Category ►►► Confirmation Incongruities

September 13, 2007

Chuck and Pat and Hill and Ted

For some time prior to the resignation of Attorney General Alberto Gonzales, I argued with many Gonzales-hating conservatives that it would be a huge mistake to force his resignation -- even as I agreed with them that he was a lousy AG.

My argument (which I think few of them ever understood) was with the second half of their clarion call: "Dump Gonzales," they cried, "and replace him with a real conservative!" The problem is that anyone who is better than Gonzales from our standpoint is therefore anathema to the Democrats, who now run the Senate.

This should be clear; we believe a nominee would be better if he would work more effectively to implement the more conservative policies of President George W. Bush... but implementing those policies is the exact opposite of what is desired by liberal senators such as Pat Leahy (D-VT, 95%), Chuck Schumer (D-NY, 100%), Hillary Clinton (D-NY, 95%), and of course Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 90%). In particular, consider the Democratic contingent of the Judiciary Committee, which must first debate any nominee, then decide whether to send the nomination to the full Senate:

• Chairman Pat Leahy
• Ted Kennedy (MA, 100%)
• Joe Biden (DE, 100%)
• Herb Kohl (WI, 90%)
• Dianne Feinstein (CA, 90%)
• Russell Feingold (WI, 100%)
• Chuck Schumer
• Dick Durbin (IL, 100%)
• Ben Cardin (MD, not yet rated)
• Sheldon Whitehouse (RI, not yet rated)

Note... not a single moderate in that entire bunch. By contrast, the Republican contingent in the Senate J-Com includes Arlen Specter (PA, 43%), Orrin Hatch (UT, 84%), and Lindsey Graham (SC, 83%)... the last two being much more liberal about judges than they are about other issues.

All the Democrats need do is hold firm and vote against a nominee like, say, Soliciter General Ted Olson, and he will be rejected in committee; at that point, it would take an exceptionally clever parliamentary maneuver to bring it up in the full Senate. Even if Republicans managed to do so, the rejection by the J-Com would give ample cover to more moderate Democrats... who, truth be told, are not particularly fond of the very conservative Olson themselves, and will be looking for just such an excuse to reject him without incurring the wrath of voters.

If conservatives believe that the American people will be outraged enough by the committee rejection of a Ted Olson (or equivalent) to rise up and smite the Democrats in 2008, I suggest they have allowed their own justifiable and principled passion make a fool of their political horse sense.

The American people might be angered by an outrageous tactic like a filibuster against a Judge Alito or Judge Roberts... precisely because of the implied admission that the nominee had majority support, requiring a filthy, back-room deal to derail him. But why would Americans be any more angered by a 9-10 party-line vote rejecting Olson in the committee than they would be by a 10-9 vote confirming him? It's simply democracy in action, and real Americans accept that.

Of course, the option of forcing resignation was snatched from conservatives' hands when Gonzales abruptly resigned by himself (probably because he was simply tired of fighting, the cowardly wimp). Now we shall see whether my analysis is accurate.

As a harbinger of what is to come, here is a New York Times editorial, urging the Democrats (in the name of the People) to reject Ted Olson if Bush nominates him:

The Justice Department is a disaster zone. It should be the embodiment of America’s commitment to the rule of law, but it has been contaminated by partisan politics. The nation’s top lawyers may have broken the law, and even may have sent innocent people to jail, to advance the interests of the Republican Party. To replace Alberto Gonzales, President Bush must appoint an attorney general who is above politics, and the Senate should only confirm a nonpolitical lawyer of unquestioned integrity. The names that have surfaced so far as potential nominees do not meet this standard.

The next attorney general will have an enormous amount of damage to undo. There is considerable evidence that United States attorneys have been coerced into using their offices to help Republicans win elections. The orders may have come directly from the White House. Top officials of the Justice Department have admitted that they evaluated lawyers for nonpolitical jobs based on their politics. And Congress is investigating whether Georgia Thompson, a Wisconsin civil servant, and Don Siegelman, the former governor of Alabama, were sent to jail to help Republicans win governorships in those states.

Well, against such a litany of charges, who could possibly fail to see the danger? Crimes may have been committed! Congress is investigating! There is considerable evidence!

