Sunday, April 30, 2006

Video: Colbert Lampoons White House and Correspondents at White House Correspondents Dinner

Crooks and Liars has the video of Colbert embarrassing the press and the politicians.

The skit at the end with Helen Thomas is priceless--and clearly uncomfortable for almost everyone else in the room.

John Kenneth Galbraith, Economist for the Common Good, Dies at 97

From the New York Times:

John Kenneth Galbraith, the iconoclastic economist, teacher and diplomat and an unapologetically liberal member of the political and academic establishment that he needled in prolific writings for more than half a century, died yesterday at a hospital in Cambridge, Mass. He was 97.

. . .

Nearly 40 years after writing "The Affluent Society," Mr. Galbraith updated it in 1996 as "The Good Society." In it, he said that his earlier concerns had only worsened: that if anything, America had become even more a "democracy of the fortunate," with the poor increasingly excluded from a fair place at the table.

. . .

Mr. Galbraith said he inherited his liberalism, his interest in politics and his wit from his father. When he was about 8, he once recalled, he would join his father at political rallies. At one event, he wrote in his 1964 memoir "The Scotch," his father mounted a large pile of manure to address the crowd.

"He apologized with ill-concealed sincerity for speaking from the Tory platform," Mr. Galbraith related. "The effect on this agrarian audience was electric. Afterward I congratulated him on the brilliance of the sally. He said, 'It was good but it didn't change any votes.' "

At age 18 he enrolled at Ontario Agricultural College, where he took practical farming courses like poultry husbandry and basic plumbing. But as the Depression dragged down Canadian farmers, the questions of the way farm products were sold and at what prices became more urgent to him than how they were produced. . . .

. . .

Mr. Galbraith became an American citizen, and taught economics at Princeton in 1939. But after the fall of France in 1940, Mr. Galbraith joined the Roosevelt administration to help manage an economy being prepared for war. He rose to become the administrator of wage and price controls in the Office of Price Administration. Prices remained stable, but he grew controversial, drawing the constant fire of industry complaints. "I reached the point that all price fixers reach," he said, "My enemies outnumbered my friends."

He was forced to resign in 1943 and was rejected by the Army as too tall when he sought to enlist. . . .

. . .

He completed two books in 1952, "American Capitalism: The Concept of Countervailing Power" and "A Theory of Price Control." In "American Capitalism," he set out to debunk myths about the free market economy and explore concentrations of economic power. He described the pressures that corporations and unions exerted on each other for increased profits and increased wages, and said these countervailing forces kept those giant groups in equilibrium and the nation's economy prosperous and stable.

In his 1981 memoir, he said that though the basic idea was still sound, he had been "a bit carried away" by his notion of countervailing power. "I made it far more inevitable and rather more equalizing than, in practice, it ever is," he wrote, adding that often it does not emerge, with the result that "numerous groups — the ghetto young, the rural poor, textile workers, many consumers — remain weak or helpless."

. . .

"The Affluent Society" appeared in 1958, making Mr. Galbraith known around the world. In it, he depicted a consumer culture gone wild, rich in goods but poor in the social services that make for community. . . .

Anticipating the environmental movement by nearly a decade, he asked, "Is the added production or the added efficiency in production worth its effect on ambient air, water and space — the countryside?" Mr. Galbraith called for a change in values that would shun the seductions of advertising and champion clean air, good housing and aid for the arts.

. . .

When India became embroiled in a border war with China in the Himalayas in 1962, Ambassador Galbraith effectively took charge of both the American military and the diplomatic response during what was a brief but potentially explosive crisis. He saw to it that India received restrained American help and took it upon himself to announce that the United States recognized India's disputed northern borders.

. . .

After Kennedy was assassinated, Mr. Galbraith served as an adviser to President Johnson, meeting with him often at the White House or on trips to the president's ranch in Texas to talk about what could be accomplished with the Great Society programs. Mr. Galbraith said that Johnson had summoned him to write the final draft of his speech outlining the purposes of the Great Society, and that when the writing was done, said: "I'm not going to change a word. That's great."

. . .

In 1973 he published "Economics and the Public Purpose," in which he sought to extend the planning system already used by the industrial core of the economy to the market economy, to small-business owners and to entrepreneurs. Mr. Galbraith called for a "new socialism," with more steeply progressive taxes; public support of the arts; public ownership of housing, medical and transportation facilities; and the conversion of some corporations and military contractors into public corporations.

. . .

In 2004, Mr. Galbraith, who was then 95, published "The Economics of Innocent Fraud," a short book that questioned much of the standard economic wisdom by questioning the ability of markets to regulate themselves, the usefulness of monetary policy and the effectiveness of corporate governance.

He remained optimistic about the ability of government to improve the lot of the less fortunate. "Let there be a coalition of the concerned," he urged. "The affluent would still be affluent, the comfortable still comfortable, but the poor would be part of the political system."

Brad DeLong, who is quoted in the obituary, has more here.

Saturday, April 29, 2006

"Army Confirms: Rumsfeld Authorized Criminal Conduct"

Marty Lederman has the details at Balkinization:
[T]he Army filed criminal charges against Lt. Col Steven L. Jordan, a military intelligence officer who was second-in-command of interrogation operations at Abu Ghraib prison in Iraq. Charge III of the Army's Charge Sheet accuses Jordan of "cruelty and maltreatment," based on the allegation that he subjected Iraqi detainees subject to his orders "to forced nudity and intimidation by military working dogs."

This is a charge under Article 93 of the Uniform Code of Military Justice (UCMJ), 10 U.S.C. 893 . . . .

. . .

But then how can we account for the actions of the Secretary of Defense and his close aides?

On November 27, 2002, Pentagon General Counsel William Haynes, following discussions with Deputy Secretary Wolfowitz, General Myers, and Doug Feith, informed the Secretary of Defense that forced nudity and the use of the fear of dogs to induce stress were lawful techniques, and he recommended that they be approved for use at Guantanamo. (The lists of techniques to which Haynes was referring can be found in this memorandum.) On December 2, 2002, Secretary Rumsfeld approved those techniques for use at Guantanamo -- and subsequently those techniques were used on detainee Mohammed al-Qahtani.

In other words, the Secretary of Defense authorized criminal conduct.

Be sure to read the whole thing.

Bad apples, bad branch


Sunday's New York Times:
A long-running effort by the Bush administration to send home many of the terror suspects held at Guantánamo Bay, Cuba, has been stymied in part because of concern among United States officials that the prisoners may not be treated humanely by their own governments, officials said.

Union Mines are Safer Mines

"It's a Media-opoly!"

Crooks and Liars has a nice catch: a Robert Smigel Saturday Night Live cartoon called "Conspiracy Theory Rock." In the mode of Schoolhouse Rock, this take-off on monopolization of the media and the media's uncomfortably close relationship with the military-industrial complex originally aired on March 14, 1998. It apparently does not appear in re-runs, and it's not hard to see why.

Enemies everywhere

"The only good monolith is a bombed monolith"

Sadly, No! draws conclusions for "the Left," beginning:

Here's a story of importance, via Matthew Yglesias, who doesn't seem to appreciate the gravity of what he's discovered. Francis Fukuyama, the apostate neoconservative, says that in the 1990s, neocons tried to manufacture an enemy, because they felt that the Republican Party "didn't do as well" when there wasn't a ruthless, monolithic pinkomuslimcommienihilist threat to America.

People, this, coming from Fukuyama (who would know), is big. It's as big as Ike's Warning about the military-industrial complex; bigger than Bill Kristol's admitting that "The Liberal Media" is a useful wingnut delusion. It's big because it provides the final and conclusive missing evidence for something that the Left has known and argued for years but could never prove: That wingnuts contrive monolithic foreign enemies, either by exaggeration or by invention from whole cloth. The Left just never knew whether such a position came from a conscious decision, or if it was instead organic and structural (i.e., simply stupidity). Now, at least for the example of the 1990s, we have a formidable testimony, from the inside so to speak, that it was conscious and deliberate.
Full post here (warnings: language, snark, and broad and unfair sociological, psychological, historical and political generalization-based analysis/rant).

