Moussaoui and "White Guilt"

UPDATE 05/05/06 @ 10:52 am: Read this, by Gerard Vanderleun, and this, by Daniel Henninger.

UPDATE 05/04/06 @ 9:20 pm: Read this, by Peggy Noonan.

UPDATE 05/09/06 @ 11:45 am: Read this, by Mark Steyn.

REVISED 05/04/06 @ 9:45 am

It seems that the jury in Zacarias Moussaoui’s sentencing trial has opted to spare the slimeball’s life. Nevertheless, he’ll be dead meat within a year if a fellow prisoner gets a shot at him.

What really bothers me is that, according to an AP story, “the jury was not convinced that Moussaoui, who was in jail on Sept. 11, deserved to die.” The jury’s verdict is yet another sign of what Shelby Steele calls “white guilt.” Steele, writing recently at OpinionJournal, observes that

[t]here is something rather odd in the way America has come to fight its wars since World War II.

For one thing, it is now unimaginable that we would use anything approaching the full measure of our military power (the nuclear option aside) in the wars we fight. And this seems only reasonable given the relative weakness of our Third World enemies in Vietnam and in the Middle East. But the fact is that we lost in Vietnam, and today, despite our vast power, we are only slogging along–if admirably–in Iraq against a hit-and-run insurgency that cannot stop us even as we seem unable to stop it. Yet no one–including, very likely, the insurgents themselves–believes that America lacks the raw power to defeat this insurgency if it wants to. So clearly it is America that determines the scale of this war. It is America, in fact, that fights so as to make a little room for an insurgency.

Certainly since Vietnam, America has increasingly practiced a policy of minimalism and restraint in war. And now this unacknowledged policy, which always makes a space for the enemy, has us in another long and rather passionless war against a weak enemy. . . .

Today words like “power” and “victory” are so stigmatized with Western sin that, in many quarters, it is politically incorrect even to utter them. For the West, “might” can never be right. And victory, when won by the West against a Third World enemy, is always oppression. But, in reality, military victory is also the victory of one idea and the defeat of another. Only American victory in Iraq defeats the idea of Islamic extremism. But in today’s atmosphere of Western contrition, it is impolitic to say so. . . .

Whether the problem is race relations, education, immigration or war, white guilt imposes so much minimalism and restraint that our worst problems tend to linger and deepen. Our leaders work within a double bind. If they do what is truly necessary to solve a problem–win a war, fix immigration–they lose legitimacy.

To maintain their legitimacy, they practice the minimalism that makes problems linger.

The best way to deal with a problem is . . . to deal with it. Being “nice” doesn’t make an enemy any less dangerous; it only encourages more acts of aggression against Americans. That should have been the lesson we learned when we ended the war with Japan so decisively.

Moussaoui is an enemy of the United States who was prepared to kill Americans by committing an act of war against them. He should be treated as we used to treat enemies, decisively and terminally. The jury in Moussaoui’s case has opted instead to let him linger — at least until a fellow prisoner decides to do what the jury should have ordered done. Until then, the sentence handed to Moussaoui will be seen, rightly, by our enemies as yet another sign of weakness.

Substantive Due Process Redux?

Judge Judith Rogers, writing for a three-judge panel of the Circuit Court of Appeals for the District of Columbia in Abigail Alliance for Access to Better Drugs v. Eschenbach, upheld

the right of a mentally competent, terminally ill adult patient to access potentially life-saving post-Phase I investigational new drugs, upon a doctor’s advice, even where that medication carries risks for the patient. . . .

and even where that medication has not been approved for release by the Food and Drug Administration. Mike at Crime & Federalism summarizes the issue at hand:

The plaintiffs in Abigail Alliance for Access to Better Drugs v. Eschenbach were terminally-ill patients who were denied potentially life-saving drugs. They successfully argued that the Due Process Clause of the Constitution clearly protects the right to “life,” and that the FDA was denying them the right to life by refusing to allow them to ingest drugs that would save them.

Here’s more from Judge Rogers’s opinion:

[t]he Due Process Clause of the Fifth Amendment to the United States Constitution provides that “[n]o person shall be . . . deprived of life, liberty, or property, without due process of law.” U.S. CONST. AMEND. V. The Supreme Court has held that the Clause “guarantees more than fair process” and accords substantive protection to the rights it guarantees. . . .

For over half of our Nation’s history, then, until the enactment of the 1906 [Pure Food and Drug] Act, a person could obtain access to any new drug without any government interference whatsoever. Even after enactment of the FDCA [Food, Drug, and Cosmetic Act] in 1938, Congress imposed no limitation on the commercial marketing of new drugs based upon the drugs’ effectiveness. Rather, at that time, the FDA [Food and Drug Administration] could only interrupt the sale of new drugs based on its determination that a new drug was unsafe. Government regulation of drugs premised on concern over a new drug’s efficacy, as opposed to its safety, is of recent origin. And even today, a patient may use a drug for unapproved purposes even where the drug may be unsafe or ineffective for the off-label purpose. Despite the FDA’s claims to the contrary, therefore, it cannot be said that government control of access to potentially life-saving medication “is now firmly ingrained in our understanding of the appropriate role of government,” . . . so as to overturn the long-standing tradition of the right of self-preservation. . . .

