Sunday, October 30, 2005

The Lewis Libby Railroad

So, the prosecutor in the case of supposed “outing” of alleged undercover agent Valerie Plame, Patrick Fitzgerald, has found insufficient evidence that Ms. Plame’s alleged cover was blown, which was the reason for the entire investigation, and has therefore not charged anyone with violating that law. Instead, after a two-year investigation only a single figure, I. Lewis “Scooter” Libby, the Chief of Staff for Vice President Dick Cheney, has been charged, and he wasn’t charged with the crime that was the focus of the investigation.

Mr. Fitzgerald said that divulging a covert agent’s identity is a serious matter, and indeed it is. The people who put themselves into this situation for their country must be protected.

An important but never discussed element of this whole affair is whether the covert agent protection law covered Valerie Plame to begin with. You might think that this would be the very first determination to be made before committing millions of dollars and nearly two years to an investigation. Yet, Mr. Fitzgerald has not said that the law covered Ms. Plame. If the law did not cover her, there should have been no investigation after that fact was determined. If there had been no investigation Mr. Libby would never have been put in the position to give false information to the grand jury because there would have been no grand jury.

Yet despite the failure to show that the law covered her, or to state that the law was broken, special prosecutor Patrick Fitzgerald conducted a nearly two-year investigation.

Without a clear purpose to justify an investigation, something even minimally relevant, like knowing that a law was broken, Mr. Fitzgerald spent millions of dollars on a 22-month fishing expedition, the result of which is that he found that no one broke the law protecting covert agents, the very focus of the investigation. However, Lewis Libby appears to have gotten mixed up in recounting the multitude of conversations a chief of staff to the Vice President of the United States participates in every day. Joseph diGenova, a former US attorney agrees, noting that "[t]here were many conversations over a long period of time involving many people.” How many of us remember correctly every word of every conversation we have every day? How many remember those conversations from two years ago? How would you like your freedom to depend upon you ability to remember those multitudinous conversations? Welcome to Lewis Libby’s life.

That is the only logical explanation. Mr. Libby, of course, always knew he hadn’t committed the crime of outing Valerie Plame, which is validated by the fact that neither he nor anyone else has been charged with that crime. What possible reason could he have, therefore, to deliberately lie to the FBI, the special prosecutor, or a grand jury?

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Thursday, October 27, 2005

Iraq War Deaths as a Political Weapon

It’s a thorny situation talking about the number of American military personnel who have died in the service of their country. Every life lost is a tragedy for the loved ones of that soldier, airman, seaman or Marine, and is a tragedy for the nation. I certainly don’t want to do or say anything that would diminish their service and their sacrifice.

That said, there is a real need to logically compare the lives lost in Iraq with the lives lost in other conflicts, just for the sake of creating perspective on this issue

Putting emotion and political ideology aside and looking at the numbers objectively, the numbers in Iraq pale in comparison to:

World War I: 1917-18, 116,516 deaths
World War II: 1941-46, 405,399 deaths
Korea: 1950-53, 36,574 deaths
Vietnam: 1964-73, 58,209 deaths
Civil War: 1861-65, 364,511 deaths
Iraq: 2003-05, 2,006 deaths

No argument can dispute those numbers. The fact is that the death rate in Iraq is dramatically lower than in any of those other conflicts, so much so that it ought not even be a part of the discussion.

But then the controversy is really not about the number of Americans who have died in Iraq. That number and those lives are merely a convenient tool of the anti-war movement, an emotionally loaded factoid that the Left uses to advance its argument against the war.

This senseless argument that because of the number of our brave military men and women who have died we ought to pull our troops out of Iraq is advanced because those people don’t support the war. They hate the war and they hate it because George Bush is President, and they hate George Bush.

It is an embarrassing and shameful reality that the level of political disagreement in the United States has sunk to a level where the deaths of military personnel have become little more than a bargaining chip in a political chess match.

Read About the Law that Rove, et al, Supposedly Broke

This story gives some insight on the law covering covert agents.


Lawyers see charges this week in CIA-leak case

By Adam Entous
Sunday, October 23, 2005; 10:11 PM

WASHINGTON (Reuters) - Federal prosecutor Patrick Fitzgerald appears to be laying the groundwork for indictments this week over the outing of a covert CIA operative, including possible charges of perjury and obstruction of justice, lawyers and other sources involved in case said on Sunday.

In a preview of how Republicans would counter charges against top administration officials by Fitzgerald, Sen. Kay Bailey Hutchison of Texas brushed aside an indictment for perjury -- rather than for the underlying crime of outing a covert operative -- as a "technicality."

Speaking on NBC's "Meet the Press" she suggested Fitzgerald may merely be trying to show that "two years' of investigation was not a waste of time and dollars."

Fitzgerald's investigation has focused largely on Karl Rove, President George W. Bush's top political adviser, and Lewis Libby, Vice President Dick Cheney's chief of staff, and their conversations about CIA operative Valerie Plame with reporters in June and July of 2003.

Fitzgerald is expected to give final notice to officials facing charges as early as Monday and may convene the grand jury on Tuesday, a day earlier than usual, to deliver a summary of the case and ask for approval of the possible indictments, legal sources said. The grand jury is to expire on Friday unless Fitzgerald extends it.

Fitzgerald could still determine that there was insufficient evidence to bring charges, but the lawyers said that appeared increasingly unlikely.

The White House initially denied that Rove and Libby were involved in any way in the leak.

Republican Sen. George Allen of Virginia joined Democrats in saying that Rove and Libby should step down if indicted. "I think they will step down if they're indicted ... I do think that's appropriate," he said on NBC's "Meet the Press."

New York Times reporter Judith Miller, who spent 85 days in jail before agreeing to testify about her conversations with Libby, is also facing calls from colleagues to leave the newspaper because of her involvement in the case.

Plame's identity was leaked to the media after her diplomat husband, Joseph Wilson, challenged the Bush administration's prewar intelligence on Iraq.

Asked whether he was taking part in a final round of discussions with the prosecutor's office, Rove's attorney, Robert Luskin, said: "I'm just not going to comment on any possible interactions with Fitzgerald."

Lawyers involved in the case said Fitzgerald has been focusing on whether Rove, Libby and others may have tried to conceal their involvement from investigators.

While Fitzgerald could still charge administration officials with knowingly revealing Plame's identity, the lawyers said he appeared more likely to seek charges for easier-to-prove crimes such as making false statements, obstruction of justice and disclosing classified information. Fitzgerald could also bring a broad conspiracy charge.


Fitzgerald has sent several signals in recent days that he is likely to bring indictments in the case, lawyers say.

One of the first postings on a new official Web site for the investigation was a February 6, 2004, letter giving Fitzgerald explicit authority to investigate and prosecute "federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses." The Web site was available at

Indictments against top officials would be a severe blow to an administration already at a low point in public opinion, and would put a spotlight on aggressive tactics used by the White House to counter critics of its Iraq policy.

