Posted 1:34 PM by Robert

Late Stage Paranoia At The New York Times

Buffalo Springfield sang with eerie, unknowing prescience about the future of the New York Times when they trilled: Paranoia strikes deep, Into your life it will creep, It starts when you're always afraid ... Many at the helm and keyboards of the New York Times have long teetered on the very edge of full blown paranoia, but yesterday's Times editorial "Mr. Cheney's Imperial Presidency", which says the vice president is literally attempting to make the United States into a dictatorship (among many other nefarious purposes) is a headlong plunge into the abyss:

George W. Bush has quipped several times during his political career that it would be so much easier to govern in a dictatorship. Apparently he never told his vice president that this was a joke.

Virtually from the time he chose himself to be Mr. Bush's running mate in 2000, Dick Cheney has spearheaded an extraordinary expansion of the powers of the presidency - from writing energy policy behind closed doors with oil executives to abrogating longstanding treaties and using the 9/11 attacks as a pretext to invade Iraq, scrap the Geneva Conventions and spy on American citizens.

It was a chance Mr. Cheney seems to have been dreaming about for decades. ... The president "needs to have his constitutional powers unimpaired, if you will, in terms of the conduct of national security policy," Mr. Cheney said ... Before 9/11, Mr. Cheney was trying to undermine the institutional and legal structure of multilateral foreign policy: he championed the abrogation of the Antiballistic Missile Treaty with Moscow in order to build an antimissile shield that doesn't work but makes military contractors rich. ... Mr. Cheney ... gathered his energy industry cronies at secret meetings in Washington to rewrite energy policy to their specifications. Mr. Cheney offered the usual excuses about the need to get candid advice on important matters, and the courts, sadly, bought it. ... Mr. Cheney gathered people who agreed with him, and allowed them to write national policy for an industry in which he had recently amassed a fortune.

The effort to expand presidential power accelerated after 9/11, taking advantage of a national consensus that the president should have additional powers to use judiciously against terrorists.

Mr. Cheney started agitating for an attack on Iraq immediately, pushing the intelligence community to come up with evidence about a link between Iraq and Al Qaeda that never existed. His team was central to writing the legal briefs justifying the abuse and torture of prisoners, the idea that the president can designate people to be "unlawful enemy combatants" and detain them indefinitely, and a secret program allowing the National Security Agency to eavesdrop on American citizens without warrants. And when Senator John McCain introduced a measure to reinstate the rule of law at American military prisons, Mr. Cheney not only led the effort to stop the amendment, but also tried to revise it to actually legalize torture at C.I.A. prisons.

Gone from the Times ranting is any hint of respect for Mr. Cheney or his office, or any concession that Mr. Cheney may have acted with good intentions or subjective good faith, even if he has acted (by the Times' lights) in error. But the Times does make the completely unsupported insinuation that the vice president acted out of intent to enrich his "cronies" - and makes very clear that federal court holdings contrary to the Times' thinking mean nothing except that the court was easily deluded. The Times generally absurdly presents Mr. Cheney as having powers that dwarf those of most presidents. The Richard Cheney described by the Times has much more power than was wielded by, say, Jimmy Carter.

On the whole, the tenor of the editorial might make one wonder why the Times doesn't just come right out and assert that Mr. Cheney is the Great Satan, roaming the world, seeking the ruin of souls. The image presented by the Times of Mr. Cheney's power is as distorted and false as the image it presents of Mr. Cheney's character and probable motivations. The vice presidency is an office that carries almost no active executive power. Mr. Cheney acts only at the behest of the president. But the Times cannot admit that relationship because the paper is wed to the preposterous, condescending image shared by many liberals of Mr. Bush as a dimwit princeling controlled by evil geniuses, including Mr. Cheney. The Times even goes so far as to accuse Mr. Cheney of appointing himself as the president's running mate - an assertion completely and disgracefully contemptuous of the president.

According to the Times, the vice president has committed a great sin by thinking outside of (but "taking advantage of") a "national consensus" that formed after 9/11 and whose precise parameters are authoritatively known to the paper. Whatever scope the Times might ascribe to that post-9/11 "consensus," this much is clear: The actual post 9/11 consensus includes by most people's calculation (even the Times) the conclusion that the very Watergate-era reforms that the Times lauds as sacred included some unwise restraint on executive power. It has been the Times - not Mr. Cheney - that has been outside the actual post-9/11 consensus. For example, in the middle of 2002 the Times furiously editorialized:

Congress passed the U.S.A. Patriot Act, rolling back civil liberties in key areas, and the Bush administration has held hundreds in secret detention. The court, meanwhile, said nothing. Yesterday the justices made themselves heard for the first time, blocking a federal judge's order to open to the public immigration hearings for terrorism suspects. It is a troubling move ...

