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January 7, 2006
Jerry Falwell is supporting the confirmation of Judge Samuel Alito as Supreme Court Justice because:
[H]e trusts that President Bush picked someone who opposes abortion.
. . . Falwell and other Christian leaders are scheduled to speak at a nationally broadcast rally this Sunday, on the eve of Alito's confirmation hearings.
Falwell says President Bush promised to pick justices "who are like Scalia and Thomas" and he trusts that "the president is keeping his word."
"Justice Sunday Three" will be broadcast Sunday evening by satellite into churches and on many Christian radio and television stations.
Falwell is right. Bush kept his promise to the Extremists in his Party when he nominated the extremist ideologue Samuel Alito to replace mainstream conservative Sandra Day O'Connor.Update [2006-1-6 14:45:0 by Armando]: By the way, what ever happened to James Dobson?
This excerpt from our book is in the chapter "Civil War", which recounts the rise of the new people-powered movement and how its clashes with the party establishment. The chapter starts with the passage of Campaign Finance Reform legislation which suddenly starved the Democratic Party of its main source of dollars -- million dollar contributions.
Suddenly, the Democratic Party is adrift. It has no idea how to replace that cash. The GOP already had a vast network of small-dollar donors. We had no such thing. And it is in that environment that Dean suddenly makes his dramatic entrance into the political scene.
Dean's campaign was an altogether new kind of campaign--it wasn't about offering a list of "policy fixes"; it was more about creating a broad-based populism that energized the base by giving it voice in a national forum, and it was about boldly fighting Republicans, not imitating them. Using tools like Meetup.com, his merry band of bloggers, and the relatively new service unions like SEIU and AFCSME, Dean built an army of foot soldiers that far out-numbered anything his opponents could muster.
Money talks loud and clear in electoral campaigns, and by June 2003 the party establishment was reeling from Dean's second quarter financial windfall--he had raised $14.8 million. Runner-up John Kerry had raised $4 million. The rest languished in the $3-million range or lower. After the election, when he was asked by CNN's Judy Woodruff when he knew Dean had a chance, campaign manager Joe Trippi said: "The end of June 2003, in that unbelievable three or four days when millions came in over the Internet and $829,000 came in on Monday, the FEC deadline day."
That money was all the more remarkable because it was mostly internet-generated small-dollar donations. The Democratic Party had never seen anything like it before. The party, which was struggling to survive because of its gross inability to compete with Republicans on the hard-dollar front (because of McCain-Feingold), was watching a little-known candidate being flooded with exactly the kind of donations needed to build the party.
Dean for America was a fifty-state movement, with over 160,000 people attending decentralized Meetups. Its small-dollar donor base raised $50 million with an average contribution of about $70 dollars. Its volunteer ranks were swollen with netroots and grassroots supporters. The nation's two largest unions were working on its behalf.
As noted earlier, the 2002 campaign finance reform law radically changed the political landscape. Soft-dollar donations were suddenly out of reach, and with the electoral disasters of 2000 and 2002, the DLC and the establishment in D.C. were at a complete loss. The candidates they favored for the 2004 presidential line-up--like Lieberman and Gephardt--were still living in the 1990s, ill-prepared to operate in this new political terrain where energizing Democratic voters is far more important than sucking up to big-money interests.
None of them understood the growth of this new movement or its sheer size, even as it gathered steam, powering the Dean phenomenon. If anything, the Democratic establishment perceived it as a serious threat. The centrist minds at the DLC had a difficult strategic question to answer heading into the Democratic primaries: How could they keep this new populist movement at bay and ensure a beltway-friendly Democratic presidential nominee? The answer was to redefine these outsiders and the Dean campaign as the new incarnation of the party's now-dead 1970s-1990's liberal wing.
The DLC took point position in the battle against Dean.
Our recounting of the Dean takedown is pretty dramatic, but we'll save that for those who read the book (it even includes insider accounts from DLC strategy sessions). As for the "centrists" at the DLC, what was amazing was how little dirt they had on Dean. There was an intense research effort to dig up crazy liberal statements by Dean during his long political tenure in Vermont, yet they found nothing they could use. In fact, they had endorsed his efforts as wonderfully "centrist" more than once.