Gov't Covers for Alleged AT&T Cooperation with Warrantless Wiretapping/Data Mining, Raises State Secrets Privilege

Wired magazine's blog points out that the federal government "intends to invoke the rarely used "State Secrets Privilege" -- the legal equivalent of a nuclear bomb -- in the Electronic Frontier Foundation's class action lawsuit against AT&T that alleges the telecom collaborated with the government's secret spying on American citizens." I noted the initial filing of the lawsuit here (from this Wired article). In that initial article, Wired quoted extensively from Mark Klein, a retired AT&T communications technician turned whistleblower:
"While doing my job, I learned that fiber optic cables from the secret room were tapping into the Worldnet (AT&T's internet service) circuits by splitting off a portion of the light signal," Klein wrote.

The split circuits included traffic from peering links connecting to other internet backbone providers, meaning that AT&T was also diverting traffic routed from its network to or from other domestic and international providers, according to Klein's statement.

The secret room also included data-mining equipment called a Narus STA 6400, "known to be used particularly by government intelligence agencies because of its ability to sift through large amounts of data looking for preprogrammed targets," according to Klein's statement.

. . .

Klein said he came forward because he does not believe that the Bush administration is being truthful about the extent of its extrajudicial monitoring of Americans' communications.

"Despite what we are hearing, and considering the public track record of this administration, I simply do not believe their claims that the NSA's spying program is really limited to foreign communications or is otherwise consistent with the NSA's charter or with FISA," Klein's wrote. "And unlike the controversy over targeted wiretaps of individuals' phone calls, this potential spying appears to be applied wholesale to all sorts of internet communications of countless citizens."
The New York Times pursues the Administration's State Secrets gambit here.

In a diary at the Daily Kos, Jeffrey Feldman identifies "the money quote from the filing":
"[T]he fact that the United States will assert the state secrets privilege should not be construed as a confirmation or denial of any of Plaintiffs¿ allegations, either about AT&T or the alleged surveillance activities..."When allegations are made about purported classified government activities or relationships, regardless of whether those allegations are accurate, the existence or non-existence of the activity or relationship is potentially a state secret."
He concludes: "When the President invokes an obscure page of English common law to quash an investigation into illegal spying at ATT--that's because there was illegal spying at ATT."

McJoan at the Daily Kos scoffs:
An inside source at AT&T provided documentation including "affidavits, lists of equipment and technical specifications related to tapping fiber-optic network links," and the administration has pulled out the big gun of executive privilege, but of course that's no admission of guilt.
After digging into background on the State Secrets privilege and other new secrecy measures, Glenn Greenwald writes:
When the NSA scandal began, the administration boastfully insisted that it had nothing to hide and welcomed as many investigations as could be brought, while their defenders claimed that such investigations would be wonderfully helpful to the President politically. Six months later, we still don't know who was eavesdropped on, whether those eavesdropped on had anything to do with terrorism, what was done with the information, and whether there are other warrantless eavesdropping programs besides the one the New York Times discovered. And the reason we don't know any of that is because the administration, consistent with their extremist love of government secrecy, has done everything possible to prevent the very investigations they claimed that they welcomed.
Christy Hardin Smith has more here.

It seems needless to say, but the Bush Administration has quite consciously given us little reason to doubt that other significant illegal spying programs exist beyond the specific illegal N.S.A. program admitted by the President and testified to by Al Gonzalez. (For a line by line journey through the qualifications Gonzalez repeately gave during his testimony, see the update to this post). We shall see whether the government is successful at shutting down this and other cases.

Friday, April 28, 2006

Torture as official U.S. policy

Bad apples, bad branch

No longer confined to dehumanizing the bad guys in Rambo or Missing in Action movies prior to their well-deserved demise, torture is now a recognized weapon in the United States' arsenal. Amnesty International's blog links to an article by historian Alfred McCoy explaining the mainstreaming of torture as policy.
In the aftermath of the Abu Ghraib scandal, the White House has defended torture as a presidential prerogative and blocked reform efforts. By contrast, a loose coalition of civil-liberties lawyers and human rights groups has mobilized to stop the abuse. In June 2004 the Supreme Court ruled in a landmark case, Rasul v. Bush, that Guantanamo detainees were, in fact, on territory leased to the United States and thus deserved access to U.S. courts. Leading U.S. law firms responded by filing 160 habeas corpus cases for 300 detainees.

McCoy describes how, despite President Bush's proclamation that McCain's anti-torture legislation would make it “clear to the world that this government does not torture,” crucial amendments to the legislation made clear to the world that this government does, and will continue to do so. These loopholes were no accident; they resulted from aggressive lobbying by the Bush Administration--most notably the Vice President:
[T]he Bush administration succeeded in twisting what began as an unequivocal ban on torture into a legitimization of three controversial legal doctrines that the administration had originally used to justify torture right after 9/11.

In an apparent compromise gesture, McCain himself inserted the first major loophole: a legal defense for accused CIA interrogators that echoes the administration’s notorious August 2002 torture memo allowing any agents criminally charged to claim that they “did not know that the practices were unlawful.”

Next, the administration effectively neutralized the McCain ban with Senator Lindsey Graham’s amendment stipulating that Guantanamo Bay detainees cannot invoke U.S. law to challenge their imprisonment. . . . In sum, McCain’s original amendment banned torture, but Graham’s later amendment , as finally approved by the Senate, removed any means for enforcement. For a mess of bipartisan pottage, Congress thus bartered away this nation's constitutional birthright of habeas corpus, a foundational legal protection born, ironically, of the British Parliament's long struggle to ban royal torture writs by the infamous Court of Star Chamber.

For the final loophole, on December 30 President Bush issued a “signing statement” insisting that his powers as commander-in-chief and head of the “unitary executive branch” still allowed him to do whatever is necessary to defend America—the same key controversial doctrine the administration had first used to allow torture. Instead of marking closure to the Abu Ghraib scandal, the McCain torture ban has thus sparked a renewed campaign by human-rights advocates to end the use of torture in Washington’s War on Terror—an effort that may well prove to be a long, uphill battle.

Only days after Bush signed the legislation containing the McCain amendment, the White House used a portion of the new law, now called the Detainee Treatment Act of 2005, to quash any judicial oversight of its actions. On January 3 the Justice Department notified federal judges that it would seek the immediate dismissal of all 160 habeas corpus cases filed by Guantanamo detainees. One week later, the U.S. Solicitor General, citing this law, told the Supreme Court it no longer had jurisdiction over Guantanamo and asked the justices to dismiss the potential landmark “unlawful combatant” case, Hamdan v. Rumsfeld. In late March, when the court began to hear oral arguments in this critical test case of U.S. military tribunals, several justices appeared to reject the solicitor general’s argument after vigorously questioning him.

. . . In response to continuing controversy over Abu Ghraib and Guantanamo, the White House has thus initiated what seems an historic shift in US interrogation policy—from the highly secretive tortures by the Central Intelligence Agency during the Cold War to an open, even defiant use of coercive interrogation as an official weapon in the arsenal of American power during the “war on terror.” Until 9/11, the United States government had successfully protected its intelligence community from censure by outsourcing torture to foreign allies and using subtle psychological techniques that elude ready detection—in striking contrast to the crude physical methods once favored by dictators around the world.

Read the full article here.

Thursday, April 27, 2006

"Driving divisive wedges does not always go as planned."

My next legal blogs column for the Legal Intelligencer, Playing Wedge Politics with Immigration Reform, can be found here.

