Traitors or Hypocrites or Just Small Men

Several former Clinton administration officials are among the group of “scholars of constitutional law and former government officials” who last week submitted a letter to Congress – posted on the New York Review of Books website – asserting that the Bush administration had “fail[ed] to identify any plausible legal authority” for the NSA program that does not comply with the warrant procedure mandated by Congress in FISA (the Foreign Intelligence Surveillance Act of 1978). One of those former Clinton administration officials is Walter Dellinger.

But in 1994, Dellinger was singing a different tune. As the Assistant Attorney General in the Clinton Justice Department’s Office of Legal Counsel, Dellinger explained in a written opinion to the White House, that: “The President has enhanced responsibility to resist unconstitutional provisions that encroach upon the constitutional powers of the Presidency.”

The opinion is excerpted at some length in a letter being submitted to the Judiciary Committee by my friend Bryan Cunningham, a terrific lawyer in Colorado who worked in both the Clinton and Bush administrations (in the NSA, CIA and DOJ). That letter is now available at the website of Bryan’s lawfirm, www.morgancunningham.net.

The letter demonstrates that settled legal principles, developed by the federal courts since the Nation’s founding and cited by administrations of both political parties, most assuredly including the Clinton administration, emphasize that the President of the United States has plenary authority in the matter of foreign intelligence collection (and foreign affairs generally). Bryan also illustrates that separation-of-powers principles obligate the President to decline to enforce (i.e., to ignore) congressional statutes that encroach on or purport to limit the executive’s constitutional powers – just as FISA does. This, too, is a position the Justice Department has aggressively defended under both Republican and Democrat administrations.

Given the hearing scheduled to begin on Monday, when AG Alberto Gonzales will be testifying before the Senate Judiciary Committee, they entire Cunningham letter is well worth reading. Especially noteworthy is Dellinger’s 1994 OLC opinion, which states, for example:

…Let me start with a general proposition that I believe to be uncontroversial: there are circumstances in which the President may appropriately decline to enforce a statute that he views as unconstitutional.

First, there is significant judicial approval of this proposition. Most notable is the Court's decision in Myers v. United States, 272 U.S. 52 (1926). There the Court sustained the President's view that the statute at issue was unconstitutional without any member of the Court suggesting that the President had acted improperly in refusing to abide by the statute. More recently, in Freytag v. Commissioner, 501 U.S. 868 (1991), all four of the Justices who addressed the issue agreed that the President has "the power to veto encroaching laws . . . or even to disregard them when they are unconstitutional." Id. at 906 (Scalia, J., concurring); see also Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 635-38 (1952) (Jackson, J., concurring) (recognizing existence of President's authority to act contrary to a statutory command).

Second, consistent and substantial executive practice also confirms this general proposition. Opinions dating to at least 1860 assert the President's authority to decline to effectuate enactments that the President views as unconstitutional. See, e.g., Memorial of Captain Meigs, 9 Op. Att'y Gen. 462, 469-70 (1860) (asserting that the President need not enforce a statute purporting to appoint an officer); see also annotations of attached Attorney General and Office of Legal Counsel opinions. Moreover, as we discuss more fully below, numerous Presidents have provided advance notice of their intention not to enforce specific statutory requirements that they have viewed as unconstitutional, and the Supreme Court has implicitly endorsed this practice. See INS v. Chadha, 462 U.S. 919, 942 n.13 (1983) (noting that Presidents often sign legislation containing constitutionally objectionable provisions and indicate that they will not comply with those provisions).

Also particularly interesting given the number of Clinton officials who signed the afore-described letter condemning President Bush’s alleged flouting of the FISA wiretap statute, is another opinion issued by the Clinton administration’s OLC – this one in 2000. It’s discussed at length in the Cunningham letter. The Clinton OLC asserted, among other things, that even though the criminal wiretap statute (18 USC Sec 2510 et seq.) purports to limit the executive branch’s ability to disclose wiretap information, the President was free to ignore those statutory provisions where limiting “the access of the President and his aides to information critical to national security or foreign relations . . . would be unconstitutional as applied in those circumstances.”

XXX McMahon

Now honestly, who doesn't have nude pictures of themself on their camera phone?

