Tuesday, March 28, 2006

Michael Bolton New White House Chief of Staff

"I have complete confidence in Michael Bolton", said Bush. "He has shown the hunger to succeed, to be the soul provider to this administration. I depend on him so much I sometimes ask myself, how am I supposed to live without you?"

Saturday, March 25, 2006

Glenn Greenwald on the futility of legislative restraints on Bush

Glenn Greenwald hammers home the point that the conventional wisdom among Congressmen and journalists ignores: the Bush administration is vowing to disregard any new laws Congress passes, even if Bush goes through the charade of signing it into law (accompanied presumably by his unconstitutional signing statements fetish).

Sure, the DOJ claims the President is unrestrained by any check on his authority only in those cases involving protecting the nation - as he interprets it. How many times have he and his officials described any criticism of or disagreement with anything they say as giving "aid and comfort" to the enemy? Note the portentous phrasing; they are describing the constitutional standard for treason. Dissent from the Bush camp equals treason; and the president alone can determine what constitutes a national security issue that then he alone has the power to combat, resorting to any means. The entire democratic ideal of political disagreement and compromise vanishes in the Bush substitute for law.

The Bush administration's arguments for constitutional power are from a different planet, an alternate universe, from the Constitution of the United States. They can't once refer to the Constitution without simply ascribing its purpose as maximizing the president's powers for the purpose of "protecting the country", when neither the Constitution itself nor any random page flipped to from the entirety of the constitutional convention debates and the Federalist Papers could make any plainer that the overwhelming purpose of the Consitution is to prevent the government from accruing too much power. It's a perverse testament to the mass ignorance of the media that it has so often treated this as a close call with reasonable arguments going both ways.

No mere legislation is going to make a dent on the steamroller bearing down on our democracy. Only censure, or withholding executive branch funding, or an impeachment inquiry, can make a difference; and whatever the format, must be backed by a public outcry clear enough to give our administration convictions of a new, more modest ideal of its own power.

This is Bush and Cheney's master campaign plan? They're in even worse shape than we knew

The Wapo reports that Bush and Cheney's central thrust for campaigning for GOP legislators is to "hammer Democrats on national security and the economy". I can hardly wonder how to view this, except as a gift: they want to draw attention to two nations that we have spent years and hundreds of billions of dollars on, only to have them both on the verge of disintigration, as well as threatening to "become the biggest corruption scandal in history"? They want to remind people that they were more interested in making a buck than in blocking one of the three governments in the world that recognized the Taliban government of Afghanistan, and whose ports were the transit point of choice for the nuclear black market of Abdul Qadeer Khan, from taking over six major U.S. ports? They want to emphasize their responsibility for an economy that has driven a greater share of American households into poverty, lowered the real income of most Americans, raised the national debt by almost 50% so far, and left the popular suspension of disbelief as the only remaining foundation of stable U.S. bond prices, all for the sake of further enriching the richest people in the country? So be it. Apparently they've just decided they'd really like the GOP to lose out this year.

There is hardly any other explanation for the perverse own-foot-shooting of a statement from Bush like, "If you want the government in your pocket, vote Democrat," when what could put the government more in your pocket - literally in the case of cellphones - than the knowledge that Bush enthusiastically breaks the law to listen in on our phone calls?

And what other explanation can there be for Ken Mehlman saying: "The Democrats' plan for 2006? Take the House and Senate, and impeach the president... With our nation at war, is this the kind of Congress you want?" Hmmm... yes, that's precisely the Congress I want. Very well put, Ken.

Or maybe it's because those are the least damaging topics they can come up with, when there is no topic left related to the responsibilities of national government in which the GOP rule has not proven to be a disaster.

Still, how else can we explain Cheney reminding us all that "the leaders of the Democratic Party have decided to run on the theme of competence", when the polls show that "incompetent" is now the one word that comes to people's minds most often to describe the Bush-Cheney administration.

And while everyone has been discussing the appearance of "incompetent", "liar", and "idiot" as three of the top four words Americans used to describe Bush and Cheney, I haven't seen anyone point out the equally interesting fact that the list now includes "ass" for the first time.

And their plan gets even better:

The short-term goal is stabilize Bush's low public-approval ratings by talking about the progress and prospects for victory in Iraq. The White House also hopes to minimize intramural GOP feuding with a skeletal domestic agenda. Congressional leaders have a legislative schedule that will have members out of Washington much of the time.

So, the master GOP plan is to try to slow down or stop the freefall of Bush's approval rating; apparently to try to do this by reminding everyone of the incomprehensibly wretched job they've done in Iraq; and because since doing anything at all in Washington seems to keep making things worse, they will just try to do nothing at all to run this country.

But as this article points out, Bush and Cheney are already campaigning furiously for endangered GOP incumbents, and for good reason: they know it is their own hides they are trying to save, since a loss of GOP control of either house of Congress is an instant winning ticket to some real investigations into the vast taxonomy of GOP scandals.

Which is why Bush and Cheney have been reduced to sending "word to Capitol Hill that they would be happy to raise money even for those candidates who, for political reasons, want to put some distance between themselves and the White House." In other words, even though you are fleeing for your political lives from the nationwide stinkbomb of our approval ratings, please please let us help you in some way to get reelected, since at least you won't open impeachment hearings against us.

Friday, March 24, 2006

The new Mars probe is now imaging the planet at 2.49 meters per pixel


See here for more.

Yeah, Ben Domenech sure does appreciate the attention

Famous last words: "Two clarifications for the many folks who have risen up in force to attack the existence of this blog (I appreciate the attention, by the way)..."

So much for Red America... and, given the conditions under which Domenech (career over at 24... so sad) was outed as a racist and plagiarist, strike another point for the rising power of blogs.

Out of all his banal bigotry, he gets busted for... stealing a review of Final Fantasy?! That's rich.

The next question is how much heat Jim Brady and/or someone else at WPNI is going to take for this.

El Wapo.com closed their apology for hiring the dude by obligatorily pointing out "We also remain committed to representing a broad spectrum of ideas and ideologies in our Opinions area." Presumably they're going to try to come up with a replacement conservative blogger (after a far more thorough review of the candidates).

Here's an idea: give George Will a raise if he'll post a few blogs a week. He represents the critically endangered species of a proven solid intellectual conservative with his own original, worthwhile ideas (and even his own Pulitzer) rather than just being a human router for Fox News and Ann Coulter propaganda. And they don't have to look any farther than their own op-ed desk.

Just a thought.

Bush's arguments for executive power are "hauntingly familiar" to Nixon's Watergate lawyer

John Dean has penned one of his best columns yet.

Racism and trademark protection

Now that everyone has dug their trenches over the Red America fiasco, the Washington Post is taking great pains to point out that it is under different management than Washington Post-Newsweek Interactive (WPNI), the company that runs the washingtonpost.com website and that the Post would not hire someone like Ben Domenech. However, that distinction is fine enough to be lost not only on almost all readers, but also on trademark law. A trademark is fundamentally based on its owner policing the quality of the goods and services provided in association with the trademark. Whether or not the print paper and the website are under different management, someone up there, presumably The Washington Post Company, owns the "Washington Post" trademark, and they'd better take a studied interest, in the extremely near future, about whether they want that trademark to be associated in the minds of its current and potential consumers with someone who has been shown to have plagiarized, called Coretta Scott King a "communist", and expressed some retch-inducing racist rhetoric. (He tried to pass it off as "satire" or something, as emptily as Ann Coulter tries to claim "satire" as an all-purpose moral escape hatch for calls to kill liberals and other hate speech. Read and decide for yourself.)

Of course, Brad DeLong has made the all-too-plausible hypothesis that Red America is the Post's secret plan to discredit the extreme right. What better way, after all, than to pick out a Heckuvajob Brownie of PR - an unqualified hack who was appointed in the Bush administration clearly for no reason other than his connections, which happen to include Jack Abramoff, and whose writing education was apparently little more than a steady diet of Ann Coulter - and present him as the prototypical spokesman for Bush's red-state core constituency?

