The upside of being spied on.

Way back on December 6, 2005, I wrote Paying for Hearts and Minds. Yours, in which I commented on the fact that the Pentagon paid $100 million dollars to place articles in the Iraqi press. Here’s what I said:

Who then are the intended targets of the articles in the Iraqi press? You. Here’s how it works. Cindy Sheehan, or Jack Murtha, or Joe Blow stands up and says, “Hey, this is a damn quagmire. Energy production, employment, industrial output – you pick the measure – things are worse now than they were before the war began. Rape rooms are back, sectarian warfare is breaking out, terrorists are being trained, and religious tolerance is down the tubes. Those are not Iraqi battle-ready battalions – they are private militias of religious warlords. Etc., etc., etc. It’s all true, too.

But then up jumps Bill O’Reilley, Rush Limbaugh or Joe Blow-harder. He says, “What does Cindy Sheehan or Jack Murtha or you know? You’re over here. Let’s look at what is being said by real people on the ground; let’s listen to the Iraqi people.” Then he reads some lies placed in the Faluga Fishwrap by Spec 4 Armstrong Williams.

Here’s the update, published on Friday, January 27, 2006 by Agence France Presse:

US Propaganda Aimed at Foreigners Reaches US Public: Pentagon Document

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The Pentagon acknowledged in a newly declassified document that the US public is increasingly exposed to propaganda disseminated overseas in psychological operations.

But the document suggests that the Pentagon believes that US law that prohibits exposing the US public to propaganda does not apply to the unintended blowback from such operations.

“The increasing ability of people in most parts of the globe to access international information sources makes targeting particular audiences more difficult,” said the document.

“Today the distinction between foreign and domestic audiences become more a question of USG (US government) intent rather than information dissemination practices,” it said.

Called the “Information Operations Roadmap,” the document was approved by US Defense Secretary Donald Rumsfeld in October 2003.

It was made public by the National Security Archives, a private non-profit research group which obtained it through a Freedom of Information Act request.

Well, it’s nice to know someone is reading my blog! And a tip of the hat to Common Dreams for catching the Agence France Presse article.

“... and tell 'em Big Mitch sent ya!”

“The Ellipsis that Eclipses,” or “How ... keeps you in the dark.”

Byron York, of the National Review, was on Meet the Press today. The subject turned to King George W's program of domestic spying, and the fact that the Congressional Research Bureau didn't find legal authority to support it. Here’s what Byron said:

The White House is not just making it up. There was a case in 2002, by the FISA Court of Review, In re: Sealed Case. It referred to an earlier case called Truong and it said:

“[That] court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. … We take for granted that the President does have that authority. …”

So they have a legal basis for what they’re doing.

Of course, listening to Meet the Press, you couldn’t actually hear the ellipses. For that you have to read the actual text of In re: Sealed Case.

What is hidden behind that ellipsis? Well, there’s a footnote which says that the case of Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C. Cir. 1975) (en banc), cert denied, 425 U.S. 944 (1976), suggested the contrary in dicta. Wow! Eighteen pages of dicta, that the Supremes didn’t want to review.

In the immortal words of Ron Popiel, “But wait! There’s more!”

The actual sentence relegated to shadows by Byron's ellipsis is “It was incumbent upon the [Truong] court, therefore, to determine the boundaries of that constitutional authority in the case before it.”

See how this works? Byron takes a quote from an actual court case, and he uses it to support the view that the President had unbounded authority to engage in warrantless electronic surveillance. But to do so, he has to do some editing. In particular, he edits out the sentence that says, “Yes, by golly! There are boundaries, to that power.”

Another interesting quote from In re: Sealed Case is this little morsel:

“That case, however, involved an electronic surveillance carried out prior to the passage of FISA and predicated on the President’s executive power.”

You heard right! Truong was decided before FISA was even a law! For those who can never get enough irony, remember that King George W argued in Kansas that the FISA law wasn’t controlling because it was, I kid you not, too old!

Again, quoting Ron Popiel: “But that’s not all!” The Truong case upheld the lower court which suppressed evidence seized by the government, because, as we have said, the President’s executive power is not unlimited and in that case, the executive branch went too far!

That about covers what Byron hid with the first ellipsis. But stay tuned for this special bonus!

The last sentence of Byron’s selection ends with another ellipsis because Byron didn’t want you to hear the full sentence:

We take for granted that the President does have that authority [i.e. to conduct warrantless searches to obtain foreign intelligence information] and, assuming that is so, FISA could not encroach on the President’s constitutional power. [emphasis added]

Now here’s the interesting part: The Court in In re: Sealed Case realized that our court system is an adversary process, and therefore, it invited the National Association of Criminal Defense Lawyers (NACDL)and the American Civil Liberties Union (ACLU) to brief the court as amici curiae, that is, friends of the court. And these two organizations argued that the FISA law was unconstitutional. But the Court rejected those arguments and upheld the FISA law, meaning, that FISA does not encroach on the President’s constitutional power: it is constitutional.


Byron sure picked a funny case to cite in support of the President’s unrestricted power to conduct domestic spying without a warrant. But Byron York is a professional pundit, so I suppose we should expect a little fudging on the facts. After all, it was Lord Byron who said,

For though I will not make confession,
I've seen too much of man's deception 
Ever again to trust profession. 

(A letter to J.T. Becher, 1898)

“... and tell 'em Big Mitch sent ya!”

Cool it on the Climate Warming!

A Yogi offered the following advice to the Class of 1996, Montclair State University: “You can observe a lot by watching.” I’ve tried to take that advice to heart, and I was reminded of it today when I did a little net surfing. Over at the Washington Post, I observed that scientists were concerned about global warming.

Well, I knew that global warming was a problem. But the WaPo had a new twist. Here’s how their article began:

Now that most scientists agree human activity is causing Earth to warm, the central debate has shifted to whether climate change is progressing so rapidly that, within decades, humans may be helpless to slow or reverse the trend.

This “tipping point” scenario has begun to consume many prominent researchers in the United States and abroad, because the answer could determine how drastically countries need to reduce their greenhouse gas emissions in the coming years. While scientists remain uncertain when such a point might occur, many say it is urgent that policymakers cut global carbon dioxide emissions in half over the next 50 years or risk the triggering of changes that would be irreversible.

Uh, oh. That sounds really bad.

I sure hope that the government is paying attention, because I would expect them to be taking some steps to deal with the problem. Indeed, the New York Times, describes the Administration response on Page 1. Here’s the way they began their story:

The top climate scientist at NASA says the Bush administration has tried to stop him from speaking out since he gave a lecture last month calling for prompt reductions in emissions of greenhouse gases linked to global warming.

Well, as the Ole Perfessor would say, “You can look it up.”

“… and tell ’em Big Mitch sent ya!”

Alberto Gonzalez: Criminally insane or just another Republican?

Attorney General Alberto Gonzalez has been out on the hustings arguing that the Authorization to Use Military Force in Afghanistan (AUMF) gave the President authority to spy on Americans. The argument goes like this: The President is the Commander-in-Chief of the military; and signal intelligence, i.e. wiretapping, is a normal concomitant to military force. The argument gets support from a Supreme Court case in which it was held that the power to detain prisoners is included within the powers granted by the AUMF.

Here’s why the argument is so wrong that it can’t possibly be made with a straight face by anyone but the criminally insane or a Republican.

Whatever the AUMF is, it is not a Declaration of War. Only Congress can declare war, and that hasn’t happened since World War II. However, the Supreme Court has ruled that although the President cannot declare war he can recognize a state of war. So, let’s grant the President the benefit of the doubt and say that the facts add up to the United States being at war.

Now open your books to the FISA statute:

§ 1811. Authorization during time of war

Notwithstanding any other law, the President, through the Attorney General, may authorize electronic surveillance without a court order under this subchapter to acquire foreign intelligence information for a period not to exceed fifteen calendar days following a declaration of war by the Congress.

Get it? Even if Congress had declared war there would be a 15 day limitation on his ability to listen in on Americans’ conversations.

As the old song goes: “How long has this been going on?” A lot longer than 15 days.

“… and tell ‘em Big Mitch sent ya!”

Let's dance the limbo rock.

How low can you go?

Bush Job Approval	Approve	Disapprove	Undecided
Jan. 2006	36%	58%	6%
Dec. 2005	40%	56%	4%
Nov. 2005	36%	58%	6%
Oct. 2005	38%	55%	7%
Sep. 2005	37%	57%	6%
Aug. 2005	35%	58%	6%
July 2005	42%	52%	6%
June 2005	42%	53%	5%
May 2005	43%	51%	6%
Apr. 2005	44%	50%	6%
Mar. 2005	47%	48%	5%
Feb. 2005	49%	45%	6%
Jan. 2005	51%	44%	5%

Source: American Research Group

President Bush gets Mooned

The Washington Times is a right wing rag owned by none other than the Reverend Sun Myong Moon. Here’s what the Moonies had to say about their newspaper:

This was not however the only contribution Rev. Moon has made. Probably the more significant ongoing contribution would be the founding of The Washington Times in Washington, D.C., as the second daily newspaper in the nation's capital, with a distinct conservative outlook - or more correctly, God-centered outlook. Could you imagine what Washington would have been like with only one daily?

