Saturday, January 07, 2006


The Arrogance Of Tom Kean

Trying to extend a 15 minutes of fame neither he nor the 9/11 Commission should have had, Tom Kean has weighed in on the NSA Surveillance Program. Said Kean:
Mr. Kean said he counted himself among those who doubted the legality of the program. He said in an interview that the administration did not inform his commission about the program and that he wished it had.

The Foreign Intelligence Surveillance Act, which Congress passed in 1978 after widespread abuses by intelligence agencies, created a system for court-ordered wiretaps for terrorism and espionage suspects. That system "gives very broad powers to the president and, except in very rare circumstances, in my view ought to be used," Mr. Kean said.

"We live by a system of checks and balances," he said. "And I think we ought to continue to live by a system of checks and balances."

What an arrogant, self-important jerk. Can you imagine the ego it takes to believe that the President should have told him and the other 9/11 Commission members about the NSA Program. Sure Tom, let's just give that information to partisan hacks like Tim Roemer, Richard Ben-Veniste and Jamie "The Wall" Gorelick. Remember this is the same commission that ignored Able Danger.

It's also interesting that Kean, who has no legal education or background thinks he has an informed opinion about the legality of the program. Gee Tom, so long as you're talking out of your a$ about things you are not qualified to discuss, do care to weigh in on the latest heart surgery techniques as well?

Do Kean and the rest of these idiot critics realize we're fighting a war? Do they really think that most Americans care if the government is listening in to suspected Al Queda terrorists? Hell, I think they'd be PO'ed if they found out those calls weren't being monitored.

Confirmation Follies To Reach Their Crescendo This Weekend

We can expect the circus surrounding the nomination of Judge Sam Alito to the Supreme Court to pick up the intensity over the weekend. That may already have begun to some small extent with a warning from the loudmouth of the Democratic caucus on the Judiciary Committee, Chuck Schumer, explaining that Alito has to give more complete answers than anyone else:

Alito's hearing before the Judiciary Committee, scheduled to begin Monday, will last a week if it tracks last year's confirmation process for Chief Justice John G. Roberts Jr. A Democratic member, Charles E. Schumer (N.Y.), said yesterday that senators will ask extensive questions and insist that Alito answer them fully -- even if it means pushing the hearing into the following week.

All judicial nominees are required to respond to senators' queries, Schumer said in a speech in Washington. "The obligation, however, is greater for some nominees," he said. "It is greater when a nominee has taken a clear position on a legal matter."

Well, wait a minute. Wasn't Schumer one of those who argued that John Roberts had a greater requirement because he hadn't generated a public track record? The entire Democratic caucus made that argument repeatedly, both before and during Roberts' confirmation hearing. They complained about Roberts being a "stealth" candidate, devoid of any substantive judicial track record or public writings, and so demanded not just an overabundance of candor during his testimony before the committee but access to documents covered under attorney-client privilege. Now Democrats want to argue that the same holds true for a candidate with fifteen years of experience as a federal appellate jurist and a long track record of public writings.

Not that anyone expects Democrats to make sense or remain consistent in anything but knee-jerk antagonism for this administration, but one would think that the contradiction would be so apparent even to the slow-witted Democrats on Judiciary that such an argument would embarrass them. Apparently not.

In the meantime, both Schumer and his colleague Ted Kennedy maintained their pre-hearing sense of balance and open-mindedness. Kennedy told the press:

"We here in the United States are not going to stand for monarchial tyranny," he said, protesting Alito's support for "unfettered, unlimited power of the executive." He faulted Alito for belonging to a group that was "anti-black and also anti-women." Kennedy wondered if "the average person is going to be able to get a fair shake" under Alito.

Briefly, Kennedy rewrote the outcome of the 1964 election. "This nominee was influenced by the Goldwater presidency," he said. "The Goldwater battles of those times were the battles against the civil rights laws." Only then did Kennedy acknowledge that "Judge Alito at that time was 14 years old."

A questioner pointed out that Kennedy sounded like a sure bet against Alito. "I haven't reached a final conclusion," the senator demurred.

So Kennedy would be OK supporting an allegedly anti-black, anti-women nominee that argues for monarchical tyranny ... under exactly what circumstances? If a Clinton nominated him or her?

The New York Times--fit to line the bottom of the cage

Since December 16, 2005, when the New York Times disclosed the existence of the National Security Agency's secret electronic surveillance program, much has transpired. The most important of which is a Justice Department investigation into the identity of the person or persons who provided this information to the Times. On its editorial pages, the Times argues that "[i]llegal spying and torture need to be investigated, not whistle-blowers and newspapers."

