Strengthening Constitutional Self-Government

No Left Turns

Merry Christmas!

To you and yours.

Merry Christmas

Merry Christmas to all! I hope you like "The Three Kings," by Henry Wadsworth Longfellow.

The latest Alito kerfuffle

Among the documents released by the National Archives yesterday was this collection of memos (Alito’s is the first, roughly seven pages in length), regarding this case. The issue involved Nixon Administration Attorney General John Mitchell’s immunity in a lawsuit filed regarding warrantless wiretaps he authorized in 1970. You can read the coverage in the major dailies here, here, here, and here.

At least two of the articles outrun the facts they’re reporting. The LAT reporters characterize the wiretaps authorized by Mitchell as simply "illegal," though, as they later note, "Mitchell escaped liability because the justices concluded that the law was not clear in 1970 when he ordered the wiretap." The NYT reporters characterize the argument Alito and the Reagan Administration were making as that "top officials were free to violate the law." This, of course, isn’t quite accurate: freedom from personal financial liability in lawsuits isn’t the same as the kind of carte blanche Mel Brooks claimed as Louis XIV in
History of the World, Part I.

Democrats have of course leapt on this case, trying to link it to the electronic surveillance conducted by the NSA after 9/11.

"At a time when the nation is faced with revelations that the Administration has been wiretapping American citizens, we find that we have a nominee who believes that officials who order warrantless wiretaps of Americans should be immune from legal accountability," said Sen. Edward M. Kennedy (D-Mass.).

To which there are several responses, such as this:

But Alito supporters noted that the memo does not defend the practice of warrantless eavesdropping, instead dealing only with the question of whether government officials who often must act quickly can be sued for damages when they err. Nor did the memo deal with the question of whether a warrant was necessary to investigate foreign threats.

"Despite Democrats’ attempts to link this memo to reports of NSA activities, the two have nothing to do with each other," said White House spokesman Steve Schmidt.

And this, from the WaPo article:

[T]he argument that the president and his top aides were entitled to absolute immunity was not a new one.

The Carter administration had taken that position in wiretapping cases stemming from the Watergate scandal, but the issue had not been clearly resolved by the Supreme Court.

And, finally, this dictum, from the majority opinion in Harlow v. Fitzgerald, cited by Alito in his memo:

For aides entrusted with discretionary authority in such sensitive areas as national security or foreign policy, absolute immunity might well be justified to protect the unhesitating performance of functions vital to the national interest.

I guess there will be lots of fun in the new year.

The President’s War Powers Include Surveillance

On June 9, 1941—six months before the Japanese attack at Pearl Harbor that would bring the United States into the Second World War—President Franklin Roosevelt issued an executive order seizing an aircraft manufacturing plant operated by North American Aviation, Inc. in Inglewood, California. The seizure was necessary, wrote President Roosevelt, in order to prevent a strike by union employees from crippling aircraft production that was vital to the national defense. No act of Congress authorized the seizure, and the existing procedures for condemnation of private property were not followed, making President Roosevelt’s actions technically “illegal.” President Roosevelt also imposed 48-hour work weeks and barred payment of double-time pay for weekend and holiday pay in the nation’s manufacturing plants, all by executive order and in violation of the Fair Labor Standards Act, because he deemed the actions necessary to the nation’s war effort.

A decade later, on April 8, 1952, President Harry Truman ordered the seizure of the nation’s steel mills in order to avert a strike that would cripple the steel production necessary to our military involvement in Korea. Like Roosevelt before him, Truman’s order did not comply with the statutory requirements for condemnation of private property. Unlike Roosevelt’s actions, though, Truman’s seizure order was challenged all the way to the Supreme Court, which ultimately held in Youngstown Sheet & Tube Co. v. Sawyer that none of the President’s constitutional powers—as chief executive obligated to take care that the laws be faithfully executed, or as commander-in-chief—were sufficient to sustain the seizure. Justice Jackson, in a landmark concurring opinion, found “alarming” the claim that the President could “vastly enlarge his mastery over the internal affairs of the country by his own commitment of the Nation’s armed forces to some foreign venture.”