Then the Times gets personal:

Unfortunately, President Bush does not appear to be considering a nominee who would do these things. The first name on his list is reportedly Theodore Olson, who may be best remembered for representing Mr. Bush in Bush v. Gore, the Supreme Court case that stopped the vote recount in Florida after the 2000 election. He was also on the board of the American Spectator magazine, which conducted the “Arkansas Project,” a well-funded campaign to dig up dirt on Bill and Hillary Clinton.

Mr. Olson figures, at least indirectly, in the United States attorneys scandal. His law firm represented Jerry Lewis, a Republican congressman, who was investigated by the United States attorney in Los Angeles, Debra Wong Yang. While the investigation was pending, the firm hired Ms. Yang as co-chair of its crisis management group with Mr. Olson. The move raised questions, still unanswered, about whether Ms. Yang was lured away to disrupt the investigation. [Of course, the investigation was not disrupted and continued as normal... as everyone involved knew it would. Some conspiracy.]

It should be obvious that, notwithstanding the paucity of a real case against Olson, the Times and its proxies are anxious to have this fight and confident that Democrats will stand firm; and that's all it will take. If they do, Olson will be rejected in committee and Reid will be very unlikely to be forced into holding a vote of the full Senate on him. Emboldened by this victory, Democrats will continue to stand firm, whining to the sympathetic elite media that "the president keeps nominating people who are 'contaminated by partisan politics,' as even the moderate New York Times says." And I suspect we will end up having no Attorney General at all for the next fifteen months.

President Bush may appoint an acting AG, or he may make a recess appointment. Either way, the man or woman sitting in the big chair at the Justice Department will be weakened by the knowledge that he's a temporary figurehead who could never be confirmed. As the main power of the Attorney General is to run the department, which requires what Communist Antonio Gramsci called "hegemony" -- or perceived fitness to rule, as I define it; the ability to get other people to obey your orders -- such an interim appointee would be crippled and probably less powerful even than Alberto Gonzales himself.

In which case, Gonzales' resignation will have hurt the president severely. "Thank you, mask-man."

I don't always enjoy being right; I would be overjoyed to be proved wrong this time, seeing Ted Olson nominated and battling his way to confirmation. But I doubt it.

Hatched by Dafydd on this day, September 13, 2007, at the time of 11:11 PM | Comments (6) | TrackBack

August 27, 2007

Bound for Glory - INSTANT UPDATE!

Now that so many conservative Republicans (especially bloggers of the Right) have got their wish, and Attorney General Alberto Gonzales is out the door, I eagerly await the rest of their promised scenario: I now wait with bated breath for the strong, conservative, take-no-prisoners Attorney General nominee who will take firm control and start enforcing the conservatives' favorite laws with vigor and enthusiasm!

Yes sir, I'm ready for that change. Conservative pundits and bloggers have argued that if only President Bush would dump Gonzales, we could get someone really, really good in his place: we will get an Attorney General who will:

• Sail through confirmation hearings on the strength of his or her personal honesty, loyalty, and solid conservative credentials (not just some interim, acting Attorney General who is crippled by his inability to be confirmed);
• Strongly oppose all "affirmative action," racial preferences on principle;
• Crack down hard on employers who hire illegals and swift deport any illegals who commit crimes in this country;
• Go after anyone who commits voter fraud or accepts bribes, even if he happens to be a Democratic congressman;
• Defend the presidential prerogative to fire employees who have their own, more liberal agenda than the administration;
• Run the Department of Justice with a firm and stalwart hand;
• Use the office of the Attorney General and all Justice Department resources to thoroughly investigate and track radical Moslems in this country via the FBI, CIA, NSA, with warrantless eavesdropping and surveillance of radical mosques as necessary;
• And especially strongly enforces the new ban on partial-birth abortion.

So let's see it; let's see the next John Ashcroft who will be easily confirmed by the Democrats in the Senate... because he's so darned good, even Majority Leader Harry "Pinky" Reid (D-Caesar's Palace, 90%) and Sen. Charles Schumer (D-NY, 100%) cannot deny him.

I'm sure the Democrats will cooperate. They would never demand that the president pick from a short list prepared by Sens. Schumer, Ted Kennedy (D-MA, 100%), Carl Levin (D-MI, 100%), and Russell Feingold (D-WI, 100%). Now we're sure to get someone who will make it his priority to round up all the illegals and deport them, clean up Democratic corruption, press forward strongly with updating and defending the Patriot Act, strongly enforce the ban on partial-birth abortion, land on voter fraud like a ton of bowling balls, and authorize all current and future intelligence operations against terrorists. After all, the Democrats only want what's best for the country, too.

