Commentary Magazine


Topic: federal judge

Judge Vinson’s Madisonian Vision vs. ObamaCare

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

I’ve now read through the 78-page decision by Federal Judge Roger Vinson in which he ruled the individual mandate, which is at the heart of the Patient Protection and Affordable Care Act, to be unconstitutional and not severable, necessitating that the “entire Act must be declared void.”

The decision itself, as Judge Vinson points out, is not really about our health-care system at all. It is principally about our federalist system, he writes, and “it raises very important issues regarding the Constitutional role of the federal government.”

While Vinson’s decision covers a lot of ground — including Medicaid expansion, the Necessary and Proper Clause, and the evolution of Commerce Clause Jurisprudence — the core purpose of the decision is to set some outer limits on federal action. Because of the novel way the Obama administration is justifying the individual mandate, it would be virtually impossible to argue that there is anything that Congress is without power to regulate.

Judge Vinson’s opinion is laced with quotes from Madison, Hamilton, and the Federalist Papers. And because he believes that the individual mandate exceeds Congress’s commerce power, is without logical limitation, and far exceeds the existing legal boundaries established by Supreme Court precedent — because, Vinson argues, it cannot be reconciled with a limited government of enumerated powers and would remove all limits on federal power — he declared the Act unconstitutional.

Judge Vinson was certainly right to do so. And the arguments he employed to strike it down are powerful and perfect for this political moment. We are, after all, engaged in a debate about first principles and the role of the Constitution in our lives. Judge Vinson has affirmed in an elegant opinion the vision of James Madison. We can only hope that the Supreme Court eventually does as well.

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Reading The Longest War

Normally, I like a hanging judge, and I am certainly a big fan of Michael Mukasey, the esteemed former federal judge and attorney general. He is one of the most reasonable, learned, and authoritative voices around on most matters relating to the law — and especially on the war on terror with which he has been closely connected ever since he sentenced the “blind sheikh” to life in prison in 1996. Yet I can’t help but conclude that his review of Peter Bergen’s The Longest War in the Wall Street Journal metes out a harsher verdict than the book deserves.

Having read the book myself — and having interviewed Bergen about it for an upcoming episode of C-SPAN’s Afterwords — I agree with many of Mukasey’s specific criticisms. I, too, disagree with Bergen when he makes withering criticisms of Guantanamo and the use of “enhanced” interrogation techniques on the likes of Khalid Sheikh Mohammad. I, too, disagree with Bergen when he criticizes “renditions” of terrorists and when he claims (in words not quoted by Mukasey) that “by any rational standard” Saddam Hussein’s Iraq “did not pose a real threat to the United States.” The last is a particularly puzzling statement considering that Saddam Hussein had invaded his neighbors twice, schemed to acquire weapons of mass destruction, and had already sparked one war with the United States and numerous lesser military actions.

But by focusing on these dubious assertions, Mukasey gives the impression that Bergen’s book is an anti-Bush screed along the lines of Jane Mayer’s The Dark Side. It isn’t. It’s actually a fairly balanced account of the past decade’s fight against al-Qaeda. Read More

Normally, I like a hanging judge, and I am certainly a big fan of Michael Mukasey, the esteemed former federal judge and attorney general. He is one of the most reasonable, learned, and authoritative voices around on most matters relating to the law — and especially on the war on terror with which he has been closely connected ever since he sentenced the “blind sheikh” to life in prison in 1996. Yet I can’t help but conclude that his review of Peter Bergen’s The Longest War in the Wall Street Journal metes out a harsher verdict than the book deserves.

Having read the book myself — and having interviewed Bergen about it for an upcoming episode of C-SPAN’s Afterwords — I agree with many of Mukasey’s specific criticisms. I, too, disagree with Bergen when he makes withering criticisms of Guantanamo and the use of “enhanced” interrogation techniques on the likes of Khalid Sheikh Mohammad. I, too, disagree with Bergen when he criticizes “renditions” of terrorists and when he claims (in words not quoted by Mukasey) that “by any rational standard” Saddam Hussein’s Iraq “did not pose a real threat to the United States.” The last is a particularly puzzling statement considering that Saddam Hussein had invaded his neighbors twice, schemed to acquire weapons of mass destruction, and had already sparked one war with the United States and numerous lesser military actions.

But by focusing on these dubious assertions, Mukasey gives the impression that Bergen’s book is an anti-Bush screed along the lines of Jane Mayer’s The Dark Side. It isn’t. It’s actually a fairly balanced account of the past decade’s fight against al-Qaeda.

In the first place, many of the criticisms Bergen offers are on the money — for instance, about the failure of the Bush administration to send more troops to trap Osama bin Laden at Tora Bora and about the failure to prepare for the post-invasion phase of the Iraq war. Both assertions should, by now, be fairly uncontroversial even in conservative circles. For that matter, I think Bergen is convincing in arguing that no tangible links between Saddam Hussein and al-Qaeda have been uncovered and that mainstream Islam has rejected al-Qaeda — both assertions that Mukasey questions.

In the second place, Bergen also offers praise for Bush that Mukasey doesn’t quote. He writes, for example, “There is little doubt that some of the measures the Bush administration and Congress took after 9/11 made Americans safer.” Among the positives he cites are the Patriot Act and other enhanced security measures.

Bergen also endorses Bush’s decision to  attack al-Qaeda with the full weight of the U.S. military — not just with law enforcement and intelligence agencies. This led the Economist to criticize Bergen’s book for dismissing “the view of some Europeans that al-Qaeda is essentially a law and order problem—more or less arguing, with odd logic, that since it declared war on America, then America must be at war.”

