Posted 9:11 PM by Robert

The Nine Billion Names of George Santayana

O, sure, it's there. Waiting. Hideous. Insipid.

How many college convocation speakers has it claimed?

How many media pundits have fallen into its maw, exhausted, welcoming - an intellectual liebestod!

How many history majors has it pushed past the line sketched by Dick Cavett on his 70s era talk show when he said that he lived in fear of saying something that would be so stupid he'd be too embarrassed to come out of his house for a year!

Of course, it's the urge to write: "Those who do not remember the past are condemned to repeat it."

And yet. And yet. When George W. Bush utters the hopelessly inappropriate and poisonously and pointlessly evocative "Department of Homeland Security" how can one NOT hear George H. W. Bush utter the hopelessly inappropriate and poisonously and pointlessly evocative "New World Order!!!"

Just asking. Really.

Posted 5:32 PM by Robert

Some Andersen Considerations

The Man Without Qualities is always pleased to hear from Max Power, if only because his comments and criticisms are always so thoughtful and erudite.

In this case, Max seems to side at least provisionally with Judge Harmon's key ruling in the Andersen trial that the jury didn't have to settle on a particular "corrupt agent". But I don’t think Max understands how bad and dangerous that ruling really is. Automatic “guilty agent” criminal liability amounts to nothing more than the irrefutable assumption that the employer authorized the agent’s actions - thereby relieving the prosecution of any need to show "authorization". The same principle underlies the respondiat superior doctrine in civil law - a doctine that imputes civil liability to the employor for employee acts committed in the course of employment.

But suppose the employer is an individual and the prosecutors are able to prove four agents had all been expressly authorized to commit a crime for the benefit of the employer - say a man authorizes four “hit men” to kill his wife, who is then murdered. Suppose the employer and all four hit men are made codefendants in the murder trial and each member of the jury settles on his or her own “hit man” as having committed the murder – but the jury cannot agree that one of them did it. By assumption there is no question of “authorization” – so the situation is now the same as the Andersen case: if the prosecutor can show one of the agents committed the murder, then the employer-husband is guilty, too. The reasoning of Judge Harmon’s ruling would allow the conviction and execution of the individual employer where each “hit man” gets the benefit of a hung jury. Does that sound right? It’s by no means the most peculiar consequence of Judge Harmon’s thinking. Judge Harmon was right to call her ruling “terrifying.” Of course, it is no answer to say that Judge Harmon's ruling was limited to corporate employees, simply because the principles of criminal law she is employing are much more general than that. In fact, the ongoing and dangerous "backwash" from corporate crime to individual crime has been noted by legal scholars with increasing alarm - and Judge Harmon's ruling should be a wake up call:

"[F]irst, the general principles of criminal liability have become much more stringent so as to ensure that unscrupulous corporations are convicted; second, constitutional rights generally have been diluted to ensure that corporations are convicted. Both of these consequences in turn affect individual criminal liability because of the ... equation for legal purposes of corporations and individuals. That is to say that the pressure to convict corporations has a discernible impact on individuals, both in terms of the principles of criminal liability under which they are convicted and the strength of individual constitutional rights."

It is especially strange that Judge Harmon felt the need to effect her sweeping ex post facto expansion of corporate criminal liability in the face of considerable scholarly opinion to the effect that corporate criminal liability is already overbroad and has pernicious social effects. [See also: V.S. Khanna, “Corporate Criminal Liability: What Purpose Does it Serve?” (1996), 109 Harvard Law Review 1477 (arguing that corporate civil liability can achieve all of the goals of corporate criminal liability, without the attendant procedural protections and stigmatic effects of the latter)]. More of an already bad thing is not something judges are hired to produce.

Max also says that the Man Without Qualities believes that the Andersen attorneys should have anticipated this issue in the original jury instructions “and caught the prosecution unaware”.

But I didn’t suggest the government would or should have been caught unaware. Rather, I wrote:

"[I]f the Andersen attorney[s] had fixed the problem by moving to amend the jury instruction before the jury started deliberating, they probably would have succeeded, since neither the judge nor the prosecutors would have been motivated to insist on a likely erroneous construction of the law. Indeed, at that point, the prosecutors thought they had an easy case and would probably have favored a correct construction of the law, since the incorrect construction on which they are now forced to rely - and the judge has now adopted - invites reversal."

So - knowing full well what Andersen was doing - the prosecutors would likely have accepted revisions to the jury instructions that did not rely on what Judge Harmon has now characterized as “terrifying” new legal grounds. But once it became clear to the prosecutors and the judge that their choice was either a hung jury or reliance on “terrifying” new legal grounds, they dug in their heels. The issue is not esoteric and was not hard to see coming, despite the patronizing statements from the attorneys about how the jury should be working for law professors and the like. In fact, before the jury began deliberations, the Man Without Qualities noted that the jury instructions needed clarification in exactly this fashion. Contrary to Max's belief, in all likelihood, no fancy caselaw would have been necessary to secure the prosecution’s assent early on, simply because the prosecution should have wanted to forestall the possibility that following an easy conviction Andersen might cite to the ambiguity in the jury instructions as reason for reversal. Max may not agree with me, but he should first correctly represent and address what I wrote.

Max also disagrees with the assertion made here in a prior post that Duncan's attorney's advice has been demonstrated to be facially bad. Max says that Duncan was “faced with a classic prisoner's dilemma, and one with three co-defendants no less.”

Max is clever and thoughtful, as always, but quite wrong in this case. As the first sentence of his own cite demonstrates: “Tanya and Cinque have been arrested for robbing the Hibernia Savings Bank and placed in separate isolation cells.” There’s a reason the sentence ends that way: The classic prisoner’s dilemma relies on the two prisoners not being able to communicate, agree or cooperate. Obviously, that was not a feature of the Duncan negotiations, the tip-off being that none of the other three highly rational agents cooperated or (as far as we know) attempted to cooperate with the prosecution – a result quite unlikely in Max’s model, but not at all surprising given the real situation. If Duncan had joined with the other agents and Andersen in a common defense, Duncan would be vastly better off today – just as the other three agents are now. The other three agents and Andersen all have lawyers who understood that. Perhaps Max thinks the other three agents and Andersen should all fire their lawyers – since that would follow from the lawyers not having recognized the “classic prisoner’s dilemma” and advise their clients to cooperate with the prosecution. But somehow I doubt that the other three agents are regretting not racing Duncan to the prosecutor’s office right now.

