Right Wing Nut House

“The rhetoric has changed but not the behavior, and the behavior has gotten worse in the sense that while they are pretending to reform things, they are still groveling in the trough.”
(Winslow T. Wheeler, CDI)

I swear that most Congresscritters missed their calling. Serving in Congress is swell I’m sure. But if this were a different world, we might see many of those ladies and gents in nightclubs plying their craft as magicians.

It’s the old sleight of hand trick. Replace one bunch of greedy, grasping, politicians from one party with a sneaky, conniving, yet equally greedy and grasping set from another party. Hard to tell the difference in the end. The result is the same; unaccountability and a lack of discipline in spending our tax dollars.

This is because despite running on a platform that included solemn promises to halve the number of earmarks included in appropriations bills, as well as reforming the way they were ordered to insure transparency and accountability, the Democrats were apparently struck a severe blow to the head, having suffered a massive memory loss as a result and are carrying on pretty much as before.

That “as before” refers to the way that Republicans purloined tens of billions of dollars from the Federal government via the earmark gravy train - something the Democrats had a gay old time bashing them over the head with in the lead up to the election last November. And rightly so. The practice of slipping a Congressman’s pet project anonymously as an addition to appropriations bills at the last moment - behind closed doors in conference or even after the bill was passed - with little or no chance for debate (not to mention little scrutiny about who exactly was going to benefit) was an out of control outrage, an affront to the principles of good government, and a significant contributing factor to the deficit.

So, of course, the Democrats just had to give it a try:

When the new Democratic majority in the House of Representatives passed one of its first spending bills, funding the Energy Department for the rest of 2007, it proudly boasted that the legislation contained no money earmarked for lawmakers’ pet projects and stressed that any prior congressional requests for such spending “shall have no legal effect.”

Within days, however, lawmakers including Senate Majority Leader Harry M. Reid (D-Nev.) began directly contacting the Energy Department. They sought to secure money for their favorite causes outside of the congressional appropriations process — a practice that lobbyists and appropriations insiders call “phonemarking.”…

Upon taking control of Congress after November’s midterm elections, Democrats vowed to try to halve the number of earmarks, and to require lawmakers to disclose their requests and to certify that the money they are requesting will not benefit them.

But the new majority is already skirting its own reforms.

It isn’t just the spectacle of rank hypocrisy that the Democrats are making of themselves. It is the supreme arrogance of power that sneeringly tells the rest of us to mind our own business and leave the lawmakers alone when they are planning to rob us blind:

Perhaps the biggest retreat from that pledge came this week, when House Appropriations Committee Chairman David R. Obey (D-Wis.) told fellow lawmakers that he intends to keep requests for earmarks out of pending spending bills, at least for now. Obey said the committee will deal with them at the end of the appropriations process in the closed-door meetings between House and Senate negotiators known as conference committees.

Democrats had complained bitterly in recent years that Republicans routinely slipped multimillion-dollar pet projects into spending bills at the end of the legislative process, preventing any chance for serious public scrutiny. Now Democrats are poised to do the same.

“I don’t give a damn if people criticize me or not,” Obey said.

Obey may have the safest seat in Christendom. He also may be one of the more arrogant SOB’s on the Hill. The combination of the two give the Congressman the confidence to give the rest of us the finger just for trying to hold he and his Democratic friends accountable for how they spend our money.

The Examiner shows how Obey’s “reforms” will work in practice:

The same day, House Appropriations Chairman David Obey, D-Wis., disclosed that earmarks will be inserted into bills only after they’ve been approved by the House and sent to conference committees with the Senate. Under this newly rigged process, there won’t be any of those pesky amendments against things like the Bridge to Nowhere. In fact, House members will only be voting on conference committee reports, not on the thousands of earmarks that will be inserted into the bills covered by those reports. In other words, after some tentative moves in the right direction earlier this year, Democrats are now putting the corrupt system disgraced lobbyist Jack Abramoff called the congressional “favor factory” back behind closed doors.

Obey sounds like he’s a little overworked and under appreciated here:

“I have to sign off on that stuff,” Obey said. “And I’m going to make damn sure that we’ve done everything we can do to make sure that they’re legitimate projects, so that you don’t get embarrassed by some idiot who is putting in money for a project that happens to benefit himself and his wife.”

Those words would carry a helluva lot more weight if you held you own party leader accountable:

Another key Democratic reform requires House members seeking earmarks to certify that neither they nor their spouses have any financial interest in the project.

House Speaker Nancy Pelosi (D-Calif.) did just that when she requested $25 million for a project to improve the waterfront in her home district of San Francisco. Her request did not note that her family owns interests in four buildings near the proposed Pier 35 project.

Brendan Daly, a spokesman for Pelosi, said that any suggestion of a conflict of interest is “ridiculous.” He said that Pelosi was passing along a spending request from the Port of San Francisco and that she would not benefit from it.

Nice try, Brendan. Did you forget the fact that the four buildings will almost certainly increase in value as a result of the improvements? Maybe we should ask how difficult it would be for the Speaker of the House to buttonhole some Port of San Francsico flunkie and get him to make the request in the first place? Of course, that kind of thing never happens, now does it?

The point is not to get rid of earmarks entirely. There are legitimate projects that for one reason or another, the Executive Branch refuses to fund. By having the power to override the objections of federal departments on spending matters, the Congress exercises a form of oversight that is both legal and, in rare cases, necessary.

But you don’t have to be a rocket scientist to figure out that 13,000 earmarks are a scandal. And the way they are approved is an invitation to corruption. Just ask Duke Cunningham. The California Congressman is spending 8 years in prison for using earmarks to personally enrich himself and his cronies. I wonder how long it will be before we start seeing the same kind of abuses by the Democrats that we got sick to death of under Republicans?

When the history of these times is written 100 years from now - that is, if the west is vouchsafed such a luxury as surviving that long - historians will view the role of the free press in the western world with a combination of confusion and awe. Confusion because they will look in vain for evidence that many in the media were actually working for the enemies of freedom, so often it seemed they played directly into their hands or seemed to do their bidding. And a feeling of awe that those professing to be so intelligent could act with such towering idiocy and irresponsibility:

The CIA has received secret presidential approval to mount a covert “black” operation to destabilize the Iranian government, current and former officials in the intelligence community tell the Blotter on ABCNews.com.

The sources, who spoke on the condition of anonymity because of the sensitive nature of the subject, say President Bush has signed a “nonlethal presidential finding” that puts into motion a CIA plan that reportedly includes a coordinated campaign of propaganda, disinformation and manipulation of Iran’s currency and international financial transactions.

Of course, the press is not disloyal - at least not according to their lights. But I can’t think of anything that ABC could have published that helps Iran more. Especially since it now appears that, as I have predicted many times (and despite what the hysterical left has been saying for two years about an “imminent” attack on Iran) the Administration has apparently abandoned the military option in favor of turning up the heat on the Iranian regime politically and financially.

Or, at least that was the plan. Enter ABC News and their feelings of entitlement to undermine US policy and all of a sudden, the military option may be back on the table. This begs the question of who or what faction in our intelligence agencies leaked this time? Pro-war advocates? Anti-intervention advocates? Some stray partisans who hate Bush? Some stray partisans doing the President’s bidding? Perhaps those involved in a turf war of some kind in our intelligence agencies?

Take your pick. One is as good as the other. It wouldn’t be the first time for any of those factions in the last 6 years to leak classified information. It’s just that this time, the leaking has arguably made the world a more dangerous place.

If there is one foreign policy issue that enjoys bi-partisan agreement in Washington it is that Iran must be prevented from developing nuclear weapons. Disagreements abound about how to prevent them from doing so. But liberals, conservatives, Republicans, Democrats, and everyone in between recognizes the threat posed to world peace by the fanatics in Iran and that it would be an unmitigated disaster for our interests in the region if they were successful in building a bomb.

I think that this CIA covert plan would have enjoyed broad support among the leadership of both parties on the Hill. It is reasonable in that it attacks Iran economically not to hurt the population but to hit the mullahs where it counts; in their secret bank accounts they are using to fund their weapons program:

Riedel says economic pressure on Iran may be the most effective tool available to the CIA, particularly in going after secret accounts used to fund the nuclear program.

“The kind of dealings that the Iranian Revolution Guards are going to do, in terms of purchasing nuclear and missile components, are likely to be extremely secret, and you’re going to have to work very, very hard to find them, and that’s exactly the kind of thing the CIA’s nonproliferation center and others would be expert at trying to look into,” Riedel said.

Are there risks that go with such a policy? Of course there are. There are risks with any policy we pursue against Iran including doing nothing. Or trying to strengthen regional actors like Saudi Arabia to counterbalance Iranian influence. Or bombing the holy hell out of them. If it is a risk free policy you seek, you won’t find it.

Vali Nasr of the Council on Foreign Relations explains the downside to the CIA’s leaked plan:

Still, some fear that even a nonlethal covert CIA program carries great risks.

“I think everybody in the region knows that there is a proxy war already afoot with the United States supporting anti-Iranian elements in the region as well as opposition groups within Iran,” said Vali Nasr, adjunct senior fellow for Mideast studies at the Council on Foreign Relations.

“And this covert action is now being escalated by the new U.S. directive, and that can very quickly lead to Iranian retaliation and a cycle of escalation can follow,” Nasr said.

