Wednesday, July 22, 2009

DOJ Offficial: Bush Used Wartime Authority

Law professor John Woo, the former Justice Department official who helped write the harsh interrogation memos, thereby making the enemy-combatants lobby very upset, responds in the Wall Street Journal about the recent Inspector Generals report alleging possible FISA violations by the Bush administration:
Under [the Foreign Intelligence Surveillance Act], to obtain a judicial wiretapping warrant the government is supposed to show probable cause that a specified target is a foreign agent. Unlike, say, Soviet spies working under diplomatic cover, terrorists are hard to identify. Yet they are vastly more dangerous. Monitoring their likely communications channels is the best way to track and stop them. Building evidence to prove past crimes, as in the civilian criminal system, is entirely beside the point. The best way to find an al Qaeda operative is to look at all email, text and phone traffic between Afghanistan and Pakistan and the U.S. This might involve the filtering of innocent traffic, just as roadblocks and airport screenings do.
In FISA, President Bush and his advisers faced an obsolete law not written with live war with an international terrorist organization in mind. It was to meet such emergency circumstances that the Founders designed the presidency...
Clearly, the five inspectors general were responding to the media-stoked politics of recrimination, not consulting the long history of American presidents who have lived up to their duty in times of crisis....Now, according to the inspectors general, those of us in government following the 9/11 terrorist attacks should have assumed that the usual peacetime rules for domestic wiretaps applied and interpreted FISA in a most curious way -- to delete the president's traditional authority as commander in chief to collect signals intelligence in wartime.
Click here for the full text of the Unclassified Report on the President's Surveillance Program prepared by the Inspector Generals of DOD, DOJ, CIA, NSA, and DNI.

AmeriCorps Inspector General Files Wrongful Termination Action

The AmeriCorps federal watchdog sacked by the White House for investigating the Sacramento corruption scandal is going to court:
Gerald Walpin, the AmeriCorps inspector general who was summarily fired in June amid controversy over his investigation of a politically-connected supporter of President Obama, has filed suit alleging that the firing was "unlawful," "politically driven," "procedurally defective" and "a transparent and clumsily-conducted effort to circumvent the protections" given to inspectors general under the Inspectors General Reform Act of 2008.
Walpin's suit, filed in U.S. District Court for the District of Columbia, is against the Corporation for National and Community Service, which oversees AmeriCorps. Also named are Nicola Goren, the acting CEO of the Corporation, Frank Trinity, its general counsel, and Raymond Limon, the Corporation's "chief human capital officer." The suit asks the court to declare Walpin's firing unlawful and restore him to his position as the Corporation's inspector general.
At the time of his firing, Walpin was involved in a dispute with the Corporation's board over his handling a case involving the misuse of hundreds of thousands of dollars in AmeriCorps funds by Kevin Johnson, the former NBA star who is now mayor of Sacramento, California and a prominent supporter of President Obama.The board disapproved of Walpin's aggressive probe of Johnson, and the investigation also sparked conflict with the acting U.S. attorney in Sacramento, because of fears that the probe -- which could have resulted in Johnson being barred from ever winning another federal grant -- might stand in the way of the city receiving its part of billions of dollars in federal stimulus money.
In other hope-and-change news, the "healthcare" deadline is not the only initiative that is experiencing slippage according to Newsweek:
An Obama administration task force set up to develop a plan for the closure of the U.S. detention facility at Guantánamo Bay will miss its first deadline this week—and put off a key report—amid continued divisions over how to resolve one of the president's thorniest policy dilemmas.
The task force, set up on Obama's second day in office, was charged with preparing a report to the president by Tuesday, July 21, outlining a long-term detention plan for detainees captured in counterterrorism operations after Sept. 11. But continued debate within the task force over the legal basis for holding detainees who are not charged with any crimes—and where to house them once they are moved from Guantánamo—has forced the task force to postpone its report by a "few months," a senior administration official told NEWSWEEK.
An update to this story has it that Gitmo is still on schedule for a January 2019 closure "even as officials acknowledged that two key reports on the issue—which were due to be delivered this week—have been delayed for months." The New York Times has more.

A Grand Social Experiment...

