August 21, 2004

Requiem for a Diva: Slate admirably defends the self-proclaimed "Queen of Gymastics", Russian silver-medalist Svetlana Khorkina.
Well, it now turns out that it wasn't really about the medals after all. As report after report after report after report, ad infinitum, have discredited the recovered memories of the "Swift Boat Veterans", the bloggers who had previously put their reputations on the line in backing their accounts are now starting to acknowledge that the truthfulness of the Vets wasn't the issue, nor whether the Bushies were giving them covert backing; it was whether Kerry was inside the Cambodian border on Christmas Eve, 1968. Not whether he was ever inside Cambodia, or whether he was inside Cambodia a few weeks later during the Tet Festival, but whether his memory of an event that was then 15 years in the distance (now 35 years) was completely accurate. Oh, and also that Kerry has been forced to address the issue. It's nice of them to narrow the critical issues down for the rest of us.

If the exposure of Trent Lott symbolizes the best of what blogging is capable of doing in shaping the national agenda, this story represents its nadir, an example of how the tactics of Joseph McCarthy and Josef Goebbels can be used to hype a partisan agenda, combining rumors, innuendo and out-and-out falsehoods in an effort to discredit a public figure. Only in the blogosphere, it seems, can a trivial mistake in the memory of a person can lead to one being called a term that in any other circumstance would be the most morally devastating thing you can say about someone: liar.

Unlike Atrios, I have been reticent about calling the "Swift Boat Vets" liars. Recalling events that took place thirty-five years ago can be difficult for anyone to remember, and any memory has to be considered in the context of its possessor's biography. In the case of the SBVs, who almost to a man violently disapproved of John Kerry's anti-war activities after he came home from Southeast Asia, to have seen him boast of his battlefield courage last month in Boston must have been particularly grating. Combine that with the fact that Kerry sometimes rubs people the wrong way in personal situations, and you have a recipe for anecdotes based more on wish than fact. It would not surprise me if each of the SBVs honestly believes that his account is truthful, but that is not the same thing as saying something is true, just as a false memory is not the same thing as a lie, no matter how seared it seems. So even though I don't believe them, I'm willing to give men who honorably served their country a break when it comes to that label.

For practicing lawyers, the tricks memories play on witnesses, especially after the passage of time, is a matter that comes up repeatedly in court. Around the time I first took the bar, a septuagenarian from Cleveland named John Demjanjuk was being tried for war crimes in Israel. Witness after witness took the stand, testifying to very vivid and horrifying memories that Demjanjuk in fact was the infamous, "Ivan the Terrible", a particularly sadistic prison guard at Treblinka. The problem, of course, was that Demjanjuk wasn't at that camp, although he was a guard elsewhere. He was a war criminal, just not the one that the witnesses had remembered. But if you believe Prof. Reynolds or Roger Simon, each of those Holocaust survivors who testified under oath that he was Ivan the Terrible was lying, and should have been prosecuted for perjury. Contemporaneous accounts and documentation are almost always more reliable, and tell a more accurate story, than the memories of witnesses years after the fact.

Thus, the fact that so many of the bloggers who hyped these accounts are attorneys, quite frankly, is an embarrassment to my profession. As officers of the court, we are charged with ensuring that the truth will out, within the context of an adversarial system. We don't swear an oath to tell the truth when we appear before the bench, since it is assumed that everything we say must be true. A lawyer who presents false evidence, or makes a reckless allegation in presenting his case, not only dimishes the regard that the society as a whole views our profession, he also runs the risk of being sanctioned or disbarred.

That is, I believe, the real reason the public acted with such outrage at Johnny Cochran and F.Lee Bailey after the OJ trial, and why people have been so utterly disdainful of the Kobe Bryant prosecution. It should be our job to present a case without passion or prejudice, not to unfairly malign or persecute to obtain an advantage in court, or to exaggerated the shortcomings of our rivals.

And those ethical considerations are not simply limited to what we say in court. A lawyer who slimes his adversaries, deceives his opponents, and misstates the truth in the course of representing a client deserves nothing but opprobrium from the public. When Clinton was impeached for lying about his affair with Ms. Lewinsky, I fought that tooth and nail; a President who can be removed from office for the most trivial mistake in his private life does violence to democracy. When he was disbarred after his Presidency, I sadly approved, even though the conduct itself did not arise from his representation of a client. My profession should no more tolerate those who lie to the public than the priesthood should tolerate pederasts.