No, from a technical game theory perspective the Duncan negotiations were anything but a “classic prisoner’s dilemma.” In fact, they are a fair example of what is known as an “asynchronous’ game – one quite ruled out by the “classic prisoner’s dilemma.” As Max’s cite states it , for example:

“It has often been argued that rational self-interested players can obtain the cooperative outcome by making their moves conditional on the moves of the other player. [One expert] favors a strategy of reciprocal cooperation: if the other player would cooperate if you cooperate and would defect if you don’t, then cooperate, but otherwise defect. Conditional strategies like this are ruled out in the versions of the game described above, but they may be possible in versions that more accurately model real world situations.”

Of course, if the prisoners are not kept in isolation many other forms of cooperation among them are possible which short circuit the effects of the “classic prisoners' dilemma.”

Posted 4:08 PM by Robert

New Blog

Mark Riebling has a new blog which has lots of interesting national security related materials, including a history of significant developments in the law of search and survellance relating to national security.

Posted 11:14 AM by Robert

Learning From Andersen's "Conviction"

Andersen has been convicted of obstruction of justice for corruptly destroying documents.

The Associated Press says that "The verdict is also a potential boon for prosecutors trying to unravel the Enron debacle."

Really? Unfortunately, the Associated Press does not share with us just how this verdict is a "potential boon" for the prosecutors. So we have to review matters for ourselves. This much we know:

First, Judge Harmon prompted the "guilty verdict .. by ruling [the jury] didn't have to agree on who committed a crime as long as they all believed someone at the firm 'acted knowingly and with corrupt intent.' Harmon acknowledged she appeared to be breaking new legal ground, a prospect she acknowledged was 'terrifying.''' This new legal ground might be called "ex post facto legislation adjacent." And the judge is correct that her act is truly terrifying - in the way the thinking that created a Star Chamber of judges who thought they were doing good while actually and progressively deforming criminal procedure was "terrifying."

Second, the prosecution was unable to convince the jury that any one person at Andersen committed the corrupt act. So the "potential boon" to the prosecutors is the knowledge that if the individual agents had been added as co-defendants not one of them would have been convicted - even David Duncan, who had already confessed. That's not an incentive to the prosecutors to bring actions against the agents - who may all have rights of collateral estoppel and double jeopardy as a result of this conviction, anyway. [As noted in a prior post, "under prevailing notions of double jeopardy, if a jury has tried and failed to reach a unanimous verdict, a new trial may be held - but if there is a conviction of the corporate defendant this rule does not apply. The question then seems to becomes one of untested collateral estoppel policy." Professor Khanna has written a good general discussion of just how difficult and perverse "double jeopardy" considerations become in the already problematic area of corporate criminal law.]

Third, the main value of the obstruction of justice charge was as leverage to obtain cooperation from Andersen and its potentially vulnerable "agents." That has now been lost or severely impaired - especially since the agents now know the jury could not decide any of them was guilty.

Fourth, Andersen is already highly insolvent - so it can't pay any fine. And any fine paid to the government means less money left over for private plaintiffs. Do you think the private plaintiffs are happy about that?

Fifth, there will be one fewer national accounting firm. That was already determined by the indictment - but the conviction certainly makes the point. The loss of Andersen on the basis of the unproven acts of anyone at the firm, where the firm could have been reformed, will be a big loss to investors. That is hardly a validation of the prosecutors' strategy.

Sixth, the Man Without Qualities does not know the terms of Mr. Duncan's plea agreement. But right now he is sitting at home with the knowledge that even with his un-repudiated confession the jury refused to "convict" him. He should seriously think about repudiating that plea agreement and argue he was "coerced". Depending on the agreement's terms, he may be better off. Because this is clearly a result totally unexpected by the prosecution, the plea agreement terms may not contemplate these developments at all.

Seventh, there will be an appeal and a likely reversal. That does give the prosecution more leverage than an acquittal or deadlocked jury - which probably motivated the judge's decision. But that hardly amounts to a "potential boon."

Eighth, this was the "slam dunk" case that - according to the media and its experts - could only go Andersen's way if the jury acquitted against the law. Well, the jury has now convicted against the law - with the help of the judge. A "slam dunk" that became an "Ave Maria" that became "Hocus Pocus" by judicial fiat. And the judge and prosecutors seem to have known it was the only way they could get a conviction. The potential underlying fraud-based cases arising in the Enron mess are supposed to be vastly more complex and more difficult to prove.

The New York Times (!) actually gets this part right:

"The difficulty in obtaining a guilty verdict, however, may prove in the long run to be more important than the government's ultimate victory. The trial was an opening act to the eventual prosecution of Enron executives. But it appears to have done little to aid that effort and, in some ways, may have hurt it. Moreover, the verdict does little to advance the cause of reform in the auditing industry."

With a "potential boon" like this, what would a prosecution disaster look like?

Of course, things get a lot harder for the prosecution when they're trying to prove things that probably aren't so - like pervasive, obvious and egregious fraud by Andersen, Enron and their now-irrelevant human agents!

Posted 12:22 AM by Robert

Just Say "No"

UPDATE: Mickey Kaus posts an excellent expansion and explanation of why "Homeland" just isn't the right term - no way, no how.

But for the reasons described below in this post, I completely disagree with his endorsement of the worthy Ms. Noonan's enthusiasm for appointment of the worthy Mr. Giuliani as head of the proposed Department of Homeland Security.

Mr. Kaus says it isn't going to happen - and I do agree with that. He also endorses the term "domestic" in lieu of "homeland" and notes the connection between "homeland" and "heimat" - and his is a day earlier than the post below.

UPDATE: And see the Nine Billion Names of George Santayana above.

__________________________________________________________________________________________________________


It is hard for me to believe that for the second time in just a little while I differ so strongly from the excellent Peggy Noonan, who is urging that "the first and more important" thing the President should do in connection with his proposed Department of Homeland Security "is to name Rudy Giuliani now as his nominee for head of the new department."

Mr. Giuliani is a wonderful, capable man. But the President would be crazy to appoint Mr. Giuliani as head of the Department of Homeland Security.

Why? Because Mr. Giuliani does not have the correct temperament for high appointed office - not even close. While the events are now apparently beyond living memory for many people, the President and Ms. Noonan would do well to recall that Mr.Giuliani first came to prominence as United States Attorney for the Southern District of New York - a position he obtained as the then-protege of Senator Alfonse M. D'Amato, Republican, New York.

Mr. Giuliani rose to prominence mostly by virtue of high-profile prosecution of Wall Street figures, some of which were still in process when Mr. Giuliani decided to leave that office. Mr. Giuliani rightly considered the fate of those cases to be very important to the fate of his political career - and that's where things got ugly.