The prerogative asserted by the FDA — to prevent a terminally ill patient from using potentially life-saving medication to which those in Phase II clinical trials have access — thus impinges upon an individual liberty deeply rooted in our Nation’s history and tradition of self-preservation.

Judge Rogers’s opinion (in which Chief Judge Douglas Ginsburg joined) may not withstand a hearing by the full Circuit, but if it does . . . welcome back Lochner. Lochner v. New York is the 1905 case in which the Supreme Court struck down a State statute that attempted to impose a maximum-hours limitation on bakers. Lochner is a bête noire to liberals because it triggered a wave of Supreme Court decisions deemed “pro-business” (as if business were an enemy). But Lochner and its offspring were decided rightly because they upheld, as a matter of due process, the Constitution’s explicit guarantee of liberty of contract.

Substantive due process does not grant a right to anything (e.g., a job). Rather, it protects one’s life, liberty, and property as long as one is engaged in voluntary, consensual conduct that does not harm others (e.g., running a business without being entangled in regulations or extorted by government-approved labor unions). Judge Rogers’s opinion gives me hope for the return of substantive due process in its proper, Lochnerian form.

"Dangerous Dan" McCain

My reference is to the title character of Robert Service’s poem, “The Shooting of Dan McGrew.” But John McCain is far more dangerous than any Klondike gunslinger, because McCain would use (and has used) the power of government to suppress speech in the name of “clean government.”

Many bloggers have picked up on McCain’s latest outrageous utterance:

He [Michael Graham] also mentioned my abridgement of First Amendment rights, i.e. talking about campaign finance reform….I know that money corrupts….I would rather have a clean government than one where quote First Amendment rights are being respected, that has become corrupt. If I had my choice, I’d rather have the clean government.

But no blogger whom I have read has gone to the heart of “Dangerous Dan” McCain’s twisted agenda. When speech is suppressed in the name of “clean government,” the essential element of “clean government” — namely, competition for control — is removed.

McCain and his ilk like to pretend that money “buys” politicians. Money may buy criminal acts — such as those committed by Duke Cunningham — but those acts are easilty dealt with as matters of criminality. In the main, money only “buys” politicians to the extent that it helps to elect those politicians whose views are already attuned to the views of their contributors.

Incumbents already have been “bought” in the sense that their success has been abetted by like-minded supporters. The best way to keep incumbents “honest” is to ensure that they face strong challenges at election time. But the power of incumbency requires that challengers have access to more money than incumbents. McCain will have none of that because his real agenda is to make it difficult for challengers to raise enough money to defeat incumbents. It’s a power-grab, pure and simple.

It should be obvious to anyone who thinks about it for more than a nanosecond that “Dangerous Dan” McCain — that arrogant hypocrite — is opposed to free speech and “clean government.” His twisted agenda is to suppress potential challenges to the power of incumbency.

A "Living Constitution" Means Anything and Everything

Keith Burgess-Jackson (AnalPhilosopher) points out that the

editors of The New York Times, in their infinite wisdom, conclude that capital punishment violates the United States Constitution. See here. In this, they disagree with the framers of the Constitution, who wrote that “No person shall . . . be deprived of life, liberty, or property, without due process of law.” I go with the framers. You?

Me? I’m with the Framers. But then, I don’t believe in the “living Constitution,” wherein one may find anything one wants to find, not only deep in the penumbras but also in open contradiction with the Framers’ plain words.

Hang Her High

UPDATED BELOW

(If she’s guilty, of course.)

CIA Officer Fired for Leaking Classified Info to Media

P.S. to Bush-bashers: A leak is an unauthorized disclosure of information. The head of the executive branch is authorized to authorize disclosures.

P.P.S. (from Wizbang!):

[T]he CIA officer’s name is Mary McCarthy. She worked at the Inspector General’s office and testified in front of the 9/11 Commission.

Intelligence sources tell NBC News the accused officer, Mary McCarthy, worked in the CIA’s inspector general’s office and had worked for the National Security Council under the Clinton and and George W. Bush administrations.

The leak pertained to stories on the CIA’s rumored secret prisons in Eastern Europe, sources told NBC. The information was allegedly provided to Dana Priest of the Washington Post, who wrote about CIA prisons in November and was awarded a Pulitzer Prize on Monday for her reporting.

Sources said the CIA believes McCarthy had more than a dozen unauthorized contacts with Priest. Information about subjects other than the prisons may have been leaked as well.

Update II: The Jawa Report says that McCarthy gave $2,000 to Kerry’s 2004 campaign [emphasis mine, all mine].

MY UPDATE (04/22, 1:15 PM):

McCarthy may have been a serial leaker, and — hah! — she may have been caught in a sting operation.

