Enron, Judge Gilmore, and the Rolling Stones

The Chronicle reports here that the Enron criminal case against several individuals formerly involved in Enron’s Broadband unit has induced U.S. District Judge Vanessa Gilmore to begin quoting the Rolling Stones:

Citing nonlegal scholar Mick Jagger, a federal judge Monday scolded defense attorneys in an Enron case, basically telling them to stop whining.
“We have the Jagger doctrine here. You can’t always get what you want, but if you try really hard, you get what you need,” U.S. District Judge Vanessa Gilmore told lawyers in the Enron broadband case, paraphrasing the Rolling Stones song.

The end of liberal hope in Russia

Joshua Rubenstein, a regional director of Amnesty International and the author of “Stalin’s Secret Pogrom” pens this Wall Street Journal ($) review of James H. Billington‘s new book, “Russia In Search of Itself,” and notes as follows:

More than a decade after the collapse of the Soviet Union, the West has only begun to confront a disheartening paradox: That at the height of Mikhail Gorbachev’s program of glasnost and perestroika in the late 1980s, the prospects for democratic reform seemed more promising than they do today in a nominally democratic post-Soviet era.
The Russian media, including television news, once carried far more critical discussions of Stalin’s crimes. Intellectual journals reached millions of readers and explored the country’s history and politics, and its economic failings. And the parliamentary elections of 1989 confirmed that liberal, independent-minded figures, like the physicist and veteran dissident Andrei Sakharov, could run against the Communist Party and command sizable support.
But the country’s badly managed attempts at capitalism and democracy in the 1990s have soured a majority of the population. Privatizatsiia, or privatization, of the country’s industrial and natural resources has resulted in such an audacious pattern of grand theft that Russians have coined the term prikhvatizatsiia, or confiscation, to mock the process. The brutal war in Chechnya continues to inflict untold suffering on civilians. Meanwhile the rule of law is a hollow shell. Since 1994, nine members of the country’s Parliament, and 130 journalists, have been murdered, no doubt because they either sought to expose the truth about official corruption and organized crime or because their political activity got in the way of someone’s plans to turn a fast buck.

And Mr. Billington does not lay the blame for these developments solely at the feet of Russian President Vladimar Putin:

Vladimir Putin alone is not responsible for this collapse of liberal hopes. It was Boris Yeltsin who insisted on too much power for the office of the presidency. And with increasing government control of the mass media, there remain few outlets for critical reporting on Mr. Putin’s policies. The increasing appeal of Russian nationalism has brought with it frequent, physical attacks on foreign-looking outsiders, including dark-skinned people from the Caucasus, African students and even U.S. Embassy Marine guards, as well as assaults on Jews and Jewish institutions. Mr. Putin has condemned such provocations only half-heartedly. . . Under Mr. Putin’s leadership, the country is moving toward “some original Russian variant of a corporatist state ruled by a dictator, adorned with Slavophile rhetoric, and representing, in effect, fascism with a friendly face.” In other words, a type of regime that seeks to maintain order “through a Pinochet interlude.”

Fukuyama on the next chapter in Iraq

Francis Fukuyama, professor at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins and award winning author, writes this excellent op-ed in today’s Wall Street Journal ($) in which he analyzes the tough issues that the United States will be facing in the next stage of reconstruction in Iraq. First, Professor Fukuyama addresses the non-issues (the June 30 deadline, more international involvement, etc.), which seem to get more media play than the real issues, but then turns to the four major issues, the first of which is security:

Once we get past these nonissues, there are at least four very large problems that have to be solved before we get to a democratic Iraq. The first is so obvious that it does not need to be stressed here: security. A great deal of the good nation-building work of improving the electricity supply, roads, schools, and hospitals, as well as the billions of dollars the U.S. has dedicated to these tasks, are now stuck in the pipeline because many of the thousands of aid workers and contractors there find it too dangerous to leave their fortified compounds. At the same time, there is good reason to think that much of the recent violence will subside. Muqtada al-Sadr, the violent Shiite cleric whose Mahdi militia caused so much trouble throughout southern Iraq, miscalculated in staging a grab for power earlier this month. He is in the process of being isolated by his fellow Shiite clerics, and will likely be disarmed though a combination of negotiations and force.