A brilliant plan, except that it is taking the Washington Post name down with it. Which is why I recently sent the following email - to the parent company, since WPNI and the print paper have been ducking for cover:

To: The Washington Post Company < TWPCoReply@washpost.com >
Cc: Jim Brady < executive.editor@wpni.com >, Deborah Howell < ombudsman@washpost.com >


Regarding the uproar over the "Red America" blog on WPNI's washingtonpost.com website, The Washington Post newspaper has apparently been deflecting all complaints to WPNI, saying they have no managerial oversight of WPNI. However, the distinction between the two outlets will not be made by most of the market, particularly since both use the "Washington Post" trademark.

As a concerned customer, I sincerely hope that you at the parent company, who do have managerial control over both the paper and the website, are considering prompt action to protect the market's association of the "Washington Post" trademark with journalistic integrity, and to protect the value of that association to the share price of The Washington Post Company, by putting an end to a rapidly spreading market association with a blogger who has apparently been revealed to have plagiarized, called Coretta Scott King a "communist", and made truly despicable comments about African Americans that can only be descibed as promoting racial hatred.

Yours truly,

The information contained in this transmission does not
constitute legal advice. If you require legal assistance,
promptly seek the counsel of an attorney admitted to
practice in your jurisdiction. The information contained
in this transmission does not constitute financial advice.

"The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?"

Hat tip to Mark Kleiman of the Reality-Based Community (as I hope we all are) for pointing this out: a candidate to succeed Spitzer as NYAG based his first commercial on a pledge to sue the Bush administration over the warrantless spying scandal, if he's elected. He came up with the fantastic line, "The founding fathers didn't trust George Washington with unlimited power. Why should we trust George Bush?" Maloney even has a sample complaint, or at least what appears to be a rough draft of one.

It would help if he made a more solid case for the State of New York to have standing to sue, at least for discovery of whether residents of New York have been targeted, because of the impossibility of establishing standing otherwise combined with a preponderance of the evidence that New Yorkers have been targeted. Establishing standing to get into court is I think the biggest weakness the complaint would have. Of course with more time and effort he could strengthen his case by finding individual plaintiffs with a strong case for standing, as the ACLU and CCR did.

I also found it a little odd that he refers to violated Fourth Amendment rights as "privacy", a famously penumbral constitutional principle, rather than the straightforward right to freedom from unreasonable search. It was also interesting that he alleged violation of people's First Amendment rights to free speech and free association, which I haven't seen argued regarding the NSA program, but could justify a good argument. As Justice Scalia has persuasively argued, the First Amendment freedom of speech includes the right to control the audience to which you direct your speech.

Tuesday, March 21, 2006

Mike DeWine's checks and balances: if a Senator attempts to check the adminstration's power, he spends the balance of his life behind bars

Update on the disclosure penalties for Mike DeWine's Congressional Capitulation Act of 2006. Section 8 makes a felony out of disclosing any information about the warrantless domestic spying, with penalties of up to a one million dollar fine and up to a fifteen year prison sentence; and this is for any person who is authorized to receive information under the Congressional Capitulation Act or the old-fashioned FISA. This appears to mean not only staffers to the Congressional Capitulation Subcommittees, but judges, House members, Senators; they are all authorized to receive information by one of the two acts. So the oversight consists of a few members of Congress occasionally listening to some form of briefing - but if they communicate to anyone else what anything they learn in these briefings - say, that the administration is flagrantly violating criminal law, which is true now - your person you voted to represent you in Congress could be locked away for fifteen years. That is the "oversight" authority Mike DeWine proposes to give Congress.

That is why, when you think of Mike DeWine and his bill, you might find it accurate to associate him with Congressional capitulation.

Monday, March 20, 2006

What is the epistemology of the most influential person who is unaware of the meaning of the term?

I was reading the letters in response to Slavoj Zizek's intriguing op-ed in the New York Times, when an insight on the Bush administration dawned on me. The first letter-writer, apparently a reverend, pulled up the boring old canard that of course atheists can be just as atrocity-prone as religious fanatics (wow, quite a stirring defense of the faith sir), because look at the Nazis and the Soviets! To which the all-too obvious reply is, it is not religion that enables people to regard their fellow mankind as sub-human, and to act like sub-humans themselves - it is dogmatism.

The Nazis and Soviets were just as dogmatic as the Catholic and Protestants of the thirty-years' war, as the witch-burning Puritans, as the disgustingly anti-Semitic Ferdinand and Isabella and Martin Luther, as the Wahhabists and Taliban and al Qaeda, as the Iranian clergy-fascists and purely Orwellian cult of the Dear Leader of Pyongyang. The Nazis and Soviets happened to be ruled by dogmas without traditionally religious themes, but that is just surface gloss.

The core of all dogmatism, that each of those societies and leaders of societies hold in common, is emotional-instinctual epistemology. They decide what to believe is true based on what instinctually and emotionally feels true. They are societies built on truthiness.

At the opposite of dogmatism, is the reliance on rational epistemology: deciding what to believe is true based only on what you can reason out in your mind, based on systematically gathered observational evidence, actively working to contradict and re-test assumptions and ideas, with an awareness of the trickiness of human perception and the tremendous capacity of the human mind to fool itself and to want to fool itself. Rational epistemology is the root of science, of law, and of democracy. It is a lot tougher than instinctual epistemology, because the latter is our natural state, while the former requires education, cleverness, devotion to curiosity, and hard work.

Once you accept your epistemology, everything else falls into place. Having chosen one option, you perceive and understand the world according to a set of arbitrarily accepted axioms initially selected for their emotional appeal, and compartmentalize away or simply deny or ignore all objective evidence that does not confirm your axioms, though you seize upon and proclaim the truth of any selective evidence you can interpret to support your pre-set beliefs.

Or having chosen the other option, you engage in a continual feedback loop of learning more about the world around you, and using your increasing understanding to continue to learn still more, you are able to tolerate ambiguity and learn from your mistakes, you are intellectually honest and humble in the face of all that still remains to be discovered. Rational epistemists will always have the intellectual humility to acknowledge the absence of claims to absolute authority and the potential validity of unfamiliar observations and experiences related by others; and to use reason to pursue the truth together. Yes: actual, objective truth. Which is why there is no such thing as American and Arabic and Japanese and African physics and biology (despite the navel-lint-picking of the (emotional-instinctual-epistemological) Strong program). There is only physics and biology.

(This also despite my law school mentor, who taught that there is no truth, there are only arguments. Shows what comes from not starting with a physics degree I guess.)

Part of the fallout of this is that, because the initially seized-upon assumptions of the instinctual epistemists are arbitrarily selected or imposed, instinctual epistemists are doomed forever to remain in insoluable conflict with one another.

It seems like the political fault lines in America have split generally along that rift between the epistemologically rational and the epistemologically instinctual. That is a far more relevant picture for today's political divide than the tired old hag of left and right. There is certainly no shortage of emotional-irrational epistemists on today's left - but the modern Republican party has enforced and achieved an astonishingly pure hegemony of emotional-irrational epistemology, in which reason-based epistemology is emphatically unwelcome.

This is true despite a variety of emotional-instinctual epistemologies working side-by-side within the modern GOP establishment; not only the fundamentalist Christian epistemological group, but also the Reaganomics trickle-down fundamentalist believers, the anti-science "intelligent design" and "global-warming-is-a-conspiracy" fundamentalist believers; the simple "liberals(or)gays-are-the-source-of-evil" hate-driven fundamentalist believers; etc.

As for what type Bush is, I think that's a trick question. This is just my impression, but I don't think he really has core beliefs of his own; I think his pride in leadership by delegation extends to delegating decisions on what basic assumptions to base his worldview on. I think that's the only explanation for his strange transformation from moderate, easy-going governor; that was just due to his temporary absorption of the worldviews of the lieutenants he happened to surround himself with in Austin. His very different nature after becoming president was a reflection of the very different nature of the people he surrounded himself with in Washington: mainly Cheney and Rumsfeld, although he had enough room to internalize all the modern GOP emotional-instinctual epistemologies listed above.

