Shouting 'Cross the Potomac

barstool philosopher,
backseat driver
but never a Monday morning quarterback

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Saturday, November 23, 2002

Gaffes, Realpolitik ... Gaffes...
and Sweetening the pot

Tony Adragna
Actually, I'm a great fan of Kinsley's writing, Will! He's more a "whistle-blower" than a "gaffer", though — the difference being that Mike doesn't let slip, but is purposeful. The only problem is that Mike's purpose is sometimes overwhelmed by the readers inability to control laughter at his foolery — remember when he wrote that piece about his local cable comapany and defied readers to find the company's sales office address in Redmond?...

On the road to Burma: I wanna see how the administration responds to midlevel State Department folks who are promoting improved relations with Burma. If the administration does go there, that says realpolitik is more important than "moral clarity". 'Course, I knew that anyway — just look at our relations with Saudi Arabia...

Speaking of the Sauds, Colbert King writes of "Statesmanship, Saudi Style". His visitors gaffed BIG TIME:
Which brings us back to our visitors and a reality that they were too polite to throw in our faces: At the core of current U.S.-Saudi interaction is a relationship that, despite professions of mutual friendship and support, cuts only in one direction. And the kingdom -- with all of its piety and with a sharp eye on its own religious fundamentalists -- is all about keeping it that way.
Certainly these Saudi visitors were "too polite" to put it exactly as Colbert did, but read the whole piece and the message is clear...

I'll make the trade more attractive — how 'bout I throw in Schaefer...

QP Saturday

Will Vehrs
I ought to be out raking leaves.

I've never been a fan of Michael Kinsley's weekly column and I don't think you have been, either, Tony. But I have to admit that his account of being a judge for the National Book Awards is a classic. It's even made news, too--I saw an AP story on it in the Richmond Times-Dispatch, suggesting the whiff of scandal in the Book Awards. Judges might not even be reading the books!

Kinsley is famous for saying that a gaffe is when someone accidentally tells the truth. Kinsley has committed a delicious gaffe.

Friday, November 22, 2002

November 22, 1963

Will Vehrs
NPR has an interesting sidelight story on the JFK assassination--tapes of conversations between Press Secretary Pierre Salinger and Washington as Salinger and half the cabinet were travelling to Japan during those awful hours. The narration by Walter Cronkite is very moving. Luckily for him, he will always be remembered for his dignity during that coverage.

Like most of my generation, I remember. I was in Mrs. Orndorff's fifth grade class at Manassas Park Elementary School. Our principal, Mr. Hill, solemnly came into our class and told Mrs. Orndorff that she should turn on the television in our room. TVs had been a new addition to our school that year--we occasionally got to watch special educational programs on what I think was the equivalent of PBS. As the black and white television on a stand warmed up, Mr. Hill told us that the President had been shot. We watched in total shock, old enough to have been stirred by the Kennedy energy, but too young to contemplate the implications.

Revelations about Kennedy's medical condition continue to reverberate. Tim Noah in Slate gives Kennedy's physician credit for the Whopper of the Week, even though it was uttered in 1960. Peggy Noonan has a very interesting take on Kennedy and his generation. It almost reads like it could be the stuff of an entire book.

Memo to Tony: If I could make you a regular in the Caption Contest, my work here would be complete. As to the Warner for Ehrlich trade, you'd have to throw in something to be named later. Your guy is a promising rookie who just finished spring training at the National Governor's School in Austin. My guy has almost a year under his belt and some serious stripes as a budget-cutter.

I am not a gaming fan at all. I don't even throw a buck a week at the Virginia lottery.

"Chucking" NATO, Governor Graceless,
& Why Tony Never Enters the Caption Contest...

Tony Adragna
Will, is Krauthammer defending somthing the "Clintonistas" did?

He's at least consistent in arguing against the anti-expansionists, but I'm not sure what to make of his arguments. While he points to acquiescence, Krauthammer suddenly forgets that Friedman's concerns weren't made of whole cloth — there was a rational basis. Krauthammer acknowledged in '97 that "Even pro-Western Russians warn that NATO expansion is an act of encroachment, a threat to a Russia that thought it had finally become a partner of the West", but makes a case that those concerns "are either irrational (if sincerely felt) or disingenuous (if merely a nostalgia for empire)."