The second issue is preserving the state’s “monopoly on legitimate violence”:

Much less easily solved is the second major problem, that of Iraq’s other militias. If the classic definition of a state is its monopoly of legitimate violence, then the new Iraq is not going to qualify for statehood anytime soon. We have seen in the past two weeks the deficiencies of the new Iraqi army, civil defense corps, and police, all of which have had units that have remained passive, refused to obey orders, or even switched to the other side. If you are a Kurd or Shiite today, it would take a great leap of faith to trust the security of your family to these new institutions.
It is thus not surprising that all of the major Shiite groups and not just Sadr’s followers have been frenetically building their own militias over the past few months. The Badr brigades, which are associated with the Iranian-influenced Supreme Council for the Islamic Revolution in Iraq, and the armed cells of the al-Dawa party, are potentially more powerful than the Mahdi militia. They are biding their time and building strength even as their political wings participate in the Iraqi Governing Council. The Kurds, for their part, have had their own Peshmerga forces to defend their interests for the past decade now.
The Coalition Provisional Authority is deep into a negotiation over what is called “demobilization, disarmament, and reintegration” — DDR, in nation-building lingo — which would dismantle these militias and fold them into the new national institutions. But the Shiite groups won’t disarm unless the Kurds do so as well, and in the current climate of violence it is very hard to see what kinds of incentives the U.S. can offer to bring this about.

The third problem is that of Kurd-Shiite relations:

The third major problem has to do with long-term Kurdish-Shiite relations. The Transitional Administrative Law that was signed in early March contains a provision that any article of the new constitution can be vetoed by a two-thirds vote in any three of Iraq’s 18 governorates, effectively giving the Kurds veto power over the entire constitution. The Kurds want this because they remain deeply suspicious that the Shiite groups, including those associated with Ayatollah Sistani (who up to this point has been a force for moderation), will seek to impose Sharia law once the constitutional process is under way. Mr. Sistani, for his part, has been equally vehement that this provision be removed. If the Kurds and Shiites cannot figure out how to share power, it is hard to see where the political basis for the new Iraq lies.

Finally, the fourth is how best to integrate the Sunni’s into the Iraq government:

The final problem has to do with how to integrate the Sunnis who are at the center of the current troubles in cities like Fallujah and Ramadi. Contrary to some media reports, it is not clear that a Sunni “silent majority” could not one day find representation in political parties willing to contest power via the ballot box rather than the gun. But after the demise of the Baath Party, they are the least politically developed of all of Iraq’s major groups. Prior to the Marines’ Fallujah offensive, various democracy-promotion groups such as the National Democratic Institute and the International Republican Institute had been making some headway in organizing democratic Sunni political parties. How the Fallujah standoff will be resolved, and what will remain of any residual Sunni goodwill toward the new Iraq in its aftermath, are open questions now.

Then, Professor Fuyukama concludes with words of prudent wisdom regarding the task at hand:

If we make progress in solving these four problems, and if we get through the two elections outlined by President Bush, we should not kid ourselves about what will emerge at the end of the process. The new Iraqi state will be more legitimate than any other state in the Arab world, but it will also likely be very weak and dependent on outside assistance. It may be an Islamic Republic, in which religion plays a more significant role than the U.S. would like; its armed forces may be a hodgepodge of militias that will crack apart under stress; it will likely face a continuing violent insurgency fed by outside terrorists; its writ is unlikely to extend to important parts of Iraq.
Thus if part of the vision being offered to the American people is the prospect that we will be able to disengage militarily from Iraq in less than two years, the administration should think again. It will be extremely difficult to stick to the timetable outlined by the president, and even if the U.S. do it will have big lingering commitments. The American public should not be blindsided about the total costs of the reconstruction, as it was about the costs of the war itself. For all of the reasons offered by President Bush, it is absolutely critical that America stay the course and ensure that Iraq becomes a stable, democratic country.

Given the incessant criticism during the political season regarding America’s mission to clean up the Iraq mess, it is refreshing to read the constructive thoughts of Professor Fuyukama regarding the tough issues that need to be addressed and resolved.

