Friday, March 31, 2006

Catching up on the Plame case

If you have not been following the Valerie Plame case very closely, Murray Waas provides a comprehensive article on the affair in the National Journal, Insulating Bush.

Bloggers have more to say:

Waas on Plamegate, at the Booman Tribune;

Bush Knew, by emptywheel at the Next Hurrah; and

Motive, Meet Your Cohorts Opportunity and Intent..., by Christy Hardin Smith, aka Reddhedd, at firedoglake.

A Good Cause

I received this as an email today:

The New Orleans Public Library is asking for any and all hardcover and paperback books for people of all ages in an effort to restock the shelves after Katrina. The staff will assess which titles will be designated for its collections. The rest will be distributed to destitute families or sold for library fundraising.

Please send your books to:

Rica A. Trigs
Public Relations
New Orleans Public Library
219 Loyola Avenue
New Orleans, LA 70112

NOTE: If you tell the post office that they are for the library in New Orleans, they will give you the library rate, which is slightly less than the book rate.

Tuesday, March 28, 2006

Question of Hurricane Wind Damage vs. Water Damage Is One for the Jury; Scruggs Alleges Insurance Company "Coerced and Altered Engineering Reports"

In a federal district court in Mississippi, Judge L.T. Senter, Jr. rebuffed Allstate Insurance Company's request to dismiss a case brought against two of their policyholders. Allstate had refused to provide coverage for damage to the home of Elmer and Alexa Buente of Gulfport, Mississippi, despite a question as to whether the damage was caused by wind, and particularly, the hurricane's wind-driven storm surge.

As reported by the AP:

Richard "Dickie" Scruggs called the ruling "a huge victory" for all Allstate policyholders whose post-Katrina claims were denied. "This was their kill shot," Scruggs said of Allstate's motion to dismiss the case. "They asked for the case to be thrown out. Instead, it was rejected right back in the faces."

. . .

. . . Scruggs said he's gathering evidence that companies are pressuring engineers to alter their conclusions on storm damage so claims can be denied.

Scruggs said a whistleblower -- a "highly placed insider" at a major insurance company -- has given him copies of "coerced and altered engineering reports" that companies tried to keep "under lock and key."

Mississippi Attorney General Jim Hood also is suing insurance companies for denying Katrina claims. Hood has said he also is investigating insurance companies for their "fraudulent" handling of claims.

Update: Biloxi's Sun Herald has more:
State Insurance Commissioner George Dale sent the company [State Farm] a stern letter Monday demanding an explanation [for its frequent use of concurrent causation clauses to deny coverage].

. . .

He wrote to State Farm: "More specifically, we are hearing from your insureds who have slab claims as a result of Hurricane Katrina who complain that State Farm is supposedly taking the position that even if a dwelling suffered wind damage prior to the arrival of storm surge, no claim payment for wind damage is due since the water would have washed the structure away anyway, notwithstanding the damage caused by wind.

"If this is State Farm's position, it is contradictory to representations made by State Farm to Department representatives."

. . .

Although each company's policy language differs somewhat, [Gulfport attorney Ben] Galloway thinks the ruling [of U.S. District Court Judge Judge Senter] will apply to other insurance companies, too. It was all the talk Monday in legal circles.

"(Senter) found that these clauses are ambiguous and that they don't meet the expectations of the insureds that they will have coverage," Galloway said.

. . .

. . . "They are telling everyone that they do not have to pay, whether the wind tore our house(s) up and blew them away because, ultimately, the water came in. We had Hurricane Coverage.

"Would someone please tell me what in the world Hurricane Coverage covers?"

Second update (4/14/06):

The Sun Herald has further coverage of a new Judge Senter decision. Although policyholders will continue to disagree and press the argument in other courts, it is Senter's opinion that certain terms of Allstate policies are "clear and unambiguous" in excluding damage from "tidal waters." A fact-specific inquiry concerning wind vs. water remains for trial.

Sunday, March 26, 2006

Next stop, Mars

For the first time since 1972, the United States is planning to fly to the moon, but instead of a quick, Apollo-like visit, astronauts intend to build a permanent base and live there while they prepare what may be the most ambitious undertaking in history -- putting human beings on Mars.

I'm not saying its not a fascinating idea to go to Mars, or that we shouldn't do it. To the contrary, I imagine a program to do something like that would generate incredible new technologies, and significantly advance many scientific disciplines. But, shouldn't the first priorty be addressing (which begins with acknowledging the existence of) global warming, and the concomitant threats of rising oceans, drowning polar bears, and further coastline devastation around the world? Or rebuilding and planning long-term for protection of American coastal areas from increasingly-elevated sea levels? Why is *this* national security issue ignored, denied, and downplayed?

Dumping that much water into the ocean is a very dangerous thing. Icebergs don't raise sea levels when they melt because they're floating, which means they have displaced all the water they're ever going to. But ice on land, like Greenland's, is a different matter. Pour that into oceans that are already rising (because warm water expands), and you deluge shorelines. By some estimates, the entire Greenland ice sheet would be enough to raise global sea levels 23 ft., swallowing up large parts of coastal Florida and most of Bangladesh. The Antarctic holds enough ice to raise sea levels more than 215 ft.
. . .
Ocean waters have warmed by a full degree Fahrenheit since 1970, and warmer water is like rocket fuel for typhoons and hurricanes. Two studies last year found that in the past 35 years the number of Category 4 and 5 hurricanes worldwide has doubled while the wind speed and duration of all hurricanes has jumped 50%. Since atmospheric heat is not choosy about the water it warms, tropical storms could start turning up in some decidedly nontropical laces. "There's a school of thought that sea surface temperatures are warming up toward Canada," says Greg Holland, senior scientist for NCAR in Boulder. "If so, you're likely to get tropical cyclones there, but we honestly don't know."

. . . Many environmentalists declared the Bush Administration hopeless from the start, and while that may have been premature, it's undeniable that the White House's environmental record--from the abandonment of Kyoto to the President's broken campaign pledge to control carbon output to the relaxation of
emission standards--has been dismal. George W. Bush's recent rhetorical nods to America's oil addiction and his praise of such alternative fuel sources as switchgrass have yet to be followed by real initiatives.

The anger surrounding all that exploded recently when NASA researcher Jim Hansen, director of the Goddard Institute for Space Studies and a longtime leader in climate-change research, complained that he had been harassed by White House appointees as he tried to sound the global-warming alarm. "The way democracy is supposed to work, the presumption is that the public is well informed," he told TIME. "They're trying to deny the science." Up against such resistance, many environmental groups have resolved simply to wait out this Administration and hope for something better in 2009. . .
(emphasis added).

It's unfortunate

We still need real state--and especially federal --leadership in rebuilding New Orleans.

The Gulf Coast is still waiting.

These are the kinds of things for which people, theoretically, would want to sign onto the so-called social contract with the government. So is that deal "illusory"?

I Love a Good Federalist 47 Reference

Glenn reports on yet more evidence of the Unbounded Executive.

Have we already reached the point with outrage fatigue where this isn't considered a pretty big deal?:
Question number (5) from the Committee Republicans asked "whether President Carter's signature on FISA in 1978, together with his signing statement," meant that the Executive had agreed to be bound by the restrictions placed by FISA on the President's powers to eavesdrop on Americans. This is how the DoJ responded, in relevant part:

The Constitution is the supreme law of the land, and any statutes inconsistent with the Constitution must yield. The basic principle of our system of government means that no President, merely by assenting to a piece of legislation, can diminish the scope of the President's constitutional power. . . .

Just as one President may not, through signing legislation, eliminate the Executive Branch's inherent constitutional powers, Congress may not renounce inherent presidential authority. The Constitution grants the President the inherent power to protect the nation from foreign attack, and Congress may not impede the President's ability to perform his constitutional duty.“ (citations omitted).

Can that be any clearer for you - Congressmen, Senators, journalists? The President is bestowed by the Constitution with the unlimited and un-limitable power to do anything that he believes is necessary to "protect the nation." Thus, even if Congress passes laws which seek to limit that power in any way, and even if the President agrees to those restrictions and signs that bill into law, he still retains the power to violate it whenever he wants.

Thus, Sen. DeWine can pass his cute little bill purporting to require oversight, or Sen. Specter can pass his, or they can do nothing and leave FISA in place. None of that matters, because no matter what Congress or even the President do with regard to the law, the law does not restrict what the President can do in any way. They are telling the Congress to its face that all of the grand debates it is having and the negotiations it is conducting are all irrelevant farces, because no matter what happens, the President retains unlimited power and nothing that Congress does can affect that power in any way.

has more, plus the 47 ref. Digby is on it too, with a reference to 51, my favorite.

