Topic: Chasing the Zeitgeist
Storm Warnings: Rough Weather Ahead
Wednesday morning, December 28th, Bob Patterson, the Just Above Sunset correspondent who writes the World's Laziest Journalist and Book Wrangler columns each week, sent a quick email - "Check out the top stories on Smirking Chimp this morning - it's beginning to sound like a lynch mob."
It did, but with a name like "Smirking Chimp" you would expect impeachment was in the air there. That's not a very respectful way to refer to the president, and the site is what could be called an aggregator - they provide links to and text from comments all over the web and in the newspapers and magazines, all critical of the administration, relying on the Fair Use Doctrine to keep them out of copyright trouble. They recently reposted two of Bob's columns, without asking permission, but who would protest? They drive traffic to Just Above Sunset. No problem. But they are a bit one-sided. You don't get a lot of careful analysis there. You get rants, some clever, many angry, and few with much depth. It's a bit of an echo chamber.
What seemed to catch Bob's eye was Wednesday's collection, with things like Chris Floyd in Empire Burlesque offering Clowntime Is Over: The Last Stand Of The American Republic, James Ridgeway in Village Voice offering Bush Impeachment Not Out Of The Question, Claudia Long in The Great Divide offering Big Brother on Steroids, Ruth Conniff in The Progressive with Impeachment Buzz, Reg Henry in the Pittsburgh Post-Gazette with It's Good to be King George, and one cited everywhere, Thomas G. Donlan in Barron's, of all places, saying The pursuit of terrorism does not authorize the president to make up new laws. That was odd. But there was the expected too - Katrina vanden Heuvel, editor of The Nation, with The I-word is Gaining Ground, and Bill Gallagher with King George Dismisses Constitution, Tramples on Rights of all Americans. And Jerry Mazza offered Patience, Mr. Bush? How About Impeachment, Now?
That's the lynch mob.
Well, last week the New York Times revealed the president had ordered the National Security Agency to wiretap the foreign calls of American citizens without seeking court permission, as required by the Foreign Intelligence Surveillance Act (FISA), passed by Congress in 1978. He said he had, in effect, broken the law, and wasn't going to stop. He was keeping us safe, and anyway, the law didn't apply to him for a number of reasons.
Some see that as dangerous. Others see that as necessary - sometimes you need an "above any law" somewhat dictatorial leader to keep us all alive.
And of course there's the other lynch mob. At the media aggregator Crooks and Liars you can watch a clip from Fox News here - Brit Hume filling in for Neil Cavuto asking John Podhoretz if the New York Times should be charged with treason. There's a lot of that on the other side.
But we have, as Jonathan Schell, argues here, reached a watershed in the evolution of all that has been happening. Regarding President Bush, he says this -
That's about it. The president has asked for us to ratify this all, rolling the dice, betting that the will of the people will force congress and the courts to accept that he has unlimited power.
He may be right. See Steve Benen here, reviewing why the Democrats will say little about all this -
But it's not going to be a fair fight. All the president's supporters are hammering home that all the president is trying to do is fight the bad guys, and opposing that, of some minor details, is reckless.
Jonathan Schell on those minor details -
No, there's the third alternative - everyone agrees with the president and his authority has no limits.
Well, one can move away from the Cassandra voices of the left saying that we're losing the republic and all we fought for since 1776 (the sky is falling and we're faced with a big-brother dictator in the making), and from those on the right saying this is no big deal and we've always needed a strong leader (unleash our duly elected hero-savior from the surly bonds of the useless laws). One can turn to folks who can put this in perspective.
Who would that be? Oh, maybe constitutional scholars.
One of those would be Cass Sunstein at the University of Chicago. Who's he? According to this he's the Karl N. Llewellyn Distinguished Service Professor of Jurisprudence at their law school and also a member of the Department of Political Science - a Harvard man, undergraduate and law too. The link has more - his many books and how he clerked for Thurgood Marshall and all the rest. He's a big gun. You even see him on television now and then - Wednesday, December 28th on MSNBC's "Hardball" for example. They gave him about ten seconds.
But he's thinking long and hard about all this, mainly at The University of Chicago Law School Faculty Blog. Yes, there is such a thing. And it's not much like The Smirking Chimp at all. No rants. It's not as exciting? Yes, it's detailed and dry and, actually, useful.
MSNBC may have given him ten seconds, but he stretches out at the blog, with, on the same day, The President's 'Inherent' Power. He's puzzled.
Here's the issue -
So what do you do with that?
Well, you look back to when president Truman attempted to have the federal government take over the steel industry (Youngstown Steel and Tube, 343 U.S. at 587) - there was a strike and we were at war and we needed steel. The Supreme Court slapped Truman down real hard, and we could look to that -
Well, that may not be very useful.
All this is discussed here by "Armando" at Daily Kos and it all comes down to the professor saying we should see "if progress can be made by bracketing the most fundamental questions about 'inherent' authority and by giving careful attention to what Congress has done." But "Armando" points out a conflict is unavoidable here - "The President is defying a law duly enacted by Congress. And NO Supreme Court case has countenanced such a power grab by a President."