Senator D'Amato had arranged Mr. Giuliani's appointment, and expected to similarly arrange the appointment of Mr. Giuliani's successor - as was his right according to long established United States Senate custom. But Mr.Giuliani wanted a big say in naming his own successor as United States Attorney. In fact, he made a big issue of it and embarrassed his former mentor - resulting in a huge and enduring rift between the two men. Ms. Noonan correctly notes that "Mr. Giuliani ... supported Mario Cuomo over George Pataki in 1994." He did that because Mr. Pataki was Senator D'Amato's new protege - and Mr. Giuliani had hard feelings about that.

Does Mr. Bush want to risk a repeat of that performance? Anyone who urges the appointment of Mr. Giuliani to the sensitive position of head of the Department of Homeland Security is not doing either Mr. Bush or Mr. Giuliani any favors.

Mr. Giuliani is a brilliant, decent, capable man. He should hold high elected office - he performed brilliantly in his past high elected office. His personality is most naturally that of an executive - but a position such as the Senate would probably be fine, too. Certainly he would serve New York better than either of its two current Senators. The President should use his influence to help Mr. Giuliani obtain high elected office. The President might even appoint Mr. Giuliani to the Second Circuit Court of Appeals - where people are supposed to assert their independence (within limits).

But high appointed office within the executive branch? No. Never. Crazy.

I agree wholeheartedly with Ms. Noonan that the term "Homeland" is not the correct word. I suggest "Department of Domestic Security" as the name for the new department.

"Domestic" sounds more "homey" than "heimat."

Posted 9:50 PM by Robert

What Was That II?

A prior post noted that "[t]he general infatuation with Agent Rowley and her memo seems to be lifting like the spell of a toy craze , [although that] doesn't mean Agent Rowley is a bad person, or has nothing true or interesting to say".

The prior post obviously referenced blogs opposing the cult of Agent Rowley personally. But that post should not be read as an endorsement of the substance of Agent Rowley's memo, notwithstanding the assertion that her memo has things "true or interesting to say." Some of the people expressing skepticism or outright disagreement with the substance of Agent Rowley's analysis have been cited here, including Kaus, Taylor, Ann Coulter, Turley, Reibling (see also many interesting cites), Romerstein (in substance - although published before Agent Rowley wrote here memo), and, of course, FBI Director Mueller in his Congressional testimony.

As some commentators have pointed out, the media cult of Agent Rowley is largely independent of the substance of her memo - and, in fact, may require liberals to ignore most of her memo and Congressional testimony, since she is advocating "reforms" intensely hostile to the views of civil rights groups. Perhaps I missed it, but no self-proclaimed civil liberties group, such as the ACLU, seems to have endorsed Agent Rowley's construction of FISA or its evidence requirements - so in that quarter, at least, there is no infatuation to dissipate.

Indeed, the ACLU hilariously attempts to exploit Agent Rowley ("As Agent Coleen Rowley so courageously noted," [ACLU Representative] Romero said, "the FBI's inability to properly analyze the relevant data it had was a result of a breakdown in communications, not a lack of law enforcement powers."), while ignoring the fact that Agent Rowley thought she had enough evidence for a FISA warrant because she believes a person's refusal to allow his property to be searched is evidence that it should be searched in obtaining a FISA warrant, and that a person's general association with foreign Islamic groups is enough evidence of his being an "agent of a foreign power" - views violently at odds with that of the ACLU and most "civil liberties groups."

Posted 7:25 PM by Robert

Convicting Andersen By Calculus III:
Principal Guilty by Act of Guilty Agent Where No Agent Is Found Guilty

The judge presiding over the Andersen trial has ruled that the jury can convict where the jury is unable to agree that a particular agent actually committed any criminal act.

The prosecution is attempting to establish Andersen's guilt under the "guilty agent" theory: once an Andersen agent is found guilty, the guilt is imputed to Andersen. The judge's ruling allows the jury to bypass the need to find any agent guilty - and is therefore clearly wrong and, if appealed, will almost certainly be reversed. No prior case has accepted the principle now accepted by the judge that the corporation can be convicted where each jury member settles on believing a different agent committed a bad act but cannot agree on one agent. In short, the judge's ruling goes way beyond a judicial construction of existing criminal law and is a terrifying, enormous and grossly incorrect ex post facto expansion of criminal liability - and approaches the kind of action condemned by the Constitution's prohibition on ex post facto legislation.

The judge also seems to be confusing principles of civil and criminal law. This is a criminal case - resulting in punishment if there is a conviction. If there is no one, particular agent found guilty then nobody's action warrants punishing the corporation. The judge's ruling is so obviously wrong that it seems likely the judge realizes she is probably in error - but she may believe she perhaps has a colorable argument. She may have made her ruling on the hope Andersen will settle with the government after the erroneous conviction. But following the conviction Andersen will have no reason to settle, and ought to and probably will appeal.

Of course, if the Andersen attorney had fixed the problem by moving to amend the jury instruction before the jury started deliberating, they probably would have succeeded, since neither the judge nor the prosecutors would have been motivated to insist on a likely erroneous construction of the law. Indeed, at that point, the prosecutors thought they had an easy case and would probably have favored a correct construction of the law, since the incorrect construction on which they are now forced to rely - and the judge has now adopted - invites reversal.

Yesterday, the same judge deleted from the jury instructions a reminder to the jury that they had to find that the evidence showed guilt beyond a reasonable doubt and had previously engaged in a courtroom shouting match with Andersen's lead counsel.

It should be quite an appeal if the jury convicts.

Also, as noted in a previous post, an argument can be made that if Andersen were convicted on the express jury finding that one, identified agent was found beyond a reasonable doubt to have committed the crime in question, then that agent could be bound by that finding under the doctrine of collateral estoppel. If that argument is correct, then Fifth Amendment “jeopardy” should have attached to all of the agents no later than the time the Andersen jury began to deliberate (since all of the agent were each at risk of such a finding). Under the same assumptions, if Andersen is convicted pursuant to an express jury finding that no single agent was found to have committed obstruction of justice (but each juror has his or own agent believed to have committed the crime - as the judge now allows), then each agent should be able to assert a Fifth Amendment “double jeopardy” claim against re-trial. That is, an argument can be made that another consequence of the incorrect construction of the law now adopted by the court is that the government, having convicted Andersen on the theory of a "guilty agent" may be barred from actually convicting any of the agents by action of the doctrines of collateral estoppel and double jeopardy if the jury does not find a particular agent to have committed the crime beyond a reasonable doubt. Moreover, it should not be necessary that collateral estoppel does apply to bind an agent - it should only be necessary that it might apply in any conceivable circumstances or application of judicial discretion, because in that case each agent was placed at risk by the Andersen trial (or, in Fifth Amendment terms, "in jeopardy"). Of course, under prevailing notions of double jeopardy, if a jury has tried and failed to reach a unanimous verdict, a new trial may be held - but if there is a conviction of the corporate defendant this rule does not apply. The question then seems to becomes one of untested collateral estoppel policy.