Unlike Michael Scheuer, the eccentric former CIA analyst whose new book about Osama bin Laden is also reviewed by Mukasey, Bergen does not think that Bush fell into a trap by sending troops into Afghanistan. Although bin Laden has talked about how he was luring America into a guerrilla war, Bergen concludes that this is largely an ex post facto justification and that the invasion of Afghanistan actually did significant damage to al-Qaeda. Moreover, unlike many of those who backed the initial decision to intervene, he strongly supports the current war effort in Afghanistan. Indeed Bergen and I teamed up at an Intelligence Squared US debate not long ago to argue that Afghanistan isn’t a lost cause.

In short, I think Mukasey is being harder on Bergen than the facts of the case warrant. But judge for yourself — read the book and watch my interview with Bergen in which I press him on some of the very points that Mukasey raises.

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Federal Judge Rules ObamaCare Provision Unconstitutional

A Virginia federal judge has ruled that a key provision of ObamaCare is unconstitutional. “U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance,” the Washington Post reports. Yes, this was somewhat inevitable. And there will likely be similar rulings in the near future. The Supreme Court will eventually resolve the question of ObamaCare’s constitutionality one way or another.

But today’s ruling, coming when it did, is important beyond its implications for the fate of the health-care overhaul. For it is one more data point in a seemingly endless narrative of administration setbacks. Every failure is now a compounded failure. Furthermore, this is yet another setback about which Obama can do precious little. After a term of ferocious activism, this administration is stuck watching its own deficiencies play out along with the rest of us.

Bill Clinton couldn’t be reached for comment.

A Virginia federal judge has ruled that a key provision of ObamaCare is unconstitutional. “U.S. District Court Judge Henry E. Hudson found that Congress could not order individuals to buy health insurance,” the Washington Post reports. Yes, this was somewhat inevitable. And there will likely be similar rulings in the near future. The Supreme Court will eventually resolve the question of ObamaCare’s constitutionality one way or another.

But today’s ruling, coming when it did, is important beyond its implications for the fate of the health-care overhaul. For it is one more data point in a seemingly endless narrative of administration setbacks. Every failure is now a compounded failure. Furthermore, this is yet another setback about which Obama can do precious little. After a term of ferocious activism, this administration is stuck watching its own deficiencies play out along with the rest of us.

Bill Clinton couldn’t be reached for comment.

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Flotsam and Jetsam

D.C. runs over black schoolkids. “Michelle Rhee—the tough broad who spent nearly four years as D.C. schools chancellor in a pitched battle against the corruption-plagued, incompetence-ridden Washington teachers union to reform a rotten public school system—was forced out today by mayor-elect Vincent Gray in what surely must be seen as a kind of triumph for the union and a potential tragedy for the city’s underprivileged, mostly-black schoolchildren.” Meanwhile, the Obamas are “tucking their own cute kids safely away in private schools.” Read the whole thing.

Officials from cities like New York should run, not walk, to grab her. “DC’s loss could be New York’s gain, and it behooves city Schools Chancellor Joel Klein to scoop her up before she departs for another system.”

Pat Toomey is running away with it in Pennsylvania. “Republican Pat Toomey now holds a 10-point lead over Democratic Congressman Joe Sestak, the widest gap between the candidates since early April in Pennsylvania’s U.S. Senate race. … The race now moves from Leans GOP to Solid GOP in the Rasmussen Reports Election 2010 Senate Balance of Power rankings.”

According to the Cook Political Report (subscription required), Nancy Pelosi isn’t going to be running the House come January. “At the moment, 22 Democratic seats, including 10 open seats and 12 incumbents, sit in the Lean or Likely Republican columns, while two Republican seats sit in the Lean or Likely Democratic columns, for a net of 20 Republican seats. That means Republicans only need to win 21 of the 40 seats in the Toss Up column to win a majority, not even counting many of the 30 Democratic seats in the Lean Democratic column that are rapidly becoming more competitive. At this point, all but four of the Democrats in our Toss Up column have trailed in at least one public or private poll, and Democrats’ fortunes in most of these seats are on the decline. … Overall, given the status of these Toss Up races and the length of the Lean Democratic column, Democrats’ chances of losing at least 50 seats are now greater than their chances of holding losses under 45 seats.”

By the time they start running for president in 2012, ObamaCare may be in the rear-view mirror. “A federal judge says some parts of a lawsuit by 20 states challenging the Obama administration’s health care overhaul as unconstitutional can go to trial. District Judge Roger Vinson ruled Thursday in Pensacola, Fla., that some parts of the lawsuit need to be heard. The administration had asked him to dismiss the entire lawsuit, which was spearheaded by Florida Attorney General Bill McCollum.”

He says he isn’t running in 2012, but there is — as I predicted — a “Draft Chris Christie” website. One benefit: in a Christie administration, I sincerely doubt the first lady would be nagging us to stop eating fast food.

Is Obama pitching to young voters merely to stage a practice run for the 2012 get-out-the-vote operation? The New York Times thinks so. After all, it’s always about him.

Democrats around the country are running against supposedly “extremist” Tea Partiers. But the voters have minds of their own, wouldn’t you know it? “Likely voters in battleground districts see extremists as having a more dominant influence over the Democratic Party than they do over the GOP. This result comes from The Hill 2010 Midterm Election Poll, which found that 44 percent of likely voters say the Democratic Party is more dominated by its extreme elements, whereas 37 percent say it’s the Republican Party that is more dominated by extremists.” By the end of this campaign, the public will be convinced that the Democrats are being funded by mystery foreign donors.

D.C. runs over black schoolkids. “Michelle Rhee—the tough broad who spent nearly four years as D.C. schools chancellor in a pitched battle against the corruption-plagued, incompetence-ridden Washington teachers union to reform a rotten public school system—was forced out today by mayor-elect Vincent Gray in what surely must be seen as a kind of triumph for the union and a potential tragedy for the city’s underprivileged, mostly-black schoolchildren.” Meanwhile, the Obamas are “tucking their own cute kids safely away in private schools.” Read the whole thing.

Officials from cities like New York should run, not walk, to grab her. “DC’s loss could be New York’s gain, and it behooves city Schools Chancellor Joel Klein to scoop her up before she departs for another system.”

