Archive for the 'Law' Category

Using a Police Search as a Free Speech Threat

That’s what is claimed by Jeff Pataky after his home was searched by Arizona police and his computers, records, wireless router, and even his cable modem (presumably to cut off his internet access so as to quit blogging) were confiscated. Pataky runs the quite amazing Bad Phoenix Cops blog that is critical of the Phoenix police force to put it mildly. Some of that blog and its accusations really have to be seen to be believed, quite amazing stuff. They now have a press release up that provides some shocking (if true, remember this is all one sided)

In a retaliatory measure and while the Notice of Claim was still pending, the Phoenix Police raided the Plaintiffs home with a search warrant, unlawfully imprisoned a guest and refused them access to counsel. During the search, officers seized all documents pertaining to the District Court lawsuit, including privileged communications with counsel and all recordings and evidence relating to the District Court case. Seizure of these documents and communications are in violation of plaintiff’s constitutional rights.

Terry Heaton looks at the First Amendment outrages in the City’s defense of the incident.

But here’s what really bothers me. In justifying the raid, Phoenix Assistant Chief Andy Anderson called Pataky’s site “an unaccredited grassroots Web site.” Um, Chief Anderson, who “accredits” web sites? This is the most chilling part of the whole thing to me, because the police and the courts in Phoenix have taken it upon themselves to determine who qualifies as “the press.” And here’s the thing: anybody with an ounce of ink in their blood knows that Pataky deserves First Amendment protection, but they’re unlikely to say it publicly, because “the (professional) press” thinks of itself as a special class of people and have railed for years against the likes of Pataky.

Pretty outrageous stuff, but all I can think is that if Pataky’s blog delt with an election candidate/campagn then he might see his right to free speech go out the window thanks to Campaign Finance Reform laws.

(HT: Insta)

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Texas Bill Introduced to Reassert 10th Amendment Rights

H.C.R. 50 has been introduced to the Texas House. Authored by Texas State Representatives Brandon Creighton, Bryan Hughes, and Leo Berman, it reasserts Texas’s rights of sovereignty under the 10th Amendment of the US Constitution.

RESOLVED, That the 81st Legislature of the State of Texas
hereby claim sovereignty under the Tenth Amendment to the
Constitution of the United States over all powers not otherwise
enumerated and granted to the federal government by the
Constitution of the United States; and, be it further
RESOLVED, That this serve as notice and demand to the federal
government, as our agent, to cease and desist, effective
immediately, mandates that are beyond the scope of these
constitutionally delegated powers; and, be it further
RESOLVED, That all compulsory federal legislation that
directs states to comply under threat of civil or criminal
penalties or sanctions or that requires states to pass legislation
or lose federal funding be prohibited or repealed; and, be it

It was only introduced yesterday, but it will be very interesting to see if this passes.It would be really amazing to see a resurgence in the 10th Amendment.

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The Abolition of Marriage

Having failed to legalize gay marriage almost everywhere by democratic means, a proposed new approach by its advocates is to revoke marriage rights for heterosexuals, in a kind of retaliatory equalization. In effect, the idea is to abolish the legal institution of marriage for all, if it is to be that some are excluded from its benefits.

Jack Balkin and Ann Althouse debate the merits of this and generally agree it’s a fine idea, if potentially constitutionally problematic. A spectator can only marvel at how one couldn’t have picked a stratagem more perfectly designed to infuriate defenders of traditional marriage arrangements, and provoke even further opposition to gay marriage.


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Proper Voting Attire

People are finding out that you have to be careful what you wear to the polling booth.

The 40-year-old Houston Realtor was wearing one of her souvenir T-shirts when she went to cast her ballot at a Cypress polling place Oct. 26. A poll worker told her she would have to change the shirt if she wanted to vote.

Hurley, who votes in every election, is familiar with poll site etiquette. She knows not to wear campaign paraphernalia. She’s never run into trouble before.

What, she asked, was wrong with her light blue cotton T-shirt, emblazoned with a moose head, fishing poles, and the words “Seward, Alaska”?

The word “Alaska,” a poll worker answered.

“She said it could be misconstrued as support for a candidate,” Hurley said.

She argued with the poll worker, but neither one backed down. The worker told Hurley she could go into the bathroom and flip her shirt inside-out. She even offered duct tape to cover the offending word. Hurley refused. Finally, outraged, she stormed out of the polling place.

“I couldn’t believe she wouldn’t let me vote because of my vacation T-shirt,” Hurley said this week. “Every time I talk about it, my blood boils.”

Cooler heads prevailed in the parking lot, and a campaign volunteer urged Hurley to check with the precinct judge overseeing the polling site.

The judge took a look at the shirt and let her vote. She didn’t even need duct tape.

Of course there’s other solutions too

During early voting, the clerk’s office got a report of a woman who showed up to a polling place in west Harris County wearing an Obama T-shirt.

She was told she could cover the shirt up, turn it inside out, or not wear it. She chose not to wear it, and voted in her bra.

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Glass-Steagall : RIP

Continuing the discussion on tonight’s podcast, one of the recurring themes of much of the commentary on our current financial crisis is that the cause is too much deregulation. Possibly there is some truth to this, though the evidence is rather vague. The most disturbing figure in all this is Barney Frank.

“We need stricter standards on loans.”

Except, the problem here wasn’t lack of regulation, but that the regulations were not enforced, or fraud, by lenders, brokers and their clients. More laws doesn’t help. This was also a failure of long standing, not new. I would suggest simplifying and increased enforcement would be a better option.

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The Realism of Ward Connerly

Good Magazine takes a lengthy look at the always fascinating Ward Connerly, and his struggle to end Affirmative Action in the United States. While he continues to be vilified by the defenders of “positive discrimination” and as his ballot initiatives are fought vigorously in every state, it is increasingly a intellectually hollow resistance:

“The notion that we can use race as the entry point to solve social problems—that’s dead,” [Connerly] says, looking past me, his eyes fixed on the hotel’s patio. “And I’m not talking just race preferences. Race-based decision-making is dead.”
Good Magazine

Where once he was dismissed as a naive idealist, now even his bitterest critics must acknowledge within themselves that the above is so.

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Risk and Reward

Playground Many of us, when we hear the phrase “risk and reward” think of Wall Street.  Or business in general.

But in reality, “risk and reward” affect us throughout our lives.

Our parents take a risk when they conceive us.  They hope that we will provide them with more joy and satisfaction than heartache and pain.  They pray that we will be born relatively healthy rather than sickly.

As we get older, parents do their best to provide a fine environment for us to learn and grow.  What some adults seem to have forgotten, however (if they ever knew at all) – is that all gain requires some risk.  It is impossible to achieve rewards without taking on chances of failure.  Parents want to keep us safe.  Yet, too many protections and too much removal of risk can oddly enough produce difficulties.

Safety is meaningful only in the context of other benefits and risks. Safety always involves trade-offs — of opportunities, of scarce resources and, especially in the case of children’s play, of learning to manage risk. The question is whether the trade-off makes sense. Soft rubber matting will cushion any fall. This is probably a good thing, at least in situations where children may fall on their heads. But rubber matting also gets hot.

There’s only one solution. Someone on behalf of society must be authorized to make these choices. Courts must honor those decisions. Otherwise, the pious accusations of safety fanatics, empowered by the nearly universal fear of being sued, will guarantee a cultural spiral downwards toward the lowest common denominator.

For America’s children today, that means spending more than six hours per day staring at a screen. Is that the way we want our children to grow up?

Philip Howard of The Common Good lectured several years ago at The Center of the American Experiment, and it was my pleasure to be able to hear him then.  Mr. Howard and his organization are battling to return common sense to everyday society.

None of us want a dangerous place for our children – or for adults!  Still, we must never forget that a risk-free society is impossible to achieve.  The removal of some risks must be weighed against what we are sacrificing by removing that risk.  While sometimes we agree that the risk of harm is too great – other times we can see that the purported removal of risk actually heightens the odds of other, not immediately obvious, forms of harm.

If we never forget that reward entails some risk, then we all will be better served.

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When Families Fail

Because of my background in working with emotionally disturbed, learning disabled, and generally abused kids, I am often to drawn to stories about the results of extreme neglect of children. I saw some awfully hard cases with some of the kids I worked with, including a kid who was found as a toddler scrounging for food in a trash can with his younger brother before being put into the foster care system, and a young girl who, although not even ten years old, was “traded” by her mother for drugs on a routine basis. There are some really sick cases out there.

For example, a few years ago some foster parents were arrested and charged with aggravated assault and child endangerment after someone finally checked up on their kids and discovered a gruesome sight:

Two of the teenage boys were so badly nourished that they each weighed less than 50 pounds and stood about 4 feet tall, authorities said.

An investigation into the family began after police found the Jacksons’ 19-year-old son, Bruce Jackson, rummaging through a neighbor’s trash.

The young man, who was adopted in 1995, measured 4 feet and weighed 45 pounds. He also had apparent heart irregularities.

The three other boys, ages 14, 10, and 9, were removed from the home and hospitalized. The 14-year-old was 40 pounds and 4 feet tall.

Investigators said the couple received a yearly stipend of up to $28,000, but kept the boys locked out of the kitchen and fed them dry pancake batter.

Every state’s foster care system has a few stories like this, some more than others. The sad fact is that there are really bad people out there, for whatever reason, and some of them become parents and foster parents. How can these people become foster parents? Well, as bad as they end up being (and, it is actually pretty rare), they are still better than the home from which the foster kids are typically removed. For example, there’s the case of Danielle Crockett: (more…)

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BDS in the Halls of Congress

You may not realize this, but the House Judiciary Committee has been holding hearings (of a sort) in an attempt to impeach President Bush. Guys, he is gone in six months. I love this line:

“I am really astonished at the mood in this room,” commented one witness, George Mason University School of Law professor Jeremy Rabkin.

“The tone of these deliberations is slightly demented,” Rabkin said. “You should all remind yourselves that the rest of the country is not necessarily in this same bubble in which people think it is reasonable to describe the president as if he were Caligula.”

The AP finally admits the surge has been a great success, Ace grouses about the weekend release. [UPDATE:The Minuteman has further issues on the squirrelly capitulation of the AP]

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Harry Reid, Idiot

While my opposition to modern liberal left politics is pretty clear, I generally feel that name calling is rarely needed, or warranted. I certainly do not believe that any particular ideology is more or less likely to have virtuous people, whether we are speaking of kindness, generosity, bravery or integrity.

I also don’t believe that any party or ideology is represented by more intelligent or educated leaders and intellectuals. That being said, I have for quite some time made an exception when it comes to a few people. On the libertarian side, the puppet who speaks, when it comes to mendaciousness and general ideological nuttiness. On the left side of the aisle Harry Reid. He is either one of stupider men to ever hold office, or mendacious in a way that is so totally incompetent that it is almost inconceivable. He makes Bush, Kerry, Quayle and Gore look like absolute geniuses, or maybe straight talkers. I have no idea what is behind much of what he is saying here, stupidity (though it gets my vote above) or some weird attempt at Soviet style New Speak, but this video has to be seen to be believed. Hat tip: McQ via The Lonely Conservative.

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Because Who Really Needs Evidence Anyway?


The Motion Picture Association of America said Friday intellectual-property holders should have the right to collect damages, perhaps as much as $150,000 per copyright violation, without having to prove infringement.

“Mandating such proof could thus have the pernicious effect of depriving copyright owners of a practical remedy against massive copyright infringement in many instances,” MPAA attorney Marie L. van Uitert wrote Friday to the federal judge overseeing the Jammie Thomas trial.

“It is often very difficult, and in some cases, impossible, to provide such direct proof when confronting modern forms of copyright infringement, whether over P2P networks or otherwise; understandably, copyright infringers typically do not keep records of infringement,” van Uitert wrote on behalf of the movie studios, a position shared with the Recording Industry Association of America, which sued Thomas, the single mother of two.

