Archive for December, 2005

Hamilton versus Jefferson

Monday, December 26th, 2005

Last week the New York Times reported that President George W. Bush had directed the National Security Agency (NSA) to intercept communications between suspected Al Qaeda members and people in the United States. NSA has long intercepted solely foreign communications. Indeed, such intercepts are a major source of intelligence. Until the practice was revealed in court proceedings, the NSA gained valuable intelligence from Osama Bin Laden’s satellite phone communications.

Wiretapping or other surveillance of electronic communications within the United States usually falls within the purview of the Federal Bureau of Investigation (FBI) in its capacity for domestic law enforcement. In a domestic law enforcement case, such “searches” are generally authorized by a warrant issue by a judge upon presentation of probable cause.

In cases of gathering foreign intelligence, the law and practice become more complex. Whether one approves of the searches ordered by the president or not, there is a fairly long judicial trail permitting such searches under the “commander-in-chief” provisions of the Constitution. At the very least wide latitude is granted and the limits of such latitude have not been clearly circumscribed.

The Courts have consistently explicitly allowed electronic surveillance in national security cases. Indeed, in United State v. Buck in 1977, the Ninth Circuit Court concluded that “[f]oreign security wiretaps are a recognized exception to the general warrant requirement.” Summarizing the history of the jurisprudence on the matter in 2002, the United States Foreign Intelligence Surveillance Court of Review [page 48] concluded that “…court[s] to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information… We take for granted that the President does have that authority and, assuming that is so, [the Foreign Intelligence Surveillance Act] could not encroach on the President’s constitutional power.”

Bush is not the first modern president to claim and exercise such inherent authority even on those engaged in foreign intelligence on US soil. President Jimmy Carter used this authority in the prosecution of Truong Dinh Hung, a person prosecuted for spying on behalf of the Socialist Republic of Vietnam. Evidence against convicted spy Aldrich Ames under President Bill Clinton was also acquired by a warrantless search. Indeed, Clinton’s former Deputy Attorney General Jamie Gorelick argued that the “Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes.”

Ultimately, the debate about such warrantless searches revolves around the broadness of two Constitutional provisions. Article II of the US Constitution invests the prerogatives of the Commander-in-Chief of the Armed Forces. Gathering intelligence in the fulfillment of this responsibility (not for general law enforcement) is a presumptive power of the President. On the other hand, the Fourth Amendment to the Constitution prohibits “unreasonable” searches.

This friction between these provisions mirrors an ongoing tension between different governing philosophies at odds since the ratification of the Constitution: the Hamiltonian and Jeffersonian views.

Alexander Hamilton a chief apologist for the Constitution, in the Federalist Papers, strongly argued for a strong central government and a strong executive in particular. As Hamilton explained, “Energy in the Executive is a leading character in the definition of good government. It is essential to the protection of the community against foreign attacks…” Of those opposed to the ratification of the US Constitution, many cited the power granted the president as too sweeping. Hamilton certainly would have been comfortable with Bush’s exercise of executive authority.

By contrast, Thomas Jefferson (at least while not serving as President) would have argued against such authority. Jefferson deeply distrusted government, any government, and would have believed that procedural impediments should always tie executive authority.

The irony is that a largely free and democratic republic would have never survived over two centuries but for the Hamiltonian bow to the practical exigencies of government. It was Hamilton who first argued that there were “implied” powers inherent in the federal government. On the other hand, the Jeffersonian ideal of limited government continues to provide important salutary rhetorical constraints on the growth of government power.

The current debate is yet another extension of the Hamilton and Jeffersonian dialogue begun two centuries ago. However, lest we get too carried away with the current debate, it should be remembered that the three largest erosions of individual liberty in the last few years have been the extension of eminent domain powers, limits on freedom of speech implicit in campaign finance reform, and the prohibition of protests around abortion clinics.

What’s is Really Happening in Iraq

Sunday, December 18th, 2005

To be successful in broadcast news, it not only helps to be competent but attractiveness also counts. Lara Logan of the 60 Minutes broadcast news magazine qualifies on both counts. Unfortunately, she has apparently fallen into the regrettable habit of some journalists of reporting stories that suit an anti-War agenda.