Providing web citations in a newsprint format is tricky business, and some of the blog posts I quote appear to have lost their web addresses in the translation. For the record, I reference photographs at Albert Yee's Philly blog, several posts at Nathan Newman's Labor Blog (here, here and here), posts by Professor Bill O. Hing of the Immigration Prof Blog (here, here, and here), one at the AFL-CIO Weblog, and one by economist Max Sawicky of Max Speak, You Listen!

Wednesday, April 26, 2006

Environmental Injustice at Oakville, Louisiana

A diary by alli at notre dame at the Daily Kos, I'm Sorry, Ms. Jackson - A Primer on Environmental Injustice, provides a grim look at one destination of Hurricane Katrina waste: Oakville, Lousiana, a small African-American community in Plaquemines Parish where the local landfill is filling with waste less than 50 feet from people's homes and, as seen in the photo above, without even a fence.

The Times Picayune has more coverage of this story, and notes that similar disputes are arising at other Louisiana landfills.

Death by Taser

TalkLeft reports on yet another death by Taser. This time, the victim was reportedly swinging knives and a hammer, but her ability to threaten anyone effectively was likely reduced by the fact that she was confined to a wheelchair. She lost consciousness and died shortly after being shot by the "non-lethal" device.

The Sun-Sentinal has more.

Previous coverage of Taser-related deaths, injuries and lawsuits going back to early 2004 are compiled at TalkLeft here, which includes posts on numerous deaths following use of Tasers, a man's hair catching fire after being pepper-sprayed and Taser-ed, lawsuits by police officers who learn to regret volunteering to prove the device's safety (including a police chief who reportedly suffered two strokes, vision and hearing loss, neurological damage, a head injury and "significant cardiac damage"), and the move to introduce civilian Taser models.

Non-lethal weaponry is certainly preferable to shooting people dead with bullets. However, having "non-lethal" weapons available appears to lower officers' threshhold for deploying them, an obvious excessive force concern when the non-lethal weapons turn out to be far more dangerous--and deadly--than advertised.

Tuesday, April 25, 2006

Dirty hands

Who needs gloves?

An article at Business Week Online, In Tough Hands at Allstate (sub. req.), highlights Allstate's adoption of hardball claims handling and bad faith as standard practices. Allstate is disobeying a court order to return 12,500 PowerPoint slides that were prepared by its consultant, McKinsey & Co., which is also a consultant to Farmers Insurance Group, USAA, State Farm and Fireman's Fund.

The slides reportedly outline the "cost-reduction" strategies of the "McKinsey Project", presenting "a portraint of businesss strategies that are at odds with the insurer's carefully cultivated public image. . . . Allstate deploys a variety of systems set in place by McKinsey to make sure it pays the minimum necessary -- and it plays hardball with those who seek more."

After Allstate implemented the consultant's changes in 1995, claims payments for car accidents went down from 63 cents to 47 cents per dollar of premium paid by policyholders.

As David Berardinelli, the attorney who uncovered the slides explains, they "explain why McKinsey built CCPR [Allstate's Claim Core Process Redesign]." The CCPR manual is a thick, well-circulated claims manual setting forth a system to deny and delay payment of benefits. Business Week:

Allstate's "gross opportunity" if McKinsey's plan were fully implemented, according to Berardinelli's notes on one slide, was $550 million to $600 million in savings, almost all of which would come from reducing claims payments, not from cutting expenses.
While fraud was one target, another "key element of McKinsey's plan was reducing the number of claimants who turn to attorneys after an accident for help in collecting on their insurance." According to the notes, one slide predicted that "a 25% drop in attorneys appearing in several categories of cases could add $1.60 to Allstate's share price." Another depicted boxing gloves in place of the trademark "good hands" and stated:
By "holding the line" on cases where accident victims hire lawyers, Allstate could achieve "a new distribution of settlement times" on subjective-injury claims. "By increasing the number of early unrepresented settlements," the slide says, Allstate could give 90% of these claims the "good hands" treatment, resolving them within about 200 days. But the slide shows the remaining 10% get the "boxing gloves" treatment, and a graph shows resolution of their claims taking as much as four years or longer."

Summarizes Berardinelli: "You can get your claims resolved promptly or fairly, but not both."

Monday, April 24, 2006

Fighting for freedom on all of the Internets

Updated twice below
Bloggers across the internets are abuzz with reports that Congress is on the verge of handing over control of this formerly free and open worldwide experiment to AT&T, Verizon and Comcast.

Writes Art Brodsky at TPM Cafe:
Don’t look now, but the House Commerce Committee next Wednesday is likely to vote to turn control of the Internet over to AT&T, Verizon, Comcast, Time Warner and what’s left of the telecommunications industry. It will be one of those stories the MSM writes about as “little noticed” because they haven’t covered it.

Matt Stoller at MyDD has a comprehensive rundown of what's going on, why its a threat to the freedom of the internets, who the players are, and how to stop them.

Prof. Froomkin at agrees that the problems with the legislation are real, but disagrees with the strategery.


Steve Gilliard explains the problem more clearly than I could in an excellent post on the practical implications:
[T]hey're talking about bills and lobbying, and it all may make your eyes glaze over.

But it's really simple.

Remember the old AOL? How you were restricted to what they offered, and couldn't reach the internet. And when you could, you were stuck with their browser?

Do you want that back?

Second update (4/26/06):
The House Energy and Commerce Committee voted on the amendment to "save the Internet," and it was defeated 22-34. Matt Stoller has the post-mortem, concluding that the loss is not so bad, considering that 4 votes switched, and the Subcommittee vote defeated the amendment 23-8. I hope his optimism is well founded:
There's a white hot firestorm on the issue on Capitol Hill. No one wants to see the telcos make a radical change to the internet and screw this medium up, except, well, the telcos. And now members of Congress are listening to us. The telcos have spent hundreds of millions of dollars and many years lobbying for their position; we launched four days ago, and have closed a lot of ground. Over the next few months, as the public wakes up, we'll close the rest of it.

I watched the markup and the voting, and there was noticeable defensiveness among Congressmen on the wrong side of this. They are wrong, they know it, and they are ashamed. Now they know people are watching. So we didn't win this vote, but this close margin was nonetheless a smack to the jaw of the insiders, and a clear victory for the people. Now the battle moves out of the Energy and Commerce Committee, and onto more favorable terrain.

All Right, Not All Right

Juan Cole invents a new game at Informed Comment for keeping track of which leaks are OK and which are not: All Right, Not All Right.

Glenn Greenwald has more on the selective punishment of the "bad leaks" in three excellent posts: Treason by association, Eliminating all checks against lawbreaking, and Selectively punishing politically damaging leaks.

Update: Somehow, even John Kerry managed to clearly explain why this is ridiculous:
Kerry said that with McCarthy, "you have somebody being fired from the CIA for allegedly telling the truth, and you have no one fired from the White House for revealing a CIA agent in order to support a lie. That underscores what's really wrong in Washington, D.C."

Friday, April 21, 2006

Blogging about blogging about scholarship about blogging and scholarship

Alright, so I'm mostly linking to this so I can use the title above, slightly revised from a Sentencing Law and Policy post today with the following lede:

Marking a true high-tech Seinfeldian moment, this post is to note that all the scholarship being developed for this exciting conference at Harvard Law School on blogs and legal scholarship — entitled "Bloggership: How Blogs Are Transforming Legal Scholarship" — can now be accessed at this special SSRN page.

Very meta.