Sentiments such as Justice Jackson’s now serve as the foundation for the claims of “illegality” being leveled against President Bush in the wake of the disclosure in last Friday’s New York Times that the President has authorized eavesdropping on international calls originating in the United States to Al Queda operatives abroad. The President’s order “violated” the requirements of the Foreign Intelligence Surveillance Act, and was therefore “illegal,” assert the President’s detractors.

Before accepting such contentions, it is worth exploring a bit more the subtle nuances of Justice Jackson’s opinion, for he did not say that the President was not without authority absent statutory authorization. Obviously, the President’s authority is at its peak when he acts both pursuant to his own authority under the Constitution and by virtue of additional statutory authority given to him by Congress. Less strong, but no less certain, is when the President acts by virtue of his own constitutional powers, in the face of congressional silence. Finally, Justice Jackson even conceded that, at times, the President could act pursuant to his Article II constitutional powers even contrary to an explicit act of Congress. Congress cannot pass a law that curtails powers the President has directly from the Constitution itself. The problem for Truman, according to Justice Jackson, was not that he exceeded statutory authority, but that his constitutional war powers did not, under the circumstances, permit him to trump the mechanisms of the relevant congressional statute. Congress had not authorized the war, and the nation’s steel mills were too far removed from the “theater of war” to fall under the President’s power as Commander-in-Chief.

A careful review of the Youngstown holding in general, and of Justice Jackson’s concurring opinion in particular, yields several important distinctions that vindicate President Bush’s latest actions in the war against terrorism. First, Congress has authorized the use of force in terms broad enough to permit the President’s actions. The Supreme Court has already held in the Hamdi case that the statute was broad enough to give the President authority to detain U.S. citizens as enemy combatants; surely it is therefore broad enough to serve as authority for the much lesser intrusion on personal liberty at issue with surveillance of international calls made to our enemies.

Second, as September 11 made very clear, the United States is a “theater of war.” The agents of our stateless, terrorist enemies are here on U.S. soil, aiming to strike at our infrastructure, our citizens, and our very way of life at every possible opportunity. Even if the Use of Force Authorization was not sufficient to sustain the President’s executive order, his own powers as Commander-in-Chief and as President, derived directly from the Constitution itself, permit this carefully circumscribed effort at thwarting the next devastating terrorist attack against our nation.

In other words, the President’s legal advisors were correct in counseling that these actions were within his lawful constitutional authority, and the quick claims by the President’s detractors of “illegality” have a stench of political opportunism or, worse, demagoguery about them that is not only inappropriate but dangerous in time of war. That this war has not produced the burdens on our civilian population as wars in times past—we know nothing of the sacrifices of rationing, of a large-scale draft, or of victory gardens and war bonds that were the hallmarks of the Second World War, for example—should not lead us to forget that we are in a war as dangerous to our survival as a free people as any we have faced.

After suspending the writ of habeas corpus during the Civil War, an action that was believed to be authorized only by act of Congress, President Abraham Lincoln asked whether all the laws but one were to go unexecuted lest that one be violated. The preservation of the Union required the action, even if Congress had not authorized it, and Lincoln was statesman enough to understand that his own powers as Commander-in-Chief could not be circumscribed by statute, even though those actions might be claimed to be “illegal.” President Roosevelt understood this as well, and took actions that exceeded and were even contrary to existing statutes. Thank God he did, or we might not be living in a land as protective of our liberties as this is.

David Warren

David Warren on Bush and Christmas, and Methodists and Catholics and Muslims, and Canadian politics and Christmas. Nicely done. Merry Christmas, Mr. Warren. I always enjoy your essays.

NSA electronic intercepts

Is the NSA electronic intercept program illegal? Powerline doesn’t think so. Long and elaborate briefing (these guys are lawyers). File it for later review (and combat). Ted Kennedy thinks it is illegal, and defends the Constitution against "King" George.

Che’s children

Evo Morales is set to become the next president of Bolivia. This is not a good guy, from all that I can tell. He is a socialist, a race-monger, a tyrant. But, that is not much discussed, what is talked about, is that he will be the first indigenous president elected in South America. This is the continents’ poorest country, the one, remember, that Che Guevara picked for his revolution. It has had almost 200 military coups since independence in 1825. Messy place, I’m afraid. Here is the World Factbook on Bolivia. In the meantime, just to the North, Peru’s president has declared a two-month state of emergency in six central Peruvian provinces thought to be under the sway of drug traffickers. He also vowed to find the rebels who killed eight soldiers. About 70,000 people have died in Peru since the Shining Path started its war against the government in the 1980’s. Worth watching both places.