Legal sources said Rove could be in legal jeopardy for initially not telling the grand jury he talked to Time magazine reporter Matt Cooper about Plame.

Libby could be open to false statement and obstruction charges because of contradictions between his testimony and that of Miller and other journalists.

Miller has also come under increasingly sharp criticism by editors and reporters in the pages of her own newspaper over her conduct. Times Ombudsman Byron Calame wrote Sunday: "the problems facing her inside and outside the newsroom will make it difficult for her to return to the paper as a reporter."

© 2005 Reuters

Wednesday, October 26, 2005

The Plame Name Blame Game, Take Two

No one yet knows what the special prosecutor has in mind in the Plame Name Blame Game. Will there be indictments, or not? Was the law covering covert agents broken? At this point there are more questions than answers.

What is interesting is that an investigation of a case of supposed leaking of classified information about an active covert CIA agent is itself riddled by leaks, or the major media is guilty of turning speculation into news: Either the prosecutor’s office is not secure, or the degree of speculation by the major media has reached a truly absurd level.

Take your pick: A federal prosecutor’s office investigating what we have been told is a potentially serious breach of security involving a covert CIA agent is plagued with leaks of sensitive material, or the press is irresponsibly floating as legitimate news ideas that have no substantive support.

Neither of these situations is tolerable, and the American people should ignore all of this until the federal prosecutor releases some official statement to the public.

A prosecutor’s office that is so undisciplined as to allow its underlings to indiscriminately release information about an ongoing investigation, particularly when that information is potentially harmful to the reputations of the individuals involved – who may, incidentally, be entirely innocent of wrongdoing – is unconscionable.

On the other hand, if the news media, upon which the American people depend for unbiased information to make sensible decisions about important issues, makes up stuff like this for partisan purposes, or to gin up news coverage to increase readership/viewership, that is equally intolerable.

Beyond being unacceptable and unconscionable, both/either are dangerous, and represent a true threat to the freedom and security that we Americans enjoy.

Can we trust indictments – should there be any – from an operation manned by loose cannons who subvert the legal process? Do we have any reason to believe that the results of an investigation from an organization that cannot even protect its sensitive operations are credible?

Can we trust any media outlet that offers pure speculation as news?

That is the reality of the Plame Name Blame Game today. We have no official statement from the federal prosecutor, yet we have all of these scenarios floating around, all of which have negative connotations for the Bush administrations and individuals within the administration.

Whether leaks or speculation, the information being put out by the media tends to suggest that there won’t be any indictments on the true focus of the investigation: that some number of individuals in the Bush administrations willingly and knowingly revealed the name of an undercover CIA agent. Instead, we are led to believe that there will be indictments of perjury or conspiracy. But doesn’t that beg the question, “if there was no crime of 'outing' an undercover agent, how can there be crimes of perjury or conspiracy? Why would someone lie about something, or try to cover up something that was not a crime?

The answer is that ethically and morally there cannot be an indictment unless a crime was committed. Any “crime” that is charged in the absence of proof that the substantive focus of the investigation actually occurred is tainted with the hint of political monkey business.

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Tuesday, October 25, 2005

Time to bring in two slices of ham

By Wesley Pruden

Published October 25, 2005

This is the week when Patrick Fitzgerald has to come up with someone to indict for blowing Valerie Plame's CIA cover, if indeed she ever had one. He's desperately searching for the ham sandwich that courthouse lore insists that any district attorney can be the master of.

Some sandwich. Valerie and her husband, the diplomat Joseph Wilson IV, styled themselves as the beautiful couple famous (in the words of Washington Post columnist Richard Cohen) to "hairdressers, mistresses and dogwalkers all over town." When she was "outed" she didn't have far to go. (When you're a Wilson and want to keep a name running through four generations shouldn't you come up with something more poetically thrilling than "Joe"?)

Mr. Fitzgerald, the Chicago D.A. who got the Plame assignment two years ago and has spent upwards of $2 million in pursuit of the ham sandwich, wants to indict Karl Rove, the president's campaign guru, or I. (for Irving) Lewis "Scooter" Libby, Dick Cheney's chief of staff. But to get an indictment you have to have a crime.

Ay, as we Robert Burns fans are wont to say, there's the rub. There may not be one. So Mr. Fitzgerald has to invent one. Perhaps a violation of an obscure clause in the Espionage Act of 1917, enacted in the frenzy of the war to end all wars. It's not like Messrs. Rove and Libby have given information to the Krauts about the disposition of troops at Chateau Thierry, or along a salient of the allied line in the Argonne Forest, or have been conducting secret talks with the kaiser (though you never know), but a savvy D.A. knows how to fit a defendant to a 1917 crime when he can't fit a 1917 crime to the defendant.

The winsome Judy Miller, the New York Times reporter who went to jail and got this investigation back in the headlines just when it looked like it was about to join Smoot and Hawley in the Teapot Dome, would make a believable Mata Hari. But she is not suspected of violating the Espionage Act of 1917, and nobody would mistake either Karl or the Scooter as a hottie, even in fans, bubbles or feather boas.

If you think all this sounds like the muddled plot of a made-for-cable TV movie, you're right. Nobody really knows any longer what the Valerie Plame/Judy Miller/CIA/Yellow Fruitcake/Karl Rove/Robert Novak/Joseph Wilson IV/Bill Keller caper is about. All that those of us paid to follow it have figured out is that it's vaguely about the media, sort of, and nobody three miles beyond Tyson's Corner has the foggiest idea, or wants one. We're going to bore you with it as long as Patrick Fitzgerald keeps the scam going, which will be as long as Congress keeps him in the style to which he has become accustomed.

The first serious, sensible development in this calcifying caper emerged yesterday, when New York magazine scooped us with the news that Matthew Cooper of Time magazine -- the Washington correspondent who was supposed to go to jail with Judy but who cut a last-minute deal to avoid prison stripes -- was working on a comedy while Judy was learning to make license plates. Matt is a part-time stand-up comic, known in the stand-up laff-riot community for his John Kerry bon mot: "Kerry's idea of rebellion is having red wine with fish." (If you didn't laugh, don't laugh. Nobody else did either, and certainly not Teresa, who thought he was serious.) "The question," a friend of Matt Cooper's told Boris Kachka of New York magazine, "is whether publishers are going to have the intelligence to want a funny book about this, instead of one that huffs and puffs about 'a crucial turn in American history.' "

This scandal is already more farce than comedy, but it's just the farce for Washington, where farce is mistaken for fact, and if nobody out there cares enough to read about it that makes it all the more delicious for insiders. Few of her colleagues have cried for Judy; she has beaten too many of them on too many important stories over the years. Mickey Kaus, one of the most widely read of the bloggers, sent a prescient note to her yesterday: "The left hates you. The right isn't going to come to your rescue. You have no base of support except the man at the top. Just like Harriet Miers. It's not enough for her and it's not enough for you."