Nasr posits the absolute worst case scenario including the “cycle of escalation” canard that is usually trotted out by opponents to any strong action taken by the US against a putative enemy. The advantage the professor has in this case is that we’ll never know because most of the plan is for all intents and purposes is dead. If we thought it was hard to ferret out the secret funding mechanisms for the Iranian bomb program before, how impossible do you think it’s going to be now that the Iranians are aware of what we intend to do?

ABC’s excuse will be that if they didn’t publish, someone else would have done so. Of this I have no doubt, although what that says about the press in general in this country is not flattering. The fault lies with the leakers in this case. And the fact that the Administration has done so little over the last 6 years to investigate and punish those who reveal some of the most important secrets in government only encourages further transgressions. When unelected bureaucrats take it upon themselves to destroy policies they disagree with either for political purposes or, as may be possible in this case, in order for another policy option to move to the top of the pile, trust between those elected to make policy and those charged with giving our leaders accurate information and intelligent options to implement that policy breaks down.

Anyone can see the dysfunction in our intelligence agencies, the pettiness, the partisanship, the casual disregard for the rule of law. Is there any plan or program that would never be leaked under these conditions?

Not unless the perpetrators are identified and either drummed out of the service or arrested, prosecuted, and jailed for violating their oaths of secrecy and the law.

If I could guarantee that this story won’t get any bigger, I wouldn’t take the time nor make the effort to analyze the many parts of it or try and place it in a context that is both realistic and logical.

In other words, the furious spin being given James B. Comey’s testimony before the Judiciary Committee by the usual suspects on the left, while leaving much to be desired with regards to the conclusions they reach about the way the NSA surveillance program was conducted and legally justified, nevertheless raises extremely troubling questions about the Bush Administration’s adherence to the law during the critical time frame of October, 2001 to March, 2004.

Did Bush violate the law by authorizing the NSA program? A federal judge has said so, although many respected and knowledgeable legal observers - not all of them Bush supporters - pointed out numerous deficiencies in that judge’s opinion that will most likely result in the decision being overturned. But if the President violated the law, is there any possible justification for it that would or should keep him from being impeached? It seems to me that the kinds of lawbreaking involved here are exactly what the Founders had in mind when they added the impeachment codicil to the Constitution; the executive branch overstepping its authority and carrying out actions expressly forbidden it by the Congress.

But do the obvious mitigating circumstances - 9/11 and its aftermath - mean anything in this context? Do we approach lawbreaking - if indeed laws were broken - with eyes blinded to the realities faced by our elected leaders? The left would dearly love to do so. For the rest of us, each must determine the answer to that question in their own heart, free of partisan taint or Bush hatred.

This is how important Robert Comey’s testimony is. It gives Congressional investigators a direct avenue to determining whether the impeachment and trial of President Bush is justified. And it does so because there is both a document trail to be unearthed and witnesses to be deposed who could possibly corroborate serious violations of the law.

For those of us not versed in the intricacies of the law, we are forced to rely on good old fashioned common sense and our innate belief in determining what is fair when examining both sides of the debate over what happened. For in truth, besides questions about the law, we must look at the people involved and try to determine their motivations, their state of mind when confronted with the unprecedented domestic threat in the aftermath of 9/11.

Comey’s testimony was, to put it mildly, a jaw dropper. He has been described as a staunch Republican and a straight shooter by some. However, there is a much different take on Comey - one that questions his close ties to Senator Chuck Schumer as well as personal animus he felt toward staffers in the Office of Vice President Cheney:

Comey came on board as DAG [Deputy Attorney General] at the beginning of December, 2003, and he had some unusual support for a Republican appointee–Senator Chuck Schumer was very much in his corner. So it was that Comey was pretty much brand new on the job at the time he decided to reverse what appeared to the Administration as settled policy on the NSA eavesdropping program–certainly a shocking and radical development in any Administration. But Comey had already taken actions that boded ill for the White House, and especially for the Office of the Vice President (OVP), with whom the transcript shows he was in serious, and probably personal, conflict.

Comey, when asked for names of his adversaries in the OVP, mentioned his disagreements with VP Dick Cheney and Cheney’s Legal Counsel, David Addington. Curiously, Comey failed to mention Scooter Libby–Cheney’s Chief of Staff, a prominent attorney in his own right, and a leading architect of policy at the OVP–even though it is known that Libby was also involved in these matters. It is scarcely credible to suppose that Comey had no dealings with Libby, nor that they were in disagreement over the NSA program. Perhaps Comey avoided mention of Libby because he wished to avoid the appearance of personal animus. After all, it is well known that Libby had beaten Comey in a contentious case in the Southern District of New York a few years earlier, and one of Comey’s first acts as DAG–before the NSA program came up for recertification–was to talk Ashcroft into recusing himself from the Plame affair. Comey then proceeded to appoint his former SDNY pal Patrick Fitzgerald to go after Libby, even expanding Fitzgerald’s purview to “process violations,” even though Comey knew that Armitage was the “leaker” and that the supposed “leak” violated no known law.

Not quite the “white knight” he has been made out to be by some on the left. Indeed, Comey’s testimony, taken in its entirety, raises questions about his motivations. However, there is a glaring deficiency in the above critique of Comey that must be highlighted if we are to understand why Comey’s testimony is so important: The arrival on the scene in October, 2003 of Jack Goldsmith as the new head of the Office of Legal Counsel.

The Office of Legal Counsel at the Department of Justice is the fulcrum for this entire controversy. The OLC gives opinions to the Attorney General about the legality and constitutionality of proposals like the NSA intercept program. It should be noted that it is extremely rare for the AG to go against the recommendations of the OLC.

Goldsmith took over following the resignation in May of 2002 of Jay Bybee, author of the so-called “Bybee Memo” or “Torture Memo” that some believe was written at the behest of current AG Alberto Gonzalez and used legal justifications for ignoring the Geneva accords promulgated by Assistant AG John Yoo. It was on Bybee’s watch that the NSA intercept program was first vetted and approved by the Department of Justice. That particular OLC opinion has not been leaked or released so we don’t know the original justification for the program. We do know that President Bush signed an executive order that mandated continuous monitoring of the NSA intercept program by DOJ to the point that the Department had to re-certify the program’s legality every 45 days.

The gap between Bybee’s resignation in May 2002 and Goldsmith’s confirmation in October, 2003 is hugely significant. During that time, the DOJ signed off on the legality of the NSA program numerous times using as legal justification the original OLC opinion.

Enter Goldsmith and within 6 months, he carried out a review of the legal basis for both the “enhanced interrogation techniques” and the NSA intercept program. In both instances, he found the legal justifications wanting. In December of 2003, he informed the Pentagon that they could no longer use the Bybee Memo as a legal basis for carrying out torture. And then he turned his attention to the NSA matter.

By early March 2004, OLC apparently concluded that the NSA electronic surveillance program could not be defended on the basis of OLC’s prior legal opinions, and had convinced the Attorney General and DAG that DOJ had to refuse to sign off on the program — i.e., they were compelled to inform the President that the program violated FISA and could not legally be continued in its present form. Ashcroft and Comey agreed — or at the very least, they deferred to Goldsmith’s legal judgment, which is what happens in 99% of all cases once OLC speaks.

It is extremely rare for OLC to reverse its own opinions within an Administration. And that unusual course would be especially disfavored in this case, because all the relevant DOJ officials — e.g., Ashcroft, Comey, and Goldsmith — undoubtedly understood that repudiation of this particular OLC advice would mean shutting down the very program that the President had described as the most important intelligence program in the war on terror. Moreover, the theory that OLC was repudiating appears to have been one to which the Vice President and his counsel were deeply committed, and one that appears to have formed the basis for the Administration’s decision to disobey other important statutory constraints. Obviously, then, there were profound disincentives to such repudiation.

In other words, Goldsmith - another “staunch Republican” if that designation has any meaning in this context - overturned Bybee’s original opinion on the program’s legality and in one fell swoop, made potential criminals out of everyone who knew anything about it, including the President.

What happened next is confusing. Here’s Bush supporter John Hinderaker’s take:

Comey explained that it was immediately before Ashcroft was stricken with pancreatitis that he and Ashcroft came to the conclusion that they could not certify the legality of the NSA program, given the conclusions of the Department’s recent review. Comey described his conversation with Ashcroft, in which that conclusion was reached, and continued:

The Attorney General was taken that very afternoon to George Washington Hospital, where he went into intensive care and remained there for over a week. And I became the acting attorney general.

And over the next week–particularly the following week, on Tuesday–we communicated to the relevant parties at the White House and elsewhere our decision that as acting attorney general I would not certify the program as to its legality and explained our reasoning in detail….

That was Tuesday that we communicated that. The next day was Wednesday, March the 10th, the night of the hospital incident.

This strikes me as the information that is vital to understand what likely happened. Attorney General John Ashcroft had certified, over and over, that the NSA program was legal. Suddenly, Ashcroft was taken ill. The next thing that happened, according to Comey, was that Comey notified the White House that he would not sign the certification that Ashcroft had signed some 20 times. Comey did not say–amazingly, no one asked him–whether he ever told the White House that Ashcroft had agreed with this conclusion on the very day when he was taken to the hospital.