BOCA RATON, Fla. -- A tanning salon employee told police that TV wrestling personality Vince McMahon allegedly tried to kiss and grope her after showing her nude photos of himself on his camera phone.

Police said they want to talk to McMahon about the alleged incident at Tanzabar Tanning Salon Saturday. No charges have been filed.

McMahon's attorney, Jerry McDevitt, did not immediately return a phone call seeking comment Thursday.

A customer who also encountered the 60-year-old McMahon at the salon that day told The Boca Raton News that he was "nothing but a gentleman" and that she did not see him make advances on the employee.

But according to a police report, McMahon allegedly showed the 22-year-old woman employee nude and seminude photos of himself on his camera phone. He also allegedly followed her into one of the tanning rooms and tried to kiss and grope her, the report said. She rejected his advances and left the room.

The woman said she waited until Sunday to report the incident after consulting her parents. She told police she wants to prosecute.

I'm No Psychologist, But Kendra May Have Anger Management Issues

Knicks forward Antonio Davis' wife, whose quarrel with a fan last month brought her husband running into the stands, was charged yesterday with tossing a cup of hot coffee at a woman near Chicago, police said.

Kendra Davis was hit with misdemeanor battery and driving with a suspended license raps stemming from an October road-rage fracas, police said. She was freed last night after posting $5,000 bond.

What's Wrong With This?

A Staten Island school-bus driver treated his passengers like prisoners in a penal camp, deputizing pre-teen enforcers to rough up rowdy students on board and dubbing himself "The Emperor," police charged yesterday.

Michael Cianci, 38, of Parlin, N.J., named his ride the "Death Cheese Bus" and assigned ranks to his sixth-grade charges, forcing them every day to recite a set of rules posted by his cup-holder, according to the criminal complaint.

The Most Conservative Hour on TV?

As a fan of My Name is Earl and The Office, I've come to the conclusion that this is the most conservative hour on network TV. Now, I'm not saying it's conservative, but the "most" conservative compared to the typical network offerings.

For example, Earl's entire premise is based on one man's attempt to redeem his past of sin and foolishness. And the office is full of snickers at the usual corporate PC bull$#%^. For example, last night's episode was a hysterical look at Dunder Mifflin's "Women in the Workplace Seminar" conducted by one of the corporate HR suits (and a women, of course). So Michael takes the boys to hang out with the warehouse workers for a little male bonding time. Good stuff.

This Is Good News

Employers stepped up hiring in January, boosting payrolls by 193,000 and lowering the nation's unemployment rate to 4.7 percent, the lowest since July 2001.

The fresh snapshot of the jobs climate, released by the Labor Department on Friday, suggested that the economy started the new year on fairly good footing.

I think "full employment" has traditionally been defined as 5%. Granted, data can be a bit deceiving, but this is very welcome news.

Where Have All of the Good Manufacturing Jobs Gone?

Apparently, to Northern Kentucky.

Manufacturing has long been one of the region's economic strengths, but business leaders are increasingly seeing manufacturing jobs that demand high-tech skills going unfilled.

There are already at least 600 manufacturing jobs that are unfilled because of a lack of skilled applicants, according to Gateway Community and Technical College, the Northern Kentucky-based business and trade school.

The school bases that figure on a just-completed survey of the top 20 advanced manufacturing companies in the area. Those 20 companies alone reported 380 unfilled jobs, it said.

In addition, manufacturers will need to replace more than 350 workers a year over the next decade as older, highly skilled employees retire, the survey found. Another 255 per year would be needed to replace those lost from normal turnover.

So the jobs are there, but the skills aren't. Interesting.

This Is A Good Idea...If The Kids Can Get Through Algebra I

High school students will be required to take a math class every year to earn a diploma under a plan the state Board of Education approved unanimously Wednesday.

The new high school requirements, approved by the state board during a meeting in Frankfort, start for the graduating class of 2012.

Students will still need the current 22 credit hours for graduation. But those have to include, for the first time, algebra II as well as the currently required algebra I and geometry. The fourth year must be an advanced course and could be trigonometry, calculus, statistics or another high-level math course, said state Board of Education spokeswoman Lisa Gross.

"It cannot be a basic course," she said.