And in my opinion, the lawyers who have blogged this story, and who have made the most extreme charges against Kerry, are, ethically speaking, somewhere beneath your run-of-the-mill ambulance chaser.

August 20, 2004

To state this position as categorically as possible, Amanda Beard is the most beautiful woman to win an individual gold medal in the Summer Olympics. Ever.
We will know on Election Day whether Kerry's "rope-a-dope" strategy of allowing the allegations of the "Swift Boat Vets" to simmer on right wing talk radio, blogs, and the Moonie/Murdoch Axis before answering the charges, as he did yesterday, was successful. My hunch was that he only responded after seeing evidence in the polls that the rumors were starting to hurt him with swing voters, and a forceful denunciation of the charges was going to be necessary, or else he would be perceived as being weak. What we can say is that none of their allegations concerning his battle wounds or acts of heroism has stood careful scrutiny, and that the position of the Bush campaign in not taking a stand on these ads is becoming increasingly untenable.

August 19, 2004

Perhaps the biggest surprise of the Olympics, the Iraqi Olympic soccer team, has attacked the unauthorized use of their team in Bush campaign ads. Team captain Salih Sadir, who scored in yesterday's 2-1 loss to Morocco, told that "Iraq as a team does not want Mr. Bush to use us for the presidential campaign...[H]e can find another way to advertise himself." Another player, star midfielder Ahmed Manajid, was even more blunt, admitting that if he weren't playing in the Olympics, he would probably be taking up arms as an insurgent in his hometown of Fallujah.

August 17, 2004

United States [B] 77, Greece 71: After losing one key player to fouls, and having another hampered by a broken thumb, it was up to obscure journeymen Lamar Odom and Stephon Marbury to come up big with the clutch plays for the mainland squad in turning back a late rally by the host country. The win was doubly sweet for the unheralded Marbury, who plays domestically in the minor league "Eastern Conference" for New York. For American fans, though, it was a bittersweet day, as the "A" team from the commonwealth lost a close one to Lithuania earlier, 79-70.

August 16, 2004

Does anyone remember when the Olympics used to take place in front of something that resembled an actual crowd? Athens is starting to bring back memories of when I was in law school, when I used to study Contracts and Property at a location even more quiet than the Law Library at USC: the cavernous upper deck of the LA Sports Arena during an SC basketball game. Unlike, say, the venue where men's gymnastics is being held, the Trojans at least drew a couple thousand for their games.

In two weeks, what will probably be the last chance for George Bush to change the dynamic of the Presidential election will occur in New York City, the site of the Republican Convention. Since John Kerry clinched his party's nomination in March, there has been a steady, relentless trend in the national polls giving him between a two and seven point lead, a trend that hardened after his convention last month. Kerry not only leads Bush in every state captured by Al Gore in 2000, he continues to lead in almost every "purple" state that Bush narrowly carried last time, such as Florida, West Virginia, Ohio, New Hampshire, Arkansas and Missouri. In fact, Kerry is practically tied with the President in a number of states that cannot reasonably be considered part of the Democratic base, including North Carolina, Tennessee, Colorado, Arizona and Virginia; unless the situation on the ground changes, Kerry may well capture over 400 electoral votes, something that has been accomplished by a Democrat only once in the last 60 years, as well as sweeping the Democrats into power in both houses of Congress.

Of course, the first Tuesday in November is an eternity away, and the polls can shift dramatically from now until the polls open, so Kerry supporters should feel far from complacent. Because of his unpopularity, Bush as an excellent chance to get what eluded Kerry, a significant post-convention bounce, and at least temporarily alter the dynamics of the race. Whether that bounce has any durability, though, may have been hurt by the President's sluggish performance on the campaign trail since Kerry was nominated. Instead of providing the electorate with a compelling reason to stay the course, Bush's campaign has been diverted rather foolishly by ephemera such as the attacks on Kerry's Vietnam service, and the pointless negativity of last week's speech by Dick Cheney on the subject of "sensitivity" in foreign policy, a charge that ended up becoming a public relations disaster when it turned out the President had used the exact same word. At a time when he should be building up his positives leading into a make-or-break convention, and holding off the attacks until September, Bush is only reaffirming why much of Christendom views him as being one of the biggest a-holes on the planet.