A Duluth, Minnesota, jury in October dinged Thomas $222,000 for “making available” 24 songs on the Kazaa network in the nation’s first and only RIAA case to go to trial. United States District Court Judge Michael Davis instructed the 12 panelists that they need only find Thomas had an open share folder, not that anyone from the public actually copied her files.

So collecting evidence is hard, so why should they even bother if they’re suing single mothers for hundreds of thousands of dollars? Crap like this makes me believe the nutroots who claim our country has been sold out to unaccountable corporations—in this case, it very much appears to be the case.

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Kelo 3 Years Later

Damon Root at Reason takes a look at what’s happened in the three years since Kelo v. City of New London. By now, even non-cynical people can’t be surprised.

So what’s the status of the “comprehensive” and “revitalized” development site today? Here’s the Institute for Justice, the libertarian public interest firm that litigated the case:

Like so many other projects that use eminent domain and rely on taxpayer subsidies, New London’s Fort Trumbull project has been a failure. After spending $78 million in taxpayer dollars, the city of New London and the private developer have engaged in no new construction since the project was approved in 2000. Indeed, since the property owners disputing the takings owned less than two acres in a 90-acre project area, the city has always had a vast majority of the land available for development. Yet, no new development has occurred. The preferred developer for part of the site, Corcoran Jennison, recently missed its latest deadline for securing financing for building on the site and was terminated as the “designated developer.”

This has been a tragedy all around.

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Boumediene — The Great Sandbagging

UPDATE: Welcome QandO readers. Please look around after you’ve finished with this post, but McQ says you have to go back over to QandO when you’re done … but I won’t tell if you won’t.

The recent Supreme Court case involving Guantanomo Bay (GITMO) detainees and writs of habeas corpus promises to be one of the most significant opinions for decades to come. Not because it grants foreign citizens the right to challenge their detention in U.S. civil courts (although that’s huge), nor because the decision will lead to possible terrorists being set free in the U.S. (which is almost inevitable), but because it sets a new standard for the power of the Supreme Court. However, no matter the angle from which one approaches the case, constitutional scholars will likely not tire of discussing its implications and applications for quite some time. This post will concentrate on just one of those angles (with others hopefully to follow). (more…)

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Greatest Judicial Opinion of Our Time

This has to be seen by all judicial and college football fans. I’m not sure what the original complaint was, but the opinion is great. Pay special attention to the footnotes to learn that it is the official opinion of the U.S. Judicial system that the “Game of the Century” for this century is the 2006 Rose Bowl. Images of the document after the jump.

EDIT: More at the comments at Volokh.


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Backdoor Kyoto — The Next Chapter

polar bears swimming

The march of the watermelons towards control of US policy continues apace:

Polar bears will now be listed as “threatened” under the Endangered Species Act.

But in announcing the listing, Secretary of the Interior Dirk Kempthorne said the decision should not be “misused” to regulate global climate change.

“Listing the polar bear as threatened can reduce avoidable losses of polar bears. But it should not open the door to use of the Endangered Species Act to regulate greenhouse gas emissions from automobiles, power plants, and other sources,” said Kempthorne.

“That would be a wholly inappropriate use of the ESA law. The ESA is not the right tool to set U.S. climate policy.”

It is certainly an inappropriate tool for shaping such policy. And it just as certainly the tool that will be used quite effectively to do so. Like I wrote over a year ago, this is nothing more than a backdoor way of implementing Kyoto in the US.

If the polar bear were listed as a threatened species, all federal agencies would have to ensure that anything they authorize that might affect polar bears will not jeopardize their survival or the sea ice where they live. That could include oil and gas exploration, commercial shipping or even releases of toxic contaminants or climate-affecting pollution.

Environmentalists hope that invoking the Endangered Species Act protections might eventually lead the government to reduce carbon dioxide emissions and other heat-trapping “greenhouse” gases blamed for warming the atmosphere.

“The Interior Department has pretty much explicitly said that they don’t think they have the authority to regulate greenhouse gas emission, but we know that the Endangered Species Act goes well beyond these walls, that it’s taken into account by other agencies,” said Kert Davies, research director for Greenpeace.

Since the above was written, the Supreme Court has ruled that the EPA does have the authority to regulate greenhouse gas emissions, but more importantly, under the ESA the government is required to evaluate any project that may have an impact on endangered species. Normally this would be limited to such species within the geographical span of the proposed project, but you can bet your bottom dollar that Greenpeace, et al., will attempt to draw a direct connection between whichever new project they are challenging and polar bears using the threat of increased greenhouse gas emissions.

The coup de grace, of course, will be when all private industry and behavior is brought with in the realm of the EPA’s regulation authority (my emphasis):

As Interior Secretary Dirk Kempthorne noted, the 1973 Endangered Species Act is “perhaps the least flexible law Congress has ever enacted.” In 2005, green litigants took advantage of this rigidity, suing the government to force it to label the polar bear at risk for extinction. Since the 1980s, the sea ice that the bears use to hunt and breed has been receding. Although the population has increased from a low of 12,000 in the 1960s to roughly 25,000 today – perhaps a record high – computer projections anticipate that Arctic pack ice will continue to melt over the next half-century. This could, maybe, someday, lead to population declines.

The lawsuits were hardly motivated by concern for polar bear welfare. Instead, environmentalists asserted that the ice is thinning because of human-induced global warming. A formal endangered listing is one more arrow in their legal quiver as they try to run U.S. climate policy through the judiciary.

They’ll argue that emissions from power plants, refineries, automobiles – anything that produces carbon – would contribute to warming, thus contributing to habitat destruction, and thus should be restricted by the Endangered Species Act. This logic could be used to rewrite existing environmental policy to accommodate greenhouse gasses, purposes for which they were never intended but with economy-wide repercussions.

Is there any doubt that granting full regulatory control over all productive activities is the ultimate goal of these lawsuits? I’m sure that some in the movement are motivated entirely by their heart-felt concern for the welfare of animals and the environment. But the vast majority of these environmental activists are driven by the desire to bring capitalist forces to heel, towards which end their totalitarian instincts guide them. Passage of the ESA in 1973 was the first step in that cause. The combined forces of the AGW movement with this latest court victory may be all that’s needed to achieve their goal.

See also: McQ, who has more on the listing of polar bears as a threatened species.

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This Kid Has a Bright Future Ahead of Him

Ralph Hardy, a 13 year old from Newark, Texas confessed to ordering an extra credit card from his father’s existing credit card company, and took his friends on a $30,000 spending spree, culminating in playing “Halo” on an Xbox with a couple of hookers in a Texas motel.

One of the best parts of this story,? (and there are many)

Ralph’s ambition is to one day become a politician

Oh I think he’s well on his way already. The question is, is this story true?

(HT The Shag)

UPDATE: Looks like it was not true. Thanks to FzxGkJssFrk in the comments.

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Hoist by His Own Petard

McCainJohn McCain was one politician I admired greatly. While I still believe that the man is a true hero, and while I still do applaud some of what he does, the veil has been lifted from my eyes for one major reason: McCain-Feingold.

Although I, like so many others, wish that we lived in some la-la land where candidates never had to solicit campaign funds from anyone, and that we could miraculously learn about the candidates’ beliefs, abilities, character, experience, etc. for free, such is not the case. We live in the real world, and in the real world, we need money to accomplish this.

McCain-Feingold restricts our speech and the ability of candidates to communicate with the public. I have always found it to be straight out unconstitutional; perhaps one day the Supreme Court will strike it down.

Until that happens, however, all of us will have to labor under its inequities and burdens. Right now, McCain is finding himself ensnared in a web of his own making.

The McCain camp is teaming up with the Republican National Committee to tap into big, big donations from big, big donors – hoping to close the big, big money gap with Democrats.

Their effort to do so will involve some creative abuse of the campaign finance restrictions Mr. McCain authored a few years back. Whatever. The Arizonan may not yet fully understand that money is speech. At least he has come around to the view that more of the stuff is better when it comes to winning the presidency.

Whether this will ease Mr. McCain’s financial woes is yet unclear, but it’s arguably his smartest move, given the hand he’s dealt himself. Just imagine what might have happened if Mr. McCain had fought instead for simple transparency – and trusted Americans to decide how much to give and to whom. Free speech, via money, can be a liberating thing.

Part of me feels like saying, “Serves you right!” to Senator McCain. But, as I believe he would be a better choice for president than Obama or Clinton, I’ll simply hope that he and others learn from this ironic lesson.

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Hear, Hear

One of my girlfriends is smart as a whip and a talented artist to boot.  Cathy is also hard of hearing.

While Cathy can read lips and she also has a device that allows her to converse in very small groups, she is unable to hear in most other settings.  Last year, the two of us attended a fundraiser for Rudy Giuliani.  As we watched Rudy live on TV, I quietly “translated” what he was saying for Cathy.  Many of the other people in attendance thus realized how unfortunate it was that there weren’t closed captions for Cathy and people like her.

Elise Knopf, of the Minnesota Commission Serving Deaf and Hard of Hearing People wants the state of Minnesota to pass a law making it mandatory to have closed captions in political ads.  As you all know, my philosophy is to urge small government, and I’m not quite certain that people should be forced to include closed captions.  Nevertheless, I am very sure that the captions should be included in these ads – not to mention most everything else on TV!  Cathy has explained to me that the cost to do so is minimal – and that the captions can be invisible to those who do not need them.

Including those among us who cannot hear well or at all has a simple solution.  Let’s apply it.

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Get Over It!

Justice Antonin Scalia will appear on 60 Minutes this coming weekend. A preview of what he has to say is here.

“I say nonsense,” Scalia responds to Stahl’s observation that people say the Supreme Court’s decision in Gore v. Bush was based on politics and not justice. “Get over it. It’s so old by now. The principal issue in the case, whether the scheme that the Florida Supreme Court had put together violated the federal Constitution, that wasn’t even close. The vote was seven to two,” he says, referring to the Supreme Court’s decision that the Supreme Court of Florida’s method for recounting ballots was unconstitutional.

Furthermore, says the outspoken conservative justice, it was Al Gore who ultimately put the issue into the courts. “It was Al Gore who made it a judicial question….We didn’t go looking for trouble. It was he who said, ‘I want this to be decided by the courts,’” says Scalia. “What are we supposed to say — ‘Not important enough?’” he jokes.


Stahl asks how he can be a close friend of Justice Ruth Bader Ginsberg, his liberal bench mate, despite the fact that they oftentimes disagree. “I attack ideas, I don’t attack people, and some very good people have some very bad ideas,” he tells Stahl.

Bravo, Justice Scalia! I have dear friends (and, dare I say it – relatives) whom I very much love and care for – yet, on some topics, they are utterly wrong. Of course, I myself have been utterly wrong on issues and at times in my life!

If we are looking for perfection in our friends, relatives, peers, associates …. we will assuredly be woefully disappointed in our lives. We also will have never ending battle.

I do not agree with Scalia myself on a number of topics. On what he says above, however, applause from me. And – get over it, those of you who have not!

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Where Charlton Heston Stood

Over at Where the Buffalo Roam Peter gives us Charlton Heston’s 1999 NRA Convention Keynote Speech in Denver, which was scheduled shortly after the Columbine shootings in Colorado. A perfect reminder of what he stood for, and against.

Update: Here he is speaking in 1989 on the animating issue of his later life, the Second Amendment.

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FEC Complaint Filed Against McCain


Some people are hoping to hoist John McCain on his own campaign finance petard. As satisfying as it would be to see the Senator receive a healthy dose of his bitter medicine, however, the complaints filed against him with the FEC will almost assuredly fail.

In the blogosphere it is the most recent complaint filed by Jane Hamsher, et al. that is getting the most attention.