USA population growth

Census Bureau released its populations estimates: "Southern and Western states are growing so much faster than the rest of the country that several are expected to grab House seats from the Northeast and Midwest when Congress is reapportioned in 2010.

Demographers and political analysts project that Texas and Florida could each gain as many as three House seats. Ohio and New York could lose as many as two seats apiece." Nevada, by the way, grew at a faster rate than any other state for the 19th consecutive year, followed by Arizona, Idaho, Florida and Utah. See this useful chart from USA Today.

Intelligent Design

John G. West briefly argues that "intelligent design is not a religious-based idea, but instead an evidence-based scientific theory that holds there are certain features of living systems and the universe that are best explained by an intelligent cause."


John von Heyking writes a very good (and subtle) piece on the Canadian elections by focusing on a speech by our ambassador to Canada, David Wilkins.

Cheney’s vote in the Senate

Vice President Cheney cast the deciding vote after the Senate split 50-50 on the $40 billion budget-cutting bill today. I wrote a few paragraphs on Article I, Section 3, Clause 4 ("The Vice President of the United States shall be President of the Senate, but shall have no Vote, unless they be equally divided.") for Heritage Guide to the Constitution, edited by Forte and Spalding, just recently published. Giving the VP this power, argued George Mason at the Convention, was a violation of the separation of powers. Roger Sherman responded: "If the Vice President were not to be President of the Senate, he would be without employment." (Obviously, this is kind of amusing, given that Dick Cheney is one of the most influential VP’s ever.) This allowed the Senate to come to a definitive result at all times, because the VP would break tie votes. And it also preserved the equality of the states in the Senate, because if a senator were chosen to preside with such power, he would have more power than the other senators. There have been over 200 votes cast by VP’s (Adams, the first to cast such votes, also cast the most).

Schall and Masugi in conversation

Ken Masugi conducts a fascinating interview with Father James V. Schall, S.J., in which they range widely over many topics (disasters, Tolkien, liberal education, to name just a few). By the by, Schall offers this implicit response to those who distinguish in too facile a manner between science and religion:

Both theology and philosophy seek to know the whole of things, including divine and human things. Their paths may be different, but they cross here and there. Just because they have two different methods and starting points, they do not deal with two different worlds. Rather there is one world and all that is in it, a world that need not exist at all. This latter implies a cause of existence that need not create the world from some necessity in Himself.(My emphasis.)

Stated another way, the alternative to Schall’s position (that if the world isn’t necessary, then there is a cause that creates it) is that the world is its own cause. Either there is a "God" (about whose relationship with and love for us this argument doesn’t give us many details, certainly not enough to identify this "God" with the God of the Bible) or, in effect, "the world," being its own cause, is "God."

Read the whole thing, which is much, much better than my blathering commentary.

Richard Posner on domestic intelligence-gathering

In today’s WaPo. Here, for those who aren’t familiar with him, is Posner’s bio. Here’s the Becker-Posner blogsite.

Why Didn’t He Ask Congress?

I’m glad to hear that at least one conservative aside from myself is bothered by recent relevations. "Why didn’t he ask Congress" is the question asked today by George Will. Will notes that the administration has defended its surveillance tactics under the president’s traditional "plenary" powers to engage in "military actions." Fair enough, but who gets to decide what the term "military actions" encompasses? Surely, had Bush gone to Congress in 2001 or 2002 and asked for authority to tap phones without a court order he would’ve gotten it. Why didn’t he? The answer, Will suggests, has something to do with "this administration’s almost metabolic urge to keep Congress unnecessarily distant and hence disgruntled." A strange attitude to take toward a Congress dominated by his own party, is it not?

It is worth recalling that the Democrats, not the Republicans, were the ones responsible for torpedoing Franklin Roosevelt’s "court-packing" plan in 1937. They did so not because they had turned against the larger New Deal project, but simply because they were tired of the administration treating Congress as a rubber stamp. This may be what we are beginning to see happen now.

