Libertarian Leanings

NSA legality

Today's New York Times features yet another analysis of the legality of terrorist surveillance by the NSA and the Bush Administration defense of it.  Power Line has pertinent observations.  In their view the President is on firm legal ground.   

John notes the article's failure to come to terms with the case law unanimously recognizing the president's inherent constitutional authority to conduct warrantless domestic surveillance for foreign intelligence purposes, let alone the international surveillance at issue in the NSA program.

John notes that the article acknowledges the 2002 decision of the FISA appellate court stating:

We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President’s constitutional power.

The Times, however, misrepresents the FISA appellate court's statement and simply omits the court's recognition that "FISA could not encroach on the President's constitutional authority." In other words, if FISA encroached on the president's constitutional authority, FISA would be unconstitutional...

By the same token, however, and to the same extent, James Risen, Eric Lichtblau and everyone else at the Times involved in the publication of the NSA surveillance story have engaged in conduct violative of the federal espionage laws. Yet the Times has never even acknowledged its own legal jeopardy. John concludes with a point close to my heart:

[I]t is worth mentioning that Lichtblau and Liptak purport to sit in judgment on the legality of the administration's conduct, without ever noting the fact that Lichtblau and the Times itself unquestionably violated federal law by publishing leaks about the NSA program. In the world of the antique media, illegality requires no explanation if it is directed against the Bush administration.

Every word the Times now publishes about the NSA surveillance story is deeply compromised by a conflict of interest that the Times has yet to acknoweledge.

Emphasis is Power Line's.

Follow the money

In an earlier post I speculated that John Kerry's rush home from Switzerland to lead the Alito filibuster fight would "drive the final nail into the coffin of his presidential aspirations."  It appears this move of his was not just a futile protest.

In an e-mail to 3 million recipients, Friends of John Kerry issued a 14-paragraph indictment of the Alito nomination, and concluded with a fundraising pitch. Kerry’s e-mail address list is a remnant of his 2004 presidential campaign.

Hoping to encourage pro-choice voters to donate money, Kerry announced his opposition to Alito on the Jan. 22 anniversary of the Supreme Court’s 1973 decision in Roe v. Wade.

It could make for great fund raising fodder.  That said, I stand by my prediction.  Kerry might make a respectable run at it, but the presidency is beyond his grasp.  In all aspects.

Unlikely battleground

Wyoming seems an unlikely place for a battle over Second Amendment rights, since over half of Wyoming households have guns.  But the N.R.A. and the Brady Campaign to Prevent Gun Violence have squared off over the right to use deadly force if attacked.

"It's about a right to defend yourself," said Watt, a former policeman. "And that is a right that we all should have, regardless of whether there's been any cases where someone has been prosecuted for using self defense or not. It's something that we should not have to worry about, and this is to give back that right to the citizens of Wyoming."

The Brady bunch seem to think otherwise. 

In Florida, where a no-retreat law was signed early last year, defense lawyers are starting to bring it into their defense of shooting cases, said Arthur C. Hayhoe, executive director of the Florida Coalition to Stop Gun Violence.

"What they've done is legalized manslaughter here in Florida," Hayhoe said.

Gun control proponents have never been particularly honest about the effects of their intended regulation.  They've consistently overstated their statistics while they've ignored the evidence of declining crime rates in right to carry states.  The one thing they are honest about is their insatiable desire to regulate.

No change

The New York Times reports that Hamas does not intend to recognize Israel, and in fact plans to build an army.

...Khaled Meshal, also said Hamas would not "submit to pressure to recognize Israel, because the occupation is illegitimate and we will not abandon our rights," nor would it disarm, but would work to create a unified Palestinian army.

He insisted that "resistance is a legitimate right that we will practice and protect," and he defended attacks on Israeli civilians, which included many suicide bombings until a cease-fire nearly a year ago. Then he said Hamas was "ready to work with Europe and even the United States if they wish."

But, the U.S. position is clear.  There will be no negotiations with Hamas until they renounce the use of violence and recognize Isael's right to exist. 

A senior Israeli official said that statements by Hamas, even if forthcoming, would not be enough, and that Israel would not deal with an Authority dominated by Hamas, even if titularly led by Mr. Abbas.

More important, he said, is to try to appeal to the two-thirds or more of Palestinians who say they support a permanent settlement with Israel and to understand that many Palestinians voted for Hamas for reasons of internal reform, not to support jihad or terrorism.

Nothing will happen quickly now, the official said, but the rest of the world should help ensure that Hamas is isolated — not to try to compromise with Hamas, but to try to ensure that Palestinian support for it declines.

