The cat, the bag and Justice Scalia

Supreme Court Justice Antonin Scalia spoke at the American Enterprise Institute in Washington last Tuesday about the use of foreign law in United States court opinions. Then he took questions from some of the rudest and most obnoxious people ever to preen in front of a C-SPAN camera, and that's saying something.

However, someone did squeeze in a good question between the insults and the heckling, and Justice Scalia answered it with more frankness than we usually hear from federal judges.

The question was about the potential consequences of a return to strict construction of the Constitution. Justice Scalia explained that he is not a strict constructionist, then he explained why, and then he let the cat out of the bag.

He said the Bill of Rights was never intended to apply to the states, and the Supreme Court's interpretation that it does is "the biggest stretch that the Court has made." He said it was still a "controversial proposition" when he was in law school, but the Court has done this for some fifty years now, it's "manageable," "the people have gotten used to it," and he's not going to be the one to tell the people of any state that their state government is not bound by the First Amendment.

Here is a transcript of Justice Scalia's full answer, and if you read all the way to the end, I'll tell you what he didn't tell you:

QUESTIONER: My question is in regard to strict interpretation of the Constitution as it relates to the issue of applying international law before the Supreme Court. After all of these decades of what some would call activism, of the Supreme Court accepting the Constitution as an evolving document, interpreting it in new ways, as a practical matter, would there be consequences with moving entirely to strict construction or is there a need for moderation, or would you say the country would essentially be in better legal hands were the court to move entirely to strict construction. Thank you.

JUSTICE SCALIA: Well, number one, I believe in moderation, and I don't believe in strict construction, I am not a strict constructionist, I'm sorry to tell you that. I believe legal texts should be interpreted neither strictly nor loosely, they should be interpreted reasonably. And the example I often use is that if you really are serious about being a strict constructionist, you would say that the First Amendment would not be offended by Congress' censoring handwritten mail, because the First Amendment only says, you know, it guarantees freedom of speech and of the press, and a handwritten letter is neither speech nor press if you want to be strict about it. But of course the First Amendment has always been understood as protecting freedom of expression, and I think that is a reasonable interpretation of it, and that's the interpretation I apply. Which is why, you know, I was the fifth vote in the flag-burning case, which said this was an expression of contempt, just one way of expressing it, and you can't have a law against an expression of contempt. Now, as to what would be the severe results of going over to a system of abandoning the living Constitution, I mean, you know, I do believe in the doctrine of stare decisis. Which means, for anybody who has any judicial philosophy, you're willing to tolerate what's been around a long time and everybody's gotten used to. You can't rip everything apart and reinvent the wheel every five years. Thus, most of the decisions that have been rendered under an evolutionary construction I would leave in place. Not all of them, but most of them. For example, perhaps the most--the biggest stretch that the Court has made was interpreting the Fourteenth Amendment to apply the Bill of Rights to the states. Nobody ever thought the Bill of Rights applied to the states. It begins "Congress shall make no law." And when I was in law school, it was still a controversial proposition whether the Fourteenth Amendment incorporated the Bill of Rights and spat them out upon the states. But, you know, we've been doing this for fifty years now, it's not a problem, I just take the same rules that I apply to the Bill of Rights against the federal government, and I apply it against the states. It is manageable, the people have gotten used to it, and I'm not about to tell the people of New York state or of any state that their state government is not bound by the First Amendment. Okay? So, stare decisis saves you from those wrenching departures that would make it impossible to go back to a correct interpretation of the Constitution.

What does he mean, exactly? What are "those wrenching departures" that would make it impossible to go back to a correct interpretation of the Constitution?

Justice Scalia won't tell you this, and who can blame him, but the trouble with strict construction has nothing to do with censoring handwritten mail. Strict construction would allow the states to permit racial segregation of schools and public accommodations.

The Constitution has never been amended to ban racial discrimination. The framers of the Fourteenth Amendment, and the state legislatures that ratified it, all made it explicitly clear that the amendment did not touch the ongoing practice of racial segregation in the Northern states. That's why it's impossible to go back to a "correct interpretation" of the Constitution.

