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U.S. Rep. Ike Skelton, D-MO, on Defense Secretary Donald Rumsfeld’s suggestion that Democrats suffer from “moral confusion:”
It is a dangerous business to accuse those who disagree with you of moral and intellectual confusion. Debate in our democracy is based upon respect, not vilification.
As we say in the hood, “Please, Mary.”
Technorati tags: Democrats
UCLA law professor Stephen Bainbridge:
I suspect there are a growing number of folks who agree with me that the Republicans deserve to lose, but the Democrats don’t deserve to win. (Link)
Election Projection now shows the GOP dropping seven seats in the House but retaining control.
(By the way, one of the seven is Tom DeLay’s seat in Texas; his district is heavily Republican and the GOP should be poised to keep it. But DeLay screwed that up, didn’t he?)
The Matrix has you:
Federal election regulators refused to ease limits on political advertising Tuesday, blocking an effort to let interest groups run radio and television ads mentioning elected officials within weeks of an election.
The Federal Election Commission voted 3-3 on a proposal that would have allowed such ads as long as they addressed public policy issues and did not promote, support, oppose or attack a sitting member of Congress.
[…]
The measure failed with the commission’s three Democrats voting against the proposal and the three Republicans backing it.
Read that again. The “easing” of the limits would have allowed issue ads only if they “did not promote, support, oppose or attack a sitting member of Congress.” Now, if you run an issue ad in the sixty days prior to an election, you must make no mention whatsoever of a member of Congress.
This is, of course, the product of the McCain-Feingold campaign finance “reform” law. Tell me again why John McCain should be president?
Technorati tags: FCC, campaign+finance, free+speech, John+McCain, fascism
Harvard law professor William J. Stuntz on American voters and the war in Iraq:
A large portion, maybe a large majority, might believe that Americans should fight only wars that are worth winning, that we should do all in our power to win them, and that the Iraq war meets the first standard but fails the second. The real political problem with Iraq may be not that we’re fighting an unwinnable or less-than-worthwhile war, but that our forces are at serious risk of avoidable defeat.
In other words, Professor Stuntz is saying that the voters want us to win or get out, and they fear we’re now doing neither.
When President Bush talks about the war in Iraq, you’ll notice that he either speaks platitudinously of the nature of war — it’s “difficult,” “challenging,” “not a time of joy” — or broadly of our objectives; inter alia, we’re in Iraq to “help people live in freedom.”
If someone asked you to describe Mr. Bush’s plan for military victory in Iraq, could you do it with precision and fluidity? Could you do it at all?
I think American voters listen to this and say to themselves, “That’s nice. But who, exactly, is the enemy in Iraq — who stands between the Iraqis and their freedom (and our exit) — and what is your plan, Mr. President, for slaying him?”
If someone asked you to describe Mr. Bush’s plan for military victory in Iraq, could you do it with precision and fluidity? Could you do it at all?
When the Nation is at war, the American electorate expects its commander in chief to be possessed of a vision of victory. And having heard nothing from Mr. Bush, save for the vague and insipid, on his plan for victory in Iraq, they’ve concluded he doesn’t have one. Politically, the problem is not the war; the problem is the absence of an explanation of how we’re going to win the war.
With more than 130,000 troops unmoored from their homes and families and in harm’s way, and with well over a billion dollars a week pouring from our treasury, American voters are entitled to hear an answer to one simple question: “How?”
Technorati tags: Bush, Iraq, war+in+Iraq, politicsAn intellectual firefight has broken out on the American Right, with the Internet as battleground. It’s a fight between secular conservatives and religious conservatives. Heather McDonald squeezed off the opening shot here. Coverage of the counterstrike is here.
The battle widens:
The lessons of history reveal the basic requirements set by man’s nature for his survival, success, and happiness here on earth. That is the secular foundation for morality.
[…]
The right needs to have a long, open, honest debate about the role of religion. We need it now more than ever because we are in the middle of a war with an enemy that is defined by his religious fervor and by his attempt to make his religion dominate the “public square,” to borrow a catchphrase from the religious right. If we don’t understand the real nature and value of Western, Enlightenment secularism, then we can’t fully understand what is at stake in this clash of civilizations, and in the long run, we won’t know how to win it.