Does the victory by Hamas in the Palestinian Parliamentary elections mean Palestine will achieve the status of state sponsor of terror?

Grasping for failure

The front page of today's Washington Post trumpets "failures" of the Bush Administration.  At the top of the page in the large type, a headline chides the Bush Administration for its failure to complete the rebuilding of New Orleans. Apparently in the Post's considered opinion, reconstruction ought to be done.  After all, it's been almost five months since Hurricane Katrina left town.

Nearly five months after Hurricane Katrina swamped New Orleans, President Bush's lofty promises to rebuild the Gulf Coast have been frustrated by bureaucratic failures and competing priorities, a review of events since the hurricane shows.

While the administration can claim some clear progress, Bush's ringing call from New Orleans's Jackson Square on Sept. 15 to "do what it takes" to make the city rise from the waters has not been matched by action, critics at multiple levels of government say, resulting in a record that is largely incomplete as Bush heads into next week's State of the Union address.

Here's a phrase that might fit:  "Unrealistic expectations."  Any takers?  And about "those critics at multiple levels of government", can we guess who they might be?  Here's is a clue:  The President is a Republican. 

Louisiana Gov. Kathleen Babineaux Blanco (D) said in statement from Baton Rouge. "You can't fix a $12 billion problem with $6 billion."...

In Mississippi, 33,378 occupied trailers are meeting 89 percent of the estimated housing needs. But there have been 34,000 repair requests and maintenance complaints, according to Rep. Gene Taylor (D-Miss.).

The article goes on for three web pages -- a remarkable example of a political campaign masquerading as news.  Credit the Post with recognizing that it's not too early to panic.  November is right around the corner.

In another article, the Post concludes that Bush foreign policy is a failure.  One might wonder how it could be called a failure in a year that saw election after election breaking out in the Middle East.

The election outcome signals a dramatic failure in the administration's strategy for Middle East peace, according to analysts and some U.S. officials...

More broadly, Hamas's victory is seen as a setback in the administration's campaign for greater democracy in the Middle East.

That we are seeing the first democratic elections in Middle East history is apparently unimportant to the Post.  It's the results that count.  It's odd how a party that calls itself Democratic, and the mainstream press who support them, have such a hard time with election results.  But again, who are the critics, those "analysts" and "U.S. officials"?  Well here's one.

"There were eloquent speeches and praise for Abbas" but little else, said Robert Malley, director of the International Crisis Group's Middle East program, who was on President Bill Clinton's National Security Council staff.

Readers may recall that Bill Clinton's National Security Council was headed by National Security Advisor Sandy Berger, lately famous for pleading guilty to removing classified documents from the National Archives and shredding them in preparation for his 9/11 Commission testimony. He got them out of the Archives by stuffing them in his pants.  It's not that I question Mr Malley's credibility just because he was a Clinton NSC staffer.  I just wonder how impartial an observer we can expect him to be.

What we don't have to wonder about this:  The campaign is in full swing.

Update:  Power Line has a take on the second Post article I mentioned.  Their's is a pretty long winded article but give it a shot, anyway.

Filibuster chances

According to News10 Sacramento, there are enough Senators in Judge Alito's corner to block a filibuster.

CAPITOL HILL (AP) -- Supreme Court nominee Samuel Alito has the votes to clear the last remaining hurdle to his confirmation.

Democrats and Republicans agree Alito will get more than the 60 votes needed to bring debate on his nomination to an end.

Senate Minority Leader Harry Reid concurs.

"We're going to have a vote Tuesday morning," Democratic leader Harry Reid of Nevada said. "Everyone knows there are not enough votes to support a filibuster, but it's an opportunity to people to express their opinion on what a bad choice it was to replace Sandra Day O'Connor."

What perfect timing.

A final vote making the New Jersey jurist the nation's 110th Supreme Court justice is scheduled for Tuesday, hours before President Bush gives his State of the Union address to Congress and the nation.

All of this in spite of Senator John Kerry's decision to skip the rest of the World Economic Conference in Davos and fly home to fight for a filibuster.

CAPITOL HILL (AP) -- After jetting back from a world economic conference in the Swiss Alps, Kerry urged his Democratic colleagues to join him in opposing Alito, saying it's "a fight worth making."

Bold speculation:  This will drive the final nail into the coffin of his presidential aspirations.  Unwittingly, probably, he's putting his credibility on the line with this rush back home to personally lead the opposition -- only to be steamrolled on the first vote.  What a great demonstration of his influence.  Flex those muscles John, this is sure to impress.