Then he ends with a response to fears that pushing Russia too hard may cause damage to the nascent democracy & its ties to the west:
More nonsense. Democracy will rise or fall in Russia the way it does in other countries. The outcome will depend on whether its economic system (presently bandit capitalism) and political structure (presently authoritarian democracy) satisfy the material and social needs of the people. Foreign policy comes -- there, as here -- very low on the list. NATO expansion will have only the most marginal effect on the evolution of Russian democracy. But it will have a decisive effect on European stability. We mustn't pass up this chance to achieve it.
Not quite a year after he makes this argument that Russia really has nothing to fear, Krauthammer asserts that of course NATO expansion is directed against Russia.

I agree that containing Russia is a course of action with merit, but it can't be done without stepping on Russian toes in what they consider their front parlor — just as we wouldn't like it if, for instance, Russia tried containing the U.S. in the western hemisphere by working through friendly (to Russia) governments in Central America. Or, in Krauthammer's words, "just because Russia is no longer an ideological rival does not mean that it has ceased to be a Great Power rival."

Then, after arguing that NATO expansion settles what to do 'bout "no man's land" — Central Europe — by "restricting its bullying to just near neighbors", and never mind the effect we might have on Russian democracy vis a vis their foreign policy concerns over "encroachment", Krauthammer has to deal with Putin's rise to power — hint: the story involves "bullying" and a response to "encroachment":
The first Russian beneficiary of Kosovo was then-Prime Minister Yevgeny Primakov. But it was Prime Minister Putin who understood how to fully exploit it. Applying the lessons of Kosovo, he seized upon Chechen provocations into neighboring Dagestan to launch his merciless war on Chechnya. It earned him enormous popularity and ultimately the presidency...

[Obligatory Krauthammerian slam of Clinton omitted]

Saddam Hussein is back building his weapons of mass destruction. China's threats to Taiwan grow. The American military is badly stretched by far-flung commitments in places of insignificance. Most important of all, Russia, on whose destiny and direction hinge the future of Eastern Europe and the Caspian Basin, has come under the sway of a cold-eyed cop, destroyer of Chechnya and heir to Yuri Andropov, the last KGB graduate to rule Russia....[emphasis added]
Now, Krauthammer says "NATO is dead", and that NATO is dead & "Putin is not just collaborating in the war on terror, not just allowing a U.S. presence in the former Soviet Central Asian states, not just acquiescing to NATO expansion right up to Russia's border and into Soviet space; he is knocking on NATO's door, trying to get in." What caused this?
Because he has recognized two blindingly obvious changes in the world. First, with the Cold War over, Russia has no intrinsic ideological imperative to engage in strategic competition with the United States. The attacks of Sept. 11, 2001, and on the Moscow theater dramatized for those still living deep in the past that we share common enemies and common purposes.

Second, NATO as a military alliance is dead. It took ill with the fall of the Berlin Wall and then died in Afghanistan. When the United States destroyed the Taliban using a handful of men and precision-guided munitions in a wholly new kind of war, it demonstrated a military capability so qualitatively superior to that of the allies that NATO instantly became obsolete.
On the first point I advert to our previous agreement that the ideological rivalry is dead, but Krauthammer has still got to deal with his own statement that this "does not mean that it has ceased to be a Great Power rival[ry]." Russia's "aquiesence" may very well be — I argue that it definitely is — more "seeming" than "actual". The attacks of September 11, 2001 were more US recognizing "common enemies and common purposes" — Russia has been dealing with Chechnya and Militant Islam since well before 9/11 — and Putin has used this "common enemy" approach to his own foreign policy ends. If anything, the U.S. aquiesced on Putin's involvement in Chechnya.

How far is Russia willing to go in collaborating? Well, just look at what it took to get Putin's support for military action in Iraq — the U.S. is wanting to fight our "common enemy", but Russia was more concerned about money owed.

If Russia is still more interested in self interest than in common purpose, Putin is still a thug, and the U.S. is stretched too thin for our committments, then how is it a good thing that NATO is dead?

My offer to trade is still on the table, Will. I'll take Warner over Ehrlich and his plan to increase revenue through slots. These gaming revenues — slots, lotteries, etc. — are the most regressive of tax schemes. And I'm not confident about the amount of money that can be raised in that fashion. I still bet my dollar a week on the powerball, though...

But, what I really wanted to point out is Gov. Glendening's disingenuousness...

Why don't I enter the Caption Contest? Wait 'til you see my entry...

Two Minute Drill

Will Vehrs
Take Your Pick Today, one can celebrate President Bush with David Ignatius' Bush the Resolute, or read E. J. Dionne, Jr.'s condemnation of Bush's Homeland Security strategy, "one of the sorriest episodes in the history of partisanship."