Pat Toomey is running away with it in Pennsylvania. “Republican Pat Toomey now holds a 10-point lead over Democratic Congressman Joe Sestak, the widest gap between the candidates since early April in Pennsylvania’s U.S. Senate race. … The race now moves from Leans GOP to Solid GOP in the Rasmussen Reports Election 2010 Senate Balance of Power rankings.”

According to the Cook Political Report (subscription required), Nancy Pelosi isn’t going to be running the House come January. “At the moment, 22 Democratic seats, including 10 open seats and 12 incumbents, sit in the Lean or Likely Republican columns, while two Republican seats sit in the Lean or Likely Democratic columns, for a net of 20 Republican seats. That means Republicans only need to win 21 of the 40 seats in the Toss Up column to win a majority, not even counting many of the 30 Democratic seats in the Lean Democratic column that are rapidly becoming more competitive. At this point, all but four of the Democrats in our Toss Up column have trailed in at least one public or private poll, and Democrats’ fortunes in most of these seats are on the decline. … Overall, given the status of these Toss Up races and the length of the Lean Democratic column, Democrats’ chances of losing at least 50 seats are now greater than their chances of holding losses under 45 seats.”

By the time they start running for president in 2012, ObamaCare may be in the rear-view mirror. “A federal judge says some parts of a lawsuit by 20 states challenging the Obama administration’s health care overhaul as unconstitutional can go to trial. District Judge Roger Vinson ruled Thursday in Pensacola, Fla., that some parts of the lawsuit need to be heard. The administration had asked him to dismiss the entire lawsuit, which was spearheaded by Florida Attorney General Bill McCollum.”

He says he isn’t running in 2012, but there is — as I predicted — a “Draft Chris Christie” website. One benefit: in a Christie administration, I sincerely doubt the first lady would be nagging us to stop eating fast food.

Is Obama pitching to young voters merely to stage a practice run for the 2012 get-out-the-vote operation? The New York Times thinks so. After all, it’s always about him.

Democrats around the country are running against supposedly “extremist” Tea Partiers. But the voters have minds of their own, wouldn’t you know it? “Likely voters in battleground districts see extremists as having a more dominant influence over the Democratic Party than they do over the GOP. This result comes from The Hill 2010 Midterm Election Poll, which found that 44 percent of likely voters say the Democratic Party is more dominated by its extreme elements, whereas 37 percent say it’s the Republican Party that is more dominated by extremists.” By the end of this campaign, the public will be convinced that the Democrats are being funded by mystery foreign donors.

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Flotsam and Jetsam

What does Hillary need with a VP slot on an Obama ticket? Hillaryland eyes 2016. By then maybe voters will have forgotten what a mediocre secretary of state she was.

What does a tsunami look like? “In a poll of 12 hotly contested races that could decide who controls the House in the 112th Congress, Republican challengers are beating freshman Democrats in 11 — and in the last one, the race is tied.”

What does less than two years of the Obama presidency do to his party? “Working-class whites are favoring Republicans in numbers that parallel the GOP tide of 1994 when the party grabbed control of the House after four decades. The increased GOP tilt by these voters, a major hurdle for Democrats struggling to keep control of Congress in next month’s elections, reflects a mix of two factors, an Associated Press-GfK poll suggests: unhappiness with the Democrats’ stewardship of an ailing economy that has hit this group particularly hard, and a persistent discomfort with President Barack Obama.”

What does it say about the mood of the country (and Rahm Emanuel’s chances) when even Chicagoans are disappointed in Obama? “Even in President Barack Obama’s hometown, they had hoped for more. … But nearly two years after Obama took office, while the president remains widely popular in the city, his image has slipped a bit as many people wonder where the promised change and jobs are, even if they believe such talk is probably a bit unfair.”

What does the civilian judicial system offer terrorists that military tribunals don’t? “Minutes before a major terrorism trial was about to begin, a federal judge barred prosecutors in Manhattan on Wednesday from using a key witness. The government had acknowledged it learned about the witness from the defendant, Ahmed Khalfan Ghailani, while he was being interrogated and held in a secret overseas jail run by the Central Intelligence Agency.”

What does Liz Cheney have to say about this? “The Obama Administration has dedicated itself to providing al Qaeda terrorists the kind of due process rights normally reserved for American citizens. By insisting on trying Ahmed Ghailani in civilian court with full constitutional rights, instead of by military commission, President Obama and Attorney General Holder are jeopardizing the prosecution of a terrorist who killed 224 people at U.S. Embassies in Kenya and Tanzania. If the American people needed any further proof that this Administration’s policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today.”

What does Jeffrey Goldberg feel obliged to do? Explain to the Beagle Blogger what was wrong with Rick Sanchez’s anti-Semitic rant. A better question is what is the Atlantic doing with a writer who flaunts his indifference to anti-Semitism. (“It’s all about the clicks!” a colleague tells me. Yeah, but still.)

What does Hillary need with a VP slot on an Obama ticket? Hillaryland eyes 2016. By then maybe voters will have forgotten what a mediocre secretary of state she was.

What does a tsunami look like? “In a poll of 12 hotly contested races that could decide who controls the House in the 112th Congress, Republican challengers are beating freshman Democrats in 11 — and in the last one, the race is tied.”

What does less than two years of the Obama presidency do to his party? “Working-class whites are favoring Republicans in numbers that parallel the GOP tide of 1994 when the party grabbed control of the House after four decades. The increased GOP tilt by these voters, a major hurdle for Democrats struggling to keep control of Congress in next month’s elections, reflects a mix of two factors, an Associated Press-GfK poll suggests: unhappiness with the Democrats’ stewardship of an ailing economy that has hit this group particularly hard, and a persistent discomfort with President Barack Obama.”