No one in public life can say it, but Brown v. Board of Education was a usurpation by the Supreme Court of powers which the Constitution specifically reserved to the states.

That's where strict construction takes you, and if you think Justice Scalia is going there, guess again.

But what about the Supreme Court's "biggest stretch," the fifty-year project of gradually applying the Bill of Rights to the states? Justice Scalia tells less than the whole truth when he says it's "manageable" and "the people have gotten used to it."

For the record, nobody ever asked the people of the United States, or their elected representatives, what they thought about it.

In a series of decisions over the course of the 20th century, the Supreme Court overrode the states' constitutional authority on issues like prayer in public schools, Ten Commandments displays, free speech in classrooms, panhandling, loitering, nude dancing, door-to-door solicitation and flag-burning.

Perhaps "the people" have gotten used to it, but that's not the same as agreeing to it.

Neither have the people agreed to have the Supreme Court override state governments' authority in the regulation of police searches, interrogations, jury trials, prison sentences or the death penalty.

This is not to say the people wouldn't agree. Just that nobody ever asked them.

The Supreme Court's incorporation of the Bill of Rights into the Fourteenth Amendment is also responsible for the Roe v. Wade decision, which took away the states' constitutional power to ban abortion and made the confirmation of federal judges a political firefight for three decades. "Manageable" is not the word I'd choose to describe it.

The core problem with the incorporation doctrine is the subjectiveness that it inevitably introduces into judicial reasoning. It works like this: Some rights are so fundamental to the idea of due process of law that they must apply to the states through the Fourteenth Amendment, which bars any state from denying due process of law to any person.

For example, the Supreme Court has never ruled that the states can "make no law," as the First Amendment declares, restricting freedom of speech. Instead, the Court has held that freedom of speech is a fundamental right, and that a fundamental right may only be infringed by a state if there is a compelling reason. A rational reason, the justices have said, isn't good enough.

Some rights are fundamental and some are not. Some reasons are compelling and some are only rational. The justices will decide based on... based on...

There's no way around the fact that this is always and forever a subjective value judgment.

Judges who want to conceal the subjectivity have to cite something to support their value judgment. Like social science studies. Or state-by-state polls. Or foreign law. If they cite the U.S. Constitution they risk tripping over the Tenth Amendment, which says in unambiguous language that the powers not delegated to the U.S. government are reserved to the states.

Justice Scalia can't say it, but the incorporation doctrine is a problem. The solution is a series of constitutional amendments, starting with a ban on race and gender discrimination, to bring the Constitution up to date without relying on the generosity and imagination of federal judges.


Copyright 2006

Editor's Note: Click here or here to get a copy of "How the First Amendment Came to Protect Topless Dancing: A History of the Incorporation of the Bill of Rights Into the Fourteenth Amendment, Why It's a Problem, and How to Fix It," an essay published as an appendix to The 37th Amendment: A Novel by Susan Shelley. Or click here to read it online. You might also be interested in "Why There Is No Constitutional Right to Privacy, and How to Get One" as well as some of the other essays at www.SusanShelley.com.

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The president's motive in the ports deal

People used words like "inexplicable" and "insane." Why would a president who gives two speeches a week on the danger of terrorism agree to the sale of U.S. port operations to a company owned by an Arab country with a history of ties to al-Qaeda? Why would he stand on the White House lawn and threaten to veto any bill that blocks the sale, even as he insists that he just found out about it himself?

There's always a reason.

On Thursday the White House released word that the United Arab Emirates had donated $100 million for victims of Hurricane Katrina. The donation was made, the AP reported Friday, "just weeks before Dubai Ports sought approval for its business deal," and was "nearly four times as much as the administration received from all other countries combined."

That's not the reason. Not unless the administration officials who approved the deal listed their family members as victims of Hurricane Katrina and pocketed the whole hundred million themselves. Even then, you'd have to believe President Bush was one of those family members to explain his foot-stamping tantrum on the White House lawn last Tuesday.