Yesterday, on behalf of a large number of progressive bloggers and activists, Jane went to the FEC and filed an official complaint against PetardJohn McCain’s alleged campaign finance violations. We’ve been asking a lot of questions about this, and the answers have been less than forthcoming. So, instead of just sitting here and stewing about yet another GOP ethical problem, we decided to put our action where our concerns were.


As Markos of DailyKos pointed out in joining the complaint, “John McCain has officially blown past campaign spending limits mandated by his original acceptance of public campaign funding. While he has signaled his intent to withdraw from such financing, that has been hindered by the fact that he used the promise of public funding to secure a campaign loan.” Guess the campaign finance laws only apply when they aren’t inconvenient for McCain’s ambitions.

In truth, Hamsher’s complaint is a just piggy-backing off of the DNC’s complaint filed on February 25, 2008. Unsurprisingly, the DNC complaint is much more substantive:

In order to receive matching funds, John McCain signed a binding agreement with the FEC to accept spending limits and to abide by the conditions of receiving those funds. The FEC makes clear that any request to withdraw from the agreement must be granted by the FEC. In other words, McCain can’t just unilaterally withdraw. FEC Chairman David Mason made this clear in a letter to McCain advising him that the law requires the FEC to approve his request to withdraw from his contract.

According to past Commission rulings, the McCain campaign would not be allowed to withdraw from matching funds because it has already violated a key condition for being let out of the program – pledging matching funds as collateral for a private loan. McCain obtained a $4 million line of credit — drew $2,971,697 from it – and documents make clear that the promise of public financing was used to secure his loan.

The gravamen of both complaints is that McCain’s attempt to withdraw from the matching funds program, and thus to spend more than allowed thereunder, is a dead letter because he pledged the certification for federal matching funds as security for private financing. According to the FEC, withdrawal from the program will normally be automatically granted “prior to the payment date for any such funds to such candidate or his or her committee upon receipt of a written request signed by the candidate, provided that the certification of funds has not been pledged as security for private financing.” However, the loan documents tell a different story.

In November of 2007, McCain took out a $3 Million line of credit with Fidelity & Trust Bank of Maryland (see DNC Comp., Ex. 4, pdf p.18). As a part of that loan, McCain also executed a Security Agreement pledging all of his assets to the Bank as collateral, with the explicit exception of:

any certifications of matching fund eligibility currently possessed by [McCain] or obtained before January 1, 2008 and the right of John McCain 2008, Inc. and John McCain to receive payment under these certifications [which] are not collateral under the Commercial Security Agreement for this Loan.

(see pdf p.21). Such disclaiming language appears throughout the loan documents, making it abundantly clear that the Bank had no security interest in or to the certifications or any matching funds.

The entire loan was later modified, on December 17, 2007, raising the limit on the amount that could be borrowed to $4 Million. The modification also altered the language concerning the matching fund certifications. In particular, the parties had anticipated all along that McCain may withdraw from the program, and the documents addressed the scenario of McCain then losing the New Hampshire primary afterwards. In that case, McCain would then reapply (i.e. re-certify) for federal matching funds, and then pledge a security interest therein to the Bank. The Loan modification, changed the re-certification promise to include the next primary McCain ran in after withdrawal. (see pdf p.35).

In addition, the modification revised the “STATUS OF CURRENTLY HELD CERTIFICATIONS OF MATCHING FUNDS” to read:

[McCain] and Lender agree that any certifications of matching funds eligibility now held by [McCain], and the right of [McCain] to receive payment under such certifications, are not (and shall not be) collateral for the Loan.

At this point it should be painfully clear that neither McCain nor the Bank think that there is a security interest in the certification.

The DNC attempts to argue that despite the clear and unambiguous language to the contrary, McCain did in fact pledge a security interest in the certification … with respect to future matching funds! The DNC basically makes three arguments in order to prove its case:

(1) McCain’s promise to re-certify for matching funds in the event that he loses a primary after withdrawing from the program, and to grant a security interest in such certification and matching funds to the Bank, creates “a present encumbrance, however conditional, of the Campaign’s future interest in and entitlement to matching funds ….”

This argument is fallacious on its face. The FEC policy of automatically granting a request to withdraw from the program provided that the currently held certification has not been pledged does not have anything to do with future certifications. It only deals with a certification presently held by a candidate. That McCain promised to grant a security interest to future certifications, upon certain other conditions being met, is not material to the current certifications. Indeed, both the Bank and McCain understood that a security interest in the certification would prevent McCain from withdrawing, which is why they drafted the documents the way that they did.

Furthermore, even accepting the DNC’s argument as valid, it is self-defeating. If the Bank’s has a present security interest in future certifications, and that security interest prevents McCain’s withdrawal from the program, then the conditions precedent to the Bank perfecting it’s security interest (i.e. withdrawal and re-certification) cannot be met. Ergo, it has no security interest.

(2) McCain agreed to abide by, and to stay within, “overall or state spending limits set forth in the Federal Matching Funds Program,” regardless of whether the campaign was still participating in the program or not. The DNC reasons that these provisions are for the sole purpose of ensuring that McCain can receive future matching funds, and that the Bank can take a security interest therein.

The DNC is probably right about that, but so what? It still doesn’t create any security interest since not only was any such interest specifically and repeatedly disclaimed, the only possible interest the Bank could have would be in funds received after McCain withdrew from the program and then re-certified. At the time McCain attempted to withdraw from the program, the certification his campaign held was not encumbered. End of story.

(3) While the description of collateral excludes current certifications held by McCain, it implicitly includes “rights to receive matching funds, i.e., that come into existence, after January 1, 2008, based on matchable contributions received and presentations in good order made after that date … The modification makes clear again that, although the initial amount certified in December 2007 may not be part of the Collateral, the Collateral will include future amounts of matching funds paid, based on future submissions, even though based on the initial certification of eligibility.”

Although this argument is also wrong, it is certainly clever. If we assume that the specific exclusions of McCain’s certification found throughout the documents are simply ineffective, and that the limits on the Bank’s interest in such certification and the rights to any matching funds is only the good up to date of the modification, then the DNC’s argument that any certified funds after that date are in fact part of the Collateral might actually make some sense. However, there are a couple of problems with it.

First of all, there is only one certification, and that is the initial one made by McCain in August of 2007. When McCain withdrew from the program on February 7, 2008, it is implied that the initial amount certified had not been amended, and that no further funds had been certified for matching. Accordingly, once again there has not been a present security interest created, nor is it even clear that a future interest was anticipated by the Bank prior to McCain’s withdrawal and re-certification.

Secondly, looking at Exhibit 2 of the DNC Complaint we see that as of December 20, 2007 John McCain had certified $5,812,197.35 (also found here). However, when we look at the FEC data for 2008 Presidential Matching Fund Submissions, there are no new funds submitted for certification since the December 20 press release. If we accept the DNC’s argument as correct, and McCain has not in fact submitted any new funds for certification since December 20, 2007, then the Bank still does not have any security interest in the certification or matching funds.

Accordingly, the DNC’s Complaint will most likely be denied since the Bank quite clearly excluded McCain’s certification and any matching funds from becoming security for the loan. If McCain actually did submit funds after December 20, 2007 for certification, there is a colorable argument that such certified funds are pledged as collateral, but given the totality of the documents that’s not a very winnable position.

Regarding Hamsher’s Complaint, it tries to make the case that because the FEC has not yet granted McCain’s request that he withdraw from the program, that he is still bound by the spending caps, and that he has violated those caps. Even if she is right about McCain’s campaign exceeding the spending limits, McCain would certainly have a reasonable expectation to believe that he will eventually be released from the program, given that he complies with the provisos for an automatic grant of his request. Moreover, it would not be reasonable to expect to him to await the FEC’s decision on the matter when the commission doesn’t even have enough members to do so:

The only trouble is, the commission hasn’t got a quorum… and it won’t, until the Senate breaks a deadlock on approving nominees.

The FEC can’t deliver any decision yet, and prior opinions indicate clearly that McCain will be released. Why should he be restricted to the spending caps?

Furthermore, and this goes to all the arguments above, it’s not even clear that the FEC has the power to prevent McCain from withdrawing in the first place. The FEC thinks that the certification process creates a binding contract between the candidate and the commission, but it doesn’t look like any enforceable contract I’ve ever seen. There is no consideration, and there is no mutuality of obligation. A candidate can apply for the funds, but he can’t be required to actually take them, can he? If he were to take the funds, then there is probably an enforceable contract, but prior to that time the candidate is merely trying to establish eligibility. Imagine going to a bank and applying for a loan, and then having the bank sue you because your credit score does not allow you to qualify for a loan. That’s pretty much the argument being made.

So that’s the DNC and Hamsher case against McCain in a nut shell. He accepted a loan from a bank, specifically excluding as collateral any certification for matching federal funds, except that he secretly really did! Oh, and because the FEC hasn’t granted McCain permission to not accept federal matching funds, then he is still bound by the spending caps, and he’s violated those with reckless abandon. Needless to say, I don’t think either complaint will be successful.

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Spitzer Resigns

But there’s no plea deal regarding the potential federal charges. Is it possible that the feds are going to do to Spitzer what Spitzer paid to do to “Kristen”? (HT: JOM):

Eliot Spitzer’s tumultuous tumble from the zenith of a promising political career to the nadir of a shocking sex scandal came as no surprise Wednesday as the bright, bull-headed governor announced his resignation, effective Monday, under bloating pressure from state lawmakers and the public.

Lt. Gov. David Paterson will become the 55th governor of New York and the state’s first black governor.

There were rumors that the once-heralded Democrat had negotiated a plea deal to avoid jail time in the case, but U.S. Attorney Michael J. Garcia squashed those rumors. “There is no agreement between this Office and Gov. Eliot Spitzer, relating to his resignation or any other matter,” he said in a statement to CBS 2.

That leaves Spitzer open to being indicted and facing prison time.

Curiouser and curiouser. The conventional wisdom amongst the legal pundits has been that Spitzer didn’t resign because he was in negotiations to cut a deal with federal prosecutors. In order to get the deal, according to this theory, Spitzer couldn’t resign first since that would rob him of his only bargaining chip.

It’s hard to say whether those negotiations (if they occurred) simply broke down and the pressure became too great for Spitzer to remain in the Governor’s Mansion, or if perhaps the feds just didn’t care whether he resigned or not, so offering up his office wasn’t really a chip at all. Either way, he’s gone and he’s not going to be involved in politics again any time soon. I just hope the feds show Spitzer as much mercy as he showed those whom he prosecuted.

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Perverse Consequences

Does it strike anyone else as tragically ironic that, if indeed John McCain were declared not to be a “natural-born citizen” due to the locus of his birth, then an “anchor baby” could be elected President but the child of an Armed Services member born overseas could not?

Think about that. Child of illegal aliens born on American soil: Presidential material. Child of American citizens born on a military base: Ineligible.

The scary thing is that this probably makes sense in someone’s world view.

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Citizen McCain

Panama Canal

THE LATEST non-issue hyped by (who else?) the New York Times is that “some” people are questioning whether or not John McCain is eligible to be a sitting President:

The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president? In the case of Senator John McCain of Arizona, the issue is becoming more than a matter of parental daydreaming.

Mr. McCain’s likely nomination as the Republican candidate for president and the happenstance of his birth in the Panama Canal Zone in 1936 are reviving a musty debate that has surfaced periodically since the founders first set quill to parchment and declared that only a “natural-born citizen” can hold the nation’s highest office.


“There are powerful arguments that Senator McCain or anyone else in this position is constitutionally qualified, but there is certainly no precedent,” said Sarah H. Duggin, an associate professor of law at Catholic University who has studied the issue extensively. “It is not a slam-dunk situation.”

Mr. McCain was born on a military installation in the Canal Zone, where his mother and father, a Navy officer, were stationed. His campaign advisers say they are comfortable that Mr. McCain meets the requirement and note that the question was researched for his first presidential bid in 1999 and reviewed again this time around.