So the post-9/11 "consensus" posited by the Times apparently did not include Congress, the administration or the Supreme Court. Who could have participated? Perhaps it was a "consensus" reached among those in the Times newsroom? Did they remember to send Mr. Cheney the memo laying out the "consensus?"

Although the Times savages him for his belief that the Presidency must be preserved from encroachment, Mr. Cheney is scarcely alone in thinking that many post-Watergate "reforms" have disastrously weakened the executive - and some such "reforms" have already been repudiated even by the left. For example, together with much of the liberal establishment, the Times fulsomely endorsed the Independent Prosecutor Law, as long as it hamstrung Republican presidents, as in this 1987 editorial:

[T]he Reagan Administration shamelessly pressed a legal attack on the Independent Counsel Act and lobbied Congress against its renewal ...

That supremely unwise law has now expired without any significant interest in Washington in again renewing it. Why? Simply because the near-paralysis of the Clinton administration brought on by that Act caused the scales to fall even from most Democratic eyes, resulting in a clear national consensus that the Independent Counsel Act was poor legislation. But the New York Times continued to defy that consensus: The Independent Counsel Act will expire ... and unfortunately most members of Congress would just as soon see the law fade into history. One might also note that the Supreme Court's post-Watergate era decisions have often reflected a serious concern over the erosion of the executive at the hands of Congress, as with the Court's spectacular overturning of the "legislative veto" as an unconstitutional usurpation of presidential power by Congress.

Any fact that might obstruct the demonization of Mr. Cheney is simply ignored by the Times. For example, the vice president is insinuated as having distorted intelligence analysis to bring about the Iraq war, despite the express repudiation of this suspicion by the 9/11 Commission report. And among many other supposedly evil acts, the Times assigns to the vice president (!) responsibility for the NSA warrantless but apparently legal surveillance program that the paper has recently been disparaging. But the editorial utterly ignores (to the point of making one wonder if the writer is even aware) that this "dictatorial" program has been strongly supported (in the form of a Chicago Tribune op-ed “President Had Legal Authority to OK Taps”) by former Clinton associate attorney general John Schmidt:

President Bush’s post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The Times editorial also ignores the strong judicial precedent cited by Schmidt, including both the Supreme Court’s 1972 Keith decision (explicitly pointing out that the Court was not questioning the president’s authority to order warrantless wiretaps in response to threats from abroad) and direct holdings by four federal courts of appeal - and much more. Nor does the Times editorial give even a nod to other views and facts that contradict the ridiculous impression of Mr. Cheney that the paper is trying to create, including Carter and Clinton orders under the Foreign Intelligence Surveillance Act of 1978, including Executive Orders 12139 (Carter) or 12949 (Clinton), which are both squarely inconsistent with the Times' posture. And no mention is made of California Democratic Congresswoman Jane Harman's (not unalloyed) support for the NSA program:

A recently disclosed government surveillance program "is essential to U.S. security," but it may go "far beyond" the effort to target al-Qaida terrorists described in secret congressional briefings, Rep. Jane Harman, the top Democrat on the House Intelligence Committee, said Wednesday. In her most extensive comments on the matter since the National Security Agency program was revealed last week by The New York Times, Harman, D-El Segundo, said "its disclosure has damaged critical intelligence capabilities."

The Times is certainly entitled to its own take on matters of public interest, such as the vice president's conduct of his office. But screaming that he is corrupt, uberpotent, evil-willed, bent on acquisition of dictatorial powers and opposed to a fictitious "consensus" is mostly going to convince reasonable Times readers that the paper of record has more than a few screws loose.

MORE: Good comments from Hoystory.

STILL MORE: From Maguire and Miller.

Posted 12:36 PM by Robert

Cocoon With A View

Although one knows it is truly dark and thick, the dimensions and effectiveness of the liberal cocoon still have the power to astonish. Consider this passage from "The Trouble With Hillary" by Kurt Andersen in New York magazine:

Lacking her husband's uncanny knack for finessing left and right, however -- the famous triangulation strategy - [Hillary Clinton] plays the game awkwardly, like a very earnest Vulcan who has closely studied Earth politics . . . . Still, the Democratic nomination is hers to lose, just as the general election will be the Republicans’ to lose, which they might manage by failing to nominate McCain or Giuliani. If the race is John McCain versus Hillary Clinton—by far the most likely possibility—and the electorate craves competence and integrity and common sense after eight rotten years of Bush, both candidates will look like equally reasonable choices. But alas, like every modern Democratic nominee except her husband, Hillary Clinton comes across as wooden, priggish, cold, too much superego, and too little id. I bet she and McCain will engage in an unusually civilized campaign. And whoever the nominees are, I bet the more likable, lusty, obviously human candidate will win.