I do not believe Glenn is engaging in overstatement here. Our President does not believe that he is bound by law. But he broke the law when he did the thing FISA says he can't do. He has proclaimed his intent to continue doing so. He is adding signing statements to bill after bill as he signs them, professing his "understandings" that they do not apply to him.

And the key questions to Congress remain apt: how does it "correct the problem" to pass a law saying that the specific NSA program that has been revealed is now legal, and how can anybody believe that new torture and interrogation laws will be considered anything other than advisory? The Consitution provides Congress with a very short menu of means to rein in the Executive in these situations (hint: although it may be a good idea and good way for Congress to begin to reassert itself, censure is not to be found on that list).

(by the way, if you missed Meet the Press this morning, you didn't see Secretary Rice refuse to rule out launching an attack on Iran without Congressional approval, though she did make the descriptive statement that the President had sought such approval before the Iraq War)

Saturday, March 25, 2006

Compassionate Conservatism

Future deportees?

Via Jeralyn on H.R. 4437: A Bad, Bad Border Bill, we see that the latest inhumane effort to throw out the immigrants is well-underway. This has already passed the House. Contact your Senator. Consideration apparently begins on Monday in the Judiciary Committee chaired by my Senator, Arlen Specter.

Not like the brazen giant of Greek fame,
With conquering limbs astride from land to land;
Here at our sea-washed, sunset gates shall stand
A mighty woman with a torch, whose flame
Is the imprisoned lightning, and her name,
Mother of Exiles. From her beacon-hand
Glows world-wide welcome; her mild eyes command
The air-bridged harbor that twin cities frame.
"Keep, ancient lands, your storied pomp!" cries she
With silent lips. "Give me your tired, your poor,
Your huddled masses yearning to breathe free,
The wretched refuse of your teeming shore.
Send these, the homeless, tempest-tost to me,
I lift my lamp beside the golden door!"

- Emma Lazarus, The New Colossus (1883)

With thanks to Digby for the link to the L.A. Times article where the picture at the top, and several others, may be found.

Update: In addition to the principles involved, Nathan Newman has more on why the Dems had better not blow this issue. David Neiwert at Orcinus delves into progessive immigration reform proposals. And if you must, from the Right, Glenn Reynolds explains why immigrants shouldn't gather in crowds (with "thanks" to Scott Lemieux at Lawyers, Guns & Money for that link).

Supporting the Troops

Steve Gilliard at The News Blog points out an outrage:

When Fontana resident and 2001 Fontana A.B. Miller High School graduate Kevin Stonestreet joined the U.S. Army in the summer of 2001 as a member of the infantry, he was given a $20,000 bonus to be paid out over his six-year enlistment.

However, when Stonestreet was honorably discharged from the Army in 2005, he found out he needed to repay $3,800 of that bonus because he did not complete his six years.

But Stonestreet, who is now 23, said he was kicked out of the Army because he was diagnosed with post traumatic stress disorder, anxiety and depression from serving in Iraq.

In addition, Stonestreet, who was awarded the Purple Heart and was considered for the Bronze Star for bravery in combat, said the amount he was to pay back was originally $6,000, but the government repossessed his final paycheck of $2,200.

"They were nice enough to take out the $170 for my child support," Stonestreet said, laughingly.

Follow to Gilliard's blog for more information on the case.

Science Rules

If you're one of the few people in the tiny sliver of the Venn diagram of people who read me but not Daily Kos, Darksyde's "Science Friday" (emphasis is self-explanatory) is an excellent ongoing blog series. Great writing, great topics, awesome visual aids. Here's a bit from this week's offering, "The Stand-up Philosopher," an interview with Dr. John Wilkins, a philosopher specializing in "the history and epistemology of biological science":
DS: The DI [Discovery Institute] seems to be insisting that science unfairly excludes supernatural or magical processes, what the heck would qualify as a supernatural processes?

JW: I've never received a sensible answer to this. The history of science since the pre-Socratic Milesians, in the 6th century before the common era, has assumed that there is a nature that can be uncovered. Science depends on this. To introduce some cause that cannot be anticipated, or investigated, or manipulated, is to add nothing to science, and to take away what makes science work. Now one is entirely free to deny that science is knowledge at all, and proceed that way, but if you grant science is a way of knowing - and in fact the most successful way of knowing - then you have to be a naturalist, no matter what your theology may say about things that are not science.

And check out these other recent nuggets from the series: The Science of Deception (on hurricanes, global warming, and censorship and intimidation of government scientists), Swamp Things (an interview on the degradation of the Florida Everglades), What Dreams May Come (on why does E.T. never call?) and Is There Anybody Out There? (on the Fermi Paradox).

Also, don't miss Google Mars.

Pretty cool. See also Google Moon.

Finally, here's a link to Chance and Regularity in the Development of the Fly Eye, by evolutionary biologist P.Z. Myers at Pharyngula, where, incidentally, I found the pic of the mutated fly eye at the top of this post.

Friday, March 24, 2006

Illegal, Unconstitutional NSA Searches: Is There Now a Plaintiff with Standing?

Since the time that the illegal NSA-wiretapping program was reported (and emphatically confirmed by President Bush), there has been an open question remaining whether any single individual actually has "standing" to sue the government to stop this illegal activity under the FISA law, Section 1983, or otherwise.

In a sentence, standing is a judicial doctrine that means that in order to raise a constitutional challenge in the courts--in order for a court to listen to your lawsuit--you must be able to show an injury of some kind, you must be able to show a causal connection between that injury and the conduct of which you are complaining, and you must be able to show that a favorable ruling might redress the harm.

The primary problem with challenging the NSA program in courts was thought by many to be the inability to prove that any specific person was wiretapped, that is, that they were personally harmed. Courts generally do not like speculation or presumptions about these sorts of things. You see, although it is patently obvious that the narrow program "confirmed by the President" (likely one of many other yet-undisclosed illegal programs) violates FISA, many courts would probably refuse to hear a lawsuit pointing this out unless somebody could show that the illegal program specifically harmed them.

Now, however, this may no longer be the case. In a post at the Daily Kos, Georgia10 explains:
Earlier this month, Wendell Belew and Asim Ghafoor, attorneys in Washington, D.C., sued the federal government in what was the latest of a series of lawsuits based on illegal domestic spying. Belew and Ghafoor represented Al-Haramain Islamic Foundation, an Islamic charity which was indicted for allegedly funneling money to terrorists. The charges were eventually dropped.

Oops! An Accidental Disclosure...

In May 2004, the government had accidentally provided these lawyers with documents that included transcripts/summaries of conversations between Belew and Ghafoor, the attorneys, and their client, Suliman al-Buthe, who was the director of the charity. The documents, marked "Top Secret" were then passed on to David B. Ottaway, a reporter for The Washington Post. When it found out it let this "national security document" slip through its fingers, the FBI demanded it back. Ottaway gave it back to the FBI.

The lawyers contend that those transcripts are evidence that they were victims of the President's illegal domestic spying program. It is highly unlikely a judge--even a FISA court judge--would allow the government to violate the attorney-client confidentiality and wiretap an attorney's phones.

Now, the two attorneys who allege being illegally wiretapped and the charity are represented in this lawsuit by Tom Nelson, among others. Tom Nelson, in turn, not only represented the charity in its original terrorism case, but he also represented Brandon Mayfield, who was the attorney mistakenlyaccused of assisting in the 2004 Madrid train bombings. Nelson himself claims his law office was illegally searched as part of the government's investigation into the charity's terrorism ties.

I had missed the articles that Georgia10 cites when they were published, so this is all news to me. While she emphasizes the problems with storing such sensitive documents--and the potential embarrassment to the Congress if the courts act first to end this constitutional crisis--to me, the biggest implication of documents like these (assuming they contain what is alleged) is that now there are plaintiffs who can present a case without getting thrown out of court for lack of standing.

The upshot is that even if Specter's Judiciary Committee or Roberts' Intelligence Committee do not act, there may still be hope for checking the Executive's overreach.

(photo by catnamedvirtue)

After the Storms

My most recent column on law blogs, published yesterday in the Legal Intelligencer, is now online.