Part of the Moonie media empire is Insight on the News, “America’s premier weekly Internet news magazine dedicated to providing cutting-edge background information from the corridors of power in Washington, D.C.” according to the website. Insight features commentary by right wing extremists like Wesley Pruden, Mark Steyn, Donald Lambro, David Horowitz, Michelle Malkin, John O’Sullivan and others.

All of which explains why I was so interested in the following article, reprinted here in its entirety under the fair use doctrine.

Impeachment hearings: The White House prepares for the worst

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The Bush administration is bracing for impeachment hearings in Congress.

“A coalition in Congress is being formed to support impeachment,” an administration source said.

Sources said a prelude to the impeachment process could begin with hearings by the Senate Judiciary Committee in February. They said the hearings would focus on the secret electronic surveillance program and whether Mr. Bush violated the 1978 Foreign Intelligence Surveillance Act.

Administration sources said the charges are expected to include false reports to Congress as well as Mr. Bush's authorization of the National Security Agency to engage in electronic surveillance inside the United States without a court warrant. This included the monitoring of overseas telephone calls and e-mail traffic to and from people living in the United States without requisite permission from a secret court.

Sources said the probe to determine whether the president violated the law will include Republicans, but that they may not be aware they could be helping to lay the groundwork for a Democratic impeachment campaign against Mr. Bush.

“Our arithmetic shows that a majority of the committee could vote against the president,” the source said. “If we work hard, there could be a tie.”

The law limits the government surveillance to no more than 72 hours without a court warrant. The president, citing his constitutional war powers, has pledged to continue wiretaps without a warrant.

The hearings would be accompanied by several lawsuits against the administration connected to the surveillance program. At the same time, the Electronic Privacy Information Center has filed a Freedom of Information Act lawsuit that demands information about the NSA spying.

Sen. Arlen Specter, Senate Judiciary Committee chairman and Pennsylvania Republican, has acknowledged that the hearings could conclude with a vote of whether Mr. Bush violated the law. Mr. Specter, a critic of the administration’s surveillance program, stressed that, although he would not seek it, impeachment is a possible outcome.

“Impeachment is a remedy,” Mr. Specter said on Jan. 15. “After impeachment, you could have a criminal prosecution. But the principal remedy under our society is to pay a political price.”

Mr. Specter and other senior members of the committee have been told by legal constitutional experts that Mr. Bush did not have the authority to authorize unlimited secret electronic surveillance. Another leading Republican who has rejected the administration's argument is Sen. Sam Brownback of Kansas.

On Jan. 16, former Vice President Al Gore set the tone for impeachment hearings against Mr. Bush by accusing the president of lying to the American people. Mr. Gore, who lost the 2000 election to Mr. Bush, accused the president of “indifference” to the Constitution and urged a serious congressional investigation. He said the administration decided to break the law after Congress refused to change the Foreign Intelligence Surveillance Act.

“A president who breaks the law is a threat to the very structure of our government,” Mr. Gore said.

“I call upon members of Congress in both parties to uphold your oath of office and defend the Constitution,” he said. “Stop going along to get along. Start acting like the independent and co-equal branch of American government that you are supposed to be under the constitution of our country.”

Impeachment proponents in Congress have been bolstered by a memorandum by the Congressional Research Service on Jan. 6. CRS, which is the research arm of Congress, asserted in a report by national security specialist Alfred Cumming that the amended 1947 law requires the president to keep all members of the House and Senate intelligence committees “fully and currently informed” of a domestic surveillance effort. It was the second CRS report in less than a month that questioned the administration's domestic surveillance program.

The latest CRS report said Mr. Bush should have briefed the intelligence committees in the House and Senate. The report said covert programs must be reported to House and Senate leaders as well as the chairs of the intelligence panels, termed the “Gang of Eight.”

Administration sources said Mr. Bush would wage a vigorous defense of electronic surveillance and other controversial measures enacted after 9/11. They said the president would begin with pressure on Republican members of the Senate Judiciary Committee. Mr. Bush would then point to security measures taken by the former administration of President Bill Clinton.

“The argument is that the American people will never forgive any public official who knowingly hurts national security,” an administration source said. “We will tell the American people that while we have done everything we can to protect them, our policies are being endangered by a hypocritical Congress.”

---

“… and tell ’em Big Mitch sent ya!”

We're not in Kansas, anymore.

Today, King George W was speaking at Kansas State University. Here’s my favorite sound-byte:

You know, it’s amazing that people say to me, you know, that he was just breaking the law. If I wanted to break the law, why was I briefing Congress? Heh, heh.

What's wrong with that? I mean, you know, other than the, you know, syntax.

As I reported here the Congressional Research Service issued an opinion that the Bush administration appears to have violated the National Security Act by not keeping all members of the House and Senate intelligence committees "fully and currently informed" of the domestic spying program.

You can read the entire report here.

The Bushies were limiting the briefings about a warrantless domestic eavesdropping program to the so-called Gang of Eight. (i.e. Senate Majority Leader, the Senate Minority Leader, the Speaker of the House, the House Minority Leader and the Chairmen and Ranking Members of the Senate and House Intelligence Committees.) More importantly, they weren't giving the Gang of Eight what they need to make heads nor tails of it.

May I have Exhibit A, marked and moved into evidence? That would be the handwritten letter of Senator Jay Rockefeller, which you can see here. Here's a quote:

Without more information and the ability to draw on any independent legal or technical expertise, I simply cannot satisfy lingering concerns raised by the briefing we received.

At least they were briefing someone. But then again, the people being briefed were not even allowed to share the information with fellow members of the committee.

Sure, we thought the whole briefing thing was a huge cover-your-ass exercise. That was before the Chimp-in-chief spoke to his fan-club in Kansas. Now we know.

“… and tell ’em Big Mitch sent ya!”

Pray for Gerry Ford

He was, after all, the only Republican President since Eisenhower to leave office without having committed impeachable offenses. For those who forget, Nixon had Watergate, Reagan and Geo. H.W. Bush had Iran-Contra, and George W. has too many to mention.

From "Think Progress"

McCain: Bush Does Not Have “The Legal Authority To Engage In These Warrantless Wiretaps”

Today on Fox News Sunday, Sen. John McCain (R-AZ) said Bush’s warrantless domestic wiretapping program is illegal:

WALLACE: But you do not believe that currently he has the legal authority to engage in these warrant-less wiretaps.

MCCAIN: You know, I don’t think so, but why not come to Congress? We can sort this all out. I don’t think — I know of no member of Congress, frankly, who, if the administration came and said here’s why we need this capability, that they wouldn’t get it. And so let’s have the hearings.

McCain is the latest addition to a growing list of prominent conservatives — including Sen. Lindsey Graham (R-SC), Sen. Arlen Specter (R-PA), Sen. Sam Brownback (R-KS) and Sen. Richard Lugar (R-IN) — who have expressed serious concerns about the legality of the program.

Karl Rove doesn’t want to spin it this way but concern about the warrantless domestic spying program is bipartisan.

No free speech for Indians.

It may seem wacky but the Supreme Court has held that money equals speech. Money is, in Tip O’Neill’s famous phrase, “the mother’s milk of politics.” Free speech is what gets your message out and that costs money.

Here’s how it works. Suppose you are an Indian tribe. You have a message that you want to promote. Let’s say, for example, the message goes like this: America has obligations to the Indians arising from treaties and from morality. Indians have been stymied in poverty. One way that the Indians can pull themselves out of this miasma is by providing what the people want: legalized gambling.

Note: This isn’t about whether you agree with that message or not. This is about whether or not Indians should be able to get that message into the public domain. As a responsible Indian leader you say, “How?”

Of course, Indians don’t talk like that any more: that was just an obscene stereotype from 1950’s television. Indians today use the sophisticated tools of political influence that are available to all citizens.

One such tool is getting people elected who have demonstrated a devotion to improving their lives. How to do that? Pass the mother’s milk, please. People who will represent the wants and needs of Indians need money to get elected.

Indians were faced with this exact problem. It turns out that Indians did something smart and something stupid. The smart thing they did was to give money to Democrats to help them get elected because they knew from past experience that Democrats actually care about Indians, not to mention health care, which is a critical issue for Indians.

The not so smart thing: hiring a Republican lobbyist who is a crook. It is long past the time when someone could argue that Jack Abramoff is anything but a completely unethical scumbag. That he is a Republican may strike some as a coincidence, but others see a pattern.

Congressmen and Senators have been falling all over themselves to give back money that Abramoff swindled from Indians and gave to Republicans. Actually, not so much give back, as give to charity. Which doesn’t necessarily help Indians, but that’s another blognote.

The important thing here is that not one red sou went from Abramoff to Democrats. Zero, zip, nada. Not a nickel, not a dime. Nothing. Bupkis.

Indians didn’t get swindled out of all their money. They still had some to give to help re-elect the people who had looked out for their interests over the years. Mostly these people were Democrats, because the only interest that Republicans like Abramoff had in Indians was figuring out how to swindle them.