But maybe it holds a clue to the reason. Maybe we should follow the money.

Thursday's AP report on the UAE's hurricane-relief donation included this paragraph, slipped in at the end where you might have missed it:

The United Arab Emirates has long-standing ties to the Bush family. Records show the UAE and one of its sheikhs contributed at least $1 million before 1995 to the Bush Library Foundation, which established the George Bush Presidential Library in College Station, Texas.

By coincidence, or maybe not by coincidence, President Bush is presently reviewing four competing proposals from Texas schools anxious to be chosen as the site of the George W. Bush Presidential Library.

This fact came to light in connection with a lawsuit by Dallas lawyer Gary Vodicka, who is suing Southern Methodist University to find out if the school intends to force him out of his home in order to acquire his land for the Bush library. Four schools have submitted proposals to President and Mrs. Bush, all four have been subpoenaed in the lawsuit, and all four are refusing to release their proposals until President and Mrs. Bush award the bid, a decision that is expected about a month from now.

Needless to say, there's a fair amount of fund-raising involved in building a presidential library.

Could it be that President Bush's fund-raisers are hitting up the United Arab Emirates at this very moment?

Imagine how upset the president would be if, just as the friendly leaders of the UAE were about to sign the check, they switched on CNN and saw half the United States Congress attacking them as suspicious characters with ties to al-Qaeda.

He'd be pretty upset.

He'd call reporters over and he'd stick up for his old pals. He'd make a big, visible effort to vouch for their trustworthiness.

He might even go on television two days in a row and accuse the Congress and the American people of racism for making a distinction between a private company in Great Britain and a company owned by an unelected Arab government.

Oh, wait, that's not your imagination. That actually happened.

The worst part for President Bush, if library funding is really what's behind his bizarre reaction, is that now he can't accept the UAE's money even if they'll give it to him. Not unless he keeps the list of donors secret forever.

Watch for that.


Copyright 2006

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Roosting comfortably

It's quite a sight at the White House this week, all those chickens marching across the South Lawn toward the executive mansion, carrying their little suitcases.

They've come home to roost.

For most of his term in office, President Bush has been ringing the firebell every morning to warn Americans of the imminent and deadly danger of al-Qaeda terrorists finding a way to smuggle a nuclear weapon into the United States. Just in the last two weeks he has given speech after speech urging Americans to understand the need for warrantless surveillance of domestic phone calls and e-mail, because the nation still faces a dangerous enemy, an enemy that is trying to hurt us.

An enemy. The word suggests an organized force with dastardly leaders devising evil plots to exploit any opening in our defenses.

Well, okay.

And then on Tuesday the president got off his helicopter and strode to the microphone and vowed to veto any bill that blocks the sale of U.S. port operations to a company owned by the United Arab Emirates.

He's lucky the chickens didn't trample him to death.

The first poll that came out on Wednesday showed ninety percent of Americans opposed to the ports deal. In Washington, lawmakers materialized out of their Presidents Day recess like Brigadoon out of the mist, only louder.

Senate Armed Services Committee Chairman John Warner was the first one to grab the bagpipes, holding what he called a briefing in advance of a future hearing. Joined by Senators Carl Levin, Robert Byrd, Edward Kennedy and Hillary Clinton on Thursday morning, he questioned a panel of administration officials about the Dubai Ports World deal and then invited reporters to the microphones to ask their own questions.

For more than two hours, the administration's shell-shocked representatives explained that nothing about the ports deal struck anyone as having any effect on national security, so the law requiring a 45-day extended review did not come into play. One of the undersecretaries said the national security implications were evaluated using the same standard that has been in use since 1992.

As any frisked, screened, orange-alerted, metal-detected, ID-checked, wiretapped American can tell you, 9/11 changed everything.

President Bush complained Tuesday about the congressional opposition to the ports deal. "They ought to listen to what I have to say about this," he said.