Is that argument correct? It is hard to say, mostly because the judge's ruling in this case is already so bizarre that its consequences rapidly move analysis into the furthest reaches of speculation.

Posted 1:43 PM by Robert

The Silliness Gap

Paul Krugman's columns have become so consistently ridiculous, and Jane Galt and other good bloggers do such a good, if increasingly unchallenging, job taking the columns apart, that the Man Without Qualities will not attempt a general analysis of today's Krugman silliness. However, a few observations are irresistible.

Mr. Krugman writes:

"In 1981 those captains of industry were paid an average of $3.5 million, which seemed like a lot at the time. By 1988 the average had soared to $19.3 million, which seemed outrageous. But by 2000 the average annual pay of the top 10 was $154 million. It's true that wages of ordinary workers roughly doubled over the same period, though the bulk of that gain was eaten up by inflation. But earnings of top executives rose 4,300 percent."

Mr. Krugman has shown himself to be a Clinton-Gore apologist con brio - sometimes with subtlety. Here, he chooses the intervals 1981- 1988 and 1988-2000 to discuss chief executive compensation. Are we to believe that no figures for the interval 1992-2000 were available to Mr. Krugman? But using THAT interval would have had the unfortunate effect of making explicit that the disparity in chief executive pay over ordinary worker pay accelerated greatly during the Clinton administrations. No.No. Mr. Krugman can't do that. Mr. Clinton made much of this disparity in his original 1992 campaign, so exposing the fact that his administration aggravated what he and his camp present as a "problem" would expose a tender bit of Clinton-Gore hypocrisy.

Mr. Krugman needles fellow economist Glenn Hubbard, now chairman of the Council of Economic Advisers, as having "demonstrated his fealty during the first Bush administration "with a ludicrously rigged study."

Mr. Krugman demonstrates his fealty to the Clinton-Gore Administrations and the Democratic establishment with almost every column, here by the simple expedient of cooking his books by choosing an interval that ludicrously absorbs the first Bush Administration into the Clinton-Gore era.

Mr. Krugman is apparently so silly that he doesn't realize he is selling out to benefit people who would toss him overboard for a farthing.

Posted 5:15 PM by Robert

Convicting Andersen By Calculus II:
The Like of It Now Happens

In a prior post, the Man Without Qualities pointed out that the Andersen jury instructions created a serious problem by leaving unclear whether the jury had to settle on one Andersen agent as a 'corrupt persuader."

Well, the Wall Street Journal is now reporting [link requires paid subscription] that this may be exactly the hang up in Houston:

The new note .. asked whether, in order to convict the accounting firm, each juror had to agree that the same person at Andersen was to blame for whatever crime was committed.

"If each of us believes that one Andersen agent acted knowingly and with corrupt intent, is it for all of us to believe it was the same agent?" the note said. "Can one believe it was Agent A, another believe it was Agent B, and another believe it was Agent C?"

...

Prosecutors have tried to pin the title of "corrupt persuader", an element necessary in the federal indictment, onto Andersen partners David Duncan, Nancy Temple, Tom Bauer and Michael Odom for ordering employees to follow the firm's document retention policy, which calls for the destruction of documents not part of final work product.

Defense attorneys argued that jurors must unanimously agree on at least one corrupt agent. ...

`"As long as they agree on the bottom line, it isn't necessary for them to agree on the same actor,'' argued Assistant U.S. Attorney Andrew Weissmann.

Judge Harmon hasn't yet ruled on the latest question.

Andersen should win on this construction of the law. But, as the Man Without Qualities pointed out in the prior post, this is something the Andersen lawyers should have made clear in the jury instruction before deliberations began. It's nice that Andersen's attorney, Mr. Hardin, is smart and folksy. But a lawyer also has to get the law right.

UPDATE: The New York Times now also has the story.

Posted 2:15 PM by Robert

Scooped Again!

It turns out that the Man Without Qualities is not the first to observe the irrationality (and potential danger) of the First Amendment exception in FISA. Herbert Romerstein makes much the same point in Human Events:

There has been much talk in the press over the past several days complaining that the FBI and CIA do not exchange information. Of course they do not. Restrictions on the flow of information were put in after the Church-Pike hysteria, and were, of course, reflected in FISA, which includes a provision that no information obtained in a wiretap "shall be disclosed for law enforcement purposes unless such disclosure is accompanied by a statement that such information, or any information derived therefrom, may only be used in a criminal proceeding with the advanced authorization of the attorney general." This would prevent sharing FBI information even with other parts of the FBI.

If the person under suspicion is planning a terrorist action, the wiretap warrant could not be obtained if the information about this was derived "solely upon the basis of activity protected by the 1st Amendment to the Constitution." So if someone uses his free speech protection to advocate terrorism, he can’t be wiretapped to prevent him from carrying out the threat.

This brings us to the U.S.A. Patriot Act passed by Congress after September 11. You would hope that these defects might be fixed. Some others were, but not those we are talking about in this article. The Patriot Act, like FISA, requires that a crime has been or is about to be committed before a terrorist’s phone can be tapped. The new law also requires "evidence of a criminal offense" and says the wiretap cannot be obtained "solely upon the basis of activities protected by the 1st Amendment." Derived from FISA, the Patriot Act repeats this phrase over and over again.

The 1st Amendment protects us from the government’s preventing our freedom of speech. If we choose to exercise it in such a way that we tell the government that we intend to commit terrorist acts, the government should watch us, and even wiretap us. If a police officer stops a speeding car and sees a bumper sticker with a marijuana leaf, he would be a pretty stupid policeman if didn’t sniff the air and look into the open ashtray for handmade cigarette butts. The driver has the constitutional right to his bumper sticker, but if it tells the policeman what the driver intends to do, the policeman should not ignore it.

