Maryland Conservatarian

Last night, the Baltimore City Council called for a task force, made up of academics, to audit the crime statistics being reported by the city. Mayor charges smear tactics - baltimoresun.com

The Mayor, a Democrat, opposes this plan The city council is made up of Democrats. But….“O'Malley said calls for audits of the city's crime statistics were a blatant political move..”

Of course, one of the Mayor’s first moves as mayor was to have an audit done on the city’s crime statistics from the prior year. Not surprisingly, that audit led to a significant increase in those statistics….meaning any subsequent drop in crime would seem that much more dramatic.

Yep – he could be my next governor.

In an otherwise innocuous article about the accounting troubles at Fannie Mae in today’s Washington Post (New Light Shed on Critic of Fannie), Terence O'Hara writes:

“He (Roger Barnes) made these claims inside Fannie Mae and believed he was punished for it, retaliation that in effect ruined his career in the public accounting profession.”

….only Mr. Barnes wasn’t in the “public accounting” profession. He was working (for approximately 13 years) for Fannie Mae – that’s private accounting. Yes he was a CPA (Certified Public Accountant). That means at least he is eligible for the profession but doesn’t necessarily put him in the profession. This may seem like a small point but when I read such statements I wonder about the accuracy of other elements of the reporting that I may not have direct knowledge on. Mr. O’Hara has been reporting on the Fannie Mae story for over a year so he should be as well-versed on the story as anyone.

The accounting issues involved can be technical and seemingly arcane but are nevertheless fundamental to understanding this story. But when he displays such an elementary misunderstanding of the accounting profession, I can’t help but wonder if Mr. O’Hara really does understand all of which he is writing.

Politically, I understand Democrats have to tread carefully when it comes to immigration-related issues. Ultimately, though, I think it’s a loser for them because catering to illegals so they can find work at suspected below-minimum wages just doesn’t resonate beyond their already secure hard-core base. Today’s Post reports on recent Minutemen efforts in Maryland. Minutemen Take Campaign to Md. Centers

“Supporters of the day-laborer centers criticize what they call the extreme tactics of the Minutemen. They argue that the group's dispute should be with the federal government, which enforces immigration laws.
"They ought to get on the Red Line, get off at Union Station, walk to Capitol Hill and engage in a dialogue about immigration reform," Perez said. "Their beef is with people in Congress."
Perez is Tom Perez, a Democrat County Councilman in Montgomery County and a law professor at Maryland Law. And he should know better. Those “extreme tactics” referred to consist merely of taking pictures of awaiting day laborers. And our “beef” is with anyone who encourages law breaking in this country. If you’re not here legally, that’s a problem for everyone – not just specially designated Federal employees. Another Democrat sends out a reliable strawman as she falsely equates illegal with legal immigration.
"What I'm hearing now is that it's okay to speak in common circles against the immigrant," said Del. Ana Sol Gutierrez (D), a Salvadoran immigrant who represents Montgomery. "The tone, the acceptance, is what I've never seen here, and I've lived in the U.S. close to 60 years."
Go ahead – make this an issue….please!!

Following up on the failed attempt to stop Judge Alito from becoming Justice Alito, some academics are now criticizing his choice of law clerks. One in particular has them worked up – Adam Ciongoli. Mr. Ciongoli is older than most clerks -37- , is a former clerk for Judge Alito and has a work history that probably wouldn’t get him a job interview with Howard Dean. A former aide to Attorney-General John Ashcroft, he is leaving a position as a lawyer at Time Warner to work for Justice Alito.

"It really indicates a lapse in judgment," Deborah L. Rhode, who teaches legal ethics at Stanford, said of Justice Alito's decision. "I just don't think it helps your reputation for nonpartisanship, particularly after such partisan confirmation hearings, to start out by hiring someone who is perceived to have an ideological agenda."