Cell Phones and Driving: Liberty vs. Life

For more evidence of the link between cell-phone use and highway fatalities, see also this post.

UPDATED TWICE, BELOW

(My sentiments, exactly.)

And cell-phone users do die . . . but they take others with them:

Study: Distractions Cause Most Car Crashes

By KEN THOMAS, Associated Press Writer

BLACKSBURG, Va. – Those sleep-deprived, multitasking drivers — clutching cell phones, fiddling with their radios or applying lipstick — apparently are involved in an awful lot of crashes.

Distracted drivers were involved in nearly eight out of 10 collisions or near-crashes, says a study released Thursday by the government. . . .

“We see people on the roadways talking on the phone, checking their stocks, checking scores, fussing with their MP3 players, reading e-mails, all while driving 40, 50, 60, 70 miles per hour and sometimes even faster,” said Jacqueline Glassman, acting administrator of the government’s highway safety agency.

A driver’s reaching for a moving object increased the risk of a crash or potential collision by nine times, according to researchers at the National Highway Traffic Safety Administration and the Virginia Tech Transportation Institute.

They found that the risk of a crash increases almost threefold when a driver is dialing a cell phone. . . .[Emphasis added.]

Researchers said the report showed the first links between crash risks and a driver’s activities, from eating and talking to receiving e-mail.

“All of these activities are much more dangerous than we thought before,” said Dr. Charlie Klauer, a senior research associate at the institute. Data from police reports had estimated that driver inattention was a factor in about 25 percent of crashes.

Some safety organizations said the study was part of a growing body of research and worried it might lead to reactionary laws.

“I urge legislators not to interpret these results as a need for new legislative initiatives. It is simply not good public policy to pass laws addressing every type of driver behavior,” said Lt. Col. Jim Champagne, chairman of the Governors Highway Safety Association. . . . [Why not? Pray tell.]

Assessing cell phone use, the researchers said the number of crashes or near-crashes linked to dialing the phones was nearly identical to those tied to talking or listening on the phone.

Connecticut, New York, New Jersey and the District of Columbia have laws that prohibit people from talking on handheld cell phones while driving.

A government report last year found that about 10 percent of drivers are using cell phones. . . .

Also Thursday, a preliminary report from the safety agency said the highway death rate rose slightly in 2005 after falling for two years. The government said 43,200 people died on the road, compared with 42,636 in 2004.

A question for hard-core libertarians: Should there be strictly enforced laws (with harsh penalties) against talking on a cell phone while driving? I say “yes.” If you disagree, tell me why. And don’t waste words on a diatribe against the existence of the state. Start with reality, and take it from there.

UPDATE (5:10 pm): The Gonzman offers some good points:

[T]he laws of consequence should apply. I’m against seat belt laws, but for insurance companies declining to pay for your injuries if you refuse to wear one, per their contract with you. Same thing with motorcycle helmets.

Cell Phones? The consequences are predictable. And cell phone LUDS are easy to check. So, if you have an accident while talking on one, it should be a rebuttable presumption the accident is your fault, and further, if injury or death results, you should be subject to criminal charges.

I used to regard it as similar to drunk driving, but there is a distinction that my thinking has led me to over the years. A drunk is always impaired; someone talking on a cell phone, or eating lunch, or changing the radio, or lighting a cigarette is merely distracted to a lesser or greater degree, depending on traffic and/or road conditions. There are ways to do these responsibly. . . .

Here’s my reaction:

If cell-phone use is potentially as dangerous as drunk driving, why shouldn’t a cop pull over a person he sees holding a cell phone to her ear (or reading a paper or doing her nails), just as he would (and should) pull over a person whose driving suggests drunkenness? That is, why not try to prevent the preventable when the opportunity arises? If the cops are going to be out there anyway (and it’s probably a good thing that they are), they might as well do something preventive if they can.

I don’t mean that cops should pull over drivers for failing to wear seatbelts or motorcycle helmets. The failure to wear a seatbelt or helmet doesn’t have murderous externalities, unlike talking on a cell-phone or driving drunk.

I like the Gonzman’s point about deterrence, but I wouldn’t rely solely on it in cases where there are potentially murderous externalities. Let it be known that phone records will be checked and criminal charges will be filed if the driver was on a cell phone at the time of an accident. Let insurance companies write policies that do not cover the life, limb, and property of the person at fault. Such measures might deter a lot of yakkety-yak. But that’s no reason not to haul drivers over when they insist on hands-on yakking while driving.

So, I would go for a combination of deterrence and preventive enforcement. But — again — I would apply preventive enforcement only where a police officer sees behavior that potentially risks the lives of other persons, as in the cases of drunk driving and having a hands-on cell-phone conversation.

We may be hearing more from the Gonzman. Stay tuned.