Posted 10:13 AM by Robert

And While You're at It, You Might As Well ... II

The Man Without Qualities has received the following letter from Philippe Richards regarding the prior post on the FISA First Amendment exclusion:

I disagree with you about FISA's probable cause standard, but your First Amendment discussion really takes the cake for sheer ridiculousness.

The FBI can use the statement made on a soapbox in Central Park, whether slanderous or not. It's evidence. What the statute says is that someone cannot be considered an agent of a foreign power solely because of First Amendment activities. For example, you could not be considered an agent of Britain for FISA purposes solely because you might have said you were glad Britain beat Argentina in the World Cup. Or by arguing in public that Israel should get out of the West Bank. These things don't make you an agent of Britain or of the Palestinian authority. And by the way, admitting you are a member of Al-Qaeda is something other than a First Amendment activity. It's a confession to membership in a criminal conspiracy, and is not "protected" by the First Amendment(what government would have any interest in suppressing that kind of speech?).

But this isn't even the type of activity that the FISA provision is concerned with. No, what it is concerned with, ironically, is a situation where the United States person really is an agent of a foreign power. These agents are all over the U.S., especially in Washington, which is literally crawling with them. They are openly acting as agents of foreign powers, friendly and unfriendly, are even meeting with high-level US officials, especially Members of Congress. You've undoubtedly seen some on TV. Have who figured out who these people are?

I'll give you a hint. Many have offices on K Street in D.C.

Many lobbyists have offices "on K Street in D.C." Mr. Richards appears to believe that the FISA First Amendment exclusion mostly concerns protection of lobbyists. I see little chance that this writer is correct, since the clear language of the exclusion applies to all United States persons and all of their "activities protected by the first amendment to the Constitution of the United States." Speaking on a public soapbox is the absolute paradigm of activities protected by the first amendment to the Constitution of the United States. Simply put: one's own "activities protected by the first amendment to the Constitution of the United States" can be used as evidence in a criminal trial - even though the activities themselves cannot be made crimes. A public confession of a crime is still protected speech. But the FISA exclusion expressly states that these activities can't be used as the sole evidence supporting a finding that a target is an agent of a foreign power. It is true, as the writer says, that "you could not be considered an agent of Britain for FISA purposes solely because you might have said you were glad Britain beat Argentina in the World Cup" - but this should be because being "glad Britain beat Argentina in the World Cup" does not normally have probative value of foreign agency.

On the other hand, if Mr. Richards is correct, then the FISA First Amendment exclusion is much more bizarre and inappropriate than I could possibly have imagined.

Posted 4:23 AM by Robert

And While You're at It, You Might As Well ...

The renovating homeowner's most terrifying moments of epiphany are often marked by the contractor emitting the words "And while you're at it, you might as well ..." With this fateful utterance begins the description of a huge extension of the modest project one originally conceived, an argument made horribly ineluctable by the cruelly casual observation "it will be a lot cheaper to do it all now!" And the worst of it is HE'S USUALLY RIGHT! Do contractors have to go to some demonic school to learn this kind of thing?

Well, sensible people understand that the Foreign Surveillance Intelligence Act (FISA) needs an overhaul, especially its way-too-high “probable cause” standard for search warrants of non US persons. But while you’re at it, there are other bizarre aspects of FISA that need to be changed, too. Within FISA’s provisions for issuing warrants against agents of foreign powers is the following prohibition:

“[N]o United States person may be considered an agent of a foreign power solely upon the basis of activities protected by the first amendment to the Constitution of the United States.”

Zacarias Moussaoui was not a United States person, so this provision was not implicated in the FBI’s failure to obtain a warrant to search his computer. But if Moussaoui had been a United States person, consideration of the evidence of his contacts with “radical Islamic” representatives in Europe – the very French intelligence on which Agent Rowley’s memo places so much trust - would arguable have been expressly disallowed.

But the more recent arrest of Jose Padilla, also known as Abdullah Al Mujahir throws the irrationality of the above provision into high relief. Mr. Padilla is a United States person, who appears to be the agent of a foreign power – al Qaeda. We know this largely because of his contacts with “radical Islamic” representatives in Europe. But as Ann Coulter points out, “radical Islamic” representatives are very common in the general mix of Islam, especially in places like Britain. Much of this evidence of contacts with “radical Islamic” representatives would likely be impermissible under FISA in establishing Padilla’s status as an agent of the radical Islamic terrorist conspiracy al Qaeda.

Does this make any sense? Suppose an American citizen gets up on a soap box in Central Park and tells the public: “I am an agent of al Qaeda, the very group that destroyed the World Trade Center.” There is no question that such an American citizen has the First Amendment right to say such things in such a place and cannot be punished for saying it, but there is no also question that his statements could be used against him as evidence in a criminal conspiracy prosecution. So why does FISA expressly prohibit the FBI from using that evidence to establish his status as an “agent of a foreign power” in order to obtain a FISA warrant?

Any evidence that demonstrates a target is an agent of a foreign power - even if the evidence arises from activities of a United States person that are protected by the First Amendment - should be allowed for the purposes of showing an American is an agent of a foreign power and obtaining a FISA warrant.

The FISA First Amendment provision is even more bizarre than what the Padilla case exposes. Suppose the American citizen’s soapbox statements were slanderous in some way. Suppose, for example, he said that he has become a member of al Qaeda because George Bush had ordered the murder of Ten Million innocent Islamic babies, a statement that he knows to be completely false. Well, under the slander law and the Constitution, George Bush could successfully sue that American for slander – and Mr. Bush even has the right to obtain punitive damages for the intentionally slanderous statement. So the American doesn’t have a complete right to say the things he said. It is true that the First Amendment prohibits anybody from stopping his soap box speech – but he can be punished for it later. So in that case his speech doesn’t seem to be “activities protected by the first amendment to the Constitution of the United States.” So the statements can be used to obtain a FISA warrant?

Or suppose the American citizen chose to articulate his statement that he was a member of al Qaeda in print, in a way that made him money and also intentionally infringed someone else’s copyright. The owner of the copyright could obtain an injunction and damages, and federal copyright law makes the infringement a felony. It seems impossible to argue in this case that his statement of affiliation with al Qaeda constituted “activities protected by the first amendment to the Constitution of the United States.” So it appears his statements can be used to obtain a FISA warrant.

Could anyone in his right mind argue this makes sense? But that's what FISA says.

Posted 6:04 PM by Robert

Unchained Melody In Houston

The Houston jury considering the obstruction of justice case against Andersen has now declared itself deadlocked to the judge. The judge then ordered the jury to continue deliberations and "removed a sentence from instructions, known as an Allen Charge, approved by the 5th U.S. Circuit Court of Appeals that reminds jurors they must render an innocent verdict if 'evidence fails to remove reasonable doubt.'''