Hence, their attacks had to be based on rhetoric and scare tactics, rather than tangible things like "facts". They gave birth to the "unelectable" theme and provided the intellectual framework upon which Dean's critics built their case against him. If only they had been as effective in helping take down Bush.
I've gotten a couple of complaints today about someone harvesting emails on the site and adding them to something called the JT IMPEACH list.
Let me make this clear -- I had nothing to do with this and, in fact, I'm livid that someone would be so stupid and rude as to do this. Signing up people to any list without their permission is a real no-no.
I don't know if it's possible, but I will look into ways to legally protect people from this sort of thing. And to the owner of that JT IMPEACH list, I will ban him from this site and pursue possible legal action unless he unsubscribes every Daily Kos user address he added without permission to his list.
December 21, 2005
It appears that one of the GOP talking points on the domestic spying scandal is to denigrate and even ridicule Jay Rockefeller's and Nancy Pelosi's letters to the White House protesting the spying policy divulged to them in classified meetings. This morning on NPR I heard GOP Representative Peter Hokestra claim that if Senator Rockefeller was really concerned about the domestic spying program revealed last week by the NYT, then he could have done more than write a letter.
Well, let me clarify that. Rockefeller could have publicized the existence and actions of the program, but if he or any of the other members of Congress briefed on the program went public with their opposition, they would have been breaking the law. To fail to acknowledge that anyone briefed on this program essentially had no way to oppose or publicize the existence of the program without breaking the law is bullshit.
As a member of the so-called "gang of four" which includes the top Republican and Democrat of the Senate and House intelligence committees, Rockefeller was one of four members of Congress who received those briefings. The group can be summoned to the White House on short notice to be advised on the most sensitive intelligence information or plans for covert operations. It is safe to assume that if the United States is, in fact, operating secret prisons overseas, these four know plenty about them.
But membership also has its burdens. The "gang" -- Republican Sen. Pat Roberts of Kansas and Rep. Peter Hoekstra of Michigan and Democrats Rockefeller and Rep. Jane Harman of California -- is virtually gagged from discussing anything from meetings with anyone outside the group -- not even other senators, staffers or lawyers with security clearance on the intelligence committees. "You can't discuss it with anybody as long as you live," Rockefeller said Monday.
And for Rockefeller and Harmon, the senior Democrats on the Senate and House intelligence committees, respectively, membership can be even more problematic. If they want to object to anything the administration is doing, they're forbidden from doing so publicly.
That was the case with Rockefeller until Monday. He'd informed the administration he had concerns and was suspicious of the NSA program, but he had no recourse to stop it from going forward and he couldn't go public. "I wasn't going to say anything until the president starting talking about it so openly," he said.
In laying out his case for the NSA's domestic wire tapping on Saturday, Bush told the nation, "Leaders in Congress have been briefed more than a dozen times on this authorization and the activities conducted under it." Questioned about whether executive power had run amok at Monday's presidential news conference, an irritated Bush replied, "We're talking to Congress all the time, and on this program, to suggest there's unchecked power is not listening to what I'm telling you. I'm telling you, we have briefed the United States Congress on this program a dozen times."
Rockefeller was annoyed. "They're just saying we're all briefed and informed and they implied implicit consent and all the rest of that and it's totally untrue," he recounted outside the Senate chamber after Bush's news conference. He said the impression the administration was leaving was "totally phony."
According to the WaPo, "Rockefeller wrote obliquely of 'the sensitive intelligence issues we discussed today.' Yesterday, after confirming with White House officials that the letter contains no classified information," he released the letter. The fact that Pelosi has requested that her letter be declassified suggests that her's is probably not as vague as Rockefeller's, and contains more specific information that is currently still classified.