Titled "After the Storms: Blogs Step Up Response to Hurricanes," it includes citations to work at FairVote, Paper Chase, VoteLaw, Katrina Legislation Tracking, Ernie the Attorney, a Stephen Griffin post at Balkinization, the Hurricane Law Blog, the Katrina Legal Relief web site, United Policyholders' Hurricane Damage Insurance Claim Help Library, the Mississippi Bar Association's Disaster Relief site, and the American Bar Association's Katrina relief site.

Thursday, March 23, 2006

Throwing Loaded Dice

One underappreciated overreach routinely engaged in by insurance companies is the practice of buying away adverse court decisions to manipulate the development of insurance coverage law.

Through the frequent use of vacatur (a.k.a. “buying and lying”), insurance companies have paid large dollars to wipe out case law that could hurt their bottom line.

In this way, insurance companies are able to erase the ‘bad’ decisions while retaining the ‘good’ ones, allowing them to relitigate the same issues with a loaded die.

One of the most popular mechanisms for this practice has historically been for the insurance companies to offer claim settlements with their policyholders that are explicitly conditioned upon the court vacating and withdrawing the adverse rulings. This scheme, where it succeeds, eradicates pro-policyholder case law and enables insurance companies to shape the insurance law war despite losing the courtroom battle. See Jill E. Fisch, Captive Courts: The Destruction of Judicial Decisions by Agreement of the Parties.

Thus, contrary to insurance company assertions, the true “majority of the courts” may not be on the law books for many important issues because reported court decisions do not accurately reflect the full range of outcomes. As the Colorado district court once observed:
[V]acatur becomes an important litigation tool, particularly for institutional litigators who must return to court many times with the same arguments. When a court rejects the arguments of institutional litigators such as [the defendant], an insurance company, the institutions are dealt a crippling blow not only in the case at bar but in future litigation. Vacatur allows disappointed litigators effectively to rewrite history. Vacatur allows them to control the direction and content of the jurisprudence — to weed out the negative precedent and preserve the positive — and create an artificially weighty and one-sided estimate of what comprises “the case law.”

While attorneys representing the insurance industry may claim that vacatur supports settlement, nothing could be further from the truth. As many courts and commentators have observed, an insurance company which wishes to avoid an adverse precedent need only settle before a decision is rendered. Moreover, parties which expend vast resources litigating an issue to decision, only to negotiate on appeal, are in effect seeking only an “advisory opinion” from the court, wasting precious judicial resources. Instead, as stated by Judge Kleinfeld, dissenting on the Ninth Circuit, “[t]he public’s interest is in settlement before all the work is done.”

Another insurance company tactic is to settle with a policyholder despite an insurance company’s win. This is done to prevent policyholders from appealing a decision favorable to the insurance company, thereby foreclosing any chance of reversal and allowing the entire insurance industry to cite the decision as positive precedent for years to come.

This is precisely what occurred in a case in the Western District of Washington involving the critically contested issue of whether CERCLA-mandated environmental cleanup costs are damages covered under a standard CGL policy. There, the district court ruled in favor of the insurance company and found that cleanup costs were *not* covered as damages under a comprehensive general liability policy. However, at the time that the parties entered the settlement agreement, the insurance company knew that two Washington state courts had ruled the other way. Moreover, it was reported that the judge had told the parties that he wished to reconsider his opinion in light of those decisions. Following these developments, Travelers decided to pay “a substantial amount to freeze the decision as precedent.” It was not until two years later that the Washington Supreme Court halted insurance company defendants from “primarily” relying on the vacated decision.

Despite the eventual setback to the insurance industry, it is clear that this strategy was a “success”: until the district court's decision was rejected by the Washington Supreme Court, the decision was cited at least a dozen times by other courts.

The Supreme Court finally addressed this issue in 1994, in a case titled U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, holding that “mootness by reason of settlement does not justify vacatur of a judgment under review,” although “exceptional circumstances may conceivably counsel in favor of such a course.” The Court recognized vacatur to be an “extraordinary remedy” which must take account of the public interest:
Judicial precedents are presumptively correct and valuable to the legal community as a whole. They are not merely the property of private litigants and should stand unless a court concludes that the public interest would be served by a vacatur.
Nor was it lost on the Court that:
[W]hile the availability of vacatur may facilitate settlement after the judgment . . . it may deter settlement at an earlier stage. Some litigants, at least, may think it worthwhile to roll the dice rather than settle . . . if, but only if, an unfavorable outcome can be washed away by a settlement-related vacatur.

Despite the clarity of the Court’s language, there should be no mistake that the insurance companies’ campaign to limit unfavorable law has continued to the present day, wherever possible. For example, a Texas appellate court held that Bonner Mall “is not binding precedent because the issue decided was one of federal procedural law” and as such “does not apply to state courts’ application of state procedural law.” Texas decisions continue to support this rule. The Wisconsin Supreme Court signaled its agreement in Mason Shoe Mfg. v. Firstar Bank Eau Claire, NA. Similarly, California continues to follow its earlier precedents allowing vacatur following parties’ settlement, as noted in Morrow v. Hood Commun., Inc.

On the whole, however, vacatur does appear to have declined in popularity since the Supreme Court decision in Bonner Mall. At the same time, though, another threat to favorable law for policyholders—unpublished, non-citable decisions—are on the increase. See Eugene R. Anderson, et al., Out of the Frying Pan and Into the Fire: The Emergence of Depublication in the Wake of Vacatur, 4 J. App. Prac. & Process 475 (Fall 2002) (“It is estimated that eighty percent of the cases decided by federal appellate courts take the form of "unpublished" decisions.”). In many courts, these decisions are given no precedential effect, and may *not* be used by attorneys to support their arguments.

This practice — and the remaining gasps of improper vacatur — will continue to distort insurance law decisions for years to come.

(adapted and revised from Anderson Kill articles and court submissions)

The Long War Three Years In: Just the Links (and a sentence)

Over the past week, progressive bloggers have been commemorating the third anniversary of the beginning of the Iraq War (a war that Bush has finally acknowledged he will leave brewing for "future presidents," meaning we'll be passing this sordid anniversary with our young men and women still in Iraq at *least* three more times (assuming Bush has his way here until then and assuming that this intent is not overcome by facts on the ground there), but then again, we're still in Germany, Japan, Korea and a number of other countries decades after we finished the applicable war, and I would not underestimate the political courage it would take for a future President of either party to actually pull the trigger on withdrawal):

Three Years..., by Riverbend
Hell on the Installment Plan, by James Wolcott
Top Ten Catastrophes of the Third Year of American Iraq, by Juan Cole
Nation Unbuilding, by Lance Mannion
Mister, I Ain't a Boy, by Tom Watson
We Told You So, by tristero
The Boundaries of our Power, by Digby
Why does bin Laden dictate our Iraq policy?, by georgia10
Three Years of War in Iraq, a Timeline, by Think Progress
Three Years, by mcjoan
The Death of Shame in Our Pundit Class, by Glenn Greenwald
General Pace, when you do plan on speaking up?, by John in DC
Top newspapers' editorials wimp out on Iraq war anniversary, by John in DC
The War Party in Disarray, by Justin Raimondo
American Megalomania: Our 'national security strategy' is crazed nonsense, by Justin Raimondo
Losing the War, by Kevin Drum
"Open-Ended Commitment", by Kevin Drum
Good News from Iraq via Instapundit, by Winston Smith
Let's Go Get Saddam and Get Out!, by Scott Horton
Still Right, Three Years Later, by Laura Turner
White House Fact('s Are Fungible) Sheet On Iraq, by BarbinMD
The Iraq War, Three Years On, by Ruy Teixeira
Civil War is Here, by Richard Dreyfuss
Groundhog Day, by Billmon

and for morbid levity's sake: Bush, Cheney Drop Huge Cake On Iraq, Crush Power Plant, by Tom Burka

Update: I can't believe I forgot Poland, I mean Fafblog!

Wednesday, March 22, 2006

T.O.: The Crusader

I wanted to introduce myself to this blog. My name is Will and I work with Luke. I also wanted my first post to address one of my favorite pasttimes, football. Specifically, I could not pass on the opportunity to mock one of the game's biggest morons: Terrell Owens or T.O. for the uninitiated. T.O. has a book deal and his publisher described the book as follows: "Finally, the real T.O. story can be told. It's an important chapter in the long-term struggle for players' rights in the NFL."