I don’t think the writer of this article, Carl Hulse, could be more melodramatic (”The question has nagged at the parents of Americans born outside the continental United States for generations: Dare their children aspire to grow up and become president?” — really, Carl? That’s what’s been nagging them?). But then again, there’s not much “there” there, as noted by Dr. Steven Taylor, so I suppose he had to make it at least somewhat suspenseful:

While I will allow that I am not a conlaw scholar, this strikes me as a non-issue. The child of US citizens is a citizen, regardless of where he or she was born. As such, someone like McCain was a citizen by virtue of birth, not via naturalization, and hence he is a “natural born citizen.” Any other interpretation seems ludicrous on its face, to me.

Dr. Taylor points to where Congress previously considered the issue, and quotes the Hulse article:

Quickly recognizing confusion over the evolving nature of citizenship, the First Congress in 1790 passed a measure that did define children of citizens “born beyond the sea, or out of the limits of the United States to be natural born.” But that law is still seen as potentially unconstitutional and was overtaken by subsequent legislation that omitted the “natural-born” phrase.


Mr. McCain’s citizenship was established by statutes covering the offspring of Americans abroad and laws specific to the Canal Zone as Congress realized that Americans would be living and working in the area for extended periods.

Curiously, despite penning the paragraphs above, Hulse still seems to think McCain’s ability to be President is an issue. Ann Althouse disagrees (emphasis in original):

The real constitutional interpretation is taking place right now, as we decide whether to accept a man with this problem as the nominee, and later, as the candidate. I think we as a people have already answered the question as to McCain. None of his opponents are using disqualification as an argument and no one is concerned about it. Think of how different it would be if Arnold Schwarzenegger ran for President. The issue would be debated and argued, and I think we’d see him as disqualified and, because of that, he’d never reach the point of nomination. Can you picture Barack Obama or Hillary Clinton trying to defeat McCain by making the argument that his birth in the Canal Zone disqualifies him? They’d only make themselves look bad. The argument is so unattractive that no one serious will make it, and therefore the question, for all realistic purposes, has already been answered.

For those keeping score, the NYT has in consecutive weeks (a) smeared the likely Republican candidate for Election 2008 with a story based on mere innuendo, rumor, and decades old news, and (b) raised the non-issue of McCain’s status as a natural-born citizen of the United States. But never fear, for this is all the news that’s fit to print. [/eyeroll]

UPDATE: April Gavaza manages to write what I was thinking but somehow forgot to jot down:

I may not like McCain, but these attacks on him are ludicrous and forcing me into the uncomfortable position of defending him. First the NYT article about nothing and now this, a parsing of the phrase “natural born”. It smacks of desperation.

UPDATE II: Jim Lindgren weighs in with the legal history behind “natural-born citizens,” and concludes:

According to even the most technical meaning of “natural born” citizen in the 1780s, John McCain is a natural born citizen of the United States, but George Washington and Thomas Jefferson may not have been (since they were born before 1776), though they would have been generally treated as such at the time.

Of course, when slinging mud as the NYT is doing the arguments don’t need to be sound, some of the mud just has to stick.

UPDATE III: Via the comments below, Roland Dodds notes the right-wing genesis for this dubious knock on John McCain:

Upon trolling through far right websites today, I found one of the more interesting arguments made against McCain’s candidacy from the right: he apparently isn’t a natural born citizen. From the American Voice, a right wing radio network associated with Bo Gritz (the right wing survivalist associated with the Christian Identity movement, and worked fervently to stop Terri Schiavo’s feeding tube from being removed in 2005) …

And should I found it the least bit surprising that the American Voice is advocating Ron Paul?

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Wesley Snipes has put tax protesters in the cross hairs of the IRS

Actor Wesley Snipes was found not guilty of federal tax fraud and conspiracy charges earlier this month. Basically he blamed it on the tax advice he received. Whether one believes that he didn’t know that when one earns $38 million you are likely to owe some tax, much less request a 12 million dollar refund, the decision has gotten the IRS to take the tax protester movement seriously:

Treasury and Justice Department officials say the protester ranks are growing and now include white-collar professionals. And they are costing the government millions of dollars.

“Too many people succumb to the fallacy, the illusion, that you don’t have to pay any tax under any set of conditions,” Assistant Attorney General Nathan Hochman told Bloomberg. “That is a growing problem.”

The movement has been energized by the Snipes trial:

According to the Bloomberg report, in addition to the Snipes verdict in which he was cleared of tax conspiracy charges, the tax protester movement has been given a boost by the faltering economy and politicians’ vilification of the Internal Revenue Service.

And, no surprise here, the promotion of “kooky” avoidance plans has been aided by the Internet, where many firms sell strategies online and believers encourage others to join the anti-tax efforts.

“Any kooky tax protester can put up their theories,” said Jonathan R. Siegel, a professor at George Washington University’s law school. “It is much easier to get their message before a mass audience.”

You can read the full Bloomberg story on the coming tax enforcement activities here.

You also should check out Siegel’s collection of tax protester myths here.

And the official U.S. word on such efforts can be found at this special Web page dedicated to debunking frivolous tax arguments.

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Seeking Justice

Scales Attempting to achieve absolute equity and fairness in our justice system is impossible.  I could list a dozens reasons why this is so – and I doubt that many would seriously argue with me that it is so.

Still, that we can never achieve perfection is not a reason not to reach for that goal.  When we see clear injustices and flaws in our system, we should do whatever we can to correct them.

For many years, I have believed that our drug laws are unfair in many ways, and ultimately cause far more pain and problems in our society than they correct.  Last Wednesday, former Republican congressmen J.C. Watts and Asa Hutchinson make a powerful plea to institute these changes.

Congress created a federal criminal penalty structure for the possession and distribution of crack cocaine that is 100 times more severe than the penalty structure relating to powder cocaine. African Americans comprise more than 80 percent of federal crack cocaine offenders. That statistic does not make sense given that two-thirds of all users of crack are white or Hispanic. The disparity in the arrest, prosecution and treatment has led to inordinately harsh sentences disproportionately meted out to African American defendants that are far more severe than sentences for comparable offenses by white defendants. Indeed, the U.S. Sentencing Commission reported that revising this one sentencing rule would do more to reduce the sentencing gap between blacks and whites “than any other single policy change.”

The truth is that for years our legal system has enforced an unfair approach to sentencing of federal crack cocaine offenders. The attorney general’s approach will perpetuate this unfairness. As Judge Reggie Walton, who represents the Federal Judicial Conference, said, “I just don’t see how it’s fair that someone sentenced on October 30th gets a certain sentence when someone sentenced on November 1 gets another.”

And it makes no sense that somebody arrested for a crack cocaine offense should receive a substantially longer prison term than somebody who is convicted of a powder cocaine offense. When disparities like this exist it offends the high principles of equal treatment under the law and fundamental fairness. The disparate racial impact of the sentencing rules undermines our nation’s larger goal of instilling respect for the criminal justice system.

These changes will not secure judicial nirvana.  They will, however, move us a little closer.

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Free Will

As a philosophy student, issues of free will were some of the most complex and intriguing that I studied. Is free will real or a chimera? If real, is it always applicable? How do we judge such questions?

At one of my favorite blogs, The Volokh Conspiracy, guest blogger Adam Kolber addresses these topics with a fascinating example.

Consider the subject of this medical case study, who had no prior history of unusual sexual behavior. At around age 40, he began to demonstrate pedophilic behaviors (e.g., he made sexual advances toward his prepubescent stepdaughter). The man was found guilty of child molestation and given the opportunity to successfully complete a sexual addiction treatment program in lieu of going to jail. Unfortunately, he made sexual advances toward others in the treatment program and was forced to leave the program. Prior to being sent to jail, he complained of severe headaches and was taken to the hospital. Doctors soon discovered that he had a brain tumor in his orbitofrontal cortex. After the tumor was surgically removed, his sexual behavior returned to normal. You have to read the full case study for all the details. The bottom line, though, is that the study authors think it quite likely that the tumor played a causal role in the subject’s inappropriate behavior.

Many of my students have the intuition that the man should not be deemed criminally responsible for his sexual activities while he had the tumor. He is certainly not responsible for having the tumor, and it seems like the crime would not have happened but for the tumor. In most jurisdictions, however, I think the subject would be unlikely to mount a successful insanity defense.

It has been argued for ages that if one is incapable of exercising rational free will, but has made choices to lose the ability to exercise rational free will, that one is still responsible for bad outcomes that may occur in such situations. Should someone whose brain is malfunctioning, however, be considered someone who had a choice in resulting bad behavior?

Do check out the the blog and Kolber’s more recent posts.

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Talking points for the modern Muslim

Ali Eteraz gives his fellow Muslims the rationale for opposing Sharia courts being imported into the west:

14 – Liberal democracy, as is, is perfectly compatible with Islam

You aren’t making your country more Islamic or even earning more reward by going to Sharia arbitration courts. The Mufti of Egypt thinks liberal democracy is compatible with Islam. A traditionalist jurist, quoting a lot Ghazali, thinks that there is no incompatibility between being an orthodox Muslim and living in a liberal democracy.


There is absolutely no reason for a Muslim to support Sharia arbitration. If you’d like to live in a state where you can resolve your marital, custodial, and divorce disputes under the aegis of classical Islamic law, might I recommend the Gulf? It looks like America and tastes like the 7th century, perfect for a retrogressive Muslim. Cheaper gas for your very Islamic gas guzzler, too.

Not only are the arguments interesting in and of themselves, they give an insight into the reasoning of those who feel otherwise. Read the whole thing.

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Sharia Law Enforced in Texas!

Well, kinda. After the whole row over the Archbishop of Canterbury’s declaration that Sharia Law in Britain is “unavoidable“, Eugene Volokh notes that it has been allowed in some US court, in a way. It seems some parties entered into a contract that provided for arbitration based off of rules of sharia law, and the judge upheld the arbitration. From my understanding, this isn’t a judge using Sharia to make a ruling, nor it being enshrined into a legal system, but simply provisions of a contract being upheld. Perhaps Michael can chime in and let me know where I’ve erred, and clarify it some more. This is not to say that I agree with the Archbishop, but just thought it was interesting to keep in mind.

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Good Intentions; Frightening Results


This morning, I read a column from the Wall Street Journal about race.

Just when we thought we’d heard everything from the diversity police, here they come trying to prescribe even the color of charity. The California Assembly last week passed a bill sponsored by state Representative Joe Coto to require foundations with assets of more than $250 million to disclose the race, gender and sexual orientation of their trustees, staff, and even grantees. Look for this to arrive in a legislature near you.

A Berkeley-based advocacy group called the Greenlining Institute hatched this idea because, allegedly, racial minorities aren’t well enough represented in California policy debates. John Gamboa, Greenlining’s executive director, blames foundations for failing to donate enough money to “minority-led” think tanks and community groups and businesses, and he hopes this legislation will “shame” them into giving more. What counts as a minority-led organization? According to Greenlining, the board and staff should both be more than 50% minority.

Obviously, some people find this to be a good idea; it would not have passed otherwise. I, however, find it frightening.

Not long after the Holocaust Museum in Washington DC opened, I visited. While some of the focus, obviously, of the museum is Europe’s Holocaust, much of the museum also highlights the varied offshoots of classifying human beings by their race and religion. Several of the exhibits are immensely powerful. One of those is a photographic explanation of how Nazis classified humans by race.

The exhibit shows photographs of people from all over the world – and describes how Nazis classified them. Measure the skull, look at how the eyes are spaced, judge the pigment of the skin …. That’s how they ultimately selected between people who were worthy of being part of their “Master Race” – and those who should be shunned, tortured – and/or murdered.

While I know that the intentions of those who pass a law such as the one above are intended to do good, I am confident it will achieve anything but. Ultimately, the simple classification of humans into these separate races creates a pernicious cloud above all of us.