In contrast to the high-and-mighty political rhetoric from "spin doctors" (pardon the pun), click here for a line-by-line analysis by the Economic Policy Journal of the House bill that would lead to a government takeover of the "healthcare" system. And Investor's Business Daily re-confirms its analysis of the reform plan moving through the House that essentially outlaws the private individual medical insurance market.
Not fully trusting our own interpretation, we asked for confirmation from the House Ways and Means Committee. Sources there agreed: The bill would indeed shut down the individual private health care insurance market.
Our impression was further confirmed Monday when Rep. Dave Camp, the ranking member on Ways and Means, told us that "any existing plan will not be able to enroll members." There will be "a prohibition," the Michigan Republican said, "on enrolling individuals in private health plans" after the bill becomes law in 2013.
It was also confirmed by Ways and Means staff director Cybele Bjorklund, who, in response to questions from Republican Rep. Paul Ryan of Wisconsin during a committee markup session, admitted last week that insurance providers "cannot create new policies outside of that window outside of the exchange."
Alternative perspective: For a point of view that eloquently conveys support for the current legislation, visit the Painespeak blog.

The Sotomayor Tap Dance

With the ongoing economic turmoil and the looming possibility of socialized medicine, the Sotomayor hearings became an afterthought, a sideshow. Understandably so--in these difficult times, the focus is on job security and family finances. According to online media reports (we didn't bother watching the event on TV), the judge fared well in the boring proceedings--although she apparently back-pedaled furiously on some of her previously stated beliefs. But as a practical matter, and leaving politics aside, can we fault her--or any similarly situated person (to use lawyer-speak)--for that? In any job interview, everybody is on their best behavior. The name of the game is to get the gig--and when it comes to a high-profile federal appointment, that's what all nominees (and their handlers) generally try to do, regardless of their political party or ideology.

In addition to the prestige, being elevated to the U.S. Supreme Court is a cushy, lifetime sinecure--with great medical benefits! And once Judge Sotomayor is safely confirmed to the Supreme Court bench (which is a foregone conclusion), she can revert to her leftist judicial philosophy.

The judge did have to field some tough questions from some Judiciary Committee members, but unlike the horrible ordeal of Judge Bork, Justice Thomas, or Justice Alito among others, she received polite, respectful treatment, without the partisan character assassination that those jurists faced. And unlike Miguel Estrada (who probably was on the fast-track to the Supreme Court had he made it to the D.C. Circuit) and other highly qualified judicial selections whose nominations were sabotaged by bad-faith Democrat parliamentary trickery, she will of course get a vote before the full Senate after the nomination is rubber-stamped out of the committee. (The short-circuited Estrada nomination was also the result of the inexplicable failure of the Bush White House and the Justice Department under Alberto Gonzales to use their political megaphone.)

Even among her natural supporters, however, not everyone is enamored of Judge Sotomayor. Washington Post columnist Richard Cohen, who usually follows the liberal playbook down the line, had this to say:
She is fully qualified. She is smart and learned and experienced and, in case you have not heard, a Hispanic, female nominee, of whom there have not been any since the dawn of our fair republic. But she has no cause, unless it is not to make a mistake, and has no passion, unless it is not to show any, and lacks intellectual brilliance, unless it is disguised under a veil of soporific competence until she takes her seat on the court. We shall see. In the meantime, Sotomayor will do, and will do very nicely, as a personification of what ails the American left. She is, as everyone has pointed out, in the mainstream of American liberalism, a stream both intellectually shallow and preoccupied with the past
And the reliably liberal Connecticut Law Tribune editorial board also has reservations about the nomination:
In short, although the addition of Judge Sotomayer would assure that the Supreme Court “looks more like America,” appearances can be deceiving. Beneath the surface, the court will be more homogenous than ever before. It will consist of professional federal judges, nearly all with Ivy League educations, mostly from the Northeast, and disproportionately Catholic. If diversity on the court is valuable because a wide range of backgrounds and experience strengthens collective decision making, then the court is becoming an increasingly impoverished decision maker...Whatever the explanation, we should pause before getting too carried away celebrating the increasing diversity of the Supreme Court. True diversity is, of course, not inconsistent with demographic diversity. But it requires more. And true diversity may be difficult to attain unless we somehow manage to extricate ourselves from a politically-charged confirmation process that demands nominees cut from the same safe mold.