But the most important thing to remember is this: because of the laws and regulations governing national intelligence and Congressional oversight, Congressional critics of the domestic spying were legally prohibited from publicly voicing their opposition to the program. How fitting that GOP shils, who themselves don't seem troubled by the fact that the administration isn't troubled by the fact that a CIA agent's cover was blown for political reasons, proffer Democrats' refusals to break intelligence and espionage laws as evidence that they weren't troubled by domestic spying on Americans.
Via the LA Times, and Ezra Klein we get another whopper from our would-be King George.
In his radio address Saturday, Bush said two of the hijackers who helped fly a jet into the Pentagon -- Nawaf Alhazmi and Khalid Almihdhar -- had communicated with suspected Al Qaeda members overseas while they were living in the U.S.
"But we didn't know they were here until it was too late," Bush said. "The authorization I gave the National Security Agency after Sept. 11 helped address that problem in a way that is fully consistent with my constitutional responsibilities and authorities."
But some current and former high-ranking U.S. counter-terrorism officials say that the still-classified details of the case undermine the president's rationale for the recently disclosed domestic spying program.
Indeed, a 2002 inquiry into the case by the House and Senate intelligence committees blamed interagency communication breakdowns -- not shortcomings of the Foreign Intelligence Surveillance Act or any other intelligence-gathering guidelines.
See, as it turns out, the NSA had been monitoring calls between a safe house in Yemen and an apartment in San Diego rented by the hijackers. They knew at least one of the men was in the country, and communicating with suspected Al Qaeda members at that safe house. Furthermore, they knew that the safe house had been a base of operations for planning the bombings of two U.S. embassies in Africa in 1998 and to the 2000 bombing of the U.S. destroyer Cole.
Those links made the safe house one of the "hottest" targets being monitored by the NSA before the Sept. 11 attacks, and had been so for several years, the officials said.
Authorities also had traced the phone number at the safe house to Almihdhar's father-in-law, and believed then that two of his other sons-in-law already had killed themselves in suicide terrorist attacks. Such information, the officials said, should have set off alarm bells at the highest levels of the U.S. government.
Under authority granted in federal law, the NSA already was listening in on that number in Yemen and could have tracked calls made into the U.S. by getting a warrant under the Foreign Intelligence Surveillance Act.
Then the NSA could have -- and should have -- alerted the FBI, which then could have used the information to locate the future hijackers in San Diego and monitored their phone calls, e-mail and other activities, the current and former officials said.
The case Bush cited on Saturday had absolutely nothing to do with shortcoming in FISA and everything to do with bungling between our spy agencies. Or as Ezra says
So FISA, as we keep saying, was plenty powerful and responsive enough to gather intelligence, but Bush hadn't calmed the turf wars among our intelligence services. The PATRIOT Act and the Intelligence Reorganization should have, in theory, solved some of those problems. A secret domestic espionage program, conversely, would have no impact at all. What this means, of course, is that a top government official is lying about matters of national security. Sounds like someone needs to wiretap George W. Bush.
Update [2005-12-21 14:26:51 by mcjoan]: For more, see ybruti's diary.
Rick Santorum, Washington Times op-ed, March 14, 2002:
[I]ntelligent design is a legitimate scientific theory that should be taught in science classes.
At the beginning of the year, President Bush signed into law the "No Child Left Behind" bill. The new law includes a science education provision where Congress states that "where topics are taught that may generate controversy (such as biological evolution), the curriculum should help students to understand the full range of scientific views that exist." If the Education Board of Ohio does not include intelligent design in the new teaching standards, many students will be denied a first-rate science education. Many will be left behind.
Rick Santorum, Allentown Morning-Call op-ed, January 14, 2005:
Recently, the Dover Area School District in York County updated their biology curriculum in an attempt to create a more balanced approach to teaching evolution. A statement regarding the status of evolutionary theory and the existence of alternative theories will be read to all students during the time evolution is studied in the high school biology course. Additionally, students will be able to voluntarily view reference books in the library that present a variety of cutting-edge scientific views both supporting and opposing Darwinian theory. The Dover Area School District has taken a step in the right direction by engaging in the debate and attempting to teach the controversy of evolution.