Who is the ultimate judge of someone’s exact racial DNA? Why should that make a difference in the charitable work that those individuals are doing?

We are – every one of us – members of the human race. I implore these lawmakers to revisit their despicable law harkening back to the thoughts of the Nazi era and junk them. The shape of someone’s nose; the curl of their hair; the color of their skin. Absolutely none of it should have any bearing on their worth as a human being.

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Not Conservative Enough?

Many Republicans and/or conservatives have been wailing that McCain is not conservative enough for them. No links; loads abound.


The people who complain about this are correct – at least on some topics, IMHO.

But, if you don’t want to vote for McCain because he isn’t conservative enough, consider this.

The gulf between Democratic and Republican approaches to constitutional law and the role of the federal courts is greater than at any time since the New Deal. With a Democratic Senate, Democratic presidents would be able to confirm adherents of the theory of the “Living Constitution” — in essence empowering judges to update the Constitution to advance their own conception of a better world. This would threaten the jurisprudential gains of the past three decades, and provide new impetus to judicial activism of a kind not seen since the 1960s.

We believe that the nomination of John McCain is the best option to preserve the ongoing restoration of constitutional government. He is by far the most electable Republican candidate remaining in the race, and based on his record is as likely to appoint judges committed to constitutionalism as Mitt Romney, a candidate for whom we also have great respect.

So. Don’t vote for McCain this fall if you so choose. If you’re in the “I’m going to sit this one out” camp, however, do not blame anyone other than yourself if President Clinton II or President Obama selects Supreme Court judges a bit to the left of Noam Chomsky to serve for a couple of decades.

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Better off Dead

Kim at Wizbang links to this story about eugenic thinking in Brittan.

The comments came as the Lords debated an amendment, [...] that would have protected unborn disabled children from abortion after the 24 week gestational time limit. The amendment was defeated by 89 votes to 22.

Under Britain’s abortion law, children judged to have some form of disability, including such comparatively minor disabilities as club foot or cleft palate, can be aborted up to the time of natural birth.

The comments are amazing.


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Mukasey on Waterboarding (UPDATED)

Attorney General Michael Mukasey sent a letter to the Senate Judiciary Committee regarding the interrogation technique known as waterboarding. Mukasey remarked that it is not an authorized interrogation technique, and that it “is not, and may not be, used in the current [CIA interrogation] program.” As in his confirmation hearings, however, Mukasey declined to absolutely declare the technique illegal:

Mukasey Letter Excerpt

The important part of that excerpt is this:

Indeed, I understand that a number of senators articulated this very concern in the fall of 2006, in the course of defeating an amendment that would have expressly prohibited waterboarding.

Essentially, Mukasey is telling Congress to declare the technique illegal if that’s what they want. He’s not going to do their job for them.

waterboardingMukasey politely adds that reasonable minds may disagree on the issue, which does not present an easy question, and that:

There are some circumstances where current law would appear clearly to prohibit the use of waterboarding. Other circumstances would present a far closer question.

He goes on to say that opining on “generally worded legal provisions” absent concrete factual circumstances is not wise, and that his reluctance to do so now is precisely because there are no such circumstances. This is typical judge-speak for not providing advisory opinions, and is a bit weaselly. Mukasey could at least identify what some of the “closer questions” are where waterboarding may be deemed legal, and I expect that he is being drilled on such scenarios in the Senate today.

My guess is that Mukasey is vaguely referring to “ticking time bomb” types of situations. He seems to be reluctant to proscribe waterboarding altogether, at least publicly, because our enemies may use that information to withhold vital information:

The principle that one should refrain from addressing difficult legal questions in the absence of concrete facts and circumstances has even more force as to this question. That is because any answer that I give could have the effect of articulating publicly — and to our adversaries — the limits and contours of generally worded laws that define the limits of a classified interrogation program.

Frankly, Mukasey’s reasoning makes absolute sense, but in this climate of highly charged partisanship regarding any matters concerning the war, all discussion is framed in terms of absolutes. Today’s Senate hearing has nothing to do with practical legal matters. Instead it is a battle for moral superiority. More accurately, it’s a highly publicized display of how morally superior the Democratic leadership on the Judiciary Committee considers itself, especially vis-à-vis the Bush Administration. In short, it’s a dog and pony show designed to make Democrats look good, and Bush (and any who agree even tangentially with him) look bad. Waterboarding is merely the current foil.

In the end, we’ve learned that the technique is not available to the CIA for use in interrogation and that, at least in some situations, it is clearly prohibited by law. However, there maybe other scenarios (presumably involving imminent and catostrophic danger) where either (a) waterboarding is not necessarily illegal, or (b) we don’t want our enemies to know we won’t use it. The rest is just stentorian drama of little to no consequence or utility (i.e. Senators blathering away).

UPDATE: Andy McCarthy reports from the Senate hearings (emphasis added):

In the hearing today at which AG Mukasey is testifying, Sen. Specter — who believes waterboarding is torture — has pointed out that his opinion is not the end of the matter. He noted that the Senate had voted down a provision that would have made it illegal. He then pointed out that, quite apart from waterboarding, the use of torture in ticking-bomb exigencies has been approvingly discussed by President Clinton, the Israeli Supreme Court, Sen. Schumer, Prof. Alan Dershowitz, and others. (He left out Sen. Clinton, but could have included her too.)

Has Specter been reading ASHC?

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Labour regulations in China and India: Economic Freedom in Relief

This is a stunning statistic:

…the annual expansion in China’s trade has been larger than India’s total annual trade during last several years.

Tyler Cowen hones in on this point, amongst a bounty of good points:

The most important factor that still holds back large [Indian] firms from entering these products is a set of draconian labour laws in India. Under these laws, it is virtually impossible for a firm with 100 or more employees to fire the workers even in the face of bankruptcy. It is equally difficult for the firms to reassign the workers from one task to another. These provisions impose very low worker productivity or a high real cost of labour. Large-scale capital-intensive sectors such as automobiles, where labour costs are a tiny proportion of the total costs, can profitably operate in such an environment. But the same is not true of large-scale labour-intensive sectors labour. Few foreign manufacturers are willing to enter India outside of a small subset of capital- and skilled-labour intensive sectors.

These kinds of rules damage economies around the world, but countries with the enormous poverty present in India are the least able to afford the luxury of such self inflicted wounds. Which goes to the point of the first chapter of the latest Index of Economic Freedom report.

Economic Fluidity: A Crucial Dimension of Economic Freedom

This essay argues that whether the economic infrastructure is “successful” or “perverse” and whether the “reward structure” is conducive to innovation and entrepreneurship rests on the degree of economic fluidity. Without constant mixing across boundaries, without the creation and testing of ideas, and without learning and adaptation, the specific character of the institutional structure matters little. Fluidity determines whether or not the structure will be successful in facilitating growth.

It isn’t capital, natural resources or education, it is the opportunity for all of those things to be deployed and redeployed. Entrepreneurial activity.

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Pining Away For Jihad Johnny

The aptly named Unqualified Offerings has had its share of troubles lately, and I’m not usually one to pile on, but this is simply beyond the pale (emphasis added):

Have We Given Justice to Lindh?

By Mona

American citizen John Walker Lindh is now serving 20 years in this heinous prison for what appears to have been the youthful insanity of fighting in favor of one side of a war in Afghanistan — well before that nation’s Taliban had threatened us.

What dear Mona neglects to mention, of course, is that the “one side” was al Qaeda (really al Ansar), which puts a bit of a crimp in her appeal for clemency. Here’s a brief look at what Jihad Johnny was doing in Afghanistan from the Grand Jury indictment handed down in the case against him (list compiled by PowerLine):

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Halliburton/KBR and U.S. Government Accused of Covering Up a Gang-Rape (UPDATED)

This is one of the most bizarre and disgusting stories I’ve heard in quite a while:

A Houston, Texas woman says she was gang-raped by Halliburton/KBR coworkers in Baghdad, and the company and the U.S. government are covering up the incident.

Jamie Leigh Jones, now 22, says that after she was raped by multiple men at a KBR camp in the Green Zone, the company put her under guard in a shipping container with a bed and warned her that if she left Iraq for medical treatment, she’d be out of a job.

“Don’t plan on working back in Iraq. There won’t be a position here, and there won’t be a position in Houston,” Jones says she was told.

Among other things, Jones apparently had to be rescued by State Dept. officials at the behest of Congressman Ted Poe (R-TX):

Finally, Jones says, she convinced a sympathetic guard to loan her a cell phone so she could call her father in Texas.

“I said, ‘Dad, I’ve been raped. I don’t know what to do. I’m in this container, and I’m not able to leave,’” she said. Her father called their congressman, Rep. Ted Poe, R-Texas.

“We contacted the State Department first,” Poe told, “and told them of the urgency of rescuing an American citizen” — from her American employer.

Poe says his office contacted the State Department, which quickly dispatched agents from the U.S. Embassy in Baghdad to Jones’ camp, where they rescued her from the container.

There’s much more and this story promises to be the poltical intrigue of the month considering the cast of bogeymen making an appearance: Halliburton, KBR, Iraq contractors, Bush Administration.

I honestly don’t know what to make of it right now, so I’ll reserve my thought until later. For now, Don Surber’s appalled, Rusty Shackleford is skeptical as is Ace, the left is having a field day. That should keep y’all busy.

UPDATE: Ben Domenech thinks Jones’ story is quite believable. And per the case file, Jones is (and was at the time) married to a soldier who is also a plaintiff in the suit.

So far the story reads like a made-for-TV movie, but that doesn’t make it false, just bizarre.

Developing …

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Happy Repeal Day!

For information on Repeal Day you can visit

The turn of the twentieth century was a dark time in America. The Women’s Christian Temperance Union, which had been promoting Prohibition for many years, believed alcohol was the cause of many, if not all, social ills. Mistruths like this were spread. Lines were drawn. Bars and taverns were vandalized. People were killed. On January 16th, 1919, Congress passed the Volstead Act, outlawing alcohol and ostensibly putting an end to drunkenness, crime, mental illness, and poverty.


Repeal Day is not widely celebrated in this country, yet it commemorates the anniversary of the day the United States repealed the Eighteenth Amendment and gave Americans the constitutional ability to consume alcohol.

Here are a few reasons why we think Repeal Day should be a celebrated day in the United States:

It’s the perfect time of year.

Conveniently located halfway between Thanksgiving and Christmas — at a time when most Americans are probably not spending time with family — Repeal Day presents a wonderful occasion to get together with friends and pay tribute to our constitutional rights.

We have the constitutional ability to do so.

The American FlagUnlike St. Patrick’s Day or Cinco de Mayo, Repeal Day is a day that all Americans have a part in observing, because it’s written in our Constitution. No other holiday celebrates the laws that guarantee our rights, and Repeal Day has everything to do with our personal pleasures.

It’s easy!

There are no outfits to buy, costumes to rent, rivers to dye green. Simply celebrate the day by stopping by your local bar, tavern, saloon, winery, distillery, or brewhouse and having a drink. Pick up a six-pack on your way home from work. Split a bottle of wine with a loved one. Buy a shot for a stranger. Just do it because you can.

Thanks for reading about what we hope will become a celebrated day in this country. Please help spread the word about Repeal Day, and tell a friend.


In celebration of the repeal of Prohibition I give you this from Reason TV:

For more Repeal Day errata, I highly recommend Dewars terrific website filled with historical video, proper Repeal Day conduct and drinking songs.

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Attorney-Gate: Leahy’s New Ploy

Sen. Patrick Leahy is running a new gambit in order to force White House officials to testify before Congress, although I think there is another less-obvious goal here as well:

A Senate chairman acknowledged explicitly on Thursday that President Bush was not involved in the firings of U.S. attorneys last winter and therefore ruled illegal the president’s executive privilege claims protecting his chief of staff, John Bolten, and former adviser Karl Rove.