Apparently, T.O.'s fight to escape from the oppressive contract providing him millions of dollars in order to get additional millions is part of some struggle for the rights of his brethren. Mind you, that in a salary cap system like the NFL has, the more T.O. makes, the less available money there is for his teammates. Nonetheless, apparently T.O.'s efforts have benefitted the average player in ways that only he and his publisher understand (and will be explained to us in Ineligible Receiver).

I continue to be amazed at how many players and people treat the hoarding of wealth as if it is some act of kindness or defiance against some evil force. An example of this can be found whenever Bush or other of his cronies discuss the tax cuts for the highest income. We live in a capitalist society and the hoarding of wealth is part of a system that has provided amazing advancements in technology and comforts, but lets call it for what it is. In that light, I wish to thank David Givens, the newest wide receiver for the Tennessee Titans who signed a lucrative contract with a mediocre team over remaining for less money with the New England Patriots and stated, in amazingly honest terms: "I'm a single guy with no children, and at this point in my career business is my priority. Sometimes in the business world, a change has to be made to fulfill personal goals. And I am not afraid of change."

Debunking the Pretexts Not to Adopt the Feingold Censure Resolution

Glenn Greenwald continues to be a valuable resource on the NSA wiretapping scandal's legal, political, and constitutional implications. (My previous posts on the topic can be found here, here, here, and at the bottom of Dave's post here).

Today, we get a lucid reexamination of two of the most prevalent excuses for not rebuking the President:
MYTH/EXCUSE NUMBER ONE: An investigation is needed before it can be known whether the President broke the law.

MYTH/EXCUSE NUMBER TWO: Republicans want this scandal to persist because it benefits them politically.
Follow the link to Greenwald's page for yet another debunking.

Tuesday, March 21, 2006

"Now there are some who would like to rewrite history---revisionist historians is what I like to call them."

Josh Marshall points out a whopper. In the midst of a blistering exchange with a relentless Helen Thomas, we receive a lesson in "truthiness" from President Bush. (hat tip, Steven Colbert).

Basically, it seems that we went to war because President Bush didn't read any of the newspapers or watch any of the TV showing weapons inspectors on the ground in Iraq. Or, all of that video of them being forced to leave due to the fact that we were invading. Or the pleas to let them continue working.


I also saw a threat in Iraq. I was hoping to solve this problem diplomatically. That's why I went to the Security Council; that's why it was important to pass 1441, which was unanimously passed. And the world said, disarm, disclose, or face serious consequences ... and therefore, we worked with the world, we worked to make sure that Saddam Hussein heard the message of the world. And when he chose to deny inspectors, when he chose not to disclose, then I had the difficult decision to make to remove him. And we did, and the world is safer for it.

As Josh notes:
Of course, that's not what happened. We were there. We remember. It wasn't a century ago. We got the resolution passed. Saddam called our bluff and allowed the inspectors in. President Bush pressed ahead with the invasion.

Indeed, there is a historical record, available on "the internets" (hat tip, Bush):
• U.N. personnel, including about 60 weapons inspectors, 75 support staff and nearly 200 humanitarian workers, began leaving Iraq early Tuesday.

. . .

• An Arab League ambassador said, "It's a very grave day. This is the day that international law has been shoveled away. War will not solve this problem. Unfortunately those who are going to war will find it will be very difficult to get out of it."

• U.N. Security Council members France, Russia, China and Germany are among the nations that insist Iraq can be disarmed peacefully. French Foreign Minister Dominique de Villepin, speaking to Europe 1 radio, said: "One country can win a war, but it takes more than one country to win peace." (Full story) Russian President Vladimir Putin said a possible war in Iraq would be "a mistake fraught with the gravest consequences which may result in casualties and destabilize the international situation in general." Li Zhaoxing, the Chinese foreign minister, said, "We appeal for a political settlement to the Iraq question within the framework of the United Nations and urge all efforts to avoid war."

• U.N. Secretary-General Kofi Annan reiterated his stance that, should military action occur in the region without the blessing of the world body, "its legitimacy would be questioned."

• The 15-member U.N. Security Council met Monday behind closed doors, after which council President Mamady Traore said members decided to return Wednesday morning to discuss the weapons inspectors' work program, even though they are being withdrawn from Iraq.

Monday, March 20, 2006

"It was the year when they finally immanentized the Eschaton."

An unscripted question somehow slipped into the mix. Does Bush see a role for himself in issuing forth the End Times in Iraq?:
Q Thank you for coming to Cleveland, Mr. President, and to the City Club. My question is that author and former Nixon administration official Kevin Phillips, in his latest book, American Theocracy, discusses what has been called radical Christianity and its growing involvement into government and politics. He makes the point that members of your administration have reached out to prophetic Christians who see the war in Iraq and the rise of terrorism as signs of the apocalypse. Do you believe this, that the war in Iraq and the rise of terrorism are signs of the apocalypse? And if not, why not?

Shorter Bush: "No, but another war in the Middle East can't hurt!"

Yes, instead of affirming his belief in the continued continuity of the world--past at least the end of his Administration--we get instead a long, rambling eight-paragraph answer, hitting some of the most overplayed singles on the jukebox, including the classic comeback to that 19th-century belief that "oceans protect us," followed by the newest hit, the Preemptive War on Iran for the Sake of Peace (in stores summer 2007):
THE PRESIDENT: The answer is -- I haven't really thought of it that way. (Laughter.) Here's how I think of it. The first I've heard of that, by the way. I guess I'm more of a practical fellow. I vowed after September the 11th, that I would do everything I could to protect the American people.
. . . It's hard to take risk if you're a small business owner, for example, if you're worried that the next attack is going to come tomorrow. I understand that.
. . . [W]e needed to defeat them overseas so we didn't have to face them here at home.
. . . Foreign policy used to be dictated by the fact we had two oceans protecting us. If we saw a threat, you could deal with it if you needed to, you think -- or not. But we'd be safe.
. . .
. . . I see a threat in Iran. I see it there -- I'm kind of getting off subject here, not because I don't want to answer your question, but kind of -- I guess, that's what happens in Washington, we get a little long-winded. (Laughter.)

But now that I'm on Iran, the threat to Iran, of course -- (applause) -- the threat from Iran is, of course, their stated objective to destroy our strong ally Israel. That's a threat, a serious threat. It's a threat to world peace; it's a threat, in essence, to a strong alliance. I made it clear, I'll make it clear again, that we will use military might to protect our ally, Israel, and -- (applause.)

At any rate, our objective is to solve this issue diplomatically. And so our message must be a united message, a message from not only the United States, but also Great Britain and France and Germany, as well as Russia, hopefully, and China, in order to say, loud and clear to the Iranians, this is unacceptable behavior. Your desire to have a nuclear weapon is unacceptable.

And so, to answer your question, I take a practical view of doing the job you want me to do -- which is how do we defeat an enemy that still wants to hurt us; and how do we deal with threats before they fully materialize; what do we do to protect us from harm? That's my job. And that job came home on September the 11th, for me -- loud and clear. And I think about my job of protecting you every day -- every single day of the presidency, I'm concerned about the safety of the American people.

Yes, the Bush Administration takes "the practical view":
"By remaining resolute and firm and strong, this world will be peaceful."

It embraces reality:

In the summer of 2002, after I [Suskind] had written an article in Esquire that the White House didn't like about Bush's former communications director, Karen Hughes, I had a meeting with a senior adviser to Bush. He expressed the White House's displeasure, and then he told me something that at the time I didn't fully comprehend -- but which I now believe gets to the very heart of the Bush presidency.

The aide said that guys like me were "in what we call the reality-based community," which he defined as people who "believe that solutions emerge from your judicious study of discernible reality." I nodded and murmured something about enlightenment principles and empiricism. He cut me off. "That's not the way the world really works anymore," he continued. "We're an empire now, and when we act, we create our own reality. And while you're studying that reality -- judiciously, as you will -- we'll act again, creating other new realities, which you can study too, and that's how things will sort out. We're history's actors . . . and you, all of you, will be left to just study what we do."

Here's a more humorous take.

Let the Record Reflect

JTIII will bring it home. Maybe not today, maybe not tomorrow, but:

"[H]e's going to win a national championship, too," Thompson said of his son, the Hoyas' head coach. "Remember me telling you that."

What he said. The bandwagon's leaving and I'm on board.

update at 12:20am 3/25/06 Maybe next year.

Katrina / Rita / Wilma Insurance Recovery Conference

On Thursday, March 30, 2006, my firm, Anderson, Kill & Olick, P.C., is presenting a conference at the Windsor Court Hotel in New Orleans titled "Katrina/Rita/Wilma Damages: Recouping Your Losses With An Aggressive Insurance Recovery Program."