Early this year, she reported on the insecurity of the Baghdad Road, a six-mile highway linking the Baghdad Airport to central Baghdad. At that time, the road was particularly insecure with road side bombs making it a dangerous commute.  Here was a major road that after a year, the Coalition Forces had not managed to totally secure.  This was not just any road in Iraq, it is the major and most important road. The security of the road was aptly used as a metaphor for desultory progress in the entire Iraqi War.

However, it seems that the opposite situation could also represent a metaphor for progress in Iraq. The improved security for the Baghdad Road should be a mark of progress, but that metaphor has not been used.  It is not that it has been deliberately ignored. It simply seems that the symbolism of success is lost on those accustomed to thinking in terms of US military failure.

After training Iraqi troops, US troops have turned over security for the Baghdad Road to those troops. The result was a dramatically more secure road. While US troops had patrolled the neighborhoods along the Baghdad Road, Iraqi troops were far more effective. They could pick up small cultural clues, like a different Arabic accent that would allow them to isolate potential insurgents in ways that were simply beyond American troops. As Iraqi soldier Lt. Omar Tarik Ali, explained, “We are Iraqis, and we know strangers from their faces. We can stop them, and we know if they lie to us. The Americans don’t know.”

By the time 60 Minutes re-aired the piece in November 6, 2005, the situation had changed on the ground. The Baghdad Road had become much safer, but the change did not alter the report. The improvement was not unknown. It had even been acknowledged a couple of days earlier in a small article in the Washington Post on page A15.

This is but one example in a string of situations where good news on the ground in Iraq has been drowned out by a media fixation on bombings. The story of bombings should be told, but so should the good news. Most Americans do not have first hand knowledge of Iraq, so the conventional bad news bias cannot be compensated for by experience. This makes reporting more of a challenge, a challenge that many reporters have not stepped up to.

This inadequate knowledge is one reason that Americans have become more disenchanted with prospects for success in Iraq and their surprise at conspicuous successes like last week’s elections.

Among US military officers, who are on the ground, there is far more optimism. According to Ben Connable a major in the US Marines on his third tour of Iraq, “64% of US military officers think we will succeed if we are allowed to continue our work.” As to the disparity of this opinion with that of some of the chattering classes in the United States, Connable explains of his fellow US officers:

“We know the streets, the people and the insurgents far better than any armchair academic or talking head. We are trained to gauge the chances of success and failure, to calculate risk and reward. We have little to gain from our optimism and quite a bit to lose as we leave our families over and over again to face danger…”

Whether, in the long run, we succeed in Iraq will depend, in large measure, on whether voices like Connable’s are heard over the din of media despondency, and Americans appreciate the hopefulness of those close to the situation.  Ben Connable knows what is happening, but the media prefers to listen to Cindy Sheehan, an anti-war mother whose understandable sadness has grow into self-destructive bitterness fertilized by angry Left-wing rhetoric. It is up to correspondents like Lara Logan to get it right.

Choosing One’s Enemies Wisely

Sunday, December 11th, 2005

Conventional political wisdom holds that presidential candidates must tack toward the extremes of their party in order to secure the nomination and then race to claim the center for the general election. The trick is not to drift so far to the extremes that it becomes rhetorically difficult to credibly move back to the center. Consequently, if a candidate has little competition in the primaries, it is easier to linger around the center. This is what gives incumbent presidents such an advantage. Many times they are unchallenged in the primaries. With no tug from the extremes, their base secure, they can reach toward the center to persuade less partisan voters.

Among Democrats or those independents who might vote in Democrat primaries, a NBC News/Wall Street Journal poll reports that Senator Hillary Clinton leads her nearest rival, former Senator John Edwards, 41% to 14%. Not only is the lead large, but John Edwards does not arise from the Left end of the Democratic Party. Hillary Clinton is not currently being pulled to the Left in the 2008 race.

The Iraq War may prove to be the most divisive issue in 2008. Senator Clinton voted to authorize the President to use military force in Iraq. In October 2002, Hillary Clinton took a hard line against Saddam Hussein when she argued:

“In the four years since the inspectors left, intelligence reports show that Saddam Hussein has worked to rebuild his chemical and biological weapons stock, his missile delivery capability, and his nuclear program. He has also given aid, comfort, and sanctuary to terrorists, including Al Qaeda members, though there is apparently no evidence of his involvement in the terrible events of September 11, 2001. It is clear, however, that if left unchecked, Saddam Hussein will continue to increase his capacity to wage biological and chemical warfare, and will keep trying to develop nuclear weapons. Should he succeed in that endeavor, he could alter the political and security landscape of the Middle East, which as we know all too well affects American security.”