What does it say about the mood of the country (and Rahm Emanuel’s chances) when even Chicagoans are disappointed in Obama? “Even in President Barack Obama’s hometown, they had hoped for more. … But nearly two years after Obama took office, while the president remains widely popular in the city, his image has slipped a bit as many people wonder where the promised change and jobs are, even if they believe such talk is probably a bit unfair.”

What does the civilian judicial system offer terrorists that military tribunals don’t? “Minutes before a major terrorism trial was about to begin, a federal judge barred prosecutors in Manhattan on Wednesday from using a key witness. The government had acknowledged it learned about the witness from the defendant, Ahmed Khalfan Ghailani, while he was being interrogated and held in a secret overseas jail run by the Central Intelligence Agency.”

What does Liz Cheney have to say about this? “The Obama Administration has dedicated itself to providing al Qaeda terrorists the kind of due process rights normally reserved for American citizens. By insisting on trying Ahmed Ghailani in civilian court with full constitutional rights, instead of by military commission, President Obama and Attorney General Holder are jeopardizing the prosecution of a terrorist who killed 224 people at U.S. Embassies in Kenya and Tanzania. If the American people needed any further proof that this Administration’s policy of treating terrorism like a law enforcement matter is irresponsible and reckless, they received it today.”

What does Jeffrey Goldberg feel obliged to do? Explain to the Beagle Blogger what was wrong with Rick Sanchez’s anti-Semitic rant. A better question is what is the Atlantic doing with a writer who flaunts his indifference to anti-Semitism. (“It’s all about the clicks!” a colleague tells me. Yeah, but still.)

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Guess the Judge’s Background

As readers of conservative blogs and magazines know, the right punditocracy has a game of “guess the party.” When a Republican does something bad, the mainstream media begin the story “Republican Sam Smith …” When a Democrat does it, you will have to search long and hard for a hint of party affiliation. The problem is so endemic that if party affiliation is not mentioned in the first graph, it is safe to assume a Democrat is involved.

So we have this story of a corrupt district court judge who is facing impeachment. As the Washington Post observes, it is juicy:

The trial is an extraordinary spectacle, featuring allegations that lawyers and bail bondsmen plied the judge, a reformed drinker and gambler, with gifts to gain his courtroom favor. Cash in envelopes. Bottles of Absolut and coolers of shrimp. A Vegas bachelor party for Porteous’s son, complete with lap dance. It showcases both the often-sordid politics of Louisiana and a struggle over constitutional precedents.

So who appointed him? What’s the judge’s party background? In the 13th paragraph we get this clue: “Mutterings about the ethics of Porteous, a state judge for 10 years and former prosecutor, began almost as soon as he landed on it in 1994.” Landed by osmosis? Ah, that would make him a Clinton appointee! Good to know.

And yes, he’s a pretty liberal judge. In 2002:

U.S. District Judge G. Thomas Porteous Jr. ordered the state to stop giving money to individuals or organizations that “convey religious messages or otherwise advance religion” with tax dollars. He said there was ample evidence that many of the groups participating in the Governor’s Program on Abstinence were “furthering religious objectives.” …

The suit, filed in May by the American Civil Liberties Union, was the first legal challenge to abstinence-only programs created under the 1996 welfare reform legislation. Bush has asked Congress to extend the $50 million-a-year program and increase other federal abstinence grants from $40 million this year to $73 million next year.

Also in 2002:

Banning pacifiers and glow sticks in an effort to curb drug use at all-night raves violates free speech and does not further the government’s war on drugs, a federal judge has ruled in permanently blocking federal agents from enforcing the ban. … The American Civil Liberties Union, though, said the ban was unconstitutional and challenged it in federal court. After the suit was filed last year, U.S. District Judge G. Thomas Porteous issued a temporary restraining order preventing the ban from taking effect.

Porteous issued a 12-page ruling Monday that sided with the ACLU in its attack on the ban.

And in 1999, in Causeway Medical Suite v. Foster, Porteous struck down the state ban on partial birth abortion.

Now none of these cases is the basis for the impeachment. But you would think that the report would say something like “A Clinton appointee responsible for a number of controversial rulings in the ACLU’s favor …” Believe me, if a Reagan appointee had been involved in controversial rulings, we would have read “A Reagan appointee criticized by civil rights groups for a slew of controversial rulings against women, orphans, and children …”

Well, you get the picture.

As readers of conservative blogs and magazines know, the right punditocracy has a game of “guess the party.” When a Republican does something bad, the mainstream media begin the story “Republican Sam Smith …” When a Democrat does it, you will have to search long and hard for a hint of party affiliation. The problem is so endemic that if party affiliation is not mentioned in the first graph, it is safe to assume a Democrat is involved.

So we have this story of a corrupt district court judge who is facing impeachment. As the Washington Post observes, it is juicy:

The trial is an extraordinary spectacle, featuring allegations that lawyers and bail bondsmen plied the judge, a reformed drinker and gambler, with gifts to gain his courtroom favor. Cash in envelopes. Bottles of Absolut and coolers of shrimp. A Vegas bachelor party for Porteous’s son, complete with lap dance. It showcases both the often-sordid politics of Louisiana and a struggle over constitutional precedents.

So who appointed him? What’s the judge’s party background? In the 13th paragraph we get this clue: “Mutterings about the ethics of Porteous, a state judge for 10 years and former prosecutor, began almost as soon as he landed on it in 1994.” Landed by osmosis? Ah, that would make him a Clinton appointee! Good to know.

And yes, he’s a pretty liberal judge. In 2002:

U.S. District Judge G. Thomas Porteous Jr. ordered the state to stop giving money to individuals or organizations that “convey religious messages or otherwise advance religion” with tax dollars. He said there was ample evidence that many of the groups participating in the Governor’s Program on Abstinence were “furthering religious objectives.” …

The suit, filed in May by the American Civil Liberties Union, was the first legal challenge to abstinence-only programs created under the 1996 welfare reform legislation. Bush has asked Congress to extend the $50 million-a-year program and increase other federal abstinence grants from $40 million this year to $73 million next year.