“He cannot work for the justice on any cases that come before the court if he worked on those matters at Time Warner or the government," said Stephen M. Gillers, who teaches legal ethics at New York University. "You don't want him to the judge the quality of his own work."
New Clerk for Alito Has a Long Paper Trail - New York Times

As an aside, being lectured about nonpartisanship by Professor Rhode is simply laughable. And the basis for Professor Gillers’ assertion that Adam Ciongoli can’t work on certain matters is probably just Professor Gillers. Tim Wu, a professor at Columbia Law, isn’t quite as critical as his colleagues but I think he leaves the door open to join them:

“None of this should be exaggerated. Justice Alito has hired trusted former clerks, and his choices are only for this term. Hopefully, the practice of hiring political staffers for clerks will end there. And there is some comfort in knowing that most of the rest of the justices—including the new chief justice—are still hiring the old way: finding nerdy clerks with little political experience, whose fantasies include someday fashioning a better-working ERISA statute.” Clerk-Off - Are law clerks staffers? By Tim Wu

Left unsaid is just why a recent law school graduate with little work experience is preferable to someone like Mr. Ciongoli. Practical considerations probably enforce such a preference (as I am quite sure Mr. Ciongoli’s decision to work for Justice Alito was not a financial one.) but that doesn’t make it ideal.

Cynically, I believe the professors concerns are of a more practical nature. Currently, a potential law clerk’s biggest asset toward obtaining a prestigious clerkship is her law school’s name. That’s why clerkships are overrun with graduates of, among others, Stanford, NYU and Columbia. Should a person’s post-school experience start weighing more heavily in the hiring process, what will that do for the influence of such ideological monoliths as say, Stanford, NYU and Columbia?


More comments at Concurring Opinions: Law Clerk Disqualification
SCOTUSblog has also been linking on this subject.

I should have posted something on this earlier but better late than never.

You may remember that during the 2004 presidential campaign, Baltimore Mayor Martin O’Malley clearly laid out his concerns in a post 9/11 world:

"I remember after the attacks of September 11, as mayor of the city, I was very, very worried about al-Qaida and still am. But I'm even more worried about the actions and inactions of the Bush administration."

Still, as worried as the mayor no doubt was, he never made it a life or death matter for him. Well, apparently things have changed and he has now identified an even bigger worry: a port management company out of the UAE.

“We want to turn over the Port of Baltimore, the home of the 'Star Spangled Banner,' to the United Arab Emirates? Not so long as I'm mayor and not so long as I have breath in my body”

So, for those of you at home keeping score, here is an updated Mayor O’Malley’s Top Worry List:

1. UAE port management company


2. George Bush


3. Al Qaeda

Yep – he could be my next governor.

David Ignatius concludes today’s column in the Washington Post with a clichéd ‘if only’:

“They would require political leadership instead of quick-hit news conferences. What a quaint idea, that members of Congress actually might want to solve problems rather than make headlines.”

Of course this follows a sequence of quick hits whereby he generally lambastes for racism, xenophobia and, of course, “the reckless tax-cutting, deficit-ballooning fiscal policies that Congress and the White House have pursued.”

He even passes on the idea that soon foreign interests could own our national parks, should we continue to attract such large amounts of foreign investment. Left out of such a cogent analysis is why the US attracts so much foreign investment. To be fair, Mr. Ignatius does correctly point out that the terrorist concerns over the proposed Dubai port deal are over hyped. But the gist of his column is a generic economic warning based on unsupported assertions.  

Mr. Ignatius flatly states:

“Greater foreign ownership of U.S. assets is an inevitable consequence of the reckless tax-cutting, deficit-ballooning fiscal policies that Congress and the White House have pursued.”

Why is that inevitable? Why would foreign investors want to invest here if Congress and the White House have put the nation on the path to economic ruin? He follows up with:

“By encouraging the United States to consume more than it produces, these fiscal policies have sucked in imports so fast that the nation is nearing a trillion-dollar annual trade deficit. Those are IOUs on America's future, issued by a spendthrift Congress.”

He then approvingly refers to the work of an NYU professor in explaining that “the United States has been financing its trade deficit through debt -- namely, by selling U.S. Treasury securities to foreign central banks.”

Let’s think about that. If an oil refinery buys a barrel of oil from Saudi Arabia for $64; it’s the refinery that owes the Saudis the $64 – not the US government. Saudi Arabia, in agreeing to sell, has decided that they have uses for the money that are preferable to holding onto that barrel of oil. One of the alternatives may be T-Bills. So, I guess Mr. Ignatius is correct that we are financing our trade deficit in this manner only if we accept the premise that the Saudis are selling us oil as part of a complicated scheme to lend us money. And if, as Mr. Ignatius suggests, Saudi Arabia decides to unload these reserves, well, where do the Saudis go? They’ll still be holding US dollars.