The Times editorial should be understood for what it is: an attempt to lobby the public and government officials against a federal indictment charging the Times management, editor Bill Keller and publisher Arthur Sulzberger, Jr., with violations of the Espionage Act. They are running scared and have good reason.

Along the same lines, New York Senator Charles Schumer suggests that the motive behind the leak ("whistleblower" versus traitor) should be a critical factor in the decision to initiate a prosecution. The Senator's comments do not reflect the law and it is well they don't.

Section 793 of the Espionage Act sets forth the elements of a crime: any authorized person in possession of "information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation" and who purposefully discloses that information to any unauthorized person, is in violation of this provision and, under subsection (f), may be imprisoned for up to ten years.

The question for the prosecutor in this case is straightforward: Could our enemies use the disclosure of this program to their advantage and did the "leaker" have reason to believe this to be so? Senator Schumer's "whistleblower" versus "traitor" analysis is not only laughable on its face, it is contrary to the plain language and intent of the statute. A prosecutor who used this analysis would be abusing prosecutorial discretion and acting contrary to the law. (In the case of a leaker who "intends" to provide this information to the enemy, Sen. Schumer's "motivation" test might be relevant. But this would be a separate question under Section 794 of the Act, a crime which carries a life or death sentence for its violation.)

According to the Times/Schumer logic, every disaffected civil servant should be permitted to divulge national security secrets if his motives are to expose a program he believes illegal or not in the best interests of the country. But does this not put the leaker in the position of Supreme Judge of our nation's national security? Who determines the "legality" or propriety of a top secret program? The President? The Courts? Congress? The leaker?

IN THE CASE at hand, the President and the Attorney General concluded the NSA program was a legal exercise of executive power. The Supreme Court has never ruled otherwise, and if anything, the lower federal courts have consistently recognized the President's constitutional authority as Commander-in-Chief to gather foreign intelligence, whether domestically or internationally, without a judicial warrant. It is not even clear that the courts have the authority to "judge" the President in his role as Commander-in-Chief. If the courts do have such a power, there is not much left to the concept of Separation of Powers. Congress, of course, has absolutely no authority to "rule" on the legality of a Presidential act unless it is at issue in an impeachment proceeding. Given this state of affairs, what whistle was the leaker blowing, other than his own personal view of the world?

Invariably, the prosecutor will turn to the New York Times, not simply to determine the source for the disclosure but for the crimes committed by the paper and its management. The facts as provided by the Times to date are that it learned of the NSA program over a year ago and held the story at the request of the White House (presumably the Times asked the Administration for confirmation). After at least one meeting with the President, the Times editor, Bill Keller, and publisher, Arthur Sulzberger, Jr., were convinced that the nation's security would be at risk with the publication of the leak and held it. Approximately one year later the Times published the story.

Questions abound about Messrs. Keller's and Sulzberger's motivation for publishing the article when they did. Whatever their motivations, the Times has, by publishing this story, taken the position, much as it did back in the Pentagon Papers days, that the risks associated with the criminal violation of the Espionage Act were outweighed by the public good. This position ought to be challenged, if for no other reason than lives, and a country's very existence, are at stake.

Again, we turn to the law for instruction. Section 793(e) of the Espionage Act makes it a crime punishable by imprisonment for up to ten years for any "unauthorized" person "in possession of...information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates...the same to any person not entitled to receive it...." The law also makes it a separate offense to "conspire" to violate the law, something the Times must have done to grant confidentiality to its sources.

The Times and its editors are not excused from their obligations as citizens by virtue of their media credentials. In the Pentagon Papers case, even though the Supreme Court shielded the New York Times from President Nixon's efforts to enjoin the publication of the top secret document, a plurality of justices in that case would not have ruled that the media is immune from a post-publication criminal prosecution (see U.S. v. NY Times, 403. U.S. 713 (1971)).

FREEDOM OF THE PRESS and all that it entails does not grant the press a license to put the rest of us in danger. Further, is it the Times's position that only newspaper editors are above the law and granted the authority to sit in judgment of the secrecy and legality of government programs? Even assuming a program is illegal, who weighs the danger of disclosure of such top secret programs to our enemies against the harm caused by the illegality of the program?

The Times would have the U.S. Constitution be understood to mean that unelected judges have the authority to overrule the acts of the elected Commander-in-Chief, that Congress has the authority to criminalize the exercise of the President's constitutional responsibilities, and the Press has the responsibility and the authority to disclose any top secrets it deems harmful to the cause of freedom.

This position on its face contradicts the expressed language of the Constitution and the Espionage Act. The Times should be held to the same standard as all other citizens.