The man at the top for Judy is Arthur Sulzberger Jr., the publisher of the New York Times, who appears to be so humiliated by this latest episode of "As the Times Turns" that he is encouraging Judy's editors to throw her out in the snow. The lefties in the media are angry, beyond their usual ravenous envy of anyone more important than they are (which is nearly everybody), because Judy rode Scooter's scooter to the war in Iraq, and they didn't.

Right-thinking critics think anything bad that happens to the New York Times is good. Ham abounds, but the D.A. can't find the mustard.

Wesley Pruden is editor in chief of The Times.

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Friday, October 21, 2005

It may be news to certain senators, but the U.S. always discovers larger, nobler causes in the midst of battle

By David Gelernter |

This week should have been a time of rejoicing in America. On Wednesday, Saddam Hussein went on trial — the ex-master butcher of Iraq, reeking of blood. And last Saturday, the newly freed Iraqi people pulled off a referendum right under the noses of terrorists whose heart’s desire is to blow democracy to bits. The United States — the armed forces especially, and the Bush administration's leadership — is largely responsible for both these amazing developments. Obviously Iraq is still in deadly danger. But if these two events don't call for congratulations, what kind of world events would?

Yet up on Capitol Hill, Secretary of State Condoleezza Rice had been called before a Senate committee. Sen. Barbara Boxer (D-Calif.) was one of those who questioned her. Boxer was obnoxious and frightening.

She made reference to the Holocaust, offensively. More important, she demonstrated that she doesn't know U.S. history, and she implied that the American people don't either. And she raised an alarming question about contemporary politics. We often hear from Democrats that President Bush's policy in Iraq makes no sense. But how can it make sense to the Barbara Boxers of Congress if they can't understand the explanation?

Rice was defending the administration's conduct of the war when Boxer objected. The administration, Boxer noted (correctly), has changed focus on Iraq. We went to war mainly on account of weapons of mass destruction and international terrorism, she said. But WMD turned out to be a hoax on the whole world, and nowadays we are told that our Iraq mission is gigantic. We plan for a freed Iraq to inspire and stabilize the entire Middle East and to promote democracy everywhere. What kind of bait-and-switch is the administration playing with the American people?

Rice answered that this is the way the world works. For example, we did not go into World War II to build a democratic Germany…. Here Boxer interrupted. World War II, she told Rice curtly, has nothing to do with Iraq. Boxer had lost relatives in the Holocaust. No one had to tell her about World War II.

But Rice's analogy was exactly right. And by the way, using the Holocaust as a bat to beat political enemies over the head is demeaning to Jews and to human dignity. Having lost relatives in the Holocaust does not, in any case, confer expertise in U.S. history.

Democracies rarely declare war to improve the world, as Rice could have explained had she had the chance. They fight to protect themselves, sometimes to fulfill treaty obligations. But once a war is underway, free peoples tend to think things over deeply. Casualties concentrate the mind. We refuse to let our soldiers die for too little. America at war has lifted its sights again and again from danger, self-interest and self-defense to a larger, nobler goal. Same story, war after war. Iraq fits perfectly.

At first, Colonial America made war on Britain to loosen the British grip on commerce and society, not to create an independent state. Only as the war dragged on and costs and casualties mounted did public opinion swing round toward independence. In 1861, the North reluctantly made war on the Confederacy to hold the Union together. President Lincoln was painfully aware that, at the start of the fighting, freedom for the slaves would not have commanded popular support as a cause for war. Only later, as casualties mounted and blood ran in rivers, did freeing the slaves become the Union's ultimate goal.

We marched into World War I behind an idealistic war message from President Wilson to Congress. But the U.S. was in a fighting mood because of Germany's threat to sink unarmed American merchant ships and a German secret message (intercepted by Britain) offering Texas, New Mexico and Arizona to Mexico if it joined Germany against the U.S. Only later did self-determination in Europe and the creation of a League of Nations become American war goals.

Which brings us to World War II. And, of course, Rice is dead right: Once the war was over, we spent years cultivating democracy in Japan and Germany. But we entered the war because Japan attacked us and, four days later, Adolf Hitler declared war on us.

What do we conclude when the secretary of State makes a plain statement of historical fact and a senator won't listen? That it is only natural for demagogues to attack thoughtful, polite officials who are trying hard to tell straight truths about a complicated war. The Boxers of this world ought to be met with single-minded slogans, but no doubt Rice can't see why she should stoop that low.

Americans who don't know history are the demagogue's natural prey. Boxer's statements assume that Americans at large know as little about history as she does. Let's hope it's not true.

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Tuesday, October 18, 2005

Please Shut Up!

Mugabe calls Bush, Blair 'terrorists'

Zimbabwean President Robert Mugabe took the occasion of the 60th anniversary of the U.N. Food and Agriculture Organization yesterday to accuse President George Bush and British Prime Minister Tony Blair of international terrorism, saying the two leaders are bent on world domination like Adolf Hitler. Mr. Bush and Mr. Blair, he screeched, illegally invaded Iraq and are looking to unseat governments elsewhere.

The Washington Times reported that Mr. Mugabe said, "Must we allow these men, the two unholy men of our millennium, who, in the same way as Hitler and Mussolini formed [an] unholy alliance, formed an alliance to attack an innocent country?"

Mr. Mugabe’s leadership is as off the mark as his rhetoric, as 5 million of his 12 million subjects require food aid this year.

This situation is the reverse of the conditions in Zimbabwe only several years ago, when the nation enjoyed an ample food supply. Mr. Mugabe’s forcible redistribution of white-owned farms among blacks helped plunge his country into its worst economic crisis since independence from Britain in 1980. His critics in Zimbabwe and abroad say Mr. Mugabe's land policies have turned what was the breadbasket of southern Africa into a country facing mass shortages at home.

Robert Mugabe is typical of incompetent leaders, who attempt to shift blame from themselves to others. His government has been a target of Amnesty International, which plead with him to end abuses, and he is heavy handed with political opposition. He threw the foreign press out of Zimbabwe, and then attacked the domestic independent press, closing down the Daily News in 2003.

Mr. Mugabe appears to be little more than a thug, and a not very smart one, at that. The world would be a better place if Robert Mugabe would “Please Shut Up!”

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Monday, October 17, 2005

Frightening Science
A Flu Hope, Or Horror?
By Charles KrauthammerFriday, October 14, 2005

While official Washington has been poring over Harriet Miers's long-ago doings on the Dallas City Council and parsing the byzantine comings and goings of the Patrick Fitzgerald grand jury, relatively unnoticed was perhaps the most momentous event of our lifetime -- what is left of it, as I shall explain. It was announced last week that U.S. scientists have just created a living, killing copy of the 1918 "Spanish" flu.

This is big. Very big.