One would normally think that a jury should be reminded that a criminal charge needs to be proved beyond a reasonable doubt. If the removal of this sentence makes the difference in obtaining a conviction, the government may have a tough time showing the jury didn't convict against the law. If the removal of this sentence is expected to make no difference in obtaining a conviction, why did the government ask for it or allow it?

It is worth a moment to contemplate the contrast these developments make with the Enron-fueled media hysteria raging over the past several months. Those convinced of the Enron/Andersen guilt, when faced with the observation that the evidence of deliberate and intentional fraud seemed pretty thin would generally revert to what was thought to be terra firma: the destruction of documents. There, at least, was a clear crime - obstruction of justice. Such agitatedly convinced people would (and do) argue, their voices literally or in literary tone often rising to a piercing shriek, "It is clear that anyone destroying so many bits of paper and electronic engrams must be trying to conceal a monstrous crime!!" Of course, very few people have been faced often or consistently with the observation that the evidence of deliberate and intentional fraud seems pretty thin - indeed, perhaps only the valued regular readers of the Man Without Qualities have had this experience.

As also noted by the Man Without Qualities previously, to convict on an "obstruction of justice" charge the government doesn't even need to show there was any crime - monstrous or otherwise - which might have been revealed by its investigation. The government only has to prove that one Andersen agent ordered the documents destroyed with the intent to obstruct the investigation itself.

But the jury says it can't even get that far - even though the Andersen partner in charge, David Duncan, confessed to exactly that. There is at least one clear lesson in all this: if David Duncan has been taking his attorney's advice, the attorney should be fired immediately regardless of whether the jury eventually ekes out a conviction of Andersen! There was no need for Mr. Duncan to succumb to government and media pressure the way he did.

As for the rest of us, there is little hope that the Enron/Andersen lynching party will calm down soon. So look for charges that the prosecutors were "incompetent," or "threw the case", or are in cahoots with Enron! And, most of all, look for this to be used against John Ashcroft.

Now, if only we could find a way to make the government really take a serious interest in the behavior of the commercial banks in the Enron meltdown - especially Citibank and its own Darth Vader: Robert Rubin. The silly, pseudo-investigation masque before the Congressional committees was a bad joke.

Posted 3:38 PM by Robert

What Was That?

The general infatuation with Agent Rowley and her memo seems to be lifting like the spell of a toy craze - Beanie Babies or the Cabbage Patch Dolls. That doesn't mean Agent Rowley is a bad person, or has nothing true or interesting to say - any more than Beanie Babies or the Cabbage Patch Dolls are without their particular charms.

In addition to previously listed Rowley-skeptics, Matt Yglesias parts from the Church of Rowley ("Iglesia de S. Rowley, Reina de Los Angeles de la Oficina de la Investigación Federal" to believers), Jeff Jarvis is also an apostate (Andrea Harris says these guys are "Liberal New Males" who need to get over themselves), and Richard Bennett has also rather utterly fallen from the fold.

The comments on all of these blogs are also interesting. The Rowley magic is gone or going fast, the way Roz Chast notes it went from the likes of cake mixes and TV – and I add Beanie Babies and Cabbage Patch Dolls.

Posted 8:22 PM by Robert

What Is "Probable Cause"?

There has been discussion here about "probable cause." So it seems to makes sense to post a discussion of what "probable cause" is.

For federal law purposes, the term "probable cause" arises most significantly in the Fourth Amendment in the Bill of Rights:

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

So the applicable Fourth Amendment rule is: no search warrant is issued without a showing of "probable cause."

FISA provides that a warrant for a "physical search" (warrants for "electronic searches" are issued under similar standards) are issued under that statute if "on the basis of the facts submitted by the applicant there is probable cause to believe that - (A) the target of the ... search is a foreign power or an agent of a foreign power...; and (B) the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power." One additional detail: under FISA, a foreign terrorist conspiracy is a "foreign power".

So there is first the Constitutional concept of "probable cause" and second there is the FISA concept of "probable cause." One term - two meanings. A threshold question: Is the FISA consistent with the Constitutional concept of "probable cause."

"Probable cause" is not defined anywhere in the Constitution. The current Supreme Court test for finding "probable cause" is:

"The task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place. ... We are convinced that this flexible, easily applied standard will better achieve the accommodation of public and private interests that the Fourth Amendment requires ..."

Some people view the FISA definition of "probable cause" as simply inconsistent with (or broader than) the Constitutional concept. For example, Jonathan Turley believes that "[v]iewed by many as unconstitutional, the FISA court allows the government to search citizens without a showing of probable cause." Where he means "without a showing of Constitutional probable cause." Is this true in the case of foreign powers that are terrorist conspiracies?

Looking now just at foreign powers that are terrorist conspiracies, we can ask: Will the Supreme Court test ("given all the circumstances ... there is a fair probability that contraband or evidence of a crime will be found in a particular place") be met where the FISA test is met ("the target of the physical search is a foreign power or an agent of a foreign power ... and ... the premises or property to be searched is owned, used, possessed by, or is in transit to or from an agent of a foreign power or a foreign power")? In other words, if you search premises owned or possessed by a person who is an agent of a foreign terrorist conspiracy, is there a fair probability you will find evidence of a crime or contraband? As a "practical, common-sense decision" (which is what the Supreme Court directs), of course there is! There is no serious question as to the Constitutionality of FISA as now written and applied to foreign powers that are terrorist conspiracies.

But what if FISA were amended so that a warrantless search could be conducted of a non-US person simply where the authorities have a "reasonable suspicion" that the target of the search is a terrorist or the agent of a foreign terrorist conspiracy? Would THAT be a Constitutional version of FISA?

Probably yes. The Supreme Court has used several tests for Constitutional "probable cause" over the years. The case in which the current test was articulated stressed the need for "achieve the accommodation of public and private interests that the Fourth Amendment requires." Moreover, the Constitution grants to the Congress special powers over the rights of non-US persons which it does not have over US persons (especially citizens). No non-US person has a right to be in this country and move about in this society except with the consent of Congress. Put another way, a non-US person exists in a condition very much like probation. The Supreme Court has recently held that warrantless searches of persons on probation do satisfy the Fourth Amendment. With the safeguards imposed by the "reasonable suspicion" test, the special powers of Congress over non-US persons and the special needs created by terrorism, there should be little doubt that this decision would extend to cover FISA searches of non-US persons.