And the papers look pretty interesting too:
Are Modern Bloggers Following in the Footsteps of Publius? (And Other Musings on Blogging by Legal Scholars...), by Gail L. Heriot, University of San Diego - School of Law

Bit by Bit: A Case Study of Bloggership, by D. Gordon Smith, University of Wisconsin Law School

Blog as a Bugged Water Cooler, by Kate Litvak, University of Texas Law School

Blogging and the Transformation of Legal Scholarship, by Lawrence B. Solum, University of Illinois College of Law

Scholarship in Action: The Power, Possibilities, and Pitfalls for Law Professor Blogs, by Douglas A. Berman, Ohio State University - Michael E. Moritz College of Law

Why a Narrowly Defined Legal Scholarship Blog is Not What I Want: An Argument in Pseudo-Blog Form, by Ann Althouse, University of Wisconsin Law School

Blogging While Untenured and Other Extreme Sports, by Christine Hurt and Tung Yin, Marquette University Law School and University of Iowa, College of Law

Co-Blogging Law, by Eric Goldman, Marquette University - Law School

Libel in the Blogosphere: Some Preliminary Thoughts, by Glenn Harlan Reynolds, University of Tennessee College of Law

The Public Face of Scholarship, by Larry E. Ribstein, University of Illinois College of Law

Blogs and the Legal Academy, by Orin S. Kerr, The George Washington University Law School

Tuesday, April 18, 2006

Campaign Finance Controversy

The latest campaign finance news in the city of Philadelphia seems to underscore the pay to play political landscape that has plagued this city. The key to the campaign dispute is about whether the potential mayoral candidates are willing to abide by the law. Whatever the ambiguities or constitutionality of the current legislation, the potential candidates have a duty to live within the law to the best of their ability. If they choose to question the law they should do so through proper legal channels--They should not, as Mr. Dougherty has allegedly done, simply refuse to obey the law by accepting illegal contributions.

Mr. Dougherty should heed the wisdom set forth in Walker v. City of Birmingham,388 U.S. 307, 320-321 (1967). In this famous civil rights case the court wrote:
[I]n the fair administration of justice no man can be judge in his own case, however exalted his station, however righteous his motives, and irrespective of his race, color, politics, or religion. . . But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom.

Like Legal Theory?

If so, Jack Balkin discusses the limits on theory in adequately limiting judicial review.

In short, theories of how the judiciary should work do not constrain the judiciary, or at least don't do the majority of the work. Instead, "much of the work of constraint is produced by structural and institutional features of the constitutional system."

As for theories of the limits of executive power... let's just say they have their limits too.


Via TalkLeft, here's a report from the Washington Post, NYPD Deploys First of 500 Security Cameras:
. . . Hundreds of additional cameras could follow if the city receives $81.5 million in federal grants it has requested to safeguard Lower Manhattan and parts of midtown with a surveillance "ring of steel" modeled after security measures in London's financial district.

. . .

The city already has about 1,000 cameras in the subways, with 2,100 scheduled to be in place by 2008. An additional 3,100 cameras monitor city housing projects.

New York's approach isn't unique. Chicago spent roughly $5 million on a 2,000-camera system. Homeland Security officials in Washington plan to spend $9.8 million for surveillance cameras and sensors on a rail line near the Capitol. And Philadelphia has increasingly relied on video surveillance.

I'm very on the one hand, on the other hand about this one. I mean, it's just public places. It's not like they're listening to private calls or reading your internet searches without legal authority and in defiance of federal law.

Then again...

Monday, April 17, 2006

Gov. Ryan and Booker

Sentencing Law and Policy points out a few other blogs -- the White Collar Crime Prof Blog and the Chicago Tribune blog -- each observing that Governor Ryan's (R-Il) conviction on 18 corruption-related counts is sure to raise a host of post-Booker sentencing issues.

I won't attempt to offer a calculation, or even guess whether a below-guideline sentence would be overturned on appeal.

Friday, April 14, 2006

The Legal Goes to the Blogs

Hank Grezlak, editor-in-chief of the Legal Intelligencer (for which I write on a monthly basis), has an online-only column today introducing three new Intelligencer-related blogs, including that of yours truly.

Check out The Legal Intelligencer Blog and The Devil Wears Brooks Brothers.

Wednesday, April 12, 2006

Non-Precedential Unpublished Decisions Are Now Precedential

This is a bit of attorney inside-baseball, but fairly big news within legal circles. The Supreme Court voted today to allow attorneys to begin citing "unpublished" court opinions in federal courts, though the decision will only apply to decisions filed as of January 1, 2007.

Currently, in several circuits these cases--which represent approximately 80% of all federal appeals decisions--are not permitted to be cited and are accorded no precedential value. This practice has been criticized by many attorneys, and perhaps most prominently by Judge Richard Arnold of the Eighth Circuit, who believed it to be an unconstitutional exercise of powers not granted to the Judiciary under Article III.

The concept of "precedent" is that a court should act consistently in similar situations--and there is a well-acknowledged degree of justice in two persons in the same situation being treated in the same fashion. Nevertheless, until this decision, and with ever-increasing frequency, attorneys arguing for a particular result could be placed in the unenvious position of knowing that the court had previously ruled in their favor in a similar situation while simultaneously being barred from explaining this previous result to the court. This prohibition has now been removed.

"What if we started a nuclear war and everybody pretended not to notice?"

Billmon is back, with a long, worth-your-time post on what the U.S. and the world could look like after a nuclear attack on Iran. Check it out: Mutually Assured Dementia.

Tuesday, April 11, 2006

Engineering Reports Unfavorable to Insurance Industry Altered and Destroyed

The Biloxi Sun Herald has two new stories today on the alleged alteration and destruction of Hurricane Katrina-related engineering reports and other evidence that was unfavorable to the insurance industry on the wind vs. water question. An earlier post on this topic may be found here.

In "Engineer: Reports Altered, Name Forged
'They took out whole exhibits'
", Anita Lee reports:
Professional engineer James K. "Ken" Overstreet said his assessments of property damaged by Hurricane Katrina were altered without his permission and, in several cases, his signature was forged on documents insurance companies used to minimize or deny policyholder claims.

Overstreet worked as a contractor for S&B Infrastructure. In turn, S&B contracted with Rimkus Consulting Group Inc. to supply damage assessments to insurance companies. S&B, he said, parroted orders from Rimkus.

"If they could get by with changing the wind to surge, they would do it," said Overstreet, who has talked with the state Attorney General's Office in connection with a Hurricane Katrina insurance-fraud investigation. "If you had affidavits in there where people saw houses blowing down, sometimes they'd just take those out entirely. They took out whole exhibits."

The Sun Herald obtained copies of altered reports from the Merlin Law Group, which has subpoenaed the records for several lawsuits filed in Harrison County against Houston-based Rimkus, Rimkus employees managing Hurricane Katrina work, State Farm Fire & Casualty Co., Clarendon National Insurance Co. and the company adjusting Clarendon claims, CIG Group Inc.

Because of state Attorney General Jim Hood's ongoing investigation, representatives of S&B and State Farm said the companies will not comment on the allegations.

. . .

Overstreet said the engineering firms changed his reports without consulting him, even removing his references to tornadoes when he found evidence of them.

. . .

Overstreet said his signature was forged on the altered reports.

"I don't think there was any restriction on the extent to which they could change the report," Overstreet said. " I was told we didn't have any control over how the reports got changed. It was like it was almost none of my business how they got changed."

Overstreet said he saw a pattern to the damage investigations: when winds and surge battered property, blame the surge.

. . .

Overstreet completed a report on [homeowner James "Bud" Ray's] property in December. He concluded: "The home had been destroyed by a combination of wind gusts, tornadoes and wind-driven storm surge."

He added: "Due to the high incidence of snapped and uprooted trees, and according to eyewitness accounts, winds much higher than those considered to be "sustained" likely contributed to the structural damage to Mr. Ray's house."

A second Rimkus report in February omitted Overstreet's conclusions and instead said, "The storm surge associated with Hurricane Katrina destroyed the portion of the residence above the concrete foundation slab."

Ray had collected sworn eyewitness accounts of the devastation.

Overstreet's report included the eyewitness accounts and a map showing where each lived, along with a photo of Ray and one of the eyewitnesses. Those items were not included in the February report. Overstreet said his name was forged on the report as a consultant, with another engineer's signature and seal affixed.