Leahy directed Bolten, Rove, former political director Sara Taylor and her deputy, J. Scott Jennings, to comply “immediately” with their subpoenas for documents and information about the White House’s role in the firings of U.S. attorneys.

“I hereby rule that those claims are not legally valid to excuse current and former White House employees from appearing, testifying and producing documents related to this investigation,” Leahy wrote.

The ruling is a formality that clears the way for Leahy’s panel to vote on whether to advance the citations to the full Senate.

The executive privilege claim “is surprising in light of the significant and uncontroverted evidence that the president had no involvement in these firings,” Leahy, D-Vt., wrote in his ruling. “The president’s lack of involvement in these firings — by his own account and that of many others — calls into question any claim of executive privilege.”

By declaring that Pres. Bush had nothing to do with the firings, Leahy hopes to uncloak Bolten and Miers, thereby forcing them to testify and/or (apparently) avoiding Congress’ having to debate any issues of executive privilege. As I wrote previously, I don’t think the White House really has the choice to withhold the witnesses, even though their claims of privilege are likely quite valid.

By that same token, neither does Leahy have the power to simply declare the privilege non-existent with his rather blatant charade. “Ruling” that Pres. Bush had nothing personally to do with the firings does not address the privilege issue at all, and Leahy knows this. But, there may be a method to his madness for Leahy is basically claiming that Pres. Bush must be directly involved in a matter for the executive privilege to apply, which if true would seriously undermine the “Unitary Executive” theory.

Under the UE theory, the entire branch operates and speaks as one. There are not bits and pieces to it, but one executive that acts with singular authority. Leahy’s gambit shoves a large thorn in the side of that theory. If Bolten and Miers are not covered by the executive privilege because Pres. Bush did not participate with them in firing the attorneys, then there simply cannot be a unitary executive as a matter of logic. Either the privilege covers all members of the executive branch who carry out the President’s agenda and faithfully execute the laws of the land, or it only covers those involved in specifically privileged activities related to advising the President. Or, at least, that would seem to pose a problem for the UE theory.

That last point is where Leahy has something to work with because it can’t be the case that anyone nominally in the executive branch is covered by executive privilege, no matter what their function. Privileges are typically construed narrowly, and Leahy is right that in order for testimony to be covered by the privilege it should have something to do with giving the President advice. If Miers and Bolten were not advising the President with respect to the attorney firings, then they really can’t be covered by the executive privilege.

It is these limits on the executive privilege that appear to undermine the idea of a UE, and that may be part of Leahy’s gambit. It’s no secret that the Democrats are particularly annoyed with how the Bush Administration has flexed its muscles vis-à-vis the Congress, and seriously challenged the reach of the Legislature into the affairs of the Executive Branch. IMHO strengthening the Executive Branch has been a primary goal of Bush from day one, one which he intends to be part of his legacy. I also think that Leahy may see this gambit as an opportunity to weaken that legacy.

Just a quick caveat: I am by no means an expert in either UE or executive privilege so please speak up if I’m off base here. There may be nothing more than parliamentary procedure involved in Leahy’s ruling.

Still, I think there is tension between this ruling and the UE theory, and that that tension will get more air time as this clown show progresses.

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The Higazy Conundrum

For anyone who has been following the Higazy case and the puzzling circumstances under which a Second Circuit opinion was issued, withdrawn, and then reissued in redacted form, here is some information that seems to have been missed in the commentary (my emphasis):

A source close to the case said the opinion was withdrawn because of concerns that it disclosed information that was sealed by the district court on the grounds that it could jeopardize the safety of certain individuals.

The ABA Journal also relayed a statement from Catherine O’Hagan Wolfe, Clerk of Court for the 2nd Circuit that

the redacted information was originally sealed to protect Higazy and his family. She said the court made the decision to remove information filed under seal, and there was no “nefarious intent at work.”

Wolfe’s comments received more extensive treatment in the Washington Post (albeit buried at the end of a long article):

Catherine O’Hagan Wolfe, clerk for the appellate court, said the original Higazy ruling was withdrawn to remove information that should have been sealed. She said that the court made the decision and that it was not done at the request of the Justice Department or the FBI.

Wolfe said the redacted information was originally sealed for the safety of Higazy and his family. The passage that was removed is about a page long and centers on Higazy’s allegations of Templeton’s threats and his fears of Egyptian security services.

“Prior to the world of the Internet, a decision would be issued and then withdrawn without any consequences of any moment,” Wolfe said. “Now if that happens it raises the specter of interference or some nefarious intent at work, which is not the case.”

However, the prevailing wisdom in the blogosphere is that the DOJ requested the redactions in order to cover up alleged wrong-doing on the part of the FBI Agent who is a defendant in the case. For example, Patterico insists that this is the only logical explanation (see also comments here), and claims to have unearthed seemingly dispositive evidence of that proposition as fact. Citing a commenter at The Volokh Conspiracy, Patterico provides the following:

It turns out Higazy’s lawyer wrote Judge Rakoff in 2002 and said:

Dear Judge Rakoff.

I write to inform the Court of my view on the question of unsealing of the material relating to the above referenced matter. It is both my and Mr. Higazy’s position, that the entire matter should be unsealed. Transparency of the judicial process should be the order of the day.

This is a well established principle of our body politic and system of jurisprudence. It is only in exceptional instances which have been clearly identified and firnily rooted in our system of justice, that this rule does not apply. The government has failed to provide any authority to support continuing the shroud of secrecy currently blanketing the matter.

. . . .

[T]he events which have unfolded . . . are of great importance to the American public, as it concerns how our government has gone about its business investigating this case. I truly believe that there are valuable lessons to b[e] learned from an examination of the investigation herein and public discourse thereof.

Clearly, none of this can occur in a vacuum, therefore, it is imperative that the facts of this come to light. I trust this Court will do what is just and proper, and unseal the subject material herein.

Sincerely yours,


Robert S. Dunn

There are several problems with Patterico’s analysis, however, chief among which is the fact that the case presided over by Judge Rakoff was the original criminal complaint against Higazy, which was subsequently dismissed. The information sealed in that case all related to an ongoing Grand Jury investigation which is required to be sealed by law. Indeed, in 2002 nearly all the information previously filed under seal was released to the public by Order of the Court (emphasis added):

Third, there remains the request of Mr. Higazy’s counsel, joined in by the New York Times, to unseal all prior papers and proceedings in this case. While grand jury secrecy is mandated by law, see Fed. R. Crim. P. 6(e)(5)&(6), the determination to jail a person pending his appearance before a grand jury is presumptively public, for no free society can long tolerate secret arrests.


Here, moreover, the argument for continued sealing is largely academic, not only because Higazy never was presented to the grand jury but also because the Government, in its public filings regarding the charging and discharging of Higazy and the charging, convicting, and sentencing of Ferry, publicly disclosed virtually all the facts here at issue that could conceivably be claimed to relate to matters occurring before the grand jury.

As for the conduct of the polygraph examiner, Higazy, as a participant in the event, has never been under any impediment to making public his version of what occurred. Moreover, not even the Government suggests that the manner in which the polygraph examiner conducted the voluntary testing that Higazy himself initiated is itself the subject of a grand jury proceeding.

In sum, I find it exceedingly difficult to justify the prevailing wisdom that the government was responsible for requesting the redactions to the Second Circuit opinion. The only evidence regarding whom requested a seal in Higazy v. Templeton comes from an unnamed inside source and the named Clerk of Court, who both claim that Higazy [Ed. per the comments, this should read "someone, it's not clear whom"] requested the redactions “to protect Higazy and his family.”

Yet, despite the fact that Wolfe’s statements were printed in the WaPo and the ABA Journal on October 25th summarily rejecting the speculation that the government asked for the redactions, weeks later the speculation continues. As late as November 13th, in fact, some bloggers were still citing irrelevant evidence as proof positive that the DOJ was helping the FBI in a cover up. To date, I can find no retractions as to that speculation.

Just to get my weasel words in here, none of this means that the DOJ did not seek the retractions; it is possible (although incredibly unlikely) that the Clerk of Court for the Second Circuit lied. And, regardless of who requested that information be sealed, FBI Agent Templeton’s guilt or innocence is still undecided at this point. He may very well have done everything he’s accused of doing by Higazy.

Regardless, the rampant speculation and conspiracy theorizing that’s been going on (and still is) based on some rather sloppy work on the part of the court (which deserves to be reprimanded here for not keeping sealed information out of public view) is a bit ridiculous. Incompetence is a much safer bet than conspiracy in nearly every case, especially where, as here, the entire story was initiated by incompetence.

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Bad News in Housing

Foreclosure rates could drop!!!

That is bad news?

It is if it is because courts are throwing out cases because mortgage companies holding securitized mortgages  don’t have the actual note. I’ll let Luke explain:

The problem has arisen because most of these sorts of trust do not actually possess the physical mortgage note itself. Instead they have a third party hold the document. So, when they attempt to foreclose on a property (or in this case, 14 properties), they are unable to provide actual proof of ownership of the notes.

The decision in this case is an enormous deal. It is unclear at this point whether the majority of these trusts would be able to provide actual proof of ownership if challenged by the borrower to do so. If they cannot, then the foreclosure rate may begin dropping precipitously – not because people aren’t defaulting, but because the note owners aren’t keeping adequate records.

This could be disastrous for the mortgage industry. Throw in the damage to the underlying bonds if investors are unsure of the actual assets backing them. What will that do to the credit markets? I assume panic is not in overdrive yet because nobody believes this will stand, but in the meantime markets hate uncertainty.  If this story gets much play disaster in the credit markets could result even if it has no real impact on foreclosures.

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White House — Contempt of Congress

Since the resignation of Attorney General Alberto Gonzales the Attorney-Gate charade has basically fallen off the map. That’s a good thing for the most part because there never was any “there” there, at least not with respect toClown Show the politically appointed attorneys who were fired in the due course of the administration’s affairs.

However, at least one latent matter left unresolved from Attorney-Gate is the refusal of White House Chief of Staff, Josh Bolten, and former White House Counsel, Harriet Miers, to testify before Congress on the matter (another being the IJ hirings). Both were subpoenaed, and both declined to participate citing executive privilege. In the category of a broken clock getting it right, I have to agree with the NYT editors on this one:

The House Judiciary Committee subpoenaed Ms. Miers and Mr. Bolten in connection with its investigation of the purge of nine top federal prosecutors and other apparent malfeasance in the Justice Department. Invoking executive privilege, Ms. Miers refused to appear and Mr. Bolten refused to turn over critical documents.

They had no right to refuse. Congress has the legal power to call witnesses to testify, and presidential advisers are not exempt. Conservative lawyers like Bruce Fein agree that the administration’s claims of executive privilege are baseless. If the White House believes specific matters are privileged, it needs to make those limited claims.

The rest of the editorial is mere liberal pablum and breathless conjecture about how the evil Bush Administration has ruined our government, blah blah blah …

The Bush administration’s days are numbered. But the damage it has done to the balance of powers could be long-lasting. If Congress wants to maintain its Constitutional role, it needs to stand up for itself. A good place to start is by making clear that its legitimate investigative authority cannot be defied, and any who choose to do so will pay a heavy price.

Although I do not share the NYT’s righteous fury, I simply don’t understand the White House’s refusal to allow Miers to testify or Bolten to turn over documents. I do think that its claims of executive privilege stand on solid ground, especially with respect to anything Miers might have to say, but that is not a reason to refuse to show up for a hearing. Perhaps someone will point out where I’m wrong on this, but as far as I know the subpoenaed parties need to testify even if their entire testimony is a citation of executive privilege. More importantly, the privilege needs to be asserted in response to specific requests, on specific subject matters, citing specific reasons for assertion of the privilege. There is no blanket executive privilege as I understand it. When Congress seeks to inquire, as it is charged with doing under the Constitution, the Executive must reply. Refusing to play is not a Constitutionally viable option.