From One Pulitzer to Another It's rare when one major pundit slams another, but today, one-time Pulitzer winner Charles Krauthammer takes a few shots in the WP at three-time Pulitzer winner Tom Friedman of the NYT:

The other policy, begun during the Clinton administration, was NATO expansion. It was not unilateralist but it was just as bold, and it was met with the usual chorus from those who panic at the thought of any deviation from the ossified strategic posture of the Cold War. Thomas Friedman of the New York Times warned that Putin could "very cheaply counter any NATO expansion by . . . [moving] a few troops to the border." For what possible purpose?

He also warned that "expanding NATO's wall to Russia's border" would have the effect of "making cooperation with Moscow impossible." In fact, the level of U.S.-Russian cooperation is the highest today since 1945.

The United States has wisely combined the expansion of NATO with an expansion of Russia's role in NATO. Far from being a threat to Russia, the new NATO is now Russia's entree to the West. Putin has moved no troops to the Lithuanian border

Virginia Corner At the risk of someday being censored, I'm going to begin commenting more often on Virginia politics.

This morning's Richmond Times-Dispatch has reporter Jeff Shapiro carrying water for Governor Mark Warner's strategy of putting Republicans in the hot seat on budget cuts while he is perceived as making tough, non-partisan decisions. Warner appeared on a local radio talk show and Shapiro writes,

Gov. Mark R. Warner yesterday branded Republicans as two-faced, saying they can't promise to slash government and then complain about shuttering motor-vehicle offices.

In a rare burst of partisanship, Warner described as "hypocrisy in politics" grumbling by members of the General Assembly's Republican majority about the closing of 12 Department of Motor Vehicle offices, including two in the Richmond area

Warner couldn't have asked for a better spin on this story, especially the "rare burst of partisanship" line.

Shapiro offers the GOP side 6 paragraphs down:

Republican lawmakers suspect that Warner targeted offices in their districts, perhaps to rile voters in the run-up to the 2003 elections for the House of Delegates and Virginia Senate and to generate sympathy for a tax increase.

"Duh," as they say. It's called hardball. Warner is not nearly the weakened giant that Republicans think he is. Those sales tax referendum defeats were stinging, but not incapacitating. They certainly weren't fatal.

Anniversary Hang-Over Dodd Harris' Caption Contest, serendipitously coinciding with his blog's two year anniversary, was a raucous affair. For once, I'm not going to quarrel with the winning choices, questionable as they may be, given the high quality of the entries. Instead, I'm going to deal with some of my simmering bitterness issues.

I believe that my record for most entries in one contest was crushed by Charles Austin. I would make snide remarks using the word "hack," except for Mr. Austin's commendable honesty, as expressed in one of his non-winning, also-ran submissions:

"I don't know what the contest is, but have you ever seen anyone more desperately wishing to themselves, 'Pick me, pick me!'" - Charles Austin

I have suffered greatly from being a prolific entrant in the Caption Contest, becoming the object of disrespectful entries, as I was this week:

"I hear Will Vehrs is here...! Come here, Willy Boy, I have something for you!" - Rags. (This is the thanks I get after generously inviting "Rags" to enter)

I'm leaving all the Indiana Jones jokes for Vehrs.... - Dan Dickinson (This after generously praising Dan's entries and recent win. Thanks for the sure-fire non-winning suggestion, Dan)

Let's see if Charles Austin, now that he has my record, receives equal scorn.

At least JulieC, another highly decorated Caption Contest participant from The Refuge, didn't trash me. Dan even took a shot at the aforementioned "Rags," a shot I take personally since I have encouraged her to play in the contest:

I'm leaving all the strap-on jokes for Rags.... - Dan Dickinson

Well, it's just one contest. I'm going to let it go. Until next week.

Thursday, November 21, 2002

Al Gore's Worst Defender Is...

Tony Adragna
Hey, Will, this is a no-brainer — the answer's: Al Gore!

Dude just can't open his mouth without giving somebody an opportunity to slam him. The usual casus castigare is Mr. Gore's propensisty to say things that aren't quite lies, but come out that way nonetheless. George Will writes today a refutation of "Gore's Revisionism":
Barbara Walters recently asked him if there were times during the 36 days of Florida turmoil when he thought he was going to be president. He answered:

"Yes. Specifically, when the Florida Supreme Court ruled that they would have to actually count all the ballots. That's all I asked for. Count all the ballots. I asked them to count them statewide. They were focusing in on four counties but they should've been counted statewide as well." (Emphasis added.)