Surely the Democrats will not see this resignation as encouragement of their thuggish tactics against Gonzales. Rather, I'm convinced they will now feel guilt and remorse over the way they hounded an innocent man out of office. Democrats are human too; I cannot imagine them crowing in triumph, having driven both Karl Rove and Alberto Gonzales out of office in the same month.

Not only that, but the departure of Gonzales will assuredly lead to a big jump in President Bush's approval ratings. America has been desperately waiting for him to get rid of Gonzales and appoint a much more conservative fellow; and they will react to the nomination and confirmation process by showing strong, new support for the president.

I wouldn't want to insult our friends across the aisle. I'm sure they will no longer seek to interrogate Gonzales about any of the ginned-up "scandals" they have tried to hang around his neck. And while it might appear to partisans that President Bush is now on the ropes -- having had to throw two of his most trusted Texas friends to the howling Democratic dog pack -- I'm sure Democrats such as Squeaker of the House Nancy Pelosi (D-Haight-Ashbury, 95%), Reps. Henry Waxman (D-CA, 95%) and John Conyers (D-MI, 100%), and Sen. Patrick Leahy (D-VT, 95%) will accept the resignation in the spirit in which it's given: They will urge the president to nominate the best man or woman for the job, without regard to ideology, and promise to quickly confirm any strong, principled, conservative leader sent to the Hill.

I'm equally morally certain that the conservatives are right: The Democrats will not use the resignation of Gonazles as "vindication" of their wild accusations against Gonzales, will not take this opportunity to demand the reinstatement of those fired U.S. Attorneys, will not demand that any AG nominee agree to give Congress veto power over the firing of future U.S. Attorneys or presidential aides, and won't insist that the president's advisors, such as Harriett Miers and Karl Rove, testify under oath whenever Congress summons them.

I'm sure they will be more than willing to confirm an Attorney General who promises to continue to fight all these battles against the Legislative branch on behalf of the Executive, because deep down, Democrats in Congress yearn for the strong constitutional separation of powers that prevents them from running all policy from Capitol Hill.

So thank goodness Gonzales resigned to clear the decks for a powerful, competent, thoroughgoing conservative Attorney General to rescue the administration from its drift towards comprehensive solutions to bipartisan problems and back to the principled, uncompromising, man-the-barricades domestic policy that we are assured will flow from the resignation of the mushy Alberto Gonzales.

I can hardly wait for the triumphant confirmation hearings to see the chastened, humbled Democrats!

UPDATE: In particular, I have full confidence that if the president nominates Secretary of Homeland Security Michael Chertoff to be the new Attorney General, that the Democrats would never take political advantage of the confirmation hearings to, in addition to everything else...

• Renew their demands that waterboarding, stress positions, temperature changes, the belly slap, the attention grab, and all other forms of "torture" be expressly forbidden in all cases of captured terrorists, no matter what the circumstances; they would never dream of arguing that Chertoff, as head of DHS, has violated the rights of radical Islamists;
• Reinvigorate their insistance that the Patriot Act -- which Chertoff co-authored, and which the Democrats have been trying to repeal ever since they voted for it -- be substantially rewritten to remove, on "civil liberties" concerns, all provisions that allow government to investigate potential domestic terrorists;
• Relive their bestselling rewrite of the history of FEMA's response to Hurricane Katrina;
• Make fun of his skeletal appearance;
• Allow Sen. Clinton to vent her spleen on Chertoff's role in investigating Whitewater.

I'm sure he'll just cruise to confirmation, being so beloved on the Hill.

UPDATE²: Heck, even Sen. Schumer himself said “Democrats will not obstruct or impede a nominee who we are confident will put the rule of law above political considerations.” If you can't trust the word of Chuck Schumer, who can you trust?

And of course, the confirmation hearing that would have to be held for whomever Bush nominates to replace Chertoff as Secretary of Homeland Security won't pose any problems of its own. Again, the Democrats, realizing the seriousness of the situation and being foursquare behind President Bush's response to 9/11, will swiftly confirm any serious-minded war-fighter Bush nominates.