We've been listening. That's his problem.


Copyright 2006

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The rancid ethics of the Senators Dole

Dubai Ports World has hired former senator Bob Dole to represent the government-owned company's interests in Washington.

That means Senator Dole's wife, Senator Dole of North Carolina, is about to have her household income enhanced by a check from Dubai Ports World, just as the Senate is about to consider legislation to block the company's takeover of operations at six major U.S. ports.

Before anybody in the family cashes that check, one of the Senators Dole should wake up and smell the ethics. This is national security, not corn subsidies.

This would be a fine time for the Senate leadership to demonstrate their understanding of the problem by banning the spouses of lawmakers from accepting money for lobbying services. Let's not hear any 1970s whining about women having the right to their own careers. A U.S. senator's spouse doesn't have to make a career out of lobbying the U.S. Senate.

Copyright 2006

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Connecting the dots in the war on drugs

My sources at the CIA say this about the United Arab Emirates, the country the president says we can trust with control of six U.S. ports:

The UAE is a drug transshipment point for traffickers given its proximity to Southwest Asian drug producing countries; the UAE's position as a major financial center makes it vulnerable to money laundering.

Am I going to federal prison for leaking highly classified information? I hope so. I need the publicity.

Actually, the CIA's World Factbook is online. Click here and read all about it.

President Bush has threatened a veto (his first ever) if Congress passes a law to block state-owned Dubai Ports World from taking over port operations in six major U.S. cities.

America Wants to Know is pleased to provide lawmakers with a little extra ammunition against him. They don't have to wait for the report of the 2009 Presidential Commission on the Increasing Scourge of Drugs in U.S. Cities. They can connect the dots right now.

Copyright 2006

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Democracy: One more reason to block the ports deal

Is the takeover of six major U.S. ports by Dubai Ports World a national security threat to the United States?

President Bush says no. Homeland Security Secretary Chertoff says no. Defense Secretary Don Rumsfeld says no. Former President Jimmy Carter says no.

Feeling reassured?

Well, you should feel reassured, not because the administration and the world's most esteemed dictator-defender say it's okay, but because James Madison and the boys saw them all coming and protected you.

Today Senate Majority Leader Bill Frist said the president should block Dubai Ports World's takeover of the port operations currently owned by the British-based Peninsular & Oriental Steam company. Senator Frist said he will introduce legislation to halt the deal if the president doesn't act.

Still, that doesn't answer the question of whether the Dubai Ports World deal is a genuine threat or just a deeply unsettling potential threat. Today it's ports, tomorrow it will be something else. How should we evaluate deals with foreign companies to protect U.S. security without strangling global trade?

It's simpler than you think.

Dubai Ports World is a state-owned enterprise. That means the people who control the government control the company.

Today the United Arab Emirates is, in Secretary Rumsfeld's words, "a country that's been involved in the global war on terror...a country (with which) we have very close military relations."

But what happens if the administration's campaign for democracy veers off and hits the UAE by mistake?

If the UAE were to hold elections without privatizing the economy, it's entirely possible that Muslim extremists would take over the government and control of the state-owned enterprises with it.

That's what has happened in the Palestinian Authority and in Iraq. (See our earlier post, "Why the Iraq Policy Isn't Working.")

If Dubai Ports World was a privately held or publicly traded company, we could do business with them and the security risks would be more manageable. But a state-owned enterprise is a tool of the government that controls it.

It's the ownership, not the region, that poses the uncontrollable danger. A takeover of the ports by a state-owned North Korean or Cuban or Chinese enterprise would be the same kind of national security disaster.

So here's the simple test for the national security risk of any business deal with a foreign-based company: Is the company owned privately, or is it owned by a government? If it is owned by a government, the deal should be subjected to the strictest possible national security review, including regularly scheduled continuing reviews. Without privatization, we're only a democratic election away from catastrophe.

