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March 31, 2007
August 18, 1967: Ronald Reagan Calls for U.S. Withdrawal from South Vietnam, While LBJ Says U.S. Presence Will Continue
THE PRESIDENT. The people of Vietnam are in the middle of an election campaign to select a President and a Vice President, and about 60 members of their Senate. In October they will elect a House of Representatives.From time to time there seems to be-from news reports and operations reports-accelerations, escalations, lulls, and other various types of descriptions of our activities out there.
Our policy in Vietnam is the same: We are there to deter aggression.
We are there to permit the people of South Vietnam to determine for themselves who their leaders should be and what kind of government they should have.
It is remarkable that a young country, fighting a tough war on its own soil, has moved so far, so fast, toward a representative government. . . .
So far as this Government is concerned, our policy has not changed. It remains the same. We are steadfast in our determination to make our pledges good, to keep our commitments, and to resist the attempt to take over this little country by brute force.
That very same day, then-governor Ronald Reagan of California called for the United State's immediate withdrawal from South Vietnam citing the difficulties of winning a war when "too many qualified targets have been put off limits to bombing."
The parallels between Iraq and So. Vietnam are not close to perfect. But Reagan's call to withdraw seems rich with irony now, given his mythic status among Republicans. His problem was LBJ's mishandling of the American military's execution of its mission. So Reagan made the practical suggestion that the U.S. pull up stakes and leave.
Reagan's point remains equally sound today. When a president so botches a foreign adventure as Bush -- and perhaps more so Cheney -- has in Iraq, then withdrawal is a perfectly sound policy.
Are you forgetting your history, David Brooks?
Posted by shertaugh at 2:43 PM | Comments (1)
March 30, 2007
Booyakasha!
Posted by Eric at 10:21 AM
March 29, 2007
"So We Said, 'Hey, Where Is The Shoah?'"
It was a bad speech.
I see in this week's New Yorker magazine (Jane Kramer's "The Pope and Islam," not available online) that the speech could have been much, much worse. Writing about the Pope's incendiary speech about Islam in Regensburg last September, Kramer reports that Vatican correspondents
"received copies of his speech at six in the morning of the day he gave it, and, at ten, they assembled in the university's makeshift pressroom and informed the Vatican spokesman ... that the passage [disparaging Islam] was going to be incendiary. "The point is that at 10 A.M. somebody got the message that the text was explosive," [a Vatican correspondent] told me, adding that when the Pope had gone to Auschwitz to speak, last May, "we got copies of that speech, too, and it never mentioned the Shoah, so we said, 'Hey, where is the Shoah?,' and he changed it."Got that? A Vatican reporter says the penultimate draft of the Pope's Auschwitz speech didn't mention the annihilation of Europe's Jews.
UPDATE: A commenter asked for a link to the text of the speech. Here it is.
Posted by Eric at 6:22 PM | Comments (3)
March 28, 2007
At Least I Think It's My Book. Could Be The Tokyo Phonebook. Not Sure.
You know you need it.
Posted by Eric at 2:20 PM | Comments (3)
With Friends Like This . . .
When I read that I thought, geez, Bush couldn't get a worse slap in the face in front of the entire Arab world.
Well, he just did.
It seems Bush's "good friend" King Abdullah opened the Arab summit he's hosting in Riyadh today by announcing: "In beloved Iraq, blood flows between brothers in the shadow of illegitimate foreign occupation and hateful sectarianism, threatening a civil war."
An "illegitimate foreign occupation." That's what Abdullah called what we're doing. And after all Bush has done for Iraq and the Saudis . . . especially all those Saudi nationals whom he allowed to leave the U.S. before the FBI could question them about the attack on 9/11.
I can't wait to hear what Bush says in response.
Maybe it'll be something like this:
"if the Democrat[ ] majority in Congress would just stop playing politics with Iraq and the US Attorney purge, and Iran would just stop developing 'nuculer' weapons, and Britain would leave Iraq faster proving how successful I've been, and American car manufacturers would figure out how to make better, more attractive cars, and global warming would stop warming the globe . . . . And, oh yeah, I had nothing to do with that Monica woman."
Posted by shertaugh at 12:49 PM | Comments (1)
March 27, 2007
Monica Goodling Has A Valid Basis For Asserting The Fifth Amendment Privilege
The answer: Yes, rather clearly so, unless there is no reasonable scenario under which she fears that a prosecutor could take something she says before the committee as a link in a chain leading to evidence of wrongdoing. (Hoffman v. United States, 341 U.S. 479, 486 (1951).)