Count me among the secular rightists. But I think William F. Buckley Jr. got it right long ago. You don’t have to be religious, he said, to be a conservative. In fact, you can be an atheist; you cannot, however, be hostile to religion and be a conservative. Of course, when he said that, Mr. Buckley had in mind a particular religious tradition, namely the Judeo-Christian one.
Technorati tags: Conservatism, religion
CQPolitics:
The Texas Republican Party establishment has rallied around a single candidate, Houston City Councilwoman Shelley Sekula-Gibbs, in their unusual write-in campaign to salvage the 22nd Congressional District seat vacated in June by Tom DeLay, the former House majority leader.
But the extreme rarity of successful write-in campaigns for Congress and the presence of a solid Democratic nominee on the ballot in former Rep. Nick Lampson has prompted CQPolitics.com to change its rating on the 22nd District race to Leans Democratic from No Clear Favorite.
The GOP faces a world of trouble in this race because of a serious miscalculation on the part of DeLay and his party colleagues.
If you’re a Republican who happens to live in Texas 22, you do have an alternative to the doomed write-in campaign of Dr. Sekula-Gibbs and the election of Nick Lampson. You can vote for Bob Smither, whose name is on the ballot. Smither is the Libertarian Party’s nominee; but if elected, he’ll vote for a Republican speaker.
Learn more here.
Technorati tags: Congress, Texas, 2006+Elections, Smither
DARE Generation:
The Government Accountability Office (GAO) ruled on Friday that the White House’s $1.2 billion anti-drug ad campaign is not only ineffective, but encourages some teens to try drugs. The GAO, Congress’s auditing arm, recommended that funding for the ads be cut despite President Bush’s request for another $120 million to produce more ads next year.
[…]
Some of the popular ads, produced by the Office of National Drug Control Policy (ONDCP), claim that using marijuana supports terrorism, causes people to shoot their friends in the face, run over little girls on bikes, and become pregnant.
The GAO, in examining the methodology of a federally-funded long-term evaluation of the ads, found “no evidence of a positive outcome” and “significant unfavorable effects,” including that “greater exposure to the campaign was associated with weaker anti-drug norms and increases in the perceptions that others use marijuana.”
The ads have also been criticized as ineffective and counterproductive by the White House Office of Management and Budget, the Republican Study Committee, Taxpayers for Common Sense, the National Taxpayers Union, and Citizens Against Government Waste, among others. [Emphasis added.] (Link)
The GAO’s report is here.
Technorati tags: War+on+drugs, government+waste
Does this strike you as it struck me, which is to say as wildly inappropriate?
DENVER — The Drug Enforcement Agency is stepping into the political fray to oppose a statewide ballot issue that would legalize possession of small amounts of marijuana.
In an e-mail to political campaign professionals, an agent named Michael Moore asks for help finding a campaign manager to defeat the measure, which voters will consider in November. If passed, it would allow people 21 and older to have up to 1 ounce of marijuana.
In the e-mail, which was sent from a U.S. Department of Justice account, Moore also writes that the group has $10,000 to launch the campaign. He asks those interested in helping to call him at his DEA office.
It seems to me improper for a federal employee, acting in his official capacity, to solicit political action on a question of state law. But the DEA’s conduct here betrays an essential truth: the war on drugs is as much a jobs program for middle-class bureaucrats as it is anything else. Never mind that the drug war is a costly, abysmal failure. Any relaxation of the drug laws threatens to undermine the “war” and to put the drug warriors out of work.
In any other setting, a self-enhancing scheme that fails to effect its stated purposes while bilking others out of money is not called “war.” It’s called racketeering.
Technorati tags: War+on+drugs, public+policy, ethics
There’s a site for lawyers to anonymously rate and comment on federal district court judges — it’s called The Robing Room, and it dubs itself “the place where judges are judged.”
Sample comments:
Dafydd says mainstream media are missing the point:
To most of us, the following two statements seem somehow, you know, connected:
- Deaths of American, Coalition, and Iraqi soldiers, along with civilians, have risen somewhat in the past week or so;
- The Iraqi Army, with U.S. air support, initiated a major offensive against the mighty al-Mahdi militia of Muqtada Sadr in the past week or so.
But to elite, new-school journalists, these two observations are completely discrete from each other; there is no connection, and the first is only explicable by concluding that we must be losing (or have already lost) the war. Why, what other possible explanation could there be?