Yes, they shot down Harry Truman over this, and "Armando" points to the Hamdi ruling, that cited the Truman slap-down -
And that's the battle.
Well, one must be careful.
But something is really odd here. There's a lot of tap dancing around what's really going on. It looks like a power grab, a coup of some sort, where those seeking unlimited power have just taken it and hope these constitutional scholars will futz around until it's too late to change anything. Bush has the military behind him, and Fox News. What else does he need? This fellow in Chicago, as thoughtful as he is, doesn't matter much.
What is a bother with this NSA wiretapping business, however, is what was bound to happen on a practical level. As reported by the New York Times on Wednesday, December 28th, here -
Yeah, but the bottom line here getting reconsideration because of two issues, disclosure and illegal search. We're not talking about tossing out something someone said because the cops didn't read him his Mirada rights. Here the issue is the prosecution having evidence they did not reveal to the defense team, or using evidence that, even if revealed, was obtained illegally. You cannot do either. The accused is supposed to know what the evidence is that is being used against him. That's kind of basic. And just as you cannot use evidence obtained by torture (yet), so you cannot use evidence you gathered by breaking the law, which is also kind of basic.
Noted defense attorney Jeralyn Merritt here runs down what this means in terms of bad guys we've put away -
And so on and so forth.
And it seems some federal prosecutors tell the Times the NSA warrantless surveillance could be a problem for the Government in both past and future cases.
Merritt of course points to Brady v. Maryland - the government and prosecutors are required to provide defendants with all "material" information affecting their case, including derogatory information that could impact the credibility of prosecution witnesses. This includes information that might impact their guilt or their sentence. And she points to Kyles v. Whitley, 514 U.S. 419 (1995) - the duty of disclosure is not limited to evidence in the actual possession of the prosecutor. "Rather, it extends to evidence in the possession of the entire prosecution team, which includes investigative and other government agencies." Other government agencies would include the NSA, of course.
This could get really interesting, as she cites also the basic 18 U.S.C. Section 3504 -
Damn, that's a problem. And Merritt points out that the government can't avoid answering the defense requests simply by asserting the material is classified. "Once it is established that a defendant has standing to make the challenge, at a minimum I think the Government could be compelled to submit the information to the Judge for a decision on whether it is relevant and helpful to the defense and should be turned over. In the event of an adverse decision by the Court, the Government should have only two choices: either turn over the information or refuse and dismiss the criminal charges."
So we mighty have to let these people go? Who'd have guessed?
And late in the day it got ever more interesting with this - Terror suspect challenges US president's 'unchecked' -
This is odd, and those "strategic maneuvers" were discussed in these pages here last week - in September Padilla's lawyers petitioned the Supreme Court to review the government's powers to detain him without charge or trial, and in response the government moved to transfer Padilla to civilian custody for trial. Maybe he wasn't a bad guy. Maybe they didn't want his case to be reviewed, as we had held him for more than three years without explaining why. So we changed the charges, from "he's an enemy combatant and we can lock him up forever without charges or trial" to "he's just a criminal and let's have a trail." A Virginia appeals court rejected that - it looked like lame attempt to avoid Supreme Court scrutiny. Now he wants a hearing.
The countermove? This - "The U.S. government on Wednesday asked the Supreme Court to transfer American 'enemy combatant' Jose Padilla from U.S. military custody to federal authorities in Florida - one week after an appeals court refused a similar request."
It gets odder and odder. What rights does the president have? Is anything he says so, just because he says it? People are fighting for, at the very least, some clarification here.
And then, speaking of odd things, the Wall Street Journal reports what up with Move America Forward, as they have a new campaign -
So that's the new push? There really were weapons of mass destruction, including anthrax and mustard gas, and Saddam Hussein did have "extensive ties" to al Qaeda?
No doubt CNN and the rest will handle this like the Swift Boat thing and Kerry. Let's hear both sides. "Some assert the earth is flat and the sun revolves around the earth, while most say this is not so, but in the interest of fairness we must report both sides of the controversy, in depth, for many weeks." Hell, it worked before.
And now that there have been elections in Iraq, and they seem to working on forming some sort of government, things will be just fine. So don't listen to the Knight-Ridder folks, who almost always get things right, when they report this -
You do recall the Kurds still viewed themselves as an independent and autonomous entity when they entered into Iraq's first new oil contract, without notifying the central government (LA Times here). Would they rise up with Kurds from Turkey, Iran, and Syria to form an independent state? Now? "The government in Baghdad will be too weak to use force against the will of the Kurdish people.''
So that's ten thousand Kurds in the Iraqi army ready to fight in a civil war. The Shiites who will run the place align themselves with Iran. The Sunnis, out of power, keep blowing up things.
Even if you seize unlimited power, some things just don't work out.