The Fifth Amendment privilege protects not just the guilty, but also the innocent, who fear that even their entirely truthful responses might provide the government with incriminating evidence from their own mouths. (Ohio v. Reiner, 532 U.S. 17 (2001) (dictum).) "The privilege serves to protect the innocent who otherwise might be ensnared by ambiguous circumstances." (Slochower v. Bd. of Higher Ed. of the City of New York, 350 U.S. 551, 557-58 (1956).)
A careful defense lawyer would be especially justified in advising his or her client to consider taking the Fifth in a highly charged political environment such as the Senate Judiciary Committee's investigation into the firings of U.S. Attorneys and the alleged minimization (dare we say "cover-up?") of the role of the Attorney General and the White House in those firings. It is important to remember that "a witness innocent of wrongdoing may well refuse to answer a question not because he fears conviction, but because he fears unfounded prosecution, a risk which every one runs at all times, theoretically at least." (Lewis Mayers, Shall We Amend the Fifth Amendment? 4 (New York: Harper & Brothers, 1959).)
The Akin Gump attorney probably did not need to broadcast his attack on the fairness of the atmosphere in the Judiciary Committee as he did; that does indeed smack of politics. But that doesn't mean that the advice he has given his client is bad. It is not. It is of course possible that the invocation of the Fifth is in bad faith, and that neither Ms. Goodling nor her attorney has any basis at all to fear her eventual prosecution, either for perjury, for making false statements, for obstruction of justice, or some other crime. But that strikes me as quite unlikely.
I understand and share the disgust over the firing of these U.S. Attorneys, over the politicization of the institution of the United States Attorney's Office in this administration and the elevation of political loyalty as a value, and over the White House's and the Attorney General's efforts to "manage" the crisis. But that's no reason to ditch the important values that the Fifth Amendment privilege serves.
UPDATE: When I wrote this post, I had not yet gone over to Volokh to see Orin Kerr's take on the subject, which contradicts mine. At bottom, Orin can't fathom a crime that Goodling might have committed (or might be characterized by an overzealous prosecutor as having committed). I think Orin's not being imaginative enough. Has Ms. Goodling ever been interviewed about the matter, or has one of her co-workers? If she or another has, wouldn't a charge under the federal false statement statute be possible? What if evidence turns up that DOJ fired a prosecutor specifically to derail a pending investigation or prosecution? Is a prosecution for obstruction of justice so completely out of the question that the lawyer at Akin Gump ought to tell Ms. Goodling that she's completely in the clear?
Posted by Eric at 9:34 AM | Comments (24)
March 26, 2007
Mona Lyndie
"On seeing the photographs from Abu Ghraib prison, many critics, art historians and others experienced the disorientation of the uncanny because they saw in the hierarchic disposition of bodies, the mock-erotic scenarios, and the expressions of triumphant glee on the faces of the captors, something that was disturbing and intensely familiar, but could not be named or fully called to consciousness. What they recognized but quickly forgot -- in a process akin to what Freud in an earlier text called 'parapraxis' -- is in fact a key element of the classical tradition in art that extends back more than 2,500 years, at least to the age of Athens. It is an element seen in the equipoise of the animals led to slaughter on the Pan-Athenaic frieze; in the cruelty of the Battle of Gods and Giants on the Pergamon Altar; in the anti-Islamic zeal of a fresco by Raphael in the Vatican Palace; in the morbid eroticism of a marble slave (and the crucified Hamen painted on the Sistine Chapel ceiling) by Michelangelo; and in the exquisite anguish of a colossal, sculpted saint by Bernini in St Peter's Basilica. And it thrives today -- often in odd and etiolated form -- in American popular media. That feature of the Western classical tradition is specifically the motif of tortured people and tormented animals who appear to sanction their own abuse..."Eisenman argues that Americans could not sustain our outrage at the Abu Ghraib abuse because the explicitly sexual nature of the torture photographs subversively recalled a history of art images of victims of violence enjoying their torture.
I share Eisenman's distress at the quick dissipation of outrage over torture at Abu Ghraib, but I doubt that the Sistine Chapel ceiling had much to do with it.
Posted by Eric at 3:03 PM | Comments (1)
March 25, 2007
Squeeze Reunion!
Posted by Eric at 8:15 PM | Comments (2)
March 24, 2007
The Mockery of Justice That Is Attorney General Gonzales
On Friday, the Justice Department also announced that the former chief of staff of former GOP Senator Ben Nighthourse Campbell pled guilty to making a false certification about a $2,000 salary overpayment to a staff member that was intended to be kicked-back to Kontnick. Amusingly, DOJ left Senator Campbell's name out of its press release -- more bad political news.
So here we have DOJ vigorously prosecuting two federal officials who lied about a relationship and $2,000.