Never mind what Gore told Barbara Walters. Gore's lawyers did not seek a statewide recount of undervotes. Bush's lawyers, too, did not seek a statewide recount but argued that under Florida law -- which was rapidly being superseded in the state Supreme Court's legislating -- any recount had to be statewide, and by then such a recount was impracticable, hence there should be no recount. And certainly not one targeted to pockets of Gore's strength.
George Will is correct — neither Mr. Gores lawyers, nor Mr. Gore himself, officially sought a statewide recount. But, Mr. Gore did — on Nov 15 2000 — propose, as an option, to settle the dispute with a statewide recount. Mr. Bush rejected that proposal on the same day. [Bush Rejects Gore Offer of Statewide Hand Recount, Wire, Wed Nov 15 200[0] and Endgame v. Endgame, Richard Lowry on NRO, 11/16/00]

So, where does that leave Will v. Gore? Well, Mr. Gore is guilty of trifectafication — conflating two distinct memories into a misleading, though not quite fictitious, story. Mr. Will, on the other hand, simply refuses to look beyond the misspeak to identify the actual offense.

They're both faulty...

Voters votes oughtn't be free from criticism — I must strenuously disagree with you, Will. I think that when voters do the obviously dumb, then somebody needs to tell them so. Even the brainiest people do stupid things sometimes, and pointing out the stupidity of the act isn't the same thing as calling the actor stupid.

But, would it have been so "mindless", as the author suggests, for voters to have eliminated the state income tax? Depends on what voters have in mind. Whether voters are merely voting-the-pocket-book, or forcing state government to rethink fiscal policy, voters always have something in mind. Where things start to get "stupid" is at the point of voters having it in mind that they want lower taxes and no decrease — or worse, an increase — in the level of services provided by government.

Just look at funding for transportation projects — the same folks who want more roads also don't want higher taxes to pay for constructing those roads.

Speaking of paying for things, I thought I'd say a little more on the lowest bid v. best value debate. Short answer: Don't think we'll be spending less money. I remember this sales pitch from my time in banking — it's not about convincing the buyer that there will be a savings. Rather, it's about convincing the buyer that the better product is worth the increased cost.

Trust, we're not going to get a better value at a lower cost, unless we lower the bar on requirements, in which case we're back to talking 'bout lowest bid...

Revising & Extending: I think I might not have said exactly what I meant on this cost v. value thingy. What I should've said is, "we're not going to get a better value [by paying less]". And, the "better value" may even be wasteful notwithstanding that you're getting more at a lower "cost". Here's a scenario:
I go shopping for a can of pork & beans. I can buy a 10 oz can of "Tony's Pork & Beans: for 60¢, or I can buy a 20 oz can of "Will's Pork & Beans" for $1. Gee, that 20 oz can is defintely a better deal!

But, I can't eat 20 oz of anybody's pork & beans! All I can eat is 10 oz, so if I buy the "better value" and don't use the extra oz, then I just wasted 40¢.

What I really want is for somebody to underbid "Tony" on 10 oz of pork & beans.
Does that make more sense?

BTW, I'm having pork & beans and "ground steaks" for dinner...

Catch Kurtz

Will Vehrs
Howard Kurtz's "Media Notes" is worth a read today. Kurtz opens with a good analysis of the Daschle-Limbaugh dust-up. He's sympathetic to Limbaugh's position, an unusual position for most media watchers. Kurtz closes by recounting an egregious example of boorish behavior by Fox talk show host Bill O'Reilly.

Two Minute Drill

Will Vehrs
Tony, I like your pundit categories. I will refrain from suggesting where various luminaries might be placed, lest we lurch into a very unlike-QP spat.

Happy Anniversary The very excellent Ipse Dixit turns two years old today and proprieter Dodd Harris generously credits yours truly with suggesting a commemorative scheme. I am shocked--shocked--that Dodd was able to find 10 things he's gotten wrong. Of course, I never suspected that Tom Daschle would be a category.

Ipse Dixit is a remarkably eclectic blend of humor, sports, politics, legal commentary, tattoos, groupie worship, and dating stories. May it last in perpetuity!

Respecting the Electorate I don't think pundits should go around criticizing voters, so, of course, Bob Herbert of the NYT does just that this morning:

On Election Day in Massachusetts, which will face an estimated $2 billion deficit next year, voters moved perilously close to a tax revolt that was breathtaking in its mindlessness. Nearly half the voters — 45 percent — supported a ballot proposal to eliminate the state income tax, a move that would have plunged the state into a fiscal emergency.

Those old "mindless" voters. Can't trust them. What Herbert should have found startling about Massachusetts is that approximately half of the voters who swept Senator John Kerry into another term also voted to abolish the state income tax.