UPDATE 2 (6:20 pm):

I am not buying in to the nanny-state mentality that bans smoking in privately owned establishments, such as bars and clubs, for the ostensible purpose of preventing death and disease. The main excuse for such bans (the main reason is anti-smoking prudery) is that smoking endangers the health of non-smokers as well as smokers. Pardon me, but the last time I looked there were places other than bars where one could drink or hold down a job. No one is forcing non-smokers to socialize and work at places where smoking is allowed.

But for the vast majority of drivers there is no alternative to the use of public streets and highways. Relatively few persons can afford private jets and helicopters for commuting and shopping. And as far as I know there are no private, drunk-drivers-and-cell-phones-banned highways. Yes, there might be a market for those drunk-drivers-and-cell-phones-banned highways, but that’s not the reality of here-and-now.

So, I can avoid the (remote) risk of death by second-hand smoke by avoiding places where people smoke. But I cannot avoid the (less-than-remote) risk of death at the hands of a drunk or cell-phone yakker. Therefore, I say, arrest the drunks, cell-phone users, nail-polishers, newspaper-readers, and others of their ilk on sight; slap them with heavy fines; add jail terms for repeat offenders; and penalize them even more harshly if they take life, cause injury, or inflict property damage.

Courtly Doings

First, the bad news: the worst choices made by a president when faced with two finalists. Ed Whelan goes with Bush I’s selection of David Souter over Edith Jones, followed closely by Ford’s choice of John Paul Stevens over J. Clifford Wallace.

Now, the good news: Tom Parker, a justice of the Supreme Court of Alabama, chastises his colleagues for following the U.S. Supreme Court’s precedent in Roper v. Simmons, which declared that Christoper Simmons couldn’t be executed for a murder he committed when he was not yet 18 years old. Here’s Justice Parker:

[M]y fellow Alabama justices freed [Renaldo] Adams from death row not because of any error of our courts but because they chose to passively accommodate — rather than actively resist — the unconstitutional opinion of five liberal justices on the U.S. Supreme Court.

Those liberal justices declared last spring in the case of Roper v. Simmons that “evolving standards of decency” now make it “unconstitutional” to execute murderers who were minors at the time of their crime. The justices based their ruling not on the original intent or actual language of the United States Constitution but on foreign law, including United Nations treaties.

Ironically, one of the UN treaties invoked by the U.S. Supreme Court as a basis for its Roper decision is a treaty the United States has refused to sign. By insisting that American states submit to this unratified treaty, the liberals on the U.S. Supreme Court not only unconstitutionally invalidated laws in 20 states but, to do so, also usurped the treaty-making authority of both the President and the U.S. Senate. . . .

. . . I am surprised, and dismayed, that my colleagues on the Alabama Supreme Court not only gave in to this unconstitutional activism without a word of protest but also became accomplices to it by citing Roper as the basis for their decision to free Adams from death row.

The proper response to such blatant judicial tyranny would have been for the Alabama Supreme Court to decline to follow Roper in the Adams case. . . .

After all, Roper itself was established as new U.S. Supreme Court “precedent” only because the Missouri Supreme Court refused to follow prior precedent. The U.S. Supreme Court used the appeal resulting from the Missouri decision to overturn its previous precedent and declined to rebuke the state court for disregarding the prior precedent.

State supreme courts may decline to follow bad U.S. Supreme Court precedents because those decisions bind only the parties to the particular case. Judges around the country normally follow precedents in similar cases because they know that if those cases go before the Court again they are likely to receive the same verdict. But state supreme court judges should not follow obviously wrong decisions simply because they are “precedents.”

After all, a judge takes an oath to support the constitution — not to automatically follow activist justices who believe their own devolving standards of decency trump the text of the constitution. . . .

Nullification of judicial activism by principled adherence to the U.S. Constitution. I like it. Very much. It gives “judicial supremacy” a brand new, delicious meaning.

Let the Punishment Fit the Crime

Donald Boudreaux, chairman of George Mason University’s economics department, is an excellent economist. I’m a devoted reader of his blogs, Cafe Hayek and Market Correction. Boudreaux also writes a twice-monthly column for PittsburghLive.com. His most recent column reminds me of this old joke:

An engineer, a priest and an economist are trapped together at the bottom of a well. The engineer looks around for a while and thinks he has a solution.

“Given the materials we have amongst us, I should be able to build a contraption to get us out of here,” says the engineer.

The priest replies, “No. That will never work. We must pray, and put our faith in God. He will show us a way out of here.”

To that, the economist says, “You’re both wrong. Assume a ladder.”

Boudreaux, who has both a J.D. and a Ph.D. in economics, fancies himself an expert in the “game” of sentencing. In the course of his recent column he asks why we don’t “punish rape even more severely — say, by executing convicted rapists?” His answer

is “if rapists were punished as severely as murderers, the number of murders would rise.”

Put yourself in the place of a man who is a threat to rape women. If you learn that rapists will no longer merely be locked in prison for years but, instead, executed, you’re a bit less likely than before to rape. That’s good. But suppose that this higher “marginal” cost of committing a rape isn’t sufficient to prevent you from raping a woman. So you rape a woman. Once you commit the rape, you are subject to being executed if you’re caught and convicted.