Sharon’s simple plan

Richard Z. Chesnoff, author of “Pack of Thieves” about the Nazi plundering of European Jews during the WWII era, has long been one of America’s most prominent reporters on foreign affairs. Richard is also the brother of my old friend David Z. Chesnoff, who is one of Las Vegas’ most prominent criminal defense lawyers (and also Britney Spears‘ lawyer in her recent annulment case, but that’s another story).
In this NY Daily News op-ed today, Richard insightfully and succinctly explains Ariel Sharon‘s innovative withdrawal plan in regard to moving the chronically intractable Israeli-Palestinian conflict toward resolution:

Sharon’s plan is brilliant in its simplicity – a sort of uncontestable, one-way divorce. Unwilling to wait any longer for the Palestinians to stop terror and negotiate peace seriously, Sharon plans single-handedly to disengage Israeli forces from Gaza, withdraw the 7,000 Jewish settlers who currently live there, turn control of the desert strip over to the Palestinians and begin to do the same in the West Bank by dismantling some Israeli settlements there as well.
At the same time, Sharon announced that Israel plans to complete the controversial security barricade it has been building to keep out Palestinian suicide bombers. Moreover, until a final peace settlement is drawn up, several significant West Bank settlements will remain on the Israeli side of the barricade.
Of course, Sharon doesn’t want the Palestinians to see Israel’s withdrawal from Gaza as a reward for Arab terrorism. He has been making sure to drive that point home by weakening the terrorists before the Israeli Army pulls out. Hence, the recent targeted killing of Hamas leader Sheik Ahmed Yassin and Saturday’s successful hit on Abdel Aziz Rantisi, the pediatrician-cum-killer who took over from Yassin. In case Hamas & co. still don’t get the message, the Israelis also have announced that even after withdrawal, their army will counterstrike if Gaza-based terrorism continues.
One of the best parts of Sharon’s plan is his offer to turn over the buildings and homes in Israel’s soon-to-be-abandoned Gaza settlements to needy Palestinian families. There’s one condition: Some international body will have to guarantee that the homes actually go to refugee families and not to Hamas terrorists or friends of Arafat and other well-connected Palestinians. Without that guarantee, Sharon said, he’ll have the settlements dynamited before the Israelis leave.
And then there is the most important of all declarations: America is backing the Israelis on their position that the so-called right of return is valid only for entry into a future Palestinian state and not to the Jewish state, thus thwarting the Arab attempt to destroy Israel by cramming millions of so-called Palestinian refugees down its throat.

And Richard concludes with an observation and a recommendation for the Palestinians:

The Palestinians have a long history of rejecting Israeli offers, only to see the dream of peace, prosperity and their own state recede farther over the horizon. This time, they should accept Sharon’s plan not as an outrageous insult but as a great opportunity.
Above all, they should remember that next time, the chances are that they’ll be offered even less.

Appeals court bars Clarett from NFL draft

In a surprising ruling reported here, a three judge panel of the the Second Circuit Court of Appeals barred former Ohio State running back Maurice Clarett from participating in next week’s National Football League annual draft of collegiate players. Here are the prior posts on the Clarett case.
From the news report, it appears that the appellate court simply issued a short order barring Clarett from the draft, reasoning that any damage to Clarett from the stay was minimal because the NFL has agreed to hold a supplemental draft for Clarett and other underclassmen who are not eligible for next week’s draft before the upcoming NFL season if Clarett prevails on the merits of the case. Consequently, look for the Second Circuit to issue a more detailed decision soon on the merits of the NFL’s appeal of the lower court ruling that made Clarett eligible for the next week’s NFL draft.

Kerry on Meet the Press

Tim Russert grilled John Kerry yesterday on his prior statements about Vietnam, and Kerry fumbled badly in answering the questions. Here is the transcript of the interview, via Powerline.

WSJ Golf section

It’s Shell Houston Open week in Houston, and the Wall Street Journal ($) has a timely section in today’s edition that focuses on the troubled golf business. Although professional golf tournaments continue to do well as a television product, the rest of the golf business is not doing well at all, burdened by over-construction of golf courses and a lagging supply of golfers. As usual, the Journal staff does a fine job of covering the various sectors of the golf industry. Check it out.