I still have questions about the Administration’s management of the war in Iraq. But provided we give them clear military objectives, adequate reinforcements and proper supplies, I have no questions about the capacity of the U.S. Armed Forces to win a war.
Technorati tags: Iraq, MSM, US+Armed+Forces
Michael Barone:
There seems to have been a change in the political winds. They’ve been blowing pretty strongly against George W. Bush and the Republicans this spring and early this summer. Now, their velocity looks to be tapering off or perhaps shifting direction.
When asked what would affect the future, the British Prime Minister Harold Macmillan famously said: “Events, dear boy. Events.” The event this month that I think has done most to shape opinion was the arrest in London on Aug. 9 of 23 Muslims suspected of plotting to blow up American airliners over the Atlantic.
The arrests were a reminder that there still are lots of people in the world — and quite possibly in this country, too — who are trying to kill as many of us as they can and to destroy our way of life. They are not unhappy because we haven’t raised the minimum wage lately or because Bush rejected the Kyoto Treaty or even because we’re in Iraq.
[…]
Earlier this summer, I thought that voters had decided that the Republicans deserved to lose but were not sure that the Democrats deserved to win, and that they were going to wait, as they did in the 1980 presidential and the 1994 congressional elections, to see if the opposition was an acceptable alternative. Events seem to have made that a harder sell for Democrats. A change in the winds.
Technorati tags: Republicans, Congress, 2006+Elections
Fred Barnes on the GOP’s prospects in the midterm elections:
The closely watched “generic ballot” suggested congressional Republicans may yet avert disaster on November 7. This measures whether voters want a Democrat or a Republican to represent them in Congress. It is a flawed yardstick and has never been reliably predictive. Still, after trailing by as many as 20 percentage points, Republicans were buoyed by reaching parity (at 40 percent) with Democrats in the Hotline poll and trailing by only 47 percent to 45 percent in Gallup. Even the most threatened Republican senator, Rick Santorum of Pennsylvania, down by double digits last month, seems to have cut his opponent’s lead in half. (Link)
But …
As favorable as recent trends have been, they are not nearly enough to spare Republicans a nasty defeat, including the loss of the House and perhaps the Senate. The country is in a disagreeable mood and ready for a change. The Republican base is grumpy and apathetic. Bush may be America’s choice to fight terrorism, but he falters on other issues. His boost in the polls doesn’t mean he’s now popular. He’s merely less unpopular. And the August bounce may prove to be ephemeral, as earlier upticks have.
Depending on whose poll you read, the president now lacks the support of either one-fifth or one-fourth of Republicans. Barnes says that unless Mr. Bush improves his standing with GOP voters, the Democrats will “triumph” in November. To win back disaffected Republicans, Barnes suggests that the president 1) “brook no dissent” in seeking sanctions against Iran and 2) pick a fight with Senate Democrats over his unconfirmed judicial nominees. “Besides national security,” Barnes writes, “the issue that most energizes conservatives and Republicans is judges.” And energized Republicans are not:
A major problem for Bush and Republicans in the midterm election is turnout. Republicans have the most sophisticated turnout operation known to man. But it won’t work if Republican voters, particularly conservatives, are angry at their leaders or indifferent.
Barnes doesn’t say why Republican voters are angry and indifferent. Republicans are angry and indifferent because, from fiscal policy to immigration to federalism, their party under Mr. Bush has abandoned much of what it once stood for. Democrats are angry about the war in Iraq; Republicans are angry about everything else.
To prevent a GOP disaster in November, the president should take Barnes’ advice and do something that reminds Republicans why they became Republicans in the first place.
Technorati tags: Republicans, Congress, Bush, 2006+Elections
Washington Post:
Most Democratic candidates in competitive congressional races are opposed to setting a timetable for pulling U.S. troops out of Iraq, rejecting pressure from liberal activists to demand a quick end to the three-year-old military conflict.
