amendment.

Same thing happens in this piracy case. In a criminal conviction, particularly one involving a mandatory life sentence, the starting point is: what is "piracy." Because it seems so obvious, Congress never defined it. And now the courts are sitting there wondering if piracy includes failed acts of robbery on the high seas. Oy.

Obvious. But law doesn't work that way. You want to put somebody away for life, you better be sure to get the charges right. Again, that runs smack up against the Fifth and Eighth Amendments. And courts are going to tend to err away from fudging that kind of thing, just because it's "common sense" that they're pirates. Due process and "beyond a reasonable doubt" and all that.

Posted by: Gabriel Malor at 11:59 AM | Comments (215)
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First, the Stewart clip that sets off Beck (and takes a cheap shot at him).

As a preamble, I have to note my friend not_steve_in_hb's complaint: Gee, we can't say boo about Islamic murder and mayhem, at least not with a wink to let the audience know that we certainly don't believe that sort of thing about one of the World's Great Religions, but no such winking is necessary when making old jokes about the Catholic Church -- see how the audience hoots up a storm and breaks out into Pavlovian applause for that.

One point, though: There is exactly one funny line in this, near the end, when the British Christian guy is telling Stewart that Jews shouldn't wear yalmulkes on Good Friday. And it is a damned good line. That exchange begins at 7:00 and ends at 7:45, in case you want to skip the rest of it, which I don't blame you at all for doing.

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Posted by: Ace at 11:40 AM | Comments (106)
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Last month, it was a federal district court in Colorado. Today, the Ninth Circuit agrees and strikes the Stolen Valor Act as a violation of the First Amendment prohibition on Congress "abridging the freedom of speech." The decision is here (PDF).

The Act, as presently drafted, applies to pure speech; it imposes a criminal penalty of up to a year of imprisonment, plus a fine, for the mere utterance or writing of what is, or may be perceived as, a false statement of fact—without anything more.

The Act therefore concerns us because of its potential for setting a precedent whereby the government may proscribe speech solely because it is a lie. ... The sad fact is, most people lie about some aspects of their lives from time to time. Perhaps, in context, many of these lies are within the governmentÂ’s legitimate reach. But the government cannot decide that some lies may not be told without a reviewing courtÂ’s undertaking a thoughtful analysis of the constitutional concerns raised by such government interference with speech.

Finding no appropriate way to avoid the First Amendment question [the defendant] poses, we hold that the speech proscribed by the Act is not sufficiently confined to fit among the narrow categories of false speech previously held to be beyond the First AmendmentÂ’s protective sweep.

The douchbag involved is something of a nutter (he also lied about playing hockey for the Detroit Red Wings):

On July 23, 2007, at a joint meeting with a neighboring water district board, newly-seated Director Alvarez arose and introduced himself, stating “I’m a retired marine of 25 years. I retired in the year 2001. Back in 1987, I was awarded the Congressional Medal of Honor. I got wounded many times by the same guy. I’m still around.”

Alvarez has never been awarded the Congressional Medal of Honor, nor has he spent a single day as a marine or in the service of any other branch of the United States armed forces. In short, with the exception of “I’m still around,” his self introduction was nothing but a series of bizarre lies.

The bolded sentence is what got Alvarez in trouble with the FBI.

I originally thought the Stolen Valor Act was broader in that it applied to things other than speech, like wearing the uniform or wearing or displaying medals. I also thought it required more for a conviction -- for example, proof of fraud or harm to another or attempts to gain a benefit.

I'm not a fan of the idea proposed by the prosecutors here that the First Amendment -- which purports to prevent Congress from "abridging the freedom of speech" -- doesn't apply to lies, though I admit I tend toward First Amendment absolutism.

Eugene Volokh said in an amicus brief in the Colorado case (PDF) that the Supreme Court has never articulated a clear rule for which knowingly false statements of fact are constitutionally protected and which are not. He believes that prohibiting lies about military service is constitutional, though, because there is low "constitutional value" in a knowing falsehood and it's not likely the law will deter true speech about military service.

Judge Bybee dissented, suggesting that the Supreme Court has been clear about excepting false statements from First Amendment protection:

[T]he better interpretation of the Supreme Court’s cases and those of our court is that false statements of fact—as a general category—fall outside of First Amendment protection except in certain contexts where such protection is necessary “to protect speech that matters.” If a false statement does not fall within one of these exceptions, the general rule applies. And even in the exceptional contexts, a false statement that is neither satirical nor theatrical is unprotected if it is made with knowledge or reckless disregard of falsity.