Meanwhile, Ray spent $15,000 of his own savings on weather, engineering and other professional reports to buttress his claim that wind tore up his waterfront home before the water arrived. He kept CGI representatives abreast of his expert information, eventually securing $500,000 on a policy valued at more than $900,000.

In a related story titled Lott's lawyer: State Farm is destroying fraud evidence, Michael Kunzelman reports:
Zach Scruggs, one of [U.S. Sen. Trent] Lott's attorneys, says Lott has a "good faith belief" that several State Farm employees in Biloxi are destroying engineering reports that gave conflicting conclusions about whether wind or water was responsible for storm damage.

. . .

In an interview Monday, Scruggs said corporate "whistle-blowers" who are cooperating with Lott's attorneys have provided evidence that State Farm employees are destroying or moving those "initial favorable" engineering reports.

"We believe that this is a systematic practice," said Scruggs, who is Lott's nephew by marriage.

Mississippi Attorney General Jim Hood also says he is investigating allegations that State Farm manipulated engineering reports to deny claims after the Aug. 29 hurricane.

A judge ordered State Farm to turn over copies of its Katrina engineering reports to Hood's office. The judge also ordered Hood's office to set up a "Chinese wall" that would keep the documents out of the hands of lawyers with civil cases against State Farm.

. . .

Scruggs is asking a federal judge to order State Farm to turn over Lott's entire case file as well as records for other policyholders' claims.

This is surely not the last we will hear about this dirty business. Stay tuned.

Monday, April 10, 2006

Blog and Run

Just a quick one tonite.

The philly blog has some great shots of today's immigration rally at Love Park here in Philadelphia.

Steve Gilliard has been all over the racial implications of the immigration debate.

Dan Froomkin runs down the coverage of the Leaker in Chief story at the's White House Briefing.

Ricky at Bottle of Blog is not at all happy with the President, and is waiting for the "Twenty Percenters" to come around.

Sunday, April 09, 2006

So Where DID Those Forged Niger-Uranium Documents Come From?

This scandal continues to percolate. You'd think such a juicy story involving forged documents, spys, coverups, intrigues leading to war, and so on would generate a bit more interest from the major U.S. news organizations.

Thankfully, Josh Marshall continues to follow breaking developments, raking the muck and connecting dots. He offers a skeptical take on today's London Times article, "'Forgers' of key Iraq war contract named":
Now, remember, this version of events [described in the Times article] is the work of an Italian government 'investigation'. And all evidence suggests that the Italian government has very dirty hands in this whole affair, acting at least as the purveyor of the forgeries and possibly their creator as well.

Here's a few links to some of Josh's previous work on this subject, in case you missed it:
-- the FBI "reopening" its inquiry;
-- Hadley's role;
-- the "cleaning up" of the forgeries;
-- and the most detail is in "the Italian Connection," Part One, Part Two, and Part Three.

eriposte at The Left Coaster has (quite a bit) more.

welcome, skippy readers

when jon stewart wants news, he turns to cnn, which turns to skippy, who points to the blog brief. so...we're very clearly on our way.

WaPo Confirms Hersh's Nuclear Strike Plan Story

Adigal in a diary at the Daily Kos points out a Washington Post story on the front page of the Sunday edition with more on the story outlined by Hersh and discussed here, below.

Some excerpts from the Post:
Preparations for confrontation with Iran underscore how the issue has vaulted to the front of President Bush's agenda even as he struggles with a relentless war in next-door Iraq. Bush views Tehran as a serious menace that must be dealt with before his presidency ends, aides said, and the White House, in its new National Security Strategy, last month labeled Iran the most serious challenge to the United States posed by any country.

. . .

"The Bush team is looking at the viability of airstrikes simply because many think airstrikes are the only real option ahead," said Kurt Campbell, a former Pentagon policy official.

. . .

The British government has launched its own planning for a potential U.S. strike, studying security arrangements for its embassy and consular offices, for British citizens and corporate interests in Iran and for ships in the region and British troops in Iraq. British officials indicate their government is unlikely to participate directly in any attacks.

Israel is preparing, as well. The government recently leaked a contingency plan for attacking on its own if the United States does not, a plan involving airstrikes, commando teams, possibly missiles and even explosives-carrying dogs. Israel, which bombed Iraq's Osirak nuclear plant in 1981 to prevent it from being used to develop weapons, has built a replica of Natanz, according to Israeli media, but U.S. strategists do not believe Israel has the capacity to accomplish the mission without nuclear weapons.

. . .

As the administration weighs these issues, two main options are under consideration, according to one person with contacts among Air Force planners. The first would be a quick and limited strike against nuclear-related facilities accompanied by a threat to resume bombing if Iran responds with terrorist attacks in Iraq or elsewhere. The second calls for a more ambitious campaign of bombing and cruise missiles leveling targets well beyond nuclear facilities, such as Iranian intelligence headquarters, the Revolutionary Guard and some in the government.

. . .

"The targeteers honestly keep coming back and saying it will require nuclear penetrator munitions to take out those tunnels," said Kenneth M. Pollack, a former CIA analyst. "Could we do it with conventional munitions? Possibly. But it's going to be very difficult to do."

. . .

At a conference in Berlin, [Retired Air Force Col. Sam] Gardiner outlined a five-day operation that would require 400 "aim points," or targets for individual weapons, at nuclear facilities, at least 75 of which would require penetrating weapons.

Makes Sense to Me

Via the Insurance Coverage Law Blog, I see this A.P. article, which notes a Louisiana House Bill that would allow consumers an extra year to file lawsuits against their insurance companies has passed through committee. It will go next to the Louisiana House for vote:
[Rep. Tim Burns, R-Mandeville] said that insurance companies "are so overwhelmed now, they will not be able to process all the claims by Aug. 29, 2006," a year after the date Katrina battered the state. "It is in everybody's interest to extend it to two years," he said.

Saturday, April 08, 2006

Keeping New Orleans on the Front Page

In "Who Is Killing New Orleans?" in the April 10 issue of The Nation, Mike Davis provides an exhausive run-down on what is going wrong in post-Katrina New Orleans.

Here's a taste, if you can bear it:

Yet by early November it was clear that saving New Orleans was no longer high on the Bush agenda, if it had ever been. As Congress headed toward its Christmas adjournment, the Louisiana delegation was in panic mode: A Category 5 plan had disappeared from serious discussion, and there were doubts about whether the damaged levees would be repaired before hurricane season returned. (In early March engineers monitoring the progress of the Army Corps's work complained that the use of weak, sandy soils and the lack of concrete "armoring" insured that the levees would again fail in a major storm.)

Congress ultimately voted to provide $29 billion for Gulf Coast relief. Yet as the Washington Post reported, "All but $6 billion of the measure merely reshuffled some of the $62 billion in previously approved Hurricane Katrina aid. The rest was funded by a 1 percent across-the-board cut of non-emergency, discretionary programs." The Pentagon won approval for a whopping $4.4 billion in base repairs and other professed Katrina-related needs, but Congress cut out the $250 million allocated to combat coastal erosion. Meanwhile, Mississippi's powerful Republican troika--Governor Haley Barbour and Senators Trent Lott and Thad Cochran--persuaded fellow Republicans to support $6.2 billion in discretionary housing aid for Louisiana and $5.3 billion for Mississippi, with red-state Mississippi getting five times as much aid per distressed household as pink-state Louisiana.

Louisiana received another blow on January 23, when Bush rejected GOP Representative Richard Baker's plan calling for a federally guaranteed Louisiana Reconstruction Corporation, which would bail out homeowners by buying distressed properties and packaging them in larger parcels for resale to developers. Local Republicans as well as Democrats howled in rage, and the future of southern Louisiana was again thrown into chaos. Although the Administration eventually promised an additional $4.2 billion in housing aid, the appropriation continues to be fought over by Texas and other jealous states.

. . .