Stros beat Brew Crew again; 1st “down on the farm” report

The Rocket picked up his third win of the young season as the ‘Stros cruised by the Milwaukee Brewers for the third straight day, 6-1. Clemens spaced four hits over seven innings, walked one, struck out seven, and even knocked in his second RBI of the season. With the win, the ‘Stros are now 9-4 and in first place in the NL Central. The Stros are off on Monday and then begin a three game series with the St. Louis Cardinals at Minute Maid Park on Tuesday.
The following is the first in a series of “down on the farm” reports that I will post periodically throughout the season to provide information on the Astros’ primary MLB prospects playing in the club’s minor league system. The development of minor league prospects is the lifeblood of most Major League Baseball teams, and the Astros are no exception to that rule. Indeed, the Astros’ consistent success over the past decade (four division titles and five second place finishes) is attributable to the club’s development of such players as Craig Biggio, Lance Berkman, Richard Hidalgo, Roy Oswalt, Wade Miller, and Billy Wagner.
Although most experts considered the Astros’ minor league system as one of the best in Major League Baseball over the past decade, that is no longer the case. For the first time in recent memory, the Astros have no grade A prospects in the minors, which led Baseball America to rank the Astros’ minor league system 29th out of the 30 MLB teams at the beginning of this season. There are a number of reasons for this decline, but the most troubling one is that the Astros’ delayed until last season to include a “high-A” team in its minor league system. Accordingly, in prior seasons, the lack of a high-A team in the ‘Stros’ system forced the organization to promote players from its mid-A team in Lexington to AA Round Rock, which often caused players to be overmatched. For example, shortstop prospect Tommy Whiteman and catcher prospect John Buck are examples of good prospects who struggled at AA Round Rock after being promoted from mid-A ball. The Astros corrected this deficiency in their system by fielding a high-A team in Salem, Virginia during the 2003 season.
The first prospects to be evaluated in this series are those on the Astros’ AAA team, the New Orleans Zephyrs. Unfortunately, there is not much to report from New Orleans, which is the weakest of the Astros’ minor league teams. New Orleans is currently 4-7, in last place, and not hitting. The best news is that the pitching staff is reasonably strong, and that Carlos Hernandez has pitched well in his first two starts as he continues his comeback from shoulder surgery.
In the 2001 season, Hernandez was considered at least as good a pitching prospect as Roy Oswalt and pitched very well during the Astros’ pennant drive that season. However, Hernandez partially tore his labrum in his pitching shoulder in a baserunning mishap that season, and he opted to rehab the injury without surgery. Hernandez started off O.K. in the 2002 season, but after 117 decreasingly effective innings, the ‘Stros’ elected to put him on the disabled list and he had the surgery to repair the labrum that he probably should have had after the 2001 season.
Hernandez rehabbed the shoulder and did not pitch during the 2003 season, and then started his comeback in winter league baseball after last season. He progressed well during spring training, but his endurance and fastball speed have not returned to what they were during 2001 season. The ‘Stros are taking a prudently cautious approach with Hernandez, allowing him to pitch only five innings in each of his first two starts this season. Nevertheless, he has given up only one earned run to date, and appears to be making steady progress. If that progress continues, then he should be ready to contribute to the Astros’ staff by midseason.
The other top pitching prospect on the New Orleans staff is Taylor Buchholz, a 22 year old righthander who was one of the two young pitchers that the Astros received from Philly in the Billy Wagner deal. Buchholz looked decent in the spring, but he has been hammered in his first two outings at AAA. Look for him to spend the entire season at New Orleans and, if he develops steadily, to compete for a rotation spot next spring.
The other two pitchers who could help the Astros this season are Jared Fernandez (he of the 54 ERA, just recently sent down) and Chad Qualls, a 25 year old righthander who has pitched reasonably well while gobbling up a large number of innings the past two seasons at AA Round Rock. Although Fernandez started off horribly this season, he pitched well for the ‘Stros for most of last season, and it is not unusual for knuckleballers to turn it around at any time (in fact, he pitched six scoreless innings for New Orleans today).
Other news from New Orleans is not promising. John Buck, who as recently as a year ago was considered to be Astros fans’ solution to the Brad Ausmus problem. However, after being jumped from mid-A ball to AA Round Rock in 2002, Buck fell apart, losing the plate discipline and power that he had displayed in low-A ball. The ‘Stros then promoted him to AAA New Orleans in 2003, where Buck’s performance became even worse (although he was injured for a couple of months last season). Buck’s stunted development was one of the reasons that the Astros’ overpaid Ausmus (yet again) in another contract extension, and Buck’s early performance at New Orleans reflects that he may be the poster child for premature advancement in a minor league system — six hits (one double, the rest singles) in 31 plate appearances, two walks, and seven strikeouts. Buck is not yet 24, so he is still young enough to turn it around. But as the scouts say in the bush leagues, the numbers don’t lie.
Similarly, none of the other everyday players at AAA are performing very well. Second baseman Chris Burke, a top choice from the 2001 draft out of the University of Tennessee, may become a decent utility infielder, but he has exhibited neither the on base average nor the slugging percentage that would make him a front line MLB second baseman. In fact, the only New Orleans player hitting decently is 27 year old outfielder Mike Hill, who has the look of a career minor leaguer and is probably not more than a fifth outfielder prospect for a MLB club.
Consequently, the time is now for the Astros. Other than Hernandez and maybe Buchholz, Fernandez, and Qualls, there is not any help at the AAA level. My next “down on the farm” report will be on the prospects at AA Round Rock, which are more promising.