The proper question then is, what flavor is Cheney and Rumsfeld's epistemology, which they also imbue onto Bush as his primary mindset. I used to have sort of an impression that they have a rational epistemology. Then in the last few days, I read Zizek's essay and the letters responding to it, and Don Rumsfeld's defense of the good Iraq war. Then it came to me: Cheney and Rumsfeld's epistemology is emotional-instinctual after all, based on axiomatic internalization of Leo Strauss. That’s why they are perfectly certain that they are always right, that they know better than everyone else; that their own ideas about how many troops to send in to Iraq or what the reception would be like or how to rebuild the country were infallible to the point that all contradictory experts' ideas were worthless. That’s why they see themselves as the heroes of a struggle to defeat the very concept of terror and rid the world of evil, and why they believe in the need for an all-powerful executive, for a disregard of “quaint” concepts of constitutional rights, and for an absolute right to govern in secrecy – all despite a wealth of contradictory evidence and despite any obstacle of existing law. The axiomatic, irrational Straussian worldview is the root cause of the antidemocratic thrust of this administration.

Of course, it’s just a hypothesis; we need more objective evidence to rationally evaluate the idea…

(* As for Rumsfeld's column in the Post, I found myself agreeing with much of it: the rationale for a free and democratic Iraq is as compelling today as it was three years ago. I remain deeply disappointed by the Michael Moore wing of administration critics who ignore the fact of atrocity and terror as a way of life for twenty million Iraqis before we invaded. No matter how many phones have been tapped, America today is a land of tremendous freedom and dignity compared with the truly atrocious Iraq under Saddam. The problem with Rumsfeld's column is I don't believe it represents what he really believes - otherwise they would not have distorted the evidence to make the case for war; they would not have ignored the well-attested need to go in with two and a half times as many troops; they would not have flushed away five years' worth of expert State Department planning for rebuilding the country; and above all, they would not have permitted, and apparently encouraged, the savage abuse of detainees - which was not only despicable, but strategically stupid, in surrendering the claim to clear moral superiority to the previous regime and in inspiring ordinary Iraqis to hatred against the occupation. If we had had leaders who avoided each of those mistakes and did the invasion right, Iraq would be peaceful and prosperous right now with almost no U.S. troops remaining.)

UPDATE: Eugene Robinson is one of many, I'm sure, who is also busy wondering about Cheney and Rumsfeld's perception of reality.

What is the NSA domestic spying scandal?

This is a basic intro to the NSA domestic spying scandal, a primary topic of shotgunfreude. This will remain permanently linked from near the top of the sidebar.

The administration of George W. Bush has been violating criminal law for the past four years, continues to do so, and claims that it has the authority to do so - that the law cannot restrain it. This is demonstrated most clearly in its program for the National Security Agency (NSA) to spy on American people, on American soil, without judicial warrants, which the Foreign Intelligence Surveillance Act clearly makes a felony. The administration's actions and claims usurp the checks and balances at the foundation of our Constitution and our democracy. It will either be brought to an end soon by Congress and the courts, or it will become institutionalized and our Constitution will cease to function except in official rhetoric.

If you'd like to learn more, please investigate the following excellent sources of information:

Other relevant references and discussion are scattered throughout this blog.

The administration - in the words of Mssrs. Bush, Cheney, Rove, McClellan, and Gonzales - has frequently defended its disregard for the law by saying "Our position is that if someone in America is talking to al Qaeda, we want to know about it" - implying that its law-breaking program is needed to combat terrorism, that we cannot defeat terrorism unless we abandon democracy. This flagrantly misrepresents the positions of those who insist that the president remains bound by the rule of law. No politician has argued that we should not conduct intelligence on terrorists. But the law already provides all the tools needed to track and fight terrorism. The administration has simply chosen to ignore the law.

Even many Republican leaders such as Senator Arlen Specter have said the NSA program violates the law. There has been a huge push from both sides of the aisle to investigate the program further and/or to write a new law to restrain the scope of the program and/or simply legalize to varying degrees. However, all of these efforts are a waste of time: since the administration openly admits to violating the law, that fact is known by everyone prior to any further investigation; and since the administration claims the right to violate the law, this would apply equally to any future law Congress comes up with. The only option remaining for Congress, if it is to remain a functioning body, is to ensure the administration decides it must be governed by law after all - either by taking action sufficient to convince the present administration to humble itself, or by clearing out the current administration and making room for a new one, by impeachment proceedings.

That is why the least disruptive meaningful step to take right now (as of March 2006) is Senator Russ Feingold's resolution to censure the president. Anything less, at this point, is a meaningless waste of time - as indicated above. It might be hoped that the ever-increasing attention, investigation, and opprobrium by Congress and the public spurred by the censure resolution will suffice to motivate the administration to submit itself to the rule of law. If it does not, then impeachment will become the only remaining solution to the disruption of our democracy.

I'm an attorney in private practice and I was a solid Republican voter until 2002, after going through our first stiff dose of the Bush administration. (It did more than turn me off to this particular president - it made me fundamentally reconsider all my basic political assumptions.) I write about this stuff here, and in letters to members of Congress etc., because I'm a huge fan of American democracy and I'd like it to still be around in twenty years.

Is a flame-engulfed theater not really burning if only one person yells "fire"?

That is Rove's talking point of the week, which he has been even more successful than usual at instantly massaging into the brains of our somnambulant media.

"Mainstream media", that is - not like the bright Lindsay Beyerstein at Majikthise, who of course calls it like it is: Russ Feingold's "preemptive strike against would-be collaborators in his own party" will prove to be the Agincourt rallying cry that calms the shivering knees and restores resolve to the hearts of his congressional band of brothers and sisters - and that happy few along with the rest of us will know to whom credit for the victory belongs.

"Quattrone Wins His Appeal" - shotgunfreude art object #001

Friday, March 17, 2006

Important Update on the "Congressional Capitulation Act of 2006"

Glenn Greenwald and Marty Lederman point out that, contrary to media reports, DeWine's warrantless spying "oversight" bill, the Congressional Capitulation Act of 2006, would not even require approval from a congressional subcommittee after 45 days - it only requires the administration to brief the House and Senate Warrantless Spying Capitulation Subcommittees, and certify that continuing the program is "appropriate", every 45 days.

Wow, what an amazing oversight power they've wrested from the White House.

Here then is our new Fourth Amendment According To Mike DeWine:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, unless the chief executive feels like it would be appropriate."

While they're at it, the bill needs one more tweak: instead of senators and house members on the Warrantless Spying Capitulation Subcommittees, require the administration to provide its briefing and certification every 45 days to a subcommittee of stuffed Elmo dolls. The Elmo dolls would have just as much capability of meaningful oversight as the members of Congress are giving themselves in this bill, and the Elmo dolls would free up the legislators' time for more important things, like fundraising or busily preparing for their next unconstitutional surrender of their own power.

Oh and in case you're not thrilled yet, I noticed it also (in section 8) makes a felony out of disclosing any information about the warrantless domestic spying, to the tune of a one million dollar fine and a fifteen year prison sentence. That'll teach any whistleblowers to try to alert James Risen and Eric Lichtblau of massive lawbreaking by the administration.

UPDATE: I made this for the April 9 post...

"Any other laws you're breaking that we could rewrite to match your whims, sire?"

Some Senators are still trying to pass a bill blessing the warrantless domestic spying program. The three biggest problems with this attempt are:

  • It would make a mockery of the Fourth Amendment; as even Arlen Specter said, there is no way we're going to let the government "do whatever the hell it wants" for 45 days; and even after that, applying for a warrant to four out of seven Senators, who not only have far more things than judges to worry about but are also eminently subject to political tides, does not make the search Fourth-Amendment-reasonable, as Anonymous Liberal cogently discussed. [* See update above...]

  • As Jack Balkin points out, to reward the administration's law-breaking by offering to rewrite the laws to reflect the king's wishes renders Congress a puppet body - a mere courtly scribe to jot down the way their master feels things should be that day, rather than "All legislative Powers [being] vested in a Congress of the United States..."