Seems pretty clear-cut, doesn't it. Santorum twice wrote op-eds in support of injecting creationism "intelligent design" into the classroom. So how did he react to the court decision invalidating the Dover Area School District efforts to make that happen?
From the subscription-only Beaver County Times:
U.S. Sen. Rick Santorum said Saturday that he doesn't believe that intelligent design belongs in the science classroom.
Santorum's comments to The Times are a shift from his position of several years ago, when he wrote in a Washington Times editorial that intelligent design is a "legitimate scientific theory that should be taught in the classroom."
But on Saturday, the Republican said that, "Science leads you where it leads you."
Santorum has made some interesting gyrations of late in his attempts to extricate himself from his perch of honor in the Coburn/Santorum/Brownback-wing of the Republican Party.
(From the diaries -- kos)
Gimme a second. I'll get around to the explaining that headline. (If you can't stomach prefaces, scroll down to paragraph twelve.)
Back in March, the hound-dogs over at Technorati noted that they were tracking 7.8 million of that protean creature known in wwwLand as a web log. By August, in their State of the Blogosphere, they were tracking 14.2 million blogs, reflecting a stunning near-doubling of the blog world in five months. Equivalent, I suppose, in our accelerated times, to an Internet decade.
Four months and three weeks later, Technorati indicates a slowdown to a birth rate of one shiny new blog every 1.3 seconds, 24 million a year, give or take a few hundred thousand.
Big drama this morning:
The Republican-controlled Senate passed legislation to cut federal deficits by $39.7 billion on Wednesday by the narrowest of margins, 51-50, with Vice President Dick Cheney casting the deciding vote.
The measure, the product of a year's labors by the White House and the GOP in Congress, imposes the first restraints in nearly a decade in federal benefit programs such as Medicaid, Medicare and student loans.
On the plus side, efforts to insert ANWAR drilling into the defense appropriations bill failed 56-44. The effort was the subject of a filibuster, hence needed 60 votes to succeed.
Nancy Pelosi yesterday announced that she had voiced "strong concerns" about the NSA program, both verbally and in a letter, and is asking that the correspondence be declassified and made public.
WASHINGTON, Dec. 20 -- House Democratic Leader Nancy Pelosi released the following statement today on her request to the director of National Intelligence to declassify a letter she wrote to the Bush Administration expressing concerns about the activities of the National Security Agency.
"When I learned that the National Security Agency had been authorized to conduct the activities that President Bush referred to in his December 17 radio address, I expressed my strong concerns in a classified letter to the Administration and later verbally.
"Today, in an effort to shed light on my concerns, I requested that the director of National Intelligence quickly declassify my letter and the Administration's response to it and make them both available to the public.
"The president must have the best possible intelligence to protect the American people. That intelligence, however, must be produced in a manner consistent with our Constitution and our laws, and in a manner that reflects our values as a nation to protect the American people and our freedoms."
The ball seems squarely in the Bush court now. If the administration wants to contend that Democrats were fully briefed and approved of the warrantless surveillance, let's see this letter. The issue can be laid to rest with a simple declassification. Color me cynical, but I'm not holding my breath on this one. I'm laying bets that national security will be invoked to keep any objecting correspondence classified - and coloring Congressional reps as complicit, particularly Democratic ones.
Jerome gives his pitch for Crashing the Gate:
If you like what we've been blogging about on Daily Kos and MyDD over the past 4 years, I know you'll enjoy reading Crashing the Gate. When we formulated the proposal for this book at the beginning of this year, we wrote a sort of historical chapter from this decade and the rise of the outsiders or reformers within the Democratic Party. That wound up being Chapter 5, Civil War, the story of CFR, Dean, and the rise of the netroots, placed within the context of the Democratic Party. Every other chapter takes it's footing from the blog world as well, but that was probably the easiest chapter to write, because most of it was from our experience, and didn't require a lot of interviews. We let the DNC winter meeting and the California Democratic convention of 2003 take the center stage for the presentation of Dean. I think those two speeches (and Dean never gave that speech again) epitomized the call to action that Dean for America represented to millions. And for us, being the first political event that gave credentials to bloggers, it was a breaking out moment for the blogosphere.
