It sounds broken

Laurence Tribe writing at Balkinization about Bush, Judge Taylor’s NSA decision and how the media just can’t seem to focus on what is important, The Bloggerati response to Judge Taylor’s ruling in the NSA Case

My point isn’t that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues. But It’s those with constitutional blood on their hands who deserve to be chastized most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one’s own professional credentials and one’s cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation’s chief executive has been guilty of a shamelessly unlawful power grab.

Again, the law and its finer points are important and I have every confidence that those points will be addressed on the upcoming appeal, and if need be on the appeal after that. We’ll eventually get to the point where Bush and Gonzales get their clock cleaned and every i will be dotted and the same conclusion that Judge Taylor reached will be reached yet again. At that point we can expect the usual shrill whining that passes for discourse on the fringe right. The royal keyboarders of the Right-wing Damn the Constitution Society will face north and say a little prayer in honor of executive activism whilst damning the victory of American values as is their holy tradition.
A conservative supporter of the Bush administration left some comments at Balkinization that not surprisingly echoes the Bush/Gonzales argument the the AUMF(Authorization To Use Military Force) gave Bush the authority to assume authorities that he or any other president would not normally possess, Commander Jeff Huber, U.S. Navy (Retired) takes a mercifully concise look at that argument here, Bush Ain’t Got No Stinking War Powers

The administration has consistently based its claims of “unitary” and “plenary” executive powers on Article II of the Constitution and the Authorization for Use of Military Force (AUMF) passed by Congress in 2001 days after the 9/11 attacks. Yet, Article II makes no mention of a president’s war power authority other than making him commander in chief of the military. It makes no distinction of his powers in this role between wartime and peacetime, it makes no provision for his ability to suspend any other part of the constitution in wartime.

The AUMF states that, “Nothing in this resolution supercedes any requirement of the War Powers Resolution.”

The “War Powers Resolution” referred to is the War Powers Resolution of 1973, which says, “Nothing in this joint resolution…is intended to alter the constitutional authority of the Congress or of the President, or the provision of existing treaties[.]”

Many assert that all the debate over presidential war powers would disappear if Congress formally declared a state of war so the “War Powers Act” could go into effect. But that too is a frivolous claim. The only “War Powers Act” currently in force is the aforementioned War Powers Resolution of 1973, which as we already noted, specifically denies any change to a president’s constitutional authority in time of war.

There is more and a link to a longer article Commander Huber did at the jump.

The mother of all walkbacks: Bush admits Iraq had “nothing” to do with 9/11

[BUSH] The terrorists attacked us and killed 3,000 of our citizens before we started the freedom agenda in the Middle East. They were …

Q: What did Iraqi have to do with that?

BUSH: What did Iraq have to do with what?

Q: The attacks upon the World Trade Center.

Bush: Nothing.

A vote for a conservative in 2006 or 2008 is a vote for a clone of this same inane mentality. Its like one of those super serious moments where we want to laugh to relieve the tension, but then the idea of over 2,500 American dead in Iraq chokes down any pleasure we have at seeing the president of the United States display how utterly lost he is.

Call this today’s trivia. Al Gore is said to have failed to win his home state in the 2000 election, in reality Tennessee is Gore’s adopted state, he was born in Washington D.C. G.W. Bush’s state of birth is Connecticut, which he failed to carry twice.


It sounds broken.


Most likely sir! I bet it was something nice though! Now… I haver an insurance form. If you’ll just sign here, here, and here, and initial here, and print your name here, we’ll get the rest of the forms out to you as soon as we can.

from the screenplay ACE VENTURA PET DETECTIVE written by Jack Bernstein,Tom Shadyac, Jim Carrey

And the sentry moves not, searching Night for menace with weary eyes

Too bad that Thomas Young didn’t have television networks in the early 19th century perhaps he would have made the talk show circuit as a gadabout who knew a lot about many things and a little about everything, The Last True Know-It-All

What are we to make of Thomas Young (1773-1829), a man who contributed 63 articles to the Encyclopedia Britannica, including 46 biographical entries (mostly on scientists and classicists) and substantial essays on “Bridge,” “Chromatics,” “Egypt,” “Languages” and “Tides”? Was someone who could write authoritatively about so many subjects a polymath, a genius or a dilettante?

Maybe if he had just learned Latin he could be described as a dilettante, but since he managed to pick up Greek, mathematics and philosophy we’ll just have to be magnanimous enough to give him his due. I would have admired him had we been friends, but anyone giving scientific write ups at the age of twenty to the Royal Society of London would have also gotten on my nerves a little, especially if he started playing with his eye while I was in the room.

Later in his life, when he was in his forties, Young was instrumental in cracking the code that unlocked the unknown script on the Rosetta Stone, a tablet that was “found” in Egypt by the Napoleonic army in 1799 and has been on display in the British Museum since 1802. The stone contains text in three alphabets: Greek, something unrecognizable and Egyptian hieroglyphs. The unrecognizable script is now known as demotic and, as Young deduced, is related directly to hieroglyphic. His initial work on this appeared in his Britannica entry on Egypt. In another entry, he coined the term Indo-European to describe the family of languages spoken throughout most of Europe and northern India.

I’m not sure that cynical is the right word, the one I was going to use to describe that phenomenon whereby so many people in this world are so easily manipulated. Cynical might be inferred to mean to hold a certain prejudice when what I have come to think came about as an observation of how not all, but too many people react with fear to certain situations. Afraid of losing their jobs, afraid of losing their spouse, afraid of losing their savings and when they had the perception that they were physically threatened. All situations where some fear may be justified and easy to understand, and deserving of our compassion. Its when others exploit fear that my cynicism sets in and my disappointment with a general human condition that allows that fear to be exploited. I doubt that it is a new phenomenon that some of those that are being exploited actually enjoy it and become part of what might be termed the pyramid scheme of fear, selling as much of it as they can. Its easy to get an idea what I mean, just watch a tape of the Republican Presidential Convention of 2004, or Faux News or read a right-wing blog. Frank Rich seems to think the glory days of the exploitation of fear and cultivation of paranoia are over, Five Years After 9/11, Fear Finally Strikes Out

What makes the foiled London-Pakistan plot seem more of a serious threat — though not so serious it disrupted Tony Blair’s vacation — is that the British vouched for it, not Attorney General Gonzales and his Keystone Kops. This didn’t stop Michael Chertoff from grabbing credit in his promotional sprint through last Sunday’s talk shows. “It was as if we had an opportunity to stop 9/11 before it actually was carried out,” he said, insinuating himself into that royal we. But no matter how persistent his invocation of 9/11, our secretary of homeland security is too discredited to impress a public that has been plenty disillusioned since Karl Rove first exhibited the flag-draped remains of a World Trade Center victim in a 2004 campaign commercial. We look at Mr. Chertoff and still see the man who couldn’t figure out what was happening in New Orleans when the catastrophe was being broadcast in real time on television.