Mr. Andersen's critique of Senator Clinton's limitations has some merit, but his assertion that a 2008 presidential race of John McCain versus Hillary Clinton is "by far the most likely possibility" is nothing short of bizarre - for the simple reason that the chances of John McCain winning the Republican nomination are all but microscopic. Just for starters, one might begin with the basic observation that senators make terrible presidential candidates, and almost never win. (Kerry? Dole? Humphrey? Etc., etc.) In addition, Mr. Andersen and his deeply-cocooned ilk seem to forget that in Senator McCain's prior presidential run, he received very few Republican votes. His only primary "successes" depended heavily on crossover votes by non-Republicans. Since then, John McCain has done little to burnish his reputation with "his" party's base. His "anti-torture" harping is deeply offensive to most of the Republican Party, as have been his assaults on defense spending, his resistance to efforts to block "gay marriage", his opposition to the "nuclear option," and his nearly constant efforts to undermine the president in many ways. That may all play well with the likes of Mr. Andersen, but Mr. Bush, who will have significant influence on the Republican 2008 choice, is highly unlikely to favor Senator McCain - which again seriously reduces the senator's prospects to obtain the nomination. And his stunts such as those that led to the entirely justifiable headline "McCain to Star in Boob Raunch Fest" cast serious doubt on McCain's judgment - as Susan Estrich(!) correctly noted. McCain's alienation from the Republican base remains perfectly fresh despite some rather silly efforts to portrait the senator as mending fences on the right (it's probably no accident that not a single "movement conservative" suggesting that McCain is better than once thought is actually named in this linked article).

Nor has John McCain been playing well recently with his supposed core supporters nationally. If there is any place in the country where a McCain candidacy might resonate (outside of favorite-son-excepted Arizona, although even here it's worth noting that earlier this year the conservative Arizona Republican Assembly voted unanimously during its annual state convention to censure Senator McCain) with "moderate" Republicans, it would be New York. But McCain's support has shrunk to insignificance there in large part because the senator is too old, as noted by Robert Novak:

Sen. John McCain, a potential 2008 Republican presidential candidate, has gotten a tepid response to a New York City fund-raiser Monday for his "Straight Talk America" political action committee. ... Many New York contributors to McCain's 2000 presidential campaign were reluctant to attend this year's event. The fact McCain will be 72 years old for the 2008 presidential campaign was cited to explain lack of enthusiasm, as was the senator's support for the Iraq war.

In the highly unlikely event of a McCain Republican nomination, a substantial independent candidate would almost certainly run in the general election somewhere in the vast reaches to McCain's right. So, contrary to Mr. Andersen's assertion, even in that case the race would not be McCain v. Clinton, but McCain v. Clinton v. _________, with McCain and Clinton splitting the center-left and faux center-left vote. Are Republicans supposed to ignore that fairly obvious likelihood and nominate Senator McCain anyway?

Let's look at the list:

Has spent career in United States Senate, widely seen as a terrible launching pad for presidency. (check)

Alienated from Republican base. (check)

Too old in the eyes of most likely financial backers. (check)

Has alienated the president and others running the national Republican party. (check)

Faces possible rebellion by core Republican voters in home state. (check)

Nomination would probably lead to third-party conservative candidate, and split center-left constituency sought by Hillary Clinton. (check)

And yet, despite all of these fairly obvious points, to Kurt Andersen, a 2008 presidential race of John McCain versus Hillary Clinton is "by far the most likely possibility."

Needless to say, the likelihood of a Republican nomination of Mr. Giuliani - who should be spending his time working to be elected governor of New York if he has not tired of elective office - is yet another order of magnitude smaller than Senator McCain's chances.

Of course, the above comments are not intended to address every ludicrous idea in Mr. Andersen's screed - there are just too many of them. But his suggestion that the election may turn on "the electorate crav[ing] competence and integrity and common sense after eight rotten years of Bush" is worth a moment of consideration. Would those "eight rotten years" not include the four rotten years leading up to Mr. Bush's reelection, with increased Republican margins in both houses of Congress? Perhaps that aspect of recent political history is not so visible from Mr. Andersen's cocoon with a view.

Posted 2:20 AM by Robert

Suddenly, Very Picky

U.S. District Judge James Robertson, one of 11 members of the secret Foreign Intelligence Surveillance Court, has reportedly resigned from that court in protest of President Bush's secret authorization of a domestic spying program. Since the critics of the president's orders have argued that the disputed surveilance should have been authorized by a warrant of exactly the court from which Judge Robertson resigned, the resignation is a peculiar form of protest - to say the least.