Should the War in Iraq prove successful, she could credibly claim that she supported the war all along. Senator Clinton realizes that a potential perceived weakness of a woman seriously running for president for the first time could be national security. One calculation is that she is given so much deference by the Left of her party, that she can remain relatively hawkish on the war with little consequence to her support with the Democratic base.

However, it now appears that she is being dogged at recent fund-raising events by a group a far-Left feminists call Code Pink. Code Pink’s positions include support for Cuba’s Fidel Castro and Venezuelan dictator Hugo Chavez. The group from Code Pink interrupts her speeches with angry chants of “Troops out now.”

Senator Clinton could not be more fortunate in selecting her enemies. She may be undergoing her equivalent of her husband’s “Sister Souljah Moment.” In 1992, when Bill Clinton was running for president, he earned the reputation as a panderer, one who promised everything to every Democratic constituent group. Democratic competitor Paul Tsongas coined the term “panderer bear” as a clever anti-Clinton retort.

Sister Souljah was a rapper who had made some extreme and divisive statements. Clinton repudiated her statements in front of an African-American audience changing his reputation from a special interest panderer to a moderate who would standup to special interest groups. It helped get him elected.

If Senator Clinton continues to stand up to the extreme anti-war Left, she may convince the moderate electorate that she shares their values even if it conflicts with extreme parts of the Democratic base.

The King Solomon Judical Test

Sunday, December 11th, 2005

The Biblical story of King Solomon is a familiar one. Two women both claim the same child and Solomon, in his wisdom, must decide which woman’s claim is more credible. He decided that the child be physicallysplit in two and divided between the women. One woman accepts the terms. The other renounces her claim because she would rather suffer the acute pain of having her son raised by someone else than killed. Solomon immediately knew who the true mother was. It was the woman who put her child first.

The story illustrates an important point. The importance one places on something of value is, in part, measured by how much one is willing to forego for that value. Hence. it is more than a little ironic that the late New York Republican Representative Gerald Solomon helped pass an amendment in 1996 that requires that law schools give equal accommodation to military recruiters. Some law schools object to the Congressional directed “Don’t Ask, Don’t Tell” policy that prevents openly gay people from serving in the US military. The Solomon Amendment punishes the refusal to allow military recruiters the same access to student as other employers with a cut off of federal funds.

Schools have sued, but backed down. The rhetorical support of the gay rights agenda does not extend to declining federal funds as a matter of principle. Solomon’s Amendment helps us calibrate the value that these schools actually put on their self-righteous rhetoric.

Law schools have argued that the law suppresses their First Amendment right to express an opinion contrary to military policy. A law suit initiated by Yale Law School has made its way to the US Supreme Court. During recent oral arguments, the Court did not appear particularly sympathetic to Yale’s position. If the position of the law school holds, then anyone can claim exemption from a law because compliance would conflict with their right to express disagreement with the law.

The justices sliced through Joshua Rosenkranz who was one of the lawyers arguing in favor of the laws schools First Amendment right to ignore the law. When pressed by Justice Stephen Breyer, Rosenkranaz was forced to concede that such an interpretation would allow law schools to violate federal civil rights laws if they do so as a matter of conscience.

Justice Sandra Day O’Connor pointed out that colleges are still “entirely free to convey its message.” They could, for example, put signs all around the recruiters stating their opposition to the “Don’t Ask, Don’t Tell” policy. Military recruiters are willing to wade in unfriendly arenas and make their case for a military career to perspective law students. It is the law schools that seem unwilling to fairly compete in the arena of ideas.

New Chief Justice John Roberts made clear the choice to the attorneys representing the law schools. “You are perfectly free to do that [express your opposition to military policy by banning military recruiters], if you don’t take the money.” With this single statement, Justice Roberts applied the King Solomon test to assess the value these schools really put on their expressive conduct.

The Differing Trajectories of Lieberman and Murtha

Sunday, December 4th, 2005

There are some Republicans who point to the differences between Senator Joseph Lieberman (D-CN) and Representative John Murtha (D-PA) on Iraq as a sign of a deep split in the Democratic Party. In reality, it is less of a split and more a sign of the increasing isolation of Lieberman in a Left-sliding Democratic Party and the radicalization of a formerly moderate representative like Murtha., a core interest group supporting the Democratic Party, is now considering the support of a challenger to Lieberman in the Democratic primary.