What will you now lose by becoming also a murderer? Nothing. In fact, you have everything to gain by killing your rape victim. If you let her live, you run a real risk of being identified, captured and convicted — and then executed. But if you murder the woman after you rape her, you reduce your chances of being caught and convicted. (The chief eyewitness to your heinous crime, after all, will be in her grave.) So with nothing to lose and much to gain by killing your rape victim, you’re more likely to kill her than you would be if the penalty for rape were lower than is the penalty for murder.

Punishing rape less severely than murder ensures that rapists still have something more to lose if they kill their victims.

Notice the critical assumption that Boudreaux makes so glibly: “If you learn that rapists will no longer merely be locked in prison for years but, instead, executed, you’re a bit less likely than before to rape.” (My emphasis in bold italics.) How does Boudreaux know that the threat of capital punishment would make rape just a bit less likely? And just how much is a bit? In short, Boudreaux has arrived at his preferred answer — don’t execute rapists — by making a critical and unsubstantiated assumption, namely, that the net effect of imposing capital punishment for rape would be more murder.

It is also possible, of course, that the effect of imposing capital punishment for rape would be a lot less rape and, therefore, a lot less murder (to borrow from Boudreaux’s arsenal of imprecise terminology). That is, the threat of capital punishment for rape would, at the margin (as Boudreaux is wont to say), deter rape and therefore avert many instances in which rapists would otherwise kill their rape victims because they have “nothing to lose” by doing so.

The correctness of Boudreaux’s assertion is an empirical question, not one to be decided by assumption. If, on balance, the threat of capital punishment deters murder, it ought to deter rape. There is empirical evidence that capital punishment does deter murder, just as crime generally declines as the certainty of punishment rises. Score one for me.

Boudreaux isn’t finished, however. He goes on to offer us his theory of finely calibrated punishments:

Of course, the same logic applies also to other crimes. We don’t execute armed robbers not because we don’t want to further reduce the incidence of armed robbery; it’s because we don’t want to strip armed robbers of incentives to let their victims live.

And likewise for the entire range of criminal sanctions. For all of its imperfections, our current criminal law generally — and sensibly — punishes crimes of lesser significance less severely than it punishes crimes of greater significance. Pickpockets impose real costs on society, but (because pickpockets are both unarmed and don’t invade the privacy of people’s homes) these costs aren’t as high as those costs imposed by robbers and burglars. So the law recognizes that it would be a fool’s gambit to attack pickpocketing by increasing the severity of its punishment so much that pickpockets shift into robbery and burglary.

I find it hard to believe that Boudreaux believes this. If he does, it’s because he’s been locked in the ivory tower for too long. For one thing, not all criminals are capable of or interested in committing all crimes; a pickpocket, for example, isn’t necessarily a repressed murderer. For another thing, criminal law, which varies from State to State, is roughly calibrated “to let the punishment fit the crime.” The kind of precision posited by Boudreaux simply doesn’t exist.

The loose and variable hierarchy of punishments imposed by various States, courts, and judges owes more to Biblical precedent (“an eye for an eye”) than to Boudreaux’s game-theoretic version of sentencing guidelines. Some States impose capital punishment but others do not, for example. If the effects of punishment on crime were as well understood and agreed as Boudreaux makes them out to be, every State would impose capital punishment. And every State would impose it — with fierce certainty — in cases of rape as well as in cases of murder.

Where’s Substantive Due Process When You Need It?

McQ at QandO asks “Massachusetts ‘health care’ prelude to government takeover?” — and answers in the affirmative. When it happens, I am sure that the U.S. Supreme Court will be asked to step in. The Court ought to invalidate any such takeover as a violation of liberty of contract, which is guaranteed in Article I, Section 10, of the Constitution. The Court used to invoke the doctrine of substantive due process to uphold liberty of contract. As I pointed out here:

The Framers understood very well that obligation of contracts (or liberty or freedom of contract) is both a matter of liberty and a matter of property. For to interfere legislatively with liberty of contract amounts to a deprivation of due process because such interference prevents willing parties from employing their labor or property in the pursuit of otherwise lawful ends. That is, the legislature finds them “guilty” of otherwise lawful actions by forbidding and penalizing those actions.

State-run health insurance would deprive health-care providers and their patients of the freedom to decide the terms under which they will do business with one another.

This post at The Volokh Conspiracy suggests that the concept of substantive due process, which came to maturity in Lochner v. New York (1905), only to be cast aside during the New Deal, may be regaining respectability. If that’s true — and I hope it is — it will be just in time to save the citizens of Massachusetts from the Commonwealth’s version of socialized medicine.

Wrong Verdict

This galls me:

Texas Mom Not Guilty by Reason of Insanity

By JULIA GLICK, Associated Press Writer

McKINNEY, Texas – A mother charged with murder for cutting off her baby daughter’s arms in what her lawyers portrayed as a religious frenzy was found not guilty by reason of insanity Friday by a judge.