But the Republican Ministry of Propaganda is promoting the idea that Indians, having been swindled by Republican’s shouldn’t be allowed to donate money to Democrats. According to this Republican worldview, free speech is for pharmaceutical companies and oil companies, not for Indians.

You may ask, How can the Republicans say something so incredibly anti-democratic? The answer is found in the incredibly misleading term, “Abramoff related money.”

For example, on Meet the Press, Tim Russert painted the screen with a pie chart that was labeled, “Abramoff Related Money 1999-2005.” It showed a blue 1/3 and a red 2/3 and the labeling indicated that 34% of said “Abramoff related money” went to Dems., and 63% went to Republicans. On the left of the chart it said “Democats $1.5 million, and on the right: “Republicans $2.9 million.” Underneath, it said, “Source: Center for Responsive Politics.” Here is the website for the Center for Responsive Politics.

If you go there, you will learn that the $1.5 million, and the $2.9 million figures represent the total amount of money received by the Dems and the Republicans, respectively, but not from Abramoff. Rather, in each case it is the total of money that was received from Abramoff PLUS the Indian tribes, who were exercising their free speech rights. Please note: in every election cycle, the amount of money given by the Indians exceeded the amount received by the Dems.

If it seems confusing, it helps if you think of it this way. Suppose that on Friday the 13th, your grocery story gives you a free coupon to buy five dollars worth of Sugar Pops. On the same day, a robber goes in there and holds up the proprietor at gun-point. When he is caught, they make him give back the $100 dollars he made off with. Should they make you give back the Sugar Pops? Why not? It’s all Friday-the-13th related.

The term, “Abramoff related money,” does not fall trippingly from the tongue. So Mary Matalin has provided a useful shorthand expression. See if you can spot it in this sentence, which she said on Meet the Press:

“Harry Reid refused to give back his Abramoff money.”

Look, I am all for a massive reform of the way campaigns are financed so that the playing field is level for you and me, for Indians, and for big industrial interests. That’s not the point, here. The point here is that the Republican congress, and the Republican administration is thoroughly corrupt, and now they are trying to intentionally mislead us to think that the problem is across the board. Their best defense is a pathetic, “Everyone does it.” And even that is not true. So they are willing to lie about it.

I’ve said elsewhere that it is deeply troubling to see what the current crop of crooks is doing to the country that I love so dearly. I can recall Watergate, and so I also recall thinking that the press would serve as a safeguard against the most extreme excesses of a corrupt government. Sadly, in this instance, Tim Russert was an accomplice to the slanderous lies of Mary Matalin.

“… and tell ‘em Big Mitch sent ya!”

Electronic voting scandal? Alaska goes bigtime.

Way back on December 20th we read in the Anchorage Daily News that there were unexplained discrepencies in the electronic vote tallies here in the Great Land.

"For instance, when district-by-district vote counts are totaled, President Bush received 292,267 votes, according to an analysis by the Democrats. But his official total was 190,889, a difference of more than 100,000 votes, according to the state Web site," wrote Lisa Demer.

In a Fairbanks Senate race, Democrat Rita Allee earned 5,366 votes, according to the district-by-district report, but just 4,854 in the summary report, Brown said. In addition, more than 200 percent of the registered voters in some districts cast ballots, which should be impossible.

On December 19th, the Democratic Party on Monday filed a request with the state Division of Elections for the electronic data file of voting results, the record of who voted in the 2004 general election, and paper results from machines used in early voting.

Still waiting for an answer.

“… and tell ’em Big Mitch sent ya!”

Bigger is not necessarily better.

Alberto Gonzalez, Attorney General of the United States, has transmitted to the Senate Majority leader, Bill Frist, a 44 page defense of the President's illegal program of domestic spying. It raises no new arguments that were not raised in the 5 page justification offered by Wm. E. Moschella, which I dissected in The President and Article II of the Constitution.

Fundamentally, the AG's argument boils down to this one sentence:

“The President has the chief responsibility under the Constitution to protect America from attack, and the Constitution gives the President the authority necessary to fulfill that solemn responsibility.”

But is it true? Let’s just take a peek at the Constitution of the United States.

Article 1 § 8 states:

The Congress shall have Power To … provide for the common Defence and general Welfare of the United States; …
• To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
• To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
• To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
• To provide and maintain a Navy;
• To make Rules for the Government and Regulation of the land and naval Forces;
• To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
• To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress; … And
• To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

From the foregoing, one could conclude that the responsibility for protecting America from attack is really Congress’s. The President has a role to play, to be sure. He shall faithfully execute the laws that Congress passes.

Look. When a guy named Big Mitch tells you that bigger is not necessarily better, you gotta believe it.

“… and tell ’em Big Mitch sent ya!”

New Tax Cuts vs Tax Increases

The President was in Sterling, a Virginia suburb of Washington D.C., today and talking economics. If you are the kind of person who gets angry when you are lied to, you might not want to hear what he was saying.

He noted that 4.6 million new jobs have been created since April 2003 and the national unemployment rate is 4.9 percent. The administration was promoting this line elsewhere, too. Vice President Cheney spoke at a Harley-Davidson factory.

"Some in Washington said these tax cuts would not work," But after seeing the nation add more than four million jobs since 2003, he said, "it's getting pretty hard for the critics to make the case that somehow these tax cuts weren't good for the economy."

The Bush Administration had claimed that the cuts would create 5.5 million jobs. So, let's just see how hard it is to make the case that these tax cuts weren't good for the economy. HEY DICK! YOU MISSED YOUR TARGET BY A MILLION DAMN JOBS.

That wasn't so hard, was it? The New York Times took a different tact.

The unemployment rate edged down to 4.9 percent in December from 5 percent in November, but that decline had little to do with the comparatively small gain in jobs. Rather, it stemmed from the fact that more people dropped out of the work force.

Oh, that's just great. Unemployment is down because people are getting too discouraged to look for jobs.

Why would that be? Could it be because wages are not keeping up with inflation? Could it be because the vast majority of new jobs are only part-time jobs? Or that the new jobs are in industries in which the average wage is 30% less than in the industries that are losing jobs?

But I haven't even gotten to the sickening part of W's war on truth. Here's what he said about the tax cuts.

Congress needs to make the tax relief permanent. ... That's a tax increase if the tax relief expires.

Unbelievable!

In case you forgot: When Bush was appointed President he inherited a budget surplus. This was his first excuse for tax cuts -- a refund to the American people who had been over-charged.

Then, of course, a recession hit, and his reaction was to lie and say that it had started during the Clinton administration. This guy's motto is "The buck stops with the previous administration." Be that as it may, W responded by saying we needed tax cuts to stimulate the economy.

The deficit continued to grow and the recession continued. Next came 9-11 and so W led us into a war on false pretenses. But Bush was more steadfast in his devotion to tax cuts than he was to, say, finding Osama Bin Laden.

The deficit started to head for the stratosphere, and W was called upon to explain why his promise that the deficit would not increase was not being kept.

"You know, I was campaigning in Chicago and somebody asked me, is there ever any time where the budget might have to go into deficit? I said only if we were at war or had a national emergency or were in recession. Little did I realize we'd get the trifecta." —President George W. Bush, Charlotte, North Carolina, Feb. 27, 2002

Listen here. Heh, heh, heh.

The situation was serious, so Bush used the big guns. When he promoted a drug program for seniors, he lied to Congress about the cost, and the deficit headed off towards the moon. At this rate, how could W possibly keep the promise that the deficit would be reduced in half?

The trick is to fudge the numbers. Here's how it works. The President's tax cuts were "temporary." That way when the Congressional Budget Office calculates the effect of the tax cut package on future deficits, it doesn't look so bad.

Yesterday's comment reveals what we knew all along. that King George never intended for the tax cuts to be temporary. That's the kind of creative accountancy that made Bush Buddy Ken Lay what he is today.

Let's get it straight. The tax cuts are about to expire. The Government is about to run out of money. Bush wants to enact new tax cuts. The old ones didn't work. The various old rationales are no longer relevant: America hasn't been over-charged; The specific tax cuts are not stimulating job growth; We are not in a recession requiring budgetary stimulus.

These deficits are truly dangerous. The money must be repaid, and I'm guessing it won't be by the millionaires who got the tax cuts. Who are we borrowing the money from to finance the deficit? The Chinese. What will happen when the sources of credit are tapped out? It won't be pretty.

“… and tell ’em Big Mitch sent ya!”

Deja Vu, Again.

As I wrote here, the Congressional Research Service opined that the President's program of domestic spying was probably illegal.

The Washington Post reports today that the non-partisan CRS has done it again. Here's the lede:

The Bush administration appears to have violated the National Security Act by limiting its briefings about a warrantless domestic eavesdropping program to congressional leaders, according to a memo from Congress's research arm released yesterday.

The Congressional Research Service opinion said that the amended 1947 law requires President Bush to keep all members of the House and Senate intelligence committees "fully and currently informed" of such intelligence activities as the domestic surveillance effort.

You can read the entire story here.