  • Most of all, since Bush's fundamental argument is that Congress is not authorized to pass laws that he must follow, whatever "compromise" laws Congress comes up with are an exercise in futility, since Bush will feel no more need to follow new laws than he feels to follow the laws already on the books. Al Gonzales made that position pretty clear when he humiliated the Senators trying to grill him by saying "to the extent that Congress wants to suggest legislation, obviously, we'll listen to your ideas", but would regardless carry on according to its own interpretation of its own power. Nothing Congress does will have any meaning until they can effectively ensure that the President will once again be bound by the laws already on the books.

Thursday, March 16, 2006

More plain and simple lies to defend warrantless spying - now from the Wall Street Journal

The Wall Street Journal has attacked Feingold's censure resolution. No big surprise there - but what is shocking, for supposedly the respectable upper crust of the right-wing media, is that every point of their argument can easily be shown to be outright lies – or at the minimum, a complete disregard for the distinction between truth and lies. This just goes to show their only interest is propagandizing for the administration. Here's the one paragraph on their editorial page where they take a break from horse-race handicapping the resolution, and try to dismiss its merits:

As a legal matter, Mr. Feingold's censure proposal is preposterous. The National Security Agency wiretaps were disclosed to Congressional leaders, including Democrats, from the start. The lead FISA court judges were also informed, and the Attorney General and Justice lawyers have monitored the wiretaps all along. Despite a media drumbeat about 'illegal domestic eavesdropping,' Mr. Bush's spirited defense of the program since news of it leaked has swung public opinion in support.

Here are the WSJ arguments compared to the facts:

  • WSJ: "The National Security Agency wiretaps were disclosed to Congressional leaders, including Democrats, from the start."
  • Fact: The warrantless NSA wiretaps were disclosed to eight members of Congress, including four Democrats; all eight were prohibited from making any recordings, taking any notes, or making any disclosure to anyone about what they learned. Needless to say, they had no way of engaging in any oversight; they were not allowed any questions.
  • Conclusion: How was this different in effect than wheeling in eight slabs of tenderloin and briefing them on the NSA program? The eight members of Congress were bound and gagged; they were literally not allowed any way to investigate further or to let what little knowledge they had been provided from having any effect on the world outside their own minds. Some of them, like Jay Rockefeller, had grave concerns, but were frustrated in taking any action.

  • WSJ: "...and the Attorney General and Justice lawyers have monitored the wiretaps all along."
  • Fact: At least some Justice lawyers were in on the program, but even the Deputy Attorney General for national security, David S. Kris, was not informed of it, despite it going on for two years while he held that position.
  • Conclusion: Many Justice Department attorneys, like James Comey and Jack Goldsmith, and even John Ashcroft and John Mueller, were concerned about whether the program was legal. Comey and Goldsmith are gone, and Kris was apparently never even informed; when the administration says they had lots of DOJ lawyers approve the program, what this really means is that they pre-determined the legal conclusion beforehand, then relied on those lawyers willing to rubber-stamp that pre-determined conclusion.

  • WSJ: "Despite a media drumbeat about 'illegal domestic eavesdropping,' Mr. Bush's spirited defense of the program since news of it leaked has swung public opinion in support."
  • Fact: dozens of news outlets have reported on the warrantless domestic spying program, including the fact that dozens of legal scholars, from across the political spectrum - including conservatives like David S. Kris, Bruce Fein, Bob Barr, Bill Sessions, Richard Epstein - have concluded that the program is illegal. The public opinions of the major media and most Democratic senators, following the lead and/or intimidation of the GOP propaganda machine, have been dismissive of censuring Bush, but the actual public opinion of the American people has been 33% approval of the President, 52% approval for Congress considering impeachment if Bush wiretapped American citizens without the approval of a judge (which he did), and 46% in favor, compared with 44% opposed, to the Senate passing a resolution censuring Bush for authorizing wiretaps of Americans within the United States without obtaining court orders.
  • Conclusion: Responsible reporting from virtually every news outlet not connected to the GOP propaganda cabal of the Wall Street Journal, Fox News, et al. is dismissed as a "drumbeat", without any substantive rebuttal of their reportage. Bush did indeed come out swinging on this after it was made public by the New York Times, because he was trapped in a corner - it was plainly obvious that he was violating the law, and he only had a few options remaining, all of them desperate - the one he went with being the declaration that he is authorized to ignore the law. The major media and the Senate are caught in an echo chamber listening to each other, and both lagging far behind the American people, who overwhelmingly disapprove of Bush. With a plurality of the public already in favor of the censure resolution despite its recency and the overwhelmingly negative commentary surrounding it, the demand for censure is only going to keep rising.
Going back to the beginning of the paragraph, the WSJ says "As a legal matter, Mr. Feingold's censure proposal is preposterous." So the WSJ argues that the warrantless spying was in fact legal because it was disclosed, under secrecy orders, to eight legislators, one judge, and some executive branch employees. I hope the WSJ editorial board doesn’t include any lawyers; if it does, they should go back to their law schools and demand a refund.

What does the law actually require?

The law requires that:
“On a semiannual basis the Attorney General shall fully inform the House Permanent Select Committee on Intelligence and the Senate Select Committee on Intelligence [the entire committees – not to eight members under a gag order] concerning all electronic surveillance under this subchapter. Nothing in this subchapter shall be deemed to limit the authority and responsibility of the appropriate committees of each House of Congress to obtain such information as they may need to carry out their respective functions and duties.”
50 U.S.C. 1808(a)(1).

The administration clearly violated this law.

The law also requires that:
“…when the Attorney General reasonably determines that: (1) an emergency situation exists with respect to the employment of electronic surveillance to obtain foreign intelligence information before an order authorizing such surveillance can with due diligence be obtained; and (2) the factual basis for issuance of an order under this subchapter to approve such surveillance exists; he may authorize the emergency employment of electronic surveillance if a judge having jurisdiction under section 1803 of this title is informed by the Attorney General or his designee at the time of such authorization that the decision has been made to employ emergency electronic surveillance and if an application in accordance with this subchapter is made to that judge as soon as practicable, but not more than 72 hours after the Attorney General authorizes such surveillance.”
50 U.S.C. 1805(f).

In other words, (1) the Attorney General’s determination that the need for a wiretap is an emergency has to be reasonable; (2) he or his designee must inform a FISC judge that they decided to wiretap before getting a warrant, as soon as they make that decision, as a separate requirement from getting the warrant within 72 hours; and (3) he must file a warrant application within 72 hours.

The administration clearly violated each of these three aspects of this law.

What is preposterous is not Mr. Feingold's censure proposal, but rather the Wall Street Journal’s disregard for the plain and simple truth.

Et tu, Barack?

"I haven't read it", "it" being Senate Resolution 398, on the censuring of George W. Bush.

Yet, Obama has a photo on his senate.gov home page of himself standing at Feingold's side. Does this mean he's thinking about co-sponsoring the censure?

Maybe he just needs a day or two to make sure he's thought things through before joining the call for censure and the effort to educate America on the reasons for it. Come on, Barack, you can do it.

And on the topic of Brutuses (Bruti?), even The Times falls into the same Rove-scripted spin on the censure resolution, passing on Minitrue's propaganda with nary a critical glance...

...at least until the last line: "It looked bizarre, too, when Father Robert F. Drinan and a handful of others, such as John Conyers Jr. in 1972 similarly were planning for the impeachment of President Nixon... When the moment of truth came, they were ready."

This one has to bubble up from below too, since the Democrat rank and file are in shivering milquetoast mode wondering how they could avoid appearing weak if they actually stand up for something... even though, as Cenk Uygur wryly as ever notes, Note to Moronic Democratic Senators: Americans Can't Stand George Bush.