So it is hardly surprising if, confronted with sudden intransigence from a brand-new, acting attorney general, Alberto Gonzales and Andy Card thought that the problem lay with Comey’s staging a sort of palace coup. It may well have been reasonable for them to go to see Ashcroft to get the same certification they had gotten many times before.

When they got to the hospital, they found that Ashcroft seconded Comey’s legal concerns, based on the review that had just been completed. That caused some confusion, no doubt, but it led to the White House meeting between Comey and President Bush, followed by a meeting between Bush and FBI Director Robert Mueller. The upshot of those meetings was that Bush, apprised of the results of DOJ’s legal review, told Comey to do what he thought was right.

Most of the above sounds reasonable and explains much. Comey was mistakenly seen as going against the wishes of Ashcroft who had signed off on the legality of the program nearly 45 times during the previous 2 1/2 years. And because of Ashcroft’s illness, Andy Card and the Bush Administration was unable to discover that Ashcroft himself agreed with Goldsmith’s recommendation that the original OLC justification for the program was invalid and that it would have to be altered in order for it to continue.

Of course, this doesn’t solve the problem that if the original OLC memo was voided, did the President, the phone companies, the NSA, and anyone else involved break the law in carrying out the NSA intercept program?

Left-leaning Marty Lederman lists the consequences:

2. Repudiation of the theory would mean that the NSA and phone companies had been committing crimes for more than two years.

3. It meant DOJ doing a remarkable about-face and acknowledging profound error.

4. It was a rejection of the principal constitutional theory at the heart of the Vice President’s program for executive aggrandizement (and was presumably the basis for several other practices and policies as well) — and so it could be expected to be met with the considerable wrath of Cheney/Addington, to the point where one of the messengers of the bad news, Associate DAG (and former OLC Deputy) Patrick Philbin, had an expected promotion blocked (according to Comey’s testimony). Newsweek: “It is almost unheard-of for an administration to overturn its own OLC opinions. Addington was beside himself [when Goldsmith repudiated the Yoo DoD Torture memo in late 2003]. Later, in frequent face-to-face confrontations, he attacked Goldsmith for changing the rules in the middle of the game and putting brave men at risk, according to three former government officials, who declined to speak on the record given the sensitivity of the subject.”

5. The President demonstrated his profound commitment to the program by personally calling the Attorney General’s wife and urging her to allow the White House Counsel and Chief of Staff to cajole the AG in intensive care, where she had not been allowing visitors.

and

6. The White House told the DOJ officials that it was going to go forward with the program anyway, even after DOJ had opined that it was unlawful.

And yet not only would Ashcroft, et al., not budge — they were prepared to resign their offices if the President allowed this program of vital importance to go forward in the teeth of their legal objections.

And there you have it. The President and his people squaring off with their own Justice Department over a program that the most important constitutional expert in government had informed the White House that it was his opinion that they had been breaking the law for more than 2 years in authorizing the NSA to spy on Americans. And apparently most of the entire upper management at DOJ was prepared to resign rather than work for a government that violated the law.

What happened next is not in dispute. Once it was clear that Ashcroft backed Goldsmith, the White House acceded to changes in the program as recommended by DOJ. A new OLC memo was prepared that gave a legal framework for the program - that is, using the Authorization to Use Military Force (AUMF) as a basis for Congressional approval of the intercept program - and the Justice Department went back to re-certifying the program’s legality every 45 days.

Some hysterics believe that the fact the program was still running in the two weeks between the time that DOJ repudiated the original justification for the program and when the new OLC memo took effect, that the Administration was not only carrying out warrantless surveillance but also didn’t have any legal justification from DOJ for doing so. Hinderaker makes a valid point:

Senator Schumer made a prolonged attempt to get Comey to say that it was illegal for the administration to continue, briefly, the NSA program without DOJ certification of legality. Democrats and others on the left will undoubtedly claim that they now have proof of the program’s “illegality.” But Comey refused to go along with this theory. He pointed out that DOJ certification was not a legal requirement. Rather, the DOJ process was part of the procedure that President Bush established by executive order. Thus, it was perfectly legal for the program to continue in the brief absence of DOJ certification, pursuant to the order of that same executive.

One other point to consider: What were the parameters of the NSA intercept program prior to that second memo being issued by OLC? And given the fact that the DOJ rarely reverses itself in matters such as this, can we assume that the legal justification - flawed according to Goldsmith, Comey, and Ashcroft - gave license to the Administration to go far beyond the program that was finally exposed in the New York Times in December of 2005?

We just don’t know. Only a Congressional investigation would be able to answer those questions, among others. And you and I both know (and any honest, non partisan lefty) that such hearings would turn into a partisan witch hunt designed not to get at the truth of the matter but rather form the basis for impeaching the President of the United States.

The efforts by the Administration to have Congress approve the NSA program failed last year largely because the current legal justification - the AUMF resolution passed by Congress - leaves most on the Hill unsatisfied and uncomfortable. They make the valid point that never in their wildest imaginings did they think their vote for going to war in Afghanistan mean that they were signing off on a domestic intelligence program of questionable legality.

Is there a case to be made for impeachment? Or is this simply one more partisan dust-up with the President’s enemies using a controversial program to try and undermine the war effort and perhaps even drive Bush from office?

It would be nice to believe that the Congressional hearings that are sure to come in the aftermath of the Comey testimony could answer that question. Unfortunately, the poisonous partisan atmosphere on the Hill gives me absolutely zero confidence that any such hearings would prove much beyond the fact that Democrats hate the President and will do anything to bring him down while most Republicans will defend Bush regardless of what evidence emerges that would call into question his fitness for office.

In the meantime, al-Qaeda and their offshoots continue to plot and plan. And the terrorists that are almost surely here (according to Bush critic George Tenet), get something of a breather while Congress and America itself tears at each other in open partisan warfare.

I wonder what the terrorists think of all this?

UPDATE

Orrin Kerr gives us some intelligence speculation on what may have been in that very first OLC memo authorizing the NSA intercept program:

As Marty notes, it seems likely that John Yoo had written the initial 2001 memo under OLC head Jay Bybee approving the NSA surveillance program entirely on Article II grounds. Presumably it said that the President as Commander-in-Chief can authorize whatever monitoring the President wants to authorize to protect the county. When Goldsmith took over at OLC, however, he probably repudiated Yoo’s Article II theory and instead tried to justify the program under the post 9/11 Authorization to Use Military Force (AUMF). That introduced a tailoring requirement — specifically, a need for the monitoring to be directed “against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks” of 9/11. (There might be a similar tailoring requirement under the Fourth Amendment depending on how you read the cases and how the technology works.)

What difference would that make? Well, we’re guessing, of course, but it may be that the restrictions on the program that the Bush Administration has emphasized — monitoring only with cause, when one person is believed to be outside the U.S., etc. — were the requirements that Comey and Goldsmith were insisting on at the hospital that night when Gonzales and Card came by.

If correct (and Yoo is known as a huge booster of sweeping executive powers in wartime using Article II as justification) then impeachment devolves back to a political question - unless the Dems can get the Supreme Court to rule that the original justification for the program under Article II itself is unconstitutional.

Fascinating question: Can a President act in a constitutional manner yet still break the law? Could the NSA program be illegal under statute but the President ordering it using his powers under Article II be acting constitutionally?

Can ‘o worms anyone?

UPDATE II

Tom McGuire catches the WaPo editors engaging in some gross hypberbole:

Let’s see - we are told that Gonzalez and Card “tried to coerce a man in intensive care”. Is that based on anything at all? Comey certainly did not mention any threats in describing their contact with Ashcroft, nor did he mention any attempted coercion of himself.

We are also told that Card and Gonzalez “were willing to defy the conclusions of the nation’s chief law enforcement officer and pursue the surveillance without Justice’s authorization”, but eventually the President backed down. Come again? The program did in fact proceed for several weeks without DoJ approval while changes were made. Nothing in Comey’s story tells us that Card and Gonzalez were unwilling to contemplate the changes sought by the DoJ; the problem seems to have been one of timing.

In fact, both Lederman and Lambchop use exactly the same kind of exaggeration to breathlessly describe the hospital scene with Ashcroft on his sick bed and Card thrusting a pen in his hands telling him he’s got to sign off on the program’s legality while the AG is near death’s door. (Well, that’s an exaggeration too. But what’s good for the goose…)

The Wrong Stuff: The Extraordinary Saga of Randy “Duke” Cunningham, The Most Corrupt Congressman Ever Caught: A Review

Disclaimer: One of the authors of this book, Jerry Kammer, is an old friend of the family. It was he who sent me a free copy of the book to review.

This articile originally appears in The American Thinker

It is “the biggest case of Congressional corruption ever documented.” Shocking in its scope and in the brazenness of its conspirators, the Duke Cunningham bribery caper is a tale not only of individual malfeasance that would make a grifter cry but also of a culture in Washington, D.C. that threatens the integrity of government itself.

The saga of Duke Cunningham from a popular, athletically inclined small town boy to war hero, to Congressman, to convicted felon is told in a new book by the Pulitzer Prize winning reporters who broke the story. Marcus Stern, Jerry Kammer, and George E. Condon, Jr. of Copely News Service and Deal Calbreath of the San Diego Union Tribune shared the award for National Reporting in 2006 with James Risen and Eric Lichtblau of The New York Times who won for exposing the top secret NSA program to spy on terrorists.