First, it is a scientific achievement of staggering proportions. The Spanish flu has not been seen on this blue planet for 85 years. Its re-creation is a story of enterprise, ingenuity, serendipity, hard work and sheer brilliance. It involves finding deep in the bowels of a military hospital in Washington a couple of tissue samples from the lungs of soldiers who died in 1918 -- in an autopsy collection first ordered into existence by Abraham Lincoln -- and the disinterment of an Alaskan Eskimo who died of the flu and whose remains had been preserved by the permafrost. Then, using slicing and dicing techniques only Michael Crichton could imagine, they pulled off a microbiological Jurassic Park: the first-ever resurrection of an ancient pathogen. And not just any ancient pathogen, explained virologist Eddie Holmes, but "the agent of the most important disease pandemic in human history."

Which brings us to the second element of this story: Beyond the brilliance lies the sheer terror. We have brought back to life an agent of near-biblical destruction. It killed more people in six months than were killed in the four years of World War I. It killed more humans than any other disease of similar duration in the history of the world, says Alfred W. Crosby, who wrote a history of the 1918 pandemic. And, notes New Scientist magazine, when the re-created virus was given to mice in heavily quarantined laboratories in Atlanta, it killed the mice more quickly than any other flu virus ever tested .

Now that I have your attention, consider, with appropriate trepidation, the third element of this story: What to do with this knowledge? Not only has the virus been physically re-created, but its entire genome has also now been published for the whole world, good people and very bad, to see.
The decision to publish was a very close call, terrifyingly close.

On the one hand, we need the knowledge disseminated. We've learned from this research that the 1918 flu was bird flu, "the most bird-like of all mammalian flu viruses," says Jeffery Taubenberger, lead researcher in unraveling the genome. There is a bird flu epidemic right now in Asia that has infected 117 people and killed 60. It has already developed a few of the genomic changes that permit transmission to humans. Therefore, you want to put out the knowledge of the structure of the 1918 flu, which made the full jump from birds to humans, so that every researcher in the world can immediately start looking for ways to anticipate, monitor, prevent and counteract similar changes in today's bird flu.

We are essentially in a life-or-death race with the bird flu. Can we figure out how to preempt it before it figures out how to evolve into a transmittable form with 1918 lethality that will decimate humanity? To run that race we need the genetic sequence universally known -- not just to inform and guide but to galvanize new research.

On the other hand, resurrection of the virus and publication of its structure open the gates of hell. Anybody, bad guys included, can now create it. Biological knowledge is far easier to acquire for Osama bin Laden and friends than nuclear knowledge. And if you can't make this stuff yourself, you can simply order up DNA sequences from commercial laboratories around the world that will make it and ship it to you on demand. Taubenberger himself admits that "the technology is available."

And if the bad guys can't make the flu themselves, they could try to steal it. That's not easy. But the incentive to do so from a secure facility could not be greater. Nature, which published the full genome sequence, cites Rutgers bacteriologist Richard Ebright as warning that there is a significant risk "verging on inevitability" of accidental release into the human population or of theft by a "disgruntled, disturbed or extremist laboratory employee."

Why try to steal loose nukes in Russia? A nuke can only destroy a city. The flu virus, properly evolved, is potentially a destroyer of civilizations.

We might have just given it to our enemies.

Have a nice day.

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Saturday, October 15, 2005

Overstating the Case

The Washington Post reported in a story by Jim VandeHei and Peter Baker, the following: “A series of scandals involving some of the most powerful Republicans in Washington have converged to disrupt President Bush's agenda….” They went on to mention issues involving presidential advisor Karl Rove, Senator Bill Frist, Representative Tom DeLay and the Supreme Court nominee Harriet Miers, as if these four people are guilty of some impropriety.

Reporters VandeHei and Baker could barely contain their glee at the opportunity to cast the Bush administration in a bad light, even if they have to play fast and loose with facts to do so.

Let’s not forget that to date, neither Mr. Rove nor Sen. Frist have been charged with a crime, let alone tried and convicted of criminal activity. Exactly how the nomination of a Supreme Court Justice is scandalous, the Post story did not say.

And we should also remember that although Mr. DeLay has been indicted, he has not been convicted, and there is more than a little evidence that his indictment is politically motivated. In fact, the first indictment against Mr. DeLay, which took a couple of tries before multiple Grand Juries before one of them issued an indictment, was flawed. The law that Democrat Prosecutor Ronnie Earle told the grand jury that Mr. DeLay broke was not a law when Mr. Earle alleged Mr. DeLay broke it. Consequently, Mr. Earle had to approach yet another grand jury to pass a replacement indictment, and reports said this task was accomplished with unusual speed. Presenting multiple grand juries with information in an attempt to get one of them to issue an indictment is referred to as “forum shopping.”

So far, what we have is merely a series of questions, insinuations and accusations, not scandals. An accusation is proof of nothing. An indictment is a bit more than an accusation, but not much more. The New York Daily News reported in 1985 that “in a bid to make prosecutors more accountable for their actions, [New York] Chief Judge Sol Wachtler has proposed that the state scrap the grand jury system of bringing criminal indictments … [because] district attorneys now have so much influence on grand juries that ‘by and large’ they could get them to ‘indict a ham sandwich.’” What it all boils down to is that the grand jury gets only the prosecutor's side, and a prosecutor can say anything to a grand jury. There is no rebuttal of the prosecutor’s allegations.

Certainly a real scandal ought to have real wrongdoing, shouldn’t it? And maybe there ought to be a little proof of wrongdoing before we start slinging labels like “scandal” around. We don’t know for certain if any wrongdoing has taken place, yet the Post sees scandals everywhere, even in the nomination for Justice of the Supreme Court.

Curiously, if all it takes for the Post to label something a scandal is the thin case it made in this story, surely the behavior of Prosecutor Ronnie Earle also qualifies. Yet, there is no mention of that “scandal.”

Irresponsible reporting such as this has earned the Post its well-deserved reputation for biased reporting, and for being in the pocket of the liberal Left.

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Friday, October 14, 2005

The coming crackdown on blogging

Following up on an earlier post, the column below provides more detail on the effects on blogs of the McCain-Feingold law , and gives us reason for concern.

By Declan McCullagh


Bradley Smith says that the freewheeling days of political blogging and online punditry are over.

In just a few months, he warns, bloggers and news organizations could risk the wrath of the federal government if they improperly link to a campaign's Web site. Even forwarding a political candidate's press release to a mailing list, depending on the details, could be punished by fines.

Smith should know. He's one of the six commissioners at the Federal Election Commission, which is beginning the perilous process of extending a controversial 2002 campaign finance law to the Internet.

In 2002, the FEC exempted the Internet by a 4-2 vote, but U.S. District Judge Colleen Kollar-Kotelly last fall overturned that decision. "The commission's exclusion of Internet communications from the coordinated communications regulation severely undermines" the campaign finance law's purposes, Kollar-Kotelly wrote.

Smith and the other two Republican commissioners wanted to appeal the Internet-related sections. But because they couldn't get the three Democrats to go along with them, what Smith describes as a "bizarre" regulatory process now is under way.