Copyright 2006

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Why Dick Cheney can't dig himself out

Vice President Dick Cheney blamed the media last week for the uproar over his hunting accident. He suggested to Fox News' Brit Hume that the White House press corps was in a snit because they were scooped by the Corpus Christi Caller-Times.

Nice try.

The issue here is not media coverage but abuse of power. The vice president accepted, perhaps demanded, special treatment from law enforcement.

First, the local sheriff's deputy was kept from interviewing Mr. Cheney until the morning after the accident. Then the Secret Service -- trained observers and federal law enforcement officers -- would not release a report of the incident, even though the agents were eyewitnesses who also provided medical attention and transportation for the victim.

It adds a whole new meaning to "Secret Service protection."

The vice president told Brit Hume that he had a beer with lunch, and hunting party hostess Katherine Armstrong said Mr. Cheney mixed himself a drink back at the house after the incident.

Certainly anyone who is involved in an accident would prefer not to have a public record stating that alcohol may have been a factor.

So the next time you're involved in an accident, tell the little officer who questions you that you'd like him to come back the next morning to ask his little questions, because you're very busy.

Don't think it will work?

It will work if you hold an office so powerful that you can pick up the phone and ruin the little officer's career. You don't even have to say it. Not when everyone in Texas knows you're on a first-name basis with every Republican elected official in the state.

It's an abuse of power to accept special treatment from law enforcement.

It's too late for a prompt and unrestrained investigation into the hunting accident. But it's not too late for the vice president to demand that the Secret Service release a detailed report and even make its agents available to the press. That's what it's going to take if he wants to be believed, and respected.


Copyright 2006

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The real end of the Cold War

U.S. figure skating champion Johnny Weir caused a stir at the Olympic Games in Turin last Thursday by wearing a Soviet-throwback warmup jacket. The skater wore the red, zippered jacket, emblazoned with "CCCP" across the chest, over a practice jersey with his name spelled out in Russian letters on the sleeve.

Weir said it was a gift from his friend, Russian skater Tatiana Totmianina. "It's just for fun," he said. "It would be the same as someone wearing a Madonna T-shirt."

Well, maybe not quite.

Nostalgia for the U.S.S.R. isn't all bad. It means it's over, it's gone, and it's never coming back. Like disco.

Imagine if you could have shown this news story to any of the U.S. presidents during the Cold War -- Truman, Eisenhower, Kennedy, Johnson, Nixon, Ford, Carter or Reagan -- and told them that at the 2006 Winter Olympics a Russian skater would be hanging out with a U.S. skater and the American would be seen wearing a Soviet jacket. And the U.S. skater would say it was just like wearing a picture of a pop star and no one would remember why it wasn't.

What would those presidents have said?

They might have said, "I'll take it."

We have arrived at the end of the Cold War and this is what it looks like: Russian kids and American kids skating in circles together, happy as clams and just as bright.

Copyright 2006

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Impeach Sam Alito

Well, that didn't take long.

Supreme Court Justice Samuel Alito hadn't even had his formal investiture ceremony when he announced the hiring of Adam Ciongoli as one his law clerks.

Adam Ciongoli will leave a top legal job at Time Warner in New York to clerk for Justice Alito through the end of the current Supreme Court term.

Why would a highly paid corporate lawyer in New York City move to Washington to take a job typically held by fresh-out-of-law-school rookies?

There's always a reason.

In this case, the reason may have something to do with Mr. Ciongoli's past employment and the Supreme Court's upcoming cases.

Mr. Ciongoli, described by the AP's Gina Holland as "a one-time confidant of former Attorney General John Ashcroft," worked in the Justice Department from 2001 to 2003 and was involved in the post-9/11 policies that are now under review by the Supreme Court. For instance, the justices are about to hear an appeal from terror suspect Jose Padilla, an American citizen who is challenging the president's power to have him picked up and held for an extended period without charges or access to an attorney.

There likely will be other questions before the Supreme Court involving challenges to the White House's various privilege claims and power grabs. And Mr. Ciongoli will be right there inside the building to give everybody in the administration a quiet heads-up on where they stand at all times. Think how much easier it will be for the solicitor general to tailor the White House briefs and oral arguments once they know exactly what the justices think about all the key issues.