Also in 2002:

Banning pacifiers and glow sticks in an effort to curb drug use at all-night raves violates free speech and does not further the government’s war on drugs, a federal judge has ruled in permanently blocking federal agents from enforcing the ban. … The American Civil Liberties Union, though, said the ban was unconstitutional and challenged it in federal court. After the suit was filed last year, U.S. District Judge G. Thomas Porteous issued a temporary restraining order preventing the ban from taking effect.

Porteous issued a 12-page ruling Monday that sided with the ACLU in its attack on the ban.

And in 1999, in Causeway Medical Suite v. Foster, Porteous struck down the state ban on partial birth abortion.

Now none of these cases is the basis for the impeachment. But you would think that the report would say something like “A Clinton appointee responsible for a number of controversial rulings in the ACLU’s favor …” Believe me, if a Reagan appointee had been involved in controversial rulings, we would have read “A Reagan appointee criticized by civil rights groups for a slew of controversial rulings against women, orphans, and children …”

Well, you get the picture.

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Flotsam and Jetsam

Ben Smith has this right about a new, fantastical Vanity Fair piece: “you can really write anything about Palin.”

Michael Goldfarb has the goods on the “moderate” Ground Zero mosque builders. It seems they won’t condemn Tuesday’s slaughter of four Israelis. This is precisely why Muslim outreach is a flawed and ultimately dangerous exercise — it overlooks and excuses the coddling of terrorists.

Stephen Schwartz has the scoop on the Ground Zero mosque builders’ infighting: “Increasing questions about the character and qualifications of the primary figures in ‘Ground Zero mosque,’ as well as personal rivalries between them, may have accomplished as much for the mosque’s opponents as have protests and disapproving poll results. An offensive concept was presented to Americans by flawed and self-interested individuals; the combination may well guarantee its eventual collapse.”

PPP has the Ohio gubernatorial race going to John Kasich: “Former Congressman and Fox News anchor John Kasich leads Ohio Governor Ted Strickland, 50-40, in PPP’s first poll of likely voters in the race. In the previous survey of registered voters in June, Kasich led only 43-41. President Obama won Ohio by four points in 2008, but the likely 2010 electorate now reports having voted for John McCain by three—a seven-point shift in turnout which mirrors Kasich’s eight-point improvement in the horse race in the last two months.” That same shift is probably happening nationwide.

The GOP has narrowed the gap: “The number of Republicans in the United States grew in August while the number of Democrats slipped a bit and the gap between the parties fell to the smallest advantage for Democrats in five years. In August, 35.0% of American Adults identified themselves as Democrats. That’s down nearly half a percentage point  from a month ago and is the smallest percentage of Democrats ever recorded in nearly eight years of monthly tracking. At the same time, the number of Republicans grew in August grew to 33.8%.” Well, Obama helped a lot.

Pete Hegseth of Vets for Freedom has the numbers: “[Obama] shouldn’t have attempted to weave in an economic message; the words seemed petty and out of place. They were the president’s backhanded way of saying we wasted the last decade on Iraq, rather than fixing our economy. (Minor detail: The president’s stimulus, passed in his first month in office, will cost $100 billion more than the entire cost of the Iraq war.) His economic posturing took the focus off the troops and their accomplishments, and was unnecessary.” Yeah, there’s some perspective.

Operation Iraqi Freedom veteran Tom Mahnken has the impression that Obama would rather be doing something else: “[O]ne could not help to see in the president’s words and mannerisms, a man who was distracted, whose heart wasn’t in it. In a speech nominally devoted to Iraq, he couldn’t help but talk about the U.S. economy. … Whereas Bush exhibited great courage in going against his own military to support the Iraqi surge and sell it to his own party and the American people, Obama has yet to put comparable effort into selling his own Afghan surge. The Oval Office speech was a missed opportunity to do just that.”

The BP oil-spill debacle has not come to end: “The federal judge who struck down the Obama administration’s initial six-month moratorium on deepwater oil-drilling dealt the government another blow on Wednesday. U.S. District Court Judge Martin Feldman denied the government’s request to throw out a suit challenging the drilling halt that had been filed by offshore-oil-service companies. Justice Department lawyers had argued the lawsuit was moot because the Interior Department imposed a new, temporary drilling ban on July 12, replacing a May 28 order that Judge Feldman had struck down in June.”

Ben Smith has this right about a new, fantastical Vanity Fair piece: “you can really write anything about Palin.”

Michael Goldfarb has the goods on the “moderate” Ground Zero mosque builders. It seems they won’t condemn Tuesday’s slaughter of four Israelis. This is precisely why Muslim outreach is a flawed and ultimately dangerous exercise — it overlooks and excuses the coddling of terrorists.

Stephen Schwartz has the scoop on the Ground Zero mosque builders’ infighting: “Increasing questions about the character and qualifications of the primary figures in ‘Ground Zero mosque,’ as well as personal rivalries between them, may have accomplished as much for the mosque’s opponents as have protests and disapproving poll results. An offensive concept was presented to Americans by flawed and self-interested individuals; the combination may well guarantee its eventual collapse.”

PPP has the Ohio gubernatorial race going to John Kasich: “Former Congressman and Fox News anchor John Kasich leads Ohio Governor Ted Strickland, 50-40, in PPP’s first poll of likely voters in the race. In the previous survey of registered voters in June, Kasich led only 43-41. President Obama won Ohio by four points in 2008, but the likely 2010 electorate now reports having voted for John McCain by three—a seven-point shift in turnout which mirrors Kasich’s eight-point improvement in the horse race in the last two months.” That same shift is probably happening nationwide.

The GOP has narrowed the gap: “The number of Republicans in the United States grew in August while the number of Democrats slipped a bit and the gap between the parties fell to the smallest advantage for Democrats in five years. In August, 35.0% of American Adults identified themselves as Democrats. That’s down nearly half a percentage point  from a month ago and is the smallest percentage of Democrats ever recorded in nearly eight years of monthly tracking. At the same time, the number of Republicans grew in August grew to 33.8%.” Well, Obama helped a lot.