Those who are interested in attending may find a brochure and RSVP form here.

Topics will include "Wind, Water and Proximate Causation," "Property Losses," "Business Income/Contingent Business Income/Other Time Element Claims," "Valuation of Hurricane Losses," and a key-note address by J. Robert Hunter, Director of Insurance, Consumer Federation of America.

Sunday, March 19, 2006

What Have You Given Up for Lent?

by Dave

Updated below by Luke

I have given up internet searches containing the words, "bomb", "anti-war", "Howard Dean", or "1984." However, my sacrifice was not a result of a spiritual epiphany. It was the result of a legal epiphany, that my searches could eventually become monitored.

Recently the Department of Justice (DOJ) has been embroiled in a bitter fight with Google Inc. over search records. Although the DOJ recently succeeded in compelling Google to produce 50,000 Web addresses indexed in its system, such success was tempered by the enormous costs and the fact that all of the information Google must hand over was already publicly available. This ruling, assured the public that at least in this situation their privacy would not be violated. However, because the judge chose not to reject the motion on privacy grounds, the government is not precluded from attempting to force Google to hand over specific users keyword searches at a later date.

On Friday, Judge James Ware of the U.S. District for the Northern District of California issued an order granting in part and denying in part a motion filed by the DOJ seeking to compel Google Inc. to comply with a subpoena. Judge Ware denied the DOJ's request that Google be ordered to hand over a sample of keywords customers use to search the Internet. Judge Ware did grant the DOJ's request that Google produce 50,000 Web addresses indexed in its system. However, the information which the DOJ was granted was already publicly available. The DOJ claimed that it needed the data for a statistical study which it hoped would demonstrate the effectiveness of filtering software at issue in a separate case (ACLU v. Gonzales) that concerns a federal law which targets access to pornography online.

The DOJ has claimed from the outset that "it would use the information from search engines only to test how well Internet filters prevent children from accessing potentially harmful websites." Judge Ware agreed that that the 50,000 Web addresses, or URLs, were relevant requests and granted the government's motion to compel Google to produce the Web addresses. However, this information would not disclose who was searching for what; it would disclose what would come up when certain words were entered into Google's search engine.

Although Judge Ware granted the government's request for the 50,000 Web pages, he did not give the DOJ what it really wanted, a sample of keywords customers use to search the Internet. It is this information that has had privacy advocates up in arms recently. The government claims in its brief that they are not seeking the names of the customers who entered the search, only the search itself.

Privacy advocates have countered that people sometimes conduct "vanity searches" whereby they enter their name or social security number to see what Google responds with. Judge Ware was particularly troubled by the possibility that "[p]eople sometimes enter names, Social Security and credit card numbers, addresses and other personal information into Google to see what information is available online." However, Judge Ware did not ultimately rule on the privacy issue because the DOJ's request had already been denied due to its duplicative nature.

The closest Judge Ware comes to ruling on the privacy issue is his statement

The expectation of privacy by some Google users may not be reasonable, but may nonetheless have an appreciable impact on the way in which Google is perceived, and consequently the frequency with which users use Google. Such an expectation does not rise to the level of absolute privilege, but does indicate that there is a potential burden as too Google's loss of goodwill if Google is forced to disclose search queries to the Government.

This dicta endorses the notion that while internet searchers cannot expect absolute privacy, they are entitled to partial privacy. However, because the issue was decided on alternate grounds the dicta of the court carries not precedential authority and the extent of this partial privacy is not addressed. Thus, debate over privacy will likely continue unabated.

After the decision, Google immediately declared victory, and the DOJ was left with some tough questions to answer. Chief among these questions is why the DOJ fought so hard to obtain this information? The only answer I have is that they wished to bring the question of the extent of internet privacy before a court.

It has been acknowledged by the government that Google was not the only target of the subpoenas. Other top Internet companies — including Yahoo Inc., Microsoft Corp. and America Online Inc. — also received the subpoena. However, unlike Google these companies all complied at least in part with the subpoena and avoided any legal confrontation. Such compliance provided Federal investigators with potentially billions of Internet search requests made by users of other major websites. This plethora of data makes the addition of the 50,000 results obtained from Google seem like only a drop in the ocean.

Furthermore, the 50,000 Web addresses received were already publicly available through Google and this information could be organized and recorded through the use of open source code. It is unlikely that any new information that will be of any consequence to the DOJ's case in ACLU v. Gonzales will be unearthed. In addition it was unlikely that any personal privacy would be violated by a release of the 50,000 Web addresses. Thus, I am led to the conclusion that the 50,000 Web addresses were not what the DOJ wanted. I believe that they wanted a judicial ruling on privacy.

Judge Ware did his best to oblige by making a coherent legal argument in opposition to the request; however, he only provided dicta which will act as a warning not a bar. Because there is no automatic bar to subpoenaing a search engine's records again the DOJ will almost assuredly be back in court litigating this issue again.

So what words will you give up?

Update by Luke:

One other thing to consider: it should not be forgotten that this entire discussion could very well be academic. That is, we still do not know whether the President has already authorized a secret N.S.A. data-mining program in addition to these DOJ requests lawfully made through judicial channels. Indeed, we already know that the DOJ has continued to pursue lawful FISA warrants while the NSA has simultaneously, illegally bypassed that mechanism.

Careful C-SPAN watchers and transcript readers likely remember that Attorney General Gonzalez repeatedly limited his remarks in his unsworn Judiciary Committee testimony on warrantless wiretapping to "the program," "the program in which I'm testifying," "the program which I'm testifying about today," "the program that I'm talking about today," "the program that the president has confirmed," and "the program in which I'm testifying." The following paragraphs rather speak for themselves:

BIDEN: . . . That's the assertion. It's only emanating from a foreign country, correct?

GONZALES: Yes, sir: authorization of the program I'm talking about.
. . .
SCHUMER: But there was some -- I'm sorry to cut you off -- but there was some dissent within the administration. And Jim Comey did express, at some point -- that's all I asked you -- some reservations.

GONZALES: The point I want to make is that, to my knowledge, none of the reservations dealt with the program that we're talking about today. They dealt with operational capabilities that we're not talking about today.

. . .

SCHUMER: It's also been reported that the head of the Office of Legal Counsel, Jack Goldsmith, respected lawyer and professor at Harvard Law School, expressed reservations about the program. Is that true?

GONZALES: Senator, rather than going individual by individual, let me just say that I think the differing views that have been the subject of some of these stories did not deal with the program that I'm here testifying about today.

SCHUMER: But you were telling us that none of these people expressed any reservations about the ultimate program, is that right?

GONZALES: Senator, I want to be very careful here, because, of course, I'm here only testifying about what the president has confirmed.

And with respect to what the president has confirmed, I do not believe that these DOJ officials that you're identifying had concerns about this program.

. . .
KOHL: . . . And yet you're saying Al Qaida-to-Al Qaida within the country is beyond the bounds?

GONZALES: Sir, it is beyond the bound of the program which I'm testifying about today.
. . .
SESSIONS: Thank you, Attorney General Gonzales.

I believe you've faithfully fulfilled your responsibility to give your best, honest answers to the questions so far. I think they've been very effective.

If people have listened, I think they will feel much better about the program that that the president has authorized and that you are explaining. Because some of the news articles, in particular, gave the impression that there's widespread of wiretapping of American citizens in domestic situations and in every instance there's an international call.

Most of us by plain language would understand "international" to be different from domestic. And the president has limited this to international calls in which one or more parties are connected to Al Qaida.

Is that correct?

GONZALES: Sir, the program that I'm talking about today, yes, is limited to international calls.

Saturday, March 18, 2006

A Few More Bad Apples

Where's George Teague When You Need Him?

With Terrell Owens going to Dallas, do you think they'll let him do this now?

Thursday, March 16, 2006

Feingold Hits Back


The conventional wisdom crowd that I mentioned below is missing the point again once again. Take for instance, the New York Times' story today that Feingold's resolution is some kind of silver bullet that he took the liberty of loading for the Republicans. Tristero, Digby, Digby (again), Glenn, and Georgia 10 amply cover why these sentiments are such nonsense.

I'd call it the reverse-Br'er Rabbit gambit, if he really didn't like briars. ("Oh please oh please throw me in the briar patch!")

Feingold's not buying it either. His statement is dead-on. Check out the transcript.