It is extremely likely that the Supreme Court will take a Stolen Valor case and resolve the issue, though it might wait until there is a bonafide split in the circuit courts first. I have no idea how Mr. Determinator Justice Kennedy comes down on First Amendment stuff. I will note that Justice Scalia is something of an absolutist in this area. For example, he wrote a 1990 decision that held cross-burning to be protected speech ("Let there be no mistake about our belief that burning a cross in someone's front yard is reprehensible. But St. Paul has sufficient means at its disposal to prevent such behavior without adding the First Amendment to the fire.").

Posted by: Gabriel Malor at 10:53 AM | Comments (160)
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A method of getting an internet ad a lot of views is to make it so strange people just view it for the WTF factor.

Is that what Emily's List is doing here?

If so, they've failed; this makes them look stupid (and... physically unattractive), but it's too cutesy and contrived for anyone to care about.

So here's their big Palin-Hate ad, featuring... Ewoks, which really isn't how liberal women ought to be selling themselves.

A little too... on the nose, I think.

If you have trouble understanding them, maybe this will help.

Here's a top ten. It's not a really funny one. Half of these are seriously-intended complaints and not jokes at all. But I couldn't come up with ten jokes. So you get like four jokes and six complaints.

Top Ten Problems With Emily List's Ewok Ad

10. Too much boo-hoo, not enough yub-yub

9. Silly costumes sort of remind people that these women have to play dress up to be Mama Grizzlies, doesn't it?

8. One time seeing furries yiffing and scritching in a fur-pile on CSI was plenty for me

7. If Sarah Palin's so dumb and silly, why is it you who are dressed up in the bear costumes?

6. Video confirms age-old stereotypes that liberal women are nothing but half-witted scruffy-looking nerf-herders

5. Ad unlikely to resonate with mothers worried about paying rent and putting food on the table during near-depression when it asserts that what's most important to your average married woman with children in dire financial straits is right of gay dudes to get hitched

4. I can only imagine "what's cookin'" underneath all that latex and wool... I'm thinkin' these women must smell like Brian Dennehy's taint's gym socks

3. There's a reason Yogi Bear was never a guest on Firing Line, you know

2. Ad about female empowerment and advancement seems a little too fixated on make-up and funky hats

...and the number one problem with Emily's List Ewok ad...

1. Wicket just emailed me to say only one was worth "nutting on"

Posted by: Ace at 09:55 AM | Comments (310)
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Again, top left; the chart will probably show yesterday's number of 50%.

Guess Friday isn't always a good day to release bad news, huh?

More than half. More than half.

You know what I call that? A majority.

Oddly that 42% of support isn't budging at all. So I guess that will be a tougher nut to crack.

On the other hand, we are seeing the daily erosion of support from people who, while having great doubts in Obama, were willing to keep their minds open about him, waiting to be impressed or convinced, and were unwilling to make the psychic leap to say they "disapproved" of a man so obviously beloved by the swells and the vanguard.

But now they are moving out of that category of wait-and-see into the position of opposition.

The cracks are running, the gigantic shabbily-constructed monolith of Our New God Obama is beginning to tremble and rumble and totter and tip.

And even as dust and debris begins falling upon them, the wild-eyed celebrants pray still harder, believing their Faith will hold the behemoth up, their devotion will root the New God in place.

They should get out of the way. But they won't.

Posted by: Ace at 09:22 AM | Comments (136)
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On Sunday, Gen. Petraeus downplayed the significance of the July, 2011 drawdown date for Afghanistan.

“I don't find it that stifling,” he said. “I'm not bowed over by, you know, the knowledge that July 2011 is out there. In fact the president has been very clear, Vice President [Joe] Biden has been very clear as well more recently that this is a date when a process begins, that is conditions-based. And as the conditions permit, we transition tasks to our Afghan counterparts and the security forces and in various governmental institutions, and that enables a quote ‘responsible’ drawdown of our forces.”

...Petraeus said the president told him in the Oval Office that he wants his “best professional military advice,” adding that it’s too premature to assess what that might be a year from now. “The president has been quite clear in explaining that it's a process, not an event, and that it's conditioned-based,” he added.

That must have been to clear of a statement for this administration to take, so they promptly tried to muddy the water up again.