What about obtaining a warrant? One curious aspect of the Fourth Amendment is that it does not require "probable cause" for warrantless search (they are only required to be "reasonable"). But the Supreme Court generally requires that a warrant be obtained where practical - and that will often be the case where the target of a search is a non-US person. Is that a problem?

Probably not. Congress could amend FISA to include a new provision stating that where the target of the search is a non-US person, "probable cause" means a showing based on the totality of the circumstances of reasonable suspicion supported by articulable facts that the target is a foreign terrorist or is an agent or member of a foreign terrorist organization, regardless of whether the particular organization can be identified.

Would such an amendment satisfy the Supreme Court's test quoted above: "a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the 'veracity' and 'basis of knowledge' of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place." Yes. "All of the circumstances" should include the special powers Congress has under the Constitution over non-US persons and the special intelligence needs arising from the threat of foreign terrorism. With those circumstances taken into account, the weaker definition of "probable cause" should pass Constitutional muster in a walk.

Posted 4:59 PM by Robert

As Time Goes By In Houston

The Wall Street Journal (link requires paid subscription) today reports, in part, that:

"The ... Andersen ... jury deciding the accounting firm's fate in criminal proceedings went back to their hotel Monday evening without delivering a verdict."

....

"Andersen faces a felony charge of obstruction of justice, accused of trying to block an investigation by the Securities and Exchange Commission into Enron Corp. (ENRNQ) financial disclosures by destroying documents related to the accounting firm's audits."

"It's clear they're deadlocked," said Robert Gordon, a jury consultant who has been watching the trial. Gordon added that a deadlocked panel doesn't necessarily mean that they can't eventually reach a verdict.

But, he said, the defense should be excited that deliberations have lumbered into a sixth day.

This report is the most recent indication that even the supposedly "slam dunk" charges of obstructing justice against Andersen - the easiest part of the Enron mess - are proving a lot harder to establish than the media or the government thought would be the case.

This Andersen trial was supposed to be a warm up for the vastly more complicated and difficult task of bringing fraud related charges against Enron, Andersen and their affiliates.

The Andersen jury now deliberating may still eke out an obstruction of justice conviction. But, even so, the people at the Department of Justice and the Securities and Exchange Commission in charge of this matter have probably taken all the champagne bottles out of their office refrigerators by now. They’re probably not looking forward to those vastly more complex and difficult prosecutions after going through what was supposed to be a little romp in the park for the prosecutors.

Before the trial opened, the major media ran all those silly quotes from supposed “legal experts” who predicted that Andersen’s only chance was to hope that the jury would acquit against the law. Now, as prior Man Without Qualities posts have argued, it’s the prosecutors who may have been reduced to hoping that the jury will convict against the law.

Posted 11:46 AM by Robert

UPDATE: Saint Rowley Continues Fall From Empyrean Rose Petal!

FURTHER UPDATE:At least Mr. Adragna appears to have abandoned (or at least isn't now talking about) his prior bizarre suggestion that John Ashcroft could have just certified all the FISA requirements as fact under oath - thereby almost certainly committing perjury from what we know now, since even Mr. Adragna and his supporters now seem to be admitting that such a clear demonstration was impossible - in order to obtain a "physical search" warrant of dubious value in conducting a legal electronic scan of the suspect computer! So it seems Mr. Adragna may have made SOME minimal intellectual progress - if only sub silentio and without understanding this new inconsistency. Unless Mr. Adragna thinks its OK to certify facts to a federal court under oath when one only knows things are "probably true" or there is a "fair chance" they are true. Most people don't think that's right. And a lot of prosecutors would perk up and get right to work if they found out it had happened and could prove it.

Mr. Adragna has been adamant in his insistence that it is hugely important to get the FISA standard just right - and to understand that the FISA standard is not "probable cause" as Agent Rowley defined it (that is, "more likely than not"). That has been important to Mr. Adragna because, among other things, Agent Rowley's memo says "probable cause" is too high a standard - which it is. These are things important to him.

The Man Without Qualities has argued forcefully that the real problem with FISA is a standard that requires FBI lawyers to engage in such fine-spun analyses over a too-high standard with respect to non-US persons, just as Professor Heyman and many other sensible people now understand. That standard should probably be the long-established "reasonable suspicion" test (and since Mr. Adragna and his co-believers have trouble understanding conspiracy law, that includes "reasonable suspicion that the suspect is himself a terrorist or is an agent of or a co-conspirator with, any foreign terrorist group") - provided the suspect is NOT a US person.

But Mr. Adragna and his supporters continue to stand on the burning deck - complaining that nobody is listening to them. And that last part is not a bad thing.

_________________________________________________________________________


Postcript: There is zero chance that either Director Mueller or Stuart Taylor ever believed that FISA requires demonstration of anything "absolutely" or "as a fact" or under the "reasonable doubt" standard. Nor is there any reasonable way to construe what either of them has said or written to produce that result. Each of them is a sophisticated legal expert who is fully aware of the probabilistic nature of the "probable cause" standard. It is some measure of the naivete and intellectual desperation of Mr. Adragna and his supporter that they are driven to tilting at such windmills of their own invention.

_________________________________________________________________________


Jonathan Turley

More commentators are realizing that Agent Rowley's memo is not Holy Writ (or even good law). On May 30 Jonathan Turley wrote on the pages of the Los Angeles Times against this sad consequence of media whistle-blower-worship.

Some - But Not All - Dots Are Being Connected?

In another development, Mr. Adragna now copies some of the portion of the transcript of Director Meuller's testimony presented by the Man Without Qualities in an earlier post with a note of Mr. Adragna's lapse. Mr. Adragna now presents his copy without addressing his prior omission. That's OK with me. But he's still omitting a lot posted here earlier that would be needed to meet his own standard of "completeness."

Seems to Have Lost a Dot

Incidentally, Mr. Adragna adopts a suggestion that Mickey Kaus has "lost it." But it is Mr. Adragna who seems to have a continuing problem with distinguishing that which must be proved from the applicable standard of proof, as indicated, for example, in this excerpt (Mr. Adragna's comments are in his brackets) :

"HATCH: Thank you, Senator Leahy."

"Mr. Mueller, as I understand it, the Patriot Act has worked quite well so far, but there is one area where you're having difficulties, and that's FISA requests. We're currently--to get a warrant, there's a requirement of proof of association with the foreign power. Am I right on that?"

"[Wrong! The requirement is to show "a fair probability that..."]