On the crucial question of how to decide which neighborhoods would be allowed to rebuild and which would be bulldozed, BNOB endorsed the concept of forced buyouts but equivocated over process. Instead of the ruthless map that the Bureau of Government Research wanted, Canizaro and colleagues proposed a Rube Goldberg-like temporary building moratorium in tandem with neighborhood planning meetings that would poll homeowners about their intentions. Only those neighborhoods where at least half of the pre-Katrina residents had made a committment to return would be considered serious candidates for Community Development Block Grants (CDBGs) and other financial aid.

Canizaro presented the report to Nagin in front of a public audience on January 11. The mayor said, "I like the plan," and he complimented the commissioners for "a job well done." But most locals found little charm in the Canizaro report. "I will sit in my front door with my shotgun," one resident warned at a jammed meeting in the Council chambers on January 14, while another demanded, "Are we going to allow some developers, some hustlers, some land thieves to grab our land, grab our homes, to make this a Disney World version of our homes, our lives?" Predictably, Nagin panicked and eventually disavowed the building moratorium. Soon afterward the White House torpedoed the Baker plan and left BNOB with only the state-controlled CDBG appropriation to finance its ambitious vision of New Orleans regrouped around a dozen new River Gardens linked by a high-speed light-rail line.

. . .

Even before the last bloated body had been fished out of the fetid waters, conservative political analysts were writing gleeful obituaries for black Democratic power in Louisiana. "The Democrats' margin of victory," said Ronald Utt of the Heritage Foundation, is "living in the Astrodome in Houston." Thanks to the Army Corps's defective levees, the Republicans stand to gain another Senate seat, two Congressional seats and probably the governorship. The Democrats would also find it impossible to reproduce Bill Clinton's 1992 feat, when he carried Louisiana by almost exactly his margin of victory in New Orleans. With a ruthless psephologist like Karl Rove in the White House, it is inconceivable that such considerations haven't influenced the shameless Bush response to the city's distress.

And the conclusion:
It would be inspiring to see in this latest battle of New Orleans the birth pangs of a new or renewed civil rights movement, but gritty local activism has yet to be echoed in meaningful solidarity by the labor movement, so-called progressive Democrats or even the Congressional Black Caucus. Pledges, press statements and occasional delegations, yes; but not the unfaltering national outrage and sense of urgency that should attend the attempted murder of New Orleans on the fortieth anniversary of the Voting Rights Act. In 1874, as historian Ted Tunnell has pointed out, the failure of Northern Radicals to launch a militant, armed riposte to the white insurrection in New Orleans helped to doom the first Reconstruction. Will our feeble response to Hurricane Katrina now lead to the rollback of the second?

It's a tough read, but check it out.

Post-Cold War Unilateral Nuclear Warfare

"Anyone can go to Baghdad. Real men go to Tehran."
--Senior Bush Official, May 2003

Outrageous, inhumane, illegal, dangerous, short-sighted and self-destructive--but not unexpected; the ever-indispensible Sy Hersh has yet another groundbreaking report in this week's New Yorker. Here are some choice excerpts:

The Bush Administration, while publicly advocating diplomacy in order to stop Iran from pursuing a nuclear weapon, has increased clandestine activities inside Iran and intensified planning for a possible major air attack. Current and former American military and intelligence officials said that Air Force planning groups are drawing up lists of targets, and teams of American combat troops have been ordered into Iran, under cover, to collect targeting data and to establish contact with anti-government ethnic-minority groups.

. . .

A government consultant with close ties to the civilian leadership in the Pentagon said that Bush was “absolutely convinced that Iran is going to get the bomb” if it is not stopped. He said that the President believes that he must do “what no Democrat or Republican, if elected in the future, would have the courage to do,” and “that saving Iran is going to be his legacy.”

One former defense official, who still deals with sensitive issues for the Bush Administration, told me that the military planning was premised on a belief that “a sustained bombing campaign in Iran will humiliate the religious leadership and lead the public to rise up and overthrow the government.” He added, “I was shocked when I heard it, and asked myself, ‘What are they smoking?’ ”

. . .

In recent weeks, the President has quietly initiated a series of talks on plans for Iran with a few key senators and members of Congress, including at least one Democrat. A senior member of the House Appropriations Committee, who did not take part in the meetings but has discussed their content with his colleagues, told me that there had been “no formal briefings,” because “they’re reluctant to brief the minority. They’re doing the Senate, somewhat selectively.”

The House member said that no one in the meetings “is really objecting” to the talk of war. “The people they’re briefing are the same ones who led the charge on Iraq. At most, questions are raised: How are you going to hit all the sites at once? How are you going to get deep enough?” (Iran is building facilities underground.) “There’s no pressure from Congress” not to take military action, the House member added. “The only political pressure is from the guys who want to do it.” Speaking of President Bush, the House member said, “The most worrisome thing is that this guy has a messianic vision.”

Some operations, apparently aimed in part at intimidating Iran, are already under way. American Naval tactical aircraft, operating from carriers in the Arabian Sea, have been flying simulated nuclear-weapons delivery missions—rapid ascending maneuvers known as “over the shoulder” bombing—since last summer, the former official said, within range of Iranian coastal radars.

. . .

One of the military’s initial option plans, as presented to the White House by the Pentagon this winter, calls for the use of a bunker-buster tactical nuclear weapon, such as the B61-11, against underground nuclear sites. . . . The elimination of Natanz would be a major setback for Iran’s nuclear ambitions, but the conventional weapons in the American arsenal could not insure the destruction of facilities under seventy-five feet of earth and rock, especially if they are reinforced with concrete.

. . .

. . . The lack of reliable intelligence leaves military planners, given the goal of totally destroying the sites, little choice but to consider the use of tactical nuclear weapons. “Every other option, in the view of the nuclear weaponeers, would leave a gap,” the former senior intelligence official said. “‘Decisive’ is the key word of the Air Force’s planning. It’s a tough decision. But we made it in Japan.”

. . .

. . . Late this winter, the Joint Chiefs of Staff sought to remove the nuclear option from the evolving war plans for Iran—without success, the former intelligence official said. “The White House said, ‘Why are you challenging this? The option came from you.’ ”

The Pentagon adviser on the war on terror confirmed that some in the Administration were looking seriously at this option, which he linked to a resurgence of interest in tactical nuclear weapons among Pentagon civilians and in policy circles. He called it “a juggernaut that has to be stopped.”

. . .

The Pentagon adviser questioned the value of air strikes. “The Iranians have distributed their nuclear activity very well, and we have no clue where some of the key stuff is. It could even be out of the country,” he said. He warned, as did many others, that bombing Iran could provoke “a chain reaction” of attacks on American facilities and citizens throughout the world: “What will 1.2 billion Muslims think the day we attack Iran?”

With or without the nuclear option, the list of targets may inevitably expand. One recently retired high-level Bush Administration official, who is also an expert on war planning, told me that he would have vigorously argued against an air attack on Iran, because “Iran is a much tougher target” than Iraq. But, he added, “If you’re going to do any bombing to stop the nukes, you might as well improve your lie across the board. Maybe hit some training camps, and clear up a lot of other problems.”

The Pentagon adviser said that, in the event of an attack, the Air Force intended to strike many hundreds of targets in Iran but that “ninety-nine per cent of them have nothing to do with proliferation. There are people who believe it’s the way to operate”—that the Administration can achieve its policy goals in Iran with a bombing campaign, an idea that has been supported by neoconservatives.

. . .

Any American bombing attack, Richard Armitage told me, would have to consider the following questions: “What will happen in the other Islamic countries? What ability does Iran have to reach us and touch us globally—that is, terrorism? Will Syria and Lebanon up the pressure on Israel? What does the attack do to our already diminished international standing? And what does this mean for Russia, China, and the U.N. Security Council?”

. . .