Pete Hegseth of Vets for Freedom has the numbers: “[Obama] shouldn’t have attempted to weave in an economic message; the words seemed petty and out of place. They were the president’s backhanded way of saying we wasted the last decade on Iraq, rather than fixing our economy. (Minor detail: The president’s stimulus, passed in his first month in office, will cost $100 billion more than the entire cost of the Iraq war.) His economic posturing took the focus off the troops and their accomplishments, and was unnecessary.” Yeah, there’s some perspective.

Operation Iraqi Freedom veteran Tom Mahnken has the impression that Obama would rather be doing something else: “[O]ne could not help to see in the president’s words and mannerisms, a man who was distracted, whose heart wasn’t in it. In a speech nominally devoted to Iraq, he couldn’t help but talk about the U.S. economy. … Whereas Bush exhibited great courage in going against his own military to support the Iraqi surge and sell it to his own party and the American people, Obama has yet to put comparable effort into selling his own Afghan surge. The Oval Office speech was a missed opportunity to do just that.”

The BP oil-spill debacle has not come to end: “The federal judge who struck down the Obama administration’s initial six-month moratorium on deepwater oil-drilling dealt the government another blow on Wednesday. U.S. District Court Judge Martin Feldman denied the government’s request to throw out a suit challenging the drilling halt that had been filed by offshore-oil-service companies. Justice Department lawyers had argued the lawsuit was moot because the Interior Department imposed a new, temporary drilling ban on July 12, replacing a May 28 order that Judge Feldman had struck down in June.”

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Jobs Take Second Place, Again

The Obama team, we are told, can’t figure out how to stem unemployment. But actually, it seems they simply place job creation and preservation below other priorities. This report explains:

Senior Obama administration officials concluded the federal moratorium on deepwater oil drilling would cost roughly 23,000 jobs, but went ahead with the ban because they didn’t trust the industry’s safety equipment and the government’s own inspection process, according to previously undisclosed documents.

Critics of the moratorium, including Gulf Coast political figures and oil-industry leaders, have said it is crippling the region’s economy, and some have called on the administration to make public its economic analysis. A federal judge who in June threw out an earlier six-month moratorium faulted the administration for playing down the economic effects.

The Obama administration, the least transparent in history, however, has been actively misleading the court: “The administration has said in court filings that the economic effect of suspended drilling wasn’t as severe as the industry asserted.” The administration turns out to have less credibility than Big Oil. (“An American Petroleum Institute spokesman said the documents show ‘the government itself understood there would be significant impacts felt throughout the region.'”) And, in fact, the administration simply ignored those who raised the warning flag:

In another document, William Hauser, chief of the regulations and standards branch of what was formerly called the Minerals Management Service, outlined the risks of various drilling activities in an email to colleagues and then wrote: “The more I write this stuff the more I believe we can/should/could regulate/stop activities through a prudent management process versus a moratoria scheme.”

This shouldn’t surprise us. The administration’s proclivity to make grand gestures, finger point, bash private industry, and satisfy the left’s pent-up demand has meant that time and time again, the Obama team gave job creation and preservation short shrift. Extend the Bush tax cuts; we can “weather it.” Pass ObamaCare; business will absorb the costs.

It’s no wonder voters think Obama and the Democratic Congress have failed to focus on jobs. They are about to find out the perils of ignoring the voters’ concerns.

The Obama team, we are told, can’t figure out how to stem unemployment. But actually, it seems they simply place job creation and preservation below other priorities. This report explains:

Senior Obama administration officials concluded the federal moratorium on deepwater oil drilling would cost roughly 23,000 jobs, but went ahead with the ban because they didn’t trust the industry’s safety equipment and the government’s own inspection process, according to previously undisclosed documents.

Critics of the moratorium, including Gulf Coast political figures and oil-industry leaders, have said it is crippling the region’s economy, and some have called on the administration to make public its economic analysis. A federal judge who in June threw out an earlier six-month moratorium faulted the administration for playing down the economic effects.

The Obama administration, the least transparent in history, however, has been actively misleading the court: “The administration has said in court filings that the economic effect of suspended drilling wasn’t as severe as the industry asserted.” The administration turns out to have less credibility than Big Oil. (“An American Petroleum Institute spokesman said the documents show ‘the government itself understood there would be significant impacts felt throughout the region.'”) And, in fact, the administration simply ignored those who raised the warning flag:

In another document, William Hauser, chief of the regulations and standards branch of what was formerly called the Minerals Management Service, outlined the risks of various drilling activities in an email to colleagues and then wrote: “The more I write this stuff the more I believe we can/should/could regulate/stop activities through a prudent management process versus a moratoria scheme.”

This shouldn’t surprise us. The administration’s proclivity to make grand gestures, finger point, bash private industry, and satisfy the left’s pent-up demand has meant that time and time again, the Obama team gave job creation and preservation short shrift. Extend the Bush tax cuts; we can “weather it.” Pass ObamaCare; business will absorb the costs.

It’s no wonder voters think Obama and the Democratic Congress have failed to focus on jobs. They are about to find out the perils of ignoring the voters’ concerns.

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ObamaCare Lawsuit Clears First Hurdle

There was a significant development in the ObamaCare lawsuit today. The attorney general of Virginia Ken Cuccinelli put out the following statement:

A federal judge ruled today that Virginia does indeed have standing to bring its lawsuit seeking to invalidate the federal Patient Protection and Affordable Care Act.  The judge also ruled that Virginia had stated a legally sufficient claim in its complaint.  In doing so, federal district court judge Henry E. Hudson denied the federal government’s motion to dismiss the commonwealth’s suit. …

The U.S. Department of Justice argued that Virginia lacked the standing to bring a suit, that the suit is premature, and that the federal government had the power under the U.S. Constitution to mandate that citizens must be covered by government-approved health insurance or pay a monetary penalty.