The man “who believed the solution to every human problem was death”

Richard Pipes, a professor emeritus of history at Harvard, reviews Simon Sebag Montefiore’s new book on Josef Stalin, ”Stalin: The Court of the Red Tsar” in today’s NY Times Review of Books. The entire review is well worth reading, and this tidbit about Stalin’s post-WWII mood is a good sample:

Stalin emerged from the war utterly exhausted and more than ever convinced of his infallibility. In his last years he became inordinately capricious, suspecting everyone and ready to jettison on trumped-up charges even his most loyal followers. He spent much time vacationing in his lavish palaces. He indulged in drunken orgies, where he would force his ministers to dance for his amusement: ”He made the sweating Khrushchev drop to his haunches and do the gopak that made him look like ‘a cow dancing on ice.’ ” The Polish security boss, Jacob Berman, was made to waltz with Molotov.

Martin Lipton and the Disney board

This NY Times article reports on corporate attorney Martin Lipton‘s work with the board of Walt Disney Company in connection with the sputtering Comcast takeover bid.
Mr. Lipton is famous in corporate legal circles as being one of the lawyers who devised the poison pill strategy, which is an anti-takeover strategy that Professor Bainbridge explains much better than I can.
However, Disney was never really in a position to adopt a poison pill strategy in regard to the Comcast bid. Inasmuch as the Board has already been heavily criticized for its unwavering support of CEO Michael Eisner despite Disney’s lackluster performance over the past several years, a poison pill strategy would be widely viewed as the Disney Board again supporting a strategy mainly benefitting Mr. Eisner and an unproductive management team at the expense of Disney’s shareholders.
Nevertheless, as the Times article reports, Mr. Lipton has made a strong impression on the Disney board members, and his close friend Mr. Eisner has to date weathered the corporate storms relating to the Comcast bid and Disney’s lagging stock price:

Indeed, if there was any dissension on Disney’s board about the fate of Mr. Eisner before Mr. Lipton arrived on the scene, there is none now.
With Mr. Lipton in, out went Cravath, Swaine & Moore, the white-shoe law firm that had been working with the Disney board to help swat away Roy E. Disney’s mob of irate shareholders. Cravath could hardly be counted on to rescue the company and protect Mr. Eisner’s job. (Technically, Cravath resigned the account, but what else could it do?)
After Mr. Lipton’s arrival, several independent Disney directors raised the issue of whether they should be seeking out their own lawyers and bankers to help evaluate the situation separately from Mr. Eisner and management. Naturally, the idea was summarily rejected, according to executives close to the board. The board’s other advisers were hardly independent, either: Alan D. Schwartz, president and co-chief executive of Bear Stearns, is a close friend and longtime adviser to Mr. Eisner. Gene T. Sykes, a managing director of Goldman Sachs, has similarly had a long relationship with Mr. Eisner, as has Morton A. Pierce, a partner in Dewey Ballantine, the company’s regular outside counsel.
Of course, new independent advisers would interfere with Mr. Lipton’s game plan. In a telling memorandum Mr. Lipton sent to all his clients last year, he wrote, “There is no need for the board to create a special committee to deal with a major transaction, even a hostile takeover, and experience shows that a major transaction is best addressed by the full board.”
That advice may be right under some circumstances, but between Comcast’s bid for Disney and Roy Disney’s effort to oust Mr. Eisner, it is hard to believe that any adviser hired to be a sage and savior on both issues could be anything but conflicted. Mr. Lipton declined to comment. A spokesman for Disney called him “a world-renowned lawyer and expert” whose “reputation and integrity are beyond reproach.”