Also left out of his column is exactly what he has in mind? While I continue to support past and future cuts in the tax rates, I probably join him in lamenting our “deficit-ballooning fiscal policies”. I say “probably” because I’m not all worked up about a deficit that is tied to an improved infrastructure. This is a capital investment that presumably adds to the nation’s wealth. But I’m willing to cut and slash if we’re talking about farm subsidies and the Department of Education.

Bob Shrum has laid down a rant over at the Hardball site, predictably tearing into the Bush administration for a variety of sins. He does nothing to dispel his reputation as a partisan hack as he decries what he perceives as ” the implacable incompetence of a Bush Administration that no longer seems to get anything right.”

He concludes that:

“Bush is waist deep in New York Harbor; you just know there’s another wave, another mistake, heading his way. And the Republicans, try as they might to escape the ineluctable tides of Bush’s incompetence, are likely to be hit full force in the 2006 election.”

This from a man who was prominently on the losing side of the last two presidential elections to run his overall presidential campaign record to 0-8.

Here’s a link to Justice Scalia's speech at the AEI conference on Tuesday. As I wrote previously, I think it succinctly lays out the case against the use of foreign law in American judicial opinions. According to the C-SPAN website, they will be re-broadcasting the speech at 7PM on Saturday, February 25th.

Maryland-based blogger Soccer Dad has a good take on part of an on-going election process “debate” here in Maryland. But it wouldn’t be any fun if we just all agreed so I’m going to take issue with his call for an open primary (voters can vote in either primary).

Couldn’t disagree more!

Republicans should choose Republicans and Democrats choose Democrats. I know that in much of Maryland, the primary is tantamount to the general election due to Maryland’s overwhelming Democratic presence. Tough!. Either we register as Dems or we improve on the Republican picture here.

Primaries should produce candidates that at least nominally reflect the party’s choice. Otherwise, this year I’d be pushing Republicans everywhere to vote for Kwesei Mfume in the Senate primary.….for obvious reasons, he is a much preferred opposition candidate than Congressman Ben Cardin. Of course, similar tactics could work against us. And I don’t think this proposal would do too much to bring Indies into the fold as I’ve long suspected that many registered Indies are so as a kind of weenie way out of voting in the primaries. They probably wouldn’t appreciate our kicking that legit barrier down.

Yesterday I attended a speech by Justice Scalia as part of a conference on the “Outsourcing of American Law”. Even a casual observer could be aware of the recent trend of references to foreign law that have begun to pop up in Supreme Court decisions (most famously, Justice Kennedy’s opinion in Roper v. Simmons). The 5 ½ hour conference was free, open to the public and even came with lunch. The cast of commentators and participants also included, among others, John Yoo, the author of the so-called terror memo and Andy McCarthy of NRO. But make no mistake – the star of the afternoon was Justice Scalia.

He talked for about 40-minutes and, as one would expect from him, gave a well-reasoned synopsis on when he saw foreign law reliance or use as appropriate and when he didn’t. He then took questions.

Well, here things kind of went awry. Strategically placed throughout the audience of well over a hundred people were some young people of unknown ideology (I’m guessing LaRouche-ites but they never said) who annoyingly kept getting called on. They would start on some ramble that had no resemblance to a question, somehow get Dick Cheney’s name in there before Justice Scalia would simply have to move on in the search of someone who might resemble intelligent life.

I don’t know how this is playing in the press reports or for those who watched it on C-Span but…. These irritants were clearly not there to engage in a debate or discussion on the day’s topic. Justice Scalia exhibited a patience toward them that probably exceeded that of 90% of the room and is to be commended for sharing his thoughts on such a timely and hot-button topic.

A Danish newspaper publishes some political cartoons in September 2005. People respond to these cartoons with riots in 2006. What does it all mean? If you’re David Ignatius of the Washington Post, there can only be one conclusion: it’s the Internet! From 'Connectedness' to Conflict

His column asks if ‘ "connectedness" is a good thing”, then “why is an increasingly "connected" world such a mess?” He asks around, specifically about “the latest explosion of rage in our connected world -- namely the violent Islamic reaction to Danish cartoon images of the prophet Muhammad” He is particularly enamored with one theory: “…that the Internet is a "rage enabler." By providing instant, persistent, real-time stimuli, the new technology takes anger to a higher level. "Rage needs to be fed or stimulated continually to build or maintain it…”

