Archive for March, 2007

Taking the Fifth Amendment

Wednesday, March 28th, 2007

We have just finished pointing out the inconsistency of Left’s hand-wringing on issues of the treatment of illegal combatants captured during the War and Terror, while ignoring the Ninth Circuit Court of Appeal’s willingness to grant little weight to the First Amendment’s freedom of religion. Now we see some Democrats ignoring their better angels in a fit a political rage with regard to the issue of the Bush Administration’s dismissal of eight federal district attorneys.

We can reserve the discussion of the wisdom and ethics of the dismissal of the district attorneys until later. What is disconcerting now is the reaction of some Democrats to the invocation by Monica Goodling, Attorney General Alberto Gonzales liaison to the White House, of her Fifth Amendment rights not to testify before Congress.

Judiciary Committee Chairman Patrick Leahy (D-VT) remarked that “The American people are left to wonder what conduct is at the base of Ms. Goodling’s concern that she may incriminate herself in connection with criminal charges if she appears before the committee under oath.” This is eerily reminiscent of Senator Joseph McCarthy’s suggestion that those who did not testify before his committe had something to hide and were likely “Fifth Amendment Communists.”

The American are free to make privately ant judgment they wish based on Monica Goodling’s invocation of her Fifth Amendment rights. However, it is irresponsible for a high government officials to suggest that use of the Fifth Amendment suggests guilt. Given this atmosphere, it not unreasonable for anyone not to be apprehensive about testifying before Leahy’s committee that appears more anxious to hang someone politically than to determine facts.

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The Ninth Circuit Again

Sunday, March 25th, 2007

While the national press worries about civil rights controversies surrounding the disposition of captured combatants in the War on Terror, there are more local, and perhaps more pernicious, issues that slip the notice of national media. We can thank Quinn Hilyer in the Examiner for bringing to our attention a case that has been rattling around the most Liberal and most frequently overturned United States Court of Appeals for the Ninth Circuit.

The facts of the case, Faith Center Church Evangelistic Ministries v. Glover, are not in any dispute. The Antioch Library in Contra Costa makes available its facilities to non-profit community organizations. There are several reasonable restrictions on the use of the facilities such as that access is granted on a first-come, first-serve basis. However, the explicit restriction that facilities “shall not be used for religious services” is in dispute. The Faith Center Church Evangelistic Ministries in making the reasonable claim the restriction violates the First Amendment “free exercise” clause and speech protections.

The case has not yet been decided upon its merits, but the lower court granted an injunction allowing the services to be held at the library. It reasoned that the harm done by potentially limited free speech rights outweighed any harm done to the library. In an incredible decision, the Ninth Circuit overturned the lower court and allowed the County to continue to restrict use of the facilities by a religious organization. The Ninth Circuit concluded that the loss of “mere religious worship” was not as sufficient to retain the injunction.

The case is not really very difficult and injunction should be granted to the Faith Center Church almost perfunctorily. In Widmar v. Vincent, the Supreme Court ruled if a public institution, in that case the University of Missouri at Kansas City, “makes it facilities available for the activities of registered student groups…[t]he university’s exclusionary policy [toward religious group] violates the fundamental principle that a state regulation of speech should be content-neutral.” The applicability of this case to current one is so direct, clear and obvious, that it could not escape the Ninth Circuit’s notice. Faith Center is being denied access based on the content of its speech. Nonetheless, the court asserted that the government’s interest in the case outweighed “those wishing to use the property for other purpose.”

Once again, the Ninth Circuit allows its animosity toward religious practice to overwhelm the logic of the case and the exercise of the First Amendment.

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This is Rich

Monday, March 12th, 2007

Reasonable people can disagree about the wisdom of Operation Iraqi Freedom or the efficacy with which it has and is being carried out. However, the malice and spite with which some critics of the Administration and particularly of President Bush express their disagreement suggest that these critics have long ago ceased exercising prudence and care in their disagreement. One can find evidence of this in far-Left blogs and even in the Left’s more conventional mouthpiece, the New York Times, and particularly in columns by Frank Rich.

In a recent article, Frank Rich employed such extreme and imprudent language that he is yielding his right as a legitimate critic. Even important and legitimate criticisms loose their saliency when continually expressed in extreme terms.

