I was chagrined to see Professor Froomkin recycle this bit of "moral wisdom" from Kevin Drum:

Why has torture been such a hot topic since 9/11? The United States has fought many wars over the past half century, and in each of them our causes were just as important as today's, information from prisoners would have been just as helpful, and we were every bit as determined to win as we are now. But we still didn't authorize torture of prisoners. FDR, Truman, Eisenhower, LBJ, Reagan—all of them knew it wasn't right, and the rest of us knew it as well.

So what's different this time? Only one thing: the name of the man in the White House. Under this administration, we seem to have lost the simple level of moral clarity that allowed our predecessors to tell right from wrong. It's time to reclaim it.

While it may be the case that prior presidents were deprived of the legal counsel of Professor Yoo et al., isn't Drum's focus awfully narrow and self-serving? If what is really at issue is the ability "to tell right from wrong" in time of war, then our present circumstances are hardly unique. When President Bush's prosecution of the War on Terror is compared to his forebearers' military campaigns in this general sense, Drum's comparison utterly falls apart.

For example, FDR may not have authorized the torture of enemy detainees, but he did demonstrate a complete indifference to the distinction between civilians and combatants by authorizing the firebombing of Dresden and Tokyo. He was no saint on the home front either. His tenure saw the confinement of U.S. citizens in concentration camps on racial grounds. See generally Korematsu v. United States, 323 U.S. 214 (1944); see also Korematsu v. United States, 584 F. Supp. 1406 (N.D. Cal. 1984). In fact, the name plaintiff in that suit has drawn an explicit parallel between the current administration's conduct and his experience under President Roosevelt. See Nat Hentoff, Fred Korematsu v. George W. Bush, Village Voice, Feb. 19, 2004. And the parallels are not by any means rhetorical. The Bush administration's contention that it may try enemy combatants by military tribunal depends upon a precedent established by FDR. See Ex Parte Quirin, 317 U.S. 1 (1942) (per curiam); see also Tony Mauro, The Quirin Ruling: FDR's Troubling Precedent For Bush's Terror Courts, Counterpunch, Nov. 18, 2001. Indeed, comparisons between FDR and Bush have generally become somewhat ubiquitous. See, e.g., Ric Medrow, GOP Adopts FDR's Vision For America's Place in the World, Atlantic Highlands Herald, Feb. 27, 2003.

My purpose is neither to justify the conduct of the present administration nor condemn the current president's predecessors. As I indicated during my last stint as a guest contributor at Crescat Sententia, I find wartime torture to be deeply troubling. I do not wish to minimize the moral significance of the events at Abu Ghraib or the decisions that purportedly led to those abuses. But Drum and Froomkin are incredibly mistaken in maintaining that the Bush administration's alleged wartime moral failings are unprecedented or unique.

Update(s): There have been multiple responses to this post. I'll briefly note each below.

Dresden. Interestingly, no one has made a case for attacking Dresden. But I have received a couple of e-mails arguing that it is unfair to lay this particular episode at Roosevelt's doorstep. My correspondents assert that the blame lies with the Royal Air Force, as the individual who ordered the mission in the most immediate sense was British Air Marshal Arthur Harris.

While the RAF shoulders some responsibility, I think that this lets FDR off rather easily. Accordinging to a United States Air Force Historical Division paper on the subject, which presents a far more favorable view of the operation than I have seen elsewhere, the U.S. role is undeniable:

Allied aerial operations were ultimately the responsibility of the Supreme Commander, General Eisenhower, though normally he delegated the immediate authority for employment of Allied air forces to his Deputy Supreme Commander, Marshal Tedder. The latter, in turn, relied upon the commanders of the RAF Bomber Command and the United States Strategic Air Forces (General Carl Spaatz, Commanding) for the actual conduct of specific strategic aerial operations. The top commanders of the Allied strategic bomber forces were required to conduct all of their operations within the framework of bombing directives laid down to them by the Combined Chiefs of Staff (the British Chiefs of Staff and the American Joint Chiefs of Staff).

The paper also presents the allied air operations as having arisen out of the consensus of Roosevelt, Churchill, and Stalin (and their subordinates) concerning how best to bring the war to a conclusion by the summer of 1945. Both British and American (8th Air Force) air units participated in the bombing of Dresden. The paper places all or most blame for bombing of civilian populations on the British, but even if true this hardly absolves FDR given the chain of command. Surely, given our civilian command of the military, he must bear some responsibility for strategic decisions adopted or approved through Eisenhower's office.