This makes a lot of sense to Mr. Ignatius who, in agreeing with those sentiments, notes: “And you don't have to travel to Cairo to see how the Internet fuels rage and poisons reasoned debate. Just take a tour of the American blogosphere.”…..(and a consistent reader of Mr. Ignatius would probably not infer he was referring to the Daily Kos)

The Internet fuels rage and poisons reasoned debate? The Internet? Does David Ignatius seriously believe that the those rioters spontaneously took to the streets only after first signing into AOL, seeing the cartoons and then receiving an IM to take to the streets in riot clothing? How does he explain the time delay between publication of the cartoons and the “violent Islamic reaction”? Server downtime?

His conclusion:
“The connected world is inescapable, like the global economy itself. But if we can begin to understand how it undermines political stability -- how it can separate elites from masses, and how it can enhance rage rather than reason -- then perhaps we will have a better chance of restabilizing a very disorderly world.” (emphasis mine)
Separate elites from masses? Only someone who considers himself an “elite” could type such a statement without a hint of self-consciousness.  When the “elite” Dan Rather was on “elite” CBS broadcasting his bogus National Guard Memo story, it was the Internet that bridged the gap between these “elites” and the “masses” and helped get the story corrected.  
Still, he’s not totally wrong: I did find this recent example of “rage rather than reason” on the Internet: An Arrogance of Power. Fortunately, I don’t think anyone takes such sputterings too seriously so their impact on “political stability” is probably minimal.

Charles Lane has a love note to Justice Stevens in today’s Washington Post. Had this been an article about Justice Thomas or Justice Scalia, we would be reading comments (and criticisms) about originalism, strict constructionism and the like. Instead, we read about Justice Stevens – spry oldster and coalition builder (who still manages to lead the league in dissents). Missing from this article is any kind of explanation or description of just what illuminates Justice Stevens’ opinions. Does anyone know? (I mean, beyond such bumper sticker aphorisms as “justice” and “equal rights”)

I ask because Lane’s article highlights some inconsistencies in Justice Stevens’ decisions over the years without any explanation of just how that came to be.
“Early in his court career, Stevens reached some conservative results. In 1976, he cast a fifth vote to permit states to reauthorize the death penalty just four years after the court had invalidated it, and later he voted to strike down strict affirmative-action plans in university admissions and government contracting.”
Well, there was this:
“In a 2005 speech at Fordham Law School in New York City, Stevens alluded to his evolution, noting that "learning on the job is essential.”
….at least he didn’t say he had “grown”.

In the news today, Israel freezes funds that it collects on behalf of the Palestinians and former President Jimmy Carter is worried that perhaps the US and Israel might end up punishing innocent Palestinians. This is all tied in with Hamas taking over the Palestinian legislature.
Now, Hamas is generally recognized as a terrorist organization and their brand of terrorism is frequently directed toward Israel. So perhaps some of Israel’s reluctance to play nice with them can be understood. But the former president, writing an Op-Ed in today's Washington Post, is worried that the US and Israel, acting in concert, will only end up hurting the poor innocent Palestinians in the efforts to punish Hamas for their power grab..  
This very much concerns Mr. Carter: “This common commitment to eviscerate the government of elected Hamas officials by punishing private citizens may accomplish this narrow purpose, but the likely results will be to alienate the already oppressed and innocent Palestinians, to incite violence, and to increase the domestic influence and international esteem of Hamas. It will certainly not be an inducement to Hamas or other militants to moderate their policies.”
Shame on me, because I should be used to it by now, but such pablum from a former president still amazes me.
And how did Hamas happen to gain control of the Palestinian legislature? Well, this unfortunate occurrence is due, in no small part, to the fact that the Palestinian people themselves elected them. And we know it was a fair election because none other than former President Jimmy Carter monitored the elections and told us they were. The Palestinians were well aware of whom they were electing – we do not need to overly expand the meaning of the word “innocent”.  

So here we have Israel, apparently not wanting to help an organization dedicated to its ultimate destruction, making some moves that will impact the Palestinians in the wallet. The US, similarly, has “announced that all funding for the new government will be withheld, including what is needed to pay salaries for schoolteachers, nurses, social workers, police and maintenance personnel.”  (I’m fairly sure that’s not how the US announced the withholdings but I guess Mr. Carter knows a spiteful act when he sees it.)

