If You Use The Constitution, They Can't Complain

My views on the current illegality of the NSA warrantless survelliance program are well-established. I think the program needs to be squared with FISA and Congress. However, I've also gone on record as opposing the ruling by Judge Taylor that strikes the whole program down as unconstitutional. My main problems with the ruling are that it goes too far, not providing any legal remedy to square the program with the Constitution, and that the ruling is pure sloppy jurisprudence. Ann Althouse has written a brilliant op-ed in the New York Times (pause for irony), that makes a solid case against the ruling.

Her piece has gotten a lot of heat, from commenters at her own blog, and from commenters at The Volokh Conspiracy. Keep in mind, that she's not defending the DOJ's argument (I don't know her actual views on the program's legality-she never says), but rather criticizing the judge for not providing a clear constitutional response:

Immensely difficult matters of First and Fourth Amendment law, separation of powers, and the relationship between the Foreign Intelligence Surveillance Act and the Authorization for Use of Military Force are disposed of in short sections that jump from assorted quotations of old cases to conclusory assertions of illegality. Orin S. Kerr, a law professor at George Washington, told The Times that the section on the Fourth Amendment is “just a few pages of general ruminations ... much of it incomplete and some of it simply incorrect.”

For those who approve of the outcome , the judge’s opinion is counterproductive. It will be harder to defend upon appeal than a more careful decision. It suggests that there are no good legal arguments against the program, just petulance and outrage and antipathy toward President Bush. It helps those who have been arguing for years about result-oriented, activist judges.

Laypeople consuming early news reports may well have thought, “What a courageous judge!” and “It’s a good thing someone finally said that the president is not above the law.” Look at that juicy quotation from Judge Taylor’s ruling: “There are no hereditary kings in America and no powers not created by the Constitution.”

But this is sheer sophistry. The potential for the president to abuse his power has nothing to do with kings and heredity. (How much power do hereditary kings have these days, anyway?) And, indeed, the president is not claiming he has powers outside of the Constitution. He isn’t arguing that he’s above the law. He’s making an aggressive argument about the scope of his power under the law.

The President isn't asserting that he's above the law, rather he's asserting that he has inherent authority in wartime to do these things. The argument is a serious one. It's totally wrong, and at war with the Constitution, but it deserves to be approached, and it must be correctly attacked. The problem is, the whole affair has the appearance of an unelected judge, who just happens to be a liberal, who just happens to have been appointed by a Democratic President, and confirmed by a Democratic Senate, overriding the decision of a popularly elected Republican President, in a time of war, based on her own opinion. It looks like she just hid the argument under the robe, and laid down the result she wanted. This is a parody of what right-wingers complain about with so-called "activist judges." It looks like she's a rogue judge trying to attack Bush.

These apppearances matter, because they undermine the trust that the Judiciary has. It only emboldens the partisans. It's not just about how it looks though. Judicial opinions need to be solid, in order to hold up on appeal, and establish good precedent. As critics of the program know, this is about more than just this program. The underlying argument needs to be struck down. This is about more than Bush. It seems like Taylor forgot that. Her point about "hereditary kings" is ironic, because judges themselves are just as suspectible to monarchical tendencies as the Executive, being that they're unelected.

The point to all this is the question of why we should defer to unelected judges in these matters, over the elected Executive. We do, because the Constitution says we do. We do because of judicial review, and airtight legal arguments, based on clear Constitutional support, and not what could be interpreted to be simple Bush-bashing. There is a clear case to be made that this program is illegal, and that Bush exceeded his authority. It needs to made clearly, to withstand scrutiny. That way, Bush supporters can't complain about activist judges, or anti-Bush Democrats, or East-Coast lawyers running the war, or election year stunts, or the usual pro-Bush blather over this. All that won't matter. If you use the Constitution, they can't complain.

The Race War Hits Primetime?

As the banner atop this blog attests, I have a big problem with unwarranted hysteria. I don't like to overreact on things. The thing is, this is beyond vulgar. I'm willing to cede that the producers weren't trying to be racist, but this is bad taste, and will only do harm to the culture. I've seen good, controversial shows that tackle the race issue. Black/White was one. I loved that show. This just seems tawdry, exploitative and dare I say, racist:

"Our original idea was simply to have the most ethnically diverse group of people on TV. It wasn't until we got to casting and started noticing this theme of ethnic pride that we started thinking, 'Wow, if culture is still playing such a big part in these people's lives, that's our idea. Let's divide them based on ethnicity,' " he said.