No matter what the threat at hand, he can’t get his story straight. When he said last weekend that the foiling of the London plot revealed a Qaeda in disarray because “it’s been five years since they’ve been capable of putting together something of this sort,” he didn’t seem to realize that he was flatly contradicting the Ashcroft-Gonzales claims for the gravity of all the Qaeda plots they’ve boasted of stopping in those five years. As recently as last October, Mr. Bush himself announced a list of 10 grisly foiled plots, including one he later described as a Qaeda plan “already set in motion” to fly a hijacked plane “into the tallest building on the West Coast.”

That’s the thing about having an administration built on secret prisons, secret renditions, and secret programs that not even the Senate is fully informed of, if they have actually scored any real counter-terrorism victories only the kool-aid drinkers believe them and then sans any concrete details. Startling that the single most powerful person in the world keeps catching the biggest bass anyone ever saw and yet didn’t take a single picture.

GOP hopeful trying to put killing behind him

A Laveen businessman running for the statehouse in Phoenix was charged with murder three years ago in the death of a woman in rural Arizona.

Daniel Coleman, now 35, was indicted by a grand jury on one count of first-degree murder after he shot 35-year-old Annette Chalker in the face in 2003. But the case never went to trial. Two former prosecutors who worked on it said that evidence of a murder was lacking and that a conviction appeared unlikely.

To this day, Coleman calls the shooting a tragic accident. Whatever their suspicions, prosecutors couldn’t prove otherwise.

Coleman did settle a civil lawsuit for wrongful death that was filed by Chalker’s family, although the award wasn’t publicly disclosed, under details of theof the agreement.

So Coleman has an O.J. moment and manages to escape the consequences of committing a felony though he was convicted of a DUI, but here’s the kicker,

“Basically, I don’t feel like I did anything wrong,” Coleman said of the shooting when contacted by The Arizona Republic. “It was an accident. It was a tragedy. I don’t understand necessarily why any of this is coming up.”

To understand why ” any of this is coming up” he would have to have a conscience.

With the lust of a man’s first strength: ere they were rent,
Almost at unawares, savagely; and strewn
In bloody fragments, to be the carrion
Of rats and crows.

And the sentry moves not, searching
Night for menace with weary eyes.

from The Trenches by Frederic Manning

no king Can take this loser hand And make it win


One of the more annoying conventional wisdoms of our time is that somehow conservatives in Washington are the answer to the riddle, how to protect the U.S. The mainstream media is all too often more then willing to repeat this modern myth without question. We’re more likely to have hours of news coverage of the latest sex tinged murder then an examination of conservative national security failures over the last forty years. The debacles of conservative national security policy are not just about failing to keep American’s safe in the immediate sense, those debacles from Nixon’s Vietnamization to Iran-Contra made the world less safe and made tens of thousands of people suffer needlessly. That trend from Nixon in the seventies and certainly from Reagan in the eighties continues up to Bush’s failure to aggressively push counter-terrorism before 9-11 ( Ashcroft’s Justice Department made prosecuting pimps a priority over Al-Queda) and the lies, half-truths, and distortions that lead us into a quagmire in Iraq. Just as Bush hides his illegal warrantless domestic spying behind the veil of national security privilege conservatives hide their failures behind the shield of manufactured patriotism. How dare we point out their ineptitude they cry…we’re at war. How long can conservatives continue to try and hide their failures and launch absurd attacks on their critics as a smoke screen hoping they never have to answer for decisions that have been disastrous. I think they can continue as long as the bulk of the media continues to be lazy. With the exception of the print media in the last two years there was more coverage of President Clinton’s personal adventures then there has been of Bush’s wrong doing and conservative corruption. The odd thing is that conservative screw-ups have been the Purloined Letter of our time. All anyone has to do is open up their eyes and see what is right in front of them, Republican are unimaginably bad on national security. Say it loud, say it often, it’s the truth.

1. 9/11 happened on their watch. Of course, we can’t say, absolutely, that it would not have happened if they had not been asleep at the wheel. But we can say that they did not do all they could have done to prevent it. We can say that Bush literally pushed away the warnings.

8. By the way, every major European nation has had successful arrests and real trials of real, dangerous terrorists. People on the level of this group that the British just took down. The most ferocious terrorist arrested in the United States since 9/11 has been the shoe bomber. Ten, twenty, forty, a hundred billion dollars, a trillion dollars, and the best we have to show for it is the shoe bomber?! Republicans are bad on national security.

It is this record that makes so many believe that conservatives are enjoying flitting around like impotent butterflies talking tough rather then actually being effective. You just cannot spend over two billion dollars a month in Iraq, look at the situation there and swear that you know what you’re doing or that what you’re doing is effective. On some deep level it is difficult to think that conservatives want to stay on this course of failure because they think its a winning course, they want to “stay the course” because it is doomed to continue to fail and they enjoy failure; constant never ending conflict is their idea of winning.

The Bush Power-Grab Scorecard from Wired. Interesting that the administration when not trying to trump the courts with the national security secrets card always seems to loose. They’re supposedly sound legal arguments fail when the courts are allowed to hear from all sides. Not a good harbinger of things to come in regards to appealing Judge Taylor’s NSA decision.

One of many conservative wet dreams is that George’s little brother can continue big bro’s abysmal record. It looks as though he has the same play for pay attitude that permeates every decision Republicans make in regards to whats right and whats wrong morality wise, Yoo, Bush: Law? We Got No Law! We Doan NEED No Stinkin’ Law!