This takes us to Al Gonzales. Gonzales had stood before the American people at a March 13th news conference and claimed he had not participated in any discussions about the removals, but knew in general that his aides were working on personnel changes involving United States attorneys. But, according to a report this morning, newly release evidence from his Justice Department shows that Gonzales and his senior advisers discussed the plan to remove seven United States attorneys at a meeting last Nov. 27th -- 10 days before the dismissals were carried out. A DOJ spokeswoman is spinning that the new evidence is not inconsistent with Gonzales's public statements.
Now, a public statement at a news conference may not fall within the statute that makes any material false statement about a matter within the jurisdiction of a federal department or agency a crime, known as 18 U.S.C. § 1001.
Karl Rove and Scooter Libby did exactly the same thing when they lied to former White House press secretary Scott McClellan about discussing Valerie Plame for the purpose of having McClellan stand before the media and America and repeat the lie. [This is precisely the reason that the Senate and House Judiciary Committees should be using to justify putting Karl Rove under oath about the US Attorney firings -- he's a known liar.]
Apparently, it is a common tactic inside the Beltway to stand before the media and mislead. I recall a certain past president who wagged his finger in denial about a relationship with a young woman.
That president was impeached.
Gonzales appears to have lied to the American people. He would seem to have done it with great deliberation. He would have done it, I suspect, after hashing the matter out with Karl Rove and other politicos in the White House.
But even if he didn't lie, Gonzales should step aside.
Why? Because Gonzales's Justice Department just finished prosecuting two other federal officials -- Steven Griles and Virginia Kontnick -- for making misleading statements about matters important to the good operation of our government. And if Gonzales will pursue such charges against others, it is a mockery of justice for him to remain Attorney General while trying to frustrate good government in his own department . . . the one that happens to be most responsible for protecting the rule of law in our Country.
Posted by shertaugh at 7:57 AM | Comments (2)
March 22, 2007
Executive Privilege in the Balance
The president is invoking a species of executive privilege called the "presidential communications privilege." See In Re Sealed Case, 121 F.3d 729 (D.C. Cir. 1997). This privilege is just about the most hard-to-penetrate privilege known to mankind. But it's not impenetrable.
Once in court, to sustain a demand for information covered by the presidential communications privilege, a congressional committee must demonstrate that the information sought is “demonstrably critical to the responsible fulfillment of the Committee's functions.” Senate Select Committee on Presidential Campaign Activities v. Nixon, 498 F.2d 725, 731 (D.C. Cir. 1974) (en banc). The Senate Select Committee case seems to suggest that a Senate committee's claim of need to fulfill its oversight function probably is not enough.
But that is not the case with the House Judiciary Committee. The reason is that the House of Representatives has the Constitutional authority to investigate matters of executive malfeasance for purposes of deciding whether impeachment of a federal executive official is appropriate. Art. I, Sec. 2, Cl. 5. The D.C. Circuit, in the Senate Select Committee case appeared to recognize this important constitutional authority in assessing a claim of executive privilege.
Bottom line. The Senate subpoenas for Rove and Mier's testimony have a good chance of being quashed. But the subpoenas from the House Judiciary Committee -- the House committee empowered to investigate executive malfeasance for impeachment purposes -- have a much better chance of being enforced . . . especially if the House counsel alleges possible malfeasance.
Posted by shertaugh at 11:28 AM | Comments (1)
Who Can Fire a U.S. Attorney?
The issue, as I see it, is not whether a President has the authority to fire an inferior federal officer, which is exactly what a U.S. Attorney is. See, e.g., United States v. Hilario, 218 F.3d 19, 24-26 (1st Cir. 2000).
The issue on the table is whether, consonant with the president's duty to "take care that the laws be faithfully executed . . . [,]" Art. II, Sec. 3, a president may remove a federal official for the purpose of preventing the criminal laws of the United States from being applied even-handedly. For example, if a U.S. Attorney has investigated complaints of voter fraud but concluded that no crime occurred, may the president remove the U.S. Attorney for declining to bring charges -- by way of complaint, as only a grand jury can return an indictment under the Fifth Amendment -- or initiating and then publicizing an investigation solely for the purpose of securing a political advantage in an election.
Our current president made no secret in the 2006 election that he considers himself a Republican operative first and foremost, as evidenced by his inference that Democrats are traitors, and only president of the United States second. So I believe it is not only fair to ask but, given the House's constitutional authority to investigate executive compliance with the laws under Art. I, Sec. 2, cl. 5 , the duty of Congress to inquire into this president's behavior vis-a-vis U.S. Attorneys.
If Bush, or any executive official, intended to punish U.S. Attorneys for refusing to abuse their law-enforcement powers, then the American people have the right to know. And the House has a constitutional responsibility to decide what should be done with such a person.