Is it ethical for a former Justice Department lawyer to participate in the Supreme Court's review of the Justice Department's actions when he was employed there?

If these people worked on Wall Street, Eliot Spitzer would be all over them like a cheap suit.

What does it say about Justice Samuel Alito that he would permit a former Justice Department lawyer to come to work for him as a clerk under these circumstances?

Assuming he's not a fool, it says he believes so strongly in the importance of unrestrained executive power that he is willing to do whatever it takes to keep anyone from interfering with the president's decisions.

The thing is, he took an oath to uphold the Constitution. And the whole purpose of the Constitution is to restrain the power of the federal government generally and everyone who works in it specifically. There's no use parsing the document for ambiguous words and phrases that can be interpreted to permit unlimited power. The whole thing prohibits unlimited power.

This is true even in time of war. Perhaps especially in time of war. And speaking of war, the Constitution does not permit the president to decide when we are at war and when we are not. Congress is not a decorative accessory to be pushed aside when serious work needs to be done.

In fact, the Constitution gives Congress the power to impeach and remove the president, the vice president, all civil officers of the United States, federal judges, and the justices of the Supreme Court.

Why?

Because Congress directly represents the people of the United States, and this government exists by consent of the governed.

If Justice Alito has intentionally hired a Justice Department mole to clerk for him, if he intends to tilt the playing field in favor of limitless power for the executive branch, Congress could have a surprise for him.


Copyright 2006

Argus Hamilton's collected Dick Cheney hunting jokes

America Wants to Know is pleased to hook you up with the collected Dick Cheney hunting jokes of comedian Argus Hamilton.

Click here.

Read Argus Hamilton's syndicated column every day at www.ArgusHamilton.com.

If you're planning a meeting or convention, you can join the hundreds of companies and organizations that have booked Argus to entertain their groups live and in person. Call ExtremeInk.com at 818-386-9552 to get in touch with him.


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Alan Greenspan's job interview

Columnist Robert Novak reports today that just-retired Fed chairman Alan Greenspan accepted a $250,000 fee to speak to a "secret" dinner in Manhattan last Tuesday for partners and clients of Lehman Brothers, and he told them the markets are underestimating the Fed's future interest rate increases.

Under the rules of the Federal Reserve, Mr. Greenspan is not free to say things like that. Oh, wait, he didn't say it for free. He charged a quarter of a million dollars.

Mr. Novak reports that the former chairman's remarks were leaked by a Lehman Brothers executive who was not invited to the dinner.

It just can't be true. Surely Alan Greenspan, a man who has kept his tongue in something close to bondage restraints for all these years, wouldn't be so foolish as to violate the Fed's rules by selling hints of future Fed policy under the guise of speaking fees.

More likely the leaker is attempting to manipulate the markets for a quick gain.

Then again, if the former chairman is looking for work, he might be advertising that he can offer a prospective employer those little ups and extras that inside access can bring.

That would be tacky.

There must be a more ethical way for the former chairman to support his lifestyle. Maybe he can go to the U.N. and skim funds from poverty aid programs. Maybe he can run for a seat in the Palestinian parliament. Maybe he can set up an off-shore casino and get Janet Gretzky's cell phone number.

Whatever he does, he'd be well advised to cover his tracks very carefully. He's married to one of the best reporters in the business, and once Valentine's Day is over, a scoop is a scoop.


Copyright 2006


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Rep. Heather Wilson pries open the White House

Senator Arlen Specter held a widely publicized and fully televised and thunderously self-important hearing on Monday into the National Security Agency's warrantless domestic surveillance program. Attorney General Alberto Gonzales, the sole witness, answered virtually all questions by stating the administration's often-repeated position that to disclose operational details of the program would aid the enemy.