The proper verdict is “guilty but insane.” The proper punishment is treatment (for the little good it will do), followed by a life sentence without possiblity of parole. Instead, the woman in question “will be sent to a state mental hospital and held until she is no longer deemed a threat to herself or others.” But a “cure” for murderous behavior is unlikely, and the hospital’s incentive will be to pronouce her “cured.” After all, why should taxpayers support a nut-house that can’t cure nut-cases?

A Footnote about "Eavesdropping"

My rather long post about “Privacy: Variations on the Theme of Liberty” includes a reading list that I update from time to time. Here’s the current version:

President had legal authority to OK taps (Chicago Tribune)
Our domestic intelligence crisis (Richard A. Posner)
Many posts by Tom Smith of The Right Coast (start with “Thank You New York Times” on 12/16/05 and work your way to the present)
Eavesdropping Ins and Outs (Mark R. Levin, writing at National Review Online)
The FISA Act And The Definition Of ‘US Persons’ (Ed Morrissey of Captain’s Quarters)
A Colloquy with the Times (John Hinderaker of Power Line)
September 10 America (editorial at National Review Online)
A Patriot Acts (Ben Stein, writing at The American Spectator)
More on the NSA Wiretaps (Dale Franks of QandO)
The President’s War Power Includes Surveillance (John Eastman, writing at The Remedy)
Warrantless Intelligence Gathering, Redux (UPDATED) (Jeff Goldstein, writing at Protein Wisdom)
FISA Court Obstructionism Since 9/11 (Ed Morrissey of Captain’s Quarters)
FISA vs. the Constitution (Robert F. Turner, writing at OpinionJournal)
Wisdom in Wiretaps (an editorial from OpinionJournal)
Under Clinton, NY Times Called Surveillance a Necessity (William Tate, writing at The American Thinker)
LEGAL AUTHORITIES SUPPORTING THE ACTIVITIES OF THE
NATIONAL SECURITY AGENCY DESCRIBED BY THE PRESIDENT (U.S. Department of Justice)
Terrorists on Tap (Victoria Toensing, writing at OpinionJournal)
Letter from Chairman, Senate Intelligence Committee, to Chairman and Ranking Member of Senate Judiciary Committee
Letter from H. Bryan Cunningham to Chairman and Ranking Member of Senate Judiciary Committee
Has The New York Times Violated the Espionage Act? (article in Commentary by Gabriel Schoenfeld)
Point of No Return (Thomas Sowell, writing at RealClearPolitics)
Letter from John C. Eastman to Chairman of House Judiciary Committee
FISA Chief Judge Speaks Out, Bamford Misinforms (a post at The Strata-Sphere)
DoJ Responds to Congressional FISA Questions (another post at The Strata-Sphere)

To that list I now add two posts at Power Line, in which John Hinderaker and Scott Johnson assess the testimony of five former judges of the Federal Intelligence Surveillance Court who testified recently before the Senate Judiciary Committee. From the transcript (as quoted in Hinderaker’s post):

Chairman Specter: I think the thrust of what you are saying is the President is bound by statute like everyone else unless it impinges on his constitutional authority, and a statute cannot take away the President’s constitutional authority. Anybody disagree with that?

[No response.]

Chairman Specter: Everybody agrees with that.

The president’s inherent constitutional authority includes the use of surveillance against foreign nationals — even if a U.S. citizen in the U.S. happens to be on the other end of the phone line or e-mail exchange. That point is reinforced by this passage from Johnson’s post:

Senator Hatch . . . pursued a series of hypothetical questions that he posed to Judge Kornblum regarding the admissibility in criminal trials of evidence obtained indirectly from the NSA surveillance program:

Judge Kornblum: To be admissible, the evidence would have had to have been lawfully seized or lawfully obtained and the standard that the district judge would use is that, depending upon where this is, is the law in his circuit. In most of the circuits, the law is clear that the President has the authority to do warrantless surveillance if it is to collect foreign intelligence and it is targeting foreign powers or agents. If the facts support that, then the district judge could make that finding and admit the evidence, just as they did in Truong-Humphrey.

(Emphasis added.) Judge Kornblum’s reference to Truong-Humphrey is to the federal appellate cases that acknowledge[s] [a] president’s inherent authority to order warrantless foreign intelligence surveillance, previously discussed by John here.

So, let’s knock off this nonsense about “illegal wiretaps” and get on with finding the bad guys. Actually, I’m sure that’s precisely what Bush and company are trying to do, in spite of the ankle-biters in the media and Congress.

Dealing with Moussouai

Almost a year ago

Zacarias Moussaoui pleaded guilty . . . to taking part in a broad al Qaeda conspiracy that resulted in the Sept. 11, 2001, attacks, saying Osama bin Laden personally instructed him to fly an airplane into the White House.