He points out how depressingly obviously wrong the Democrat leadership took away the moral of the story of Kenneth Starr - "taking action against the sitting president is really unpopular" - when there are a couple of little distinctions that make the comparison about as apt as comparing a Bordeaux with an asteroid impact: (1) Clinton's approval rating was 72%, while Bush's is 33%; and (2) Clinton's crime was lying about an affair, while Bush's is - or rather, includes - claiming not to be subject to the law - a big part of the reason for difference number (1), because we the people of America know which one of those offenses gravely threatens America, and trying to cover up adultery is not it.

Wednesday, March 15, 2006

Support Feingold's Censure Resolution: A Letter to my Senators

I just wrote and faxed this to my two Senators, after feeling prompted by Jane Hamsher. We'll see how they reply. I can't help but wonder how Paul Wellstone would have replied, if a plane crash hadn't handed the election to Coleman.

Huge hat tips to Harold Koh, David Cole, Marty Lederman, Geoffrey Stone, Laurence Tribe & friends, Koh and friends again, the Congressional Research Service, the Congressional Research Service again, David Kris, John Dean, Edward Lazarus, Glenn Greenwald, and many more for keeping on top of this.

I removed my name and address and added hyperlinks for this web version. Visible URLs are as included in the letter.

March 15, 2006

The Hon. Mark Dayton
Federal Building, Suite 298
Fort Snelling, MN 55111
Fax: 612-727-5223

SR-123, Russell Office Bldg.
Washington, DC 20510
Fax: 202-228-2186

The Hon. Norm Coleman
2550 University Ave W, Suite 100N
St. Paul, MN 55114
Fax: 651-645-3110

320 Senate Hart Office Building
Washington, DC 20510
Fax: 202-224-1152

Via Fax and U.S. Mail

Dear Senators Dayton and Coleman:

I would like to learn whether you intend to co-sponsor S. Res. 398, relating to the censure of George W. Bush, sponsored by Senator Feingold. I sincerely hope you do.

FISA couldn’t be clearer; it requires the government to apply for a warrant within 72 hours for a domestic wiretap (50 U.S.C. 1805(f)); it sets itself as the exclusive law authorizing domestic wiretaps (18 U.S.C. 2511(2)(f)); and it makes any wiretapping outside of its framework a felony (50 U.S.C. 1809).

The Justice Department’s two purported legal justifications for the warrantless domestic spying program are ridiculously shabby. It claims the Authorization to Use Military Force (AUMF) of Sept. 18, 2001 actually authorized an exception to FISA (without you, the lawmakers, being aware of it). However, FISA itself also specifies that in case of a declaration of war, domestic wiretaps may be used for fifteen days before applying for a warrant (50 U.S.C. 1811). An AUMF is less grave than an actual declaration of war. It might plausibly have justified for the fifteen day exception – but not an exception for the past four years and into the indefinite future. Furthermore, for a later act to have repealed the very detailed and elaborate provisions of FISA would have required “overwhelming evidence” and that “the earlier and later statutes are irreconcilable.” J.E.M. Ag. Supply, Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124, 137, 141-42 (2001).

Legal scholars from across the spectrum have concluded the same thing – even George W. Bush’s own former Assistant Deputy Attorney General for national security, David S. Kris, concluded that “It is essentially impossible to read it [i.e., the AUMF] as repealing FISA’s exclusivity provision.” (http://www.washingtonpost.com/wp-srv/nation/
documents/NSAProgramQuestions.pdf – see also “Ex-Justice Lawyer Rips Case for Spying: White House's Legal Justifications Called Weak”, Washington Post, Thursday, March 9, 2006; Page A03; http://www.washingtonpost.com/wp-dyn/content/

The Justice Department’s second supposed justification derives from Article II of the Constitution, which the Department of Justice claimed in its memo of January 19, 2006 (“Legal Authorities Supporting the Activities of the National Security Agency Described by the President”, http://www.usdoj.gov/opa/whitepaperonnsalegalauthorities.pdf) gives the President authority to act without regard to federal law due to an alleged exclusive authority over “the means and methods of engaging the enemy”. This claim is patently refuted by the plain language of the Constitution, which gives Congress the exclusive power to “make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof”; which also gives Congress the exclusive power “To make Rules for the Government and Regulation of the land and naval Forces”; and which specifically obligates the President to “take Care that the Laws be faithfully executed”.

Furthermore, every single time throughout American history that the U.S. Supreme Court has addressed the question of whether the President is authorized to defy federal law, it has rejected such an authority. See e.g. Little v. Barreme, 6 U.S. (2 Cranch) 170 (1804); Ex parte Milligan, 71 U.S. (4 Wall.) 2 (1866); Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952); Rasul v. Bush, 542 U.S. 466 (2004). In fact, in Rasul, the Bush administration argued that the very same purported exclusive Article II authority prohibited construing a statute to restrain the President’s actions. The Supreme Court flatly rejected this asserted power. The fact that the DOJ memo goes 42 pages without once making reference to Rasul, despite that it is the one precedent most directly controlling of the administration’s position, clearly shows (besides that the DOJ lawyers are violating legal ethics) that the Article II argument is based on simply ignoring contrary law.

The administration’s legal arguments are therefore transparently bogus. With no legal escape hatch, the plain fact remains that the President violated federal law and continues to do so. Congress must respond to put a stop to this now, or a precedent will be created that the Constitutional checks and balances do not apply to the President. This concern was echoed by Bruce Fein, former Assistant Deputy Attorney General under Ronald Reagan: “On its face, if President Bush is totally unapologetic and says I continue to maintain that as a war-time President I can do anything I want – I don’t need to consult any other branches – that is an impeachable offense. It’s more dangerous than Clinton’s lying under oath because it jeopardizes our democratic dispensation and civil liberties for the ages. It would set a precedent that … would lie around like a loaded gun, able to be used indefinitely for any future occupant.” (The Diane Rehm Show, National Public Radio, WAMU, December 19, 2005; http://www.wamu.org/programs/dr/05/12/19.php)

That’s what concerns me, and I suspect that’s also a large part of the reason why the President’s approval ratings resemble Nixon’s at the climax of Watergate. I don’t really care about wiretapping; if Congress had passed a law beforehand authorizing the NSA program, I would feel fine about it (although even in that case it is doubtful Congress would have authority to pass such a law in the face of the Fourth Amendment). What concerns me is that the President has openly and defiantly admitted to violating federal law, and claimed the authority to continue doing so as he sees fit.

Mr. Bush has a 33% approval rating (“Bush Approval Falls to 33%, Congress Earns Rare Praise”, The Pew Research Center, March 15, 2006; http://people-press.org/reports/display.php3?ReportID=271) in large part because the vast majority of American people condemn his usurpation of the Constitutional system of checks and balances. It is dramatic evidence that we the public are yearning for Congress to reign him in. While Congress is of course obligated to investigate his activities further, no further investigation is needed to know that the President has violated federal law; his own admission of that fact is clear.

The censure resolution is emininently justified and sorely needed. Please contact me at the address below to let me know if you will be supporting it, and what additional actions you will be taking in response to President Bush’s warrantless domestic spying program and to his claims to be authorized to ignore federal law.

Yours truly...

Tuesday, March 14, 2006

It's official: the bald lies being used for defending warrantless domestic spying are standard-issue talking points

The Fix has a nice commentary on Feingold's move to defend our democracy and Frist's demagoguery in attacking him. Frist's talking points set up the same straw man we've heard from Dick Cheney, Scott McClellan, Karl Rove, and Sean Hannity: the Democrats don't want to wiretap Al Qaeda:

Somewhere in America today, a radical Islamic terrorist could very well be picking up their phone and receiving a call from their overseas counterpart. They will discuss plots to infiltrate U.S. cities and mount devastating attacks... If Russ Feingold had his way, U.S. authorities would do this with the intercepted phone call: hang up.

That is a whole lot easier to attack, and to explain in the first place, than trying to argue that "The Democrats want us to wiretap people suspected of links to Al Qaeda but to do so within the law, meaning we can immediately set up a wiretap on any phone call or person, as long as we apply for a warrant within 72 hours. And by the way, Bush explicitly said three times that this was still how it was being done, although he later admitted otherwise."