Hatched by Dafydd on this day, August 27, 2007, at the time of 11:24 AM | Comments (11) | TrackBack

July 7, 2007

Two More RINOs Join the Blundering Herd

Today, Sens. Judd Gregg of New Hampshire and Lamar Alexander of Tennessee joined the chorus of Republicans gibbering that the "surge" is obviously failing:

"It should be clear to the president that there needs to be a new strategy," said [sic] Alexander told The Los Angeles Times. "Our policy in Iraq is drifting."

Gregg, who up to now had belonged to the camp of hardliners on Iraq, said in an interview with the same newspaper that attempts to put down the Iraqi insurgency with higher numbers of US troops "don't seem to be making a lot of progress."

It is vital to have "a clear blueprint for how we were going to draw down," he said. [That is, a clear policy to surrender quickly, before we accidentally win the war.]

Judd Gregg has an ACU rating of 72%, exactly the same as Lamar Alexander. Gregg and Alexander fit the pattern: So far, every GOP senator who has come out against the war or "the surge" has had a partisanship score of 75% or less.

The House of Representatives is too large for me to deal with now; but you would need at lesat 56 Republican defections, assuming every Democrat in the House votes for surrender. Let's just stick to the Senate for now -- as overriding a veto requires overriding it in both bodies.

So how many potential defections are there, if all the RINO senators -- who today swear they will not support timetables for withdrawal or a cutoff of troops -- change their minds and betray the country anyway? Are we in danger of Congress overriding a Bush veto of withrawal-timetable-defunding legislation?

How many GOP senators are there with partisanship scores of 75% or below? There are 18:

1. Dick Shelby (AL, 74%)
2. Ted Stevens (AK, 64%)
3. Lisa Murkowski (AK, 71%)
4. John McCain (AZ, 65%)
5. Dick Lugar (IN, 64%)
6. Olympia Snowe (ME, 36%)
7. Susan Collins (ME, 48%)
8. Norm Coleman (MN, 68%)
9. Thad Cochrane (MS, 67%)
10. Chuck Hagel (NE, 75%)
11. Judd Gregg (NH, 72%)
12. Pete Domenici (NM, 75%)
13. George Voinovich (OH, 56%)
14. Gordon Smith (OR, 72%)
15. Arlen Specter (PA, 43%)
16. Lamar Alexander (TN, 72%)
17. Bob Bennett (UT, 72%)
18. John Warner (VA, 64%)

No other Republican comes close to these scores: Above 75%, the next nearest Republican is Kit Bond (MO, 80%), followed by Lindsay Graham (SC, 83%), and then several senators at 88%.

In the list above, those senators who are up for reelection in 2008 (class II) are in blue font; those who have already "come out," that I recall (made anti-war, anti-counterinsurgency, defeatist comments) are in boldface.

Also, we must assume that Sen. Joe Lieberman (I-CT, 75%D/17%R) -- who believes in the war so strongly that he actually left the Democratic Party over the issue -- will continue to support the war effort; so he will always be a vote against withdrawal, timetables, and defunding the troops -- so too with John McCain, despite his RINO status.

Now that John Barrasso (R-WY) has been appointed to take the seat of deceased Sen. Craig Thomas (96%), there are again 49 Republicans. Overriding a veto takes 67 votes, so 34 votes against overriding will sustain the president's veto: Thus, we can lose as many as 16 Republican defectors and still sustain (counting Lieberman as one extra "GOP" vote on this issue).

Counting the RINOs above who are up for reelection in 2008 combined with those who have already "come out," I get a total of 14 possible defections... which would be close, but not catastrophic enough to override a presidential veto. And that is assuming that every, single Republican RINO up for reelection next year votes for withrawal or defunding... which I actually consider pretty unlikely.

(In case anyone is interested, the Democrats have only six DINOs in the Senate: Mark Pryor (AR, 75%), Bill Nelson (FL, 60%), Mary Landrieu (LA, 65%), Max Baucus (MT, 70%), Ben Nelson (NE, 35%), Jay Rockefeller (WV, 60%); they do much better at herding cats than we. Even so, several of these senators might be persuaded to vote against surrender, especially the four of them up for reelection in states that went for Bush in 2004 [blue font].)

So we need to keep vigilant; and those readers in states that have wavering GOP senators need to keep their senators' noses to the fire about the counterinsurgency. But I do not think that the defeatists will be able to cram surrender down our military's throat.

At least not until the next Congress; and by then, I believe the war will be won, and the only thing left to do for Democrats and their "defeatocrat" allies in the Republican Party will be to claim credit for the victory: "We killed al-Qaeda and Iran -- vote Democrat in 2010!"