Bacardi [U.S.A., the Miami-based liquor company] used its strong Republican political connections to win favorable treatment from the Bush administration in the trademark dispute. The Washington Post and the Daily Business Review reported that Gov. Jeb Bush personally lobbied patent officials in Washington, D.C. on Bacardi’s behalf.

Meanwhile, Bacardi was funneling tens of thousands of dollars
to the Florida Republican Party
and Bush’s re-election campaign in 2002.

Bacardi has denied that it engaged in any improper action.

Which also goes into this story from NYT, On Technical Grounds, Judge Sets Aside Verdict of Billing Fraud in Iraq Rebuilding, Defense Tech asks the questions that most of us taxpayers are asking, Who Ran the Coalition Provisional Authority?

Did we miss something here? Wasn’t Paul Bremer, the CPA’s head, reporting to the U.S. government? Wasn’t the CPA funded and controlled by the U.S. government? Did the United Kingdom really have much of a say (or maybe it was Nicaragua pulling the strings)? The ruling, if upheld, simply makes a bigger mess of U.S. policies in Iraq, particularly as it pertains to private contractors’ accountability.

I’m standing in the middle of the desert
Waiting for my ship to come in
But now no joker, no jack, no king
Can take this loser hand
And make it win
from the lyrics Leaving Las Vegas by Sheryl Crow

The NSA Decision and Things “untrammeled”

Following up on the decision of Judge Anna Diggs Taylor’s regarding the illegality of of Bush’s domestic spying without warrants from the FISA court it does look as though many liberal bloggers while glad at the result are to some degree disappointed by the route in which Judge Taylor reached her decision. Here is Legal Fiction’s take,

What Should Have Happened

Personally, I think the Court should have said (1) the standing showing is good enough for now; and (2) your privilege claims are not strong enough to scuttle the complaint. Then, discovery would have proceeded, which is what happens almost 100% of the time that courts deny motions to dismiss. At that point, the Court could have made it clear that the government can only rely on facts it’s willing to disclose. Then, the government could decide whether to waive the privilege and provide this information – or take its chances by keeping this information from the Court.

At the very least, however, if the Court wanted to proceed to the constitutional issues (which it shouldn’t have done), it could have at least asked for briefing. Courts just don’t do jump the gun like this, particularly on matters this important.

I know that in the real world things get down and dirty, sometimes the right thing is done for the wrong reasons and we just celebrate the fact that some greater good was done that justifies the sloppy way in which the result was obtained. The law isn’t like that or at least it is not like that most of the time. In this case on one side (the judge’s decision) we have questionable legal wrangling while on the opposing side – which consists of the administration which has clearly broken the law and fends off court challenges by claiming national security like chicken-little set to a timer, Scott Lemieux at Lawyers, Guns and Money makes some very salient points,

I should say that 1)I agree that there is clearly some measure of racism and sexism involved in the criticisms made by people who don’t have any knowledge in the field and focused on her individual characteristics without having read the opinion, 2)I don’t have any problem with the “overheated rhetoric” per se, and criticism about it is laughably disingenuous coming from people who revere Antonin Scalia, and 3)I also agree that most of the same people would be attacking the opinion in the same way even if Oliver Wendell Holmes came back to earth and inhabited Diggs Taylor’s body. Nonetheless, sometimes there is a wolf. Even if we assume that a summary judgment was defensible with respect to the violation of FISA–and given Hamdan, the administration’s argument is unserious–I just can’t agree that the First and Fourth Amendment arguments are so unambiguous as to make a decision before during pleadings appropriate. And in addition to being legally erroneous, I think that the overreaching makes even her good arguments look bad.

and Glenn Greewald in the comments at L,G & M writes,

(1) In a garden-variety, fact-intensive dispute, a District Court’s opinion may be important in persuading an appellate court, but with issues of this magnitude, the Sixth Circuit judges will be deciding these issues from square one analytically, regardless of how beautiful or ugly the reasoning of the District Court was.

Sure, it might be true that if the District Court’s reasoning were super-persuasive, it could influence the outcome (simply because it persuades the appellate judges), but the quality of the opinion is almost certain to be irrelevant in the outcome of the appeal because the Court of Appeals (and probably the Supreme Court after that) will look at these issues de novo, with a completely fresh set of eyes, and won’t care at all how sound or unsound the District Court’s reasoning was.

(2) A decision is affirmed or reversed on appeal based solely on the correctness of the result it reaches, not on the soundness of the reasoning used to reach the result. The Sixth Circut could conclude that warrantless eavesdropping violates the 4th and 1st amendments for reasons wholly different than what the District Court offered, and if that happened, the District Court’s opinion would be affirmed, not reversed.

With legal questions this consequential, District Court decisions are almost always irrelevant to the ultimate outcome. The significance here is that a federal judge re-affirmed the principle that the President’s conduct is subject to judicial scrutiny and that courts have the power to stop illegal presidential action. The quality of the written decision, in the scheme of things, is a sideshow, a meaningless distraction.

So lets get to what is rearing its ugly little head just below the far right’s smear and suspect legal wrangling. Fear. They’re afraid of everything. They’re afraid that people will see that we can be safe without overreacting and that as a country we can be rational and realize that we don’t have to scrap the constitution in order to survive. The right is afraid that people will see that their world view is the exaltation of the worse parts of human nature, that it is petty and hateful and perpetuates those qualities in others. Just the simple act of backing up and admitting wrong scares them. Its the fringe right’s domino theory of personal flaws, if they admit they were wrong about Bush/FISA or Iraq or turning Medicare into corporate welfare then everyone will see that they’re flawed, that they are not infallible, that almost all of the time they act out of loyalty to partisan politics not to what is good for the country. I clicked around the land of Wingnuttia to find something original in the follow ups to this story and it was for the most part a variation on this theme from a fringe rightie called Sister Toldjah, 8/18/2006 – 9:55 am Yesterday’s ruling on the NSA’s warrantless wiretaps

Updated to add: How could I forget to comment on the reactions of the usual suspects? Of course there was happiness and celebration in the lefty blogosphere yesterday over this ruling, but make no mistake about it. They weren’t happy for the reasons they claimed to be (“preservation of our Constitutional rights!!!!!!!!!!!”) but rather because this was a defeat for the Bush administration – and we do live in an era where Bush-hatred trumps concern for our national security to a certain segment of the Democratic party. A Bush loss in the war on terror is victory to the Bush-haters … and as you know, a Bush loss in the war on terror is not just victory to them, but a significant victory for Islamofascists, too.