What Stern et. al. uncovered in their investigation of Cunningham’s criminality went far beyond the rather seedy yet spectacular corruption of one Congressman. The authors have written a brief against the budget device that led Cunningham (and no doubt others) down a primrose path toward temptation and ultimately, a moral surrender to turpitude; a device that threatens the foundations of trust in our elected officials; a belief that they are acting in the interests of their constituents and not to line their pockets with gifts and cash from the legions of lobbyists whose only job is to wring as much of our tax dollars as is humanly possible from the government and deposit it in the bank accounts of their clients (keeping a healthy portion of pork for themselves).

It’s earmarks, of course. And if you can come away after reading this book and not be shaking in anger at the unadulterated and transparent corruption that earmarks have fostered, then you don’t pay taxes or simply don’t care.

In truth, there is nothing illegal about earmarks and, as the authors point out in a brilliant chapter on the practice, they can be used for good at times. As an example of earmarks being used for a beneficial purpose, a lone Texas Congressman steered billions of dollars to the Afghan resistance fighting Soviet occupation in the 1980’s. Said Representative Charlie Wilson (whose story was told in the hugely entertaining Charlie Wilson’s War) “There are three branches of the government and you have to explain that to the executive branch every once and a while and earmarks are the best way to do that.” Wilson believed that the Afghan resistance would never have triumphed without earmarks because the CIA would not have spent the money effectively.

But the authors make the case it is not necessarily what earmarks are for that is the problem. After all, one man’s earmark is another man’s necessary expenditure. What may look like a pork road project to one person living far away from where construction would take place could in fact be a “quality of life” issue to someone directly affected by the increased traffic flow and safer driving that a particular earmarked project would bring.

Rather it is the way that earmarks are included in the budget process that cries out for radical reform. Earmarks are usually dropped into spending bills anonymously and are rarely debated on the floor of the House. Or they are added during mark-up sessions or even during House-Senate conferences. Sometimes, they are included in the Committee’s report on the final spending bill and not even passed on to the President when he signs it.

Earmarks were a problem going back in the 1980’s. For example, the authors point to the 1987 Transportation bill vetoed by an astonished Ronald Reagan who counted no less than 121 earmarks in the bill. Both the House and Senate - Democrats and Republicans - shrugged off the Gipper’s disapproval and passed the bill over the President’s veto overwhelmingly. In 1991, the number of earmarks in the pork laden Transportation bill had grown to 538; 1850 by 1998; and by 2005 the total number of earmarks reached a mind numbing 6,373 costing an additional $24.2 billion. (Source: Taxpayers for Common Sense).

Newt Gingrich and the Republicans saw the earmark as a ticket to a permanent majority. The Republicans would place newer or more vulnerable members on one of the Appropriations Committees which would give them access to the lobbyists who, in exchange for an earmark, would fill their campaign coffers with cash as well as shower the member with gifts, junkets, and other goodies.

It is a sordid, depressing, but perfectly legal practice. But to a man like Duke Cunningham, it was a goldmine, a path to the riches and lifestyle he had craved since a boy in a small Missouri town where he grew up. Graduating from the University of Missouri, Cunningham got married to his college sweetheart and took a job in Hinsdale, Illinois as an assistant coach of the swim team. At that time, the Hinsdale swim team was coached by the legendary Doc Watson who won 12 straight state swimming titles and sent several of his athletes to the Olympics. Cunningham was later to brag that he was responsible for much of the team’s success - a statement belied by both former athletes he coached as well as Doc Watson himself.

But that was Duke. And after losing a close friend in Viet Nam, Cunningham decided to enlist in the Navy and fly jets. Proving himself a dedicated aviator, Cunningham’s diligence was rewarded on one spectacular day in May of 1972. On May 10th, in a dogfight immortalized by the History Channel’s “Aces of Vietnam” documentary, Cunningham engaged and shot down 3 enemy MIG’s. Coupled with the two he shot down earlier in the year, that made Lt. Randy Cunningham an air ace - the only naval ace of the war.

But there were troubling indications that Duke Cunningham had a moral weakness when it came to money even back then. Prior to receiving the Navy Cross for the action that made him an ace, Cunningham and his backseat man Willie Driscoll informed their commanding officer that they were going to refuse the most prestigious decoration the Navy awards and “hold out for the Medal of Honor.”

Apparently, Duke had been promised by a Washington bureaucrat that he would receive the Medal of Honor and felt he deserved it - and the $100 a month that came with it. And even though his commanding officer disabused Duke and Driscoll of the notion that they were going to be awarded the MOH, to many who became aware of the story, this early indication of Cunningham’s moral blindness was telling indeed.

Being feted after the war as a hero and role model, Cunningham also saw how the rich lived and craved that lifestyle until it became an obsession. Barely elected to Congress in 1990, Cunningham set out to get the most out of his position of trust.

The story of his bribery is told in a spare, no nonsense manner by the authors. It traces Cunningham’s relationships with his co-conspirators Mitchell Wade, Brent Wilkes, and Thomas Kontogiannis and how they milked the government for federal contracts using earmarks - often in the “black budget” of classified projects - while Cunningham was paid for his services in cash.

The most unbelievable piece of evidence against Cunningham was the so called “bribery menu” where the Congressman actually wrote down on a piece of Congressional stationary how much he expected in kickbacks for each kind of earmark he successfully pushed through Congress. The menu showed that Cunningham wanted a $140,000 yacht for the first $16 million in government contracts. Thereafter, he expected $50,000 in bribes for each additional million in contracts.

Missing this piece of evidence the first time around, prosecutors got a tip about the document and deciphered it. The Congressman, who had been proclaiming his innocence, buckled at that point and agreed to plead guilty. He is currently serving an 8 year sentence - the longest prison sentence ever given to a Congressman for bribery.

But the question that the authors never quite answer and seem to dangle in front of the readers, tempting them perhaps to make their own judgement, goes to the heart of the debate over earmarks. Did the earmarks themselves corrupt Cunningham or did they simply act as a catalyst for his already warped sense of entitlement?

If it is the latter, then this is a story of one more venal politician caught with his hands in the cookie jar. But what if it’s the former? What if earmarks themselves (and the way they are currently being used and abused) is at bottom, an overwhelming temptation to members and literally irresistible to all but the most incorruptible.

There are now 35,000 lobbyists in Washington, D.C. whose ability to deliver tens of thousands of dollars to Congressional campaigns means that members must pay obeisance to them or lose out on the gravy train. It is a broken system that no one can figure out how to fix. Some see government financed elections as the answer - unsatisfying because most experts agree that it would make races even less competitive than they are now. Others see unlimited contributions with full and immediate disclosure on the internet. This would be another invitation to permanent incumbency.

The authors sensibly do not offer any grandiose solutions to this dilemma. They are, after all, reporters not policy wonks. All they’ve done is uncovered the facts and told a story - a maddening, frustrating, sad, and yet riveting story of one man’s fall from the heights of power and privilege to the absolute lowest depths of prison and disgrace. It is a compelling human drama told in an entertaining manner. And in a way, like all good journalism, it is a call to action - to address the problem of earmarks before the corruption they engender destroys what credibility our lawmakers and government have left.

Addendum: I interviewed Jerry Kammer, one of the authors of the book, on my radio show. The podcast is available here.

I got an earful from some of my friends on the left for taking Representative John Murtha and the Democrats to task for their moral cowardice in not directly trying to defund the war but rather slink in the shadows and attempt to sabotage deployments and readiness. Some of the emails I got tried to explain that Murtha’s strategy of strangling the Defense Department by mandating shorter tours and longer periods at home between deployments as well as going so far as to require troops to train with all their equipment (despite the fact that the troop’s equipment is either already in theater or is shipped to Iraq ahead of time) represents a “realistic” approach to the problem of defunding the war.

They point out that an up or down vote wouldn’t pass because Democrats don’t want to be saddled with the inevitable Republican charge of undermining the troops in a time of war. One commenter went so far as to explain that the American people wouldn’t understand the “nuances” of defunding the war so Murtha’s “brilliant” plan not only accomplished the task of ending the war but also left Democrats blameless!

Well, I’m glad we cleared up those points about moral cowardice, aren’t you?

Today, I was gratified to see that the Washington Post mirrors my thoughts on Murtha and his “slow bleed the troops” plan:

REP. JOHN MURTHA (D-Pa.) has a message for anyone who spent the week following the House of Representatives’ marathon debate on Iraq: You’ve been distracted by a sideshow. “We have to be careful that people don’t think this is the vote,” the 74-year-old congressman said of the House’s 246-182 decision in favor of a resolution disapproving of President Bush’s troop surge. “The real vote will come on the legislation we’re putting together.” That would be Mr. Murtha’s plan to “stop the surge” and “force a redeployment” of U.S. forces from Iraq while ducking the responsibility that should come with such a radical step…

Mr. Murtha has a different idea. He would stop the surge by crudely hamstringing the ability of military commanders to deploy troops. In an interview carried Thursday by the Web site MoveCongress.org, Mr. Murtha said he would attach language to a war funding bill that would prohibit the redeployment of units that have been at home for less than a year, stop the extension of tours beyond 12 months, and prohibit units from shipping out if they do not train with all of their equipment. His aim, he made clear, is not to improve readiness but to “stop the surge.” So why not straightforwardly strip the money out of the appropriations bill — an action Congress is clearly empowered to take — rather than try to micromanage the Army in a way that may be unconstitutional? Because, Mr. Murtha said, it will deflect accusations that he is trying to do what he is trying to do. “What we are saying will be very hard to find fault with,” he said.