Of the 59 Democrats in hotly contested House and Senate races, a majority agree with the Bush administration that it would be unwise to set a specific schedule for troop withdrawal, and only a few are calling for substantial troop reductions to begin this year, according to a Washington Post survey of the campaigns. (Link)
Technorati tags: Iraq, Democrats, 2006+Elections
Political Wire:
Brookings Institution scholar Thomas Mann “projects the Democrats to pickup 25-35 House seats, and four to five Senate seats with a chance to maybe hit six,” according to Thomas Schaller. “Alternatively, Mann said the chance of Democrats capturing the House are two in three, and put the capture of the Senate at 50:50. One lunch attendee whose very close friend happens to be a Republican pollster told him that his internal GOP numbers point to 26 House pickups and six Senate gains for the Democrats.” [Emphasis added.] (Link)
Technorati tags: Democrats, Republicans, Congress, 2006+Elections
Christopher Hitchens — who, by the way, is a liberal — gave the finger yesterday to the Los Angeles audience of “Real Time with Bill Maher” for its frivolous jeering of Mr. Bush. From the transcript:
Christopher Hitchens: “Who wants a Third Word War? The Iranian President says that one member state of the United Nations should be wiped physically from the map with all its people. He says the United States is a Satanic power. Members of his government, named members of his government have been caught sponsoring deaths squads. He’s lied, he’s lied to the European Union about his nuclear program —”
Bill Maher: “But you know that a lot —”
Hitchens: “He says the Messiah is about to come back. Who’s looking for a war here?”
Maher: “So does George Bush, by the way. That’s not facetious.”
[Applause]
Hitchens: “That’s not facetious. Your audience, which will clap at apparently anything, is frivolous. Fuck you, fuck you.”
The admonition is accompanied by the matching gesture. NewsBusters has the video.
Unlike the regional courts of appeal, which must take all cases appealed to them, the U.S. Supreme Court’s appellate jurisdiction is discretionary. In other words, the Court takes only the cases it likes and leaves the rest. So what factors lead the Court to accept a case, or to “grant cert” (short for certiorari)? Tom Goldstein of SCOTUSblog has the answer in this short but informative podcast.
Certiorari is “a writ issuing from a superior court calling up the record of a proceeding in an inferior court for review.”
In the headnote to every U.S. Supreme Court slip opinion, you’ll read the identity of the lower court to whom the writ of certiorari was issued. (The lower court is usually, but not always, a federal appeals court or a state supreme court.) See, for example, the headnote to Hamdan v. Rumsfeld where the writ was issued to the U.S. Court of Appeals for the District of Columbia Circuit:
Early in the body of the opinion, the Court will explain the circumstances of its decision to grant cert:
If you’d like to know more, the podcast linked above is an excellent primer.
ADDED —
By the way, although there are nine justices, the Supreme Court will grant cert in a case if only four of the justices wish it.
Technorati tags: Supreme+Court, certiorari, courts
Especially if your professor is Dave Hoffman:
This should also serve as a reminder to incoming first-year students. Turn your phones off. Professors, who may conceive of the classroom as a mini-courtroom, will certainly become annoyed if a phone rings during class. For what it is worth, my remedy is to call on the owner of a ringing phone, and continue to dialogue with them for the duration of class. My contracts class this fall lasts two hours. I imagine it won’t happen twice.
I like it.
Technorati tags: Cellphones
At least there’s method to the madness:
Realistically speaking, the point of this multilateral exercise cannot be to stop Iran’s nuclear program by diplomacy. That has always been a fantasy. It will take military means. There would be terrible consequences from an attack. These must be weighed against the terrible consequences of allowing an openly apocalyptic Iranian leadership to acquire weapons of genocide.
The point of the current elaborate exercise in multilateral diplomacy is to slightly alter that future calculation. By demonstrating extraordinary forbearance and accommodation, perhaps we will have purchased the acquiescence of our closest allies — Britain, Germany and, yes, France — to a military strike on that fateful day when diplomacy has run its course.
Of course, this gives rise to the question, “Why do our allies require extraordinary forbearance in the face of the obvious?” But I suppose that’s a question for another day.
Technorati tags: Iran, Europe, nuclear+weapons
Huntingnet.com:
New statistics show that firearm and ammunition sales are on the rise, coinciding with steady downward trends in gun crime, suicide and accident rates, in the U.S.
The National Shooting Sports Foundation (NSSF), the trade association for the shooting, hunting and outdoor industry, has released U.S. Dept. of the Treasury figures indicating that 2005 retail sales of firearms and ammunition rose 2.6 percent for a total volume of $2.1 billion.
For the year, approximately 4.7 million new guns were sold, bringing the estimated number of citizen-owned firearms in the U.S. to more than 290 million. The number of American households with at least one firearm is now estimated at nearly 110 million.
This is a riot.