Intelligent Design in the courts

You can read the long opinion in the Dover I.D. case here. Or you can just read this AP report. Those with a more voracious appetite for information can go here (the Discovery Institute’s Dover page) and here (the National Center for Science Education’s Dover page).

My piece on the Cobb County (GA) textbook sticker case will be posted at The American Enterprise Online tonight. (You know you can’t wait.)

Update: Here’s my TAE Online piece.

UpdateUpdate #2: I haven’t yet finished reading the long opinion in the Dover case, but have read enough to know that the judge may be a good lawyer (or at least may have once been a good lawyer), but that he’s a bad philosopher and theologian. Since his judgment on the law depends upon his seriously flawed opinions regarding philosophy and theology, well, you get the drift.... I have in my mind a piece entitled "Irreducible Hostility," but writing it is at least a day away. (I should also note that the Dover policy, from what I can gather, was much more ham-handed and poorly constructed than the Cobb policy.) For the moment, you can read this fine post. Hat tip: Ken Masugi.

Up to speed on surveillance

The best pieces I have read on the NSA/FISA issue are here (Byron York on the cumbersome FISA warrant process), here (Bill Kristol and Gary Schmitt on energy in the executive), here (Hugh Hewitt on some of the caselaw), and here (Orin Kerr’s careful examination of almost all the arguments and the caselaw).

For me, the bottom line is that this is a political, not a narrowly legal, question. Stated another way, the issue is executive prerogative, which is asserted and controlled politically.

The winning Bush

I did not see Bush’s news conference, so I’ll have to hold off commenting. But I did see his address to the nation last night, and I thought it was excellent. Clearly, he has left the post-Katrina doldrums behind, and is now hitting his stride in the post-Iraqi election era. He has taken the offensive. The talk was shrewd, kind to his political enemies, asked citizens for patience, yet makes clear that we must win ("we are there now"), and defeat is not an option. When David Gergen, the Solomon-like-wise-man-who-always-speaks-for-the-whole-of-the-MSM-and-you-do-know
-that-he-has-been-an-advisor-to-over-fifty-presidents-and-he-also-teaches-at-Harvard’s-Kennedy-School, yup, that David Gergen, said that Bush’s speech has "stabilized" his presidency from "near collapse", I knew what Gergen really meant was that Bush had hit a home run and that he is back on top again. Gergen, who is capable of speaking an infinite deal of nothing, has never learned that the purpose of language is clarity. John McIntyre thinks that the trap has closed for the Dems. Please read the piece, it is excellent.

Von Heyking on Ahmadinejad

John von Heyking, who has written on this theme for the main Ashbrook site, cracks the pages of the The Globe and Mail, the epitome of Canada’s MSM. We can only hope that John is nice enough to remember us little people as he climbs to the top.

But seriously, it’s another fine piece of analysis combining sensitivity to Iranian domestic politics with a call to take seriously President Ahmadinejad’s repeated threats.

Another very good GWB speech

Here. A taste:

Some look at the challenges in Iraq and conclude that the war is lost, and not worth another dime or another day. I don’t believe that. Our military commanders do not believe that. Our troops in the field, who bear the burden and make the sacrifice, do not believe that America has lost. And not even the terrorists believe it. We know from their own communications that they feel a tightening noose, and fear the rise of a democratic Iraq.

The terrorists will continue to have the coward’s power to plant roadside bombs and recruit suicide bombers. And you will continue to see the grim results on the evening news. This proves that the war is difficult -- it doesn’t mean that we are losing. Behind the images of chaos that terrorists create for the cameras, we are making steady gains with a clear objective in view.

Executive power and national security

Apropos of the conversation prompted by these posts below, Power Line calls our attention to and comments on this WaPo article.

I think Paul Mirengoff has the politics of it just right. For the Democrats actually to affirm that our security situation has improved to the point where the measures taken in the immediate post-9/11 era are no longer necessary requires that they give credit to the Bush Administration for making us safer, which they’re not about to do. By contrast, President Bush has said that we can’t drop our guard. So what responsible position can the Democrats take? Their answer seems to be...ask us when we’re back in power. No thanks.