NSA domestic spying program called illegal by CRS? Yeah, been there, heard that.

Elsewhere, recently de-classified documents reveals that completely apart from Joe Wilson, the intelligence community had concluded that Saddam was not going to get any uranium from Niger. Here's the article from the New York Times.

The report by the State Department's intelligence bureau was dated March 4, 2002, long before W made his notorious State of the Union speech.The memo was distributed at senior levels by the office of Secretary of State Colin L. Powell and by the Defense Intelligence Agency.

Proof that W knew that Saddam was not acquiring yellowcake from Niger? Nothing new; just more of the same.

How did the administration respond to this repeat revelation of its own mendacity?

"This matter was examined fully by the bipartisan Silberman-Robb commission, and the president acted on their broad recommendations to reform our intelligence apparatus," said Frederick Jones, a spokesman for the National Security Council.

Same bologna, different day.

Let's make this clear: the King George W conducted an illegal program of domestic spying, illegal because it was unauthorized, as well as illegal because he kept Congress in the dark. The President was lying us into war and trying to scare us into believing that Saddam had reconstituted a nuclear weapons program. The intelligence community did not get it wrong: au contraire -- Joe Wilson, the State Department, and other components knew that the Niger uranium supply was secure.

You've heard it all before.

“… and tell ’em Big Mitch sent ya!”

Scott McClellan: Spokesman of the Year. 1984.

Scott McClellan gave a rather odd White House briefing today. It would have made George Orwell proud. Here are some excerpts regarding Jack Abramoff, the convicted Republican operative, who, it has been learned, was meeting with staff in the White House.

Q Senate Democratic Leader Harry Reid and others sent a letter to the President today regarding Abramoff, asking for the President make public any contacts that he had with Abramoff, as well as senior administration officials; and any kind of benefits or access that they may have gained from this connection. They said, "The American people need to be assured that the White House is not for sale." Is there any plan for the President or the administration to make that information available?

MR. McCLELLAN: Well, this President expects everybody in his administration to adhere to the highest ethical standards. I've already talked to you all about this matter. If you have anything specific to bring to my attention, please do. But, remember, this is a guy who has admitted wrongdoing. He's being brought to justice by the Justice Department under this administration. And he's also someone where he and/or his clients contributed to both Democrats and Republicans. So I think that needs to be put in context, as well.

[Editor’s note: Horsepucky! Jack Abramoff gave not one thin dime to any Democrat. I suppose you can say that George W. Bush has sex with his wife and/or farm animals, but that would make you no better than Scott McClellan.]

Q So would the White House be open to complying with the Democrats' request to go ahead and provide that kind of information, the contacts Abramoff had with senior staff, that type of thing?

MR. McCLELLAN: Well, I've already indicated to you a general description of any contacts that were there.

Q Can you be more specific about the contacts with the senior staff? You said you were going to get back to us on that. Can you give us --

MR. McCLELLAN: I did check. There were a few staff-level meetings. As I indicated there were -- I think I previously indicated that he attended three Hanukkah receptions at the White House. It is actually only two Hanukkah receptions that he attended.

Q And the years?

MR. McCLELLAN: I think it was the earlier years, earlier 2000 -- early in the 2000 time period. I can double-check that. And so that's --

Q Specific staff? You were going to get back to us on the specific staff --

MR. McCLELLAN: Yes, my understanding from the check that we did was that there are just a few staff-level meetings in addition to those.

Q Who was in the staff meetings?

MR. McCLELLAN: I don't get into discussing staff-level meetings.

Q Why not?

MR. McCLELLAN: Well, if you got something to bring to my attention, Elisabeth, I'll be glad to look into it. If you've got something specific, I'll be glad to take a look into it.

Q Did he meet with Karl Rove, for example?

MR. McCLELLAN: We don't -- we don't ever tend to get into those staff-level meetings.


Q Scott, what was the subject matter when Jack Abramoff met with staff here?

MR. McCLELLAN: I'm sorry?

Q What was the subject --

MR. McCLELLAN: I just indicated earlier to Elisabeth's questions that we just don't get into discussing White House staff-level meetings. We never really have.

---

…

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Q Can you say who Mr. Abramoff was representing when he came in here?

MR. McCLELLAN: No. Again, we don't get into discussing staff-level meetings. If you have something specific to bring to my attention, I'll be glad to try to look into that. But I'm not aware of anything specific that you have.

Q What got him in the door here? How did he qualify for meetings here?

MR. McCLELLAN: Again, I checked on this. What I was asked is to go and check on this, and I did. And there were only a couple of holiday receptions that he attended, and then a few staff-level meetings on top of that. And that's the way I would describe it.

Now, what I can't do is go and say with absolute certainty that he did not have any other visits. We did a check at your request and what I have learned from that request is exactly what I am telling you.

Q Was it senior staff, at that level?

MR. McCLELLAN: I'm sorry?

Q Would you qualify it as senior staff that he met with here?

MR. McCLELLAN: I'm just saying staff-level meetings is the way I would describe it. And if you have anything specific, I'll be glad to take a look into it.

Q Well, we're counting on you for the specifics --

MR. McCLELLAN: Well, if there's any reason for me to check into it, please bring it to my attention.

Q He's pled guilty to some serious charges.

MR. McCLELLAN: And so are you insinuating something?

Q We're just trying to find out the facts.

MR. McCLELLAN: Well, if you've got something to bring to my attention, do so, and then I'll be glad to look into it.

Q Scott, that's not a fair burden to place on us. This is a guy who is a tainted lobbyist, and he has connections -- we want to know -- with whom in the White House. You shouldn't demand that we give you something specific to go check it out. I mean, this guy is radioactive in Washington. And he knows guys like Karl Rove. So did he meet with him or not?

MR. McCLELLAN: I know of nothing that --

Q Don't put it on us to bring something specific. It's a specific question about a specific individual.

Q Can you tell us if he met with Karl Rove?

MR. McCLELLAN: Because we don't discuss staff-level meetings --

Q Of course you do, whenever you want to discuss staff-level meetings. And if Karl Rove, who has ties to Ralph Reed, which he does, we want to know if he has ties to Jack Abramoff, and if they met --

MR. McCLELLAN: Well, I can answer that.

Q Oh, great. Well, before you said --

MR. McCLELLAN: No, I mean, about if he knows -- yes, he knows -- he knows Mr. Abramoff. They are both former heads of the College Republicans. That's how they got to know each other way back, I think it was in the early '80s. And my understanding is that Karl would describe it as more of a casual relationship, than a business relationship. That's what he has said.

But if you've got specific matters that I need to look into, it's my point that I think it's your obligation to bring that to my attention and I'll be glad to take a look into it.

Q Well, I don't --

MR. McCLELLAN: There's been no --

Q -- no, no, but I don't think it's our obligation to do anything. If we want to know whether there was pending business that Abramoff represented to members of the staff here at the White House, what do we need --

MR. McCLELLAN: There's been no suggestion of anything like that out of this White House.

Q -- some kind of an affidavit to bring you to --

MR. McCLELLAN: There's been no suggestion of anything like this in this White House.

Q I'm just asking. I'm not suggesting.

MR. McCLELLAN: No, you're insinuating.

Backwards, it is, thinks I. Thanks for the doubleplusgood prolofeed, Scott. You’re a heck of a goodthinker.

What I really found interesting is that Scott McClellan has taken to a new way of referring to the illegal wiretaps. He calls them “authorizations.”

In case you have been stuck in a well for the last month, the wiretaps were illegal precisely because they were not authorized.

Here we have the apotheosis of doublespeak, defined by Winston Smith, thuswise:

“To know and not to know, to be conscious of complete truthfulness while telling carefully constructed lies, to hold simultaneously two opinions which cancelled out, knowing them to be contradictory and believing in both of them, to use logic against logic, to repudiate morality while laying claim to it, to believe that democracy was impossible and that the Party was the guardian of democracy, to forget whatever it was necessary to forget, then to draw it back into memory again at the moment when it was needed, and then promptly to forget it again: and above all, to apply the same process to the process itself. That was the ultimate subtlety: consciously to induce unconsciousness, and then, once again, to become unconscious of the act of hypnosis you had just performed. Even to understand the word ‘doublethink’ involved the use of doublethink.”

“… and tell ’em Big Mitch sent ya!”

It's getting crowded in here.

When I first mentioned impeachment, I was a lonely voice in the wilderness and my opinion was attributed to "smoking crack." Since then, I have been documenting and welcoming others who have come around. Now it looks like we are going to have to make room for another 60+ million impeachment supporters in Big Mitch's Impeachment Crack House.

A new Zogby poll will be released tomorrow showing that by a 52% to 43% margin, Americans believe that Congress should consider impeaching George W. Bush if he wiretapped the people of this country without court approval, which King George W has admitted. The poll, with a margin of error of 2.9%, shows that 66% of Democrats, 59% of independents, and 23% of Republicans support impeachment for wiretapping. Majorities favored impeachment across the country: the East (54%), South (53%), and West (52%), Central states (50%).

Based on the number of voters in the last Presidential election, we're going to make room for just over 63 million folk in here.