Technorati tags: Howard+Dean, nitwits
Pajamas Media:
In five years, Ben Chavis, principal of Oakland, California’s American Indian Charter Public Charter School — a middle school — turned his school from one of the worst in the state to one of the best. When asked by NPR, Chavis, an Indian himself, names the culprit as he see’s it. “[Liberal thinkers have] no standards for minorities. They’re, like, ‘let’s let them get freedom, let’s understand their “learning-style,” let’s give them multiculturalism. And no, discipline, no structure, no game-plan. So they’re destroying us.’” (Link)
Technorati tags: Liberalism, racism, public+schools
Jerusalem Post:
Israel is carefully watching the world’s reaction to Iran’s continued refusal to suspend uranium enrichment, with some high-level officials arguing it is now clear that when it comes to stopping Iran, Israel “may have to go it alone,” The Jerusalem Post has learned.
One senior source said on Tuesday that Iran “flipped the world the bird” by not responding positively to the Western incentive plan to stop uranium enrichment. He expressed frustration that the Russians and Chinese were already saying that Iran’s offer of a “new formula” and willingness to enter “serious negotiations” was an opening to keep on talking.
“The Iranians know the world will do nothing,” he said. “This is similar to the world’s attempts to appease Hitler in the 1930s — they are trying to feed the beast.”
Relatedly, Israel now owns five Dolphin-class submarines; all can fire nuclear missiles:
Israel, which has never officially admitted possessing atomic weapons, has an estimated 60-85 nuclear warheads, according to the United States Defence Intelligence Agency.
The country’s military planners have a clear preference for submarine-launched nuclear weaponry. Given Israel’s small land area, launch sites for missiles would be easy to detect and therefore possible to destroy. Submarine-based missiles give the country a more credible deterrent.
Technorati tags: Israel, Iran, nuclear+weapons
Chicago Tribune:
After two decades of steadily toughening laws, Illinois now puts more people in prison for drug crimes than any state except California, according to a study released Tuesday by Roosevelt University.
The report also found that more people are being incarcerated for possessing narcotics than for selling them and that the state’s prisons hold about five black inmates convicted of drug offenses for every white inmate — one of the largest racial disparities in the country.
The findings cast doubt on the fairness and effectiveness of Illinois’ long campaign against illegal drugs, said Kathleen Kane-Willis, a researcher at Roosevelt’s Institute for Metropolitan Affairs.
“Just locking folks up is not reducing our drug problems, but it’s sure costing us a lot of money,” she said. (Link)
Technorati tags: War+on+drugs, prisons
Ralph Peters:
In the immediate aftermath of Operation Iraqi Freedom, I argued that the only realistic solution was to break Iraq into three pieces. What we lacked the guts to do, elections have done. The pretense that an Iraqi national identity exists or ever will exist can be sustained no longer.
Iraq doesn’t have a government. It has a collection of warlords, demagogues and thieves with official titles. It’s time to put our own politics aside and face reality: If Iraq’s elected leaders won’t stop looting their country long enough to pull together and defeat the foreign terrorists, internal insurgents and militias killing Iraqis, we should not ask our troops to defend them. (Link)
Richard A. Posner, judge, United States Court of Appeals for the Seventh Circuit:
Last week a federal district judge in Detroit ruled that the National Security Agency’s conduct of electronic surveillance outside the boundaries of the Foreign Intelligence Surveillance Act is illegal. As a judge I cannot comment on the correctness of her decision. But I can remark on the strangeness of confiding so momentous an issue of national security to a randomly selected member of the federal judiciary’s corps of almost 700 district judges, subject to review by appellate and Supreme Court judges also not chosen for their knowledge of national security … Other countries have greater flexibility in tailoring their judicial procedures to the special problems posed by terrorism. We are boxed in by our revered 18th-century Constitution as interpreted by the Supreme Court. (Link)
Judge Posner blogs here.
Technorati tags: Courts, terrorism, national+security
Ann Althouse, law professor at the University of Wisconsin, has a must-read essay in today’s New York Times: “A law unto herself.” It’s a great piece.
The audio below is mostly a test of the audioblogging service from www.hipcast.com. But I also talk briefly about the book I'm now reading, "Fiasco: The American Military Adventure in Iraq" by Thomas E. Ricks.
Please let me know if you have any trouble with the playback.