Libby's lawyers take aim at the media

As expected Scooter Libby's defense team has decided to mount a defense.  Oddly enough, this seems to have caught the prosecution by surprise.  Libby was charged with perjury, obstruction of justice, and lying to the grand jury about the disclosure of CIA employee Valerie Plame's identity.  It remains unclear whether or not the disclosure itself was illegal.  No one charges were brought against anyone for doing it.

A federal grand jury accused Libby of lying when he said he learned about Plame's identity from reporters. The indictment contends Libby found out about her identity from the CIA, the State Department and his boss, Vice President Dick Cheney.

"The government should not be allowed to charge Mr. Libby with lying about statements concerning what reporters knew about [Plame's] ... identity, and at the same time deny him information that may establish one of these possible defenses," Libby's lawyers argued in a 23-page brief...

"It is material to the preparation of the defense to determine the identity of all reporters who know that ... [Plame] worked for the CIA, and to discover when they learned such information, from whom they learned it and whether they disclosed it further after learning it," Libby's legal team said.

The prosecution accuses Libby of his crimes because his testimony doesn't agree with what was said by certain high profile reporters who also testified.  I'd consider it a pretty neat trick if the prosecution can strengthen its case by preventing the defense from finding out what the reporters actually knew.  But that seems to be the plan.

"The government has refused to produce information in its possession about what reporters learned from sources other than Mr. Libby about" Plame's employment status, Libby's legal team argued.

The prosecutor has said "such documents are not relevant to a perjury and obstruction case."

Could the prosecutor simply be taking the word of the reporters over Libby's?  That's what the defense would like to find out, and that's what the prosecution wants to prevent them from doing.  Maybe Mr. Fitzgerald is star struck.  It doesn't hurt to be "in" with Tim Russert. 

Our Russert Watch post about college phenom Luke Russert co-hosting an XM sports show with James Carville -- and our mockery of Papa Tim using his Meet the Press podium to oh-so-coyly flack for his boy's radio show -- hit a nerve.

Russert's plug for son Luke on Meet the Press is considered something of an ethical lapse in some circles.  But, is it possible for a journalist of Russert's stature to have an ethical lapse?  Why that would be a contradiction in terms!  The Fitzgerald's pronouncement:  Tim's word is good!  And that's all anybody needs to know!

The Libby trial is going to have great entertainment value.  Tom Maguire goes into it in detail. 

The price of opposition

Robert Novak says red state Democrats will pay a price for opposing the nomination of Judge Samuel Alito to the Supreme Court.

The Democratic leadership has made a calculated decision to follow Kennedy and liberal pressure groups in opposition to Alito. Sen. Ben Nelson, up for re-election in Nebraska, at this writing is the Senate's only Democrat to endorse Alito. Regarding this opposition as a political decision, conservative strategists are determined to play politics themselves this year against Democrats -- particularly red state senators who oppose Alito.

That has opened the door for conservatives to turn the Alito confirmation into a political asset in the 2006 elections. Two unnamed donors have contributed $100,000 for current TV ads in the Dakotas to influence Democrats Kent Conrad and Tim Johnson. These same contributors, who spent $4.5 million in the 2004 election cycle, have privately committed $5 million against the re-election of red state Democrats who actually vote against Alito.

Striving for failure

With the November midterm elections looming ever closer Democrats redouble efforts to secure defeat in Iraq.

Former Secretary of State Madeleine Albright and former Secretary of Defense William Perry, both members of the Clinton administration, were credited among the authors of the study that congressional Democrats released.

It said that U.S. ground forces are under "enormous strain," adding, "This strain, if not soon relieved, will have highly corrosive and potentially long-term effects on the force."

In the earlier report obtained by The Associated Press, Andrew Krepinevich, a retired Army officer who wrote it under Pentagon contract, concluded that the Army cannot sustain the pace of troop deployments to Iraq long enough to break the back of the insurgency.

A pullout would suit the Democrats very nicely, but to their misfortune reality is pretty evident.  Just in case they're missing it, Secretary of Defense Rumsfeld provided some clarity.

"The force is not broken," Rumsfeld said, suggesting such an implication was "almost backward."

"The world saw the United States military go halfway around the world in a matter of weeks, throw the Al Qaida and Taliban out of Afghanistan, in a landlocked country thousands and thousands of miles away. They saw what the United States military did in Iraq.

"And the message from that is not that this armed force is broken, but that this armed force is enormously capable," Rumsfeld said.