By the way, the rule of law concerning the firing of U.S. Attorneys is set forth in 28 U.S.C. § 541, which states:
(a) The President shall appoint, by and with the advice and consent of the Senate, a United States attorney for each judicial district.(b) Each United States attorney shall be appointed for a term of four years. On the expiration of his term, a United States attorney shall continue to perform the duties of his office until his successor is appointed and qualifies.
(c) Each United States attorney is subject to removal by the President.
Update: To be clear, the president has the authority to remove a U.S. Attorney -- per § 541 and Myers v. United States, 272 U.S. 52 (1926) -- discussed here by Marty Lederman at Balkinization. Regardless, the fact a president has such authority does not insulate him from the political and legal consequences of such a decision -- as Andrew Johnson and Richard Nixon both learned.
Posted by shertaugh at 11:03 AM | Comments (2)
March 21, 2007
"Stop Dissecting Frogs!"
Posted by Eric at 6:39 AM
March 20, 2007
"The Jew Frankfurter"
While browsing, I came across this little news item that I found, well, amusing, sort of.
"The Jew Frankfurter Becomes Top USA Judge"
"As if to accentuate his Jewish politics, President of the United States Roosevelt has named his closest adviser, the Jewish judge Felix Frankfurter, to the Supreme Court."
Posted by Eric at 1:59 PM | Comments (2)
March 18, 2007
A Special Yizkor This Passover
This year, when my family and I go to synagogue to celebrate Pesach -- Passover -- I will be thinking of Eric's Uncle Leopold and the 6 Million. Every service we pray for them, that they rest easy with God.
But this year will be different. Eric's search for his uncle, and the courage he's mustered to tear back the past, has touched me beyond words. And all I know to do is to be there for Yizkor, remember what I've learned here from Eric, and to pray that Leopold Muller sits close to God with the rest of the 6 Million.
Posted by shertaugh at 12:57 PM | Comments (1)
March 17, 2007
Uncle Leo's Medals
Physical traces of Holocaust victims are hard to come by. Bad Kissingen has a Jewish cemetery, but naturally the victims of the Nazis have no gravestones there. Or anywhere else.
Leo and his wife were forced to shut down their textile store after Kristallnacht, when German law forbade Jews from continuing to operate businesses. So the store and its wares are gone.
Their storefront and second-floor apartment are still there, but unrecognizable. The building was forfeited to the Reich upon their deportation. It is now a modern-looking bank.
Before placing him on the train to the East, the Gestapo took from him the 6 soupspoons, 6 teaspoons, 6 knives, 6 forks, the napkin holder and the napkin ring that he had brought with him. The Gestapo was good enough to inventory them, though.
These too are also now gone.
I tell you all of this so that you'll see why, as I arrived in Germany, I was expecting to find only paper traces of Leo's life. I learned about six months ago that the Bavarian state archive in Würzburg has hundreds of pages of files from the reparations lawsuits that my grandfather brought after the war, and just a few weeks ago I learned that the archive also has a slim Gestapo file on my great-uncle. It was these that I was interested in seeing. I knew these papers would give me at best only an indirect glimpse of Leo's life, but I was in no position to complain. This is a good deal more than remains about the lives of most victims of the Holocaust.
First thing Monday morning, groggy from jetlag, I opened the Gestapo file and began to read. It was just 10 or 12 pieces of paper, but I read them with nauseous interest. I was surprised to find his identity card ("kennkarte") in the file, stamped, as required, with a big "J" for "Jude." A few of the documents in the file allowed me to piece together the story of how this all-important kennkarte – which I would have expected him to carry with him on the journey eastward – ended up in his Gestapo file instead. It is a sad story, and I will tell it here sometime soon.
But as I went to put the Gestapo file aside and turn to the tall stack of records from the reparations cases, I noticed an envelope taped to the inside of the front flap of the Gestapo file. Someone had written the word "Beilage" on it, which means "enclosure" or "attachment." And it did not lie flat; I could tell that something thicker than paper was inside.
I reached in and pulled out two small packages, each perhaps the size of a large pack of chewing gum. They were pieces of thin cardboard that had been folded in thirds and then in thirds again, to enclose something. I unfolded one and out tumbled something solid, wrapped in blue onion-skin paper.
It was a medal.
I opened the other package. A second, identical medal, but without the ribbon.
These were the medals my great-uncle received for his military service and his injuries in World War I.
I held one in my hand, and as I realized that I was holding something that my great-uncle had held, my eyes filled with tears. I cried very softly – I was in a public space, and felt self-conscious. But I was not prepared for this – for the possibility that I might come upon even one of his belongings, let alone one that would have been so meaningful to him.
It was only later that I figured out how the medals came to be in the file. Leopold must have brought them with him when he was forced from his home in Bad Kissingen to the site in Würzburg from which he would be deported. Even at that late date – April 25, 1942 – he must have maintained a desperate hope that his military service in World War I might protect him from what lay ahead. These medals (and his useless left arm) were his proof of that service, the only protection that he had left.