Nothing Shocking Richard Reeves has an insightful piece in today's NYT that adds much to recent "revelations" about President John F. Kennedy's medical condition:

One great irony of the generally successful efforts to conceal Kennedy's many illnesses is that the basic story was available as long ago as 1955, when the American Medical Association's Archives of Surgery, in an article titled "Management of Adreno-cortical Insufficiency During Surgery," recounted the medical history of a 37-year-old man who was the first Addisonian to survive traumatic surgery.

The operation took place on Oct. 21, 1954. The 37-year-old man was easily identifiable as Senator John F. Kennedy. He opted for the surgery at New York Hospital after physicians told him he would probably die on the table. I would rather be dead, he answered, than live with this kind of pain. Paul Martin, of the then-small Gannett newspaper chain, published the story in early 1961, but no one paid any attention

Reeves also notes that Kennedy "lied and lied about his health while he was alive, even using his father's influence to get into the Navy without ever taking a medical examination." Many of the generation that Kennedy summoned to battle communism hoped to get a medical examination that would show they couldn't serve in the military.

Wednesday, November 20, 2002

Idjits, Ineptitude & Ideologues

Tony Adragna
OK Will, so I'm probably the last person to comment on passage of that bill — by a whopping 90 - 9 margin — creating the Department which I will not speak the name of. 'Twas an act both cowardly and craven[I know they mean the same thing, but that's how strongly I feel]. There should have been quite a few more senators voting in opposition to this boondoggle, even if, as Glenn suggests, their opposition was for the wrong reason.

[Yes, Teddy was at a fashion show in Paris — does it matter that the show was in honour of his late sister-in-law, former First Lady to Teddy's assassinated brother?]

That Democrats fought so hard for so long suggests that they thought the fight worthwhile, and I've no doubt that many still feel it so. If that's true, then they should have gone down fighting. Instead, they just went down...

The worst part of the fight over civil service rules v. being able to get rid of incompetents is that there's a very good argument against the notion that granting Mr. Bush his request will do any good, but the idiots never brought the argument up. The argument is that Mr. Bush already has this authority [what's in the current bill] vis a vis the FBI, the CIA, and probably some other agencies, and as Jeff Cooper noted the other day:
There is plenty of evidence of serious shortcomings in the FBI's performance prior to September 11, yet to date no significant firings or reorganizations have taken place, and the administration has actively opposed an independent investigation into the agency's pre-September 11 conduct. For as long as this remains the case, I will continue to believe that the provision to remove civil service and collective bargaining protections from all homeland security employees has nothing to do with accountability and job performance, and everything to do with union-busting and the extension of political patronage.
Why didn't Democrats lob such a response back at every assertion that they care more about union than about protecting Americans? Dunno — I'll add it to my list of issues on which Democrats could have led...

But, ineptitude isn't confined to Congress & the federal bureaucracy. For all the pooh poohing of the TSA (airport screeners, that is) the private sector firms handling airport security didn't do any better — fact: the folks who got onto those flights armed with box cutters... And, how 'bout the firms that sent out visa approval notifications to September 11 highjackers six months after the attack.

Letting private sector companies mow the grass is another story, but even here I see some ineptness on the administration's part in the manner they're going about this...

Paul Krugman is what the Soviet would have called an academician — not just in the english sense of an academy member, but in the sense of someone who brings academic credibility to a particular ideology[I know, "Academician" is still used, and it's for academic achievement, but The Academician was more than an academic]. That's not necessarily a bad thing — in fact, I think it a good thing, so long as the academic is... well... credible, and not simply spouting the party line for the sake of cred within the party ranks..

Josh is a partisan, and doesn't hide the fact. No problem there...

The last category of ideologue — the one I hate with a hate incomparable — is the propagandist... this can be either the partisan or the academician, but with ability to broadcast. Mike Finley knows of whom I speak. I'm not familiar with the specifics he references, so I won't comment in specific. But I've seen enough similar activity on both sides of the ideological divide.

Two Minute Drill

Will Vehrs
Josh Marshall, who keeps promising "more" on this story or that, was apparently watching "Crossfire" last night when he might better have been working on an unfinished project. Anyway, he's blasting conservative "Crossfire" host Tucker Carlson for being sophomoric. I guess that's as opposed to the gravitas-laden pronouncements of Paul Begala and James Carville.

I happen to agree with Marshall on this example, but he really is indulging in partisan cherry-picking. Carlson is insufferable and unserious, but he's no worse on a consistent basis than his liberal counterparts. For someone who is obsessively watches the weekend talk-fests, I almost never watch the weekday food fights on Crossfire, O'Reilly, Hardball, et. al. All those shows are just dreadful exercises in spin sport. When was the last time a major newspaper carried a story about a policy pronouncement made on a weekday show?