Is Murtha in complete control of his faculties? This brazen admission of political and moral turpitude points up how truly cynical the Pennsylvania Congressman and his partners in this calumnious plan have become. Not only that, Murtha is also apparently woefully ignorant of what is going on in Iraq and some of his statements call into question whether the 74 year old is mentally sharp enough to occupy a position of leadership in the Democratic party:

Mr. Murtha’s cynicism is matched by an alarming ignorance about conditions in Iraq. He continues to insist that Iraq “would be more stable with us out of there,” in spite of the consensus of U.S. intelligence agencies that early withdrawal would produce “massive civilian casualties.” He says he wants to force the administration to “bulldoze” the Abu Ghraib prison, even though it was emptied of prisoners and turned over to the Iraqi government last year. He wants to “get our troops out of the Green Zone” because “they are living in Saddam Hussein’s palace”; could he be unaware that the zone’s primary occupants are the Iraqi government and the U.S. Embassy?

It would be nice to believe that Mr. Murtha does not represent the mainstream of the Democratic Party or the thinking of its leadership. Yet when asked about Mr. Murtha’s remarks Thursday, House Speaker Nancy Pelosi (D-Calif.) offered her support. Does Ms. Pelosi really believe that the debate she orchestrated this week was not “the real vote”? If the answer is yes, she is maneuvering her party in a way that can only do it harm.

Couple these bizarre statements with Murtha’s weird contention that we should redeploy the troops in Iraq to Okinawa and a troubling picture is emerging of a man who may not be as sharp as he was a decade ago when he was known rightly as a strong proponent of military preparedness and a champion of veterans benefits.

But the Democrats need Murtha for those very reasons - even if his mental acuity is not as it once was. That’s because there’s no one else in their caucus with the national security credentials to lead the retreat from Iraq. As the public face for surrender to the terrorists, the Democrats need Murtha as a front man to reassure the public that running away and leaving the people in Iraq - especially the Sunnis - to the tender mercies of the death squads, criminals, thugs, kidnappers, beheaders, and al-Qaeda terrorists who would be unencumbered in carrying out their massacres isn’t solely the product of left wing loons. In effect, Murtha mainstreams defeat and is therefore necessary to the Democrat’s plan to leave Iraq before the Iraqi government is ready to stand on its own.

Yes, it’s a low blow to call into question Murtha’s mental state. But considering the stakes and considering the statements he’s made above as well as his appearances on Meet the Press and other talk shows which have shown a sometimes confused and incoherent man, I believe it’s a painful but legitimate question to ask. I say painful because I always liked and admired Mr. Murtha. At a time when precious few Democrats were standing up for Ronald Reagan’s defense build up, he was a tireless proponent of strengthening our national defense while the rest of his caucus stood four square against increasing defense spending.

That was then. This is now. And Murtha, for whatever reason, has started down a road that I believe is a gigantic mistake. And the means by which he seeks to achieve his goal is so underhanded, so morally reprehensible that it does a huge disservice to his past standing as a passionate advocate for American security.

I sincerely hope the Republicans can torpedo this plan before it can be implemented. And I hope that Murtha and the Democrats can be convinced to schedule an up or down vote to defund the war. Win or lose, at least that would be a principled way to achieve their aims rather than sneaking around in the dead of night, stabbing the military in the back.

UPDATE:

Ed Morrissey:

Has John Murtha ever been anything more than incoherent on Iraq? He talks loudly but says next to nothing other than reiterate the need to declare defeat and bug out of Iraq. He can’t even get his facts straight despite having spent the better part of two years making himself the leading Democratic voice on the war. Even the Washington Post can’t help but notice that this Emperor has no clothes.

It’s going to be a long two years.

Got that right, dog.

Dan Riehl:

If the Washington Post is willing to call BS on the Democrats in the House, it should be heeded as a strong warning. This will be worse than the way they McGovern-ed themselves in ‘68. At least then they took a principled stand. What they are about today is far from that. Ultimately, they could easily be exposed for the shallow, power happy mob that they are.

Agreed - if the Republicans have the balls to call them out on their cowardice.

A. Jacksonian (Founder and sole member of the Jacksonian party) has some thoughts on Murtha circa 1994.

UPDATE: 2/18

Britt Hume of Fox News notices the same thing I did about Murtha’s diminished capacity:

HUME: That sound bite from John Murtha suggests that it’s time a few things be said about him. Even the “Washington Post” noted he didn’t seem particularly well informed about what’s going on over there, to say the least. Look, this man has tremendous cachet among House Democrats, but he is not — this guy is long past the day when he had anything but the foggiest awareness of what the heck is going on in the world.

Allah has the video.

Two election workers in Ohio’s most populous county were convicted of tampering with votes prior to a recount of the ballots after the 2004 election:

Two election workers in the state’s most populous county were convicted Wednesday of illegally rigging the 2004 presidential election recount so they could avoid a more thorough review of the votes.

A third employee who had been charged was acquitted on all counts.

Jacqueline Maiden, the elections’ coordinator who was the board’s third-highest ranking employee when she was indicted last March, and ballot manager Kathleen Dreamer each were convicted of a felony count of negligent misconduct of an elections employee.

Maiden and Dreamer also were convicted of one misdemeanor count each of failure of elections employees to perform their duty. Both were acquitted of five other charges.

Rosie Grier, assistant manager of the Cuyahoga County Elections Board’s ballot department, was acquitted of all seven counts of various election misconduct or interference charges.

Here is proof positive that the forces of darkness were attempting to subvert the democratic process and hand the election to evil George Bush, right?

Well…not exactly.

You see, Cuyahoga County is about 70% Democratic. And the poll workers were hired by by the county elections board. Although the board is made up of two Democrats and two Republicans, I would hazard a guess (the article doesn’t, of course) that these convicted poll manipulators were Democrats. In fact, given the way patronage jobs work in most parts of the country - Democratic and Republican - it would be safe to say that these were Democratic party activists, rewarded with a nice plum of a job for past service.

What exactly were they trying to accomplish? Kerry got 67% of the county vote in 2004 and a few votes tossed his way wouldn’t have made any difference in the long run.

It appears that the workers were caught in something of a bind; some dufus laid out procedures for handling the recount without examining what the law said about it:

Grier, the worker who was acquitted, was the only defendant who commented following the verdicts.

“It has all been very stressful,” said Grier, 54. “Yes, I’m very relieved. But, none of us should have been in this courtroom today. These charges should not have been brought against any of us.”

Defense lawyer Roger Synenberg said in his closing argument that the 2004 presidential election was the most publicly observed ever in Cuyahoga County and the workers were simply following procedures as they understood them.

The county was already under fire for what happened on election day in Cleveland. Extraordinarily long lines were found in black precincts due to a lack of foresight by county officials in ordering enough voting machines. Also, some precincts failed to open on time because the county failed to staff them with the appropriate personnel. There were also a number of problems with the machines that did show up and there were long delays in either replacing or repairing them.

In short, Cuyahoga County’s managing of their own election was one gigantic cluserf**k. But don’t tell the conspiracy theorists that. Their heads might explode. You see, the conspiracy mongers have laid all of these problems at the doorstep of former Secretary of State (and co-Chair of the Bush campaign in Ohio) Kenneth Blackwell.

Blackwell’s administration of the election was marked by incompetence and, at times, a suspiciously partisan bent. However, many of the problems the conspiracy theorists try and tar him with are actually problems created by local election officials. The fact is that elections in this country are a disgrace; amateur hour for political hacks of both parties. It is too easy to fiddle with the results, too difficult for voters to register or understand procedures, and the government is too lazy to address the problem.

To try and single out one party or another for disapprobation for the way they handle elections locally or state wide is ridiculous. This is a national problem that cuts across party lines and regions.

This case highlights that fact. My purpose in bringing it to your attention is not to savage the Dems but to show that problems in Ohio - a flashpoint for the left in their conspiracy-addled brains - had as much to do with incompetence and ignorance as it did with some hidden agenda by Diebold or the machinations of the evil Republicans.

The question isn’t whether there is a problem with the way Republicans run elections or the way that Democrats run elections but in the way that elections are run in general. The sooner we come to agreement on that singular conclusion, the quicker we can address the problems associated with the most precious freedom we have; the right to choose our leaders.

UPDATE AND CLARIFICATION

I have changed the headline of this article from “Dem Election Workers…” to simply “Election Workers…” because I cannot find concrete evidence that any of the indicted workers were in fact members of the Democratic party. Given that the county is 70% Democratic, it would stand to reason that a plum job at the Board of Elections would probably go to a Democrat.

Any way you look at it, this appears to be either a case of the staff following stupid procedures that didn’t take into account what the law said about handling recounts or, just as likely, pure bureaucratic laziness. If discrepancies had been found, it would have been tons of more work for the staff - reason enough to fudge the results of a hand recount by picking out precincts where there was an exact match with the tally.