My Favorite College Basketball Player

I agree with Greg Doyle of CBS on this one:

Eric Hicks, Cincinnati: Hicks is ferocious. Other players dunk or block a shot and then scream because it makes them look tough. Hicks doesn't have to do any of that. He could walk onto the court in a pink leotard and be the baddest man in the gym. Find another 6-foot-5 center who could put up 21 points, seven rebounds and three blocked shots against LSU's All-NBA frontcourt of Glen Davis, Tyrus Thomas and Tasmin Mitchell. Or how about UConn? Against the enormous Huskies, Hicks had 14 points, 11 rebounds and seven blocked shots. If he were 6-10, he'd be an NBA All-Star.

No Commentary Necessary

Signing Day Success for Cats

Kentucky signed possibly it's best recruiting class ever! Rivals has it ranked as the 34th best in the country.

But there's just one problem. Check out the recruiting rankings of some other SEC schools:

• Florida (1)
• Georgia (4)
• LSU (7)
• Auburn (9)
• Mississippi (15)
• Alabama (18)
• Tennessee (24)

Good luck.

Willie Can't Keep His Hands Off Alito's Daughter

Quote of the Day

"There is a difference between responsible criticism that aims for success, and defeatism that refuses to acknowledge anything but failure. Hindsight alone is not wisdom. And second-guessing is not a strategy." -- Bush last night

Oscar, Oscar

I was meaning to write about this earlier, but this guy beat me to it:

The five best movie nominees, Capote (gay nihilist), Syrianna (US sucks and is corrupt), Brokeback Mountain (gay cowboys, uuuhhhh, yeah, right), Good Night and Good Luck (conservatives suck and there were never communists in the government no matter what those pesky Venona Papers say), Munich (hey, terrorists have feelings too), and Crash (LA is full of racist whiteys) have grossed a total of $186,000,000. That's $75 million less than Narnia.

Granted, box office gate does not equate to quality of film. But the Oscar nominations have clearly become the playground of frustrated Leftists. They can't win at the political ballot box (US, Britain, Germany, Australia, Canada), so at least they can win at the Oscar ballot box and in the Palestinian elections.

This May Be True

When John McCain brokered a bipartisan compromise among seven Republican and seven Democratic senators to avoid a showdown over the filibustering of judicial nominees, conservatives flamed him. [snip]
The deal cleared the way for the relatively easy confirmation of John Roberts and Samuel Alito to the Supreme Court. Roberts wasn’t filibustered and the Democrats could only scare up 25 votes to filibuster Alito.

There was another benefit to the “Gang of 14” deal that I didn’t anticipate. By making conservatism itself not a disqualifying condition and giving some degree of Democratic acquiescence, the deal gave pro-choice Republicans more political cover to support clearly pro-life nominees. In Alito’s case, that proved important in getting the votes for his confirmation. Only one pro-choice Republican ended up voting against him.

In reality, McCain’s compromise provided a smoother and surer route to the confirmation of conservative judges than the showdown his critics preferred. A more conservative judiciary may well prove to be the most important conservative accomplishment in the post-Reagan era. President Bush deserves the lion’s share of the credit, since he’s the one making the nominations. But McCain’s much disparaged deal paved the way.

Conservatives owe him an apology.

Quote of the Day

The assumption that America's campuses are impenetrable bastions of liberalism--where left-leaning faculty predominate, progressive student activism flourishes and conservatism is fiercely marginalized--still rules the day. But in reality, since the 1970s the conservative movement has become the dominant political force on many American campuses. -- The Nation

I mean, where do these people live? Is it earth? Is there some parallel universe that I'm aware of?

The NSA, FISA and You

From Richard Epstein, who in fact does NOT support the administration's policy:

FISA does not deal with any effort to track calls that begin against al Qaeda cells outside the United States, which then lead to the United States. FISA only deals with situations where the target of the surveillance is a U.S. person or where that surveillance is "acquired in the United States."