The "Democrats don't want to wiretap Al Qaeda" slur really makes me wonder two things: (1) who is going to be dumb enough to believe that Democrats actually don't want to wiretap Al Qaeda? and (2) who, if they actually read what Feingold said after listening to Frist, Cheney et al., is going to be dumb enough to believe the law did not permit anyone to wiretap Al Qaeda and the president had to break the law to protect America?

The answer to both, I suppose, is people who accept any announcement from Frist, Cheney, or Sean Hannity as authoritative, without ever investigating other sources or employing the rudiments of intelligent thought - in other words, many of the same people who still think Saddam Hussein was giving orders to the 9/11 hijackers.

But it's easy to see that the administration's Rovian talking points are intended to smother the rudiments of intelligent thought and instead serve as a somnolent mantra. For comparison, here is a passage from Frist's attack on Feingold:

So while the Democrats flock to the TV cameras to grandstand and play politics with national security, we'll continue to focus on the principle of prevention. And we'll continue to do whatever it takes to protect American lives.

An here's a passage from a political screed of a similar depth of thought:

All the ‘best people’ from the gentlemen's clubs, and all the frantic fascist captains, united in common hatred of Socialism and bestial horror at the rising tide of the mass revolutionary movement, have turned to acts of provocation, to foul incendiarism, to medieval legends of poisoned wells, to legalize their own destruction of proletarian organizations, and rouse the agitated petty-bourgeoise to chauvinistic fervor on behalf of the fight against the revolutionary way out of the crisis.

The latter of course is one of Orwell's paragons of the decay of thought as represented in the English language. Orwell might as well have been speaking of either one of these samples in his description of...

ugliness... staleness of imagery... lack of precision. The writer either has a meaning and cannot express it, or he inadvertently says something else, or he is almost indifferent as to whether his words mean anything or not. This mixture of vagueness and sheer incompetence is the most marked characteristic of modern English prose, and especially of any kind of political writing. As soon as certain topics are raised, the concrete melts into the abstract and no one seems able to think of turns of speech that are not hackneyed: prose consists less and less of words chosen for the sake of their meaning, and more and more of phrases tacked together like the sections of a prefabricated hen-house... every such phrase anaesthetizes a portion of one's brain.

So to criticize the administration can be condemned, without exposing onesself to the actual message, as to "grandstand and play politics with national security". Whatever the administration does is "whatever it takes to protect American lives." How can you not end all debate, and end any further rational thought on the matter, when to do otherwise would be to question "whatever it takes to protect American lives"? Notice the sinister confluence of meanings there: naturally we want to do everything we can to "protect American lives." But protecting American lives demands "whatever it takes". No possible action might lie outside of "whatever it takes" - even if what it takes is an ongoing violation of a criminal statute, or scoffing at the central elements of the Constitution. And so many Democrats are still trapped by the GOP's corruption of language - they pivot around the mere threat of being called "soft on defending the homeland", despite that those words have lost all objective meaning, from an administration that has acted as if homeland security were only a matter of conducting enough military adventures and abuse of detainees, and has done its best to resist spending money on securing our ports or borders, or the single most vital possible element of ensuring our security: tracking and decommissioning nuclear materials around the world.

The Fix has got it right that, besides whatever defense or threat to our democracy posed by either of these Senators, Frist and Feingold have both likely stoked the loyalty of many members of the solid base of their respective parties. The sad question is why solid Republicans would cheer for such a nakedly moronic affront to the Constitution and the rule of law. (Not all solid Republicans - see Bruce Fein, Bob Barr, George Will, David Kris, Bill Kristol, Bruce Bartlett, etc. and at least to some extent Arlen Specter, Olympia Snowe, Chuck Hagel, Lindsay Graham, Christie Todd Whitman, etc...)

It seems like so long ago now that the Republican party was where I felt at home. Almost a party slogan was "I love my country but I fear my government." One wonders how the current followers of the administration can possibly include a single person in common with the Republican Party of Bill Clinton's first couple years in office.

Time and democracy are on Russ Feingold's side (and on the side of those conservatives like Bob Barr who still exercise their own capacities of independent thought and buck the herd mentality). Just as Feingold's initially "radical" positions on the Patriot Act and the invasion of Iraq have been redeemed by history and become accepted as mainstream, so also, to his credit, will the great majority in this country soon look back with admiration on Senator Feingold's lonely leadership on defending the rule of law.

"Dissent = thoughtcrime" say Cheney, Frist, McClellan, Rove, Hannity

Glenn Greenwald has a terrific post pointing out how desperate the administration's defenses of its warrantless domestic spying program are:

It is a potent reflection of how little the White House can say in response to the accusation that the President broke the law that they can respond only by: (a) flagrantly and dishonestly distorting the argument against it (by pretending that this is about whether we should eavesdrop on Al Qaeda), or (b) accusing those who protest the President's law-breaking of committing treason.

The administration isn't making these ad hominem attacks, and the ludicrous arguments of authorization by the AUMF or Commander in Chief clause of the Constitution, because they want to. They are making these attacks and arguments because their yearning to keep the program secret failed, and these flimsy excuses and accusations are the best plan B they can come up with.

Monday, March 13, 2006

"...it would be spiritually wrong" not to drink a Guiness in the car

...in a St. Patrick's Day parade. How long would I have to live in Texas to be authorized to vote for this guy?

Sunday, March 12, 2006

Feingold-Obama '08

Our hero Russ Feingold is introducing a resolution to censure Bush for breaking the law with his warrantless domestic spying program.

Glenn Greenwald has some great comments on it. Regarding Frist's reaction to Feingold: "It is not possible to exemplify how an authoritarian cultist thinks and acts any more vividly than Frist did in making this statement..." But tell us what you really think, Glenn.

In the statement to which Greenwald refers, Frist repeats the frequent accusation that any form of disagreement with Bush equals aiding terrorists. It doesn't give much comfort to hear reassurances that the warrantless domestic spying program is only targeted at terrorist groups and those who affiliate with or provide aid and comfort to terrorist groups, when they also so often equate dissent with providing aid and comfort. Even when that dissent takes the form of expecting our leaders to follow the Constitution.

Frist's reaction needs to be repeated here, so we can see what he's saying:

FRIST: George, what was interesting in listening to my good friend-Russ, is that he mentioned protecting the American people only one time, and although you went to politics a little bit later, I think it's a crazy political move and I think it in part is a political move because here we are, the Republican Party, the leadership in the Congress, supporting the President of the US as Commander in Chief, who is out there fighting al Qaeda and the Taliban and Osama bin Laden and the people who have sworn, have sworn to destroy Western civilization and all the families listening to us. And they're out now attacking, at least today, through this proposed censure vote, out attacking our Commander in Chief. Doesn’t make sense.

In other words:
(1) Feingold is attacking the President
(2)(a) But the President is fighting the terrorists -
(2)(b) Therefore, it doesn't make sense to attack the President
((2)(corollary) So, as long as the President is fighting terrorists, he should be immune from criticism; the substance of that criticism doesn't come into the equation at all - even if the President is violating the law and the Constitution, it "doesn't make sense" to get to the point of asking in the first place whether that is a possibility.)

Feingold repeats what is clear to everyone who has considered this: we all want to fight and capture or kill terrorists who mean harm to this country. But the issue here is whether to hunt terrorists in conformity with or in violation of FISA, leading to the issues of whether there is any difference in the security effectiveness of getting FISC warrants versus failing to secure warrants, and whether America and its servants in Congress will hold the federal law and the Constitution to be meaningful, or whether "it doesn't make sense to criticize the President or hold him accountable to the law" is the only constitution left in effect in this country.

The administration's only defense for violating FISA, i.e. for failing to seek warrants for their domestic spying, is that all that paperwork is a burden - apparently annexing an asterix to the entire Constitution saying *To be followed as long as you feel like doing the paperwork. They haven't shown any reason why following FISA wouldn't be just as effective at neutralizing terrorist groups. We can defend this country from its external enemies just as well - more effectively, in fact - within the rule of law. No lousy Islamist extremists have the power to destroy America. The only way America could be destroyed is from within - if we, in the form of what we allow our government to do, are too weak and fearful to maintain those noblest ideals of our Constitutional democracy in the face of threats by cowardly death-cult Islamists.