The paper also states that, at variance from the RAF, the United States Army Air Force policy was one of precision bombing. However, the 8th Air Force Historical Society has made available online the United States European War Strategic Bombing Survey Summary Report, which gives a fair indication that its U.S. bombing campaigns were less than precise. This impression is reinforced elsewhere:

USAAF leaders firmly held to the claim that they were conducting "precision" bombing of military targets for much of the war, and energetically refuted claims that they were simply bombing cities. In reality, the day bombing was "precision bombing" only in the sense that most bombs fell somewhere in or near the desired city, whereas the night bombing campaign rarely achieved even that.

This, of course, is far from the intentional targeting of civilians. But is does provide grounds for questioning the paper's assertion that U.S. forces merely engaged in precision bombing over Dresden. Neither the aforementioned Survey nor the Historical Society's website appear to mention Dresden.

I have been unable to locate reliable material on the Internet concerning President Roosevelt's personal views of the allied bombing campaign in general or Dresden in particular. If any readers have details, please do send them along.

Froomkin. Professor Froomkin has another post on the subject, in which he distances himself somewhat from Drum's apparent point and clarifies his own views:

That excesses and moral failings in wartime are not new, no reasonable person could dispute.

* * *

The first is that we are in a post-Nuremberg age. We profess and affirm a renewed and specific commitment to the rule of law even in wartime, one that labels some (but not all) excesses as war crimes, anathema. Torture falls squarely into that zone.

The second is that the norm against torture is especially well-established, and long-established, in both our domestic (cf. the Eighth Amendment) and international legal traditions, and in world-wide morality. (For a historic example, consider the post-Civil War case of Andersonville, where the mistreatment of prisoners was strongly condemned.) The prohibition is not a new post-Nuremberg idea, even if the clear deliniation of personal responsibility for adhering to the prohibitory norm may be. The attempt to justify cruel and unusual acts as legal thus is particularly hard to accept and particularly deserving of condemnation.

These are good replies. But I am not entirely certain that they are correct. Notwithstanding the Geneva Convention and other treaties, I am not convinced that torture is universally and unequivocally condemned as contrary to our morals. This article in The Atlantic gives some indication that condemnations of torture and other unsavory interrogation tactics may be somewhat aspirational in character:

The history of interrogation by U.S. armed forces and spy agencies is one of giving lip service to international agreements while vigorously using coercion whenever circumstances seem to warrant it. However, both the Army and the CIA have been frank in their publications about the use of coercive methods.

Some of the American public's reaction to Abu Ghraib would seem to indicate approval of such methods. Indeed, torture is not infrequently celebrated in American popular culture. Denzel Washington's interrogation methods in Man on Fire come to mind. (Note: I am not endorsing these views; I am merely noting that they exist.)

Muller. Professor Muller, who has probably forgotten more about Korematsu than I have ever known, has a similarly good reply:

For a moment, though, let's confine our focus to the Justice Department. In that Department we are seeing unique and unprecedented moral failings. No episode reveals this more clearly than FDR's treatment of Japanese Americans.

Under the leadership of Francis Biddle, FDR's Attorney General, the Justice Department opposed the eviction and incarceration of American citizens of Japanese ancestry. Biddle's top assistants went toe-to-toe with the War Department's top brass, and ultimately the War Department won the fight. But the Justice Department fought the plan, stated in no uncertain terms that they thought the plan illegal and unnecessary, and wanted no part in the evacuation or in the enforcement of exclusion orders that they viewed as unconstitutional. Take a look at the words of Attorney General Biddle here (you have to scroll down a little bit to the entry for Biddle).

The leadership of this Justice Department, by contrast, appears to have been only too eager to provide Defense and the President with a rationale for whatever they wanted to do.

For many of us who are lawyers, these are unique and unprecedented failings in a department that is supposed to protect the rule of law.

I have to confess that this is a particularly nice riposte. Muller manages to turn my one of my own counterexamples against me, and he does so in a fair and persuasive fashion. I don't think that his point can be lightly cast aside.

Conceding this, however, I do think that there are sound reasons for qualifying Muller's critique. First, to reiterate the point that I made in response to Professor Froomkin, it seems to me that norms concerning torture are not as well-settled as we might like to believe. When viewed in this light, I am not so certain that the conduct of DOJ lawyers is quite the betrayal that Muller perceives. With values unsettled, it is not inconceivable that the legal system could incorporate such interrogation methods. Consider, for example, the the aforementioned Atlantic article's depiction of the Israeli legal system:

The Geneva Convention makes no distinction: it bans any mistreatment of prisoners. But some nations that are otherwise committed to ending brutality have employed torture lite under what they feel are justifiable circumstances. In 1987 Israel attempted to codify a distinction between torture, which was banned, and "moderate physical pressure," which was permitted in special cases.