And here's a bit of the Q&A that followed:
QUESTION: Conservatives almost seem giddy about your introduction of his resolution, thinking that they can score more political points than Democrats can.

FEINGOLD: Sometimes when people are really having a lot of trouble, giddiness comes very easily. As far as I know -- have you seen any surge in the president's numbers since I made this announcement? I believe no such thing is happening.

. . .

I think that the press decided immediately that somehow this was a bad thing for Democrats and a good thing for conservatives. The facts don't bear it out. You don't have the polls to prove it. The way my colleagues are responding to me suggests to me they're thinking about this, that they feel that there has to be some accountability.

So the instant decision about what the story is, actually, I think is going to backfire on those who made up the story. I don't get the feeling that I had on Monday about this -- yes, people were concerned -- I'm not getting that.

And if the right wing really believes in this country that -- Rush Limbaugh and others -- that they can somehow turn the president's reputation around by saying, "You're darn right he violated the law, and it's a good thing," I think they're just as confused as they are about their Iraq politics. People aren't buying it anymore.

So not only do I not regret it, I felt an absolute obligation to do it.

. . .

I think this actually is in the area of an impeachable offense. I think it is right in the strike zone of what the founding fathers thought about when they talked about high crimes and misdemeanors.

But the Constitution does not require us to go down that road, and I hope that in a sense I'm a voice of moderation on this point, where I'm saying it may not be good for the country to do this, it may not be good for the country in a time of war to try to remove the president from office, even though he's surely done something wrong.

But what we can't do is just ignore the wrongful conduct. So this is a reasonable road.

New poll reveals a strong plurality of Americans *already* support Censure. This with only Feingold and a handful of Senators publicly supporting it:
Do you favor or oppose the United States Senate passing a resolution censuring President George W. Bush for authorizing wiretaps of Americans within the United States without obtaining court orders?

3/15/06 Favor Oppose Undecided

All Adults 46% 44% 10%
Voters 48% 43% 9%

Republicans (33%) 29% 57% 14%
Democrats (37%) 70% 26% 4%
Independents (30%) 42% 47% 11%

Now, there is a nearly identical plurality against impeachment. But, the really cool part of this poll is the following:
Do you favor or oppose the United States House of Representatives voting to impeach President George W. Bush?

3/15/06 Favor Oppose Undecided

All Adults 42% 49% 9%
Voters 43% 50% 7%

Republicans (33%) 18% 80% 2%
Democrats (37%) 61% 30% 9%
Independents (30%) 47% 40% 13%

Yeah, you read that right. 18% of the REPUBLICANS polled favored impeachment, a strong majority of Democrats do, as do a MAJORITY of those ever-important Independents. I'll return to my earlier words for Feingold's colleagues: "C'mon!"

Wednesday, March 15, 2006

Distinguished Pundits Prove their Mettle

Via Ricky at Bottle of Blog, via Atrios at Eschaton, comes a big helping of turnabout is fair play from Fairness & Accuracy in Reporting.

Atrios helpfully excerpts perhaps the most ironic quote in a very ironic bunch, from that voice of measured reason, Cal Thomas:

All of the printed and voiced prophecies should be saved in an archive. When these false prophets again appear, they can be reminded of the error of their previous ways and at least be offered an opportunity to recant and repent. Otherwise, they will return to us in another situation where their expertise will be acknowledged, or taken for granted, but their credibility will be lacking.

Thankfully, FAIR has done just that. Its an impressively awful archive of some of the worst printed and voiced prophesies about the Iraq War. Thomas again:
Speaking to the U.N. Security Council last week, Secretary of State Colin Powell made so strong a case that Iraqi dictator Saddam Hussein is in material breach of U.N. resolutions that only the duped, the dumb and the desperate could ignore it.

Dick Morris:
Over the next couple of weeks when we find the chemical weapons this guy was amassing, the fact that this war was attacked by the left and so the right was so vindicated, I think, really means that the left is going to have to hang its head for three or four more years.

Here's one more, from Chris Matthews:
What's he [Dean] going to talk about a year from now, the fact that the war went too well and it's over? I mean, don't these things sort of lose their--Isn't there a fresh date on some of these debate points?

Funny that Matthews and the rest of the conventional-wisdom-crowd are only now considering "crazy" Dean's debate points (and those of many, many Americans)--after its far too late.

Fool me once, shame, shame on you. Fool me . . . you can't get fooled again!

Just thought I'd throw one more relevant link on this topic out there: one from Norbizness, its The Left Reminisces About His Days in Southern China, from his priceless The Left Is Attacking the City! series, responding in the first person to attacks against that dastardly villain, "The Left."

A Big Stack of Unread Paper

Via The Memory Hole, we see that a Freedom of Information Act request has resulted in declassification and release of over 1,200 pages of previously unavailable State Department reports for post-war Iraq planning.

I'm not likely not read it all (maybe the Executive Summary), but then again, I'm not responsible for invading and governing the place.

They Get Letters

Via Glenn, I see the AP is reporting:
Feingold's effort to censure President Bush is headed for the Senate Judiciary Committee, advancing a contentious debate over whether the president deserves a formal rebuke for his secret wiretapping program.

"I look forward to a full hearing, debate and vote in committee on this important matter," Feingold, D-Wis., said in a statement. "If the committee fails to consider the resolution expeditiously, I will ask that there be a vote in the full Senate."
A possible presidential contender in 2008, Feingold said Bush broke the law and violated the Constitution when he authorized the National Security Agency to conduct a warrantless wiretapping program as part of the war on terrorism.

"Congress must respond," Feingold said Monday on the Senate floor. "A formal censure by Congress is an appropriate and responsible first step to assure the public that when the president thinks he can violate the law without consequences, Congress has the will to hold him accountable."

And over the course of the day I rethought last night's lengthy diatribe, and decided that a more constructive approach to this constitutional crisis may be in order: the Intelligence Committee has already punted , so the ball is now in Judiciary's court.

Yeah, the Judiciary Committee chaired by Senator Specter. The guy who now apparently believes FISA is an unconstitutional encroachment on the President's unitary war powers.

So, I decided to dress the scraps from yesterday, tone everything down by 11 and, knowing my audience, send a letter to my Senator in the most conservative voice I can muster. Anyone interested in the civic art of letter writing can find their Senator's email address and office address here. The occasional moderates like Specter, especially, need to know that their constituents do not approve of the President's lawbreaking. As the AP article noted above makes clear, certain Democrats also apparently need to be reminded.

March 15, 2006

Senator Specter,

Five short years ago, I was generally apolitical but considered myself a libertarian-Republican. I voted for Bob Dole in ’96. I have voted for you. I studied conservative political theory under Prof. George W. Carey at Georgetown and took to heart the lessons of small-c conservative principles, exemplified in the balanced structure of our constitutional form of government. I was particularly enamored by Madison’s work in Federalists Nos. 10 and 51. His insight into the virtues of checks and balances always struck a chord with me, and I took it to heart as sage advice in forming my current political opinions.

This constitutional Republic admirably relies, by design, on checked and balanced power, on ambition counteracting ambition. If you’ll forgive the long quotation of a work with which I am sure you are familiar, as Publius (most likely Madison) explains in No. 51:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
. . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
. . .
If a majority be united by a common interest, the rights of the minority will be insecure.
. . .
In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.
These words, among others, helped to form my political beliefs. Madison’s insight into human nature and his understanding that prudence demands that all powers must be checked by another, equally self-interested, power, and that this check must be permanently established by formal processes and abilities to obstruct, is applicable to more than separate authority of the Several States from the Federal, or the divisions of power among the co-equal Branches. That is, I came to realize that prudence also demands, despite certain conservative thoughts to the contrary, that corporate power be restrained and restricted by government power, and by labor power. I came to realize that a Citizenry empowered by the Judiciary to enforce its own constitutional Rights was yet another prudent check on an overeager government. I also believe that Congress has long needed to exercise more jealous and aggressive oversight over the Executive Branch’s encroachments. I believe that the public needs advocates against corporate overreach, so I became a plaintiff’s attorney who represents policyholders against insurance companies.

Despite these departures from mainstream Republican thought, I still believed, until very recently, that I could still vote for a Republican again at some point in my life, should the Party return someday to its philosophical pillars: Prudence and Judgment. Recent actions by the Senate Intelligence Committee, however, have left me shocked again at certain Senators’ apparent lack of these virtues, and their astonishing failure to guard their own place as a co-equal Branch.