Budapest Airport

In another sign of continued good-will between the New Europe and the Anglo-Americans, the Budapest Airport (called Ferihegyi) has been bought (for 1.2 billion pounds) by the British airport operator BAA. Note that the other serious bideer was a German company; it lost. BAA says it will make the Budapest airport (which grew by over 25% last year) the number one airport in the region. Here is the story in Hungarian, for the civilized reader.

Barbary Pirates

Joshua London writes a piece for NRO on the Muslim piracy throughout the Mediterranean from 1776 to 1815, what he calls our first war with terrorists. He argues that the similarity between then and now is obvious: the Barbary pirates were committed, militant Muslims who meant to do exactly what they said. This is an interview he had with Orrin Judd. And this is his book, just published, Victory in Tripoli : How America’s War with the Barbary Pirates Established the U.S. Navy and Shaped a Nation.


The Washington Post runs the first of three articles on "Yemen: Exporting Democracy." It is a good read, but I am critical.
David Finkel is the author, and once again the question of tribes and anthropologists (see below) comes up. Of course, this being the WaPo, we can’t have any notions like idealism, justice, doing good in the world, or anything that smells interesting, if not positive. Nor can we have, for that matter, any historical understanding. It would be nice to be told that Yemen’s population is almost the size of Saudi Arabia’s, or that "yaman" means "right hand", etc. Or, what about Reagan’s "campaign for democracy" announced in 1982? The author thinks that democracy promotion jumped from the head of Bush unannounced and without precedent. Of course, that’s not true. There were 54 democracies in the world in 1981, and there were 99 by 1992, with another 30 or so in transition. Maybe what irks Liberals is that the campaign for democracy now has some concrete connection to national interest and strategically important places. They seemed to like the idea of human rights when Carter used the words, but then there was no hardness attached to it. We are doing the hard part now.

Finkel talks about the program of the National Democratic Institute (created under Reagan, by the way) in Yemen--run by one Robin Madrid--as a way "to reform the world", turning "democracy into something exportable, much like food aid, as a way to fight terrorism," it perfectly reflects the "momentous, even radical" notion that Bush put forward in his Second Inaugural; "democracy as commodity," "the commodification of democracy into something suitable for export," and "democracy promotion has evolved from a theory into an industry." You get the gist. Now, this doesn’t mean the story isn’t worth reading. It is, even though David Finkel is no Robert D. Kaplan. It was Kaplan who called the Yemenis warriors out of the Illiad, but with guns and cell phones.
The government is not as strong as the tribes and can only exist because the tribes are divided; and sometimes things get so bad that the tribes themselves want to put an end to revenge killings, ("suffering has brought us together"), begin to institute something like the rule of law, and that’s where the NDI program comes in. Weird stuff, I admit, female anthropologists thrice divorced using the latest social science schemes of conflict-resolution to make peace between tribes, U.S. government sluggishness and stupidity, and in the meantime hard-boiled Hobbesian men pushing and shoving and killing. Many bad guys go to ground in a fringe place like this. But there are some good guys who just keep looking for needles in haystacks, not even regime change. A little perspective, never mind depth, would have been nice from Finkel, and refreshing from the Washington Post.

Dream tribe

This is amusing. I’m guessing that the New York Times is in need of copy because this report, filed from Kenya about anthropologists researching their so-called Dream Tribe, is pretty empty. It seems that anthropologists--those who study human beings as if they were worms (that is, as if they have no rational faculties) and then call it science; or, those who study culture and cannot discover the human nature to be found therein--discovered the isolated Ariaal tribe, in the 1970’s, in Kenya and started poking at them and asking them questions. The article notes--without even the depth of a Margaret Mead--that the tribesmen have been studying the anthropologists as well, and that they are dissappointed when they get no feedback from the researchers. A chief, wearing a Boston University T-shirt and sandals made of used tires, said this: "We don’t mind helping people get their Ph.D.’s, but once they get their Ph.D.’s, many of them go away. They don’t send us their reports. What have we achieved from the plucking of our hair? We want feedback. We want development." The article notes some of the published studies to come from this research. For example, "In a study in The International Journal of Impotence Research, Dr. Campbell also found that Ariaal men with many wives showed less erectile dysfunction than did men of the same age with fewer spouses." Amazing.

Running from the past

Bruce Fein argues, persuasively, I think, that it makes no sense for Samuel Alito to distance himself from the views he held twenty years ago.