Washington Post:
For 10 minutes, the talk show host grilled his guests about whether “George Bush’s mental weakness is damaging America’s credibility at home and abroad.” For 10 minutes, the caption across the bottom of the television screen read, “IS BUSH AN ‘IDIOT’?”
But the host was no liberal media elitist. It was Joe Scarborough, a former Republican congressman turned MSNBC political pundit. And his answer to the captioned question was hardly “no.” (Link)
My own chief frustration with Mr. Bush is that he has not consistently, forcefully and clearly explained how exactly he plans to win the war in Iraq. I don’t expect the president to give us operational details. But I do expect him to tell us something more meaningful than war is “hard work.” The president should answer these questions:
My fear is that we don’t have a plan for victory. My fear is that we stay because we’re stuck, alarmed by the strategic implications of withdrawing under less than victorious conditions.
Perhaps I’m wrong. Perhaps Mr. Bush knows exactly what he’s doing. But if so, he should explain himself. When we ask our young people — beautiful, idealistic and with a future of promise before them — to risk life and limb in armed conflict, we owe them an explanation of the path to victory.
When the cause is noble, conservatives will not flinch from the terrible price of war. But we find it morally unconscionable that the solemn sacrifices of our young should be made in vain. And from Joe Scarborough to William F. Buckley, many conservatives say that’s exactly what’s now happening in Iraq.
Technorati tags: Bush, Iraq, conservatives
Suwat Tumrongsiskul, head of Thailand’s immigration police, on his handling of child murder suspect John Mark Karr: “We treat him well since he is a high-profile suspect.”
Technorati tags: John+Mark+Karr, JonBenet+Ramsey
As we see from even today’s news, it was always fiction that the U.N.’s demand for cease-fire could produce peace between Israel and her apocalyptic enemies. To the contrary, Israel’s premature withdrawal from Lebanon has emboldened the forces of jihad. From Hamas in Palestine, to Hezbollah in Lebanon to the Baathists in Syria, all now plan war against Israel. And all are in the orbit of Ahmadinejad’s Iran, which openly pursues Armageddon while the world dawdles.
As Caroline Glick explains in this must-read essay, the clock is ticking. War is coming. The only question is, “On whose terms?”
Israeli commandos act to prevent Syria and Iran from delivering weapons to Hezbollah. Under the U.N. cease-fire, Hezbollah is supposed to be stripped of the weapons it has, not given new ones.
But can you guess whom Kofi Annan blames for rekindling the flames of war?
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I was reminded recently that you can manipulate the structure and presentation of a website …
Thanks to Six Apart, makers of the best content management system on the planet; Carrie Petri, whose clean and airy CSS I boosted; Sekimori Design, whose beautiful, custom-made banner graphic I shall never quit using; and my best friend Jimmy, whose intelligence and skill have been improving my life for more than 20 years.
Associated Press:
Even though the administration’s warrantless surveillance program is heading toward an appellate court loaded with Bush appointees, the court’s mixed record makes it difficult to predict how it will view the surveillance, lawyers said.
“It is not a foregone conclusion that a conservative-dominated court is going to say, ‘President Bush did this and we’re going to uphold what he wants,’” said Robert A. Sedler, a law professor at Wayne State University. “There are many issues in this case. Conservative judges often have a very strongly libertarian streak.”
Yes, but if the survelliance program is invalidated by conservative judges with a libertarian streak, at least they’ll engage the Government’s case, reason carefully, take account of precedent and write something intellectually substantive, none of which Judge Taylor thought to do.
In fact, as blogger and appellate lawyer Howard Bashman notes, even the liberals on the 6th Circuit will do what Judge Taylor did not and put some effort into their work:
Given the intense attention that the trial court’s opinion has already received, I expect that soon attention will turn to the judges of the 6th Circuit, who have shown themselves not always to be one happy family in high-profile cases of national importance. The 6th Circuit is home to some of the nation’s most thoughtful liberal and conservative jurists, and when they serve together on a particularly divisive case it is not unusual for clashes to occur. (Link)
Clashes between smart judges who have something meaningful to say are fine; platitudes from the feckless — “There are no hereditary Kings in America,” Slip op. at 40 — are not.