Senator Specter, respectfully, the Senate Judiciary Committee must not similarly fail to express firm disapproval of openly and proudly acknowledged lawbreaking by the Executive. There is no further investigation needed to understand what the Executive Branch has done, is doing, and will continue to do. There is no investigation necessary to understand what powers the Executive has claimed unto itself in denigration of those of Congress. Cases concerning the President’s inherent constitutional ability to act in the National Security field are inapposite, as they pre-date the enaction of F.I.S.A., which prohibits the precise conduct that the Executive has admitted.

Here, Congress has acted to restrict, restrain and cabin the Executive’s authority with checks by the Judiciary. This legislation was duly enacted by Congress and signed by President Carter. It has been in operation continuously since then, and has been repeatedly refined, updated, and reauthorized. This was done again only weeks ago with the reauthorization of the Patriot Act. F.I.S.A. is the law of the land. In this situation, as Justice Jackson explained, the President's power to act is at its lowest ebb. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952). Nevertheless, the President has acted in contravention of F.I.S.A. This was done, and is still ongoing, despite repeated opportunities to further update that law. This was done in secrecy and likely would not have been revealed to the full Intelligence Committee, as required by law, if this particular N.S.A. program had not been revealed by the Press. (As an aside, the Press functions as yet another wise and judicious check on overeager exercise of Power by other political actors, and this understanding justifies the privileged placement of the First Amendment).

Senator, without need for any further investigation, it is evident that this Republic is in a moment of constitutional crisis.

The Executive has overstepped its bounds in a manner designed to conceal the overstep. Having been caught, the Executive now claims that its powers in time of war (or warlike situations) are absolute and unrestrainable by Congress. This amounts to an assertion that F.I.S.A. is unconstitutional—that Congress is impotent in the arena of National Security.

This is dangerous stuff, Senator. Indeed, the legal rationales that the Executive has asserted could apply to almost any conceivable illegal, unconstitutional behavior—so long as it is related in some fashion to “War” or “National Security.” These rationales—that F.I.S.A. is unconstitutional—imply that the recent anti-torture legislation is a farce, and that the recent vote to renew the Patriot Act was charade.

War and National Security are arenas where the integrity of the Republic and the Creator-endowed rights of its Citizens could most be threatened and torn asunder by unbound, unchecked Power. This is why the Constitution gave Congress such an important role in regulating and restraining the Executive’s freedom of action in these arenas. Article I, Section 8 sets forth the Powers of Congress, and among these are the following: the Power to “provide for the common Defence and general Welfare of the United States;” “to define and punish . . . Felonies . . . and Offenses against the Law of Nations;” “To declare War;” “To make Rules for the Government and Regulation of the land and naval Forces;” and, of course, “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.” In short, there is no question that F.I.S.A. is a constitutional exercise of Legislative Power. As such, violations of F.I.S.A. are illegal by statute and, further, unconstitutional. They are an affront to the prerogatives, and, indeed, the relevance of Congress.

Senator, the Congress must stick up for itself, its powers, its co-equal role in the Republic. It must stick up for the Citizens who they represent, by ensuring that all secret spying has been and will be done pursuant to lawful Congressional authority and has been approved as meeting Fourth Amendment requirements by an independent Judiciary that is protected from political passions under Article III.

In a moment of constitutional crisis, Congress must loudly say no to the Executive so that History will not mistake silence or inattention for approval. Certainly, Congress must not merely pass legislation making legal the Executives illegal actions.

A reproach is necessary.

In these circumstances, Senator Feingold’s resolution for Censure of the President is the most reasonable, moderate and prudent course of action. Censure is a sign of good Judgment. Censure means that the Congress does not approve, but that it will not take advantage to remove the President. While this course may be politically perilous in the waters of the current Republican Party, it has the virtue of being right, and in keeping with this Nation’s founding principles. It has the virtue of being supported by concerned Citizens such as myself.
Congressional inaction in the face of such blatant law-breaking would surely set a precedent, and fundamentally change the nature of the Republic and the relative powers of the supposedly co-equal branches. The Senate cannot let this constitutional moment pass without expressing its firm disapproval so that future generations are not saddled with such an ugly precedent, such an egregious departure from the Rule of Law, with nary a sanction levied against it.
Censure must start in your Judiciary Committee, and I hope that you will vote for, and publicly support, this measure.

If my words have swayed you at all to this point, let me add that Feingold’s resolution is not enough. As I expressed above, it is apparent that the program that the President and Attorney General have acknowledged is not the extent of the illegality. Your Committee must investigate and root out any unauthorized and unchecked activity that may affect United States Persons in contravention of F.I.S.A. and the Fourth Amendment.

It is my hope that you do the right thing. Men are not angels, and future leaders may not be as wise in their use of unitary executive power as the current President.

Luke []


Specter replies:

Wed 3/15/2006 10:57 AM
Re: Constitutional Crisis; Censure

Thank you for contacting my office regarding President Bush's secret domestic surveillance program. I appreciate your concern regarding this important matter.

Law enforcement officials must be provided with as much information and as many tools as possible to ensure the protection of our country, but those resources cannot come at the expense of citizens' civil liberties. I believe that it was wise for the President to be candid with the American people concerning his surveillance program. It is important at this point that the matter does not become politicized, because this is a time for analysis and oversight, not attacks.

The U.S. Constitution limits the President's ability to conduct surveillance or searches of United States persons while residing within the United States . In 1978, Congress enacted the Foreign Intelligence Surveillance Act ("FISA") which permits federal agents to conduct electronic surveillance on United States persons in order to acquire foreign intelligence without obtaining a traditional Title III search warrant. FISA does, however, require a FISA court order approving the surveillance. In so doing, the Congress sought to strike a delicate balance between national security interests and personal privacy rights within the United States . I have scheduled Congressional oversight hearings in order to make sure that we are able to maintain this delicate balance.

Thank you again for taking the time to bring your views on this important matter to my attention. As your United States Senator, it is essential that I be kept fully informed on issues of concern to my constituents. Be assured that I will keep your thoughts in mind on this issue and related issues in the 109 th Congress. Should you have any further questions, please do not hesitate to contact my office or visit my website at


Arlen Specter

Monday, March 13, 2006

Censure Bush Now. Russ Feingold for President.

Updated thrice

Russ Feingold has taken yet another courageous (courageous for the Senate) stand. Who will stand with him? Lieberman? Biden? Specter? Rockefeller? Hagel? Snowe?

Russ has demonstrated, yet again, that he is one of the few Democratic Party national leaders who is actually willing to LEAD. Check out his comments on his motion to censure the President for the illegal domestic spying program that the President has admitted and that the President has vowed to continue:

WASHINGTON Dec 17, 2005 -- President Bush said Saturday he personally has authorized a secret eavesdropping program in the U.S. more than 30 times since the Sept. 11 attacks and he lashed out at those involved in publicly revealing the program.
. . .
"The American people expect me to do everything in my power, under our laws and Constitution, to protect them and their civil liberties and that is exactly what I will continue to do as long as I am president of the United States," Bush said.
. . .
"I intend to do so for as long as our nation faces a continuing threat from al-Qaida and related groups," he said.

There is literally no rational legal or constitutional justification for the program: FISA makes illegal what Bush has "authorized." Congress has acted and made illegal what he is doing; the President's power to act in contravention is at its lowest ebb. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952).

Not only that, but it is apparent that the program that Bush and Attorney General Gonzalez have acknowledged is NOT the only illegal program, and the legal rationales that he has asserted could apply to almost any conceivable illegal, unconstitutional behavior--so long as it is related in some fashion to "war." Obviously, these rationales make Congressional (i.e. McCain's) legislation purportedly restricting the President's power to torture transient, ephemeral, and a farce. The Patriot Act's "updates" of FISA are meaningless charade. Why should *any* of the Fourth Amendment (or the Article I) of the Constitution have any more sway over the President's newly-discovered powers as "Commander in Chief" of the military?

When the President asserts unchecked executive authority merely because we are in a "time of war," and the time of war at issue is the loosely-defined and mostly-unbounded "War on Terra," this Republic--which relies by design on checked and balanced power, on ambition counteracting ambition--is in deep, deep trouble. See Federalist #51 (Publius). As Publius (most likely Madison) explains:
If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.
. . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public. We see it particularly displayed in all the subordinate distributions of power, where the constant aim is to divide and arrange the several offices in such a manner as that each may be a check on the other that the private interest of every individual may be a sentinel over the public rights. These inventions of prudence cannot be less requisite in the distribution of the supreme powers of the State.
. . .
If a majority be united by a common interest, the rights of the minority will be insecure.
. . .
In a society under the forms of which the stronger faction can readily unite and oppress the weaker, anarchy may as truly be said to reign as in a state of nature, where the weaker individual is not secured against the violence of the stronger; and as, in the latter state, even the stronger individuals are prompted, by the uncertainty of their condition, to submit to a government which may protect the weak as well as themselves; so, in the former state, will the more powerful factions or parties be gradually induced, by a like motive, to wish for a government which will protect all parties, the weaker as well as the more powerful.