Michel Samaha, a veteran Lebanese Christian politician and former cabinet minister in Beirut, told me that the Iranian retaliation might be focussed on exposed oil and gas fields in Saudi Arabia, Qatar, Kuwait, and the United Arab Emirates. “They would be at risk,” he said, “and this could begin the real jihad of Iran versus the West. You will have a messy world.”

Iran could also initiate a wave of terror attacks in Iraq and elsewhere, with the help of Hezbollah. . .

The adviser went on, “If we go, the southern half of Iraq will light up like a candle. . .”
Be sure to read the whole thing.

So they want to stop Iran from getting "a strategic weapon and threaten[ing] another world war," but they are apparently willing to begin one to do so. The eerily-familiar campaign of leaking cherry-picked intelligence reports to generate pro-war buzz has already begun--once again, right before a midterm election. Liberals, the Democratic Party, Christians, and conservatives-who-know-better-than-this-nonsense cannot allow themselves to be shamed, frightened, intimidated or bullied by poll results, "cakewalk"-crying experts on cable news shows, timid campaign consultants, or disingenuous provocateurs' cries of "defeatnik," "traitor," "fifth columnist," "Iran-lover," or "freedom-hater" into sitting silently or supporting yet another ghastly war of choice, spilling more blood in our names and the names of "Peace," "Freedom," "Security," or "the children."

The myopic irony of even considering the fantastic phantasm that some kind of "good outcome" could somehow issue from attacks on Iran--given the delusional rhetoric that led to our current posture in Iraq and our dismal stature in the world community--is staggering. It is truly disturbing that the horrid inhumanity of initiating such a crime as preemptive thermonuclear warfare is even being considered. Then again, the Bush Administration believes that it creates its own reality.

The rest of us can only hope to survive it--or stop it before it is too late.

"Saving Iran is going to be his legacy."


Then again, in a comment to Digby's post on this subject, R.Porrofatto suggests a different conclusion:
[T]his may also be a typical tactic of the Bush administration. After floating this balloon, they go ahead and use conventional bombs (which these days are far from conventional) and everyone breathes a sigh of relief at their restraint.

Second update:

Further confirmation and more details are at the Washington Post.

Third update:

Sifu Tweety at the Poorman agrees with R.Porrofatto's intuition:
It may be that they’re genuinely psyched to get some of their nuclear ordnance out there, but it seems more likely to me that the WPE [Worst President Ever] administration is so eager to keep this on the table not because they desperately want to use nukes, but because by keeping nukes on the table they can reframe the discussion as “should we nuke Iran,” as opposed to “should we launch a massive bombing campaign in Iran”. It’s nuclear brinksmanship, but purely domestic, and purely political. Even if that’s not the case, of course, it very much behooves those of us who aren’t certifiable warmongering fascist &c. &c., who want to stop this, to focus on the reprecussions of an Iranian campaign generally, rather than specifically a nuclear blast: the truth is, if you’re trying to start a global, clash-of-civilizations style war with, and betweeen, the entire Islamic world, invading Iran is a pretty awesome way to do it.

Thursday, April 06, 2006

Do We Really Have to Wait for Details of Other Secret Illegal Programs to Leak?

Updated below

In "Warrantless Wiretaps Possible in U.S.," Dan Eggen of the Washington Post reports:
Attorney General Alberto R. Gonzales left open the possibility yesterday that President Bush could order warrantless wiretaps on telephone calls occurring solely within the United States -- a move that would dramatically expand the reach of a controversial National Security Agency surveillance program.
In response to a question from Rep. Adam Schiff (D-Calif.) during an appearance before the House Judiciary Committee, Gonzales suggested that the administration could decide it was legal to listen in on a domestic call without supervision if it were related to al-Qaeda.
"I'm not going to rule it out," Gonzales said.

. . .

In yesterday's testimony, Gonzales reiterated earlier hints that there may be another facet to the NSA program that has not been revealed publicly, or even another program that has prompted dissension within the government. While acknowledging disagreements among officials over the monitoring efforts, Gonzales disputed published reports that have detailed the arguments.
"They did not relate to the program the president disclosed," Gonzales testified. "They related to something else, and I can't get into that."

Justice spokeswoman Tasia Scolinos played down Gonzales's remarks, saying he "did not say anything new" about the NSA program.

As we detail in the update to this post: No kidding. And its old news that what we already know is that the program that they *are* talking about is unquestionably illegal and unconstitutional.

And by the way, the question is raised by these recent articles in the National Journal and NY Sun: did the "trust me" President secretly authorize the leak of classified information for political purposes in violation of his own executive order? I'd hate to presume, as the allegation comes from the in-jeopardy "Scooter" Libby. Still, it's a pretty daring defense gambit to put his word up against the President and Vice President. Would the Libby team have made it without knowing whether it would draw a denial from the White House? Interesting, speculative stuff.

For those looking for a unified theory of Libby, Plame, Cheney, Bush, Iraq, and the uranium from Niger forgery, Prof. Cole has some great visual aids.

Ultimately, whatever you make of this Libby business, it is but a sideshow to the main event: the Unitary, Unbound Executive.

It's time for Censure.


In what should come as a surprise to noone--despite my rather superficial refusal to presume, above--it turns out that Libby's story of Chief Executive Approval to Leak in the Interest of Politics has been pretty much confirmed by Scott McClellan at a Friday press conference and by a "senior administration official" to the Washington Post:
The White House refused to comment directly on the court filing, except to point out that Bush's very decision to disclose classified information means he declassified it -- an assessment shared by independent legal experts.

A senior administration official, speaking on background because White House policy prohibits comment on an active investigation, said Bush sees a distinction between leaks and what he is alleged to have done. The official said Bush authorized the release of the classified information to assure the public of his rationale for war as it was coming under increasing scrutiny.

Also, the official said, the president has not been accused of authorizing the release of the name of Valerie Plame, the undercover CIA operative whose unmasking in a July 2003 newspaper column prompted the federal investigation.

"There is a clear difference between the two," the official said. "I understand that in politics these two can be conflated. And we're going to have to try to deal with that. But there is an active investigation and that limits our ability to do so."

Still, Bush's action stands in stark contrast to his condemnations of the kind of disclosure that the court filing said he authorized. "Let me just say something about leaks in Washington," Bush told reporters in September 2003. "There are too many leaks of classified information in Washington. There's leaks at the executive branch, there's leaks in the legislative branch, there's just too many leaks. I want -- and if there's a leak out of the administration, I want to know who it is. And if a person has violated law, the person will be taken care of."

That statement was one of many Bush has made over the past three years condemning leaks of sensitive information. His strong words may make the distinction between leaks of classified data and what he is alleged to have done difficult for the White House to explain.

Josh Marshall responds:

It's not too soon to start calling this for what it is: the Bush administration's creeping monarchism.

. . .

[W]hat is most revealing is the attitude suggested by the White House official rather than just the net outcome. Beyond the legal particulars, the president's attitude seems to be that the law just doesn't apply to him -- and that's not surprising since we see so many other instances of that perspective in practice.

Peel back all the individual arguments from Al Gonzales and the president and whomever else they put forward, the underlying idea is not so much that the president is above the law as that he is the law. He embodies it, you might say, even embodies the state itself. And thus what he does can't be illegal. What he does is simply the state cogitating and defending itself.

This is a vision that simply incompatible with any idea of separation of powers because in this view the president's prerogative always trumps the other two branches. And that makes it a grave danger to our constitutional system itself.