Marshall also declares that NYT columnist Paul Krugman is "so important in today's media ecosystem." Yes, like a canker sore is important.

Another Day, Another Gore Al Gore is getting good reviews for his recent print interviews and TV appearances. He's relaxed and he's funny. That's good news, bad news. The good news is that he seems to have changed. The bad news is that this is just another in a long series of perceived or announced "changes." Michael Kelly savages Gore and the content of his new book in today's WP:

But the big heave in the effort to reposition Gore as the holder of large, lefty ideas on policy comes in the new book written by Gore and his wife, "Joined at the Heart: The Transformation of the American Family." Like "Earth in the Balance," "Joined at the Heart" is self-consciously grand in intent and self-consciously radical, a manifesto for sweeping change at a fundamental level. Also, similarly, it is an intellectual mess, a shallow and aggressively disingenuous, themeless pudding of fashionable-left articles of faith unsupported by foundations of fact.

Is Kelly just Paul Krugman on the right? I don't think so; Kelly certainly has criticized or analyzed Bush negatively much, much more than Krugman has ever found anything remotely positive about Bush, for example. It bears watching, however.

Wrong Lesson Northern Virginia business organizations, such as the Fairfax County Chamber of Commerce, saw their pet project, a sales tax hike to pay for transportation, defeated by the voters. What lesson did they learn from spending so much money on a losing cause? Setting up politicial action committees (PACs), of course, to donate money to candidates, throwing their long record of political neutrality out the window. How wrongheaded can they be? Voters reject the tax hike in large measure because it is supported by "special interests," so the solution is to cement the status of their organization as a "special interest."

Asbestos Outrage Speaking of special interests, the WP's Robert Samuelson blasts trial lawyers and their strategy in pursuing asbestos claims:

Asbestos litigation has become less about justice and more about business. Trial lawyers have -- by shopping for the right state courts and exploiting permissive liability laws -- turned asbestos into a cash cow. Already, asbestos claims have cost $54 billion, estimates Rand. Less than half has gone to actual victims. In the 1990s, they got only 43 percent. The rest went mainly to trial lawyers (who brought the cases) and defense lawyers (who fought them).

The situation has become so absurd that even a few trial lawyers denounce it. Steven Kazan, who has represented cancer victims since 1974, testified recently before the Senate Judiciary Committee that the scorched-earth tactics of other trial lawyers have made it harder for genuine victims to recover. Payments to lots of undeserving claimants take away from people who actually die, or their families.

Tuesday, November 19, 2002

Reviewing the FISA Court

Tony Adragna
There was no need to worry, Will — I just needed to spend some time watching instead of talking. I'm back now... and so is FISA.

The United States Foreign Intelligence Surveillance Court of Review (FISCOR) issued its first ruling ever yesterday, and the government won its appeal. I'm not surprised at the result — indeed, FISCOR's reading of the statute as originally enacted confirms my own [repeated] assertions, contrary to proponents of change, that nothing in the law limited the government in ways that the USA PATRIOT Act amendments purportedly fix. [n.b.: The government's brief on appeal argued the same lack of statutory limitation, despite earlier assertions that "the wall" was a product of the statute]

Rather, FISCOR repeats what we've heard so often already: The main impediment to properly applying FISA has been DoJ's history of misconstructing the statute. This began, as the panel notes, sometime in the 1980's as an attempt to make FISA's application consistent with what DoJ considered the relevant case law. FISCOR deals in turn with both DoJ's flawed guidlines and some faulty judicial opining. But, in my own admittedly unscholarly review of FISA's history in the field and at the bar, I've come to the opinion that neither the guidelines nor the case law truly inhibited government action when the government truly wanted to act pursuant to the Executive's "inherent authority".

FISCOR deals with the question of criminal investigations v. foreign intelligence activities in much the same way that the Supreme Court handled the question in the domestic context in United States v. United States District Court (Keith). Building on the previous attempt at distinguishing "ordinary crime" from crimes that have a national security impact, the FISCOR writes of "foreign intelligence crimes", and finds that there is no way that FISA could have allowed foreign intelligence surveillance but not criminal [prosecutions as a purpose of foreign intelligence] investigations. That's obviously correct.