President Carter is distraught that “[s]o far they have not agreed to bypass the Hamas-led government and let humanitarian funds be channeled to Palestinians through United Nations agencies responsible for refugees, health and other human services.” (Three words and then I’ll shut up: Oil-for-Food)
.
His conclusion? “It would not violate any political principles to at least give the Palestinians their own money; let humanitarian assistance continue through U.N. and private agencies; encourage Russia, Egypt and other nations to exert maximum influence on Hamas to moderate its negative policies; and support President Abbas in his efforts to ease tension, avoid violence and explore steps toward a lasting peace.”

….because, you know, that’s been working so far!

On March 1, the Supreme Court will be hearing the rather interesting case of Cuno v. DailmlerChrysler (Cuno). The case is about the constitutionality of a state (in this case, Ohio) granting a business (in this case, DaimlerChrysler) Investment Tax Credits (ITC) for certain investments within the state.  Cuno et al. claimed this violated the Commerce Clause and remarkably, the Sixth Circuit agreed with them. On appeal to the Supreme Court, Ohio is arguing that Charlotte Cuno and her fellow (now) Respondents lacked standing to initiate the case and, more importantly for the rest of us,  that “this long-standing, widespread and well established state economic development practice [did not] violate the negative Commerce Clause’s anti-discrimination principle.” (petitioner's Supreme Court brief)

The Ohio law firm of Bricker & Eckler has put together a concise timeline of the case and provides links to the applicable briefs and court decisions:

Bricker & Eckler LLP: Briefs, Decisions and Orders in Cuno v. DaimlerChrysler Case

Bricker & Eckler LLP: Current Information on Cuno v. DaimlerChrysler

The matters here are not trivial. DaimlerChrysler already had a presence in the Toledo area when it agreed to invest approximately $1.2 billion in a new Jeep plant. In return it received a 10-year 100% property tax exemption as well as a 13.5% ITC which could be used against their Ohio franchise tax. The lower court noted that the value of these incentives was around $280 million.

Cuno et al. argued, on state and federal grounds, that the ITC and property tax exemption violated the Commerce Clause because it “encourage[s] further investment in-state at the expense of development in other states and that the result is to hinder free trade among the states.” (from the 6th Circuit opinion). The federal district court rejected both claims and Cuno appealed. The 6th Circuit agreed with Cuno on the ITC but rejected the property tax exemption challenge.

The interests of Cuno et al, the original plaintiffs in this case, are of a varied nature. Most assert standing as Ohio taxpayers, arguing that the ITC “depletes the funds of the State of Ohio to which the Plaintiffs contribute through their tax payments, thereby diminishing the total funds available for lawful uses and imposing disproportionate burdens on the Ohio Plaintiffs.” Some Michigan residents asserted standing alleging they were harmed as a result of the Jeep plant locating in Ohio vice Michigan. Finally, one business, which was the subject of eminent domain proceedings, claimed that absent the ITC it never would have lost its business site.

I offer no opinion here as to whether a state offering an ITC is a good idea or not. I’m generally sympathetic to tax breaks but am suspicious of a government’s ability to efficiently fine-tune its arsenal of business incentives. And I instinctively do not like the use of eminent domain to benefit one private party over another.

But the issue here is not one of “should” but rather “could”. Could Ohio offer the ITC to businesses making appropriate investments within Ohio?  Most states offer some kind of tax credit as part of a general encouragement to get business into the state. These tax credits are not of recent vintage. Yet remarkably, it seems, nobody seemed to realize that these credits were unconstitutional – nobody that is until the 6th Circuit.

(Criticism of state ITCs is not new and some state and local tax policy wonks have included Commerce Clause issues amongst their arguments against the credits. However these criticisms have generally originated as critiques of tax credits from a policy viewpoint. Through my admittedly limited readings of these critiques, I have yet to come across one that reluctantly calls for the termination of these credits solely on constitutional grounds and in spite of their benefits.)

The standing issue is important because if the respondents here fail on that matter, the bar to future challenges on this matter would be enhanced. Conversely, allowing for the standing would seem to significantly increase the pool of future plaintiffs for challenges on a variety of state business incentives.  I leave such analysis to another day and those perhaps better versed in such procedural matters.