In denying the motion to dismiss, Judge Hudson found that Virginia had alleged a legally recognized injury to its sovereignty, given the government’s assertion that the federal law invalidates a Virginia law, the Health Care Freedom Act. …

The Court recognized that the federal health care law and its associated penalty were literally unprecedented. Specifically, the Court wrote that “[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

Well, well. It seems that the conservative scholars were right, and those arguing a legal challenge was frivolous were wrong. Moreover, it is not simply a procedural ruling on standing or “ripeness” (that is, whether there is an actual case at present). Todd Gaziano of the Heritage Foundation explains:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED. … Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Obama’s “historic” accomplishment is both legally and politically vulnerable. (Republicans aren’t waiting for the courts to rule it unconstitutional and are thinking up ways to defund ObamaCare.) It seems there really are limits to the left’s statist ambitions.

There was a significant development in the ObamaCare lawsuit today. The attorney general of Virginia Ken Cuccinelli put out the following statement:

A federal judge ruled today that Virginia does indeed have standing to bring its lawsuit seeking to invalidate the federal Patient Protection and Affordable Care Act.  The judge also ruled that Virginia had stated a legally sufficient claim in its complaint.  In doing so, federal district court judge Henry E. Hudson denied the federal government’s motion to dismiss the commonwealth’s suit. …

The U.S. Department of Justice argued that Virginia lacked the standing to bring a suit, that the suit is premature, and that the federal government had the power under the U.S. Constitution to mandate that citizens must be covered by government-approved health insurance or pay a monetary penalty.

In denying the motion to dismiss, Judge Hudson found that Virginia had alleged a legally recognized injury to its sovereignty, given the government’s assertion that the federal law invalidates a Virginia law, the Health Care Freedom Act. …

The Court recognized that the federal health care law and its associated penalty were literally unprecedented. Specifically, the Court wrote that “[n]o reported case from any federal appellate court has extended the Commerce Clause or Tax Clause to include the regulation of a person’s decision not to purchase a product, notwithstanding its effect on interstate commerce.”

Well, well. It seems that the conservative scholars were right, and those arguing a legal challenge was frivolous were wrong. Moreover, it is not simply a procedural ruling on standing or “ripeness” (that is, whether there is an actual case at present). Todd Gaziano of the Heritage Foundation explains:

On the merits, we are surprised the judge took as much space to conclude that Virginia stated a valid cause of action, namely, that Congress had exceeded its constitutional authority with the individual mandate.  At this stage in the litigation and on the particular motion that was filed (a Federal Rule of Civil Procedure 12(b)(6) motion to dismiss for the legal wonks), the judge need not and could not rule on who will win or even if one side is more likely to win.  The only question is whether Virginia stated a legal cause of action (or legal theory) that is cognizable in law.  Virginia certainly has at least a valid substantive theory to challenge the law, because someone with standing is always able to challenge the constitutionality of a statute on the ground that Congress has no constitutional authority to enact it, QED. … Judge Hudson’s discussion of the constitutional issues is somewhat instructive.  It shows he is not hostile or dismissive of Virginia’s claims, which is surely good for liberty.

Obama’s “historic” accomplishment is both legally and politically vulnerable. (Republicans aren’t waiting for the courts to rule it unconstitutional and are thinking up ways to defund ObamaCare.) It seems there really are limits to the left’s statist ambitions.

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Flotsam and Jetsam

If you give the liberal newspapers 11 months, they will eventually catch up with conservative media.

If you give Jonathan Chait a lifetime, he never will. Refusal to pursue voter-intimidation cases against nonwhite people, he says, is a “tiny matter.” (Does he know that it’s not just Fox that’s covering the scandal but the Washington Post too?)

If they gave grades for charm, Nancy Pelosi would be failing: “While trying to mend ties between her caucus and the White House, House Speaker Nancy Pelosi turned her ire toward her Senate colleagues on Thursday, blaming Senate delays in passing the Democratic agenda for the disappointing jobs picture heading into the midterm elections.”

If you keep hoping for Peter Beinart to write something that is factually supported and more than an ad hominem attack on conservatives, you’ll be disappointed. He says Republicans think you have to be Christian to be American. Or something. No, don’t read the whole thing. Or any of it.

If you think liberals aren’t angst-ridden, think again. Greg Sargent complains about Robert Gibbs’s comment on losing the House: “[I]t’s pretty clear now that Dems have good reason to be furious about Gibbs’s misstep. It has forced a days-long media process story about whether they’re going to lose the House and about tensions between them and the White House. This is happening just when Dems are trying to turn the spotlight away from themselves and onto Republicans in order to persuade voters that this fall’s elections represent a choice between competing governing philosophies.”

If you also thought it was bizarre that Obama was invoking race to explain why al-Qaeda kills Africans, you are in good company. Charles Krauthammer: “I found a more interesting element in the interview when he said al-Qaeda doesn’t respect African life. I mean, it doesn’t respect Indonesian life, Pakistani life, Iraqi life, American life. Of course it doesn’t respect African life, but it’s not because of race. It doesn’t respect anyone or any organization, any people who won’t accept the extreme interpretation of Islam and the bringing on of one rule under sharia.”

If Republicans are doing this well in fundraising, you have to think they’re going to do very well in November. (That sure was the pattern for Democrats in 2008.) “Republicans are outraising Democrats in nearly a dozen open Senate races, increasing their hopes of significantly narrowing the Democrats’ majority in November.”

If you like a good news story: “A judge had resentenced a 70-year-old civil rights lawyer to 10 years in prison for letting a jailed Egyptian sheik communicate with his radical followers. Federal Judge John Koeltl sentenced Lynne Stewart in Manhattan after she pleaded with him to reimpose the two-year, four-month sentence he had originally given her in 2006.” You might want to avert your eyes from the photo, however.