UPDATE II

Reader David Singh tracked down the political affiliations of the BOE workers:

David Singh wrote:
I looked up the voter registration records for the three election workers in
Cleveland who were on trial. I expected to see three registered democrats as
you surmised. Luckily, all three had names unique in the Ohio voter reg.
database @ publicdata.com.

Maiden — Democrat
Dreamer — Republican
Grier — unaffiliated

George Bush will go before the American people tonight and perform one of the only Constitutionally mandated duties of a President; he must “from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient;” (Article II, Section 3).

It is not necessary that he give this speech before a joint session of Congress. Our first two Presidents felt it desirable to do so but from the time of the Jefferson Administration through President William Howard Taft’s final message in 1912, the “State of the Union” was an often lengthy report to Congress full of wish lists for various departments and boring summaries of the latest wars to kick Indians off their land. Woodrow Wilson invented the SOTU as a modern presidential dog and pony show, believing that the presidency was “dynamic, alive, and personal.”

Even modern Presidents have sometimes not bothered to deliver the SOTU in public and instead, simply handed one into Congress like a kid handing his homework. Jimmy Carter was the last President to forgo the pleasure of appearing before Congress. His final SOTU in 1981 was hand delivered to Congress and judging by its length, they may have had to use a crane to get the damn thing to the Speaker’s office. Reading it through, one is struck by the blindness, the moral cowardice, and the denial of reality that oozes from every page. Even after the whupping the Gipper gave him, Carter could never acknowledge either his own mistakes or that his worldview was warped, stupid and naive.

State of the Union speeches have since become grand civic theater - a cross between a classic melodrama when a President points to the American hero of the day in the gallery and low, bawdy house comedy as the reactions of the opposition party become as much a part of the speech as the words uttered by the President.

But there was a time when the State of the Union speech took on enormous drama and in a very real way inspired millions.

Ronald Reagan’s 1982 speech was his first SOTU. He was at the height of his powers, holding the Congress and the nation spellbound with soaring rhetoric and hardheaded assessments of both our domestic and foreign problems:

But from this podium, Winston Churchill asked the free world to stand together against the onslaught of aggression. Franklin Delano Roosevelt spoke of a day of infamy and summoned a nation to arms. Douglas MacArthur made an unforgettable farewell to a country he loved and served so well. Dwight Eisenhower reminded us that peace was purchased only at the price of strength. And John F. Kennedy spoke of the burden and glory that is freedom.

When I visited this Chamber last year as a newcomer to Washington, critical of past policies which I believed had failed, I proposed a new spirit of partnership between this Congress and this administration and between Washington and our State and local governments. In forging this new partnership for America, we could achieve the oldest hopes of our Republic—prosperity for our nation, peace for the world, and the blessings of individual liberty for our children and, someday, for all of humanity.

It’s my duty to report to you tonight on the progress that we have made in our relations with other nations, on the foundation we’ve carefully laid for our economic recovery, and finally, on a bold and spirited initiative that I believe can change the face of American government and make it again the servant of the people.

Seldom have the stakes been higher for America. What we do and say here will make all the difference to autoworkers in Detroit, lumberjacks in the Northwest, steelworkers in Steubenville who are in the unemployment lines; to black teenagers in Newark and Chicago; to hard-pressed farmers and small businessmen; and to millions of everyday Americans who harbor the simple wish of a safe and financially secure future for their children. To understand the state of the Union, we must look not only at where we are and where we’re going but where we’ve been.

After detailing the dire straits he found the Republic upon taking office, Reagan ticked off a few of the measures he had taken to remedy the situation. It is important to remember that the recession at that time was really beginning to bite as Fed Chairman Paul Volker put the screws to inflation by jacking up interest rates. And yet Reagan insisted on staying the course with his economic plan, convinced in the end that it would work.

Of course it did - mostly. The deficit soared when Reagan misjudged the Democratic Congress. He thought they would be forced to cut entitlements and other non defense spending in order to avoid all that massive red ink. He was wrong there. But if there is one thing all Americans can be grateful to Reagan for is that he let Volker wring inflation out of the economy. The medicine was bitter but absolutely necessary. It was a courageous choice, one that liberals never give him credit and one that every President since has had reason to silently thank him for.

While self congratulatory, the speech also pointed up the pain that was being inflicted and a warning that things would not get better anytime soon:

No one pretends that the way ahead will be easy. In my Inaugural Address last year, I warned that the “ills we suffer have come upon us over several decades. They will not go away in days, weeks, or months, but they will go away . . . because we as Americans have the capacity now, as we’ve had it in the past, to do whatever needs to be done to preserve this last and greatest bastion of freedom.” ‘

The economy will face difficult moments in the months ahead. But the program for economic recovery that is in place will pull the economy out of its slump and put us on the road to prosperity and stable growth by the latter half of this year. And that is why I can report to you tonight that in the near future the state of the Union and the economy will be better—much better—if we summon the strength to continue on the course that we’ve charted.

I don’t believe any President since this speech has ever been anything except Little Miss Suzie Sunshine about the current and future state of the Union. And Reagan’s prediction about economic growth was almost spot on; it took until the second quarter of 1983 for growth to begin again. And this time, it was non-inflationary growth. The inflation rate had been whittled down from 12% to less than 4% in two years.

But where Reagan succeeded brilliantly was his inspiration in placing Lenny Skutnik in the gallery to be recognized for heroism. When the President does this nowadays, it seems trite and forced. But back in 1982, Skutnik really was a hero - a very ordinary guy who performed a truly heroic act.

Just two weeks before the speech, on a snowy icy day in Washington, D.C., an Air Florida jet taking off from what was then called Washington National Airport crashed a mile from the airport, hitting the 14th Street bridge and plunging into the icy Potomac River. Six passengers managed to get out of the sinking plane to take their chances in the water.

Traffic on the bridge was at a total standstill which delayed many rescuers from reaching the crash site. A few firefighters with inadequate equipment made it to the river bank and a helicopter began to rescue those in the river by dropping lifelines to the 6 passengers in the icy water. One of the passengers, Arland Williams, began passing the lifelines to others who were too cold to make a move toward them. This eventually cost Williams his life as he became the only passenger who drowned as a result of the crash.

One of the passengers that Williams gave a lifeline to could not hold on as the helicopter began to lift her out of the water. It was then that Skutnik, seeing what was happening and watching as the woman slowly began to go under, jumped into the water. A firefighter leapt in after him to keep Skutnik from drowning and together, they ended up helping the woman to shore.

The crash and aftermath had mesmerized the nation for days and Skutnik was hailed from coast to coast as a true hero. Reagan tapped into all that emotion and skillfully used Skutnik as a prop to underscore his message of courage and that ordinary people can make a difference:

And then there are countless, quiet, everyday heroes of American who sacrifice long and hard so their children will know a better life than they’ve known; church and civic volunteers who help to feed, clothe, nurse, and teach the needy; millions who’ve made our nation and our nation’s destiny so very special-unsung heroes who may not have realized their own dreams themselves but then who reinvest those dreams in their children. Don’t let anyone tell you that America’s best days are behind her, that the American spirit has been vanquished. We’ve seen it triumph too often in our lives to stop believing in it now.

A hundred and twenty years ago, the greatest of all our Presidents delivered his second State of the Union message in this Chamber. “We cannot escape history,” Abraham Lincoln warned. “We of this Congress and this administration will be remembered in spite of ourselves.” The “trial through which we pass will light us down, in honor or dishonor, to the latest [last] generation.”

Well, that President and that Congress did not fail the American people. Together they weathered the storm and preserved the Union. Let it be said of us that we, too, did not fail; that we, too, worked together to bring America through difficult times. Let us so conduct ourselves that two centuries from now, another Congress and another President, meeting in this Chamber as we are meeting, will speak of us with pride, saying that we met the test and preserved for them in their day the sacred flame of liberty—this last, best hope of man on Earth.

It is very hard to recapture the emotions one felt listening to those words, remembering the times in which they were delivered. Those too young to comprehend or who weren’t born at that time will never understand the rank pessimism that Reagan was fighting. Like today, the naysayers were talking about the end of American dominance. We’re through, they said back then. Might was well walk away and let the Soviets have the world if they want it so badly. We’re running out of oil, our economy will never be the same, and we’ll have to learn to live with inflation and slow growth. Better get used to the idea that from now on, we’ll have limits on our power, our hopes, our dreams.

Those warnings sound just as silly today as they did back then. I don’t see anyone anywhere trying to challenge the “broken” American military. No nation wishes to commit suicide. That domestic insurrection directed against Iranian President Ahmadinejad has many elements to it, not the least of which is the realization that unless they shut the guy up, they are liable to be paid a visit by our “broken” military.

And all that paper held by the Chinese and other foreigners? While not dismissing the problem outright it should be pointed out that 25 years ago it was the Saudis and the Japanese buying up the United States that had our doomsayers in such a glum mood.

Our “moral standing in the world” always suffers under Republican Presidents. In 1982, it was Reagan’s “bellicose” rhetoric that was frightening women, children, and the French and causing the rest of the world to hate and fear us. You should know by now that our moral standing can only improve when we fight in places where we have no national interest and then only when liberals can be convinced that we are killing people selflessly.

What we need to hear tonight is a dose of Reaganism - a very large, full measure of the man’s optimism, faith, hope, and will.