If the Court does reach the merits of the case though, I predict, without any record of expertise in such an endeavor, that the Supreme Court will overturn the 6th Circuit here. In an opinion by Justice Thomas, I think the Court would agree with Ohio that “[w]hat the court below failed to appreciate is that the negative Commerce Clause prohibits barriers, not welcome mats.”  (from Ohio’s brief to the Supreme Court)

The 4th Circuit ruled Wednesday that it was OK for Maryland Governor Bob Ehrlich to put the kibosh on Executive Department and Agencies’ employees talking to certain Baltimore Sun writers.

Ehrlich Upheld in Sun Dispute

(Ed. Note: The article isn’t quite accurate when it refers to the two writers as “Baltimore Sun journalists” because one of them, Mr. Olesker, is no longer a Sun employee. Turns out some of his work…..wasn’t HIS work)

The Sun’s reaction:
“Tim Franklin, the newspaper's editor, issued a statement yesterday saying the Sun will not attempt any further appeals in the case.
"We are obviously disappointed in the Fourth Circuit's ruling," he said. "We still believe in the First Amendment principles that led to our appeal, as do the other newspapers, CNN and the many press associations that supported us." “
Well, if they “still believe in the First Amendment principles that led to [their] appeal”, why not continue appealing?
“Franklin said the decision not to appeal was made in part because he did not want the case to be a continuing source of tension during an election year.”
Allow me to translate: This is a gubernatorial election year in Maryland. Governor Ehrlich is running for re-election. Baltimore mayor and Baltimore Sun-favorite Martin O’Malley is an announced (and the current poll-leading) candidate for the Democratic nomination. Much to our consternation, the Governor’s ban has not been at all politically harmful to him and we are fearful that continuing our fight may end up helping him. Accordingly, as important as we profess the First Amendment to be, it must be subservient to our efforts to get rid of Bob Ehrlich and get Martin O’Malley ensconced as our next governor.  
Baltimore-based Soccer Dad has been following this story and provides some useful links.

The Washington Post reports that Chairman Pat Roberts (R-Kan.) may try to widen the coverage of current anti-leaking prohibitions.

The obligatory comment from the other side:

“A senior Democratic staff member said Sen. John D. Rockefeller IV (D-W.Va.) and his colleagues "are concerned about leaks, but they don't see legislation as the remedy." “

Democrats are “concerned” about an issue and legislation is NOT seen as the remedy?

The Washington Post exposes an embarrassment of riches that are their sources within the Republican Party.

Cheney's Response A Concern In GOP

These are their “several prominent Republicans” sources: Vin Weber “a former Republican congressman from Minnesota”; Robert H. Michel, “former House Republican leader from Illinois” and Marlin Fitzwater, “a former Republican White House spokesman”. What? The receptionist at the RNC couldn’t be reached?

This is such a non-story. With the exception of Harry Whittington, nobody feels worse about this accident then Mr. Cheney. By all accounts, he has expressed his concern and remorse to Mr. Whittington. For what purpose, then, would a public apology serve (I mean, besides the obvious that many in the press want one) that private communication hasn’t already addressed?

The Washington Post has an important story today about Congressional oversight of an NSA effort you may have been hearing about lately. The Post refers to it as “the Bush administration's warrantless domestic surveillance program”.  Reportedly the program monitors communications between US-based people and certain identified associates of certain terrorists’ organizations in certain parts of the world so the Post could perhaps use the term “international” instead of “domestic”.  However, the Post is probably worried that such terminology could perhaps confuse the public into thinking the program is related to our ongoing misunderstanding with certain militant Islamist factions that want to kill us.  

Congressional Probe of NSA Spying Is in Doubt

Apparently, the White House is not too keen on Congress holding hearings on the NSA effort. So, in an effort to dissuade Congress from going forward on them, they are employing such questionable tactics as briefings and Vice President Cheney (heh, heh). This is a well-sourced article allowing you, the reader, to intelligently weigh the credibility of the information presented. Charles Babbington cites “key Republican and Democratic sources “, “[t]wo committee Democrats”, “a top Senate Republican aide”, “several others” , “[l]awmakers” and “senators”…and, oh yeah, Senator Rockefeller (D-WV) “declined to be interviewed”.