But it was a vain hope. The Gestapo seized the medals, wrapped them up neatly in thin folded cardboard for me to find sixty-five years later, and sent Leo off to his fate.
I am convinced that these medals belong to my family, and tomorrow will be filing a demand with the Staatsarchiv Würzburg to turn them over to us.
Perhaps they will comply; perhaps they will not. I will let you know.
UPDATE, 3/19/07: For those of you who can read German, the demand letter that I've just faxed to the Staatsarchiv Würzburg is available here as a PDF file.
Posted by Eric at 8:27 PM | Comments (16)
March 16, 2007
Would a Law Creating a Voting Congressman for the District of Columbia Be Unconstitutional, and If So, Who Has Standing to Challenge the Law?
Assuming the House, the Senate, and President sign on, or a veto-proof majority in Congress approve the bill, the question becomes whether the law is unconstitutional because it violates Article I, Sec. 2 of the Constitution -- which states:
The House of Representatives shall be composed of members chosen every second year by the people of the several states, and the electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislature.
It would seem pretty plain that the District of Columbia cannot have a voting member in the House for the simple reason that the D.C. is not a "state," as that term is used throughout Art. I. Moreover, Art. I, Sec. 8, Cl. 17 discusses Congress's power to create D.C. from land ceded to the U.S. by other "states." D.C., in terms of the Constitution's internal structure, would not appear to be a "state" for purposes of Art. I, Sec. 2.
Likewise, the Supreme Court has treated states and D.C. differently when it comes to the constitutional guarantees in the Bill of Rights. For example, in United States v. Moreland the Court held that the Fifth Amendment grand jury clause -- with its guarantee that all infamous crimes shall be charged by way of indictment -- applies to D.C. But, in Hurtado v. California, the Supreme Court said the Fifth Amendment's grand jury clause does not apply to the states -- that is, the "states" referred to in Art. I, Sec. 2 of the the Constitution.
Moreover, in District of Columbia v. Carter, the Supreme Court said very clearly that the District of Columbia is not a "state" for purposes of the Fourteenth Amendment. Sec. 1 of the Fourteenth Amendment of course provides that "No state shall . . . abridge the privileges and immunities of citizens of the United States; nor . . . deprive any person of life, liberty, or property without due process of law; nor deny any person within its jurisdiction the equal protection of the law."
So, who has standing to challenge such a law, if it passes, under Article III, Section 2 of the Constitution -- which, while framed as conferring jurisdiction in the federal courts over all "cases" and "controversies" arising under federal law, is the basis for requiring all plaintiffs in federal court to have, as decribed in Allen v. Wright, a personal injury fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief.
In Raines v. Byrd, the Supreme Court denied standing to four senators who challenged the Line-Item Veto Act, passed in March 1996, over those senators' objections. The Court rejected the senators' "diminution of legislative" power argument as a ground for standing by explaining that the any institutional injury to Congress was dispersed among all members and the plaintiffs had not been authorized to represent the Senate.
On the other hand, the Supreme Court did find standing for the plaintiffs to challenge the Line-Item Veto Act in Clinton v. City of New York. There, the president had exercised his authority under the Act and the plaintiffs had suffered a financial injury through the loss of funding.
So somewhere in between Raines and Clinton the question of standing falls. Certainly, all 50 states lose some federal legislative power by creating a 536th congressional seat. But that diminution is contained within the House of Representatives itself whose members all suffer equally.
Posted by shertaugh at 10:49 AM | Comments (3)
March 14, 2007
A Spring Evening, Bad Kissingen, 1936
It was really quite a show ...
... and then, for effect, they lit torches.
My great-uncle Leo's store and apartment were just around the corner off the lower right side of the photos -- perhaps 40 yards away.
That must have been a tough evening.
(images from the Stadtarchiv Bad Kissingen.)
Posted by Eric at 4:40 PM | Comments (2)
"And How Was The Weather In Łodź?"
Until recent years, I thought Leo, like so many Holocaust victims, had vanished without a trace. Then I started digging. It has astonished me how much there has been to discover. This week's research is turning up enormous amounts of new information -- far more than I can actually process in a single week.
Perhaps I'll write about some of my discoveries when I return home. It won't be easy, though; the subject resists summary and at times even description. Yesterday, for example, I spent an hour and half with a woman who grew up around the corner from my great-uncle and who wanted to share with me her little-girl memories of him. He was a kindly shop owner, she told me, who often gave her treats -- candy and apples. She remembers feeling confused and disappointed when my great-uncle and the rest of the town's Jews "went away."