For example, there is recent attention paid to the fact that one of the half-way houses associated with Walter Reed Hospital is infested with rats and mold. The conditions have been described by the Associated Press as “substandard living conditions.” However, Rich describes the same places a “subhuman,” a term, that if applied to the policies of Islamic radicals who behead their captives, would be considered unnecessarily provocative. The Left was upset when Ronald Reagan described the Soviet Union a “the evil empire” or when Bush identified Iraq, Iran, and North Korea as the “axis of evil,” but have no problem calling conditions in US hospitals as “subhuman.” The more the Left indulge is such hyperbole, the more they internalize their animosity.

Unless one works in a press room where there are people who challenge your ideological position, there is a tendency to cling to and repeat assertions that have long since been debunked. Again Rich asserted that Bush claimed that the Iraqi threat was “imminent.” Bush did not make that claim. Spinsanity, a non-partisan site, has thoroughly studied the claim. They conclude that, “As a factual matter, conservatives are largely correct and liberal critics and journalists are guilty of cheap shots or lazy reporting.” The term “imminent threat” has a very specific meaning and Bush never invoked the term. Indeed, his argument was that if the threat became imminent, it would be too late to respond. In the 2003 State of the Union Address, Bush explicitly said, “Some have said we must not act until the threat is imminent. Since when have terrorists and tyrants announced their intentions, politely putting us on notice before they strike? If this threat is permitted to fully and suddenly emerge, all actions, all words, and all recriminations would come too late. Trusting in the sanity and restraint of Saddam Hussein is not a strategy, and it is not an option.”

The argument about whether the Administration claimed that the Iraqi threat was imminent is no longer one that serious people can misunderstand, but Rich cannot remove it from his mind because the assertion plays so well in his internal narrative. Some of the Left claim that Bush has lost touch with reality. However, columns like Rich’s continually provide evidence that irrational anger can loosen the already slippery grip on reality on the part ofBush’s critics.

Perhaps most disturbing is that there is no possible evidence could change Rich’s view of the present troop surge. Certainly, if matter grows worse in Iraq or at least do not improve, the case that the surge is not working would be strong. However, it now appears in the short-run that violence is declining and this is also viewed by Rich negative. As Rich explains, “Moktada al-Sadr’s militia ominously melts away…lying in weight to sprint a Tet-like surprise.” Even a positive development is thus carefully spun into a negative. If the radical militias were fighting American troops vigorously, I suspect Rich would view it as a sign of insurmountable resistance to the Americans. For Rich, when matters go badly in Iraq, it is evidence of bad policy. When things go well; it is just a lull until things go wrong again. In Rich’s circular reasoning all evidence of whatever kind all serve his anti-war stance. Why even bother to gather evidence?

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Guilty of Perjury

Saturday, March 10th, 2007

There is great irony in the fact the Scooter Libby was convicted for lying to a grand jury about who he informed about the truth that Valerie Plame worked for the CIA and was responsible for suggesting that her husband Ambassador Joseph Wilson be sent on a fact-finding mission to Africa. On the other hand Joseph Wilson and his wife are enjoying book royalties, possible compensation for a movie story, and puff pieces in Vanity Fair, when virtually everyone of Wilson’s claims were certified as false by the 9/11 Commission Report. Indeed, the Washington Post concedes that one outcome of the entire affair is that “[t]he former ambassador will be remembered as a blowhard.”

There are at least two important lessons from this episode. Lessons that politicians appeared destined to be continually re-learn.

The first lesson from this political tragedy is that one never ever lies under oath. It does not matter whether or not there is a substantive underlying issue in question, perjury and obstruction of justice can and generally ought to be prosecuted. This mistake was largely responsible for the fall of President Richard Nixon and resulted in the impeachment of President Clinton.

When the Valerie Plame story broke, many wondered whether the release of Valerie Plame’s name violated the 1982 Intelligence Identities Protection Act. It turns out that under the provisions of the act Plame did not qualify for protection. This interpretation is given tremendous weight by the fact that Special Counsel Patrick Fitzgerald did not even charge anyone with this crime, though many have since admitted that the spoke of Plame’s CIA position. Indeed, the original source of the leak which appeared in an article by Bob Novak was Deputy Secretary of State Richard Armitage. The original claim by Administration critics is that Valerie Plame’s name was released by the Administration as retribution against her husband. Actually, Armitage was no fan of the Iraq War. He released Plame’s name in passing as a way to explain how some as conspicuously indiscreet as Wilson would be sent on a sensitive mission to Niger. Despite Wilson’s initial denials, he was sent on his because his wife suggested his name to the CIA.