Mr. Babbington explains, without the slightest hint of irony, that the “top Senate Republican aide” and “several others” spoke only on background “because of the classified nature of the intelligence committees' work”.   Note: “the classified nature of the intelligence committees' work.” didn’t prevent them from speaking, they just didn’t want anyone to know it was them. Is it any wonder that the Administration is reluctant to expand their ongoing Congressional briefings on this matter?  

Two articles over at WashingtonPost.Com:

Scalia Dismisses 'Living Constitution'
and
WASHINGTON IN BRIEF: Lawyers Group Criticizes Surveillance Program

The first discusses Justice Scalia’s latest talk before a Federalist Society gathering in Puerto Rico. The second article reports that the American Bar Association has formally criticized the President for the international terrorist surveillance program which has been in the news of late.

Here’s how the Post first identified the group to which Justice Scalia was addressing;

“In a speech Monday sponsored by the Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."”
Nah – just kidding. You’re not allowed to refer to the Federalist Society without prefixing it with the word ‘conservative’…as in:
“In a speech Monday sponsored by the conservative Federalist Society, Scalia defended ….”
Later the Post helpfully explains that “Scalia was invited to Puerto Rico by the Federalist Society for Law and Public Policy Studies. The organization was founded in 1982 as a debating society by students who believed professors at the top law schools were too liberal. Conservatives and libertarians mainly make up the 35,000 members.”
Now, contrast that with this Post report from the American Bar Association’s midyear meeting in Chicago:
“The American Bar Association denounced President Bush's warrantless domestic surveillance program yesterday, accusing him of exceeding his powers under the Constitution.”
In this instance, the Post obviously didn’t feel any descriptive addendums like “liberal” or “far left” to the organization’s name was appropriate.
Now after reading those two short articles, could you guess which organization consistently takes positions on a host of legislative, social and cultural issues? Could you guess which organization is a lobbying force on Capitol Hill?  Can you guess which organization, just in the last few days passed a resolution to “Promote legislation to establish a process to provide federal recognition and restore self-determination to Native Hawaiians (Resolution 108B)”?
Can you guess which organization never takes a position on any issue, prepares no amicus briefs and has no lobbyists?
Read for yourself: News Release - ABA House of Delegates to Address Freedom of Information, Research on the Consequences of Slavery, and Gay and Lesbian Foster Care at Midyear Meeting in Chicago.
Also: The Hopelessly P.C. American Bar Association
Full disclosure: I am a card-carrying member of the Federalist Society. I used to belong to the ABA but eventually passed on renewal because, well, because of silly posturings like noted above. However, I will note that the ABA’s Tax Section is an excellent resource. If only there was a way to join them without having to support the rest of the ABA’s silliness…….

I think Howard Kurtz is one of the most readable and rational writers for the Washington Post – which may not be saying much but I do genuinely like his Media Notes column. In today's online column, he takes note of “[a]n information war [that] is breaking out on multiple fronts, with journalists caught in the crossfire” but some of his examples are as unremarkable as they are predictable”:
“A larger example: James Hansen, NASA's top climate scientist, told the New York Times last month that agency officials tried to "censor" him by insisting on reviewing his lectures, papers and interviews, after he called for a reduction in greenhouse gases tied to global warming.”
This is such a “so what” story – so NASA doesn’t want its employees to be spouting off on just any subject. Jocelyn Elders faced a similar complaint with President Clinton. One person sets the executive agenda and it isn’t James Hansen. The tag-line that makes his contrarian views newsworthy – NASA scientist – is the same tag line that allows NASA to rein him in if his message is at odds with agency policy….And for the NYTimes to be so breathless about this – didn’t they “censor” Dave Anderson a few years ago for not toeing the party line during their relentless editorial assault on Augusta National and the Masters golf tournament?
And:
“But there are many areas drenched in gray: Should a dissident bureaucrat or independent-minded scientist be able to speak freely to reporters, or should political appointees be able to choke off such communication in the name of message discipline? Rank-and-file journalists strongly favor the former, but guess what: Some news organizations don't allow their reporters to give interviews without permission, if at all.”
His choice of words - “dissident” and “independent-minded” versus “political appointees” and “choke” - kind of leads to an inference that he is with the “rank-and-file”. But, after giving specific examples of restrictions of news sources to journalists, I would have like to read about specific news organizations that don’t allow access to their reporters.

Jennifer Moses, writing in Sunday’s Washington Post, is complaining that, well, I’m not sure what she is complaining about.