* * *

In 1987 a commission led by the retired Israeli Supreme Court justice Moshe Landau wrote a series of recommendations for Michael Koubi and his agents, allowing them to use "moderate physical pressure" and "nonviolent psychological pressure" in interrogating prisoners who had information that could prevent impending terror attacks. The commission sought to allow such coercion only in "ticking-bomb scenarios"—that is, in cases like the kidnapping of Jakob von Metzler, when the information withheld by the suspect could save lives.

Muller posits that lawyers—and DOJ lawyers in particular—ought to be fighting such efforts. But Professor Yoo et al. are hardly the only lawyers contemplating such methods. Harvard Law School professor Alan Dershowitz has openly advocated torture's incorporation into the legal process, albeit in a far more controlled and limited fashion. See, e.g., The Torture Warrant: A Response to Professor Strauss, 48 N.Y.L. Sch. L. Rev. 275 (2003-04); Torture Without Visibility and Accountability Is Worse Than With It, 6 U. Pa. J. Const. L. 326 (2003).

In the end, I think that Israel's own experience counsels directly against following its lead. As the Atlantic article notes, in 1999, the Israeli high court apparently stripped such methods of their formerly legal status. However, I get the impression that many Americans, both inside and outside of the government, are willing to contemplate the prospect of using coercive interrogation methods. If such sentiments are indeed a moral failing (as Froomkin, Muller, and myself all agree), it seems to be a widely shared one.

For the curious, my final column in the Maroon, reflecting on four years at the U of C, is now online.

It's vaguely on the subject of wildlife, urban, suburban, and rural (see several of the posts below).

Does anyone know if the departments that handle the removal of roadkill from the interstates and other highways have suffered budget cuts? It seems that in the past month, I've seen more roadkill per mile than ever before. My family members, who have not spent the last four years in urban Chicago, agree with me that we've seen a lot. Granted, I've been driving through states I don't normally drive through (OH, PA, VA, NY), so perhaps there's just something different about animal-car collision rates in these states than ones I've driven through more before (LA, AR, MS, IL, TX, NM, CO, WY). But in the Rocky Mountains have lots of deer, I see far more deer, and a higher proportion are alive, so I'm leaning again to the budget rather than state explanation.

1) A few years ago, West Virginia announced that it would now be legal to take home your own roadkill. They were much mocked for this policy, but the fewer dead deer lying on those dotted lines, the better.

2) All this reminds me of one time, years ago, when my younger sister was a toddler or not much older. We were driving through Arkansas with my grandmother. My sister had some interest in roadkill, so whenever my grandmother saw an armadillo or anything, she'd point it out to my sister. But my sister wasn't very quick at spotting what my grandmother pointed out to her, so she'd miss it and get upset. My grandmother would tell her that there were lots more, and point out more roadkill, which my sister would miss seeing again. And so forth.

A bunch of people in the blogosphere are writing about the possibility that Vladimir Nabokov borrowed or stole "Lolita" from some obscure German author named Heinz von Lichberg. I saw this most recently in a guest-post at the Volokh Conspiracy, but it was covered earlier by Ed Cohn of Gnostical Turpitude, who links to several online articles about the stuff (which the Conspiracy post does not).

Nabokov is a tricky fellow . . .

and there is a terribly relevant detail, which Rosenbaum mentions but Caldwell does not-- the existence of Nabokov's story "The Enchanter", written long before V.N's Lolita, but after von Lichtberg's, which doesn't use the name "Lolita," and is clearly a pre-study of the later work. [The Enchanter is a nice, nice, little book!, in my opinion, and an example of the wit and force that Nabokov is capable of in his simpler works. I still prefer his more complex works, but its the sort of book that might even satisfy the "Will's ex-girlfriend objection".]

Anyway, as I started to say last paragraph, Nabokov is a tricky fellow. The Nabokovian (an incredibly fun journal for Nabokov-lovers, probably available at your university library) has devoted volumes and volumes to uncovering all of the allusions in his best and most intricate book, Ada, and after reading them all in an obsessed haze last fall, I find it difficult to believe that every single one of them was intentionally lodged there by V.N.

More likely, somebody with his voracious habits of reading and writing (and his tendency to write down notes and scenes and thoughts and then discard them and reshuffle them for later use) is plagued by a bit of cyptomnesia. I have no idea whether that happened here, though anybody interested in the question should seriously inquire whether there might be some third source in legend or lore that might have inspired both von Lichberg and Nabokov to the link between lithe, limpid nymphets and "Lolita".