If I understood Al Gore's speech last night, one of them is Bob Barr, who knows a thing or two about impeachment. He was, after all, the Congressman who first introduced an Inquiry of Impeachment against President Clinton. He’s also introduced the Defense of Marriage Act, while on his way to earning a consistent 100% rating from the Christian Coalition. He ran for President of the NRA, came in second, and he was named their Legislator of the Year. If we build a wing on this crack house, we may name it after him. How does: "The Bob Barr Extreme Right Wing of the Impeachment Crack House" sound?

We'll work on it.

“… and tell ’em Big Mitch sent ya!”

Chris Matthews vs. the Rule of Law

Chris Matthews let us know that he really doesn't expect that the President of the United States will obey the law.

Witness this exchange between Matthews and Russell Tice, the whistleblower who was one of the sources for the Risen exposé of the President's illegal domestic spying scandal.

MATTHEWS: We're under attack on 9/11. A couple of days after that, if I were president ... and somebody said we had the ability to check on all the conversations going on between here and Hamburg, Germany, where all the al Qaeda people are or somewhere in Saudi ... and we could mine some of that information by just looking for some key words ... I'd do it.

TICE: Well, you'd be breaking the law.

MATTHEWS: Yes. Well, maybe that's part of the job.

All of which made me think back to last summer, when I wrote the following previously un-published post:

---

Chris Matthews, who recently announced that he voted for George W. Bush, allowed his partisanship to show again. He is now such a thoroughly dyed-in-the-wool Republican that he has become an apologist for Nixon’s most despicable traits.

On June 7th, in a segment about the revelation of Deep Throat’s identity, Andrea Mitchell read a transcribed snippet from an October 1972 conversation in the Oval Office. The subject is Woodward and Bernstein’s source, and the speculation is that Deep Throat is W. Mark Felt. Suddenly, apropos to nothing in particular, the President asks:

Nixon: Is he a Catholic?
Haldeman: Jewish.
Nixon: Christ! Put a Jew in there?
Haldeman: Well that could explain it, too.

Andrea Mitchell continues, “Does that give you a sense of how ugly things were in the Oval Office back then when they did not remember that they were being recorded, Chris?”

Okay, it’s not really news that Nixon was an anti-Semitic S.O.B. But here’s where it gets wacky.

MATTHEWS: Yes, I know. And by the way, if you really study the tapes --I‘ve spent a lot of time with them—the worst possible influence in Richard Nixon, when it came to that ethnic stuff, was Bob Halderman. He always seemed to lead him into the ugly stuff, all the time when you go into those transcripts.

I don’t know what prompted Matthews to say this, but in this particular case, “Nixon’s The One” who played the anti-Semitic card.

The extreme right is completely out of touch with reality, or, worse, it is intent on creating a new (dare I say) faith-based reality to replace the fact based historical record. In this new reality, Nixon is a hero to be revered, not a criminal who committed crimes in the Oval Office including waging a secret war in Cambodia. Governor Schwartzenegger, who rose to power by overturning a democratic election, gave us a first taste of this with his speech at the 2004 Republican national convention. Chris Matthews has closed ranks with these anti-democratic forces.

How could the former Peace Corps volunteer, and Tip O’Neill staffer have gone so far around the bend? Well, Deep Throat advised journalists to “follow the money.” Matthews must have thought that the advice was to change your views to grab the largest audience.

I would tell you what I think that makes Chris Matthews, but I might offend the street-walking sex workers of the world.

---

“… and tell ’em Big Mitch sent ya!”

What do Pat Buchanan and James Dobson agree on?

On Jan 4th, I reported that Pat Buchanan called the Conservative movement "a racket." Now it seems that others on the right are waking up to the fact that they are being played by the Republicans.

You can listen here to Focus on the Family founder and chairman James C. Dobson calling it the way he sees it on his weekly radio show:

DOBSON: I wish the -- not only the Democrats -- but the Republicans would -- begin to take stock of what they're doing to the family. You know, it's been over a year now since the presidential election and Republicans have been in power in the House and the Senate and in the White House, and there is very, very little along the lines of what we're talking about to show for it. There's very little that has been accomplished that relates to social -- conservative social issues: the pro-family agenda; the pro-moral agenda; the sanctity of life. There's just nothing going on, and I know there are a lot of people out there that are pretty irritated at both parties, frankly, for that.

Tip of the hat to Media Matters for pointing that out.

"... tell 'rm Big Mitch sent ya!"

Where are they today?

According to the Washington Post,

President Bush declared [Friday] that a nuclear-armed Iran would pose "a grave threat to the security of the world" as he tried to rally support from other major powers for U.N. Security Council action unless a defiant Tehran abandons any aspirations for nuclear weapons.

Predictably, the Iranians are claiming that they are engaged in nuclear research for peaceful purposes. Iran has a civilian nuclear program, stretching from the mining of uranium to its enrichment to constructing a power reactor. It also has a "right" to peaceful nuclear activities under Articles 1 and 4 of the Nuclear Non-proliferation Treaty, subject to IAEA inspections.

Dick Cheney has been making the case that Iran is seeking nuclear weapons capabilities. "They're already sitting on an awful lot of oil and gas. Nobody can figure why they need nuclear as well to generate energy."

If only there were an html tag that would make the screen go all squigley like a TV screen just before the flashback begins.

In 1975, President Gerald R. Ford proposed to sell nuclear technology to the Iranians according to a declassified National Security Decision Memorandum, signed by Henry Kissinger. Iran was ruled by a Shah, and he convincingly made the case that oil was too valuable to waste on daily energy needs. The Ford strategy paper said the "introduction of nuclear power will both provide for the growing needs of Iran's economy and free remaining oil reserves for export or conversion to petrochemicals."

President Ford signed a directive in 1976 offering Tehran the chance to buy and operate a U.S.-built reprocessing facility for extracting plutonium from nuclear reactor fuel. It was a 6.4 billion-dollar deal that would have benefited principally two companies, Westinghouse and General Electric, and it would have resulted in Tehran having control of large quantities of plutonium and enriched uranium.

The deal was for a complete “nuclear fuel cycle” -- reactors powered by and regenerating fissile materials on a self-sustaining basis. That is precisely the ability the current administration is now trying to prevent Iran from acquiring today. President Ford’s chief of staff at the time was a man named Dick Cheney.

Of course, we know that Cheney went on to become the CEO of Halliburton. During the 1990’s, Halliburton paid out more than $3 million in fines for selling Libya nuclear detonator devices, which violated a U.S. trade embargo imposed on Libya because of that country's ties to terrorism. More recently, Halliburton sold an Iranian oil development company key components for a nuclear reactor, according to Halliburton sources, as reported here last August.

Fate was not so kind to the Shah. When he was deposed, the deal fell through.

In 1975, President Ford's Secretary of Defense was a man named Donald Rumsfield. Paul Wolfowitz was responsible for nonproliferation at the Arms Control and Disarmament Agency.

If you are wondering why this story is not getting widespread attention, ask yourself, Where are they today? Westinghouse changed its name to CBS in 1997. General Electric acquired NBC in 1985 and in 1989 it formed CNBC. In 1996 it launched MS-NBC.

“… and tell ’em Big Mitch sent ya!”

Welcome Arlen; meet Elizabeth. I believe you already know Larry and the others.

“[Arlen Specter (R-PA)] chairman of the Senate Judiciary Committee expressed new doubts today about President Bush's domestic surveillance program, even mentioning impeachment as one of several potential remedies, should the president be found to have violated the law.” (From the New York Times)

Everyone wants the government to do everything that is legal to protect against terrorists. But that doesn't mean that the President is above the law. This is about respect for (or at least adherence to) the law. If the President won't obey the law, what's a Congress to do?

Can you say impeachment?

“… and tell ’em Big Mitch sent ya!”

Welcome to the crack house, Elizabeth Holtzman.

My friends think that I am either crazy or dreaming that George Bush is going to be impeached. Of course, I could be both. In fact, I may be crazy, I may be dreaming, and my dream of impeachment may come true. As I reported, it has been suggested that I must be smoking crack to believe that. (See, comments to "Treason, Bribery, High Crimes and Misdemeanors".)

I realize that impeachment is a political question, but you can't even ask the political question, unless there is a legal basis for impeachment. Enter Elizabeth Holtzman.

Readers of a certain age will remember Elizabeth Holtzman as a congresswoman who played a key role during the Nixon impeachment. During the impeachment of President Clinton, she testified to the Senate Judiciary Committee on behalf of the White House and reminded the committee of the abuses of power that brought down Nixon. Now she has published a legal brief in the The Nation in which she makes a compelling case that George Bush must be removed from office.

You know, with the Congressional Research Service, Professor Laurence Tribe and thirteen other legal scholars including a former Chief Judge who just happened to have been the Director of the FBI, as well as the Editors of Barron's Magazine we could have a hell of a party in here.

“… and tell ’em Big Mitch sent ya!”

REQUISCAT IN PACE ...

William Bryson.

Horsefeathers vs. Poppycock: Constitutional scholars weigh in.