Wow, eleven exclamation marks that means she must be right. Note caring about the executive’s grab for unitary power translates to hatred for Bush and hatred for Bush is hatred of America. When did a spoiled prep school elitest BECOME America. As always a victory for law and respect for American values is seen by the the ever fearful far right as a victory for ” Islamofascists”. Disregarding the question of whether there actually is such a thing as an “Islamofascists”, any time we as a nation render our laws and the constitution weaker out of paranoia that is when the terrorists get to celebrate a little victory and it is the far right like Bush and Sister Toldjah that seem all to glad to hand them those victories.
Patterico’s Pontification’s seems to be determined to stay in the game though he has little to contribute, but he has do marginally better then Sister, 8/18/2006
Greenwald: Untrammeled Executive Power Bad, Untrammeled Judicial Power Good

Shorter Glenn Greenwald:

Sure, Judge Taylor’s NSA opinion is poorly reasoned dreck. But she reached the right result — and that’s all that matters.

Some people have a talent for doing the Shorter thing, PP is not one of them. That is not all that matters to Glenn as the piece at Salon, the posts at his blog, and the comment I used above can attest. And as Glenn and L,G & M points out the decision may be upheld on appeal using the appeal court’s own reasoning which may have a more thorough repudiation of the Whitehouse’s argument, thus leaving Sis, PP and others eating a fair share of crow. Looking ahead Judge Taylor’s ruling may be overturned, from that there will certainly be an appeal and further down the road look for the possibility of bringing the case to the SCOTUS. Either path doesn’t bode well for the administration. Even if Bush is out of office his infidelity to the law will be legally condemned. PP says it will be appealed yet doesn’t see the big picture when he also states,

And herein lies the irony: Glenn Greenwald claims to be concerned about untrammeled executive power, yet he seems utterly unconcerned about untrammeled judicial power. Sure, Judge Taylor’s decision can and will be reviewed by appellate courts, but Greenwald has made it clear that he will applaud even the most weakly reasoned decision by any court, including our nation’s highest court — as long as it comports with his view of the law. This despite the fact that Glenn Greenwald wears no black robe (at least as far as I am aware), has not been presented with the legal briefs, and has not reviewed the relevant classified information.

PP describes a decision that the Whitehouse will be free to appeal as “untrammeled judicial power”. Untrammeled would suggest no further recourse and the Whitehouse’s singular talent is the ability to avoid accountability. I think he just likes using the word untrammeled. How ironic that in this little paragraph he has already made his own little decision, that regardless of what any court says Bush is entitled to do whatever he wants without constraint. So should we thank him for being so honest about where his point of view arises, one that is untrammeled in its loyalty to all things Bush.

One final note. Some on the right as well as the left are conflating what might be interpreted as Glenn Greenwald’s personal approval of the NSA decision with his legal opinions. I think the two are there in different degrees and that it is a mistake to dismiss his legal arguments because of the perception of personal stakes. Orrin Kerr and others have saddled up the nice safe little pony of I Don’t Know or I’m Not Quite Sure and others have staked out the Bush says and ditto for me argument. Out of the pack at least Glenn and Scott Lemieux have made cogent arguments while everyone else graps for straws.

For some comic relief, HT to War and Piece for this bit of satire from Julian Sanchez, George W. Bush reads Camus (as told to Julian Sanchez)

August 11: My anger at The New York Times subsides somewhat as I skim Foucault and Sartre. Surveillance serves its disciplinary function only if the populace is conscious of it. And if Americans aren’t wrenched from being-pour-soi to being-en-soi (at least in relation to an observer who is Other) by the objectifying gaze of the state — well, then the terrorists have won.

Conservative Bloggers In Incoherent Frenzy Over Judge’s NSA Decision


Eavesdropping program ruled unconstitutional

The defendants “are permanently enjoined from directly or indirectly utilizing the Terrorist Surveillance Program in any way, including, but not limited to, conducting warrantless wiretaps of telephone and Internet communications, in contravention of the Foreign Intelligence Surveillance Act and Title III,” she wrote.

She declared that the program “violates the separation of powers doctrine, the Administrative Procedures Act, the First and Fourth amendments to the United States Constitution, the FISA and Title III.”

Her ruling went on to say that “the president of the United States … has undisputedly violated the Fourth in failing to procure judicial orders.”

Before I get into the reactions of the fringe right blogs let me restate the issue. As the judge stated, not this president, not any president is above the law. Bush must follow well established legal precedent in regards to the surveillance of American citizens. The AUMF in no way gave him the authority to ignore FISA or the 4th amendment. He may not place under electronic surveillance any American citizen in America any time he chooses to without a warrant for longer then 72 hours (a FISA provision added after 9-11). Right-wing bloggers have chosen to ignore Bush’s violation of the law and opted to smear the judge instead,
The reactionary Patterico’s Pontifications – 08-17-2006 – writes,

Ideologue Leftist Judge Rules NSA Program Unconstitutional
Based on this history, I predicted in my earlier post that Judge Taylor would rule the NSA program unconstitutional. If Judge Taylor was willing to bend the rules to promote affirmative action, why not twist the law in order to rule unconstitutional a significant Bush anti-terror program?

If one rules in favor of affirmative action one can assume that one will rule against Bush? Here again we also have right-wing double-speak calling the warrantless surveillance of Americans rephrased as an “anti-terror program”. If Bush was sincerely concerned about keeping the program running as is he says he is he should have gone to the people’s Representatives in Congress and had the law changed. At least that is what those that respect the co-equal branches of government provided for by the constitution think he should have done; we should all obey the law first and then change it rather then break the law then try and rationalize it or get someone to retroactively change the law so that you’re not guilty.