CNET spoke with Smith about the Bipartisan Campaign Reform Act of 2002, better known as the McCain-Feingold law, and its forthcoming extrusion onto the Internet.

Q: What rules will apply to the Internet that did not before?
A: The commission has generally been hands-off on the Internet. We've said, "If you advertise on the Internet, that's an expenditure of money--much like if you were advertising on television or the newspaper."

Do we give bloggers the press exemption?

The real question is: Would a link to a candidate's page be a problem? If someone sets up a home page and links to their favorite politician, is that a contribution? This is a big deal, if someone has already contributed the legal maximum, or if they're at the disclosure threshold and additional expenditures have to be disclosed under federal law.

Certainly a lot of bloggers are very much out front. Do we give bloggers the press exemption? If we don't give bloggers the press exemption, we have the question of, do we extend this to online-only journals like CNET?

How can the government place a value on a blog that praises some politician?
How do we measure that? Design fees, that sort of thing? The FEC did an advisory opinion in the late 1990s (in the Leo Smith case) that I don't think we'd hold to today, saying that if you owned a computer, you'd have to calculate what percentage of the computer cost and electricity went to political advocacy.

It seems absurd, but that's what the commission did. And that's the direction Judge Kollar-Kotelly would have us move in. Line drawing is going to be an inherently very difficult task. And then we'll be pushed to go further. Why can this person do it, but not that person?

How about a hyperlink? Is it worth a penny, or a dollar, to a campaign?
I don't know. But I'll tell you this. One thing the commission has argued over, debated, wrestled with, is how to value assistance to a campaign.

Corporations aren't allowed to donate to campaigns. Suppose a corporation devotes 20 minutes of a secretary's time and $30 in postage to sending out letters for an executive. As a result, the campaign raises $35,000. Do we value the violation on the amount of corporate resources actually spent, maybe $40, or the $35,000 actually raised? The commission has usually taken the view that we value it by the amount raised. It's still going to be difficult to value the link, but the value of the link will go up very quickly.

Then what's the real impact of the judge's decision?
The judge's decision is in no way limited to ads. She says that any coordinated activity over the Internet would need to be regulated, as a minimum. The problem with coordinated activity over the Internet is that it will strike, as a minimum, Internet reporting services.

They're exempt from regulation only because of the press exemption. But people have been arguing that the Internet doesn't fit under the press exemption. It becomes a really complex issue that would strike deep into the heart of the Internet and the bloggers who are writing out there today. (Editor's note: federal law limits the press exemption to a "broadcasting station, newspaper, magazine or other periodical publication." )

How do you see this playing out?
There's sensitivity in the commission on this. But remember the commission's decision to exempt the Internet only passed by a 4-2 vote.

This time, we couldn't muster enough votes to appeal the judge's decision. We appealed parts of her decision, but there were only three votes to appeal the Internet part (and we needed four). There seem to be at least three commissioners who like this.

Then this is a partisan issue?
Yes, it is at this time. But I always point out that partisan splits tend to reflect ideology rather than party. I don't think the Democratic commissioners are sitting around saying that the Internet is working to the advantage of the Republicans.

One of the reasons it's a good time to (fix this) now is you don't know who's benefiting. Both the Democrats and Republicans used the Internet very effectively in the last campaign.

What would you like to see happen?
I'd like someone to say that unpaid activity over the Internet is not an expenditure or contribution, or at least activity done by regular Internet journals, to cover sites like CNET, Slate and Salon. Otherwise, it's very likely that the Internet is going to be regulated, and the FEC and Congress will be inundated with e-mails saying, "How dare you do this!"

What happens next?
It's going to be a battle, and if nobody in Congress is willing to stand up and say, "Keep your hands off of this, and we'll change the statute to make it clear," then I think grassroots Internet activity is in danger. The impact would affect e-mail lists, especially if there's any sense that they're done in coordination with the campaign. If I forward something from the campaign to my personal list of several hundred people, which is a great grassroots activity, that's what we're talking about having to look at.

Senators McCain and Feingold have argued that we have to regulate the Internet, that we have to regulate e-mail. They sued us in court over this and they won.

If Congress doesn't change the law, what kind of activities will the FEC have to target?
We're talking about any decision by an individual to put a link (to a political candidate) on their home page, set up a blog, send out mass e-mails, any kind of activity that can be done on the Internet.

Again, blogging could also get us into issues about online journals and non-online journals. Why should CNET get an exemption but not an informal blog? Why should Salon or Slate get an exemption? Should and get an exemption but not online sites, just because the newspapers have a print edition as well?

Why wouldn't the news exemption cover bloggers and online media?
Because the statute refers to periodicals or broadcast, and it's not clear the Internet is either of those. Second, because there's no standard for being a blogger, anyone can claim to be one, and we're back to the deregulated Internet that the judge objected to. Also I think some of my colleagues on the commission would be uncomfortable with that kind of blanket exemption.

So if you're using text that the campaign sends you, and you're reproducing it on your blog or forwarding it to a mailing list, you could be in trouble?
Yes. In fact, the regulations are very specific that reproducing a campaign's material is a reproduction for purpose of triggering the law. That'll count as an expenditure that counts against campaign finance law.

This is an incredible thicket. If someone else doesn't take action, for instance in Congress, we're running a real possibility of serious Internet regulation. It's going to be bizarre.

Copyright ©1995-2005 CNET Networks, Inc. All rights reserved.

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Wednesday, October 12, 2005

Blogs Threatened by McCain-Feingold

Suffocating the First Amendment
The Washington Times
October 12, 2005

What is perhaps the one thing the left-wing and the right-wing, both political blogs, agree on? That when it comes to the Bipartisan Campaign Reform Act (McCain-Feingold), the government has no business telling them what to do. The Federal Election Commission has tried to keep this anti-free speech legislation out of the Internet, even after a federal judge ruled that it must apply the law equally to cyberspace. The judge's ruling, however, has put the FEC in the unfortunate position of rewriting the rules so that a blogger can still do what he wants without angering the campaign-finance police.

Some members of Congress are rightly pessimistic that the FEC will be able to do that. Lawmakers ranging from Rep. Jeb Hensarling, Texas Republican, on the right to Senate Minority Leader Harry Reid on the left have drafted legislation to shield bloggers and political news sites from McCain-Feingold's "public communications" clause, which regulates political advertising coordinated with political campaigns. Essentially, the Online Freedom of Speech Act would grant bloggers and political sites the media exemption McCain-Feingold bestows on such outlets as The Washington Post.

But while The Post editorial page claims sympathy for the free speech of bloggers, it nevertheless thinks an unregulated Internet is "dangerous" and the popularity of the OFSA legislation "disturbing." "The concerns about the potentially corrupting influence of six-figure donations apply just as much if that cash is spent in cyberspace," The Post editorialized yesterday.