But what we definitely won’t hear tonight, what we need to hear tonight, is what we have not heard since Reagan’s 1982 stirring call to action; the kind of pep talk that would pull us together as a nation and send us out to do battle with our enemies if not united then certainly with a helluva lot more confidence in ourselves than we have at present.

George Bush is a lameduck coming before Congress to give a largely meaningless speech during which he will appeal for support on Iraq. The American people do not appear to be in a mood to give their assent. Whether it is because they don’t think him capable or whether they have lost faith in him as a leader is immaterial to the issue at hand; winning or losing what’s left of Iraq.

If there is victory to be had in Iraq - and if it comes it will be with caveats galore - George Bush must use whatever persuasive powers he has to convince the American people that the goals he sets up to measure victory are realistic and can be achieved in a relatively short period of time. No timetable but rather a ticking clock. And with every movement of the clock hand we get closer to the 2008 election where success or failure in Iraq will define his party and his legacy and the President’s room for maneuver will be lost (if it’s not already gone).

The stakes are just as high now as they were in 1982. Back then, Reagan was attempting to infuse the nation with the spirit of optimism. For Bush, he must give the country a reason to support our fight in Iraq. I wish I could be optimistic that the President will rise to this challenge and overcome his limitations to give the speech of his life. But past history suggests all of us will be disappointed and Bush will fall far short of what is necessary to rally the nation to him.

I’m not sure whether this is an huge change in policy or whether the media is spinning it that way, but the controversial NSA intercept program has now been placed under the jurisdiction of the FISA Court:

The Bush administration, in a surprise reversal, said on Wednesday that it had agreed to give a secret court jurisdiction over the National Security Agency’s wiretapping program and would end its practice of eavesdropping without warrants on Americans suspected of ties to terrorists.

More Politics NewsThe Justice Department said it had worked out an “innovative” arrangement with the Foreign Intelligence Surveillance Court that provided the “necessary speed and agility” to provide court approval to monitor international communications of people inside the United States without jeopardizing national security.

The decision capped 13 months of bruising national debate over the reach of the president’s wartime authorities and his claims of executive power, and it came as the administration faced legal and political hurdles in its effort to continue the surveillance program.

The question screaming to be answered is: IF IT IS POSSIBLE TO DO TODAY, WHY DIDN’T THE ADMINISTRATION COME UP WITH THIS “INNOVATIVE” ARRANGEMENT WITH THE FISA COURT FROM THE BEGINNING?

And here is where not knowing the technical details of how the program was carried out - something the media and the left have ignored from the beginning in their rush to claim the program “illegal” - may be the key to understanding why government lawyers were willing to sign off on this program in the first place.

Unless you believe NSA lawyers as well as Justice Department attorneys involved in signing off on the intercept program (many of whom threatened to resign unless changes were made) are in love with authoritarianism and unconstitutional abuses of power, then you have to believe that they found justification under the law and the Constitution to give their imprimatur to the initial program. These lawyers are not Republican flunkies. They are career prosecutors and attorneys as dedicated to the law as any left wing commenter who for more than a year have been offering one horseback opinion after another about the legality of the intercept program.

Despite appearances - that is to say, the way the intercept program was described by the New York Times - it was constantly nagging at me that the lawyers at NSA and Justice who vetted this program (and who apparently had access to details not revealed by the Times or the soothsayers on the left who are so confident about knowing exactly how the program works) had to have satisfied themselves that no one was breaking the law. If it came out later that they signed off on a program knowing full well it was illegal, their careers would be over not to mention they would be showing themselves to be moral cowards.

Orrin Kerr, no flaming Bush supporter or booster of the NSA program:

What’s going on? As with everything about this program, we can’t be sure; we don’t know the facts, so we’re stuck with making barely-educated guesses. But it sounds to me like the FISA Court judges have agreed to issue anticipatory warrants. The traditional warrant process requires the government to write up the facts in an application and let the judge decide whether those facts amount to probable cause. If you were looking for a way to speed up that process — and both sides were in a mood to be “innovative” — one fairly straightforward alternative would be to use anticipatory warrants.

An anticipatory warrant lets the government conduct surveillance when a specific set of triggering facts occurs. The judge agrees ahead of time that if those facts occur, probable cause will exist and the monitoring can occur under the warrant. The idea is that there isn’t enough time to get a warrant right at that second, so the warrant can be “pre-approved” by the Judge and used by the government when the triggering event happens.

I don’t know if this theory is right, of course. But it seems to be consistent with the clues in the DOJ briefing. Why are these orders taking a lot of time to obtain? If my theory is right, it’s because the triggering facts that amount to probable cause in a terrorism investigation presumably are complicated. There are cookie-cutter drug cases, but I gather there aren’t any cookie-cutter terrorism cases. It probably takes a lot of negotiation with the FISA court judges to figure out what different sets of facts they’ll accept as triggering events that satisfy probable cause. Plus, the Court might have required review every 90 days instead of the one-year max allowed under FISA because the FISA court judges would want to know if their trigger is working out in its application.

Kerr speculates that a Supreme Court case decided in March making “Anticipatory Warrants” legal may be the impetus behind this deal.

This story is going to open the door to rehashing the same arguments that each side has been flinging at each other for over a year. And the fact that we are no closer to definitive answers today on the legality of the program than we were a year ago is enormously troubling. The program has been reviewed by the Intelligence Committees of both the House and Senate. The Senate Judiciary Committee held hearings on the program. Even a government civil liberties oversight board has looked into the program.

To date, most Congressmen and Senators who have been briefed about the program - both Republicans and Democrats - have not called for its termination. There have been some who have urged the President to place the program under the auspices of the FISA Court but this is by no means a universal response by Congress. And the oversight board found nothing illegal and indeed, praised the Administration for their concerns over privacy issues.

All of this leads me to believe there is a missing element to this story - one not revealed by the Times in their initial reporting nor subsequent follow ups. The fact that a federal judge with no special knowledge of how the program worked declared it “unconstitutional is no help since her ruling has already been challenged and the government successfully got an injunction imposed to keep the program running. (Note: It is almost universally believed by attorneys that her opinion was so poorly written and incoherent that it will easily be overturned.)

But what could this “missing link” be? Did the Times get the story wrong initially? Not impossible but I’ve reread that story and the subsequent follow-ups and it appears fairly well sourced but, by necessity, incomplete. Did the NSA “eavesdrop” as defined by the law? Was the technical means used to intercept the messages something new and therefore beyond the scope of the FISA Court? Was use made of the Court in ways that have not been publicized?

As Kerr says, we just don’t know. And given all the facts we have at hand, I just don’t know either.

UPDATE

I deliberately didn’t want to explore opinion on this matter prior to writing this post (Kerr’s post caught my eye because his opinion on the intercept program has mirrored my own since the story broke; that it was probably borderline legal but bad news for civil liberties).

There appear to be two schools of thought; one that echoes my bold faced question above and another that sees the FISA Court caving in to the Administration. Ed Morrissey:

It’s not that the program has ended; it obviously will continue. My anger is over the fact that the Bush administration insisted on two points: one, that the FISA court would not cooperate on streamlining the process for warrants on these intercepts, and the second that the Bush administration had the authority to proceed without it. They took everyone along for a big ride, making all sorts of legal arguments about the AUMF and Article II — and now Gonzales has revealed that even they didn’t really believe it.

If they were negotiating with FISA to place the program under their jurisdiction, then they must have agreed with their critics that insisted FISA was a covering authority for such action. And if they’ve spent the better part of two years reaching an accommodation with FISA, why not just tell people what they were doing when the program got exposed? And for toppers, why didn’t they start negotiating with FISA in November 2001 when they started the program?

Ed says that Bush has blown his credibility and, given what I’ve read in the last hour or so, I tend to agree. Morrissey believes that Bush is making this move now because he thinks that the President is trying to cut his losses and keep the program running even though a Democratic Congress would move to terminate it.

Mark Levin is livid:

Is there no principle subject to negotiation? Is there no course subject to reversal? For the Bush administration to argue for years that this program, as operated, was critical to our national security and fell within the president’s Constitutional authority, to then turnaround and surrender presidential authority this way is disgraceful. The administration is repudiating all the arguments it has made in testimony, legal briefs, and public statements. This goes to the heart of the White House’s credibility. How can it cast away such a fundamental position of principle and law like this?

Marty Lederman has some interesting speculation:

Why didn’t this happen years ago? Might it have something to do with the prospect of a possible big government triple-loss on (i) state secrets privilege; (ii) FISA; and (iii) its article II arguments — a development that DOJ would understandably be eager to avoid?

Curiouser and curiouser . . .

Indeed, the prospects of getting legally hammered, not to mention John Conyers and his impeachment inquiry waiting in the wings, salivating at a chance to go after the President, may have focused the Administration’s efforts to take the fire out of the issue. If so, one wonders what other domestic security measures the Administration will seek to rollback.

The more I read about this decision, the more I realize that my post above is at best, superficial and at worst, an exercise in wishful thinking. The Administration has just admitted that what it had been doing for 5 years was either illegal, unconstitutional, or both. How this will play out over the next several months as Democrats begin sharpening the long knives and begin their investigations in earnest will determine the fate of the President.