A case in point is the latest blogospheric obsession, the allegations raised by some of Bush's supporters that Kerry's war record was not all that it seemed. While this issue may resonate with the armchair warriors, envious of Kerry's willingness to sacrifice for his country even when he didn't approve of the policy, it simply isn't an important issue for people concerned about whether they will have a job next year, or if their sons and daughters are going to be sent to die on some ideologue's crusade. And even if every charge made by the "Swift Boat" vets was plausible (and as shown here and here, there is a good reason why the recovered memory of "witnesses" some 35 years after the fact tends to be less reliable than contemporareneous accounts of the same incidents), one is still left with the reality that John Kerry went to Vietnam, while most of his counterparts didn't. Focusing on Kerry's service, even in the most negative manner possible, still leads to a comparison with Bush's history during that period, and that is comparison that cannot help but benefit the Senator from Massachusetts; hence, the polls taken over the last two weeks have seen a strengthening of Kerry's lead, rather than any perceptible movement towards the President.

Even more pathetic has been the intense focus over whether Kerry ever set foot in Cambodia back in the day. For those of you who don't spend every waking moment on the internet, the controversy stems from a number of references Kerry made over the years to having assisted the CIA in drop-offs on the Mekong River. At one point 20 years ago, Kerry had claimed that he had done so on Christmas Eve, 1968, when apparently he was off by a month. When compared with some of the "misstatements" made by Presidents over the years, from Reagan claiming on several occasions to having helped liberate concentration camps when he was "in uniform" during WW2, to Clinton's initial denial that he had a sexual relationship with an intern, to some of Bush's more ignoble efforts (from "hitting the trifecta" to his recent boast that like Senator McCain, he had once been a bomber pilot), the allegations against Kerry are pretty trivial, even if it had been proven that he was never in Cambodia, and had always known he had never been there. The exaggerated boasts of a soldier, like a politician's use of hyperbole to make a point, are pretty much discounted by the public anyway, and not surprisingly, the issue seems destined to remain with the purview of the tinfoil hat brigade.

So the Republicans, frustrated that there issue hasn't developed any traction in the media outside of the broadsheets owned by Rupert Murdoch and Rev. Moon, counter that this is yet another example of that diabolical conspiracy known as the lib'rul media, which supposedly wants Kerry to win. Instapundit, among others, has compared the coverage of Kerry's adventures in Vietnam with the media's interest in Bush's shirking of duty in the Texas A.N.G., ignoring the fact that four years ago, the media showed almost no interest in that subject, and didn't this year until the head of the DNC made it an issue.

Back in 2000, it was Gore who was being hounded mercilessly, for claims that he never made (such as inventing the Internet), and for places he never lived at (such as a luxury hotel in D.C.). Quite often, those attacks came straight out of GOP press releases, and the "journalists" who covered the campaign for the major newspapers and networks pretty much published them verbatim. Since the only Republicans to comment on the Swiftboat Vets' allegations (Senators McCain, Warner and Hegel) have repudiated them, it is perhaps not surprising there has been a lack of interest in such warmed-over smears by reporters, many of whom seemed to have been shamed by how they covered the campaign four years ago.

Or maybe it's just that we're living in the post-9/11 world, and we all just want to take this election a little more seriously this time. The last-second articles in the LA Times last October on the Gropinator, which were far better documented, actually seemed to help Arnold with swing-voters, and these attacks have certainly not helped the Republicans take down Kerry. As I said, there is still some time to go before the election, and Kerry's campaign will have to pick up its game when it comes to responding to Republican attacks, but for the time being, it's looking good....

August 15, 2004

U.S.A [PR] 93, U.S.A. 74: The Americans sprinted out to a 22-point halftime lead, then held on when the NBA'ers made a furious second-half comeback to win their first game in the Olympics. Carlos Arroyo led the way with 24 points, whose team received the following praise from the defeated point guard, Allan Iverson: "They play the game the way it's supposed to be played...It's not about athletics. That's the game the way Karl Malone and John Stockton play it. It's good for kids to see how the game is supposed to be played." We will have to step up our game significantly by Tuesday, though, when we play Lithuania, while the mainlanders have to hope they don't get bullied off the court when they play the host team from Greece.