But The Post's analysis displays a fundamental misunderstanding of how blogs and political sites operate. Political blogs aren't widely read because they are funded by some multimillion-dollar company through political advertising. As Michael Krempasky, director of, testified before Congress last month, money has very little to do with it. "Bloggers don't have influence because they start with large chunks of capital -- in fact, most if not all start out as relatively lonely voices with tiny audiences. By delivering credible, interesting, and valuable content, their audience and influence grows over time, " he said. In other words, blogging is an endeavor subject to the rules of the free market. Inside this unbridled exercise in free speech, the good rise to the top, while the hacks and frauds go ignored or quickly disappear.

Arianna Huffington's recent foray into the blogosphere reveals, if anything, that having millions of dollars at your disposal and a celebrity roster on hand could still result in a lousy blog. But applying McCain-Feingold to the Internet, even if diluted to protect bloggers, would mean that only millionnaires like Mrs. Huffington, or those funded by them, could afford to start a blog. Everyone else, like those who pay nothing for a site at, would have to have some way of knowing if their blogging is violating the briar patch of campaign-finance laws which only lawyers know how to navigate. Forcing a potential blogger to hire a lawyer would effectively kill the blogosphere as we've come to know and appreciate it. That would be a far more "disturbing" scenario than The Post envisions.

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Tuesday, October 11, 2005

Classless Act

Another Lefty organization has shown that it does not deserv serious attention from thinking folk. In a mindless incident in Paris the other day, anti-fur demonstrators hit Anna Wintour, editor in chief of Vogue magazine, with a tofu pie as she attended Paris fashion week.

As if to shout from the rooftops that his organization is a little more than bunch of petulant, childish ninnies, Dan Mathews, vice president of People for the Ethical Treatment of Animals said the assault was in retaliation for the magazine’s decision to run fur ads while refusing PETA's anti-fur messages.

This should be a lesson to all of you who suffer under the misconception that a business has the right to decide who it wants as customers.

Apparently PETA members don’t have the emotional stability to cope when they don’t get their way, so they assault those who don’t agree with them. The organization supports truly violent acts against its enemies.

Hopefully, the imbecile that threw the pie spends some time in jail, and the people who donate to PETA because they think it’s an honorable organization doing good works learn the truth, and send their money elsewhere. Then PETA will wither on the vine and be relegated to the trash pile of history.

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Saturday, October 08, 2005

More on the Miers Appointment

Harriet who?

By Thomas Sowell

Oct 7, 2005

Conservatives who have for years contributed time, money, and sweat to help elect Republicans have often been justifiably outraged at the way the Republicans have then let them down, wimped out, or even openly betrayed the promises on which they were elected.

Much of that frustration and anger is now being directed at President Bush for his nomination of White House counsel Harriet Miers to the Supreme Court. Why not someone like Judge Janice Rogers Brown or any of a number of other identifiable judges with a proven history of upholding conservative judicial principles under fire?

Looming in the background is the specter of people like Justice Anthony Kennedy, who went on the High Court with a "conservative" label and then succumbed to the Washington liberal culture. But while the past is undeniable, it is also not predestination.

This administration needs to be held responsible for its own shortcomings but not those of previous Republican administrations.

Rush Limbaugh has aptly called this a nomination made from a position of weakness. But there are different kinds of weakness and sometimes the difference matters.

President Bush has taken on too many tough fights -- Social Security being a classic example -- to be regarded as a man who is personally weak. What is weak is the Republican majority in the Senate.

When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn't really have a majority to lead. Before the President nominated anybody, before he even took the oath of office for his second term, Senator Arlen Specter was already warning him not to nominate anyone who would rile up the Senate. Later, Senator John Warner issued a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.

Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators.

Does this mean that Harriet Miers will not be a good Supreme Court justice if she is confirmed? It is hard to imagine her being worse than Sandra Day O'Connor -- or even as bad.

The very fact that Harriet Miers is a member of an evangelical church suggests that she is not dying to be accepted by the beautiful people, and is unlikely to sell out the Constitution of the United States in order to be the toast of Georgetown cocktail parties or praised in the New York Times. Considering some of the turkeys that Republicans have put on the Supreme Court in the past, she could be a big improvement.

We don't know. But President Bush says he has known Harriet Miers long enough that he feels sure.

For the rest of us, she is a stealth nominee. Not since The Invisible Man has there been so much stealth.

That's not ideal by a long shot. But ideal was probably never in the cards, given the weak sisters among the Republicans' Senate "majority."

There is another aspect of this. The Senate Democrats huffed and puffed when Judge John Roberts was nominated but, in the end, he faced them down and was confirmed by a very comfortable margin.

The Democrats cannot afford to huff and puff and then back down, or be beaten down, again. On the other hand, they cannot let a high-profile conservative get confirmed without putting up a dogfight to satisfy their left-wing special interest groups.

Perhaps that is why some Democrats seem to welcome this stealth nominee. Even if she turns out to vote consistently with Antonin Scalia and Clarence Thomas, the Democrats are off the hook with their base because they can always say that they had no idea and that she stonewalled them at the confirmation hearings.

The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.

Thursday, October 06, 2005

Dubious Achievements?

Man Wins Award for Creating Fake Dog Testicles

Thursday, October 06, 2005

BOSTON — Gregg Miller mortgaged his home and maxed out his credit cards to mass produce his invention — prosthetic testicles for neutered dogs.

What started 10 years ago with an experiment on an unwitting Rottweiler named Max has turned into a thriving mail-order business. And on Thursday night Miller's efforts earned him a dubious yet strangely coveted honor: the Ig Nobel Prize for medicine.

"Considering my parents thought I was an idiot when I was a kid, this is a great honor," he said. "I wish they were alive to see it."

The Ig Nobels, given at Harvard University by Annals of Improbable Research magazine, celebrate the humorous, creative and odd side of science.

Miller has sold more than 150,000 of his Neuticles, more than doubling his $500,000 investment. The silicone implants come in different sizes, shapes, weights and degrees of firmness.

Although the Ig Nobels are not exactly prestigious, many recipients are, like Miller, happy to win.

"Most scientists — no matter what they're doing, good or bad — never get any attention at all," said Marc Abrahams, editor of the Annals of Improbable Research.

Some, like Benjamin Smith of the University of Adelaide in Australia, who won the biology prize, actually nominated their own work. "I've been a fan of the Ig Nobels for a while," he said.

Smith's team studied and catalogued different scents emitted by more than 100 species of frogs under stress. Some smelled like cashews, while others smelled like licorice, mint or rotting fish.

He recalled getting strange looks when he'd show up at zoos asking to smell the frogs. "I've been turned away at the gate," he said.

This year's other Ig Nobel winners include:

— PHYSICS: Since 1927, researchers at the University of Queensland in Australia have been tracking a glob of congealed black tar as it drips through a funnel — at a rate of one drop every nine years.

— PEACE: Two researchers at Newcastle University in England monitored the brain activity of locusts as they watched clips from the movie "Star Wars."