Patterico’s quotes,

Eugene Volokh says that the opinion “seems not just ill-reasoned, but rhetorically ill-conceived.” He calls it a “seemingly angry, almost partisan-sounding opinion” which is “rich in generalities, platitudes . . . and “obviously”’s, and poor in detailed discussion of some of the government’s strongest arguments.”

Orin Kerr describes the opinion using phrases like: “well, um, it’s kind of hard to know what to make of it” and “I confess that this has me scratching my head.”

Yes Kerr ( a lawyer) is scratching his head, but doesn’t offer up a real rebuttal to the judge’s decision,

It’s hardly obvious that the program — or some aspect of it — violates the Fourth Amendment; that’s the issue before the court, and my sense is that we really don’t know enough to answer it without knowing the facts.

The right-wing blog The Jawa Report writes, August 17, 2006 – Judge Orders Wiretapping Program Shut, Nation Cheers

Thank you Judge Taylor for shutting down the international wiretapping program. I feel so much safer knowing that my Constitutionally protected right to chat with Ayman al Zawahiri about the weather in Waziristan is safe in your hands. Thank you for saving me from the evil hands of George W. Bush. Thank you. Thank you. Thank you.

Actually Bush could continue to spy on Ayman al Zawahiri ( if he is still alive) because the issue is not the government’s prerogative to spy on foreign agents or foreign governments. So does Jawa not understand the issues or the law? I don’t thnk he does and that’s OK. Its alright not to understand the issues, to wait and do some reading and after some thought give forth an informed opinion, but Jawa like most of the far right would rather open mouth first and maybe think later. Instead he has chosen to lie because that is what paid up members of the cult of Bush do. Jawa and many other conservative bloggers may want to refresh their collective memories. Bush started spying on Americans before 9-11, Spy Agency Sought U.S. Call Records Before 9/11, Lawyers Say

The U.S. National Security Agency asked AT&T Inc. to help it set up a domestic call monitoring site seven months before the Sept. 11, 2001 attacks, lawyers claimed June 23 in court papers filed in New York federal court.

The allegation is part of a court filing adding AT&T, the nation’s largest telephone company, as a defendant in a breach of privacy case filed earlier this month on behalf of Verizon Communications Inc. and BellSouth Corp. customers. The suit alleges that the three carriers, the NSA and President George W. Bush violated the Telecommunications Act of 1934 and the U.S. Constitution, and seeks money damages.

“The Bush Administration asserted this became necessary after 9/11,” plaintiff’s lawyer Carl Mayer said in a telephone interview. “This undermines that assertion.”

Conservatives swear we’re all gonna die unless we let Bush do what he wants. He did what he wanted before 9-11 and we all know what happened. The administration and the head of the NSA have already been caught lying, via The Great Society

Dick Cheney in an article in the January 4, 2006 Washington Post:

Vice President Cheney said yesterday that the Sept. 11, 2001, terrorist attacks might have been prevented if the Bush administration had had the power to secretly monitor conversations involving two of the hijackers without court orders.


Cheney said if the administration had the power “before 9/11, we might have been able to pick up on two of the hijackers who flew a jet into the Pentagon.”

Current CIA director and former NSA chief, General Michael Hayden, as quoted by CNN, January 23, 2006:

“Had this program been in effect prior to 9/11, it is my professional judgment that we would have detected some of the 9/11 al Qaeda operatives in the United States, and we would have identified them as such,” said Hayden, who now is principal deputy director of national intelligence.

A commenter at Jawa writes,

lets hope the first bomb that comes here is dropped on this judges head. what a stupidm move. i cannot believe she would do this. she needs to be put out of office immediately.
frank la may

The right just can’t stop giving into their racism and day dreams of death for their opponents. They can engage in all the fear mongering and blood lust they like it still does not change the fact that Bush is running America more like Cuba then then a democratic republic.
Blogs for Bush goes right for the tiresome and predictable McCarthyism, Federal Judge Rules In Favor of Terrorists – August 17, 2006

It should come as no surprise that Judge Anna Digg Taylor was appointed to the federal bench by Jimmy Carter back in 1979.

Why is the American Left so determined for us to lose the war on terror? The Terrorist Surveillance Program has prevented terrorist attacks and saved lives… Why do Democrats oppose preventing terrorist attacks and saving American lives?

The leash is pretty tight over there at Blogs for Mr B. Bush’s clear violation of FISA is directly responsible for saving lives?..if that were my president I would offer up proof of violating FISA has saved lives. BFB couldn’t be bothered with such proof because there isn’t any (Surveillance Net Yields Few Suspects). They even capitalize and push the Big Brother doublethink with the meme of the “The Terrorist Surveillance Program”. If the program was about nothing but spying on known terrorists the only problem the left has with that is if they are known terrorists, stop spying on them and arrest them. Want to save lives? Get Bush to take his memos from the CIA seriously, Bin Laden Determined To Strike in US. A very simple fact, more American have died under G.W. Bush’s watch from terrorists then all presidents in the last fifty years combined. Another blog back-tracking there writes,

UrbanGrounds linked with The Power of Perfect Irony
I would make U.S. District Judge Anna Diggs Taylor the very next innocent person to be killed by an Islamofascit jihadist (is there any other kind?) who would have otherwise been caught via President Bush’s wireless surveillance program. …

It s not enough to disagree with the judge, do a little research and state your disagreement in the land of Wingnuttia. If you dare to not march in lock-step agreement with the wing-nuts you deserve to die. Again and again these pontificatots of conservatism give a lot of lip service to freedom and preserving freedom, but no one may exercise freedom, but them. (note: comments copied as found).

There is a crack in the court’s opinion and right-wing bloggers would be well advised to start reading some liberal blogs to get some real ammunition rather then relying on Swiftboating the judge and making incoherent assertions. From the Anonymous Liberal, Missing the Mark

But what makes this even more frustrating is that there is no need to reach this question, much less rely on it to support your other conclusions. The logical structure of the opinion is entirely ass backwards. Because FISA is currently the law of the land, there is simply no reason to reach the Fourth Amendment issue. The Fourth Amendment only comes into play if you first rule that the AUMF or article II authorizes the president to violate FISA. And this is where the DOJ has absolutely nothing to support its position.