King George W's domestic spying program has been defended by his Department of Justice attorneys. I described the defense as "horsefeathers," and later, I learned that Laurence Tribe, asserts that the technical term is actually "poppycock." There is new information which bears on the "horsefeathers" vs. "poppycock" controversy.

In a December 22nd letter to the Senate Select Committee on Intelligence, Assistant Attorney General William E. Moschella wrote that the "President determined it was necessary following September 11 to create an early warning detection system. FISA could not have provided the speed and agility required for the early warning detection system."

Today, we learned from Truthout.org that:

The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.

Even more significantly, a group of 14 legal scholars have disputed Moschella's legal analysis, saying in a letter just sent to Congress that the White House failed to identify "any plausible legal authority for such surveillance."

Who is this gang of 14? The usual assortment of deans of law schools, former counsellors to the president, with a former Director of the FBI thrown in for good measure. Here's the complete list:

Curtis Bradley, Duke Law School, former Counselor on International Law in the State Department Legal Adviser's Office

David Cole, Georgetown University Law Center

Walter Dellinger, Duke Law School, former Deputy Assistant Attorney General, Office of Legal Counsel and Acting Solicitor General

Ronald Dworkin, NYU Law School

Richard Epstein, University of Chicago Law School, Senior Fellow, Hoover Institution

Philip B. Heymann, Harvard Law School, former Deputy Attorney General

Harold Hongju Koh, Dean, Yale Law School, former Assistant Secretary of State for Democracy, Human Rights and Labor, former Attorney-Adviser, Office of Legal Counsel, DOJ

Martin Lederman, Georgetown University Law Center, former Attorney-Adviser, Office of Legal Counsel, DOJ

Beth Nolan, former Counsel to the President and Deputy Assistant Attorney General, Office of Legal Counsel

William S. Sessions, former Director, FBI, former Chief United States District Judge

Geoffrey Stone, Professor of Law and former Provost, University of Chicago

Kathleen Sullivan, Professor and former Dean, Stanford Law School

Laurence H. Tribe, Harvard Law School

William Van Alstyne, William & Mary Law School, former Justice Department attorney

Their very detailed legal analysis leaves no doubt that the President's conduct was illegal, but they ducked the whole the "horsefeathers" vs. "poppycock" controversy. I suggest we let Princeton Professor Harry G. Frankfurt cast a deciding vote.

“… and tell ’em Big Mitch sent ya!”

A Talmudic question for Democrats

Orin Hatch says that he has searched all of the materials available to him and found no evidence that Sam Alito was actually a member of CAP. I assume that Alito was speaking the truth when he said he was a member of this despicable organization, but you never know with Republicans. The point that Hatch was trying to make is that Alito must have been a member, but not a very active one.

Now the Republicans have another tact. Lindsey Graham asked Alito directly, “Are you a closet bigot?” to which Alito, bravely offered, “I am not any kind of a bigot.” Graham then wrung his hands and poured out his heart about how “sorry” he was that Alito would have to endure the innuendo.

The right wing chattering chorus picked it up from there. For example: On Court TV, Stuart Taylor, columnist for the National Journal, (Princeton 1970) put it this way:

Every person who has testified about Alito, the ABA, liberals, conservatives, every person who has spoken to any newspaper or television station about Alito -- hundreds and hundreds of people have testified about every corner of his life or spoke in public about if for months – and there isn’t a grain of evidence anywhere that there is a grain of rascism and sexism in the man.

To which I say, “Fiddle-faddle!”

The National Association of Women Lawyers ("NAWL"), Committee for the Evaluation of Supreme Court Nominees, has evaluated Judge Samuel Alito for the position of Associate Justice of the Supreme Court of the United States. The Committee has determined that Judge Alito is not qualified to serve on the Court from the perspective of laws and decisions regarding women's rights or that have a special impact on women.


You can disagree with NAWL or not: that’s not the point. The point is that it is too late in the day to argue that Alito is beyond reproach when it comes to his attitudes towards women. Sure, he didn’t verbally harass a co-worker or make a joke about finding a pubic hair in a can of Coca-Cola, (not that that would disqualify him in the eyes of Republicans.) But the jurisprudence of Sam Alito is extremely hostile to women. If that isn’t sexism, I don’t know what is.

I can go down the line and point to the many decisions of Sam Alito that are hostile to the rights and interests of women, and minorities. Together they constitute good and sufficient reason for opposing Alito. Add in the fact that he is clearly less than candid in his conversation about CAP. Throw in his extremist view of Presidential power.

Sure, his confirmation is a foregone conclusion. Of course, the only way to stop it would be to filibuster. Yes, there is a risk of the nuclear option. But ask yourself this: WWHD?

That stands for What Would Hillel Do? He’s the Rabbi in the Talmud who asked,

“If not now, when?"

“… and tell them ’em Big Mitch sent ya!”

Put a CAP on the Alito nomination.

I am going to go out on a limb here and guess that not many of my faithful readers have also read Orin Hatch's Square Peg. I was able to find excerpts on Meridian; the place where Latter Day Saints Gather.

William Rehnquist, as you recall was appointed to the Court in 1972 by Nixon, and when Burger retired as Chief Justice, Reagan nominated Rehnquist to replace him. Here's Hatch's take on an issue that arose during the confirmation hearing:

The deed for Justice Rehnquist’s vacation home in Vermont contained a restrictive covenant precluding sale to Jews. Similarly a property the justice had once owned in Arizona forbade the sale of the land to someone other than a Caucasian. No one asserted that Mr. Rehnquist had requested that these covenants be included in the deeds. No one claimed he even knew about them. In fact, he did not. Nonetheless, the implication was made that he must implicitly agree with their prohibitions, because he had not had them expunged.

(Hatch also recounts that "there were bitter fights over nominations for positions such as the Assistant Secretary of Labor for Mine Safety and Health," but in fairness to Hatch, he wrote that before Bush's appointment of incompetent cronies resulted in so many unnecessary deaths in New Orleans and West Virginia.)

I remember the Rehnquist/restrictive covenant controversy somewhat. My response at the time was to resign my membership in the Rotary Club because in those days, it excluded women. Of course, I knew that the Rotarians were not a misogynist organization devoted to keeping women in their place. One of my heroes was a Rotarian, but I knew the importance of symbolism. I didn't want anyone to later say that I belonged to a discriminatory organization. But, hey, that's just me.

People who know Judge Alito, may look at me and say, "I knew Sam Alito; I worked with Sam Alito; and you, Sir, are no Sam Alito."

They're right. Which is why if even a knucklehead like me can figure out that it's not good to belong to a nominally discriminatory organization, can't we expect a little more from our next Supreme Court nominee?

Let's be clear about what happened. In Let the confirmation games begin, I wrote,

First you get him to say what he thinks people want to hear. This is easy, because he’s that kind of a guy. Trust me on this; I’ve seen the type before.

This is exactly what happened in 1985 when Alito was an assistant to the solicitor general. He wanted to move up, and so he applied for a promotion within the Reagan administration. Trying to prove up the idea that he was a guy who would fit in with the Reagan boys, he claimed membership in Concerned Alumni of Princeton (CAP).

In 1983, CAP published an essay entitled, In Defense of Elitism, which lamented the 'fact' that:

"People nowadays just don't seem to know their place. Everywhere one turns, blacks and Hispanics are demanding jobs simply because they're black and Hispanic. The physically handicapped are trying to gain equal representation in professional sports. And homosexuals are demanding the government vouchsafe them the right to bear children."

The question some may ask is why, when this well-publicized article was published two years earlier didn't Sam Alito resign from this abhorrent organization, and, worse, why was he still touting his membership in it as if it were something to be proud of? If someone asks you this question, just tell 'em:

I know Big Mitch; I've read Big Mitch's blog; and you, Sam Alito, are no Big Mitch!

“... and tell ’em Big Mitch sent ya!”

The right to privacy, and the rights to privacy.

You don’t have to be a Constitutional law expert to know that there is a controversy about whether or not the Constitution guarantees to women the right to have an abortion. It all goes back to a Supreme Court decision called Griswald.

It seems hard to believe that there was a time when contraception was illegal, even for married couples, but such was the state of the law in Connecticut, in 1965. Griswald v Connecticut, decided in that year, involves a clinic that performed medical examinations, advised on birth control and distributed birth control devices.

William O. Douglass wrote the opinion of the Court which found

“that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers ‘in any house’ in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the ‘right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’ The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.’”

Justice Douglass took care to distinguish the right to privacy that governed the ruling in that case, from the 4th Amendment right to be free from unreasonable searches. Basically, the right to privacy at the core of the Griswald case is “the right to be left alone.”

In 1972, the Eisenstadt case extended the ruling of Griswald to protect access of unmarried couples to birth control. Justice Brennan writing for the majority said,

“If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child.”

In 2003, the Supreme Court recognized that intimate consensual sexual conduct was part of the liberty protected by substantive due process under the Fourteenth Amendment, in a case that struck down Texas anti-sodomy laws. In Alaska, the right to privacy is explicit in the Constitution, and courts have interpreted it to include the right of a student to have long hair, and the right to possess marijuana for non-commercial purposes in the home.