For this book, Markos and I traveled all over the country, moving beyond blogging and into research. It seemed about every week, from May through the end of November, we were off to one state or another, for interviewing, writing, or somehow working on the book. There were a couple of times where we were like, `what the hell are we writing about?' But we kept going, kept compiling, and kept on pushing through with getting what we wanted to say into print.
And here it is, nearly done. The copy editors are fact-checking our digs and scrutinizing our grammar (pity them). Markos keeps emailing me about book tours and interviews (who knows where the time will come). And I'm at the point where a week of internet/email/work blackout has become imperative. But, before that, I wanted to put a note/pitch/post about the book.
If you can pre-order a copy of Crashing the Gate, I'd appreciate it. You'll get it a week before it comes out publicly, with the exclusive "Progressive Partner" book cover. You'll help us get th books message out faster and further. But besides all that and more, I guarantee you, whenever Markos or I are asked to sig a book and see that it's a Partner book, you'll get a personal 'thank you' as well.
Actually, you'll get the book two weeks before it's out in book stores. The special edition is an all-progressive organizations operation -- from writing to publishing to fulfillment. And, the money earned by the pre-sales will help fund the marketing of the regular edition of the book. We passed on a traditional big corp publisher in order to sign with a progressive independent publisher which uses sustainable printing practices (recycled paper, soy-based inks, etc). The flip of that is that we have to get creative in marketing the book, since the big bucks just aren't there to do it the traditional way.
Among other things, the presales will allow us to do a HUGE book tour, with at least 30 cities in our preliminary schedule (no specifics yet, it's all still being worked out).
The presales will help the book debut on the Best Seller list -- easy to do if you're a wingnut and can count on bulk purchases to get you on the list, not so easy if you're a progressive and need real people to buy they book.
And the presales are already generating a great deal of media attention, which will further help make this the influential book we hope it becomes. The more successful the presale efforts, the better media attention and access we'll have.
Jerome tailored his pitch for his readers -- focusing on the blog side of things. But the big theme of the book is a progressive movement that has failed to keep up with the times. From the issue groups, to the consultants, to the party establishment, Democrats and progressives still operate as if it was still the 70s or 80s. Conservatives, on the other hand, aren't afraid to innovate, improvise, and adapt to the changing political and media landscapes.
The results are self-evident. We sit here waiting for the Republicans to self-destruct in order to garner electoral gains in 2006. And short-term, it will be the GOP's utter inability to govern that will be our saving grace. But we can't build a long-term healthy movement on the hopes that Republicans screw things up. We want people to vote for Democrats because they believe we have a positive agenda for America, rather than vote against Republicans.
That will require building a Vast Left Wing Conspiracy -- think tanks, training institutions, and the media machine -- to counter the VRWC. It will require a progressive movement that works in concert for the movement's common good, rather than continue segregating in its issue silos. And it will require a consultant class that realizes it's 2006 and not 1984.
The irony is that in the political realm, conservatives have never feared change. They have embraced it. Progressives, on the other hand, cling to the past beyond all reason.
Via Atrios, Marty Lederman articulates the unstated premise in Judge Richard Posner's call for amending FISA -- Bush committed crimes:
Judge Posner has an Op-Ed in the Washington Post this morning that is understandably receiving a lot of attention. His argument is that the latest scandal reveals a serious gap in the legal intelligence-gathering laws. . . . . Posner laments that the Foreign Intelligence Surveillance Act, as currently written, "is too restrictive" because that law "makes it difficult to conduct surveillance of U.S. citizens and lawful permanent residents unless they are suspected of being involved in terrorist or other hostile activities."
. . . This is an important public policy debate to be having. . . . But whether and to what extent Posner is right that data mining of U.S. persons should be legal is precisely the policy debate that ought to have had occurred in Congress in 2001 when the Administration felt the need to start down that road. Instead, this Administration -- knowing that even a super-compliant Congress after 9/11 would be wary of going as far as Posner proposes -- simply decided to break the law and do it anyway, citing a Commander-in-Chief override.