It's also worth noting what FISCOR had to say about "probable cause":
[...]while Title III requires probable cause to believe that particular communications concerning the specified crime will be obtained through the interception, 18 U.S.C. § 2518(3)(b), FISA instead requires an official to designate the type of foreign intelligence information being sought, and to certify that the information sought is foreign intelligence information. When the target is a U.S. person, the FISA judge reviews the certification for clear error, but this “standard of review is not, of course, comparable to a probable cause finding by the judge.”[pg 42 emphasis added]
Indeed, the court notes that deference is given to the Executive's certification — in other words, the Executive simply needs to aver that there is reason to believe that the target is an agent of a foreign power, articulate the basis of that belief, and unless the Executive is "clearly erroneous" the judge must issue the order. There is no need to make a showing with repsect to any criminal activity past, present or future, and no need to show a "fair probability" that the target is a foreign agent.

But, it's not a total win for the government. What concerns me is not breaking down the wall between pure intelligence gathering and criminal investigations where there's a foreign intelligence nexus. I think I've made clear in the past that I don't believe such a wall ever existed. The troubling issue is with respect to a government assertion "that even prosecutions of non-foreign intelligence crimes are consistent with a purpose of gaining foreign intelligence information so long as the government’s objective is to stop espionage or terrorism by putting an agent of a foreign power in prison."[emphasis original], to which FISCOR responds:
That interpretation transgresses the original FISA. It will be recalled that Congress intended section 1804(a)(7)(B) to prevent the government from targeting a foreign agent when its “true purpose” was to gain non-foreign intelligence information–such as evidence of ordinary crimes or scandals. See supra at p.14. (If the government inadvertently came upon evidence of ordinary crimes, FISA provided for the transmission of that evidence to the proper authority. 50 U.S.C. § 1801(h)(3).) It can be argued, however, that by providing that an application is to be granted if the government has only a “significant purpose” of gaining foreign intelligence information, the Patriot Act allows the government to have a primary objective of prosecuting an agent for a non-foreign intelligence crime. Yet we think that would be an anomalous reading of the amendment. For we see not the slightest indication that Congress meant to give that power to the Executive Branch. Accordingly, the manifestation of such a purpose, it seems to us, would continue to disqualify an application. That is not to deny that ordinary crimes might be inextricably intertwined with foreign intelligence crimes. For example, if a group of international terrorists were to engage in bank robberies in order to finance the manufacture of a bomb, evidence of the bank robbery should be treated just as evidence of the terrorist act itself. But the FISA process cannot be used as a device to investigate wholly unrelated ordinary crimes.[page 35 of the pdf version]
In other words, if Mr. Ashcroft had his way with this court, then WaPo Editorial Board would be justified in its concern — as the opinion stands, civil libertarians ought be happy.

Actually, the opinion does a bit more damage to DoJ's case with regard to this same question of "purpose". The problem is that while under FISA as originally enacted the FISC had no basis to inquire into the purpose, amending that statute to read "significant purpose" opens the door to a review of other purposes — that is, if foreign surveillance is no longer the "primary purpose", then what is the government's primary purpose in each request it brings before the court?
That leaves us with something of an analytic conundrum. On the one hand, Congress did not amend the definition of foreign intelligence information which, we have explained, includes evidence of foreign intelligence crimes. On the other hand, Congress accepted the dichotomy between foreign intelligence and law enforcement by adopting the significant purpose test. Nevertheless, it is our task to do our best to read the statute to honor congressional intent. The better reading, it seems to us, excludes from the purpose of gaining foreign intelligence information a sole objective of criminal prosecution. We therefore reject the government’s argument to the contrary.[page 34]
The court notes that for practical reasons this reading makes no difference to DoJ's approach, but I beg to differ — had FISCOR ruled otherwise on the above questions of "purpose", then we'd have a ruling ripe for Supreme Court review.

I feel good about this opinion. What I don't feel good about is how Congress — both houses — rushed headlong into a pooch screwing when they passed the USA PATRIOT Act. Thankfully, it was Congress' own pooch that got screwed, not ours... Now, if they'd just learn the lesson and let go of that damnable homeland security thingy...

Two Minute Drill

Will Vehrs
Tony, I'm glad you posted last night--I was beginning to worry about you. The Broder article you cited was a good piece of observation by the "dean." Bush and Rove's effort to replicate nationally what they did in Texas should have been noticed and countered by Democrats long ago. I'm not so sure the recent success of this strategy augurs "long-term Republican dominance." There's nothing wrong with Democrats that an effective presidential candidate and campaign couldn't fix. It might not happen in 2004, but by 2008 the Dems should be at the top of their game.

Camelot Med-Alert I'm fascinated by the sudden release of information about President Kennedy's medical conditions. Preserving the positive JFK legacy has been the most impressive 'spin" operation in history. The leaders--Ted Sorenson and Arthur Schlesinger, Jr.--are growing old, however, and Kennedy progeny have not tended the flame with the discipline of the past. I have to wonder if blockbuster medical information was about to be revealed by an "outsider," causing the Kennedy image-managers to proactively release it with their spin of bravery in the face of crushing pain.