Hatched by Dafydd on this day, July 7, 2007, at the time of 3:19 PM | Comments (9) | TrackBack

July 21, 2006

Bolton For the Aisles

And speaking of the great John Bolton -- who is our ambassador to the U.N. only via recess appointment, after the Democrats pulled another puerile tantrum and refused to allow a vote on him last summer -- he is about to be resubmitted to the Senate for another go at confirming him, thus restoring a bit of the lost honor of that tatterdemalion organization. The Democrats were joined in that caper by the lovely and talented Sen. George Voinovich (R-OH, 68%):

The White House moved again for a Senate endorsement after Ohio Republican Sen. George Voinovich, who joined Democrats in blocking Bolton last year, said on Thursday he now backs him.

Senate Republicans and the administration expressed confidence Bolton would be approved this time, particularly with the need for an experienced hand at the United Nations during the Middle East crisis.

A spokesman for Sen. Richard Lugar, the Indiana Republican who chairs the Foreign Relations Committee, said the Senate would probably vote on Bolton in September, after its summer recess.

However, a big obstacle to Bolton's confirmation remains: he served in the National Guard. As we have learned, Democrats consider the National Guard to be nothing but a disreputable and dishonorable way to dodge the draft by poltroons who haven't the courage to run away to Canada and become counterculture hippie-heroes. It's not clear whether the "Guard hurdle" can be o'erleapt.

In the last cloture vote on Bolton's nomination, June 20th, 2005, 54 senators supported bringing it to an up-or-down vote. Assuming Sen. Voinovich makes good his threat to return to the fold (all is forgiven! well, maybe not all), that would still leave the Republicans five votes short.

They will have to pick up support among Democrats and some very, very liberal Republicans on the basis of Bolton's performance the last year in the U.N. On its face, this should be easy; much of the Democratic emesis was (they claimed) due to angst about whether he could comport himself publicwise. Over the last year, Bolton has avoided actually striking anyone at Turtle Bay or even setting fire to the Syrian ambassador's beard, and not a single New York eatery has chucked him out for boorish table manners... so perhaps the naysayers can find the courage to admit they were wrong about him: he cleans up nice.

But there's still that pesky National-Guard thing; we have to consider that.

All told, I'd give him a 50% chance of being confirmed. Much depends upon the perception of who's got the "mo" in the District these days, Bush or the Democrats. On that basis, Bolton should be confirmed in a snap. But the deplorable fact of his uneventful service in the National Guard will weigh heavily on the minds of the Democrats.

Hatched by Dafydd on this day, July 21, 2006, at the time of 2:23 PM | Comments (7) | TrackBack

May 18, 2006

Hayden On the Hot Seat

...And a pair of astonishing admissions by Reuters!

The confirmation hearing of Air Force Gen. Michael Hayden to be the next Director of the Central Intelligence Agency appears to be going swimmingly. Only one Democrat was nakedly hostile to Hayden (and no Republicans), if Reuters can be believed: Sen. Ron Wyden (D-OR). The following rather childish exchange ensued:

Wyden said Hayden had not kept Congress fully informed of the eavesdropping program and had made misleading statements in previous appearances before Congress.

"General, having evaluated your words, I now have a difficult time with your credibility," Wyden said.

"So with all due respect, general, I can't tell now if you've simply said one thing and done another, or whether you have just parsed your words like a lawyer to intentionally mislead the public," Wyden said.

Hm... let's see if we can't suss this one out: Hayden had been the head of the ultra, ultra-secret National Security Agency. He was often asked in open session detailed questions about highly, highly classified programs. He was asked by senators who know that in many cases, failure to respond is, in fact, a response.

So in some cases, he deflected those questions. He failed to respond without appearing to fail to respond.

And Sen. Wyden is angry that Hayden was not more forthcoming. About highly classified programs. In open session. (Had Wyden been talking about misleading answers in closed-door session, I'm pretty sure he would have said so, since that would make his case stronger. Unless he's just an idiot... in which case, why are we even spending this much time on him?)

Hayden answered with aplomb and a very subtle slap-down:

Hayden responded: "Well, senator, you're going to have to make a judgment on my character ... I was as full and open as I possibly could be." [Showing admirable restrain in not adding, "given the fact that the programs were classified and we were in open session, you nitwit!" -- the Mgt.]