What's remarkable about Posner's Op-Ed is that his whole point is that the FISA law on this presently is (in his view) woefully inadequate to the task. He never even mentions the serious implication of this point, namely, that if he is right that FISA currently prohibits this -- and he is right -- then the Administration's data mining for the past four years has been a violation of criminal law.
. . . Posner may be right that current law is too restrictive. Congress should have that debate. But isn't it troubling that an esteemed federal judge seems so indifferent to the fact that, in the meantime -- before the Nation and the Congress have had the opportunity to debate Posner's proposal -- the Nation's Chief Executive is systematically authorizing criminal felonies?
(Emphasis mine.) Indeed it is troubling. I made the same point yesterday, about a not quite as esteemed figure, Orin Kerr.
You know the shit is about the hit the fan when the wingers turn to Clinton to try and excuse King George's behavior. We saw it with the illegal invasion of Iraq ("but..but...CLINTON said Saddam has WMD!") and with the nuclear option ("but...but...you hated the filibuster when the Clenis was in power!"). But no distortion is more blatant, I think, than the one being circulated now that both Clinton and Carter authorized warrantless searches.
Think Progress does a quick and painless job of eviscerating the myth. Let's take a closer look and put this lie to rest. Yes, both Clinton and Carter issued executive orders pertaining to foreign intelligence surveillance. But neither of these even remotely authorized warrantless searches of American citizens, as Bush's order does.
CLINTON DID NOT ORDER WARRANTLESS SEARCHES OF AMERICAN CITIZENS
Section 1. Pursuant to section 302(a)(1) [50 U.S.C. 1822(a)] of the [Foreign Intelligence Surveillance] Act, the Attorney General is authorized to approve physical searches, without a court order, to acquire foreign intelligence information for periods of up to one year, if the Attorney General makes the certifications required by that section.
You don't have to be a lawyer to understand that Clinton allowed warrantless searches if and only if the AG followed section 302(a)(1). What does section 1822(a) require?
CARTER DID NOT AUTHORIZE WARRANTLESS SEARCHES OF AMERICAN CITIZENS
1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General is authorized to approve electronic surveillance to acquire foreign intelligence information without a court order, but only if the Attorney General makes the certifications required by that Section.
Here, Carter refers to "electronic surveillance," rather than "physical searches" like Clinton. But again, Carter limits the warrantless surveillance to the requirements of Section 1802(a). That section requires:
(From the diaries -- Plutonium Page.)
It seems like just yesterday that George W. Bush said of his domestic spying program:
So it's a program that's limited, and you brought up something that I want to stress, and that is, is that these calls are not intercepted within the country. They are from outside the country to in the country, or vice versa.
Apparently he didn't stress it enough. From today's New York Times:
A surveillance program approved by President Bush to conduct eavesdropping without warrants has captured what are purely domestic communications in some cases, despite a requirement by the White House that one end of the intercepted conversations take place on foreign soil, officials say.
But don't worry...after all, Bush did say that:
I just want to assure the American people that...we're guarding your civil liberties. And we're guarding the civil liberties by monitoring the program on a regular basis.
George, you're doing a heckuva job.
From the GREAT STATE OF MAINE...
Juicy bits from the cable networks last night...
(Warning: The following question by Andrea Mitchell may cause your head to explode. Please wear a shower cap while reading...just in case.)
Andrea Mitchell: What do you think Americans really need to be worried about more...a terror attack or someone going into their hard drives and intercepting their emails?
Former Senator and Intelligence Committee Chairman Bob Graham: Well, I think they need to be concerned about the effect of the United States seeing a retreat from our basic values at the same time we're trying to ask the countries from which the terrorists came to adopt principles of democracy and liberty. Wouldn't it be ironic if, at the same time, through our initiative, we were able to establish democracy in Iraq, but we were losing our basic liberties and freedoms at home?