At this point your eyes may be glazing over and you may be wondering why all of this matters. Here’s the answer: Because Roe v Wade is rooted in the right to privacy. The decision, which should be read by everyone, holds:

“This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy.”

(Incidentally, for those who are fans of the Original Intent of the Framers of the Constitution, Roe v Wade documents the fact that at the time the framers were doing their framing, abortions were legal.)

What got me thinking about this was the confirmation hearings of Sam Alito. When he was asked if there is a right to privacy in the Constitution, this is how he replied:

“I do agree that the Constitution protects a right to privacy. And it protects the right to privacy in a number of ways. The Fourth Amendment certainly speaks to the right of privacy. People have a right to privacy in their homes and in their papers and in their persons. And the standard for whether something is a search is whether there’s an invasion of a right to privacy, a legitimate expectation of privacy.”

Cute, Sam, but I don’t think you get it. That’s not the Griswald right to privacy. As Justice Lousis Brandeis said,

“The makers of the Constitution conferred the most comprehensive of rights and the right most valued by all civilized men—the right to be let alone.”

If you believe that a woman should have control of her own body, or that freedom means more than nothing left to lose; if you believe that you should be able to love whomever you want, or dress up like a ballerina while making love to your wife; if you feel like the government shouldn’t be able to keep tabs on you because, well, just because; if you feel that you should be allowed to live your own life the way you see fit as long as you don’t hurt others; if you believe that what makes America great is that we respect the rights of individuals, then Sam Alito’s answer should scare the daylights out of you.

And yet, you must give the man his due. He said it with such a reassuring tone, that you might have been misled into believing that this man will protect your rights. That’s what he wants you to think. Don’t fall for it.

“… and tell ‘em Big Mitch sent ya!”

Big Mitch gets slapped down by Laurence Tribe.

On January 2, 2006, I wrote The President and Article II of the Constitution, in which I called the President’s defense of the program of domestic spying “horsefeathers.” Today, I received a correction from America’s pre-eminent scholar of Constitutional Law, Laurence Tribe, by way of Congressman John Conyers.

Speaking of the Administration’s defense of its own illegal conduct, Professor Tribe states: “The technical legal term for that is, I believe, poppycock.”

Thanks for the correction, Larry.

You can read Professor Tribe’s letter to John Conyers here, but if you want to skip to the bottom line here it is:

“The inescapable conclusion is that the AUMF did not implicitly authorize what the FISA expressly prohibited. It follows that the presidential program of surveillance at issue here is a violation of the separation of powers -- as grave an abuse of executive authority as I can recall ever having studied.”

“…and tell ’em Big Mitch sent ya!”

Lessons from yesteryear.

I am not the first ex-hippy to remark that if you remember the ’60’s, then you didn’t experience them. Well, I experienced them a little and I remember a little. Back in the day, (note smooth transition to contemporary linguistic formulations) I was a poli-sci major. I remember three things about political science.

The first lesson was brought home to me by Dr. Dukemejian, who had been a refugee from Communist oppression. The word ‘fascist’ may have been often used loosely in the 60’s, but never by Dr. Duke. He taught me that it was that the hallmark of a fascist regime is to say, “If you are not with us, you are against us.”

It was due to this lesson that I shuttered and shivered when I heard W say, "You're either with us or against us in the fight against terror" on Nov. 6, 2001. It was early enough in his reign that we did not know how fascistic were the inclinations of King George W. We only knew that he ascended to power after losing the popular vote and then convincing a Supreme Court previously known for expanding States’ rights that it should over-rule the Supreme Court of Florida to prevent the counting of votes in that state.

Many had assumed that after such a long, strange trip, W would try to govern from the center. They had misunderestimated him again. Instead, he undertook a program to consolidate power in the White House to an extent never seen before. In retrospect, we can see that Dick Cheney, (the Edgar Bergen to W’s Charley McCarthy) was still smarting about the aftermath of Watergate, which he had experienced as Gerald Ford’s chief of staff. One can almost hear him saying, in the words and manner of Scarlett O’Hara:

As God is my witness, as God is my witness they're not going to lick me. I'm going to live through this and when it's all over, I'll never be power-hungry again. No, nor any of my folk. If I have to lie, steal, cheat or kill. As God is my witness, I'll never be hungry for power again.

There are many examples of W’s unilateral power grab, such as the withdrawal from the ABM treaty and the Kyoto Protocol, and the decision to fire up funding for Star Wars. Domestically he put a hold on all rules passed in the final days of the Clinton administration, and then issued an executive order establishing an “Office of Faith-Based Initiatives,” as if his fingers had been crossed when he promised to be a “uniter, not a divider.”

Less than a month later, President Bush issued a series of executive orders, all on the same day, designed to undercut the authority of organized labor, a poke in the eye of his opposition. His most visible domestic policy initiative, (portrayed in the media as the president actually reading a book) was his decision to unilaterally limit federal funding for embryonic stem cell research, and then only on lines that were in existence at the time of his decision. After 9-11 it was Katie-bar-the-door when it came to what the Chief Executive could execute.

Which brings me to the second thing I learned about political science from the ’60’s.

According to Richard Neustadt, a pre-eminent authority of executive authority: “Presidential power is the power to persuade.” If you are going to pitch that philosophy to the Bushies, you might as well wear bell-bottom jeans, tie-dyed t-shirts, platform shoes and a doped up grin. They are not going to take you seriously, anyway.

To the minions of King George W, the title of “President” is all one needs to rule, and Congress be damned. That whole ‘checks and balance’ thing is just so Summer of Love.

I’ll write more about W’s extremist take on Presidential power in a separate note, because I believe it is as important today as was the Stamp Act was in the 1770’s. At this time, suffice it to say, the philosophy of a "unitary executive branch," embraced by W and Sam Alito is despotism in drag.

But I want to mention the third lesson of Political Science from the ’60’s.

The lesson is that if people rise up and take to the streets, we can stop tyranny. We can stop an unjust war that we were lied into. We can bring down a President who has no respect for the law. We can shape the zeitgeist so that it reflects, not fear and selfishness, but rather shared responsibility for peace, for the environment and for the direction of history.

In the 60’s, and the early ’70’s, many took their wisdom from Eastern philosophers. I still feel the Tug of a lesson taught to me by an influential Yogi in 1972:

“You gotta believe!”

... and tell ’em Big Mitch sent ya!

Let the confirmation games begin!

Democrats seem to be drawn to unwinnable battles the way moths are drawn to flames. And so, as if to prove my Democratic bona fides, I hereby join the good fight to stop Judge Samuel Alito. It may seem like an impossible dream, but politics are all about the art of the possible.

I note with interest that the Confirmation hearings are scheduled to begin on Monday, and according to NBC evening news, the pro-confirmation forces are expected to bring witnesses on his behalf including sitting Federal judges. I wonder what Sam Alito thinks of that, especially in light of the Code of Judicial Responsibility, which states:

Canon 7. A Judge Shall Refrain From Political Activity
A. A judge shall not:
...
(2) make speeches for a political organization or candidate or publicly endorse a candidate for public office;
...
C. A judge shall not otherwise engage in any political activity.

What if Democrats want to respond in kind, and present sitting federal judges to oppose Alito? (Surely there is still someone left on the Federal bench who believes that a woman should have a legal right to control her own body.) Well, I am sure you would want to be an appellate judge whose decisions are to be reviewed by someone you testified against.

What really matters is what will Sam Alito say. Bear in mind this is a guy whose defense to saying regrettable things in the past was, “Hey, I only said that to get a job!”

Now, here’s how it works. First you get him to say what he thinks people want to hear. This is easy, because he’s that kind of a guy. Trust me on this; I’ve seen the type before.

Then, get him talking about the separation of power doctrine. It’s a safe bet that he’s going to be in favor of it, by which I mean he will say he’s in favor of it. Actually, he is so incredibly out of the mainstream on this that if his views are fairly presented the public will have none of it. You can read all about it here.

Sam Alito is the genius who thought up Presidential signing statements of the sort I wrote about in Bush to Congress: Drop Dead!

At the time I wrote that, I was focused on the torture issue, but the President thumbed his nose at Congress on a variety of issues. To the right is the picture of him thumbing his nose, as it subsequently appeared on Huffington Post.

Here is another quote from the signing statement:

The executive branch shall construe section 8104, relating to integration of foreign intelligence information, in a manner consistent with the President's constitutional authority as Commander in Chief, including for the conduct of intelligence operations, and to supervise the unitary executive branch. Also, the executive branch shall construe sections 8106 and 8119 of the Act, which purport to prohibit the President from altering command and control relationships within the Armed Forces, as advisory, as any other construction would be inconsistent with the constitutional grant to the President of the authority of Commander in Chief.