"MUELLER: There is a requirement under the FISA statute that we demonstrate a belief that the person who is under scrutiny and for whom we wish to obtain court-ordered interception is a, quote, 'agent of a foreign power.' And that has been defined as including an individual who is associated with a terrorist group".

"[The demonstration of a belief that the person is a "foreign agent" needn't show that the person is in fact a "foreign agent", but only that the person probably is a foreign agent.]"

Granting Mr. Adragna all his premises, it is remarkable that he writes in one sentence that FISA requires a showing that a suspect "probably was" an agent of a terrorist group, where one bracketed sentence earlier he said that "the [FISA] requirement is to show "a fair probability that..." Which one is it that Mr. Adragna believes to be the FISA standard?

Also, since Mr. Adragna is one of the nation's most devoted worshipers of Agent Rowley's memo, we should note that her memo says "'probable cause" mean[s] that the proposition has to be more likely than not, or if quantified, a 51% likelihood."

Doesn't that read as if Agent Rowley thinks by showing that a suspect "probably was" an agent of a terrorist group the FBI would have demonstrated FISA "probable cause?"

Most people think "probably was" (as Mr. Adragna describes the FISA standard) means the same thing as "more likely than not" (as Agent Rowley defines "probable cause").

To Mr. Adragna and his like the security of the United States rests on a linguistic nuance even he can't consistently maintain, and which seems to be even more subtle than "what the meaning of "is" is."

Posted 10:16 AM by Robert

Further Stuart Taylor Update.

The Stuart Taylor column described below now appears on his free National Journal web site. Read! Think! Enjoy!

Posted 5:16 PM by Robert

Cost Benefit 101: Holmes' Bad Men

Justice Oliver Wendel Holmes, Jr. had his "bad man theory of the law."

Justice Holmes' thought doing a bad act makes economic sense to an individual bad man if b > p X D, where

b = perceived benefit to the bad man of doing bad act.

p = perceived probability of the bad man getting caught.

D = perceived downside liability to the bad man if he is caught.

Sometimes the bad man loses even if he acts rationally.

Consider tax evasion. Holmes said he enjoyed paying taxes because they are the price of civilization. Not everyone agrees. A cleverly rigged private tax-fraudulent transaction of a type not normally subject to the eyes of auditors, bank representatives or Securities and Exchange Commission investigators is unlikely to be discovered or proved. If it is, the financial tax penalties are substantial but not overwhelming. Criminal tax prosecutions are rare. And, in any event, unless a lot of other things are going wrong at the same time, most people view a taxpayer's problems with the IRS or state tax authorities to be a private matter - rightly or wrongly. So both p and D are low - and b can be high. Of course, tax fraud is one of those crimes that is often a part of a much larger illegal scheme with correspondingly much larger benefits - and so is often particularly inappropriate to consider in isolation from a cost-benefit perspective.

But it can turn out that some clever investigator sees something that makes him investigate - and he may figure out how to prove what he suspects. He may even be angry enough to bring those rare criminal charges (remember Leona Helmsley?). And if enough other things are going wrong - perhaps as consequences of that larger scheme - the tax charges could cost a lot more than was originally perceived as their risk.

Robert Burns often-quoted poem sums it up one way: "The best laid schemes o' mice an' men/ Gang aft agley/ An' lea'e us nought but grief an' pain/ For promis'd joy!"

And Oscar Wilde sums it up another: "Experience is the name everyone gives to their mistakes."

It may be that Mr. Kozlowski is learning all of this first hand right now.

If the allegations and suspicions against Mr. Kozlowski are true, he appears to be a prime example of one of Justice Holmes' economically calculating "bad men." And yet, there are commentators who first apply their characteristic "execution now, trial later" looking-glass logic to conclude that Mr. Kozlowski is guilty as charged and suspected - and then, amazingly, to cite him as a counterexample to Holmes' "bad man" theory of economic incentives. Indeed, if the largest allegations against Mr. Kozlowski are true, he may be a prime example of the dangers of putting a person with no large, independent fortune in charge of a public company (although it can make sense to do that, too). Mr. Kozlowski is not reported to be a wealthy man outside of his Tyco holdings.

Posted 10:42 AM by Robert

Speak, Obscurity!

The Wall Street Journal article (link requires paid subscription) referred to in the post below in the course of Mr. Meuller's Congressional testimony ran on June 6, and was written by Gary Fields and Jess Bravin. It reads in part as follows:

"Sens. Charles Schumer (D., N.Y.) and Jon Kyl (R., Ariz.) said their amendment to the Foreign Intelligence Surveillance Act would lift a requirement that the Federal Bureau of Investigation show that the subject of a requested warrant is an agent of a foreign government or a terrorist group. ..."

"The amendment from the two Judiciary Committee members would permit surveillance only of people who aren't citizens or don't hold a green card for permanent residency in the U.S. It could end up becoming a test of whether the momentum for antiterrorism measures remains strong, at a time when concerns about civil-rights infringements increasingly are being voiced."

"Philip Heymann, who served as President Clinton's deputy attorney general, said that the legislation "doesn't go far enough," and that authorities should be able to monitor aliens based on a "reasonable suspicion" that they are engaged in terrorism -- not the higher "probable cause" standard, as the amendment proposes. 'We should allow pretty free electronic surveillance' of people who are not legal residents of the U.S., said Mr. Heymann."

"Civil-liberties groups, however, disagreed. 'Until there is a full investigation of what went wrong with our intelligence agencies, no new powers should be granted,' said Michael Ratner, president of the Center for Constitutional Rights, a New York advocacy group that has filed lawsuits on behalf of those targeted by the government's antiterrorism campaign. 'Let's face it, the FBI blew it because of incompetence, not because of a lack of spying powers,' he said.

In the way of background, Mr. Heyman is no fan of the President or his Administration's anti-terrorism efforts - and he does not have a history of being insensitive to civil rights issues. Mr. Heyman is perhaps best known for his resignation as President Clinton's deputy attorney general in what many people saw as disgust and embarrassment over the scandalous behavior and management of the Clinton Justice Department. He now resides in the obscurity of a law professorship at Harvard.

And, remember, to a self-mythologizing "civil liberties advocacy group" such as the CCR there is NEVER a "full investigation" of "our intelligence agencies."

Posted 10:03 AM by Robert

EXTRA! Stuart Taylor Update!

The fine Stuart Taylor column described below may eventually appear on his free National Journal web site. But it isn't there now, and I'm not sure how he chooses what is posted there. But visits to the site are more than adequately justified on other grounds, anyway.