Jonathan Alter on Hardball: The critics of the president in this case are not trying to weaken national security. It's not that we're eavesdropping, it's how we're eavesdropping and under what laws. And when the president said yesterday that he was doing this under the Constitution and under the authority of the congressional resolution that let him use force right after 9/11 in Afghanistan, that is not, by any lawyer's opinion outside of the administration, that is not legal authority. So we really are looking at a question here of whether the president may have violated the law.
Senator Barbara Boxer on Countdown: My God, I voted to go to war, to get al Qaeda, break their back, get Osama bin Laden, and I'm very willing to do what it takes. But we have rules and regulations in our country to make sure there's a check and balance on every branch of government. And what is so worrisome about this is, this administration has not been truthful with the American people---I've laid that out---and they seem to want to avoid all checks on their power. And this is reminiscent of Watergate.
Let the smells of Christmas hit your guests as soon as they arrive. Keep a pot of mulled apple cider on the stove so the first thing you smell is a delightful mixture of cinnamon, clove, and nutmeg. You can also simmer the whole spices in water.
...and Republicans, too! Cheers and Jeers starts in There's Moreville... [Swoosh!!] RIGHTNOW! [Gong!!]
[The Government's position] cannot be mandated by any reasonable view of the separation of powers, as this view only serves to condense power into a single branch of government. We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation's citizens. Youngstown Steel and Tube, 343 U.S. at 587. Whatever power the United States Constitution envisions for the Executive in times of conflict with other Nations or enemy organizations, it most assuredly envisions a role for all three branches when individual liberties are at stake.
In Federalist 26 Alexander Hamilton wrote:
In England, for a long time after the Norman Conquest, the authority of the monarch was almost unlimited. Inroads were gradually made upon the prerogative, in favor of liberty, first by the barons, and afterwards by the people, till the greatest part of its most formidable pretensions became extinct. But it was not till the revolution in 1688, which elevated the Prince of Orange to the throne of Great Britain, that English liberty was completely triumphant. As incident to the undefined power of making war, an acknowledged prerogative of the crown, Charles II had, by his own authority, kept on foot in time of peace a body of 5,000 regular troops. And this number James II increased to 30,000; who were paid out of his civil list. At the revolution, to abolish the exercise of so dangerous an authority, it became an article of the Bill of Rights then framed, that ``the raising or keeping a standing army within the kingdom in time of peace, UNLESS WITH THE CONSENT OF PARLIAMENT, was against law.''
In that kingdom, when the pulse of liberty was at its highest pitch, no security against the danger of standing armies was thought requisite, beyond a prohibition of their being raised or kept up by the mere authority of the executive magistrate. The patriots, who effected that memorable revolution, were too temperate, too wellinformed, to think of any restraint on the legislative discretion. They were aware that a certain number of troops for guards and garrisons were indispensable; that no precise bounds could be set to the national exigencies; that a power equal to every possible contingency must exist somewhere in the government: and that when they referred the exercise of that power to the judgment of the legislature, they had arrived at the ultimate point of precaution which was reconcilable with the safety of the community.
Article 1, Section 8 of the the United States Constitution states, in part, that the Congress will have the power:
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress . . .
Despite the clear and unmistakable words of Hamilton; despite the clear and unmistakable grant of authority to the Congress regarding the raising of military forces, the promulgation of Rules for the governing and regulation of the military, and for the declaration of war, and despite the ringing statements of the Supreme Court in Hamdi, some Conservatives and Republicans insist that the President, when acting in his capacity as Commander in Chief, has plenary power, unchecked and unfettered.
Was the secret NSA surveillance program legal? Was it constitutional? Did it violate federal statutory law? It turns out these are hard questions, but I wanted to try my best to answer them. My answer is pretty tentative, but here it goes: Although it hinges somewhat on technical details we don't know, it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act.