Translation: King George W’s attitude to laws passed by Congess is more or less like the attitude of Captain Barbossa in Pirates of the Caribbean regarding the Pirate Code:

“They’re more like guidelines”

That’s scary enough. But wait! There's more. The trick is to ask Judge Alito (after he has sung a tune about the genius of the founders vis a vis separation of powers) what he thinks about the persuasive authority of these executive signing statements. He can be questioned based upon his paper trail regarding these. There’s the chance that he will tell a fib, and that’s one way that he can shoot himself in the foot. (Oh, please, God!) The other way is that he will say something like he has in the past, generally to the effect that executive intent is co-equal to legislative intent. The legislature will not be content with this.

With the domestic spying scandal moving along, and this, there is a real possibility that someone is going to bring up the fact that the strong executive that he envisions is so far from what the founders had in mind, that he will have to forfeit all claim to being a strict constructionist.

Who knows? Maybe the pendulum will swing away from this crazy view of the limits of presidential power embraced by King George W. Maybe Sam Alito’s big contribution to the development of Constitutional law will occur in his confirmation hearings. Maybe they will be non-confirmation hearings.

We can only hope. The thing that will tell us that we have a chance is if there is any extended discussion about the concept of the “unitary executive branch.” Keep watching for this.

”… and tell ‘em Big Mitch sent ya!”

Who knows what evil lurks in the heart of the administration? The CRS does!

Ever since my friends told me that I was losing credibility every time I called W a lying sack of you-know-what, I have been struggling to find my voice. I want something with a tinge of sarcasm, but still with some authority to it. And of course, some humor.

Last week I published The President and Article II of the Constitution, in which I dissected Assistant Attorney General William E. Moschella’s lame defense of King George W’s program of domestic spying. I said it was horsefeathers and called it "pernicious."

Since my publication of “The President and Article II of the Constitution,” the Congressional Research Service published a 44 page analysis of the same weak defense of W's use of the NSA. Its analysis and arguments are similar to mine in many respects. Here is the conclusion of the C.R.S. report:

From the foregoing analysis, it appears unlikely that a court would hold that Congress has expressly or impliedly authorized the NSA electronic surveillance operations here under discussion, and it would likewise appear that, to the extent that those surveillances fall within the definition of “electronic surveillance” within the meaning of FISA or any activity regulated under Title III, Congress intended to cover the entire field with these statutes. To the extent that the NSA activity is not permitted by some reading of Title III or FISA, it may represent an exercise of presidential power at its lowest ebb, in which case exclusive presidential control is sustainable only by “disabling Congress from acting upon the subject.” While courts have generally accepted that the President has the power to conduct domestic electronic surveillance within the United States inside the constraints of the Fourth Amendment, no court has held squarely that the Constitution disables the Congress from endeavoring to set limits on that power. To the contrary, the Supreme Court has stated that Congress does indeed have power to regulate domestic surveillance, and has not ruled on the extent to which Congress can act with respect to electronic surveillance to collect foreign intelligence information. Given such uncertainty, the Administration’s legal justification, as presented in the summary analysis from the Office of Legislative Affairs, does not seem to be as well-grounded as the tenor of that letter suggests.

I especially like the last sentence, which I interpret that to mean, Wipe that smirk off your face, Chimp! You're getting impeached!

To the Congressional Research Service: "Welcome Aboard!"

"... and tell 'em Big Mitch sent ya!"

Pat Buchanan: The Conservative movement is "a racket."

Here's a direct quote from arch-conservative Pat Buchanan:

"Eric Hoffer, the longshoreman philosopher said 'Every great cause evolves into a business, and then it degenerates into a racket.' And that's what has happened to our movement -- the Conservative movement. It came with Goldwater; it was full of passion and ideas. It culminated in the Reagan White House and now it's everybody get it while you can and we're here, we're the power now and we're behaving now -- it's like Orwell's Animal Farm. You remember at the end? The pigs and the farmers were playing cards, wrestling on the floor. You couldn't tell one from the other. That's exactly what's happened to the Conservative movement."

You heard it here first. Unless you were watching The Situation with Tucker Carlson this evening.

... and tell 'em Big Mitch sent ya!"

Presidential Power

The New York Times Magazine section will publish an important article on Jan. 8, 2006. Written by Noah Feldman, NYU law professor, and entitled, Our Presidential Era: Who Can Check the President? it documents the rise of presidential power from the beginning of the Republic to today. The argument presented so persuasively is that:

For better or worse, though, this is not the system envisioned by the framers of the Constitution. The framers meant for the legislative branch to be the most important actor in the federal government: Congress was to make the laws and the president was empowered only to execute them. The very essence of a republic was that it would be governed through a deliberative legislature, composed carefully to reflect both popular will and elite limits on that will. The framers would no sooner have been governed by a democratically elected president than by a king who got his job through royal succession.

Professor Feldman explains that the present administration has “gone too far” in its usurpation of power. He is sanguine about the Supreme Court’s willingness to reign in this president, especially if Sam Alito ascends to Justice O’Connor’s seat. After all, “Two decades ago, as a deputy assistant attorney general, Alito argued in a memo that the president should issue "signing statements" when approving legislation - an effort to give the president influence over the courts' power to say what the laws mean.” See, Bush to Congress: “Drop Dead! infra.

If the courts won’t bring a halt to the President’s runaway power grab, who will? Professor Feldman lays out a series of steps that Congress can take to reverse the trend. His conclusion bears repetition:

No court alone can do the job of protecting liberty from the exercise of executive power. For that most important of tasks, the people's elected representatives need to be actively involved. When we let them abdicate this role, the violations start to multiply, and we get the secret surveillance and the classified renditions and the unnamed torture that we all recognize as un-American. Our Constitution has changed enormously over the last two centuries, and it is sure to change much more in the future. Just how it changes, though, is up to us.

Thank you, Professor Feldman.

”… and tell ‘em Big Mitch sent ya!”

Bush to Congress: "Drop Dead!"

We recently witnessed a national debate on the propriety of using torture. On one side was Darth Cheney, advocating for torture, backed by Attorney General Alberto Gonzales, of “Geneva Convention is quaint” fame. On the other side was the civilized world, in this case represented by John McCain.

The Bushies argued that torture had made McCain’s mind a little soft when they were running against him in 2000, but they dropped that line of attack in the debate on the McCain Amendment.

The McCain Amendment categorically prohibited cruel, inhuman and degrading treatment of detainees by all U.S. personnel, anywhere in the world. The Administration publicly dropped its opposition when it read the writing on the wall. Rather than go down in ignominious defeat, it withdrew tactfully and tactically. The Amendment was tacked onto the H.R. 2863, “Department of Defense, Emergency Supplemental Appropriations to Address Hurricanes in the Gulf of Mexico, and Pandemic Influenza Act, 2006.”

W signed this bill into law on Friday, December 30th. The signing ceremony was not widely covered in the news, perhaps because the 4th Estate was busy compiling their “Top Ten Celebrity Break-up” lists. Be that as it may, King George W’s signing message is a thing to behold. Here’s what the Chimp in Chief said:

“The executive branch shall construe Title X in Division A of the Act, relating to detainees, in a manner consistent with the constitutional authority of the President to supervise the unitary executive branch and as Commander in Chief and consistent with the constitutional limitations on the judicial power, which will assist in achieving the shared objective of the Congress and the President, evidenced in Title X, of protecting the American people from further terrorist attacks.”

Over on Balkinization Marty Lederman translated the preceding thus: "I reserve the constitutional right to waterboard when it will 'assist' in protecting the American people from terrorist attacks."

Will the Congress take this lying down or will they rise up and do their duty? Stay tuned.

”… and tell ‘em Big Mitch sent ya!”

Corruption, by the numbers.

"Casino Jack" Abramoff, Michael Scanlon and Randy (“Duke”) Cunningham have pled guilty to corruption charges. Tom (“the Hammer”) DeLay and Lewis (“Scooter”) Libby have been indicted. Bill Frist is under investigation by the SEC and the Department of Justice for insider trading.

Steve Safavian was arrested by the FBI while working in the White House. Ken Tomlison and Patricia Harrison are being probed for violating the Public Broadcasting Act. Denny Hastert is being probed for accepting money from Turkey.

The Vice-Chair of the Massachusetts G.O.P. was arrested for laundering drug money, and Mitt Romney (Governor and Presidential aspirant) has a good old-fashioned payola scandal brewing. He gave a $10,000 contract to conservative Boston Herald columnist to write columns supportive of Romney’s policies.

Chuck McGee, former Exec. Director of the Republican Party in Vermont and Allen Raymond pled guilty to conspiracy to suppress Democrat’s votes. Bob Taft, Gov. of Ohio was convicted of misusing state funds.

Spokane Mayor Jim West abused his office to obtain sexual favors and solicited sex over the internet from underage males.

And that’s not to mention Karl Rove.

When a CBS/Times poll asked Americans which party has higher ethical standards, 34 percent said the Republicans.

How is this possible? Do the math.

There were 121,480,019 voters in the last Presidential election. Suppose that P.T. Barnum is correct. That would mean that there were 41,303,206 suckers under the age of 80. The ratio of suckers under the age of 80 to voters is 34%.

Coincidence? Perhaps not.

"…and tell ‘em Big Mitch sent ya!”

P.S. For a state-by-state list of Republican corruption check out WayneMadsenReports.