Meanwhile, Mickey Kaus chastises the media — and by extention, I assume, the blogosphere — for even kicking up dust about Thursday’s district court opinion:
Why is the press making such a fuss about a District Court opinion striking down the administration’s NSA eavesdropping program? It’s a District Court opinion! The actual decision will obviously be made by the Supreme Court, two levels up, and when it makes that decision the lower court’s opinion will have less weight than an editorial in Roll Call … [Emphasis in original.]
He has a point, of course. District court opinions are often not unlike toilet paper: useful for a moment, but destined for the flush. But at least for center-right bloggers, this particular district court opinion provided an opportunity to ridicule the stupidity of a liberal judge, which is just wholesome fun!
ADDED —
Even legal experts who agreed with a federal judge’s conclusion on Thursday that a National Security Agency surveillance program is unlawful were distancing themselves from the decision’s reasoning and rhetoric yesterday.
Technorati Tags: NSA, courts, judges, law, surveillance
Yesterday, U.S. District Judge Anna Diggs Taylor1 described the National Security Agency’s Terrorist Surveillance Program as “obviously in violation of the Fourth Amendment.” Judge Taylor then enjoined the Government from making any use of the TSP, the existence of which the New York Times disclosed in December 2005.
Judge Taylor’s memorandum opinion is here; the injunction is here.2
The Government will appeal to the U.S. Court of Appeals for the Sixth Circuit.
You’ll find thoughtful analysis at Volokh Conspiracy, Baseball Crank and Power Line.
In reading Judge Taylor’s opinion, I was struck by how … amateurish it is. Never mind the rule of law. This judge has trouble following the rules of punctuation. It’s alarming to know that someone with writing and reasoning skills as poor as Judge Taylor’s sits on a United States district court.
Even the Washington Post (yes, the Washington Post), which harbors “grave doubt both that Congress authorized warrantless surveillance as part of the war and that Mr. Bush has the constitutional power to act outside of normal surveillance statutes,” was nevertheless contemptuous of Judge Taylor’s intellectually shoddy work:
… the decision yesterday by a federal district court in Detroit, striking down the NSA’s program, is neither careful nor scholarly, and it is hard-hitting only in the sense that a bludgeon is hard-hitting. The angry rhetoric of U.S. District Judge Anna Diggs Taylor will no doubt grab headlines. But as a piece of judicial work — that is, as a guide to what the law requires and how it either restrains or permits the NSA’s program — her opinion will not be helpful.
And then there’s this from a Kos diarist (I say, I say a Kos diarist):
While I wholeheartedly agree with the general result, the court’s opinion and reasoning are weak in a variety of ways, and given the magnitude of the opinion and the efforts that will be made to undermine it, I fear that Judge Diggs Taylor has, in the long run, undermined those of us who have believed the NSA program is illegal since its existence was revealed several months ago.
[…]
Given that today’s decision is certain to be appealed to the Sixth Circuit (and then the Supreme Court, though the latter may decline to review the case), today’s opinion should not be of much comfort to opponents of the NSA’s program. Its conclusory nature and its failure to address in detail the arguments for and against the program will simply lead to confusion and perhaps even full-scale relitigation of the issues on appeal.
Here’s a sample of Judge Taylor’s “analysis.” On page 31 of her opinion, she writes that the Fourth Amendment “requires prior warrants for any reasonable search, based upon prior-existing probable cause, as well as particularity as to persons, places, and things …” Jesus Christ! For years now, I’ve had the odd, avocational habit of reading court opinions. And never have I seen a judge write anything that appallingly stupid.
Most searches in this country are warrantless. If Judge Taylor doubts this, she should visit the Detroit Metro Airport; there she can observe agents with the Transportation Security Administration as they search the bodies and bags of thousands of air transport passengers. Those agents do not have a warrant; in fact, they don’t even have probable cause, if by probable cause we mean reasonable, individualized suspicion of a crime. Those agents have nothing — except for a national security or exigent circumstances exception to the warrant requirement, which are two of many exceptions. If Judge Taylor doesn’t care for airports, she can visit a border crossing; there she’ll watch as agents with the U.S. Border Patrol feel people up and down and dig through their belongings. Those agents don’t have a warrant either. They have a border search exception.
As law professor Orin Kerr writes:
It’s true that the Fourth Amendment requires reasonable searches. But Fourth Amendment reasonableness is satisfied by a warrant or an exception to the warrant requirement, and there are several possible exceptions to the warrant requirement that may apply. Whether and how they may or may not apply depends on the facts of the surveillance, which are currently unknown. [Italics in original.]