It now seems possible that Moussaoui may not be sentenced to death. (You can follow all the action here.) There must be options; for example:

1. Imprison Moussaoui but do not sequester him.

2. Drop him off outside the gate of a U.S. military encampment in Iraq, armed with an empty Uzi — and wearing his orange jump suit.

3. Announce that he will be released from custody at Ground Zero at a certain time, and that he will be wearing his orange jump suit (with leg-iron accessories).

It would only be fair to let Moussaoui choose from among the options.

Well Said . . .

. . . by Jon Henke at QandO:

I can accept a constitutional right to privacy, but if it only extends to abortion, then it’s not a right to privacy at all. It’s a right to abortion. The two are not the same.

Of course, abortion isn’t about privacy at all. It’s about convenience.

Quick Takes

Attempted murder or terrorism? You decide. But I will not call it a “hate crime.”

Why we must steadfastly reject economic interventions by the state. (The price of interventionism? Read this.)

More good reasons to reject hostility to religion, which are consistent with my reasons.

It is hard to fight a war while you’re carrying a lawyer on your back. It’s even harder when you’re carrying the Left, the press, the punditocracy, many members of Congress, and a bunch of cosseted anarcho-capitalists on your back.

Contrary to nit-picking statisticians and pseudo-libertarians, a community is what it expects and enforces.

Speaking of pseudo-libertarians, it is wise to reject the tempting tenets of Objectivism, saith he. And so say I.

Sunstein and Executive Power

Cass Sunstein endorses unilateral executive action. But Sunstein doesn’t mean to endorse George W. Bush’s use of executive power to defend America. Sunstein’s aim is to justify the resuscitation Franklin D. Roosevelt’s disastrous New Deal.

Sunstein at the Volokh Conspiracy
More from Sunstein
Call Me a Constitutional Lawyer
(Sen)seless Economics
Cass Sunstein’s Truly Dangerous Mind
An (Imaginary) Interview with Cass Sunstein
Slippery Sunstein

More about Preemptive War

Go to Bellum et Mores, start with “War, the Constitution, and the UN II: Return of the Cosmopolitans” (posted February 19), and be sure to read all the comments (I’m there). Then scroll up to read what Joe Miller’s students have to say about preemption. (Posts on other subjects are interspersed.)

A Legal Strategem for Pot Smokers

The U.S. Supreme Court, in Gonzales v. Raich (June 6, 2005), said in effect that the federal government can regulate the production of marijuana in any amount under the Controlled Substances Act, citing the Commerce Clause as authority. The Court later ruled, in Gonzales v. Oregon (January 17, 2006), that the federal government cannot rely on the Controlled Substances Act or the Commerce Clause to interfere with Oregon’s legalization of physician-assisted suicide. The Court has now decided, in Gonzales v. O Centro Espirita (February 21, 2006), that the federal government may not rely on the Controlled Substances Act and the Commerce Clause to bar the use of a hallucogenic drug by a religious sect.

The lesson for pot smokers is clear: You must find a way to use marijuana in committing suicide (in Oregon) or you must join a religious sect of long standing that uses pot in its ceremonies.

More Final (?) Words about Preemption and the Constitution

In “Final (?) Words about Preemption and the Constitution,” quoting myself, I say that the UN Charter

delimits Congress’s authority to declare war, even though that authority isn’t delimited in the Constitution. (There’s no mention there of “self defense,” for example.) The . . . UN Charter, therefore, amounts to constitutional amendment by treaty. That’s not how the Constitution is supposed to be amended. . . .

I have no problem with treaties that implement powers granted to Congress and the president (e.g., the negotiation and ratification of trade treaties). I have a fundamental problem with a treaty (the UN Charter) that circumscribes the power of Congress to declare war. That isn’t an implementation of a constitutional power, it’s a denial of a constitutional power. . . .

In ratifying the Charter, the Senate essentially surrendered a good chunk of (if not all of) Congress’s constitutional authority to declare war. . . . In other words, if the U.S. were to abide by the letter of the UN Charter (as interpreted by the Security Council, not Congress), the president and Congress would be prevented from taking actions that they judge to be in the best interest of Americans. That, it seems to me, vitiates the Framers’ intent, which was to place the decision about going to war in the hands of the elected representatives of the people of the United States — and certainly not in the hands of foreign powers.

Here is Mr. Justice Black, writing for the U.S. Supreme Court in Reid v. Covert (1957):

Article VI, the Supremacy Clause of the Constitution, declares:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land;… .”

There is nothing in this language which intimates that treaties and laws enacted pursuant to them do not have to comply with the provisions of the Constitution. Nor is there anything in the debates which accompanied the drafting and ratification of the Constitution which even suggests such a result. . . .