Then she mentioned that in the summers from 1939 to 1944, she and her mother went on five-week vacations to Poland, where they visited her father, a guard at the Łodź Ghetto.
That is not an easy point of conversation to respond to.
Posted by Eric at 3:05 AM | Comments (9)
The Firings of U.S. Attorneys: A View From A Distance
My guess, though, is that the usual cast of characters is out defending the administration, and that the defense springs from the claim that because U.S. Attorneys are political appointees who serve at the pleasure of the President, and because disloyalty is a valid ground for dismissal, there's nothing to criticize.
But here's the funny thing about that defense: it proves its opposite. The fact that these appointments are political is precisely why the dismissals are fair game for public condemnation. If U.S. Attorneys could only be fired "for cause," there'd be a numbing and legalistic debate over whether, in individual cases, the President had "cause." Instead, it's all just politics -- and so the debate can and should be broader. These firings may reveal the extent to which loyalty is a preeminent Bush Administration value -- at the Justice Department as everywhere else.
Fine.
But it needn't be that way. Janet Reno, for all of her flaws and complexities, was decidedly not a fall-on-your-sword loyalist, but Clinton kept her on as Attorney General.
Maybe what's emerging from this debate -- I could say with more certainty if I were actually in a position to follow it -- is that people are recoiling a bit from the notion that the Department of Justice ought to be an institution where party loyalty is the lodestar value. Would that be such a terrible thing?
Posted by Eric at 2:04 AM | Comments (2)
March 13, 2007
"If They Won't Indict Democrats, Fire Their Asses and Get Me People Who Will"
Rove's general point, echoing all over the right side of the media, is a truism.
But how can that truism be squared with the evidence that the firings appear to be tied to these prosecutors' decisions either to pursue Republicans or to refrain from pursuing Democrats. That is, we had U.S. Attorneys who refused to make the federal criminal justice system an extension of the White House's political activities.
The role of a U.S. Attorney -- unlike, say, the Treasury Secretary -- is unique in the executive branch in that the position's core responsibilities are non-political. The Supreme Court explained it this way in Berger v. United States:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape or innocence suffer. He may prosecute with earnestness and vigor-- indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.
Perhaps it's the principle that a U.S. Attorney "is in a peculiar and very definite sense the servant of the law" that bothered this White House. These are people, unfortunately, whose view of the Constitution appears to be that the President is the fountainhead of the law in this country -- i.e., the law shall be executed as the president decides it should be and no one can say otherwise.
In other words, the "law" as some general standard to be applied evenhandedly is a myth for suckers.
Posted by shertaugh at 1:42 PM | Comments (5)
March 12, 2007
Dick Cheney and "The Colonel Klink Rule"
Cheney accuses the adults in Congress of giving "full validation of the Al Qaeda strategy." Is that a joke?
Cheney's hot-air rhetoric reminds me of Colonel Klink from the TV show Hogan's Heros. Klink was the bumbling Luftwaffe POW Camp commandant of Stalag 13. In one episode, an Allied bomb lands unexploded in the middle of the camp. Hogan, of course, is picked to diffuse the undetonated bomb. With Klink looking over his shoulder, Hogan has only seconds to choose one of two wires to cut to disarm the bomb. Hogan asks Klink which wire to cut. On cue, after Klink picks the red wire, Hogan cuts the blue one . . . and the bomb is disarmed.
The problem with what Cheney is this. Everything. As in everything he's said about Iraq has been wrong. Just ask Tim Russert.
Cheney led the war cry to abandon capturing Bin Laden -- remember Bush at a press conference saying he doesn't even think about Bin Laden anymore -- so we could invade Iraq because of (a) WMDs, (b) spreading Democracy, (c) Saddam was a bad man, (d) we can change the world with military force and the invasion will pay for itself, or (e) none of the above.
And Just what exactly is the "Al Qaeda Strategy" Cheney talks so vaguely about. Let's see, is it hoping that American Troops get bogged down occupying an Arab country to create a rallying point for Islamic radicals? Just like the Soviets were stuck in Afghanistan in the '70s? How 'bout having American troops invade an Arab country, occupy it, and allow for wannabe Islamic terrorists to get hands-on training killing and maiming innocent people?
So when Cheney starts accusing Americans of validating Al Qaeda's strategy, we should embrace whatever these Americans have to say. Because it's better than 5 to 1 that Cheney's pulling a Klink . . . uh-gain.
Posted by shertaugh at 4:00 PM | Comments (1)
March 10, 2007
Bush's National Security Gift
Let's be clear before going on. WaPo chose the phrase "swift action." But that's not what Bush said.
He pledged only to move "as quickly as possible." [All deliberate speed, anyone?]