If we were to allow our government to continue abusing detainees, we would inevitably become ever more accepting of it - as the soldiers and agents following orders, and as American people. I am tired of apparatchik politicians deriding criticism of detainee abuse as concern for terrorists. We have seen that many of the people being held at the overseas prisons were apparently lacking any connection with anti-American groups. Whether that is true in individual cases is besides the point: the point is that:
  • we don't even have a due process in effect to find out if they are innocent,
  • we are effectively cruelly punishing everyone there regardless of objective evidence, and
  • once we have gotten used to it being "okay" to strip away all rights and human dignity of foreigners, it would be only a matter of time before it became "okay" to do the same with Americans.
Orwell liked to quote Mussolini saying that democracy and fascism can never co-exist for very long; they are both a grave threat to one another, and one of the two must quickly destroy the other. It's a little ironic that Bush's foreign policy rhetoric embodies that view as to foreign governments - which is wonderfully admirable, despite the undemocratic provincialism of some reactionary leftists - while at home he seems determined to exalt the executive above the rule of law. That is precisely the fate which the Constitution was set up to avoid. Fear of an unbounded, monarchial executive saturates the Constitution and the contemporaneous writings of the Founders, it drips from every page of their thoughts.

Nor do I think the current state of affairs can persist much longer. Despite the depressing, cynicism-inspiring Apparatchik-speak exemplified by Frist's remarks above, there are too many decent American people throughout every corner of government and society to remain forever ignorant or tolerant of un-American programs like the warrantless domestic spying or the abuse of foreign detainees. People like Alberto J. Mora - or like some old personal friends of mine in the NSA and other government agencies, whom I trust implicitly.

The Dubai ports debacle didn't have that much to do with Dubai or ports - it seemed like every quotation from members of Conngress referred to their patience having been exhausted with trying loyally to defend the administration on warrantless domestic spying, detainee abuse, etc. The overwhelming Congressional rejection of the President's position on the ports, and the currently tanked poll numbers, are symptoms of America's immune response to the foreign tissue the administration tried to transplant into the body politic - the disregard, foreign to our nature, for the rule of law and universal human dignity.

The growing rebellion of conservatives - Bruce Fein, Bob Barr, George Will, David Kris, Bill Kristol, Bruce Bartlett, etc. - against the excesses of the administration, shows that the American ideal weighs more heavily in the collective American conscience than ideological or party loyalty. Ultimately, the Constitution of the United States is the American ideal branded in the hearts and minds of all its citizens. That Constitution cannot be waived away with secret orders and slapdash legal memos.

What did the founders really mean by "unitary executive"?

I'm cross-posting from material I wrote for the Wikipedia entry on Unitary executive theory, pointing out what a crock it is:

Critics of the theory point out that the Constitution grants Congress the exclusive power to "make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof"; that the Constitution grants Congress the exclusive power "To make Rules for the Government and Regulation of the land and naval Forces"; that the Constitution specifically obligates the President to "take Care that the Laws be faithfully executed", where the "Laws" are defined as that which the Congress has the exclusive power to pass.[3] [4] They have also indicated that in every single Supreme Court case involving a statutory restriction of the power of the President, the statute has been upheld, including several in which the statute was only held to imply the limitation on Presidential power, let alone explicitly limit it; [5] that the phrase "unitary executive" that was discussed in the Constitutional Convention referred merely to having a single individual fill the office of President, as proposed in the Virginia Plan, rather than have several executives or an executive council, as proposed in the New Jersey Plan and as promoted by Elbridge Gerry, Edmund Randolph, and George Mason [6] [7]; and that the Constitutional Convention debates show that the Founders' primary concern behind whether to have a single executive or an executive council was to choose the one that would ensure that the executive would be relatively weaker and more easily restrained by the legislature; that those who argued for a unitary executive advanced the argument because they considered that the best way to limit the executive’s power and keep it subordinate to the legislature, in opposition to arguments that a plural executive would support the executive’s independence; and the term "unitary executive" was thereby bound up with the intention of keeping executive power checked and restrained. [8]

# [3] U.S. Constitution
# [4] Letter to Congress regarding FISA and NSA, Bradley, et. al., January 9, 2006; see cases listed therein.
# [5] Letter to Congress regarding FISA and NSA, Bradley, et. al., February 2, 2006; p. 5 (e.g. “The argument that conduct undertaken by the Commander in Chief that has some relevance to “engaging the enemy” is immune from congressional regulation finds no support in, and is directly contradicted by, both case law and historical precedent. Every time the Supreme Court has confronted a statute limiting the Commander-in-Chief’s authority, it has upheld the statute. No precedent holds that the President, when acting as Commander in Chief, is free to disregard an Act of Congress, much less a criminal statute enacted by Congress, that was designed specifically to restrain the President as such.” (emphasis in original) – 14 legal scholars including the current dean of Yale Law School and the former deans of Stanford and the University of Chicago law schools.)
# [6] Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates (Signet Classic, 1986), p. 67 (“MR. [James] WILSON entered into a contrast of the principal points of the two plans [i.e. the Virginia Plan and the New Jersey Plan]… These were… A single Executive Magistrate is at the head of the one – a plurality is held out in the other.”)
# [7] Robert Rutland, ed. The Papers of George Mason (3 volumes, Chapel Hill, 1970), vol. 3, pp. 896-898; Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates, pp. 47-49 (“If strong and extensive Powers are vested in the Executive, and that Executive consists only of one Person, the Government will of course degenerate, (for I will call it degeneracy) into a Monarchy – A Government so contrary to the Genius of the People, that they will reject even the Appearance of it. … If the Executive is vested in three Persons… Will not such a Model of Appointment be the most effectual means of preventing Cabals and Intrigues… Will it not be the most effectual Means of checking and counteracting the aspiring Views of dangerous and ambitious Men, and consequently the best Security for the Stability and Duration of our Government upon the invaluable Principles of Liberty? These Sir, are some of my Motives for preferring an Executive consisting of three Persons rather than of one.” George Mason, Constitutional Convention, June 4, 1787)
# [8] Ralph Ketchum, ed. The Anti-Federalist Papers and the Constitutional Convention Debates, pp. 42-43 (“MR. [John] RUTLEDGE… said he was for vesting the Executive power in a single person, though he was not for giving him the power of war and peace. A single man would feel the greatest responsibility and administer the public affairs best. MR. [Roger] SHERMAN said he considered the executive magistracy as nothing more than an institution for carrying the will of the Legislature into effect, that the person or persons ought to be appointed by and accountable to the Legislature only, which was the depository of the supreme will of the Society. As they were the best judges of the business which ought to be done by the Executive department, and consequently of the number necessary from time to time for doing it, he wished the number might not be fixed, but that the Legislature should be at liberty to appoint one or more as experience might dictate. MR. [James] WILSON… The only powers he conceived strictly Executive were those of executing the laws, and appointing officers, not appertaining to and appointed by the Legislature. MR. [Elbridge] GERRY favored the policy of annexing a Council to the Executive in order to give weight and inspire confidence. MR. [Edmund] RANDOLPH strenuously opposed a unity in the Executive magistracy. He regarded it as the fetus of monarchy. … MR. WILSON said that unity in the Executive instead of being the fetus of monarchy would be the best safeguard against tyranny.” Constitutional Convention, June 1, 1787; see also comments by George Mason, previous footnote.)

Tuesday, March 07, 2006

The O.K. Corral On K Street Project

Bill Moyers has written some wonderfully hard-hitting jeremiads, along with some great reform ideas. But after going to pains to paint himself as a pure non-partisan truth-teller, he undermines his arguments by splicing a few of his own political preferences into his deconstruction of the antidemocratic status quo. To wit:

...the deregulation of the banking, securities and insurance sectors which led to rampant corporate malfeasance and greed and the destruction of the retirement plans of millions of small investors; the deregulation of the telecommunications sector which led to cable industry price gouging and an undermining of news coverage; protection for rampant overpricing of pharmaceutical drugs; and the blocking of even the mildest attempt to prevent American corporations from dodging an estimated $50 billion in annual taxes by opening a PO Box in an off-shore tax haven like Bermuda or the Cayman islands. In every case the pursuit of this legislation was driven by big money.