I think Sen. Wyden has been spending too much time hanging around with his pals, Sen. Jay "Letter-Stasher" Rockefeller (rankling member of the Senate Select Committee on Intelligence) and Sen. Patrick "Leaky" Leahy (erstwhile member).

But the biggest news so far are two stunning admissions that Reuters made in a single sentence in this article:

Under the program, the NSA monitors international telephone calls and e-mails to or from suspected terrorists without first obtaining a court order.

This may mark the very first time that any antique media source has acknowledged that this is not domestic spying! That the targets were international calls and e-mails. Oops....

And of course, the other, punctuational admission in that same sentence is equally startling. It is so blatant, that I'm sure I needn't belabor the obvious by pointing it out. (All right, I suppose I'll spill the beans out of the bag in the "slither on" entry below.)

The only comment quoted from Hayden that worries me is this one:

Responding to a question from Levin, Hayden said he had been uncomfortable with some of the prewar analysis coming from the Pentagon suggesting there was a link between al Qaeda and then-Iraqi President Saddam Hussein.

I consider that evidence to be overwhelming and growing more so with every week's worth of translated documents, many of which show a much deeper al-Qaeda/Iraq connection that we ever realized. Thus, if Hayden is saying that now, today, he doesn't see any connection... well, that would be pretty bad.

But the way this is phrased, we don't even know what the question was that provoked this response; nor do we know exactly what Hayden said. The question may have specifically been couched in the timeframe of 2002, and Hayden may have been saying that at that time, he was uncomfortable with that claim.

The New York Times article fleshes this exchange out a bit:

Senator Levin asked General Hayden whether he had disagreed with Douglas J. Feith, the under secretary of defense for policy, who established an intelligence-analysis cell within his office. The senator recalled that Mr. Feith's unit suggested a link between Iraq and Al Qaeda, and whether the general was "comfortable with Mr. Feith's office approach to intelligence analysis."

"No, sir, I wasn't," the nominee replied. "And I wasn't aware of a lot of the activity going on, you know, when it was contemporaneous with running up to the war. No, sir I wasn't comfortable."

That makes me a little less worried; in the Times' version, the question Hayden answered was whether he was comfortable with the way Feith ran his Pentagon intelligence-analysis office... not specifically whether Hayden was comfortable with the evidence of an Iraq/al-Qaeda link. (Is it possible that Reuters "parsed [its] words like a lawyer to intentionally mislead the public?")

Here are two oblique reference to the program to boot the leakers out of the CIA that I found only in the Times' account:

He defended the retiring C.I.A. director, Porter J. Goss, who was forced out after conflicts with John D. Negroponte, the national intelligence director whom General Hayden has been serving as deputy. "As director, Porter fostered a process of transformation that the agency must continue in the coming years," the general said....

The general's portrait of the C.I.A. he would like to preside over seemed to be one of esprit, imagination and discretion. "C.I.A. needs to get out of the news, as source or subject, and focus on protecting the American people by acquiring secrets and providing high-quality, all-source analysis," he said.

I hope this means that the campaign against the CIA leakers will continue -- and hopefully, with less ruth. (I mean more ruthlessly.)

All in all, though -- unless the Democrats have some bombshell and are showing out-of-character restraint in telling the press about it -- I think Hayden will have little trouble during these hearings, and his nomination will easily be confirmed by the full Senate. And it should be.

Oh yes, about that "other admission" from Reuters. Here is a hint: the other admission in this sentence....

Under the program, the NSA monitors international telephone calls and e-mails to or from suspected terrorists without first obtaining a court order.

...involves a missing set of "scare quotes" around one particular word.

Hatched by Dafydd on this day, May 18, 2006, at the time of 2:04 PM | Comments (5) | TrackBack

January 10, 2006

Four of a Kind

Hatched by Dafydd on this day, January 10, 2006, at the time of 6:08 PM | Comments (4) | TrackBack

The New York Times Needs to Read Power Line

The New York Times today reports that the interrogation of Judge Samuel Alito today focused on a formerly obscure concurrance by a Supreme Court justice in 1952... in a case that has already been thoroughly analyzed, in far greater depth, by the tribunes at Power Line.

(Haven't we been down this road before? It's like déjà vu all over again!)