Also, identifying a reasonable expectation of privacy in communications is really quite complicated given new communications technologies; for example, courts have held that there is no [reasonable expectation of privacy] in transactional information and cordless phone calls, and individuals with no voluntary contact with the U.S. presumably have no Fourth Amendment rights at all. We’d need to know the details of the surveillance to know this, but we don’t know those details.
ACLU v. NSA presented many questions, including the question of standing, which is likely to figure prominently on appeal. Some of these questions are not easily answered, and I don’t mean to suggest that the law here is unambiguously clear, or that the president undoubtedly has the inherent power to authorize the survelliance at issue here, or that we should take a devil-may-care attitude toward the Government’s eavesdropping. Although I support the TSP in principle and believe the president was within his constitutional authority in authorizing it, I’m not saying there’s no case to be made against it. (We don’t have all the facts, which makes it impossible to know whether the program as applied is legal or not.) But I am saying that if there is a case to be made against the TSP, Judge Taylor didn’t make it. Her opinion is shrill, partisan and vacuous. We deserve better from our judges.
ADDED —
From what’s publicly known about it, the TSP doesn’t exist to serve the ordinary aims of criminal law enforcement. So far as any of us know, nobody in the United States has been criminally prosecuted with evidence gathered by the TSP. Rather, the program exists to detect and disrupt terrorist activity. This distinction in purpose is important. The attack of 9/11 was catastrophic; it cost the Nation thousands of lives, more than 100,000 jobs and billions in property damage. Our Government surely has a “special need” in preventing another, similar attack.
In Sealed Case No. 02-001, the U.S. Foreign Intelligence Surveillance Court of Review wrote:
The distinction between ordinary criminal prosecutions and extraordinary situations underlies the Supreme Court’s approval of entirely warrantless and even suspicionless searches that are designed to serve the government’s “special needs, beyond the normal need for law enforcement.” [Emphasis added.]
Technorati Tags: NSA, surveillance, searches, courts, law, Constitution, terrorism
1 Appointed in 1979 by President Jimmy Carter. Sits on the U.S. District Court for the Eastern District of Michigan, Southern Division. (Source)
2 The injunction is temporarily stayed by stipulation of the parties. The district court will hear argument on September 7 on the Government’s motion for stay pending appeal.
Washington Times: “In an open letter sent Tuesday to Republicans in the district, Mr. Smither said that if elected he would vote for a Republican as House speaker.” Full story.
Smither is the Libertarian nominee in Texas 22, the seat vacated by Tom DeLay. Either Smither wins or the seat goes to a Democrat.
Smither’s blog is here.
Generic ballot polls ask this or something close to it: “If the election for Congress were being held today, and you had to make a choice, would you be voting for the Republican candidate or the Democratic candidate in your district?”
I’ve long maintained that these polls are near worthless and should be paid little heed. Case in point: the question above is from the 2004 George Washington University Battleground Poll, which almost always showed Democrats either tied with or leading Republicans in the race for control of Congress. In some rounds of the poll, Democrats led by seven points. But Democrats didn’t win control of Congress in 2004, did they?
Generic ballot polls are usually national polls. But as you and I know, there is no national congressional election, much less a generic, national congressional election. There are 435 congressional elections, and all of them are conducted in districts where the candidates have names. A respondent may say he plans to vote Democratic only because he doesn’t know that his congressman, whom he’s met twice and likes very much, is a Republican. (Look closely at the many official mailings as well as the campaign literature you get from your representative. Does any of it say which party he belongs to?)
Another potential problem with generic ballot polls is the nature of their samples. In examining the results of any generic ballot poll, look first to whether the pollster spoke to adults, registered voters or likely voters. If the pollster spoke to adults, stop reading. Many adults don’t vote. If the pollster spoke to registered voters, stop reading. Many registered voters don’t vote. Only if the pollster spoke to likely voters should you read any further. And even then, you may end up deceived. The Battleground Poll above was a poll of likely voters.
If you’re interested in this topic, Jay Cost, a polisci doctoral candidate at the University of Chicago, has a lot more in this essay at Real Clear Politics. Jay takes a close look at today’s generic ballot poll from Gallup, which shows Democrats leading Republicans 52-38. But, Jay writes, the Gallup poll “does