Judge Taylor (and her clerks!) had to have known that this opinion would be subjected to instant and intense scrutiny, both within the legal system and in the court of public opinion. In light of that, I just don’t understand why she chose to issues such a bare-bones opinion. Even if this decision is upheld by the Sixth Circuit, the appellate judges are likely to take issue with her reasoning.

TLA is more astute about these finer legalisms then I, but I have to agree that the judge should have centered her reasoning on FISA rather then the 4th amendment.

Just one more blogger who is so far to the right she makes Engelbert Dollfuss look progressive, Debbie Schlussel – NSA-Opposing Judge Engaged in Misconduct-August 17, 2006,

I figured Judge Anna Diggs Taylor, a 73-year-old Jimmy Carter appointee, would have the chutzpah to overturn the NSA wiretaps and rule in favor of the ACLU and its raft of Islamist, America-hating plaintiffs. And she did not disappoint my low expectations of her.

She seems to hate America and fairness almost as much as the Plaintiffs do. She certainly hates a fair, impartial Judiciary. It’s not just that she’s a shameless liberal who always allows her politics to enter into her decisions. It’s that she’s so shameless she improperly interferes with cases that are not even hers.

Appointed by Jimmy Carter, former president and minister from Georgia, yep that judge must be evil. “chutzpah” ?, no the judge used legal reasoning and while that reasoning may be off a little, Schlussel would rather engage in character assassination then be bothered with rational arguments based on the law. “shameless liberal”? There’s no reason to be ashamed of being a liberal, liberals did invent democracy and wrote the constitution of the country where Schlussel is free to sling mud rather then act like anything resembling a mature adult and responsible citizen. Hating America seems to be an art perfected by modern conservatives who stand by while while Bush shreds the Constitution and gets over 2500 Americans killed for a lie, who uses sigining statements as a back alley device to avoid legal responsibility for his actions. Bush supporters are simply willing accomplices to treachery wrapped in our flag, they are the two faced scroundrels of our time.

More at Unclaimed Territory, Federal court finds warrantless eavesdropping unconstitutional, enjoins the program

.. the court swiftly and dismissively rejected the administration’s claim that the AUMF constitutes authorization to eavesdrop in violation of FISA, noting that FISA is an extremely specific statute while the AUMF says nothing about eavesdropping. In any event, as the court noted, since the court found warrantless eavesdropping unconstitutional, Congress could not authorize warrantless eavesdropping by statute.

For those that think people are dying in Iraq to spread freedom and democracy, well that was only true when Bush’s poll numbers were over fifty percent and the mid-term elections weren’t just around the corner. Now the Whitehouse looks like they’re looking for the easiest exits from the quiqmire that they created, White House Searching For ‘Alternatives’ To Democracy In Iraq

“Senior administration officials have acknowledged to me that they are considering alternatives other than democracy,” said one military affairs expert who received an Iraq briefing at the White House last month and agreed to speak only on condition of anonymity.

“Everybody in the administration is being quite circumspect,” the expert said, “but you can sense their own concern that this is drifting away from democracy.”

Bush has rationalized the Iraq war by arguing “a free Iraq at the heart of the Middle East” would transform the region and be remembered as a “watershed event in the global democratic revolution.”

It is for times like this that the gallows laugh was invented. By the way the post at Think Progress says that Rich Lowry of National Review states that his sources at the Whitehouse denies that the administration is seeking alternatives.

Surmise and fancy have no place in my scheme of thought.


Wilbur in a diary over at DKos has an imaginary interview between Bush and a reporter about Camus’s The Stranger, George Bush discusses Albert Camus’ The Stranger and our first imaginary quote of the day, “Even if he didn’t have a knife it would have been the right thing. Because Moreso made the beach safer for democracy.”

George Allen (VA-R) seems to have more then bigotry problems. He’s mean, arrogant, and dumb as cardboard. Which means he has a very good shot at the Republican nomination for president in 2008, GOP Senator George Allen’s Sister Documents Her Brother’s Bully Tactics: “He Saw Dentistry As A Perfect Profession – Getting Paid To Make People Suffer”…

I suspect that since the WSJ ran this great short essay by Ned Lamont, The Democrats Mean Business we’re probably see a hit piece counter response by one of their professional liars in the next few days. Toward the end Lamont sums it all up with what would make a great narrative for the entire party heading into 2006,

Good judgment is an essential part of good governance. But we’re bogged down in Iraq, and hamstrung in the war against terror, by leaders who lacked judgment, historical perspective, openness to other cultures and plain old common sense. We offer something different.

The right wants to paint Lamont as extreme? This statement seems very thoughtful compared to what can be said in candor about the radical right-wing extremists running America.

Parsing the Polls: Is a Democratic Wave Building?. The short answer is yes and Democrats should still run every race as thought they were 12 points behind.

Crunching the numbers, President Bush’s average job approval number in the polls cited above is 36 percent while his average disapproval is 58 percent. The average approval rating for Congress is even more dismal — 29.6 percent and its disapproval is 62.3 percent.

Robert Scheer: Spinning Old Threats Into New Fears

Because checking or banning fluids was not a focus of this administration’s post-Sept. 11 airport security measures, this “coincidence” would suggest either enormous negligence on the part of those charged with protecting us or a ludicrous overreaction this past week. Knowing as we did of Mohammed’s earlier plan, why wasn’t the Department of Homeland Security requiring fliers to dump their bottles of hairspray and mother’s milk before?

Bob is trying to explain the way conservatives behave from the point of view of a rational person. That would be an exercise in futility Bob.

But my brain is soaked with exact knowledge. I have trained myself to deal only with fact and with proof. Surmise and fancy have no place in my scheme of thought. Show me what I can see with my microscope, cut with my scalpel, weigh in my balance, and I will devote a lifetime to its investigation. But when you ask me to study feelings, impressions, suggestions, you ask me to do what is distasteful and even demoralizing. A departure from pure reason affects me like an evil smell or a musical discord.

from The Parasite, Chapter I by Arthur Conan Doyle

Newsbusters and the Wall Street Journal: Dumb and Dumber


During the recent right-wing howling over the British terror plot once again the fringe right has proved itself incapable of having a intelligent discussion about national security and the Constitution. This is from a wing-nut site called Newsbusters, dated 9-11-2006, Thank NSA Wiretapping for Foiled Terror Plot?