The case against 1st Lt. Ehren Watada, who refused to deploy with his unit to Iraq and made statements against the war and President Bush, took an unusual turn yesterday when the army subpoenaed the journalists who originally reported on Watada’s statement:

Army prosecutors have sent subpoenas to journalists in Oakland and Honolulu demanding testimony about quotes they attributed to an officer who faces a court-martial after denouncing the war in Iraq and refusing to deploy with his unit.

The Army’s subpoenas, which the journalists said they received last week, put them in the uncomfortable position of being ordered to help the Army build its case against 1st Lt. Ehren Watada, who faces up to six years in prison if convicted.

“It’s not a reporter’s job to participate in the prosecution of her own sources,” said Sarah Olson, an Oakland freelance journalist and radio producer. “When you force a journalist to participate, you run the risk of turning the journalist into an investigative tool of the state.”

But Olson, who received her subpoena Thursday, acknowledged she has no legal grounds to refuse to testify, since she is being asked only to confirm the accuracy of what she wrote about Watada and not to disclose confidential sources or unpublished material.

Normally, she said, “no one, myself included, has any problem verifying the veracity of their reporting.” The ethical problem in this case, she said, is that she would be aiding the prosecution of one of the dissidents and war critics who regularly trust her to tell their stories to the public.

(HT: Instapundit)

I can understand the reporter’s reluctance to testify. But the defense attorney says he doesn’t mind the reporters giving testimony - ostensibly because he is basing his defense of the soldier on Watada’s First Amendment rights:

Watada’s lawyer, Eric Seitz, said he understands journalists’ unhappiness at having to appear in court but would not object if they complied.

“It doesn’t bother us or disturb us that reporters testify Lt. Watada made those comments,” he said. The main issue, Seitz said, is “whether he had First Amendment rights to say what he did.”

Both Olson and her lawyer, David Greene, declined to say whether she would comply with the subpoena, which requires her to take part in a hearing in January as well as the court-martial. She could be held in contempt of the military tribunal and jailed if she refuses.

I think Olson is overreacting. She’s not being asked to reveal anything. She will be asked to confirm the accuracy of her reporting, something any reporter worth their salt should gladly do whether it be to the public or a military tribunal. In fact, she appears to be setting up something of a strawman in order to justify non compliance:

Before sending subpoenas to the journalists who reported Watada’s comments, the Army asked them to verify their quotes voluntarily, but they refused. Olson said last week that free expression is endangered by both the Army’s case against Watada and its attempt to enlist journalists.

“If conscientious objectors know that they can be prosecuted for speaking to the press and that the press will participate in their prosecution, it stands to reason that they would think twice before being public about their positions,” she said. “What we need in this country now is more dialogue and not less.”

This is nonsense. First of all, conscientious objectors will never be prosecuted for “speaking to the press.” That’s ridiculous. What they might be prosecuted for is what Lt. Watada is being charged with; failure to deploy with his unit and “conduct unbecoming an officer” for his statements against the Commander in Chief. Would Watada be prosecuted if he simply stated his opposition to the war and left out his criticism of the Commander in Chief? I doubt it.

There have been plenty of examples both here in America and in Iraq where soldiers have not been shy about declaring their opposition to the war. As far as I know, none of them have been disciplined. And if they have, that too would be ridiculous. Joining the army doesn’t mean that you lose your right to protected speech under the First Amendment. But criticism of the CIC is a different story. It goes against both military tradition and common sense. You can’t have an army in the field second guessing the decisions of the CIC. This would affect morale not to mention lead to chaos in the ranks.

There is one more aspect to this case that troubles me; it appears that the Army decided to make an example of Watada. Here’s Watada’s statement - puerile though it may be - as well as an offer the young man made that I can’t understand why the military didn’t agree to:

Watada, raised in Honolulu, joined the Army in 2003 after graduating from college and was first stationed in South Korea. In public appearances and interviews, he has said he was motivated to enlist by the Sept. 11 terrorist attacks but had misgivings about the Iraq war from the start and eventually concluded that it was both immoral and illegal.

“As I read about the level of deception the Bush administration used to initiate and process this war, I was shocked,” Olson quoted him as saying in one of the statements cited by the Army as conduct unbecoming an officer. “I became ashamed of wearing the uniform. How can we wear something with such a time-honored tradition, knowing we waged war based on a misrepresentation and lies?”

The interview, conducted in May, was published on truthout.org on June 7, the same day Watada declined to go to Iraq with his armored vehicle unit in the 2nd Infantry Division. He said he offered to redeploy to Afghanistan or resign his commission but was turned down.

As I understand it, such requests for reassignment based on conscientious objections are unusual but have been honored in the past. As have requests to resign a commission for similar reasons been accepted. It seems to me - as completely unschooled in military procedures as any civilian - that the army wants to single Watada out and make an example of his objections to the Iraq War. If so, we can reasonably ask if Lt. Watada is being treated fairly.

Despite sounding like a Michael Moore clone, Watada is entitled to his opinions. However, his refusal to deploy based on his political opinions cannot be allowed under any circumstances. But what about his refusal to join his unit in Iraq based on his personal, moral precepts?

These are tricky waters indeed for both Watada and the army to navigate. Watada refusal of duty is not based specifically on the moral tenets of any organized religion but rather on his own personal, moral code. In this respect, Watada’s refusal of a lawful order to deploy may be seen in the same moral context as a soldier who refuses to carry out an order to shoot civilians or kill babies. It doesn’t matter if we believe Watada to be a misguided, simple minded fool. Each soldier is responsible to their own concept of morality. In this sense, Watada’s dissent may be seen as an honorable means to live up to his own personal code of moral conduct - as long as he is willing to accept the consequences of his dissent.

That last being the key to any act of civil disobedience. Because in essence, that is what Watada is doing in a very public way; he is trying to influence others by sacrificing his career and possibly his freedom. We can violently disagree with his methods and his rationale; but we can also recognize that in a democratic, civil society, this is an honorable means to disagree with the government.

UPDATE

Some may disagree with my characterization of Watada’s actions as “civil” disobedience. And they would be technically correct. But the practical consequences of Watada’s protest go beyond military justice and enter the realm of politics. For this reason, Watada’s protest impacts civil society much more than it impacts military jurisprudence.

He can’t be prosecuted a second time thanks to the double jeopardy clause in the Constitution. But if half of what the Inspector General’s report on Sandy Berger’s escapades at the National Archives can be believed, the former National Security Advisor to President Clinton has a lot to answer for - if not to the law, then certainly to history and the American people.

Berger robbed the American people of the only thing owned by all of us; our shared experiences as a nation. His destruction of documents relating to the Millennium Plot will make that event a little less understandable, a little less clear when historians 50 years from now try and pick up the thread of all that transpired during that time.

A small event in the sweep of history, yes. But no historical event exists as an island. What knowledge we lose from our incomplete picture of the response to the Millennium Plot ripples across other events and prevents us from fully understanding our past in a way that was entirely avoidable and largely without precedent.

From the Executive Summary of the Inspector General’s report, we learn that it was not simply copies of the Millennium Plot After Action Report (MAAR) and “notes in the margins” that were stolen and destroyed as we were originally led to believe. In fact, the MAAR was an attachment to each document taken. There were four separate emails with the attachment, the contents of each not being revealed (for obvious reasons).

This information throws the entire Berger incident into a totally new light. Richard Minter of Pajamas Media, who has the PDF file of the IG report available for download:

What was role of Omar Bashir, President of the Sudan, and his relationship to Berger and President Clinton during the days when he offered to cooperate in the capture of Osama Bin Laden?

What was in the ten to twenty pages of notes Berger is believed to have taken out of the reviewing room against regulations during his first session?

Who was the person or persons Berger contacted during the numerous “private cell phone calls” he was allowed to make during his active review of the classified documents?

Exactly what was in the documents Berger stole from the archives, some of which he has confessed to destroying?

Did Berger have an accomplice? If the person on the other end of those phone conversations knew what he was doing, it would seem logical that he/she would be open to aiding and abetting a crime. There is nothing in the IG report that I can see where any attempt was made to discover who Berger was making all those phone calls to.

Minter speculated on air today that one of the documents removed and destroyed by Berger was a 1995 letter from Bashir to Clinton offering to hand Osama Bin Laden over to us. What would the 9/11 Commission have had to say about this? Would it have altered their final report?

Probably not, which makes these revelations perhaps more of an historical curiosity than anything else. I doubt whether it would have altered any perceptions by the American people about whose failures were responsible for 9/11 and how much blame should be assigned to both Clinton and President Bush. Al-Qaeda would not have disappeared even if we had gotten a hold of Bin Laden. And radical Islamists would have continued plotting against America regardless of his fate.

But none of this lessens the outrage we should feel against Berger. The man might not have to face a court of law again for the crime. But the government can certainly revisit his paltry 3 year national security clearance suspension. Given the facts of the case, there should be no reason why the government shouldn’t make Mr. Berger permanently ineligible to review classified material.

And any Democratic presidential candidate who would use Mr. Berger as an advisor is opening themselves up to well deserved criticism for having such an untrustworthy person as an aide.

Berger should be banished to the outer darkness of the national security establishment for what he’s done. Unfortunately, he will still pull down five figure speaking fees and be in demand as a lecturer and talking head on cable news shows. It is we, the American people who will be poorer for Mr. Berger’s crimes - acts for which he has yet to show much remorse much less being shamed for what he’s taken from all of us.