So, the answer is to exploit that ethnic pride, to promote diversity? I don't see that. I see things being made worse. It all seems like racial bloodsport, fueled by crude stereotypes. I mean, maybe I am overreacting. Maybe they'll set things up in such a way that when the tribes merge, it'll be an example of races coming to together. It's possible, but I doubt it, seeing as how the racial tension angle is the whole gimmick here. I'm telling you, this could get ugly real quick.

At the end of the day, it's just Hollywood tripe. I'll not watch it, and I really haven't watched since the fifth season. I prefer The Apprentice (Mark Burnett's other show) anyway. Ratings for Survivor are down to their lowest ever (which partially explains the need for controversial gimmicks), and I don't think this will help.

I wonder though, if this succeeds, what's next? Divide them up by religion? Christians vs. Jews vs. Muslims? Do I even need to elaborate on how that'll end up?

The Moose on the Iranian Threat

Bull Moose returns, with some sharp observations on the Iranian threat to Israel and the West:

Of course, Iran is not just a threat to Israel, but to all liberal democracies. However, Israel uniquely comprehends the immediacy of the Iranian threat. Time is not on our side. While the mullahs may be a few years from obtaining nukes, there is a point of no return in their efforts - and it is soon.

The world, unfortunately, would rather sleep. Sanctions are just so inconvenient. Money is to be made. And diplomacy, regardless of its effectiveness, is holy in the church of the left.

Even though Iran has been showered with generous offers of incentives, the left wants them to be given even more carrots without the serious threat of a stick. Lefties claim they are tough and they are only anti-war when it comes to Iraq, but appeasement is their instinctive impulse when confronted with a national security threat to America or her allies.

But, make no mistake - the recent war with Hizbollah has taught Israel a painful lesson. They cannot afford to slumber while their enemy prepares for a slaughter. In the next war, Hizbolla could be supplied with the ultimate weapon by their patrons in Teheran.

And the writing is on the wall...

Read the whole thing.

Spike Lee on Katrina

I saw the first part of Spike Lee's Katrina documentary, When the Levees Broke, last night. I was thoroughlly impressed, despite some concerns. I thought it captured all that should be captured, and gave a serious, emotional, and pretty unbiased account of the events. I'd have to say my only real complaint was the intellectually lazy idea once again put forth that somehow having troops in Iraq slowed the National Guard response and cleanup efforts. It was bogus then, and it's bogus now. It doesn't hurt the movie that much, but it was an annoyance.

UPDATE: As expected, the reviews are not all glowing. Many had real problems with the film. Honestly, many of the criticisms are legitimate. Brendan Loy, who basically became the blogger of choice for Katrina coverage, and is actually in the film, had some issues. You really ought to read his post.

Honestly, I still say this is a good film so far. At first, I expected a full-on conspiracy flick a la Fahrenheit 9/11, but I was pleasantly surprised. Sure, you had your conspiracies put out there, which should have been rebutted with alternative arguments. You had copious amounts of criticism of the Bush Administration and the Feds, most of which were legit and accurate. I say most, because some of it was over the top (Harry Belafonte, Sharpton). The point about Condi was problematic. Surely it was in Bad taste to buy shoes during the disaster, but it wasn't really her job to manage the federal response. The point made about other nations (namely Venezuela and Cuba) offering assistance was laughable. Does Harry Belafonte really think Hugo Chavez gives a damn about the people of New Orleans?

Oh, and Nagin's performance ought to have been scrutinized more clearly. He blew it big time, as did Blanco, and the Feds.

Like I Said, A Really Bad Bargain

Well it's pretty clear now that the "cease-fire" resolution is nothing more than a surrender. Apparently, this UN peacekeeping force is going to be harder to put together than many thought. The French, co-authored the resolution (this fact alone ought to raise a red flag), but are now having problems with the way it was written. They're still going to lead the way though-- they've committed about a couple hundred troops. Yep, that's it. You can always count on the French leadership to sell out the Jews, it seems. So, the French have decided to resurrect the Vichy glory days, and the UN has basically said that they're only there to help the Lebanese army disarm Hezbollah, and the Lebanese army isn't remotely ready to even begin disarming Hezbollah. So, another resolution unenforced. Hezbollah won't be disarmed, and Israel loses.