— CHEMISTRY: An experiment at the University of Minnesota was designed to prove whether people can swim faster or slower in syrup than in water.

The Ig Nobel for literature went to the Nigerians who introduced millions of e-mail users to a "cast of rich characters ... each of whom requires just a small amount of expense money so as to obtain access to the great wealth to which they are entitled."

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The Miers Misstep

What was President Bush thinking?

Thursday, October 6, 2005 12:01 a.m.

It all depends on the hearings.

Barring a withdrawal of her nomination, it's going to come down to Harriet Meirs's ability to argue her own case before the Senate Judiciary Committee. If the American people decide she seems like a good person--sympathetic, wise, even-keeled, knowledgeable--she'll be in; and if not, not.

What everyone forgets about the case of Robert Bork in his confirmation hearings is that regular people watched him, listened to the workings of his fabulous and exotic mind, saw the intensity, the hunger for intellectual engagement, caught the whiff of brandy and cigars and angels dancing, noticed the unusual hair, the ambivalent whiskers, and thought, "Who's this weirdo?" They did the same thing with Arthur Liman in the Oliver North hearings. I am not saying Americans are swept by the superficial. I am saying Americans pick things up, and once they've picked them up, they don't easily put them down. Anyway, public opinion moves and then senators vote "no," or not.

So the administration can turn this around. Or rather Ms. Meirs can. In her favor: America has never met her, she'll get to make a first impression. Working against her: But they'll already be skeptical. By the time of the hearings she'll have been painted as Church Lady. There's a great old American tradition of not really liking Church Lady.

That having been said, the Meirs pick was another administration misstep. The president misread the field, the players, their mood and attitude. He called the play, they looked up from the huddle and balked. And debated. And dissed. Momentum was lost. The quarterback looked foolish.

The president would have been politically better served by what Pat Buchanan called a bench-clearing brawl. A fractious and sparring base would have come together arm in arm to fight for something all believe in: the beginning of the end of command-and-control liberalism on the U.S. Supreme Court. Senate Democrats, forced to confront a serious and principled conservative of known stature, would have damaged themselves in the fight. If in the end President Bush lost, he'd lose while advancing a cause that is right and doing serious damage to the other side. Then he could come back to win with the next nominee. And if he won he'd have won, rousing his base and reminding them why they're Republicans.

He didn't do that. Why didn't he? Old standard answer: In time of war he didn't want to pick a fight with Congress that he didn't have to pick. Obvious reply: So in time of war he picks a fight with his base? Also: The Supreme Court isn't the kind of fight you "don't have to pick." History picks it for you. You fight.

The headline lately is that conservatives are stiffing the president. They're in uproar over Ms. Meirs, in rebellion over spending, critical over cronyism. But the real story continues to be that the president feels so free to stiff conservatives. The White House is not full of stupid people. They knew conservatives would be disappointed that the president chose his lawyer for the high court. They knew conservatives would eventually awaken over spending. They knew someone would tag them on putting friends in high places. They knew conservatives would not like the big-government impulses revealed in the response to Hurricane Katrina. The headline is not that this White House endlessly bows to the right but that it is not at all afraid of the right. Why? This strikes me as the most interesting question.

Here are some maybes. Maybe the president has simply concluded he has no more elections to face and no longer needs his own troops to wage the ground war and contribute money. Maybe with no more elections to face he's indulging a desire to show them who's boss. Maybe he has concluded he has a deep and unwavering strain of support within the party that, come what may, will stick with him no matter what. Maybe he isn't all that conservative a fellow, or at least all that conservative in the old, usual ways, and has been waiting for someone to notice. Maybe he has decided the era of hoping for small government is over. Maybe he is a big-government Republican who has a shrewder and more deeply informed sense of the right than his father did, but who ultimately sees the right not as a thing he is of but a thing he must appease, defy, please or manipulate. Maybe after five years he is fully revealing himself. Maybe he is unveiling a new path that he has not fully articulated--he'll call the shots from his gut and leave the commentary to the eggheads. Maybe he's totally blowing it with his base, and in so doing endangering the present meaning and future prospects of his party.

Whatever the answer, history is being revealed here by the administration every day, and it's big history, not small.

Back to Ms. Meirs herself, and the merits of her nomination. What would she be like on the bench? I know the answer. So do you. It's: Nobody knows. It's all a mystery. In considering who will fill one of the most consequential power positions in the country we are all reduced to, "I like this, I don't like that."

I like it that she's run a legal practice: that she real-world experience, a knowledge of the flow of money in America, of how it's made and spent. I don't like it that she's never written an interesting thing about a great issue. I like it that she taught Sunday school. I like it that she's not Ivy League. I don't like it that she's obscure. I like it that she works so hard. But I don't like it if she's a drone. I like it that she's a woman. It doesn't matter much that she's a woman. Etc.

I don't think it's important to show loyalty to the president by backing his decision. This choice will live beyond his presidency. It's important to get a justice who will add to the wisdom of the court, who will make it more likely that America will get a fair hearing before the bench.

Would she? I don't know, you don't know, the president who appointed her doesn't know. Presidents are always being surprised by what losers they put on the bench.

I wonder in fact if Harriet Meirs knows what Harriet Meirs will be like on the court. I am referring to more than the fact that if confirmed she will be presented with particular cases with particular facts that spring from a particular context and are governed, or not, by particular precedents. And I'm referring to more than the fact that people change, in spite of the president's odd insistence that she won't. People do, for good and ill. Sometimes they just become more so. But few are static.

No one can know how the experience of the court will affect someone--the detachment from life as lived by the proles, the respect you become used to, the Harvard Law Review clerks from famous families who are only too happy to pick up your dry cleaning and listen to the third recounting of your boring anecdote. Everyone wants you at dinner. You notice that you actually look quite good in black.

And you become used to the idea that unlike everyone else in the country, you have job security. A lifetime appointment. When people have complete professional security they are more likely in time to show a new conceit. I don't know why this is, but I think it's connected to the fact that they're lucky, and it seems somehow hardwired in human nature that when people are lucky they come to think they deserve it: It's not luck, it's virtue. And since it's virtue my decisions are by their nature virtuous. I think I'll decree that local government, if it judges it necessary, can throw grandma out of the house and turn her tired little neighborhood into a box store that will yield higher tax revenues. Thus Kelo v. New London is born. I decree it.

But I'm thinking of something different. I've noticed that we live in an age in which judges and legal minds seem to hide their own judicial philosophy from themselves. And that might explain why a Harriet Meirs has reached the age of 60 and no one seems to know what she thinks.

Having a philosophy is all too big and too dangerous--paper trails, insights inadequately phrased that come back to haunt. Lawyers with ambition seem to have become adept at hiding their essential intellectual nature from themselves. They break the law down into tiny chewable pieces and endlessly masticate them. They break it down into small manageable bits, avoiding the larger abstractions. It's one of the reasons they're so boring.