Judge Robertson has not always been so picky regarding possible "taints" of his judicial office. This site contains quite a bit of information on Judge Robertson's rather extensive collection of highly questionable - and highly politicized - activities on the bench, including this pearl from the Washington Times (2/10/00):

The Judicial Council of the D.C. Circuit, in a terse two-paragraph ruling, ordered acting Appeals Court Chief Judge Stephen F. Williams to determine why a random computer assignment system at the court was bypassed in four campaign fund-raising prosecutions and a tax-evasion case against Clinton pal Webster L. Hubbell. Chief District Judge Norma Holloway Johnson abandoned the computer system to send the cases to judges appointed by Mr. Clinton. She has declined public comment on the decision, but told The Washington Times in a letter last month she was authorized to assign "protracted or complex criminal cases to consenting judges when circumstances warrant," although she did not elaborate. The new investigation was sought by Rep. Howard Coble, North Carolina Republican and chairman of a House subcommittee that oversees the courts, and Judicial Watch, a conservative public interest law firm…….Mr. Coble's concerns focused on cases involving Mr. Hubbell, former associate attorney general; Arkansas businessman Charles Yah Lin Trie; Democratic fund-raiser Howard Glicken; Thai lobbyist Pauline Kanchanalak; and Miami fund-raiser Mark B. Jimenez. The judges were Paul L. Friedman, James Robertson and Emmet G. Sullivan, all of whom were named to the bench by Mr. Clinton in 1994; and Henry H. Kennedy Jr., appointed by Mr. Clinton in 1997

And there's also this nugget from the Washington Post (6/28/00):

A federal appeals court yesterday reinstated the conviction of a Tyson Foods executive for providing an illegal gratuity to former agriculture secretary Mike Espy, ruling that Archibald R. Schaffer III was not entitled to a new trial…... A jury convicted him nearly two years ago, but a series of appeals delayed his sentencing……..Schaffer, director of government and media relations for the poultry giant, was convicted of providing Espy with $2,500 worth of air transportation so the agriculture secretary could attend a May 1993 Tyson family party in Arkansas. U.S. District Judge James Robertson overturned the verdict, saying prosecutors failed to tie favors to official acts on Espy's part. The U.S. Court of Appeals for the D.C. Circuit ruled last year that Robertson erred and sent the case back for sentencing…….The defense then sought a new trial, saying that Espy now was available to testify. At the time of Schaffer's trial, Espy was awaiting trial himself on gratuities charges. A jury acquitted Espy, who then offered to testify that Schaffer did nothing wrong.......Robertson ordered the new trial but was reversed once again yesterday.

There's so much more, even though the site is a bit out of date.

More recently, Judge Robertson ordered the Military Commission to stop hearings in the conspiracy case against Salim Hamdan, a former driver for Osama bin Laden. That order was reversed by the Court of Appeals for the D.C. Circuit (with now-Chief Justice Roberts joining the opinion), a decision that the Supreme Court has agreed to review. Here's more on the Hamdan case.

Posted 8:53 PM by Robert

The Former Commissioners That Didn't Bark: Don't They Care?

Just a few days ago - December 5, 2005, to be exact - the former 9/11 Commission blasted the U.S. government for failing to adopt many of its recommendations for preventing terrorist attacks. The commission was famously formed to study the Sept. 11, 2001 terror attacks. The commissioners "graded" the White House and Congress on the commission's suggestions for making the nation safer. Of 41 criteria, the commission gave the government five Fs, 12 Ds and only one A. "We're frustrated, all of us -- frustrated at the lack of urgency in addressing these various problems," former commission Chairman Thomas Kean, a Republican and former New Jersey governor, said.

That's all very nice. And the former members of the 9/11 commission (Thomas H. Kean, Chair; Lee H. Hamilton, Vice Chair; Richard Ben-Veniste; Fred F. Fielding; Jamie S. Gorelick; Slade Gorton; Bob Kerrey; John F. Lehman; Timothy J. Roemer; James R. Thompson) have not just been frustrated, they've been been chatty, chatty, chatty on the subject of national safety and security ever since they were appointed to that commission - and have repeatedly indicated their intention to continue to speak out on the subject of national security and terrorism.

So where the heck are the former members of the 9/11 commission with respect to the filibustering of the Patriot Act renewal and the ersatz "domestic spying" fluff? Thomas Kean once said, "We did have witness after witness tell us that the Patriot Act has been very, very helpful, and if the Patriot Act, or portions of it, had been in place before 9/11, that would have been very helpful." How about now? And is it just fine with, say, Jamie S. Gorelick - the author of the notorious "wall" memo that separated foreign intelligence information and criminal investigation data - that the Patriot Act is in extremis? Ms. Gorelick at one time also had lots to say about the president's "inherent authority" in foreign intelligence matters. Now she and Chairman Kean are as silent as the tomb. Has the hyperactive James Risen - or any other mainstream media type - bothered to ask Ms. Gorelick about any of these fusses, or to ask any other former member of the 9/11 commission? Why don't these former commissioners speak out now that it matters, where it was almost impossible to get them to shut up just a few weeks ago?

Well, Mr. Kean? Ms. Gorelick? Cat got your tongue? Any other commissioner care to speak up? Yooo-hooo! Over here!