A handful of stand-up nations are doing their duty and sending troops, but will it be enough? The only force that could have really done damage was the Israeli military. but Olmert agrred to the "cease-fire," and there you have it.

A Really Bad Bargain

As I'm sure you all know, the Israeli-Hezbollah conflict has ended in what is being called a cease-fire. If you ask me, it smells more like a surrender. Per the mandate of the U.N. Israel has accepted a cease-fire that basically gives up everything that they asked for. This whole conflict started when Hezbollah captured Israeli soldiers. The cease-fire is in place, but the kidnapped soldiers are basically forgotten, and Hezbollah is still standing, claiming an "historic" victory. However, Israeli PM Olmert and President Bush call this a victory for Israel. The fact is, this is a loss, a big big one, for Israel, America, and the West.

I hate to think this way, but I can't see how Israel wins with this result. The original plan was to get the soldiers back, rout Hezbollah, and impede their ability to function as a state within a state. Hezbollah doesn't have to return the soldiers, Israel withdraws, and all that's left to disarm the terrorists is a U.N resolution and a peacekeeping force, that everyone knows won't be able to get the job done? It just looks bad. I'm not a pessimistic as Ralph Peters and others, but it looks bad. Remember, all Hezbollah (and other terror groups) need to do to win is to not lose completely. Anything short of a decisive victory becomes a Pyrrhic victory, easily turned into a defeat. Even if Hezbollah was reduced to half their strength, they could still rebuild, if not thoroughly routed. Indeed, they've lost fighters and resources, but how much was really done? Was it enough to justify the loss of Lebanese infrastructure and civilians? I'm not saying Israel shouldn't have fought this battle, or that they're somehow the villain here, but it seems like they didn't have the resolve to take it to the ground. You can't win wars like this with just air power.

The international community pushed this cease-fire. We all know that many international players aren't the biggest fans of Israel aggresively defending herself. Big Daddy Sheik Nasrallah has already said he won't disarm, and laughed off the U.N resolution. He's not impressed, and why should he be? It hasn't worked before.

I am totally pro-Israel, but I think the leadership bungled this. It appears that the leadership didn't have the stomach to do what really needed to be done. The Israeli people are pissed, and they should be. Politically, this is bad for Olmert, not that the politics really should matter. The legendary IDF has been embarrassed, Israel's name has been dragged through the mud, and Hezbollah survives, and is emboldened. The captured Israeli soldiers have yet to be returned. Hezbollah won't disarm, and the puppet masters Iran and Syria watch from the sidelines. I hope I'm just overreacting. Maybe Condi and the diplomats are right. Maybe the "birth pangs" are over. I fear though, that what has been born is a signal to the terrorists that the West doesn't have the stomach to do the heavy lifting, to endure the long twilight struggle. We've got to prove them wrong. We ought to do it now, because eventually, it will come down to our very survival.

OK. I hope I wasn't too hysterical.

If You Keep Telling People They're Not Wanted, Eventually They'll Leave

Consider the example of now ex-Democrat Brendan Loy:

Okay, I’m calling it. It’s over. Ned Lamont has won the primary. Democrats in my home state of Connecticut have seen fit to give their incumbent U.S. senator, the honorable Joseph Lieberman, the old heave-ho. Get out of our party, the Democratic voters have told Joe. You aren’t one of us anymore.

This doesn’t necessarily mean that Lieberman’s fine Senate career is over — he says he’ll run as an independent, and if he does, he may well win. Nor does it necessarily mean that the majority of national Democrats, or even the majority of Connecticut progressives and liberals, agree with the decision that today’s voters made. Connecticut’s largest “party” is unaffiliated voters, who were ineligible to vote in today’s primary, and they have long been big Lieberman supporters. Moreover, even among registered Democrats, it was always going to be more difficult for Lieberman to motivate his contented-but-not-fervent supporters to vote in the same numbers as his rabidly angry critics. Lamont was bound to have a natural advantage in this primary, and Lieberman a natural disadvantage, for the same reason that moderates are almost always at a disadvantage in primaries. (See, e.g., the 2002 GOP gubernatorial primary in California.)