Still Drowning in New Orleans

Apparently, New Orleans is still a mess so Ms. Moses is lamenting that “...nothing close to (the promised) $85 billion has been spent”. Further, she seems bothered that “.most members of Congress -- 87 percent of the House and 70 percent of the Senate -- haven't bothered to come on down to the Big Easy at all.” But her biggest complaint seems to be that President Bush isn’t acknowledging that “..while hurricanes make the front pages, an even more insidious natural disaster is already well underway[.] For decades, Louisiana's wetlands …… have been disappearing at the rate of two football fields an hour, amounting to 1 million acres over the past half-century washing into the sea, victim of the human penchant for tinkering with the landscape and exploiting it for profit.”

Well, which is it? Is it a natural occurrence – as in an “insidious natural disaster” -or is it the byproduct of some “human penchant” She notes that this has been going on for fifty years but the direct object of her scorn is apparently President Bush’s failure to grab hold of this cause in the last four months. But if, as she writes, the plan to reverse the wetland losses has been floating around for years then that would seem to indicate that this matter has been suffering from more than just a president’s indifference - the locals don’t seem to have bought into it either

New Orleans is below sea-level so without that “human penchant for tinkering” there is no New Orleans. And while wetlands are often a legitimate matter for concern, surely Ms. Moses can appreciate that putting more land underwater is just not going to resonate as a top priority in the wake of Katrina.

This is how the Washington Post captioned Dan Balz’s article on RNC Chairman Ken Mehlman’s Friday talk to CPAC:

RNC Chief Defends Domestic Wiretaps

I’m not aware of any domestic wiretaps going on here so I suspect what Mr. Mehlman was really defending was the surveillance program of suspected terrorists, which even Mr. Palz kind of noted in his first paragraph::
“….and criticized them (Democrats) for challenging President Bush's program of warrantless surveillance of potential terrorists.”
I think Mr. Mehlman would roll out the red carpet for any Republican-opponent who wants to argue that potential foreign terrorists are somehow entitled to be free from “warrantless surveillance”.

David Broder's column in today’s Washington Post quotes Senator Graham (R-SC) on the NSA surveillance matter.

“As for the administration's contention that Bush has "inherent power" as chief executive to order warrantless wiretaps, Graham said, "Its application, to me, seems to have no boundaries when it comes to executive decisions in a time of war. It deals the Congress out. It deals the courts out."”

It deals the courts out? The Senator is an ostensibly bright person so I’m thinking maybe he is just being purposely obtuse on this issue (and, despite its impression on Mr. Broder, the Senator having been a military lawyer in a prior life is a factoid of no particular significance in this issue). But just in case he is genuinely confused on this matter, let me simplify it for him:

The courts have NO constitutional role when it comes to executive decisions in time of war. NONE! Congress declares war & Congress funds the war effort. The president, as the Commander-in-Chief, wages the war….and that’s it.

Should the president stray from the waging of war unto purely domestic matters then the math here changes. So far, however, there is absolutely no evidence that this program has so strayed (and, for the record, disdain for this administration is not evidence).

From today’s Washington Post: “The minimum legal definition of probable cause, said a government official who has studied the program closely, is that evidence used to support eavesdropping ought to turn out to be "right for one out of every two guys at least." “

Surveillance Net Yields Few Suspects

Huh? How long has this definition been around and why didn’t I hear of it in law school? At a minimum, it would be helpful if the Post would provide a single, independently available source for such a declaration. Instead, the Post gives us an unnamed government official…..and nothing else: – no background summary of the official’s education, experience, position in the government or political affiliation/sympathies (although I suspect that if this person could at all be spun as pro-administration, we would have read at least that much about him). The Post doesn’t even let us know just how they discovered that this official had “studied the program closely” (but I’m guessing the official is their lone source on this tidbit).

And even if we grant a “one out of every two guys” standard, the Post does not explain what that means. Does it mean that at least half of all eavesdropped conversations should lead to an arrest or foiled terrorist act? Would it be enough that at least one of every two conversations involved a verifiable name-and-face-to-the-voice member of Al Qaeda?

One long acknowledged test used in assessing probable cause is indicia of the reliability of the source (see Draper among others). The Post authors of this article, Barton Gellman, Dafna Linzer and Carol D. Leonnig, don’t meet that test.