For Lieberman, it has been a quick five-year descent. In 2000, he was near enough to the mainstream of the Democratic Party to be its nominee for Vice-President in a hair-thin presidential election. In 2004, he ran an honest but mediocre bid for the Democratic presidential nomination. Governor Howard Dean had radicalized the base of the Democratic Party and Lieberman was too moderate to secure the nomination. Now an important Democratic constituency is eager to dispose of Lieberman’s lucid but inconvenient voice: a voice that is too often ignored.

John Murtha has rocketed in the opposite trajectory. Considered a rather obscure pro-defense Democrat, perhaps a little of a pro-life, pro-gun Pennsylvania embarrassment to the Left-wing elements of the Democratic Party, he has obtained more national attention in the last few weeks than in his entire previous Congressional career by coming out for “immediate redeployment” of troops in Iraq. For the Left and the media being anti-Bush on Iraq apparently trumps even abortion and gun control.

While Murtha claims that 80% of Iraqis “strongly oppose” the presence of Coalition troops, Lieberman claims “Two-thirds [of Iraqis] say they are better off than they were under Saddam, and a resounding 82% are confident their lives in Iraq will be better a year from now than they are today.” While both statements could be technically true, probably only one reflects the true sentiments of Iraqis.

While Murtha claims that the troops are a “broken, worn out” force. In the midst of record re-enlistment rates for activity-duty personal in Iraq, Lieberman says our troops “are courageous, smart, effective, innovative, very honorable and very proud.” Again, both statements reflect some truth, but they suggest a radically different assessment of the state of the military.

Murtha believes “that continued military action in Iraq is not in the best interest of the United States of America, the Iraqi people or the Persian Gulf Region.” After his fourth trip to Iraq in 17 months, Lieberman sees far more progress and promise. While eager to have American troops replaced by Iraqis as soon as possible, “What a colossal mistake it would be,” Lieberman warns, “for America’s bipartisan political leadership to choose this moment in history to lose its will and, in the famous phrase, to seize defeat from the jaws of the coming victory.”

Both men have a right, indeed a duty, to express their opinions. Both positions are borne of sincere concern. In the last few weeks, both men have been clear in their assessment of policy in Iraq. However, only one voice has been heard.

Murtha has been given far more press coverage than Lieberman. This despite the fact that Lieberman is a well-know Senator and Murtha was an obscure Congressman. Murtha’s call for withdraw neatly fits into the media template that the War in Iraq is hopeless. Lieberman’s view of the war does not fit into the press’s paradigm and is left to languish unexamined.

Some have claimed that this disparity in coverage is simply the traditional “bad news bias.” One does not report on how many planes landed safely, but the rare crash draws press attention. This explanation is not sufficient. The fact that many planes land safely is common knowledge. However, the present state of affairs in Iraq is not common knowledge or even broadly agreed upon. Therefore, the media have an obligation to report on important diverging assessments.

Joseph Lieberman gave his assessment in a Wall Street Journal editorial entitled “Our Troops Must Stay.” Usually, such a significant statement by a former vice-presidential candidate from a major party on a crucial national topic would echo in the other media. One could imagine the coverage Lieberman might have received had his message aligned with Murtha’s. Lieberman’s voice instead attenuated into the darkness on major media outlets. Murtha’s criticism of the president was a major story on the newscasts of all three major networks. Lieberman got only a sound bite on NBC .

There used to be a time, before talk radio and the Internet, when events ignored by the major news broadcasts may as well not have happened. There is some consolation in that news is now more fluid, but it would be far better for the country, if the major networks could manage even the appearance of even-handedness.

Despite genuine calls for keeping troops in Iraq until the Iraqis can stand on their own from prominent Democrats like Lieberman, Democratic Whip Congressman Steny Hoyer (D-MD), and others, the heart of the Democratic Party is strongly opposed to US military action. Senator Hillary Clinton (D-NY) was originally vocal about the threat posed by Saddam’s Iraq, but ever the weather vane, she is toning down her rhetoric and increasing her criticism of the President’s war efforts lest other in the Democratic Party challenge her from the Left for the presidential nomination in 2008. What ever minor fissures divide Democrats, they are united by a visceral dislike of President George Bush and all other differences fade in importance. Unfortunately, shrillness is not persuasive; hostility is not leadership; and perpetual and habitual opposition is not policy