But regardless of all that, the hard reality is that the voters have spoken, and their message was loud and clear: there’s no longer room for Joe Lieberman in the Democratic Party. And alas, tonight’s result will reverberate through the November elections and into the 2008 presidential campaign. It’s really much more than just a single primary in a single state; it’s a shot across the bow of moderate Democrats everywhere. And so, whatever further ramifications this result might have, there’s one thing it definitely means, one result that is officially cast in stone, as of today:

I am no longer a Democrat.

I'm with you, Brendan. I don't really plan on switiching parties yet, because I've never been that much of a party loyalist anyway, and I remain a Dem basically because I agree with them more than the Republicans, and I feel that Democratic policies are better for the country than Republican ones. The fact is, the elite Democrats have been sending the message that has now been set in stone: Moderates like Joe Lieberman are not welcome. You see, Lieberman didn't abandon the Party. The Democratic Party abandoned him, and all of us who have the clarity to place our national security interests above knee-jerk Bush-hatred and the antiquated idiocy of the hard-Left.

Despite all this, I'm still holding out hope. At the end of the day, I still believe in theose time-tested Democratic principles. I'm not leaving. I plan to stay and fight. I'll have to do it from the sort of wilderness I've been forced into, because alot of the Democratic elite has made it clear than there's no room in the tent for people like me. It's not just the war, either. My view that the abject killing of the unborn is not the best plan of action is verboten in the tent. Right now, I'm an independent Democrat. A lone-wolf Democrat. I've been that way for awhile now, as the Dems have increasingly lost their minds.
I must take issue with one point that Loy brought up. While the Dems have proven themselves to be intolerant of any ideological dissent from the Party line, I reject the idea that the Republicans are any better. The bold steps of Rudy, Arnold, and McCain notwithstanding, as far as the base is concerned, neither would make it through.

At the end of the day, neither Party has a big tent, and both have been hijacked by ideologues. Although the idea of the big tent was a uniquely Democratic staple, one that has been slowly undermined over the past ten years, and may have suffered the death blow Tuesday night.

Hat tip: Centerfield

UPDATE: Based on some the comments on this post over at Booker Rising, I think a clarification is needed. Moderates are still welcome in the Democratic Party, as long as they don't openly support the war in Iraq. Heck, the fact that Ned Lamont has a track record of supporting Republicans 80% percent of the time, while Lieberman supports Democrats 90% of the time is proof that even if you vote like a Republican, if you're anti-war, the anti-war Left will back you.

UPDATE #2: It looks like all hope might not be lost.

Well, Anti-War Left, You've Won This Round

Lieberman concedes. He must now run as an independent. The Kossacks must be turning over cars right now. Yet, I'm confident. I tell you, this is not over.

Deluded, and Devoid of Purpose

As I'm sure you all know, Cuban dictator Fidel Castro, for the first time in 50 years, relinquished power a few days ago, in order to have surgery. Miami Cubans, and Cuban exiles everywhere cling to the hope that Castro may have finally met his end, despite reports from the government that Castro is stable. Castro's record of tyraany and despotism is undisputed, except in the minds of some. It has always been a talking point of the Right to suggest that the far-Left loves Castro. The sad fact is, for many on the extreme Left, it is true. I'm convinced that this support is isolated on the fringes of the far-Left, despite the right-wing assertions to the contrary. One must wonder though, why are so many self-professed progressives genuinely sad that Castro's reign may actually end?

I've always thought it uncontroversial that Castro is a villain, and the Cuban people were suffering under his boot. Apparently, Castro has a lot more support than I realized. Again I must ask, why do so many on the extreme Left (keep in mind, I'm not talking about mainstream liberals and Leftists here), even in America, sympathize with the cigar-chomping madman? Is it their predictable misguided belief in utopian state socialism? Is it pure anti-Americanism? Some have gone so far as to even deny that he's a dictator. One of the common excuses from this fringe is the fact that Cuba has universal health care, and good schools. Could it be, that these people are so devoid of purpose, that universal health care and litearcy programs are all that matter to them? Are they so devoid of purpose, that they would abandon all commitments to progressivism and liberal democratic principles, and embrace the full-on welfare state, with all the comforts, as long as they don't value their freedom? I suspect it's no different than those on the extreme right, who flirt, often openly with the idea of authoritarian fascism, past and present. Further proof that the extremes of both ends meet somewhere in a soulless void, that aims to swallow freedom whole.