My best guess: Nabokov tells the truth in his Lolita afterword about having gotten the idea from a news report, then wrote "The Enchanter," which he put aside. Then he read von Lichberg (or my hypothetical third source), and didn't think much of it, but years later when he came to America and became inspired by the Americana that drives much of Lolita, the name just sprung into his mind and became his. Similar things have certainly happened to me.

Normally, I care a great deal about the allusions and connections in V.N.'s books, but somehow cannot work up the literary wherewithal to care much about this particular allusion (or plagiarism, depending on the tack one takes).

Perhaps this apathy is simply because I was inculcated too deeply by Ernesto Quinonez, who told me in a class a few summers ago: Bad writers borrow; great writers steal. (The notion being that original ownership is nothing compared to final ownership.)

UPDATE: Thus Blogged Anderson writes in to let me know that Mr. Quinonez borrowed the above advice from T.S. Eliot, who wrote, in The Sacred Wood:

One of the surest of tests is the way in which a poet borrows. Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different from that from which it was torn; the bad poet throws it into something which has no cohesion.

One of my much-loved former professors, (who shall not be named) overheard a few minutes ago:

This is one of those times that if it were socially appropriate and not destructive I would go have a whiskey. But I guess I'm only going to have lunch . . .

I must side with Will rather than Amber when it comes to urban wildlife: just because you live in a city doesn't mean you can't see, well, rabbits (saw ten of them, chewing on grass in the main quad here, on my way home Sunday night) or deer or even peregrine falcons!

Below, Amber laments the lack of much wildlife in urban areas. I share her mixed feelings about metropoli-- there are many conveniences for the young and tight-budgeted, but one misses certain furry creatures (one of the reasons for last weekend's bramble).

But rabbits--

cities do have rabbits! My first winter here, a friend and I were wandering by Lake Michigan just a few blocks east of the University, and a rabbit went hopping by through the snow. She excited exclaimed, "a rabbit!" and I was so confused. Yes, of course it's a rabbit, I thought. You see rabbits all the time, don't you? She said she wasn't sure she'd ever seen a rabbit before in the wild. She's from Manhattan. (Speaking of rabbits, on the combined advice of Amber Taylor and Heidi Bond, I've started Watership Down, but the library is going to claim it back from me before I have time to finish . . . alas!)

All of which is to say, there exist mixed neighborhoods-- it's less than 30 minutes by express bus from Hyde Park to the Chicago Loop, but you can still run into rabbits or the famous Hyde Park parakeets. A friend's porch was once persistently haunted by a very adorable raccoon. That said, I agree with Professor Andrew Abbott that that mix of urban grey and rural fur is not the reason to come to the U of C:

What makes Hyde Park worth living in is not the amenities. There are far better urban neighborhoods for those who like city life and far preferable suburban and rural universities for those who don't. No, it is the culture of the University that brings faculty, that brings them in and holds them at prices below what they could command elsewhere.

I, like Professor Leitzel, also set my alarm extra early to behold the transit of Venus across the sun and I, like Professor Leitzel, was also disappointed. Whenever there is an eclipse or comet or some other astronomical anomaly, I get terribly excited and cut a small round hole in a piece of paper far in advance. This morning, when no shadow was visible in my little sun image, I of course, did the thing all the newscasters told me not to - I looked directly at the sun. Besides a headache and yet unknown damage to my eyes, I came away with nothing. I had one final idea, to pop the lenses out of polarized sunglasses and shift them in a way as to filter out a significant amount of light, but alas, this idea came to me around 7:03, just minutes before the meandering planet was to be out of view. And where can you find polarized sunglasses that early in the morning? So I turned on the television and saw the pretty unremarkable image on the news, a tiny dot at the edge of a muted sun. As unremarkable as it was, I still don't regret my sacrifice of precious sleep and I know that I'll be excited for the next astronomical anomaly (I only hope that it's something that occurs when dark). For those of you who also missed observing the little spec of Venus move across the solar disc's projection path, you can behold it here.

On a more maddening note, the venerable law professor Erwin Chemerinsky is today's Constitutional Law lecturer in my bar exam study class (Bar/Bri).

He just mentioned the "seminal" case of Griswold v. Connecticut [finding a right to purchase and use contraceptives], and hoped aloud that we had no "misconceptions" about it.

You know, studying for the bar is bad enough without the horrid puns...