And more from Richard Posner:

According to the administration, the only communications intercepted outside the framework of FISA are calls to and from the United States in which the overseas party is suspected of terrorist connections, though the suspicion does not rise to the probable-cause level that would be required for obtaining a FISA warrant. It seems to me vital to our national security to be able to intercept such communications--and more. Suppose a phone number in the United States is discovered on a rolodex in an Al Qaeda hideout in Yemen. Wouldn't you want the NSA to intercept all calls, especially international, to or from that U.S. number and scrutinize them for suspicious content? Yet the mere fact that a suspected or even a known terrorist has a U.S. phone number in his possession would not create probable cause to believe the owner of that phone also a terrorist; probably most phone conversations of terrorists are not with other terrorists. The government can't get a FISA warrant just to find out whether someone is a terrorist, though that's what it most needs to know. Nor can it obtain a warrant to intercept communications between two persons both of whom are in the United States, even if they are suspected of being members of a terrorist sleeper cell. These are crippling limitations.

The most amazing thing about this "controversy" is how little anyone really knows, yet how much everyone seems willing to judge. The question is a simple one: does a President have the authority during a time of war to intercept calls, emails, etc. that are transmitted from outside the United States. Yes or no.

Surprise, Surprise

US presidential drama COMMANDER IN CHIEF has been temporarily pulled from the ABC TV schedule because network executives are unhappy with the show's low ratings.

The drama has received critical acclaim and actress GEENA DAVIS, who plays president MACKENZIE ALLEN won a Golden Globe for her performance, earlier this month (16JAN06) - but that isn't making the show a hit.

The whacky critics love it, the public doesn't.

I've Heard Everything

Not only are the Dems fools, they're delusional.

Sen. John Kerry's campaign strategist in the 2004 campaign, Peter Daou, writes:

Why do Democrats keep losing elections? It's this: the traditional media, the trusted media, the "neutral" media, have become the chief delivery mechanism of potent anti-Democratic and pro-Bush storylines. And the Democratic establishment appears to be either ignorant of this political quandary or unwilling to fight it....

But this isn’t about “blaming the media” or excusing other strategic mistakes on the part of Democrats, it’s about understanding what happens when skillfully-crafted pro-GOP storylines are injected into the American bloodstream by the likes of Wolf Blitzer, Chris Matthews, Paula Zahn, Dana Milbank, Kyra Phillips, Cokie Roberts, Tom Brokaw, Jim VandeHei, Bob Schieffer, Bill Schneider, Tim Russert, Howard Fineman, Norah O'Donnell, Elizabeth Bumiller, Adam Nagourney, Bob Woodward, and their ilk, not to mention rabid partisans like Limbaugh, Coulter, and Hannity.

I just can't believe Kerry lost the election.

A Very Bad Day

A museum visitor shattered three Qing dynasty Chinese vases when he tripped on his shoelace, stumbled down a stairway and brought the vases crashing to the floor, officials said Monday.

The three vases, dating from the late 17th or early 18th century, had been donated to the Fitzwilliam Museum in the university city of Cambridge in 1948, and were among its best-known artifacts. They had been sitting proudly on the window sill beside the staircase for 40 years.

Myopic Journalism

CNN's top war correspondent Christiane Amanpour now says the Iraq war has been a disaster and has created a "black hole." Amanpour made the comments Monday evening on the all-news network.

"The Iraq war has been a disaster, and journalists have paid for it," Amanpour explains to Larry King, a day after ABC NEWS anchor Bob Woodruff was hit injured by a bomb.

"This is not acceptable what's going on there and it's a terrible situation."

I'm sure this is typical of most reporters. I actually heard a reporter say that the injury to Woodruff may turn the tide against the war because this puts a familiar face on the war.

What? A handsome news-reader is tragically injured and now all of the sudden the American people will take notice of what's "really" going on in Iraq. How can these people be so out of touch with the country they live in? Do they ever get out of D.C. and New York?

The Party's Over

Americans' personal savings rate dipped into negative territory in something that hasn't happened since the Great Depression. Consumers depleted their savings to finance the purchases of cars and other big-ticket items.

The Commerce Department reported Monday that the savings rate fell into negative territory at minus 0.5 percent, meaning that Americans not only spent all of their after-tax income last year but had to dip into previous savings or increase borrowing.

The savings rate has been negative for an entire year only twice before _ in 1932 and 1933 _ two years when the country was struggling to cope with the Great Depression, a time of massive business failures and job layoffs.
With employment growth strong now, analysts said that different factors are at play. Americans feel they can spend more, given that the value of their homes, the biggest asset for most families, has been rising sharply in recent years.

But analysts cautioned that this behavior was risky at a time when 78 million Americans are on the verge of retirement.