There is nothing new or unique about what we say here. This Court has regularly and uniformly recognized the supremacy of the Constitution over a treaty. 33 For example, in Geofroy v. Riggs, 133 U.S. 258, 267 , it declared:

“The treaty power, as expressed in the Constitution, is in terms unlimited except by those restraints which are found in that instrument against the action of the government or of its departments, and those arising from the nature of the government itself and of that of the States. It would not be contended that it extends so far as to authorize what the Constitution forbids, or a change in the character of the [354 U.S. 1, 18] government or in that of one of the States, or a cession of any portion of the territory of the latter, without its consent.”

In sum, a treaty (such as the UN Charter) may neither violate nor change the meaning of the Constitution. The UN, in other words, may not in any way usurp the authority of Congress (or the president) to decide when and in what circumstances the U.S. goes to war.

Other relevant cases:

1. . . . a treaty may not enlarge or amend the Constitution of the United States. In the case of New Orleans v. U.S. (10 Pet. 662, 1836), the Court said that Congress cannot by legislation enlarge the Federal jurisdiction nor can it be enlarged under the treaty-making power.

2. Again in Doe v. Braden (16 How. 635, 1853), the Court indicated it thought that the Constitution was superior to a treaty when it stated: The treaty is therefore a law made by the proper authority, and the courts of justice have no right to annul or disregard any of its provisions, unless they violate the Constitution of the United States.

3. Later, in The Cherokee Tobacco Case (11 Wall.616, 620-621, 1870), the Supreme Court stated: It need hardly be said that a treaty cannot change the Constitution or be held valid if it be in violation of that instrument. This results from the nature and fundamental principles of our Government.

Case closed.

Office Romance

Lou Michels of Suits in the Workplace writes about the legal perils of office romance:

Given the expansive definitions of hostile work environment contained in recent California cases, and the normal concerns about favoritism/nepotism, there would appear to be very little upside for an employer that doesn’t pay attention to the romantic liaisons in its workforce. Especially crucial are relationships between management and subordinate employees, even where no direct superior-subordinate relationship exists. My experience is that coworkers will always believe that any benefit received by the lower-ranking employee in such a relationship is always a result of the relationship, and not job competence. This perception obviously creates larger problems for everyone as a relationship continues. I regularly counsel my clients to require disclosure of these kinds of relationships at a minimum, and, if possible, prohibit them.

This gets especially tricky when the CEO is a party to an office romance. Everyone else in the company (including the romantic partner) is a lower-ranking employee and therefore off-limits to the CEO — according to policy. But a CEO may simply choose to carry on, heedless or ignorant of the effect of his or her actions on the morale of other employees and on the company’s exposure to legal action. That’s when the VP with responsibility for HR must step in and counsel the CEO. It would be dereliction of duty not to step in.

Legalism vs. Liberty

We have a Constitution that was written by men who knew what it meant to fight for liberty. As Justice Felix Frankfurter wrote,

we have had recent occasion to quote approvingly the statement of former Chief Justice Hughes that the war power of the Government is ‘the power to wage war successfully.’ . . . Therefore, the validity of action under the war power must be judged wholly in the context of war. That action is not to be stigmatized as lawless because like action in times of peace would be lawless. To talk about a military order that expresses an allowable judgment of war needs by those entrusted with the duty of conducting war as ‘an unconstitutional order’ is to suffuse a part of the Constitution with an atmosphere of unconstitutionality. The respective spheres of action of military authorities and of judges are of course very different. But within their sphere, military authorities are no more outside the bounds of obedience to the Constitution than are judges within theirs. . . . To recognize that military orders are ‘reasonably expedient military precautions’ in time of war and yet to deny them constitutional legitimacy makes of the Constitution an instrument for dialetic subtleties not reasonably to be attributed to the hard-headed Framers, of whom a majority had had actual participation in war. If a military order such as that under review does not transcend the means appropriate for conducting war, such action . . . is as constitutional as would be any authorized action by the Interstate Commerce Commission within the limits of the constitutional power to regulate commerce.

In spite of that, we now have men and women who seem opposed to the notion that fighting a war in order to win it is every bit as constitutional as regulating interstate commerce in order to dictate the labeling of canned goods. How is it that such men and women can go so wrong? Here’s how:

They understand, correctly, that citizens may not be deprived of liberty without due process of law.

They twist that principle to mean that due process of law is synonymous with liberty.

That leads them to challenge any defense of liberty that — in their view — violates due process, even if the result of their challenge is to enable the enemies of liberty

They have, in other words, mistaken means for ends and come down on the side of means, as opposed to ends. That is to say, they prefer the tokens of libert to liberty, itself. And sometimes they seem downright determined to help the enemies of liberty.

Getting It Wrong: Civil Libertarians and the War on Terror (A Case Study)
More about War and Civil Liberties
The Illogic of Knee-Jerk Civil Liberties Advocates
Torture and Morality
The Constitution and Warrantless “Eavesdropping”
NSA “Eavesdropping”: The Last Word (from Me)
Privacy, Security, and Electronic Surveillance
Privacy: Variations on the Theme of Liberty
Words for the Unwise
Recommended Reading about NSA’s Surveillance Program

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