(If you're looking for food and sex, I've got ya covered.)

(If you're looking for food or sex, scroll on.)

After two years of living exclusively in urban areas with no meaningful access to a car, small things you once took for granted loom large. Heidi Bond remarks, on her solo blog, on the regional variations in squirrel locomotion (and has anyone ever noticed that Pepe La Pew leaps and bounds exactly like a squirrel and nothing like a skunk? What animal were those animators thinking of? But I digress). My own amusement with these tiny creatures is blown out of all proportion, and the reason is that they are one of the few examples of wildlife one sees in an urban setting. Pigeons and sparrows do not count; their plumage blends in with the concrete and dirt of the city, and they seem more at home in city than country. Rats are similar; maybe it’s the expressiveness of a squirrel’s tail that gives the impression of verve and wildness.

Living in the city brings with it innumerable benefits, but it also means that you never have the chance to walk to class on a misty morning and step quietly past the rabbits as they crop grass, curse voluminously upon stepping in an armadillo hole, or exchange stares with an opossum or raccoon. You won’t glimpse a deer moving in the field (although your suburb dwelling coworkers may encounter them more closely than they’d like and tell you all about it). The only wild things in the city are people. And perhaps squirrels.

A full solar eclipse when I was in elementary school. Comet "of the century" Kahoutek, which was to be the basis of my junior high school science project in 1974. That line-up of Mercury, Venus, Mars, and Jupiter just a few weeks ago. And now, we can add this morning's transit of the sun by Venus to the list of astronomical phenomena that I did not see.

In order not to see the rare transit, I awoke at 5:20 AM and headed to the shores of Lake Michigan, with a pair of sunglasses someone had thoughtfully left in my car six years ago. The masses of people I expected to find on the lakeshore to share in the non-sighting were largely absent -- had they identified a better method for not viewing the mini-eclipse? There were a few folks, however, who came prepared, some with homemade devices for failing to reflect the vision of the Venusian path across Sol. Others arrived with more elaborate equipment, specially designed not to observe an event that only occurs once every seven hundred and four billion years.* These people seemed to be placed in locations that would capture the attention of any supermodels who had come to the lakeside with Venus on their minds, but in the excitement had forgotten to bring along their welding goggles. At any rate, as far as I could tell, all of us managed not to see the transit.

Thanks to Will Baude and the other Crescat denizens for inviting me back for the graduation week jamboree. At my home of Vice Squad, I assiduously avoid going off-topic: at Vice Squad, its all-you-can-eat smash-face vice policy, all the time. I stuck with that rule when Crescat hosted me for a week last November, too – and now you can see why. No promises for what the rest of the week will bring, though I will try to live up to that adult billing Will bestowed upon me -- or maybe not. It's good to be back, at any rate. Thanks again.

*In truth, the transit occurs every hundred years or so -- before today, the most recent Venusian transit was in 1882 -- but we are blessed with a rapid transit repeat slated for 2012. So if you failed to fail to see today's transit, make sure to miss it next time.

Dan Drezner has a long post about Jennifer Lopez's marriage to Marc Anthony. I just want to note that -- ashamed as I am to own a Jennifer Lopez CD (I bought it in high school!), her old duet "No Me Ames" with Marc Anthony is a quite lovely and lively piece of music, and also fun for semi-Spanish speakers like myself to try to transcribe and parse out.

I'm not, however, going to follow Chris's lead with gratuitous links to pictures of Jennifer Lopez wearing her habitual deshabille. Other than the picture already on Professor Drezner's site, of course . . .

Will tries gamely to turn the topic of conversation from sex to food. I'll indulge with a recipe for a quick yet tasty breakfast:

1. Grate about a handful of cheese. Cheddar works well. Add some spices (Montreal Steak Spice works well) to the cheese.
2. Grill some frozen hashbrown potatoes in a skillet on medium for about 10 minutes, turning every few minutes to brown evenly.
3. Sprinkle cheese over hashbrowns, turning the mixture for about one minute to melt the cheese.
4. Optional: add an egg or some ham along with the cheese.
5. Serve with HP sauce.

... and speaking of games, the Tampa Bay Lightning thumped the Calgary Flames 2-1 in game 7 of the Stanley Cup final [psst — ice hockey — and no, I don't have any idea why they're playing ice hockey in Florida.]. Oh, the shame! I was so looking forward to the riots on the "Red Mile" (17th Ave) in Calgary had the Flames won.

And, just to bring this post around full-circle and thwart Will's designs, I'll end with an entirely gratuitous link to FlamesGirls.com.