Then, on Wednesday, Rep. Heather Wilson of New Mexico quietly brought the White House to its knees and to Capitol Hill for a four-hour classified briefing on the operational details of the NSA program.

Senator Specter concluded his hearing Monday by weakly urging the attorney general to submit the NSA program to the Foreign Intelligence Surveillance Court for a review of its legality.

Rep. Wilson didn't hold a hearing and didn't need a court.

What happened?

Rep. Wilson is the chairwoman of the House intelligence subcommittee with oversight of the NSA. She has the power to subpoena documents and force officials to testify.

Senator Specter is chairman of the Senate Judiciary Committee, and he has subpoena power, too. He could have called the White House and quietly informed the administration that he was prepared to use that power to compel the production of documents and testimony.

Instead, he held a pompous public hearing where the senators and the attorney general could pull out their rulers and measure who loved freedom more.

Rep. Wilson simply let it be known, calmly and quietly, that she was breaking with the administration and wanted the full House Intelligence Committee to be briefed on the NSA program.

Which they were. The same day. After nearly two months of stonewalling.

All the GOP committee chairmen have it in their power to subpoena the White House. There actually is no such thing as a president's right to confidential advice. There actually is no such thing as executive privilege. It's all bluff and bluster, as Rep. Heather Wilson just demonstrated in elegant fashion.


Copyright 2006

Editor's note: The book to read on this subject, before you let someone you love claim executive privilege, is Executive Privilege: A Constitutional Myth by Raoul Berger (1974, Harvard University Press). You might also be interested in these earlier posts: "Senate Republicans fire the big gun" and "Mr. Rumsfeld's Mythical Privilege."

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What the CIA really does all day

Mexico is furious at the U.S. government.

What is it now, you might ask.

It seems that a group of U.S. energy executives were at the Hotel Maria Isabel Sheraton in Mexico City to meet with a delegation of officials from Cuba. About oil.

Not only did the Bush administration know about it, they got on the phone to executives of Sheraton's parent company while the meeting was still going on and got the group expelled from the hotel. U.S. officials sternly explained that Starwood Hotels & Resorts Worldwide Inc., a U.S.-owned company, is prohibited by the U.S. embargo from doing business with Cuba or Cubans.

At least it explains why we haven't found Osama bin Laden. Our Predator drones are following guys from Houston.


Copyright 2006

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"Sir, the client here is the president of the United States."

U.S. Attorney General Alberto Gonzales was dodging questions from Senator Charles Schumer of New York when he responded to an inquiry about the limits on testimony by former Justice Department officials by saying, "Sir, the client here is the president of the United States."

The subject was the NSA's secret electronic surveillance of people inside the United States without the authorization of any court. The attorney general appeared to be trying to reserve all possible privileges so that the president may later claim them to prohibit current and former officials from answering the U.S. Senate's questions.

Instead, what the attorney general did was expose the fundamental flaw in the adminstration's argument that the wiretapping program is carefully and regularly reviewed by teams of lawyers at the NSA, the Justice Department, and in the White House Counsel's office.

"The client here is the president of the United States."

The attorney general is not the president's lawyer. He's the chief law enforcement officer of the United States. If Alberto Gonzales thinks his client is the president, and everyone who works under him in the Justice Department thinks the client is the president, and White House Counsel Harriet Miers thinks the client is the president, and the lawyers at the NSA can all be fired by the White House, then what they claim is a careful review of the legality of the surveillance program is in fact a collective chorus of "Yes, SIR!"

Attorney General Alberto Gonzales gave the game away. And he wasn't even under oath.


Copyright 2006

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The fabulous vanishing tax reform trick

Former Senator John Breaux sounded like a man whose feelings were hurt.

"I am really disappointed," he said Wednesday.

Mr. Breaux was disappointed that President Bush's State of the Union address on Tuesday had contained not one, not two, but absolutely none of the recommendations made last fall by the President's Advisory Panel on Federal Tax Reform.

President Bush made the panel's report vanish right before their eyes.

"Must be in a closet somewhere, on a shelf somewhere," Mr. Breaux said.