But White House spokesman Bill Burton, speaking to reporters traveling on Obama's plane to Milwaukee, said the general's remarks had been taken out of context.

"I think that that is a very thinly sliced parsing of what he had to say. He said very specifically that that deadline stands and there is no daylight between the president or his commanders on the ground when it comes to July 2011," Burton said.

"As you saw with Iraq, when the president makes a commitment, he keeps it. And he intends to do that here as well," he said.

"Obviously the scope and rate of withdrawal will be conditions-based, but the date is not negotiable," Burton added.

What the hell does that mean? You can't have it both ways. If conditions dictate that the"scope and rate" of the withdrawal be none, then the date has no meaning. If the the date means "people are leaving no matter what's going, it's just a question of how many and how fast" then talk of "conditions" is meaningless.

This isn't an issuing of "parsing" words, it is what happens when you try to manage a war looking at a political calendar.

The first big date on that calendar is this year's midterms. Obama can't depress an already battered leftwing by saying his "date" is meaningless, even if its very existence makes it harder to accomplish anything by then.

The second date on the calendar (and the one that really counts) is November 2012. Obama wants to have something concrete to show to Democrats and nervous independents that we are on a glide path out of the 10 plus year fight in Afghanistan.

Obama's big problem is whether or not Petraeus plays ball. If the general says a little more time will produce big results, Obama will have to keep triangulating...saying he's pulling out, while appearing to give Petraeus (whom many Americans view as a military savior) what he asks for. Either that or he will publicly smack Petraeus down (very politely) and say, "Sorry Dave, I gave you everything you asked for and you and the boys gave it your best shot but as the Commander in Chief, I'm making the call to withdraw. Thank you for your service. Hey, who is up for Hope and Change, Round II?"

It's a hell of a way to run a war.

Oh and as for the "As you saw with Iraq, when the president makes a commitment, he keeps it" bit? Screw you Obama. You inherited all of that (time lines and everything) from Bush. Now you guys are to demure to talk about Bush? Punks.

Via Gabe.

Posted by: DrewM at 09:01 AM | Comments (48)
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I was at a rightwingish drinking thing last night and trotted out my pet claim, which I make more because it's provocative than I'm really sold on it: That Obama will not seek reelection in 2012. He will declare he's done what he needed to do and now it is time for new leaders to build on his vision.

He'll declare victory and cut and run. Because 1, we will probably be in a depression, 2, his poll numbers will be at 35%, and, perhaps most importantly, 3, he has never had to face adversity or criticism or setback in his entire charmed, guided-by-hidden-hands life and has found he's had enough of that to last a lifetime.

Like I said: More of a provocative conversation-starter than something I necessarily would bet money on. (But I would bet money on it, actually, with good odds.)

Well, other people are tossing out the same provocation.

Q: Will Barack Obama be a one-term president?

A: Yes, he might last that long.

Honest to goodness, the man just does not get it. He might be forced to pull a Palin and resign before his first term is over. He could go off and write his memoirs and build his presidential library. (Both would be half-size, of course.)

I am not saying Obama is not smart; he is as smart as a whip. I am just saying he does not understand what savvy first-term presidents need to understand:

You have to stay on message, follow the polls, listen to your advisers (who are writing the message and taking the polls) and realize that when it comes to doing what is right versus doing what is expedient, you do what is expedient so that you can get reelected and do what is right in the second term. If at all possible. And it will help your legacy. And not endanger the election of others in your party. And not hurt the brand. Or upset people too much.

This is definitely not a read the whole thing; frankly, I made you read that much just because I'm annoyed that I read it so I'll inflict it on you.

Roger Simon's bleat -- all these idiots say the same thing -- is that Obama is just too principled and too brilliant for his own good; he is such a wholly white-light being that he hath not the tongue for falsity.

And all that crap.

Is that really the problem, Roger? Is the man who swore up and down on his typical white person grandmother's life he would not raise a "single dime" in taxes on anyone making less than $250,000 really without capacity to lie to the public?

Of course he can lie. He lies ten times a day, and that's even on a typical day when he spends six hours at the golf course.

It's that he's too liberal and too proud and too arrogant to lie about something like this, something crucial to the liberal sense of self-worth: The need to preen and lecture to the commoners.

Without that, what is a liberal? Nothing, really. Just someone who complains a lot and never has any interesting solutions.