Say what? It is Constitutional for the President of the United States to violate a duly enacted federal law? How does that work exactly? Is FISA unconstitutional? Does the President have plenary powers when acting as Commander in Chief? Well, contradictorily, not according to Kerr:
I have been unable to find any caselaw in support of this argument [that Congress has no power to legislate in a way that inteferes with the President's Commander-in-Chief power] Further, the argument has no support from the cases cited in the government's brief. In all three of those cases -- Butenko, Truong, and Keith - the Courts were talking about whether the President's interest in conducting foreign intelligence monitoring creates an exception to the Warrant Requirement of the Fourth Amendment. In other words, the issue in those case was whether the Constitution bars warrantless surveillance absent Congressional action, not whether Congressional prohibitons in this area cannot bind the Executive branch.
. . . While the Court [has] recogniz[ed] the President's constitutional role, it was in a very specific context: balancing reasonableness in the context of Fourth Amendment law to determine whether the surveillance required a warrant. Again, this doesn't seem to go to whether Congress can impose binding statutory prohibitions beyond the Fourth Amendment.
So how does this work Mr. Kerr? Congress has passed a law that is consistent with the Constitution and the President can disregard it? That's a Constitutional action by the President? Even though the violation of FISA is a crime? Come again? Ahhh, a little bit of monarchy I suppose.
More on the other side.
Yep, as much as Bush may be praying for it, this story isn't going away:
A federal judge has resigned from the court that oversees government surveillance in intelligence cases in protest of President Bush's secret authorization of a domestic spying program, according to two sources.
U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, sent a letter to Chief Justice John D. Roberts Jr. late Monday notifying him of his resignation without providing an explanation.
Two associates familiar with his decision said yesterday that Robertson privately expressed deep concern that the warrantless surveillance program authorized by the president in 2001 was legally questionable and may have tainted the FISA court's work.
Having read my share of dry judicial opinions over the years, I can tell you that Judge Jones III's verbal smackdown of "intelligent design" (pdf) is a welcomed breath of fresh air. His opinion spans 139 pages of pure, razor-sharp analysis. It's beautiful. It's scathing. It's so good I want to wallpaper my dining room with it. Almost.
It's not just his bulletproof legal reasoning that makes this opinion so great. It's how he made sure every fact was memorialized in this landmark opinion. The opinion is long, complex, with various legal tests applied both to the text of the disclaimer and the circumstances of its adoption. I want to focus though on one particular aspect of the opinion: the ruling that ID supporters were pursuing a religious objective. Here are some facts you don't hear about from the ID supporters:
More on the flip...
December 19, 2005
Xenophobia and Latino support are, for the most part, mutually exclusive. Bush and Rove's efforts to court Latino voters -- which has met with some success -- appears finished as their party's anti-brown-people isolationist wing gains supremacy.
Why did they do it? Among the possible reasons:
''If the Republicans come across like they are just bashing immigrants, there is a potential for a strong negative reaction,'' says Roberto Suro, of the Pew Hispanic Center, which conducts some of the most comprehensive nationwide polls of Hispanics.
According to a recent Pew Center poll, about 80 percent of Latinos believe immigrants help strengthen the U.S. economy while 14 percent say they are a burden. While there is some support for anti-immigration measures among U.S-born Latinos, it tends to vanish when Hispanic voters smell racist motivations, other polls show.
As the author of this piece notes, the only way to stop mass undocumented immigration is to reduce the income disparities between the United States and Latin America. The money spent on bolstering border enforcement is essentially money flushed down the toilet. But if that money was used to aid in economic development south of the border, traffic across the border would slow to an insignificant trickle.
You want proof, look to Costa Rica. One of the most developed and economically prosperous nations in Latin America, Costa Ricans are almost non-existent in this country (compared to Mexicans, Cubans, Nicaraguans, Salvadorans, Hondurans, Guatemalans, and Dominicans). In fact, Costa Rica is trying to figure out how to deal with undocumented immigrants living within its borders from the rest of Latin America.
But despite any backlash from Latino voters, we can't underestimate the power of the immigration issue. It's a very salient one. And if the GOP has mastered one thing -- it's the ability to use fear and hate to drive their supporters to the polls. Their Southern strategy and the gay-bashing initiatives bear witness to the effectiveness of those efforts.
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