Will the New York Times write stories on how eavesdropping is what alerted U.S. authorities to the terrorist airplane attack? Time magazine reported in an exclusive that the “U.S. picked up the suspects’ chatter and shared it with British authorities.”

The operation involved cooperation between British and American authorities.

Britain’s MI-5 intelligence service and Scotland Yard had been tracking the plot for several months, but only in the past two weeks had the plotters’ planning begun to crystallize, senior U.S. officials tell TIME. In the two or three days before the arrests, the cell was going operational, and authorities were pressed into action. MI5 and Scotland Yard agents tracked the plotters from the ground, while a knowledgeable American official says U.S. intelligence provided London authorities with intercepts of the group’s communications.

The Wall Street Journal says media and Democratic opposition to the programs now looks foolish after the foiled terror plot.

The plot was foiled because a large number of people were under surveillance concerning their spending, travel and communications. Which leads us to wonder if Scotland Yard would have succeeded if the ACLU or the New York Times had first learned the details of such surveillance programs


It looks like Newsbusters is run by someone only capable of winning arguments with small frail straw-man. No Democrat, let me repeat that, NO Democrat of any prominence has said that we shouldn’t spy on suspected terrorists. Our laws allow for spying on the British and any communications going into and out of Britain. That is not even an issue. None of the plotters as far as we know were in the US or US citizens. Newsbusters and the editorialists at the WSJ are simply lying sacks and not speaking to the real issue. President Bush and conservatives want to spy on any American citizen in America anytime they want without a warrant. Newsbusters and the WSJ are liars when they state the issue in any others terms. The NSA can by law spy on the British and the Pakistanis all day without restriction and no Democratic member of Congress or the Senate has voiced any objection to that. No one has any objection to spying on suspects in the US if they are non-US citizens. We have no objection to the spy first arrangement in FISA whereby the NSA may spy on someone for 72 hours before getting a warrant. Either Newsbusters and WSJ are simply the most immoral of liars or they cannot grasp the constitutional issues involved. If the first case is true this will not be the first or the last time that our nation will pay the price for conservative’s slim grasp of morality and the truth. If the second is true, one could say that whatever they have to offer by way of opinion on constitutional issues are just the irrelevant rantings of mentally deficient nationalists that could care less about the rule of law and the common good.
The Suit Challenging the NSA’s Warrantless Wiretapping Can Proceed, Despite the State Secrets Privilege: Why The Judge Made the Right Call

It seems possible that Judge Walker’s decision might be upheld by the Supreme Court (though by a slim majority) if it ever reaches there. For not only the Rasul and Hamdan decisions, but also a decades-old Supreme Court decision, Reynolds v. United States, support the idea that the Executive simply does not have the one and only say-so when it comes to the state secrets privilege.

In Reynolds, decided in 1953, the Court already foresaw that the Executive might try to get a rubber stamp from the courts for state secrets claims, and said that no such stamps would be forthcoming. The Court stressed, instead, that “[t]he court itself must determine whether the circumstances are appropriate for the claim of privilege….” (Emphasis added.) This language clearly implies that the court can’t just accept the Executive’s word for it when it claims that privilege is warranted in a given case or situation; it must undertake an independent factual inquiry of its own.

It’s just this kind of independent factfinding that has been anathema to the Bush Administration, which would prefer to make, for instance, its “enemy combatant” certifications without any judicial review at all. Failing that, the Administration has sought a rubber stamp from courts, asking them to simply review affidavits from executive branch officials containing conclusory claims that a given person is an enemy combatant.

But Reynolds makes no bones about what the legal rule is: When it comes to the state secrets privilege, independent factual determinations by the court are absolutely necessary, and rubber stamps must be thrown out the window.

That should be no surprise: What’s surprising is the Bush Administration’s position that it should be able to “certify” facts that the federal courts cannot question, rather than submitting to courts’ basic function of assessing evidence for themselves.

In our constitutional system, courts are not puppets, but independent actors in their own right. As Judge Walker put it, “the court has a constitutional duty to adjudicate the issues that come before it.” And “adjudication” means hearing evidence, and making independent decisions — not just reading papers that are filed, and dismissing a case whenever the government asks you to.

You gotta punch your weight

Economic populism just can’t seem to get a head of steam going and maybe its because most people take consumer protection for granted. Conservatives in philosophy, though seldom in actual practice cry let the market decide, with a small background echo from economic libertarians. While the phrase “let the market decide” is somewhat appealing, most of us know a marketing gimmick when we hear one. Though the ones that would be the best spokespeople for a populist regulated economy, one that looks out for the average Jane or Joe are the ones that bought that pumped up stock or got burned on the miracle program that said you could lose fifty pounds by watching TV and eating chocolate chip cookies. When people are taken for a ride they’re generally not keen on announcing the fact on tomorrow’s evening news. At least most people feel that way. Sure an economy that is structured on free market concepts is great, but also guarantees that there is a shoddy product or unethical service waiting around every corner. Why anyone thinks thinks that simply squawking let the buyer beware is enough protection for consumers or investors has never been faced with financial ruin because they trusted someone. Yes the greedy are sometimes easy targets and maybe even deserving targets, but more often then not in everyday economics for millions of Americans where a hundred bucks can make the difference between buying groceries or living on peanut butter, consumer protection is not a luxury its an imperative and in some cases even conservatives have been forced to come to terms with that, Economic Populism Proves Popular

Payday loans are short-term, high-interest loans. Borrowers receive an immediate cash payment and, in exchange, write a post-dated check that can be cashed once they receive their next paycheck. The interest rates are far, far higher than loans through commercial banks, up to 500 percent (and in some cases, as high as 900 percent). Most perniciously, the loans can be rolled over for additional fees, which means customers can end up paying more interest than the principal they’d originally borrowed. In the last few years the industry has exploded: From 2000 to 2003, the number of payday lenders more than doubled, and the industry’s sales quadrupled to $40 billion.