Bush should consider the FBI's screw-ups manna from heaven. Not only has his domestic spying become an after-thought. When did that stop, by the way? [Oh, that's right. A FISA judge issued some sort of double, super-secret order that no American without the highest security clearance is entitled to see approving, allegedly, Bush's entire domestic-spying program -- operational detail after all. No abuses with that program.]
But DOJ-OIG's report ripping the FBI's abuses takes the focus off Iraq for the moment.
And Bush's promise of moving "as quickly as possible" to rein in the FBI allows his echo chamber to use the FBI's abuses as a symbol for showing that Bush does indeed respect the Constitution.
Ha, ha, ha, ha, ha.
Posted by shertaugh at 4:19 PM
March 9, 2007
FBI's Abuse of National Security Letters Highlights Need to Address Possible Fifth Amendment Defect
The Washington Post also covered this issue today.
The OIG complains "that the [B]ureau lacks sufficient controls to make sure the subpoenas, which do not require a judge’s prior approval, are properly issued and that it does not follow even some of the rules it does have."
I've previously asked whether DOJ administrative subpoenas used in criminal healthcare fraud investigations violate the Fifth Amendment's Grand Jury Clause. Only prosecutors have the authority to issue the HCF subpoenas. There is no accountability in their issuance to any counterbalancing constitutional force, such as the judiciary or -- more important in my view -- a grand jury.
But with NSLs -- which have been around since 1978, 18 years longer than HCF subpoenas -- the question of their constitutionality is even more serious. The reason is you're talking about FBI agents -- not prosecutors -- having the unsupervised authority to root around in a person's most personal information. There seems to be even less accountability than with HCF subpoenas because FBI agents, not career prosecutors subject at least to ethical constraints not applicable to non-lawyers, are issuing these subpoenas. Obviously, no Art. III judge and no grand jury exercises any check -- even if only in name.
Posted by shertaugh at 8:54 AM
March 6, 2007
No relation.
Posted by Eric at 5:16 PM | Comments (2)
Was Karl Rove Really a Genius . . . or Just the Beneficiary of a Loose Nail
He is a genius, right? I mean, everyone agrees, right? He won South Carolina for Bush in the 2000 GOP primary by smearing McCain. That took "genius." His fingerprints seemed to be all over the swiftboating of Kerry in '04. That took "genius," right?
Okay, so '06 didn't go so well. Maybe it was because he was distracted by L'affaire Libby.
Maybe it's time to re-assess the "genius" of Karl Rove. Just think, if not for a horribly drafted butterfly ballot, Gore wins the White House in '00, right?
"For want of a nail, the shoe was lost.
For want of a shoe, the horse was lost.
For want of a horse, the battle was lost.
From loss of the battle, a war was lost."
Posted by shertaugh at 2:58 PM | Comments (3)
Ground Control To Major Tom: Take Your Light Blue Pills And Put Your Helmet On
"First urge will be to rip your clothes off," e-mailed Air Force Capt. Colleen Shipman to shuttle pilot Bill Oefelein about her plans upon his, um, reentry from Earth orbit.
Oefelein was, however, busy with the mission pictured below the fold (arguably NSFW), and was unable to reply.
Posted by Eric at 10:04 AM | Comments (3)
March 5, 2007
National (insta)Pundit Radio
"My voice sounds like NPR just coming out of my mouth," Helen exclaimed after a test-run.
Presumably they'll have the technology to correct for that.
Posted by Eric at 7:49 AM | Comments (1)
Clinton Fatigue . . . Edwards Fatigue . . . Etc. Fatigue
"Clinton fatigue" was and remains a tactical tool of the GOP.
But I don't mean the term to be Clinton-specific. Not at all.
I'm using the term "Clinton fatigue" to describe a means of poitical attack intended only to denigrate, demean, and destroy whomever the Democrat[ ] Party puts forward as a presidential candidate -- when policy differences won't carry the debate.
Al Gore got the treatment in '00. Kerry in '04.
John Edwards recently got a heavy dose from Ann Coulter -- to the ringing applause of the CPAC
Obama's gotten a taste as well.
Those who talk about Clinton fatigue are missing the bigger picture. It's "Democrat[ ] President fatigue" -- read, character defect.
Consider. Clinton fatigue wasn't about Bill Clinton's policy follies. (In comparison to Bush's Iraq, were there any?)
Clinton fatigue was about anything but policy to smear the president's character. Hence, we get from the GOP that Gore invented the internet. Or Kerry lied about his Vietnam service. Or Edwards is a faggot. Or Obama went to an anti-American madras.
It doesn't matter who the Democrat[ ] nominee is. For the GOP, its just about creating a storyline that changes the debate from policy to character -- on the premise that voters treat character as a proxy for policy savvy and political judgment.