Well, the deregulation of banking, securities and insurance created a more flexible playing field that has produced wealth by creating new efficiencies; rampant corporate malfeasance and the implosion of all those 401(k)'s was the fault of a ring of spectacularly corrupt executives, but where's the causal connection? Enron, Worldcom, Tyco, and Adelphia didn't include a banking, securities or insurance business among them. Other structural defects may be blamed for enabling all the Lays' and Scrushys' crimes, like the all too hype-happy financial journalists, the brokers incentivized to issue "buy" recommendations and the poor saps who were dumb enough to ignore those incentives and take the brokers seriously, and most of all the lazy and/or Scrushily immoral boards of directors who failed in their duty to their shareholders to poke and prod into their business's dealings with persistent, sharp questions. Any director, large investor, or broker could have read Andy Fastow's plain-as-day assertions on the S-1s that the company has such-and-such off-balance sheet partnerships, and started making phone calls: who are these partners, what are the terms of the partnerships, why are they off the balance sheet?

The deregulation of the telecommunications sector led to long distance service being made available at 3.9 cents a minute or twenty dollars a month flat, and incredibly low rates for many international calls. I fail to see the corruption of democracy in that. It might have helped promote democracy by allowing lots of Ukrainians and Georgians (and Iranians...?) to spend a lot more time chatting with their American cousins and college student children and learning more about the freedoms we in America take for granted.

Rampant "overpricing" (otherwise known as "recouping investment") of pharmaceutical drugs is directly responsible for "rampant" funding of research and development of new pharmaceuticals to provide the next generation of medicines, and the next. There are tremendous problems with pharmaceutical costs - which we might address primarily by tweaking tax and business incentives to shift incentives more toward research and development spending and away from advertising and distribution, so we can translate costs into new medicines more efficiently - and by a nationalized program to help people pay for their drugs. For all its problems, something like Medicare Part D is basically a good idea - too bad it has been such a hack job in the details.

Striking the right policies on business taxation between nations is tricky and important, and sometimes a U.S. company really does reduce its tax burden just by staffing a few secretaries in a low-end suite in the Bahamas - but the big picture is not so black and white. As someone I work with related to me, his company's products are designed in part by engineers in Singapore; are made in China, with components from around Asia; and about half are sold in Asia. Why should it have been required to remain a U.S. corporation, when it is so international in nature? The system has still been abused - witness the "amnesty" tax break window for transferring foreign income into the U.S. - but let's try to fix those abuses, or the Congress-lobbyist incest that enables those abuses, instead of decrying all off-shore corporate tax strategy as corrupt.

The mind of god tied around his neck: Michio Kaku handwaves to Neverland

The misguided Michio Kaku was on the radio today promoting his new book by declaring superstrings to be The Mind Of God that Einstein sought, and that the strings define physics as the harmony of the universe, chemistry as the melody, and the universe as a symphony. It's high time for Berkeley to revoke his Ph.D. for crimes against public understanding. What do any of those poetic claims have to do with any actual theoretical framework for explaining quantum mechanics?

He feels no need to interrupt his flights of flourishing hand-waving to distinguish between actual discoveries, well-supported theories, and speculative theories that have made no falsifiable predictions supported by subsequent observations that might distinguish the theory from competing possibilities, and to make clear that superstrings belong squarely in the third category. Sure, you can't get the general public to understand non-commutative geometry and anti-de Sitter space in the space of one radio show - but trying to do so would be less unhelpful than making authoritative pronouncements that spontaneous inflation of our universe out of the multiverse shows that the judeo-christian creation and the buddhist timelessness of the world both had part of the truth. Yech.

He led straight from superstrings into the discovery of dark energy without a hint that dark energy, like all other recent important new physics discoveries, spectacularly failed to have been predicted by any flavor of string theory; or, conversely, that all predictions that have been made by superstring theory have been either impossible to observe or were confronted with contradictory evidence (proton decay...) in which case the predictions were tweaked to remove the possibility of observation. Or, that despite more man-hours of study prior to any confirming observation than any other theory in the history of physics, it still hasn't adequately incorporated spacetime, instead just assuming spacetime to be a flat background for stringy particles. I.e., it still hasn't gotten past, or even to, the "assume the chicken is a sphere" stage; even a sphere has the same fundamental physical basis as a chicken.

We've known that space and time can't be treated as a flat background for 80 years. Superstrings are not the height of today's physical knowledge; they are eighty years behind the times, and counting.

And don't even sully yourself to read Kaku's arguments that we must remove RTGs from space probes to keep from exposing outer space to dangerous radiation. Seriously, Berkeley, maybe at least an apology for granting this guy his degree?

(P.S. - An automated Google ad on a search on Kaku produced this delightful Zen koan: "How You Can Master Holographic Time To Gain Extreme Wealth & Success!"

Still, does the ad's love of hyperbole match Kaku's own?)

Wednesday, March 01, 2006

The central animating principle of the Constitution is to vest power where it is accountable to the people.

With Bush's approval rating now at an all-time, Nixonian low, and Cheney's at 18%, one of the lowest approval ratings for any politician in the history of ratings, where and how does the breaking point take form, of the White House finally responding to America's ever-growing cry for restoring basic democratic norms of American government, and apologizing for the bizarre Yooian misadventure into the unilateral executive?

The terminology of "unitary executive" to refer to a president with uncheckable powers (except those of the purse, Yoo says) is itself a blatant misrepresentation of constitutional jurisprudential language. The founding fathers used the term "unitary executive" to refer to the idea of a single person at the head of the executive, rather than a voting body - or a privy council, as George Mason called it. The issue of whether to have one person or several at the head of the executive was separate from the issues of what powers the head of the executive should have and what checks on those powers should be distributed to the Congress and the courts. The founding fathers were wary that a tyranny of many would be equally as dangerous as a tyranny of one.

Or even moreso. In fact, a driving motivation for ultimately choosing the unitary executive - a single individual at the head of the executive - is because they thought this would help keep the head of the executive relatively weak, and readily accountable to the legislature and to the people; that the lone individual would not be encouraged and strengthened in executive excesses by the example or support of peers at the head of the executive.

No scholar could claim otherwise without recklessly or willfully distorting the plain and simple facts.

Rejection of an unanswerable, unilateral executive in favor of a mere president, checked by and balanced against the other branches of government, was the central animating inspiration and ultimate goal of the independence from England and the formation of this new nation and its constitution. No idea is more offensive to the idea of America than the idea of an executive having authority to disregard duly passed statutes at his own whim. It is no coincidence that the lion's share of the Declaration of Independence is a recitation of the unaccountable acts of the unitary executive; and that the Article of the Constitution dealing with the legislature comes first. The language could hardly be more plain:

"The Congress shall have Power... To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

Gonzales: "Err... what I meant to say was..."

Big shocker here: Gonzales is already changing his tune on his NSA warrantless domestic spying testimony. Senator Leahy is not impressed with "...their shifting legal analysis for this illegal domestic spying..."

Unfortunately, El Wapo is gullibly reporting that Arlen Specter's proposed legislation "would allow the FISA court to rule on the program's constitutionality and to oversee aspects of the surveillance operations." As so often, Marty Lederman is there to set the story straight at balkinization. He describes how, astonishingly, Specter's bill would constitute "a substantive amendment to FISA that would vastly increase the surveillance authority of the President. It would give the Executive branch everything it has always wanted, and much more: The punishment for having broken the law with impunity would be a wholesale repeal..." of FISA. Lederman's remarks are a must-read corrective to understand this supposed remedy, going forward.

And in case you missed it so far, The Times is suing the Defense Department for access to truckloads of documents on the NSA warrantless domestic spying. This is getting interesting.