And in response to McClellan:
The White House argument is that President made a decision that such-and-such information needed to be heard by the American people. McClellan just said it was "provided to the American people." But he didn't provide it to the American people. He provided it to Judy Miller. Legal or not, it was by definition a 'leak' since it was revealed anonymously to a single reporter.
In a related development, Michael Froomkin points out this Wired article, which ledes:
AT&T provided National Security Agency eavesdroppers with full access to its customers' phone calls, and shunted its customers' internet traffic to data-mining equipment installed in a secret room in its San Francisco switching center, according to a former AT&T worker cooperating in the Electronic Frontier Foundation's lawsuit against the company.
Finally, Jack Balkin sums it all up in "Reductio Ad Dictatorem":

Gonzales' latest admission-- that the President can also engage in purely domestic spying without a warrant-- might seem like a pretty significant grab of power, far beyond what the President said he could do before. But if you understand the Administration's theory of its own power, Gonzales' statement should not be at all surprising. The distinction between domestic communications and international communications is irrelevant to the theory. The latest revelation shows that the President's theory all along has been radical, unreasonable, and dangerous.

. . .

The central problem with the President's argument is that he (or his subordinates) get to decide whether or not a person is associated with a terrorist organization (or associated with an organization associated with a terrorist organization) without having to justify this decision to anyone else. As a result, he can withdraw an American citizen from the ordinary protections of the Bill of Rights (and statutory protections like those in FISA) merely by his own say so.

. . .

. . . Again, the President's argument doesn't distinguish between what he does overseas and what he does within the United States. As far as the President is concerned, if he thinks someone is associated with our enemies (or associated with someone associated with our enemies), he can, without offering any proof of this accusation to a disinterested third party, treat them as an enemy soldier. And, as we know, the laws of war permit enemy soldiers to be captured, detained, and even killed. So, at least in theory, if he could capture Padilla in Chicago, he could also shoot him there.

This theory, taken to its logical conclusions, gives the President the ability to treat anyone living in the United States, including particularly U.S. citizens, as wartime enemies without having to prove their disloyalty to anyone outside the executive branch. In so doing, it offers him what can only be called dictatorial powers-- that is, the power to suspend ordinary civil liberties protections on his say so. The limits on what the President may do under this theory are entirely political-- the question is whether the American people will stand for what the President has done if they discover what he has done in their name. But if the American people don't know what their executive is doing, they can hardly be in a position to object. And so the President has tried to keep secret exactly what he has done under the unreasonable and overreaching theory of Presidential power that his Administration has repeatedly asserted in its legal briefs and public statements.


Confounded First Amendment!

The President had to hear dissent today. Think Progress has the video (transcript is here):
Q You never stop talking about freedom, and I appreciate that. But while I listen to you talk about freedom, I see you assert your right to tap my telephone, to arrest me and hold me without charges, to try to preclude me from breathing clean air and drinking clean water and eating safe food. If I were a woman, you’d like to restrict my opportunity to make a choice and decision about whether I can abort a pregnancy on my own behalf. You are –

THE PRESIDENT: I’m not your favorite guy. Go ahead. (Laughter and applause.) Go on, what’s your question?

Q Okay, I don’t have a question. What I wanted to say to you is that I — in my lifetime, I have never felt more ashamed of, nor more frightened by my leadership in Washington, including the presidency, by the Senate, and –


THE PRESIDENT: No, wait a sec — let him speak.

Q And I would hope — I feel like despite your rhetoric, that compassion and common sense have been left far behind during your administration, and I would hope from time to time that you have the humility and the grace to be ashamed of yourself inside yourself. And I also want to say I really appreciate the courtesy of allowing me to speak what I’m saying to you right now. That is part of what this country is about.

THE PRESIDENT: It is, yes. (Applause.)

Q And I know that this doesn’t come welcome to most of the people in this room, but I do appreciate that.

THE PRESIDENT: Appreciate –

Q I don’t have a question, but I just wanted to make that comment to you.

THE PRESIDENT: I appreciate it, thank you. Let me –

Q Can I ask a question?

THE PRESIDENT: I’m going to start off with what you first said, if you don’t mind, you said that I tap your phones — I think that’s what you said. You tapped your phone — I tapped your phones. Yes. No, that’s right. Yes, no, let me finish.

I’d like to describe that decision I made about protecting this country. You can come to whatever conclusion you want. The conclusion is I’m not going to apologize for what I did on the terrorist surveillance program, and I’ll tell you why. We were accused in Washington, D.C. of not connecting the dots, that we didn’t do everything we could to protect you or others from the attack. And so I called in the people responsible for helping to protect the American people and the homeland. I said, is there anything more we could do.

And there — out of this national — NSA came the recommendation that it would make sense for us to listen to a call outside the country, inside the country from al Qaeda or suspected al Qaeda in order to have real-time information from which to possibly prevent an attack. I thought that made sense, so long as it was constitutional. Now, you may not agree with the constitutional assessment given to me by lawyers — and we’ve got plenty of them in Washington — but they made this assessment that it was constitutional for me to make that decision.

I then, sir, took that decision to members of the United States Congress from both political parties and briefed them on the decision that was made in order to protect the American people. And so members of both parties, both chambers, were fully aware of a program intended to know whether or not al Qaeda was calling in or calling out of the country. It seems like — to make sense, if we’re at war, we ought to be using tools necessary within the Constitution, on a very limited basis, a program that’s reviewed constantly to protect us.

Now, you and I have a different — of agreement on what is needed to be protected. But you said, would I apologize for that? The answer — answer is, absolutely not. (Applause.)

Of course it's no surprise that Bush fell back to his usual talking points when confronted: 9/11 changed everything (if we don't ignore the Constitution, the terrorists already won!) . . . We're only spying on terrorists, *trust* me (and if you don't, you're probably with the terrorists) . . . My lawyers my lawyers my lawyers said it was OK (no comment) . . . I informed Congress! They were fully aware! (well, actually it was just a handful of people that I swore to secrecy, not the entire Intelligence Committee as required by law. You don't want the terrorists to win, remember?) . . . My friend Al Gonzalez is reviewing this constantly! (comforting, no?) . . . Apologize?! ("The answer — answer is, absolutely not.").

(with thanks to Andy at Sauntering for his inspired juxtaposition of the photo of Harry Taylor with the Norman Rockwell painting, "Freedom of Speech")

Iraq: When Does the Cost Outweigh the Benefit?

Today as I watched President Bush give a speech in North Carolina I was again reminded of the terrible attacks that occurred on September 11, 2001 in which 2,996 innocent American lives were lost. This was not, however, for the reasons that the President enunciated. I am reminded of September 11, 2001 because I see the war in Iraq surpassing September 11, 2001 in the magnitude of grief it will inflict on the American public.

Each American who fell on September 11, 2001 had a face, a name, and a story. I would encourage everyone to visit this site and get to know the stories of these fallen heroes. However, New York does not have a monopoly on grief. Indeed, to date 2,344 Americans have died in Iraq. In the cold calculus of grieving American families, the separation between the events of September 11, 2001 and the War in Iraq is only 652 American lives, and it is shrinking everyday. Indeed, it is unimaginable given our current posture that the death toll in Iraq will not surpass the death toll of September 11, 2001, and I fear that day is fast approaching.

In his speech the President continued to push the idea that he was fighting the terrorists in Iraq so that there would never be another attack of the magnitude of September 11, 2001 on American soil. However this rational is rebutted by one obvious fact, the number of Americans killed in Iraq is quickly approaching the number of Americans killed on September 11, 2001. This leads me to question: "Does where an American die determine his or her value?" Specifically, are the Americans that are dying in Iraq any less deserving of the consideration paid to those who died on September 11, 2001? Maybe it is just me, but I view every life as a gift. More importantly, I do not condone the use of the American military as a human shield against an unsubstantiated threat.

We must remember: each of the Americans serving in Iraq has a face, a name, and a story just like those that died on September 11, 2001. To date 2,344 incredible stories have come to an abrupt and tragic end; 2,344 stories that have been left for others to tell. These brave Americans have given the ultimate sacrifice, and sadly it seems as though the number of stories left for others to tell will continue to rise.

For me the war in Iraq lacked any benefit because as the President admitted there was "no evidence that Sadam Hussein was connected to September 11" and no weapons of mass destruction were found. No cost can be justified.

So when will the cost of Iraq outweigh the benefit to you?