The case they refer to is Youngstown Sheet and Tube Company v. Sawyer 343 U.S. 579 (1952), and Paul Mirengoff at Power Line first discussed it back in late December, anent the NSA intercept program that has just been outed by anonymous "officials." Paul only laid out the basics of the particular concurrance by Justice Robert H. Jackson that is now, more than two weeks later, the "focus of [the] hearings" into Alito's nomination to the Supreme Court.

On New Year's Day, John Hinderaker took a whack at the Jackson formulation in a much longer piece.

The basics of the case -- and why lefties think it applies to President Bush and the NSA intercepts -- are quickly recounted in the Times piece:

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning....

In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.

In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.

"Echoes in the justifications..." wait, what did the Court actually decide in the Youngstown case?

Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.

"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."

Ah, of course: seizing private property to prevent a strike. Yes, I can see how that's "broadly similar" to the National Security Agency intercepting phone calls from al-Qaeda to their agents in the United States. And I can definitely hear those "echoes in the justifications" offered by President Bush why he should be able to hold enemy combatants in military detention.

To its credit, the Times does admit that the "broadly similar" facts seem oddly dissimilar:

There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations.

Um, yeah. Also, Truman tried to seize the steel mills in order to prevent a strike that he thought might interfere with the war -- whereas the NSA intercepts are direct warmaking actions to gather enemy intelligence: as Hinderaker said earlier (more or less paraphrasing the president), "If al Qaeda is calling you, we want to know why."

Justice Jackson's concurring opinion set up a formulation for the strength of a president's power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....

2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain....

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

(The Left claims, of course, that the Foreign Intelligence Surveillance Act (FISA) forbids any "wiretapping" without a warrant -- but see below -- and that therefore, the president's power is Type III: "incompatible with the expressed or implied will of Congress," thus "at its lowest ebb.")

"It is not entirely clear why Justice Jackson's concurrence has had such a lasting impact," disingenuously muses the Times; for it is completely obvious why: because that concurring opinion is all that the Democrats have to throw against the commander in chief's obvious Article II power to fight wars. Therefore, they're going to keep waving it as a bloody shirt to urge on the masses.

Returning to Hinderaker's post on Justice Jackson's concurring opinion and its possible application to the NSA case, John begins his analysis so:

In my opinion, reliance on this analysis by critics of the NSA programs is misplaced, for several reasons.

The reasons he cites are quite persuasive:

1. It was a concurring opinion that no other justice joined.
2. The decision in Youngstown was a no-brainer: "if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator," sayeth Brother John.
3. The argument turned more on the president's charge to "take Care that the Laws be faithfully executed" than his powers as commander in chief.
4. It isn't clear that Jackson's discussion and his three-scenario formulation were ever meant to apply to the president's war-fighting powers: "Jackson lays out his three categories before he specifically addresses any of the executive's Article II powers, then begins by talking about the President's exercise of 'the executive Power.'"
5. The Court rejected the claim that Truman's powers as commander in chief allowed him to seize the steel mills on the grounds that that was a purely domestic action -- but the NSA intercepts are of foreign-originating calls and e-mails.

Even Justice Jackson himself appears to agree with Hinderaker on that last point. As John quotes from Jackson's opinion...

(Note: for reasons known only to themselves and perhaps God, the fine fellows at Power Line have taken to using three asterisks [ *** ] instead of the normal ellipsis [ ... ] to indicate words clipped out. They don't mean such passages are attended by three footnotes!)

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

Finally, one last comment. The Times article concludes with a backhanded legal opinion on FISA that appears, facially, to be utterly false:

The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.

In fact, it says no such thing, as John pointed out in yet another Power Line post (I feel so inadequate):

UPDATE: If the program is as the President described it, and the interceptions are carried out overseas, then it is outside the scope of FISA. See the definition of "electronic surveillance" to which that statute applies, 50 U.S.C. Sec. 1801(f):

John then lists the four-part definition of "electronic surveillance," as used by FISA, no part of which appears to apply to the NSA intercepts, assuming we have been given correct information by the White House. The "electronic surveillance" that has been "acknowledged" by the Bush administration does not, thus, "require court approval" or warrant of any kind.

So the entire New York Times take on the NSA intercepts is wrong on its face, and needn't even reach the question of whether an act of Congress (such as FISA) can override the president's residual, plenary powers as defined in Article II of the Constitution.

'Nuff said.

Hatched by Dafydd on this day, January 10, 2006, at the time of 5:43 PM | Comments (1) | TrackBack

© 2005-2008 by Dafydd ab Hugh - All Rights Reserved