In response, states from Florida to Arkansas to Illinois have been cracking down on payday lenders, imposing strict disclosure regulations, limits on the number of rollovers and interest caps. Until recently, Oregon was one of only seven states with no such caps, and the lack of regulation served as a magnet for the industry, with out-of-state companies flocking in to set up shop.

As payday lending exploded, so too did horror stories about cyclical debt and eye-popping interest rates. Portland resident Maryann Olson, a 58-year old retired nurse on disability, didn’t have the $150 she needed to buy orthopedic shoes, so she took out a payday loan. Several months later, she owed $1,900 to six different lenders. After housing and medical costs, she had so little money left over to pay down her debt, she says she “was going out to other payday loaners, trying to rob from Peter to pay Paul.”

Social service agencies around the state began noticing more and more of their clients in situations like Olson’s. Angela Martin, Our Oregon’s director of economic-fairness campaigns, says that at the Oregon Food Bank, where she previously worked, the fastest-growing type of clientele was working families. “They couldn’t make room for the grocery bill,” she says, “because they had to pay the payday lender.”

What I really learned from the
Charlie Debacle is that you gotta
punch your weight. Charlie was out
of my Class: too pretty, too smart,
too witty, too much. What am I?
Average. A middleweight. Not the
smartest guy in the world, but
certainly not the dumbest. I’ve
read books like The Unbearable
Lightness of Being, Angela’s Ashes,
and Love in the Time of Cholera,
and understood them, I think —
they’re about girls, right? — just
kidding — but I don’t like them
very much. My all time top five
favorite books are Johnny Cash’s
autobiography, Snow Crash by Neil
Stevenson, Zen and the Art of
Motorcycle Maintenance, The Trouser
Press Guides to Rock, and, I don’t
know, probably something by Kurt
Vonnegut. I look through the New
Yorker when my neighbor’s done with
it, and I’m not averse to going
down to the Fine Arts to watch
subtitles films, although on the
whole I prefer American films.
Top five being Blade Runner, Cool
Hand Luke, the first two Godfathers
which we’ll count as one, Taxi
Driver, and The Shining. I’m okay
looking, average height, not
skinny, not fat. My genius, if I
can call it that, is to combine a
whole load of averageness into one
compact frame.
from the screenplay HIGH FIDELITY by D.V. De Vincentis, Steve Pink, & John Cusack, based on the novel by Nick Hornby

No one understands what leads people to do irrational things

Why would G. W. Bush, an adherent of the school of thought that considers all self reflection weakness be reading a French existentialist? Stranger and Stranger Why is George Bush reading Camus?

Whatever the reasons, Camus’ story line is ripe for geopolitical literary misinterpretation. The main character, Meursault, spends much of his life as the young George Bush did, engaging in escapades that demonstrate little drive or motivation. On a visit to the beach with friends, he gets into a fight with some Arabs. Later, he finds one of the Arabs and without much further provocation shoots him repeatedly. During the circus-trial that follows, and the long hours Meursault spends in jail, he is remorseless and unable to engage in contemplation. On the day of his execution, he has a flickering thought that he might have lived another life. But mostly he’s excited about the day and hopes that everyone will cheer for his death.

I’m not sure that this is even interesting. The Stranger is one of the most accessible writings of literary existentialism. One can appreciate it as a story without knowing the first thing about philosophy. Camus did mean to write a story that had the edge of American detective fiction in mind, stressing the narrative without deeper then thou analysis. Mersault is a clerk who wastes away his days chasing women and watching movies; Bush despite his headstart in life begin avoiding responsibility from the time he left college, avoiding the draft and at least after his first year took little interest in his Guard duties. As Mersault avoids contemplation of his social resposibilities, Bush also dived headlong into 20 years of alcoholism and probably some cocaine use. That Bush hedges when asked about his drug use suggests that he isn’t fully willing to accept responsibility for his actions. Just as Mersault tries to put off responsibility for his. Mersault has a realization or maybe more a kind of revolting pysphological epipthany while in his cell,

“It was as if that great rush of anger had washed me clean, emptied me of hope, and gazing up at the dark sky spangled with its signs and stars, for the first time, the first, I laid my heart open to the benign indifference of the universe.”

Long distance literaray pyschological analysis is iffy, yet one wonders if all the cheerleader-like enthusiasm for shock and awe and the tens of thousands of innocent people that have died was the result of some deep self hatred that Bush is acknowledging to himself. Not too far fetched since most men that display the level of arrogance that Bush has usually have some unresolved issues about self image. The arroagnce becomes a mask for their personal short commings. Bush’s resume up to taking the Whitehouse was nothing but failures and riches accumulated solely based on his last name and his father’s connections, the privledged class that thinks life owes them something. Bush like Meursault does acknowledge surface facts, the chronology of things, except for some missing months in Georgia, but hasn’t seemed to learned anything from his life experience. Bush like the existential character always seems detached, unable to do much more then parrot things that others have told him about morality. Having read The Stranger will Bush turn the corner, will the light go on. Probably not,
“I think—tide turning—see, as I remember—I was raised in the desert, but tides kind of—it’s easy to see a tide turn—did I say those words?”, Bush- Washington, D.C., June 14, 2006
Its one thing to read the words, its another thing to digest them.

Much of the time when I get to posting on this blog I’m a little tired. That combined with a slow connection makes me appresciate it whenever anyone makes it easy to do research. The wing-nuttery has made the search for the white-flag waving defeatists easy over the last 24 hours, RightBlogs Turn Against Bush

Here’s Michelle Malkin:

Israel and the West surrender to Hizballah.

Terrorists and the U.N. win.

Jeff Goldstein:

Israel and the US have been defeated. Hizballah will grow emboldened. As will Iran.

There are more conservative statements of surrender at the link. Its is like watching clowns do a circle jerk, not a pretty sight. The right-wing blogs ideal leader is one that uses the most nukes, nililism becomes the highest form of patriotism.
No one understands what leads people
to do irrational things. We only
know that unpunished violence
festers, then explodes.
from the screenplay CHERRY FALLS by Ken Selden