In a highly politicized climate it's not really convenient for lawyers to know their deepest beliefs and convictions. Robert Bork, serious thinker and mature concluder, became bork, living verb. Or rather living past-tense verb.

Only reluctantly and only with time do lawyers now develop a philosophy. They get on the court, and reveal it to us day by day. And reveal it, one senses, to themselves.

And so the historical irony: Supreme Court justices are more powerful than ever while who and what they are is more mysterious than ever. We have a two part problem. The first is that no one knows what they think until they're there. The other is that they're there forever.

I find myself lately not passionately supporting or opposing any particular nominee. But I'd give a great deal to see Supreme Court justices term-limited. They should be picked not for life but for a specific term of specific length, and then be released back into the community. This would involve amending the Constitution. Why not? We'd amend it to ban flag-burning, even though a fool burning a flag can't possibly harm our country. But a Kelo decision and a court unrebuked for it can really tear the fabric of a nation.

Copyright © 2005 Dow Jones & Company, Inc. All Rights Reserved.

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Wednesday, October 05, 2005

Is Harriet Miers a Viable Nominee to the Supreme Court?

President Bush’s selection to replace Sandra Day O’Connor on the U.S. Supreme Court has everyone upset. Lobbied by the Left to put a clone of Justice O’Connor on the Court, and by the Right to put another Antonin Scalia in that seat, Mr. Bush apparently did neither, judging by the criticism both sides immediately heaped on him.

At issue is the judicial philosophy of a nominee. At one end of the continuum are Originalists, those who believe that democracy has intrinsic worth, and values stability and predictability in lawmaking. These judges generally believe the text of the Constitution is plain and its meaning clear, in the context of what those words meant at the time the document was drawn up. An Originalist judge would review matters of law, and not allow a court to act as a "super legislature," by imposing "judge-made" law in place of democratically elected officials.

At the other end of the continuum are the Activists, who seek to determine what is "just," not necessarily what is intended by law. In the area of constitutional law, the judicial activist views the Constitution as a living, dynamic document, which must necessarily be interpreted to meet the needs of the current age, and that a contemporary meaning must be applied to the fundamental principles addressed in the Constitution. An Activist judge would not hesitate to use his or her personal feelings, the popular opinion of the people, or even the practice in other countries to fashion new laws and regulations, despite the intent of the Constitution.

The problem with judicial activism is that virtually any element of the Constitution could be discarded if it conflicts with the passions of the day. The rock-solid stability the Framers so carefully placed in the Constitution is gone, and the nation swings in the winds of personal preference and society’s fads, crazes, fashions, trends and whims.

The cultural miasma the nation has been wandering around in since the 60s results from the failure of the U.S. Supreme Court and other federal courts to follow the principles of the Constitution, substituting the shifting preferences society and the personal views of judges for the timeless ideals of the Constitution, and imposing edicts on the people without benefit of the legislative process. Laws imposed from the judiciary are clearly at odds with the stated constitutional function of the Judicial Branch of the federal government.

George W. Bush vowed, “Every judge I appoint will be a person who clearly understands the role of a judge is to interpret the law, not to legislate from the bench. To paraphrase the third occupant of this house, James Madison, the courts exist to exercise not the will of men, but the judgment of law. My judicial nominees will know the difference.”

The essential question is, therefore, “Will Harriet Miers follow the original intent of the Constitution, or will she not?” Taking Mr. Bush at his word, one would be tempted to say “yes.” However, Ms. Miers has no track record from which to gain comfort. What we have are these comments following the announcement of her nomination: "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society," and that if nominated to the Supreme Court, "I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."

That statement leads one to believe that Ms. Miers will properly decide cases before the Court, following the intent of the Constitution rather than the fickle winds of the moment. And so far, Mr. Bush has been true to his vow to nominate judges who understand that crucial concept. Perhaps we should trust his judgment.

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Tuesday, October 04, 2005

Schumer's Plumbers

Posted 10/3/2005

Politics: Staff members for a champion of the right to privacy and a leading critic of identity theft fraudulently obtained the credit report of a rising black political star. Your turn for tough questions, Sen. Schumer.

While the media focus on House Majority Leader Tom DeLay's alleged skirting of campaign laws to get Republicans elected, former Education Secretary Bill Bennett's alleged racially insensitive hypothetical regarding blacks, crime and abortion, and Sen. Bill Frist's recent sale of stock, a real crime against a black politician has been committed in virtual silence.

Sen. Charles Schumer, Democrat of New York, is chairman of the Democratic Senatorial Campaign Committee (DSCC), and it's his job to get Democrats elected in hopes of wresting Senate control from the GOP. Michael Steele is lieutenant governor of Maryland, and the DSCC, and along with most everyone else, expects Steele to run for the open seat of retiring Sen. Paul Sarbanes.

Steele, an African American, is a rising star in a Republican party regularly accused of racial insensitivity if not outright racism, a party that thought so highly of him and his political future that it chose him to be the deputy permanent chairman of the 2004 Republican Convention.

Steele, a Catholic who once trained for the priesthood, was inspired to join the Republican Party by Ronald Reagan's failed 1976 presidential bid. He demonstrated in his appearance at the 2004 convention that he has charisma, warmth and a keen grasp of public policy. He has already won statewide in Maryland.

Apparently nothing frightens the DSCC more than an articulate and charismatic black American who also happens to be a Reagan conservative. How else to explain the behavior of two of Schumer's campaign committee members — research director Katie Barge and junior staffer Lauren Weiner — who dug for dirt using Steele's Social Security number, reportedly culled from court records, to fraudulently and illegally obtain his credit report?

Columnist Michelle Malkin has reported that as of Sept. 30, according to Steele staffers, Schumer, who is a longtime crusader against identity theft and denies any knowledge of the scheme, had offered no apology for the invasion of Steele's privacy by people in his employ or given any hint as to what they were after or why they did it.

These were no naive, overzealous interns. Barge is a longtime Democratic operative who led the research unit for a liberal media watchdog group run by journalist David Brock. She led the opposition research team for failed Democratic vice presidential candidate John Edwards. She knew the ropes and the rules.

So what motivated her and Weiner to knowingly and willingly break the law and put their freedom and future at risk? Under the federal Fair Credit Reporting Act, knowingly and willfully obtaining a credit report under false pretenses is a felony punishable with a fine and a maximum two years in prison.

Reportedly, the two women confessed to the act in July, were suspended with pay until Aug. 31 and finally resigned in mid-September. One would think a potential felony by staffers for a top Democrat — a case being investigated by the U.S. attorney's office in D.C. as well as the FBI — would at least get a paragraph of coverage somewhere between the grocery coupons and the obituaries.

Can you imagine the media firestorm if staffers for, say, Frist, had used Barack Obama's Social Security number to fraudulently obtain his credit report looking for stuff to derail his Senate campaign? Frist would have been before a media firing squad faster than you can say Bill Bennett.

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