The second lesson is that decisions to appoint special counsels are almost invariably mistakes. Ordinary prosecutors are faced with finite resources and many potential crimes to investigate. They are consequently compelled to prioritize: to choose those crimes that are deserve government resources. They are forced to weigh the public benefit to the prosecutions against the costs. Special counsels, by definition, have a narrow focus and unlimited resources. This situation usually devolves to trail distorted decisions.

Even before Fitzgerald became the special counsel the Justice Department knew that Armitage had given Plame’s name to Novak. Fitzpatrick’s next step should have been to determine whether that revelation violated the law. Any reasonable reading of the relevant law would have concluded that no law was broken. Indeed, no one was ever charged with a crime from revealing the Plame’s name. The special counsel’s office could reasonably have closed up shop within months or weeks.

Instead, given a blank check for further investigation, Fitzgerald trolled for perjury by conducting grand jury hearings. This does not excuse perjury or obstruction of justice on the part of Libby or anyone else, but is does reveal the injustice of unconstrained and unaccountable prosecutions. Indeed, on the jurors, Ann Redington, while driven by the compelling logic of the law to convict Libby concludes that justice would be served by pardoning Libby.

This is a particularly sorry episode, of using the criminal justice system to adjudicate political disputes and on that , in the words of the Washington Post, “besmirched nearly everyone it touched.”

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Union Fear of Democracy

Sunday, March 4th, 2007

When fighting the War on Terror or any war, there are always the conflicting priorities of individual liberties and the effective execution of the war. It seems that the trimming of the edges of civil liberties during the current conflict has been at best reasonable and at worst fairly minor excursions given the way wars have been executed in the past.

Some Democrats are bent out of shape at the interception of electronic communications between elements of Al Qaeda on foreign soil with Americans in the absence of warrant. The Administration has backed off a probably legal tactic, but what ever civil liberties might have been broached are small compared to World War II when all international communications were subject to warrantless interception.

Others are bothered at to the disposition of detainees at Guantanamo Bay. Are they prisoners of war? If they are, then they can be held to the end of the War on Terror, which may be indefinitely. If they are tried in criminal courts and they are prisoners of war, it violates the Geneva Convention. The issue of illegal combatants is complicated, but perhaps the detainees can best labeled as “pirates” under international law. Whatever one thinks about this issue, its consequences are small compared to thousands of Japanese Americans detained during World War II.

While much press attention and public argument have been devoted to statistically rare and extreme civil liberties questions, glaring civil liberties issues that can effect thousands if not millions are largely ignored. Recently, the Supreme Court has allowed to circumscription of First Amendment in the vicinity of abortion clinics and an expansive view of the states’ right to eminent domain.

Add to this list of assault on civil liberties, the recent law passed by the House of Representatives on a largely party-line vote. The bill is a payback by the Democratic Party for aggressive union support. Under current law, parties can request secret ballots for workers voting to organize a union. The new Democratic bill eliminates the right to a secret ballot, making workers subject to union intimidation. Since it is the unions who are pushing for this provision, it is clear that they are convinced that in many case workers left to the free choice would reject union advances.

Unions may be frustrated in their declining membership in the face of a massive switch from a manufacturing to a service-based economy. However, this is not sufficient reason to violate the cherished principle of a secret ballot.

Now labor supporters argue that companies can intimidate workers so the unions need this advantage to counter act company activities. The argument is self-refuting considering that an open ballot would make workers more subject to company intimidation. The whole idea behind the secret ballot was to originally protect workers from company retaliation. As a general rule, whoever wishes to eliminate the secret ballot is the party that hopes to gain by intimidation. It this case, it is the unions.

The bill will likely not survive the Senate, where a filibuster will probably kill the bill before it even comes to a vote. Even if it were to pass the Senate, President Bush would exercise a rare veto. In a sense, this a free vote for Democrats, they can payback unions, without actually being responsible for a bill that undermines democratic (this time certainly with a small “d”) principles. The cynicism makes Democratic protests about civil liberties in other contexts suspect.

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