Of course, the value of having Miers and Bolten testify is dubious at best. Most of what they would say, and nearly every document requested, will surely be covered by executive privilege, making this a futile exercise at best. Indeed, most Members of Congress probably knew this beforehand, which is why a vote before the full House is not being met with much alacrity:

House Democrats have postponed a vote until December on contempt resolutions against White House chief of staff Josh Bolten and former White House counsel Harriet Miers, delaying for now any constitutional showdown with the White House over the president’s power to resist congressional subpoenas….

Other top Democrats, including Caucus Chairman Rahm Emanuel (Ill.), have argued that the House should put off that fight while debates over Iraq funding and electronic eavesdropping dominate the floor. The contempt vote had been tentatively scheduled for Friday before Majority Leader Steny H. Hoyer (D-Md.) informed his colleagues that it was being delayed.

Although most of the Democrats are being coy about why the contempt citations are being delayed, at least one was willing to say what is surely on everyone’s mind:

Only one vulnerable Democratic member, Rep. John Barrow (Ga.), openly expressed serious reservations about moving forward with the bill.

“There has been a serious lack of oversight of this administration,” Barrow said. “But at the same time, I don’t think we should be picking fights we can’t win.”

A few Democrats contacted for this article, however, were unsure about engaging in a constitutional showdown with the White House over the matter and said they needed more time to study it.

The reason that Rep. Barrow thinks this is a losing proposition is because, even if the citations are upheld by a court (which they will be IMHO), all that earns Congress is a hearing full of Miers and Bolten refusing to answer questions or turn over specific documents. Again, that doesn’t make the White House’s position any more justifiable, but it does underscore the truly political nature of this affair, and what an utter waste of time and money it has been.

Well, unless we all really enjoy clown shows.

[HT: Memorandum]

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“Constitutional Scholar” Follies

Noted constitutional scholar, conspiracy theorist, sock puppet and all around frustrated guy, Glenn Greenwald, has a melt down over the spinelessness of the Democratic majority. Not to disagree with him, I agree they are spineless, but this little diatribe is profoundly silly.

First of all, if the Democrats had a spine Mukasey would have been confirmed by a much larger margin. Many Democrats only voted against him to appease the likes of our little ragged piece of footwear, much like the last spineless attempt to appease the net-roots by impeaching Cheney. Let me quote Bilby to refresh your memory:

Okay, so to get things started Steny Hoyer introduced a resolution to table (kill) the resolution. At first it looked as if the motion to table would pass handily, with all the Republicans and enough Democrats voting that way. Then the Republicans got sneaky. A bunch of them decided to change their votes to stop the motion, thereby giving Kucinich, and presumably the rest of the Democrats who voted his way, what they wanted; for the matter to be debated. The vote ended up 251-162 against tabling the resolution. Yay! The moonbats should have then been ecstatic! Finally the House would debate impeaching Cheney for allegedly lying us into war. But no. A short time later another motion was introduced by the Dems to send the resolution back to committee, which as mentioned is almost as good as killing it. Guess what happened? 81 of the Democrats who voted against tabling the resolution when they were pretty sure they would be on the losing side turned around and voted for sending it to the Judiciary Committee. Ouch! They wanted to make it appear they were all for bringing impeachment up for debate (and appeasing the nutroots), but when it looked like it would really happen they ran to stop it!

The key is they didn’t want to try and impeach Cheney, they just wanted to have it off the table, but their vote on record so the netroots would be appeased. A point Greenwald can’t seem to get his mind around is that the positions he champions are not as popular as he has convinced themselves they are. The same thing with Mukasey. Voting against him plays well with he and his clique, but not so well, or even noticed, by the rest of the country.

More pathetically, our constitutional expert is all confused about the whole 60 vote majority requirement in the first place:

The so-called “60-vote requirement” applies only when it is time to do something to limit the Bush administration. It is merely the excuse Senate Democrats use to explain away their chronic failure/unwillingness to limit the President, and it is what the media uses to depict the GOP filibuster as something normal and benign. There obviously is no “60-vote requirement” when it comes to having the Senate comply with the President’s demands, as the 53-vote confirmation of Michael Mukasey amply demonstrates. But as Mukasey is sworn in as the highest law enforcement officer in America, the Democrats want you to know that they most certainly did stand firm and “registered their displeasure.”

McQ dances on the sock puppet’s hamper:

Of course. Or it could have something to do with regular legislative business in the Senate requiring 60 votes and judiciary committee nominations, by agreement, not requiring them. How soon we forget all the talk about the “nuclear option”, the “gang of 14″ and the difference between a judicial filibuster and a legislative one.

Heh, well, I guess Mr. Greenwald won’t be putting that post as a link on his resume. Read the rest of McQ’s post if this didn’t remind you of how the senate works.

Andrew Sullivan takes him seriously, Alex/Thoreau seems to miss the point as well. Sadly, as Bilby notes, Marty Lederman even ran with it, though he certainly should have known better. I think he woke up pretty quick to his lack of judgment in paying attention to a sock rather than thinking about it for himself and just plain old pulled the post. Not that that is how such misgivings should be handled, but it is certainly preferable than Greenwald’s course, which will be to ignore it because his fans will not care, or come up with a weaselly explanation. Marty however, is an expert on constitutional law, a good mind, and possessed of a good bit of integrity, so no way is he going to keep something like that up. I think a simple ‘hey, quick post, not enough coffee, ignore anything to do with that issue I wrote” would suffice, but I get it. A warning about the dangers of even experts following the lead of a paranoid puppet made from old socks would probably be a service to his readers, but we cannot all take up that cross.

Update: Buck Naked Politics, The Booman Tribune, and Cernig miss the flaw in Greenwald’s analysis as well. Michael here at A Second Hand Conjecture is rather scathing.

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Dershowitz on Waterboarding and the Democrats

In the WSJ:

Consider, for example, the contentious and emotionally laden issue of the use of torture in securing preventive intelligence information about imminent acts of terrorism–the so-called “ticking bomb” scenario. I am not now talking about the routine use of torture in interrogation of suspects or the humiliating misuse of sexual taunting that infamously occurred at Abu Ghraib. I am talking about that rare situation described by former President Clinton in an interview with National Public Radio:

“You picked up someone you know is the No. 2 aide to Osama bin Laden. And you know they have an operation planned for the United States or some European capital in the next three days. And you know this guy knows it. Right, that’s the clearest example. And you think you can only get it out of this guy by shooting him full of some drugs or waterboarding him or otherwise working him over.”

He said Congress should draw a narrow statute “which would permit the president to make a finding in a case like I just outlined, and then that finding could be submitted even if after the fact to the Foreign Intelligence Surveillance Court.” The president would have to “take personal responsibility” for authorizing torture in such an extreme situation. Sen. John McCain has also said that as president he would take responsibility for authorizing torture in that “one in a million” situation.

Although I am personally opposed to the use of torture, I have no doubt that any president–indeed any leader of a democratic nation–would in fact authorize some forms of torture against a captured terrorist if he believed that this was the only way of securing information necessary to prevent an imminent mass casualty attack. The only dispute is whether he would do so openly with accountability or secretly with deniability. The former seems more consistent with democratic theory, the latter with typical political hypocrisy.

Reading just that might be misleading, so read the whole thing.

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Courage Required Of Leaders

ED MORRISSEY: Waterboarding is torture and Congress should outlaw it. That would, however, require courage.

Hmmm, didn’t someone around here (and over there) say that recently??? OK, certainly not as eloquently, or verbosely, but it’s the same point all the same.

Congress should quit debating whether current law covers waterboarding and clear the issue up once and for all. As Nance says, detainees already released have spoken publicly about interrogation techniques, so publicly taking waterboarding off the list of options doesn’t really impact interrogations. As I wrote a few days ago, forcing an Attorney General to declare it illegal as the price of confirmation functionally does the same thing as an explicit law outlawing waterboarding — only it shifts responsibility for legislation from Congress to the AG and basically forces him to make up laws as he goes along.

And isn’t it interesting that the Democrats keep wanting to shift the responsibility, and the blame, to other people. Whether it’s the courts on social issues, or here, the AG on a legislative issue, they can’t seem to get the traction on their issues to actually get a law passed.

(H/T Instapundit.)

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Stupid Human Tricks

Here are things not recommended to try in Indiana.

A) Speeding through a construction zone. You see orange cones (which seems like all the time around here) slow down.
B) Running from the cops, after speeding through a construction zone. Generally, if cops want to pull you over, you should find a safe place to do it, and pull over.
C) Running from the cops, after speeding through a construction zone, with pot in your car. If you have something to hide, running from the cops is the last thing you should try and do. You are not the Bandit. You are not Tony Stewart. The cops have radios and helicopters. They will likely catch you, and be peeved off at you for running.

Was she high or what?

State troopers arrested a motorist who refused to pull over after being clocked speeding through the Eastside Super 70 highway project.

Mary Warren of Berkeley, Mo., led police on a chase that ended along Interstate 70 near Greenfield after police used tire-deflation sticks, said Lt. Jay Nawrocki, commander of the State Police post in Indianapolis.

Police said they found a small amount of marijuana in her white 2003 Pontiac Grand Am.

A Hancock County deputy used a “flash-bang device” – a noisy explosive used to distract suspects – after Warren refused “loud verbal commands” to exit her vehicle, Nawrocki said. After distracting the woman, police opened the vehicle’s door and removed her from the car.

Warren was driving 64 mph in a 45 mph zone when police attempted to pull her over.

OK, maybe, in which case she will add DUI to her list of charges. And if she had just pulled over, and taken the ticket, she probably would not be in the news.

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Zero Tolerance Idiocy

Hugging friends is equal to sexual harassment? What has replaced commonsense in school administrators these days? Risk aversion is one thing, defining a problem down to a list of “must not do” activities isn’t the way of solving it.

A 13-year-old junior high school student was given two days of detention after school officials spotted her hugging friends after school last Friday.

Megan Coulter, an eighth-grade student at Mascoutah Middle School, was hugging her friends goodbye after school Friday when vice principal, Randy Blakely, saw her and told her she would receive two after-school detentions.

The debate of public displays of affection in school is hitting home in Alabama. The mother of a student in Autauga County says her daughter was disciplined for simply hugging a friend.

And Autauga County isn’t the only one. Just last week, a school in Illinois disciplined a student for the very same thing. And a South Dakota student got in trouble for holding hands with a friend.

“It was made to be something ugly and it wasn’t,” Muir said.

She says the hug wasn’t meant to be sexual. She says her daughter was consoling a male friend who recently lost a parent.

Why is this happening? Well, blaming lawyers and our lawsuit happy society, is probably not inappropriate. But, there comes a time that the line needs to be refined so that, common everyday actions are not redefined as “sexual harassment.” What message is that sending to kids???

In 1999, the U.S. Supreme Court ruled schools could be held liable by ignoring claims of sexual harassment. Some say the ruling puts schools between a rock and a hard place. By not identifying all suspect behavior, they risk liability. But when they do, they often hear complaints from parents.

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Levin and the shocking torture memo’s

Marty Lederman has a nice post up on the revelations of Daniel Levin about the development of the “torture memo’s.” Read the whole thing. I do have some caveats. He refers to Jack Goldsmith’s book which criticizes these memo’s and the way the Justice department was functioning at the time (and on a related note, Goldsmith’s book is featured prominently at Instapundit. Including an interesting podcast with Goldsmith himself. Of course the criticism’s implicit in all this laudatory coverage of the book are only imaginary I guess. If you would like to read them, go here.)