Here's hoping that if Bush/Cheney accomplished anything positive in their time, it's disabusing Americans of the idea that advertised character -- and claimed experience -- are a proxy for success in the White House. Clearly, they are not.
Posted by shertaugh at 5:40 AM | Comments (1)
March 3, 2007
Immoral Equivalence
Posted by Eric at 5:53 PM | Comments (1)
Is Ann Coulter's Hate Speech At CPAC The Same As The Lines Spoken By A Character In The Lyrics Of A Twenty-Plus-Year-Old Rock Song? Discuss.
After we've got this one settled, we can turn to the more interesting question, which is: what is the proper analogy to the CPAC audience's laughing, applauding response to Coulter's quip? (References to this sort of thing will just raise the Godwin's Law objection, so don't bother.)
Posted by Eric at 11:07 AM | Comments (11)
March 2, 2007
Friends (disambiguation)
Posted by shertaugh at 3:05 PM
"24," Christ Figures, and Executive Power
I confess that I don't, but Jerome Eric Copulsky does, and he offers some provocative thoughts about it this week at the University of Chicago Divinity School's site "Sitings": Early on, I hit upon the show's secret: "24" is a sustained lesson in controversial jurist and political theorist Carl Schmitt's decidedly illiberal concept of sovereignty. "Sovereign is he who decides upon the exception," Schmitt proclaimed at the beginning of his 1922 treatise Political Theology. To have this power is to stand outside the law, to decide upon the state of exception, when the normal rules do not apply. If we follow Schmitt's claim that "significant concepts of the modern theory of the state are secularized theological concepts," the human sovereign is the political analogue of the omnipotent God.
What better description could there be of counter-terrorism agent Jack Bauer, the hero of "24"?I can't test Copulsky's analogies since I don't know anything more about the show than what I hear so many people saying about it. But if you're at "24"-ophile, check out Copulsky's piece.
Posted by Eric at 6:31 AM
March 1, 2007
Note To Reader: Sex/Meat Double Entendre Of Your Choosing Goes Here.
I'd never heard of the place, so after reading the review I did a little, um, "research." And found this review, which presents something of a different picture of the Penthouse Executive Club:
"Dont GOWhat a weird choice of places for the restaurant critic at the New York Times to review.
Posted by laserguy on 09/23/2006So my friend drags me there on a friday night telling me the food is great. We are business guys. We like steaks and gentlemens clubs. I get there and the place is dead. One of the most basic features of any good gentlements club is alot of skin. This one had almost none. I am like looking out at the room and seeing no tail. We order dinner, the porterhouse for two. As the food arrives a couple of the ladies sidle up to our table. Clothed, of course. They join us for dinner and proceed to eat my steak. I gave them sixty dollars and told them to dance. They responded that they were eating. I was flabbergasted. If I am in a club and tell a girl to dance, she should dance immediately without hestitation as though they had been waiting for me to tell them what to do all night. That is how it is supposed to work because I dont care if you are hungry honey. I am the man, this is a club and you are the meat. You dont eat my meat. I actually got into a stare down with this one. She actually challenged me. I was like, do your job. So I paid 300 for a girl to eat my dinner, saw no skin cause they never got down to it and went home hungry proving once and for all that New York night life is a total hustle. I'd rather spend three hundred to throw scraps to my dog. At least a dog knows hot to sit, roll over, beg and be a good little dog."
Posted by Eric at 10:27 AM | Comments (1)
The Republican Phoenix - Michael Chertoff?
Chertoff, who frequently sparked questions about his longterm ambitions after he left his New Jersey post, looked like a political dynamo for a time. Would he run for governor? Would he be the Attorney General if a GOP president won in 2000? Would he be nominated for the Supreme Court? What would he do?
He didn't run for governor. Bush didn't make him A.G, only Assistant A.G. for the Criminal Division. He's not yet made the Supreme, but Bush did put on the 3rd Circuit -- making him judicially experienced for a SCOTUS job.
But after Katrina, it looked like Chertoff couldn't make dog catcher in Elizabeth, New Jersey.
Then a funny thing happened. His former boss, Rudy Guiliani, decided to run for president and is leading the Republican field.
So Chertoff could be back in the game -- for Attorney General or the Supreme Court.
Interestingly, while Chertoff considers himself a legal conservative, he's not of the same stripe as another of his former bosses, Samuel Alito. It was Chertoff who wrote the 3rd Circuit opinion rejecting the government's position that a strip search of the wife and child of an alleged drug dealer, nowhere mentioned in the four corners of a warrant to search their home, violated the 4th Amendment. Then-Judge Alito, who was on the same panel, disagreed.
Chertoff's nothing if not a Phoenix.
Posted by shertaugh at 6:29 AM | Comments (1)