Can you solve the mystery? For the answer, read our earlier post, Low Comedy and High Taxes.


Copyright 2006

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Bad News for Rob Reiner

He never had the conservatives and now he's lost the socialists.

Rob Reiner's contribution to California's June ballot, the Preschool for All initiative, was denounced today by Los Angeles Times business columnist Michael Hiltzik.

Mr. Hiltzik complained that the proposal, which would impose a 1.7 percent increase in the state income tax on household incomes above $800,000, would make it difficult to further raise taxes on these Californians -- their top marginal rate will be 11 percent -- in order to pay for all the other priorities he has for their money.

The $2.4 billion a year raised by the initiative, Mr. Hiltzik said, would have to be spent as the initiative directs, on preschool education for all children, and couldn't be diverted to pay for grade school teachers or textbooks or health programs or lunch or anything else.

That money could be better spent, Mr. Hiltzik suggests. He has a long list of needs that are going unmet.

Mr. Hiltzik shares with Mr. Reiner the premise that it is morally right for families who earn more than $800,000 a year to be forced by everyone else to pay for whatever everyone else needs.

For another view, read "The Tyranny of the Children" at www.SusanShelley.com.


Copyright 2006

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OPEC falls for it

As unlikely as it seems, somebody believed President Bush when he said in Tuesday night's State of the Union address that he intends to reduce America's dependence on Middle East oil by 75 percent in twenty years.

OPEC bought it.

The Financial Times reported Wednesday that Edmund Daukoru, Nigeria's energy minister and the current president of OPEC, said the president's proposal could scare investors away from the Middle East, just when investment is badly needed in Gulf oil production and refining facilities.

Daukoru said OPEC will complain about the Bush proposal in its January bulletin next week. "We do believe that energy issues cannot be handled in a unilateral way," he sniffed.

Well, we've learned something here. If you ever have the opportunity to play poker with a Nigerian, don't pass it up.

Copyright 2006

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President Bush goes into reruns

The president's State of the Union Address on Tuesday had an eerie Rod Serling quality.

There he was, receiving the ovation of lawmakers, spelling out his vision for fighting terror and spreading freedom by promoting democracy.

Like nothing ever happened.

Like the ship hadn't ever hit the iceberg.

Like it was all starting over again.

Creepy.

If you've just joined us, as the president apparently has, we overthrew the Taliban in Afghanistan, invaded Iraq and overthrew Saddam Hussein, promoted democratic elections in Iran, pressured Israel to withdraw from the Gaza Strip, and forced the Palestinians to hold free elections.

So far, not so good.

Afghanistan is producing an opium harvest so robust that farmers there may have to lobby Congress to require it as a fuel additive, just to keep the excess crop from depressing prices.

Saddam Hussein is the star of his own show on Sharia Court TV.

Iraq freely elected a mix of Hatfields and McCoys and wrote a constitution that reads like a network promo for "Fear Factor."

Iran banned all moderate candidates from the ballot and then elected a charismatic young leader who promptly came out for the destruction of the state of Israel and the development of a nuclear bomb.

Israel evicted tearful Jewish settlers from the Gaza Strip so the homes they had lived in for decades could be bulldozed.

The Palestinians freely elected a parliamentary majority of Hamas terrorists sworn to the destruction of Israel and received a congratulatory telephone call from the government of Iran.

Today, Israeli riot police bashed the heads of rock-throwing Jewish settlers who refused to leave an unauthorized settlement in the Gaza Strip, part of the deal Israel agreed to under the White House's Road Map to Peace, which apparently runs right by the Bates Motel. Possibly a chain of Bates Motels.

President Bush fights on, undaunted.

He's sticking to his story, that we had to remove Saddam before he got nuclear weapons and gave them to terrorists who would use them against us and our friends in the Middle East.

In the parallel universe of reality, Iran is building a nuclear weapon and openly forging an alliance with Hamas.

Rod Serling would be proud.


Copyright 2006


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