Yet the post is filled with shock and disbelief, and that is what I want to address. One would think this wouldn’t surprise him, because if he didn’t know how very believable such behavior is, he should know after reading the book. For example, I refer you to Geoffrey Stone’s review:

The following anecdote captures the mood: In spring 2004, Goldsmith informed Addington that the administration could not lawfully implement a potentially important counterterrorism measure. Addington, who “acted with the full backing” of the vice president and who routinely “crushed bureaucratic opponents,” exploded: ” ‘If you rule that way, the blood of the hundred thousand people who die in the next attack will be on your hands.’ ”

Addington’s response speaks volumes about the incredible and understandable pressure felt by the Bush administration to keep America safe. Every morning, the White House receives a ” ‘threat ma- trix’ ” that lists every threat directed at the U.S. in the preceding 24 hours. The matrix can be dozens of pages long. As Goldsmith notes, “It is hard to overstate the impact that the incessant waves of threat reports have on the judgment of people inside the executive branch who are responsible for protecting American lives.”

One of Goldsmith’s colleagues in the administration analogized “the task of stopping our enemy to a goalie in a soccer game who ‘must stop every shot,’ ” for if the enemy ” ’scores a single goal,’ ” the terrorists succeed. To make matters worse, ” ‘the goalie cannot see the ball — it is invisible. So are the players — he doesn’t know how many there are, or where they are, or what they look like.’ ” Indeed, the invisible players might shoot the ball ” ‘from the front of the goal, or from the back, or from some other direction — the goalie just doesn’t know.’ ” With such a mind set, it is no wonder that 9/11 generated a “panicked attitude” within the White House.

Exacerbating this attitude was a profound and little-noted transformation in the legal position of the executive branch over the last 50 years. In past crises, presidents like Abraham Lincoln and Franklin Roosevelt faced extreme threats to the national security. But they enjoyed broad freedom to respond to the danger without meaningful legal constraint.

To illustrate this point, Goldsmith relates in some detail Roosevelt’s decision to intern almost 120,000 people of Japanese descent after Pearl Harbor. Although Atty. Gen. Francis Biddle strongly opposed this action and advised Roosevelt that it was unlawful and unconstitutional, the president blithely ignored Biddle’s advice. Goldsmith writes:

“Having failed once to prevent a surprise attack by people of Japanese ancestry, [Roosevelt] did not think he could afford to ignore popular demands for security. . . .

“Roosevelt could think this way because the law governing presidential authority during his era was largely a political rather than a judicial constraint on presidential power.”

FDR was concerned “about the reaction of the press, the Congress, and most of all, the American people,” but he was not at all concerned “about being sued or prosecuted, or about defending his actions before a grand jury or an international court.”

Thus we get both a look into the enormous pressure the White House felt, and the past where far more egregious behavior occurred. Both speak to exactly why we should believe what we see here, why the Bush administrations response of trying to overcome the huge legal hurdles they faced led to solutions which Glenn Reynolds characterizes this way (the entire podcast is worth listening to/reading)

I’ve noticed something about the Bush administration’s legal arguments. And it doesn’t just relate to the war, it goes to all sorts of things. I mean, I wrote an article this summer about the — Dick Cheney’s office claiming, earlier this summer, that he’s a legislator not a member of the executive branch. And thus not under certain statutory duties that members of the executive branch are under. And, you know, you get these, sort of, clever but, sort of, over the top arguments that you might make to lighten the tension when you’re in the middle of a late night brainstorming session. And then everybody has a good laugh. And maybe you, sort of, bat the ball back and forth a few times. And then you return, sort of, to the more sober task at hand, only they actually make that their main argument. I mean, what’s going on with that?

Now I realize this is not a criticism of the administration, it just sounds like one to us rubes who buy Glenn’s schtick (see this comment thread) but it goes to the heart of how the administration has failed to stand up to the pressure of the moment.

We shouldn’t be surprised by this because that is what governments (or people in general) do in every area of our lives. The exact manner in which this is done may vary. If it isn’t pressuring lawyers to give cover, it is appointing judges who reinvent the Constitution to restrict the second amendment, herding legislatures and public opinion to ignore our Constitution to intern tens of thousands of Japanese, pack the court to destroy limits upon the Constitution’s restrictions on government power, develop legal theories which turn the commerce clause from a limit upon the authority of the state to a blank check to do almost whatever it wishes, or simply have the entire government ignore our own crimes, tortures and other brutal acts while we try our enemies under Roosevelt, and on and on and on.

So while Marty’s general analysis is sound, his shock and indignation should be the surprise, not the behavior itself, but of course it doesn’t.

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Clinton and Obama not fit to be Attorney General

I think this hits the nail on the head:

Clinton, Clinton, Obama and Schumer.  They have all, to a greater or lesser degree, embraced the concept of coercive interrogation (some, even torture — which is unquestionably illegal), and they have all underscored the excruciating complexity of this issue.  Somehow, they are fit to lead the Democratic Party but the suitability of Mukasey — who has taken a more measured stance — to be attorney general is in doubt?  What am I missing here?

Read the whole thing for background. It puts the lie to the idea that those who we can be sure will vote for these people over any Republican who might be the nominee, are actually taking some kind of principled stand. While I think a responsible debate about what kind of techniques can and should be used in interrogation is necessary, we haven’t had it. I should amend my first statement, this is what really hits the nail on the head:

I dunno. Maybe that the “torture” debate is a political tool, and otherwise unserious?

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Ethnic Cleansing In LA

Who would have thought this kind of thing would happen in this day and age, in America. But, add one part “War on Drugs,” and one part “Illegal Immigration,” and you get volatile results.

A south Los Angeles Latino street gang targeted African-American gang rivals and other blacks in a campaign of neighborhood “cleansing,” federal prosecutors say. Alleged leaders and foot soldiers in the Hispanic gang Florencia 13, also called F13, are being arraigned this week on charges stemming from a pair of federal indictments that allege that the gang kept a tight grip on its turf by shooting members of a rival gang—and sometimes random black civilians. The “most disturbing aspect” of the federal charges was that “innocent citizens … ended up being shot simply because of the color of their skin,” U.S. Attorney Thomas O’Brien told reporters in announcing the indictments.

No one is sure what started the war between F13 and the black gang known as the East Coast Crips in the Florence-Firestone area of unincorporated L.A. County. Simple neighborhood demographic shifts played a role, as formerly black areas have become majority-Latino. The two gangs are also rivals in the lucrative drug trade. Much of the F13 indictments lay out a conspiracy alleging that gang members controlled drug houses where they sold large amounts of cocaine, crack and methamphetamine. Some say the killings began after the Crips pulled a large drug heist against F13 several years ago. Whatever the causes, L.A. Sheriff’s Department statistics chart the war’s violent toll: 80 gang-related shootings in the past three years, including 20 murders.

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The Law Explained: FBI Interrogation Edition

The Appearance Of Impropriety

There is a minor brouhaha percolating at the blog-level right now regarding a Second Circuit decision that was issued, withdrawn, and then re-issued in redacted form. The small bit that was redacted is what’s causing all of the controversy because it concerned alleged threats from an FBI agent towards the family of an Egyptian detainee being questioned; threats that the plaintiff detainee (Mr. Higazy) took seriously enough to falsely confess to owning a radio transmitter that was not his. A good recitation of the facts can be found here. Howard Bashman and Steve Bergstein, among others, are rather puzzled by the appellate court’s redaction in general, and its pressuring of Hammer-gavel Bashman to take down his posting of the unredacted decision. Meanwhile, because of the strange issue-withdrawal-reissue of the opinion, Patterico thinks he’s caught the government playing cover-up:

Did you ever wonder what our government wants to keep secret — and what courts allow them to keep secret?

You’ll get to see one such example in this post, courtesy of Howard Bashman, the legal blogger at How Appealing.

It ain’t pretty, folks.


I have found, read, and excerpted below the portion that the Second Circuit tried to take back. My judgment is that the material was sealed, not to protect anyone from harm, but to protect the government from embarrassment.

Summary Judgment: When Facts Are Not Facts

Ignoring for the moment the futile attempt by the Second Circuit to “unring the bell,” as it were, what seems to have been lost in the discussion is how the procedural posture of the case treats the seemingly salacious details of the allegedly coerced confession as proven facts, when they are merely Mr. Higazy’s recitation of the events taken for granted. In short, this case was decided on the defendant’s summary judgment motion, which accepted the alleged facts as true for the argument, and asked the court to dismiss the case because Mr. Higazy’s claims were legally insufficient to reach a jury. The facts of the coerced confession, therefore, have not been proven, and are not facts as yet.

Indeed, the interrogator, FBI Agent Templeton, is on the record as denying that he threatened the plaintiff at all (see unredacted 2d Cir. Opinion at 42-43). But that denial would not be presented in the motion for summary judgment because, as a matter of law, such a motion can only be granted where there are no material facts in dispute, such that the moving party (Templeton in this case) accepts the factual record as already established, and the court views the facts in a light most favorable to the non-moving party (Higazy). The way to defeat such a motion is to show that there is a genuine factual issue for trial — i.e. that the jury needs to decide what the facts of the case are. If there are no genuine issues as to the facts, then the court can take the case, apply the relevant law and decide which party wins without having to go to trial.

Boiled down to the bare bones, Templeton asked the court to rule in his favor because (according to him) even by accepting the facts as alleged by Higazy and viewing them most favorably to the plaintiff, the law still says Templeton wins. Templeton may not actually agree that he threatened Higazy (and, in fact, denies it altogether), but for purposes of ending the case early (i.e. without going to trial) he was willing to let that allegation go unchallenged so that the judge could decide the merits of the case on the law alone. If Templeton had challenged the allegation, there would be an issue of fact for the jury to decide, and he could not bring the motion at all.

Questions For The Jury

Given this procedural posture, it is not at all settled that Templeton issued any threat to Higazy. For Higazy to have falsely confessed, it sure does seem likely that Templeton threatened him and/or his family, but until Templeton tells his side of the story we just don’t know. I can imagine a scenario where Templeton asked Higazy if he understood the consequences of his continued denials as to the radio in order to get Higazy’s co-operation: “If we have to go to trial on this, you know that your name will be all over the papers, and that somebody in Egypt is going to make the connection to your family, don’t you? What do you think will happen to them when all of this gets out?” That would not be a threat, but instead an allusion to the potential consequences should Higazy’s name be connected with terrorist activities, all events beyond the control of Agent Templeton. However, Higazy may take such an allusion as being a threat by Templeton to cause such adverse consequences unless Higazy gave Templeton what he wanted.

This entire scenario is pure conjecture on my part, but its a scenario that (a) is entirely plausible, and (b) makes Templeton’s interrogation seem less sinister. When coupled with that portion of Templeton’s affidavit quoted by the concurring opinion (at p. 43), the scenario seems much more likely:

[On January 8,] I was met by the attorney who informed me his client would not take this [second polygraph] test because the writer had threatened him, and his client was now denying ownership of the radio. . . . The accusation of the threat was denied by writer . . . . The attorney requested that I hear the complaint directly from the client. . . . [Higazy] stated “all I can remember is you saying that you would see to it that the Egyptian security service make my parents lives a living hell.” Writer denied to [Higazy] and the attorney that the threat was made . . . . [W]hen informed [by the writer] that [Higazy] was advised by the writer of the attorney’s presence and availability at any time, the
attorney asked [Higazy] if what the writer had said was true, [Higazy] advised the attorney that he couldn’t remember. The attorney asked [Higazy] again, “did he (the writer) tell you that?” [Higazy] responded, “I can’t remember. I’m not a human tape


To recap, Patterico and some others think that the FBI is trying to cover up some rather unethical conduct in the aftermath of 9/11 by keeping a small portion of the Second Circuit opinion sealed. I can’t say that the FBI is not doing so, but judging from the procedural posture of this case (i.e. ruling on a summary judgment motion), I don’t think that it is at all possible to say that the allegations against Agent Templeton are true. That has not been established. Those claiming a cover-up have taken the allegations as true because Templeton did not outright deny them in his motion. However, when the procedural minutiae is brought to light, it looks less like a case of cover-up and more like bureaucratic incompetence blown up into conspiratorial nonsense.

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