He has lied forever about his stance on gay marriage. Everyone knows he supports it -- that's why the left constantly denigrates the right's position on gay marriage, despite the fact that as a formal matter we have the exact same position as Obama. But the left knows it's a lie; so do we on the right. If the left believed him, they'd savage him in the same terms of "hate" and "homophobe" they reserve for us; but of course they do not.

For they know full well it's a lie. Obama barely pretends otherwise.

And yet -- his blessed tongue hath not the practice at pretense? He hath not acquired the art of artfulness?

No, Obama knows how to lie. And he's rather good at it, having had an ample need for convenient lies throughout his image makeover from radical community organizer and member of the socialist radical New Party into "moderate centrist above ideology or the tired old schisms of left and right."

But some lies he enjoys telling -- he enjoys telling the middle-class they will not see their taxes go up a "single dime" because it is part of the leftist more to lie shamelessly to the middle class, which are bourgeois, and therefore, impediments to the Great Changes Which Must Be Made.

He gets credit from the left for such lies, I mean. They admire him for his skill at deceiving those who must be deceived.

But some lies bother him -- lies that would cause him to suffer in the opinion of those who really matter, the radical left vanguard. He is nothing without their love and adoration and unending effusive praise; he courts them like lovers.

He cannot and will not suffer in their estimation, for suffering in their estimation would be suffering in his own estimation. If the Left thinks poorly of him, then he thinks poorly of himself-- what is he if not the savoir of the Left?

So stuff it with the too-principled-to-lie you useless, talentless, dishonest nobody internet hack.

Or, as I said on Twitter last night: (Content Warning for profanity).

Posted by: Ace at 08:40 AM | Comments (190)
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I don't know if he's asking me to vote for him or to give him highlights.

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Posted by: Ace at 07:55 AM | Comments (67)
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Let them eat exhaust fumes.

This isn't a huge thing. But it's not like he needed any additional bad press. Nor any additional confirmation that he was... well, by no means a common man.

The massive traffic jam that resulted from President Obama's motorcade and speech Monday night in Hancock Park is prompting calls for an investigation from some residents, who say they were caught in traffic for hours.

Obama was only in L.A. for a few hours, but his presence caused numerous streets to be blocked off.

Residents reported that commutes and errands that typically took minutes turned into hours-long ordeals. One particular complaint was that streets remained blocked for hours -- even when Obama was inside TV producer John Wells' Hancock Park home at a fund-raiser.

"What has occurred is way beyond reasonable and can only be described as negligent," L.A. resident Kevin McCarthy said in an e-mail to The Times. "If it isn't my story, currently evolving, of beginning my 1 mile journey home at 5pm and at 7:50pm now being 3 miles from home with no viable idea of how to get closer, it should be about the two sirens-wailing ambulances I have witnessed stuck in this unnecessary gridlock."

Racist.

Thanks to Slublog, and his always-breaking-news twitter feed is here. The p-shop is his too.

Now Wait a Bloomin' Minute! Circa --

If your bloom is malfunctioning press 1, if your bloom is discolored press 2, if the bloom has fallen off your rose blame Bush and go on vacation.

Posted by: Ace at 07:34 AM | Comments (129)
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Sestak must be wondering if that job offer from Obama is still on the table.

Pat Toomey has taken a 45-36 lead in the Pennsylvania Senate race. That's a big change from the tie PPP saw in a June survey of the race but pretty similar to the solid Toomey lead our April survey showed.

Toomey's winning for the same reasons most Republican candidates across the country are doing well in key races right now:

-He has a 50-23 lead with independent voters.

-He's benefiting from a much more unified party, as he leads 74-9 with Republicans while Sestak is currently up only 64-15 with Democrats.

...The biggest key to the race is probably Obama's considerably fallen popularity. His approval rating stands at only 40% with 55% of voters disapproving of him, one of the biggest declines from 2008 performance we've seen for him anywhere in the country. Part of Obama's low numbers is a reflection of the Republican trending voter pool in the state this year, but there are also more people who voted for Obama but disapprove of him now in Pennsylvania than there are most places.

All those damn bitter clingers and Mutha "rednecks".

As you may have noticed, this is a PPP poll and they are the new official polling outfit for Kos, so you know, it's not going to be GOP friendly. Yet the Democrat still gets walloped and Obama's numbers are still in the tank.

Posted by: DrewM at 07:21 AM | Comments (75)
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