I have to agree with today's NYT editorial on the subject:

It's hard to read the list of ailments and medications without wondering whether there were times when he may have been too impaired to do the job he was elected to do.

There is no longer any need to guard his legacy as closely as it is being guarded

Asking tough questions and re-examining the historical record is not to denigrate an icon. It's to subject Kennedy to the same scrutiny as other historical figures, scrutiny that has been made somewhat more difficult over the years by the phalanx of Kennedy image managers.

Do As We Say, Not As We Do A Richmond Times-Dispatch editorial this morning chortles at this example of hypocrisy:

In preparation for the 30th anniversary of Roe v. Wade in January, Planned Parenthood is sponsoring an artwork and poster contest to illustrate the notion that "Behind Every Choice Is a Story." But minors beware: "Children under age 18 must have a parent or legal guardian's permission to submit their designs and for us to publish it along with their name."

Please note: That's permission, not merely notification.

Planned Parenthood has long opposed requiring parental involvement when a minor undergoes an abortion. Yet even for a minor to submit a drawing for Planned Parenthood's contest, the group insists that a parent sign a permission form.

The requirement notably does not include a judicial-bypass provision to address dysfunctional family situations

Good Stuff Fritz Schranck has an even better than usual assortment of commentary on his site today. I particularly like his suggestion for the New York Times to bring its editorializing and golf coverage into alignment. Fritz also recounts a soggy, disappointing turn-out for his Blogger Bash, an event I'm sorry I missed, no matter what the weather.

Stop the Madness Anti-residential development forces are flexing their muscle in Chesterfield County, VA, where I live. They don't want thousands of approved home sites to be built. If you've ever wondered where the headquarters of Punditwatch is located, check out the photo on this link. I'm on the right-hand edge, in the middle.

Monday, November 18, 2002

Broder Bullish on Bush

Tony Adragna
David Broder takes a look at Bush's political history as a possible "prelude to long-term Republican dominance."
That history can be found in Texas, where George W. Bush started from a narrow win in his first race for governor and, step by step, converted it into a broader and more lasting victory for the Republican Party. Now he and his longtime political strategist, Karl Rove, are applying many of the same tools and techniques on a national scale.
The history is then recapitulated, and the strategies for success are right there in the history. Two things I think were key to success — expanding the base, and working as a party united behind some leadership. That's in contrast to the Democrats' voter turnout efforts focused on its existing base, and the lack of a concerted effort directed by an effective leader.

The Democratic Party's leadership problem is its toughest nut. That's in part because the party isn't just headless, it's also a house divided. Just look at the votes on the resolution authorizing military force in Iraq — there are two distinct factions under the Democratic Party umbrella, and the larger faction is at odds with the party's nominal leadership. Indeed, I don't think it a stretch to suggest that Mrs. Pelosi was whipping for votes against the position that Minority Leader Gephardt would have liked to lead the party toward.

It would seem that the House Democrats' leadership problem is resolved by the 177 - 29 victory for Mrs. Pelosi in the party's caucus. But, as I asserted before, leadership is about more than leading one's own party and speaking to its base. Unless Mrs. Pelosi can match the GOP at expanding the base and pitching to independent voters, then having a unified caucus isn't going to mean much.

I think Minority Leader Pelosi can only help in expanding the base by making clear that the Democrats' position isn't as "left" as it might be characterized by conservatives — it's just as Mr. Bush did in convincing voters that the GOP isn't as "right" as liberals might want voters to think. That's the most crucial factor in Mr. Bush's success — he's seen to be leading all Americans, not just the party's base or its special interests.

Can Nancy Pelosi help to show that the Democrats are able to lead? Time will tell, but the place to start is by positively asserting a position and defining what it means to hold that position, rather than letting the party be defined by the members opposite. The Democrats do have ideas — it's time to get on with proposing instead of just opposing.

Of course, if this administration's policies fail miserably before the next election, then who knows what will happen. But, I'm not betting on the Democrats' problems resolving themselves so. Until the Democrats can unite on some key issues, cogently articulate their positions on those issues, and present themselves as leading on those issues with positions that are best for all Americans, then history repeating itself in '04 is a safe bet.

Sunday, November 17, 2002

Quips, Passion and Innuendo

Will Vehrs
Punditwatch has all three this week. It's a special "Ladies" edition, so check it out now that it's "up." (Blogspot willing and the creek don't rise)