The futility of the Democrats is manifesting itself in a most bizarre way.  It's the strangest thing that Democrats are actually working to achieve an American defeat in the Middle East.  They see it as their vehicle back to power.  Maybe that's not so strange.

Assorted reactions

Having had some time to sleep on it, folks are now weighing in on the Judiciary Committee's recommendation that Samuel Alito be confirmed as Associate Supreme Court Justice.  The roundup that follows is not intended to be balanced.  In fact you might think it's unbalanced.  But you can decide.

The contentious issues are Roe v. Wade and presidential power.  On one hand there are those like myself who believe that there's no presidential power grab going on and that abortion will remain legal.  Even if Roe v. Wade is overturned, the issue will simply be sent back to state legislatures to be decided there. 

"It would focus attention back to legislatures in a way it hasn't been in awhile," said Richard Levy, who teaches and writes about constitutional law at the University of Kansas…

Overturning Roe wouldn't require states to make abortion illegal. "It would mean states are free to regulate abortions however they might choose," Levy said

On the other hand you have hysteria.

Alito's ascension to the Supreme Court would add a presidential-power advocate to Justices Antonin Scalia and Clarence Thomas, and probably Chief Justice John Roberts. That quartet would need only Justice Anthony Kennedy for a dependable majority.Alito's ascension to the Supreme Court would add a presidential-power advocate to Justices Antonin Scalia and Clarence Thomas, and probably Chief Justice John Roberts. That quartet would need only Justice Anthony Kennedy for a dependable majority.

It is not abortion or affirmative action that will be repealed by the reconstituted court — both will be nibbled to death, not repealed — it is the balance of powers between Congress and the White House that is endangered as the court shifts direction.

In the perpetual state of war and fear driven by the White House, we move closer to authoritarian rule.

And where there's hysteria there's hypocrisy.  Reason Magazine took a look back to 1993 when Ruth Bader Ginsburg was confirmed to find that Democrats had a much different attitude towards Supreme Court nominations.  When the court was turning hard left, maintaining the balance of the court was not an issue with the Democrats.  But it's swinging back now.

No one thought that some momentary balance on the Court had to be preserved when a justice retired or that it was inappropriate to shift the ideological makeup of the Court. And certainly no one had made that point during 60 years of mostly liberal appointees from Democratic presidents Roosevelt, Truman, Kennedy, and Johnson—even as they replaced more conservative justices who had died or retired. [B]ut suddenly, we are told by senators, activists, and pundits that a nominee should not change the makeup of the Court.

Senator Feinstein seems to be of the opinion that the Supreme Court should be reduced in authority.  For one thing Roe v. Wade should not be overturned.  For another the Court should never overturn laws enacted by Congress.

Sen. Dianne Feinstein today named issues such as a woman’s right to an abortion and Congress’ ability to pass laws that won’t be overturned by the Supreme Court as reasons she joined her Democratic colleagues in opposing the nomination of Judge Samuel Alito to the high court.

Well, if they would just take a look at the Constitution from time to time they could probably figure out how to pass laws that won't be overturned.

In a remarkable statement Massachusetts Senator Ted Kennedy criticized Judge Alito for thinking there are three co-equal branches to the federal government.  Says Kennedy,

Judge Alito also failed to satisfactorily explain his controversial advice, as a Justice Department official, that "the President's understanding of a bill should be just as important as that of Congress,"

Really now, how is it the people of Massachusetts keep sending this guy back to Washington?  I suppose it keeps him out of the state.

Meanwhile the intrepid New Jersey Senators Lautenberg and Menendez are struggling with the decision whether to support fellow New Jersey native Alito or not.  It must really suck to be them.

"This is a man who is very capable. It's a question of how he uses those capabilities. That's the question for me. I want to wait until we uncover everything we can about his views," Sen. Frank Lautenberg said.

Newly appointed Sen. Robert Menendez, who succeeded Governor Corzine in the U.S. Senate, said he is still reviewing the notes of a 45-minute conversation he had with Alito last week and hopes to have a decision by the end of the week.

Menendez said he remained concerned about whether Alito would be independent of the president and the executive branch.

Regardless of all the hyperventilation, the votes are there.

As of late Tuesday, the federal appeals court judge had enough vote commitments for confirmation a simple majority in the 100-member Senate with 50 Senate Republicans plus Democrat Ben Nelson of Nebraska publicly saying through their representatives, in interviews with The Associated Press or in news releases that they would vote for him.

Let's just get it over with.