Congressional inaction in the face of such blatant law-breaking would surely set a precedent, and fundamentally change the nature of the Republic and the relative powers of the supposedly co-equal branches.

Bold, prescient Democratic leadership has been in increasingly short supply for the past four and a half years. Feingold was the sole dissenter when the Patriot Act was passed in a rush of uncritical passion almost immediately after 9/11. He was one of 23 who opposed the Iraq War Resolution. He fought the Patriot Act's reauthorization. He pounded Gonzalez in the Judiciary Committee hearings on his confirmation and again on the NSA wiretapping. He was one of the first (and still one of the only) Senators to demand a timetable on Iraq. He took the initiative in creating the campaign finance law that bears his name. Feingold leads:

Senators have a chance to be leaders every time they have to choose between voting in the best interests of the nation and voting for what is more popular, among Congress or among the country at large. And when faced with those votes Senator Feingold has always chosen to be a leader.

This warrantless wiretapping program must not be allowed to be enshrined as "thats just the way things are." At some point, the Congress must stick up for itself, its powers, its co-equal role in the Republic. It must learn to say no. The President must learn his bounds.

It is time for a leader who is willing to stick his neck out to do the right thing and take the unpopular position (even though opposition to the NSA spying is smart wedge politics and now the majority position). Somebody willing to call a spade a spade. Somebody who won't have to fall over themself explaining why they were bullied or shamed or intimidated into supporting an offensive war launched for shady reasons and justified by shady arguments.

Its time for censure.

Its time for Feingold.


Well well well, apparently our good friend Arlen Specter ("Republican") of Pennsylvania, is now claiming that FISA is unconstitutional. This is the man who only weeks ago said:

Well, I think that it's a very powerful statement when the president--Carter at the time--signed [the Presidential signing statement on FISA], and, uh, said that that was the way electronic surveillance ought to be conducted, and only with a warrant. And that was a presidential concession as to who had the authority. Congress exercized it by passing the law, and the president submitted to it.

Now there's an involved question here, Tim, which we're going to get into in some depth, as to whether the president's powers under Article II--his inherent powers--supercede a statute. If a statute is inconsistent with the Constitution, the Constitution governs and the Constitutional powers predominate.

But here you have the president signing on and saying "this is it", and that's why I've been so skeptical of the [NSA wiretap] program because it is in flat violation of the Foreign Intelligence Surveillance Act--but that's not the end of the discussion.

There you have it. Although the President was, is, and will continue to be in "flat violation" of the FISA law until the last terrorist on Earth is dead or captured (or until Senators Roberts and Lieberman draft legislation purporting to make the whole program legal after the fact), which was duly enacted by Congress and signed into law by the President, Specter is willing to declare Congress impotent on matters of national security. Remind me what Article I, Section 8 says again? Oh yeah, this:
Section 8 - Powers of Congress

The Congress shall have Power To . . . provide for the common Defence and general Welfare of the United States . . . To constitute Tribunals inferior to the supreme Court . . . To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations; To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water; To raise and support Armies . . . To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States . . . 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.

Yeah, it sure looks like Congress has no role to play in regulating war, warfare or the President's decisions to eavesdrop in the United States during a time of war.

Give me a break.

Updated again

Noted without comment:
Sen. Joe Lieberman (Conn.) said he would prefer to "solve the problem" rather than scold the president.
. . .
"Some Democrats in Congress have decided the president is the enemy," Cheney said, according to the Associated Press. The crowd booed, and Cheney urged them on.
. . .
Senate Majority Leader Bill Frist (R-Tenn.) accused Feingold of making a "crazy political move" and using "cheap political tricks" that threaten U.S. security by "sending a dangerous signal of disunity around the globe."

See also:
But Sen. Joe Lieberman, D- Conn., voiced some misgivings and hinted that he’d vote no on the Feingold resolution.

“Frankly I’d prefer to spend our time on figuring out ways to bring this very important program of surveillance of potential terrorists here in the United States under the law…. I disagree with the Bush administration’s legal judgment on this one…. But this is a critically important program to the prevention of terrorist acts here in the United States.”

One more update

It looks like Lieberman is being as consistently strong on the Rule of Law as ever. As noted by Digby, "Yes. Joe doesn't believe in scolding presidents does he?":
The implications for our country are so serious that I feel a responsibility to my constituents in Connecticut, as well as to my conscience, to voice my concerns forthrightly and publicly. And I can think of no more appropriate place to do that than on this great Senate floor.
. . .
To begin with, I must respectfully disagree with the president's contention that his relationship with Monica Lewinsky and the way in which he misled us about it is nobody's business but his family's and that even presidents have private lives, as he said.
. . .
But there is more to this than modern media intrusiveness. The president is not just the elected leader of our country. He is as presidential scholar Clinton Rossiter (ph) observed, and I quote, "the one man distillation of the American people." And as President Taft said at another time, "the personal embodiment and representative of their dignity and majesty."
. . .
In this case, the president apparently had extramarital relations with an employee half his age and did so in the workplace in the vicinity of the Oval Office. Such behavior is not just inappropriate. It is immoral...
. . .
The president's intentional and consistent statements, more deeply, may also undercut the trust that the American people have in his word. Under the Constitution, as presidential scholar Newsted (ph) has noted, the president's ultimate source of authority, particularly his moral authority, is the power to persuade, to mobilize public opinion, to build consensus behind a common agenda. And at this, the president has been extraordinarily effective.

But that power hinges on the president's support among the American people and their faith and confidence in his motivations and agenda, yes; but also in his word.

As Teddy Roosevelt once explained, "My power vanishes into thin air the instant that my fellow citizens, who are straight and honest, cease to believe that I represent them and fight for what is straight and honest. That is all the strength that I have," Roosevelt said.

Sadly, with his deception, President Clinton may have weakened the great power and strength that he possesses, of which President Roosevelt spoke.
. . .
Mr. President, I said at the outset that this was a very difficult statement to write and deliver. That is true, very true. And it is true in large part because it is so personal and yet needs to be public, but also because of my fear that it will appear unnecessarily judgmental. I truly regret this.
. . .
But the president, by virtue of the office he sought and was elected to, has traditionally been held to a higher standard. This is as it should be because the American president, as I quoted earlier, is not just the one man distillation of the American people, but today the most powerful person in the world. And as such, the consequences of his misbehavior, even private misbehavior, are much greater than that of an average citizen, a CEO or even a Senator.

That's what I believe presidential scholar James David Barber (ph) in his book "The Presidential Character" was getting at when he wrote that the public demands quote, "a sense of legitimacy from and in the presidency. There is more to this than dignity -- more than propriety. The president is expected to personify our betterness in an inspiring way; to express in what he does and is, not just what he says, a moral idealism which in much of the public mind is the very opposite of politics."
. . .
. . . the transgressions the president has admitted to are too consequential for us to walk away and leave the impression for our children today and for our posterity tomorrow that what he acknowledges he did within the White House is acceptable behavior for our nation's leader. On the contrary, as I have said, it is wrong and unacceptable and should be followed by some measure of public rebuke and accountability.
. . .
Let us as a nation honestly confront the damage that the president's actions over the last seven months have caused, but not to the exclusion of the good that his leadership has done over the past six years, nor at the expense of our common interest as Americans. And let us be guided by the conscience of the Constitution, which calls on us to place the common good above any partisan or personal interest, as we now in our time work together to resolve this serious challenge to our democracy.

I thank the chair. I thank my colleagues. And I yield the floor.

Digby again: "Man, to hear him talk you would have thought the president had blatantly defied the law and illegally spied on American citizens without a warrant or something."

C'mon Joe (and the rest of you; you know who I'm talking about), its not too late to get on the right side of this issue. Its not unpatriotic to stand up for the Constitution, to defend the powers and privileges of that great deliberative institution, the United States Senate, and to honor your oath of office.

"And for you naysayers, I have two strong words for you: c'mon! C'mon!"