 

If you give the liberal newspapers 11 months, they will eventually catch up with conservative media.

If you give Jonathan Chait a lifetime, he never will. Refusal to pursue voter-intimidation cases against nonwhite people, he says, is a “tiny matter.” (Does he know that it’s not just Fox that’s covering the scandal but the Washington Post too?)

If they gave grades for charm, Nancy Pelosi would be failing: “While trying to mend ties between her caucus and the White House, House Speaker Nancy Pelosi turned her ire toward her Senate colleagues on Thursday, blaming Senate delays in passing the Democratic agenda for the disappointing jobs picture heading into the midterm elections.”

If you keep hoping for Peter Beinart to write something that is factually supported and more than an ad hominem attack on conservatives, you’ll be disappointed. He says Republicans think you have to be Christian to be American. Or something. No, don’t read the whole thing. Or any of it.

If you think liberals aren’t angst-ridden, think again. Greg Sargent complains about Robert Gibbs’s comment on losing the House: “[I]t’s pretty clear now that Dems have good reason to be furious about Gibbs’s misstep. It has forced a days-long media process story about whether they’re going to lose the House and about tensions between them and the White House. This is happening just when Dems are trying to turn the spotlight away from themselves and onto Republicans in order to persuade voters that this fall’s elections represent a choice between competing governing philosophies.”

If you also thought it was bizarre that Obama was invoking race to explain why al-Qaeda kills Africans, you are in good company. Charles Krauthammer: “I found a more interesting element in the interview when he said al-Qaeda doesn’t respect African life. I mean, it doesn’t respect Indonesian life, Pakistani life, Iraqi life, American life. Of course it doesn’t respect African life, but it’s not because of race. It doesn’t respect anyone or any organization, any people who won’t accept the extreme interpretation of Islam and the bringing on of one rule under sharia.”

If Republicans are doing this well in fundraising, you have to think they’re going to do very well in November. (That sure was the pattern for Democrats in 2008.) “Republicans are outraising Democrats in nearly a dozen open Senate races, increasing their hopes of significantly narrowing the Democrats’ majority in November.”

If you like a good news story: “A judge had resentenced a 70-year-old civil rights lawyer to 10 years in prison for letting a jailed Egyptian sheik communicate with his radical followers. Federal Judge John Koeltl sentenced Lynne Stewart in Manhattan after she pleaded with him to reimpose the two-year, four-month sentence he had originally given her in 2006.” You might want to avert your eyes from the photo, however.

 

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Flotsam and Jetsam

Gen. Stanley McChrystal took the blame. But he isn’t the problem, says Jackson Diehl: “If anyone deserves blame for the latest airing of the administration’s internal feuds over Afghanistan, it is President Obama. For months Obama has tolerated deep divisions between his military and civilian aides over how to implement the counterinsurgency strategy he announced last December. The divide has made it practically impossible to fashion a coherent politico-military plan, led to frequent disputes over tactics and contributed to a sharp deterioration in the administration’s relations with Afghan President Hamid Karzai.”

It took Rolling Stone to make clear “just how badly Barack Obama’s ‘good war’ in Afghanistan is going.”

Obama took office in January 2009, yet voters think Hillary Clinton is more qualified to be president: “A new Rasmussen Reports national telephone survey shows that 57% of voters feel Clinton is qualified to be president, but 34% disagree and say she is not. As for President Obama, 51% say he is fit for the job. However, 44% say he is not qualified to be president, even though he has now served 17 months in the job.”

Gov. Bob McDonnell took a few hits early in his term but his approval stands at 63%, according to an internal poll.

The North Korean soccer team took a beating. (“After an embarrassing 7-0 drubbing by Portugal yesterday, will the North Korean soccer team have to face the wrath of Kim Jong Il?”) Maybe they should have hired Chinese players instead of Chinese fans.

Obama took it on the chin in court yesterday: “A federal judge in New Orleans halted President Obama’s deepwater drilling moratorium on Tuesday, saying the government never justified the ban and appeared to mislead the public in the wake of the Gulf of Mexico oil spill. Judge Martin L.C. Feldman issued an injunction, saying that the moratorium will hurt drilling-rig operators and suppliers and that the government has not proved an outright ban is needed, rather than a more limited moratorium. He also said the Interior Department also misstated the opinion of the experts it consulted. Those experts from the National Academy of Engineering have said they don’t support the blanket ban.”

It took the NRA to put a bullet through the heart of campaign finance “reform”: “Rep. Mike Castle (Del.), one of just two Republican sponsors of a sweeping campaign finance bill, is so upset about late changes to the measure he is considering withdrawing his support and voting against it. ‘He’s absolutely opposed to the [NRA] exemption,’ Castle spokeswoman Kate Dickens told The Hill. ‘The exemptions are getting bigger and bigger. I don’t think they are even done yet.'”

It took Obama to put Russ Feingold’s seat at risk. “Incumbent Democrat Russ Feingold is still in a virtual dead heat with endorsed Republican challenger Ron Johnson in Wisconsin’s U.S. Senate race.”

Gen. Stanley McChrystal took the blame. But he isn’t the problem, says Jackson Diehl: “If anyone deserves blame for the latest airing of the administration’s internal feuds over Afghanistan, it is President Obama. For months Obama has tolerated deep divisions between his military and civilian aides over how to implement the counterinsurgency strategy he announced last December. The divide has made it practically impossible to fashion a coherent politico-military plan, led to frequent disputes over tactics and contributed to a sharp deterioration in the administration’s relations with Afghan President Hamid Karzai.”

It took Rolling Stone to make clear “just how badly Barack Obama’s ‘good war’ in Afghanistan is going.”

Obama took office in January 2009, yet voters think Hillary Clinton is more qualified to be president: “A new Rasmussen Reports national telephone survey shows that 57% of voters feel Clinton is qualified to be president, but 34% disagree and say she is not. As for President Obama, 51% say he is fit for the job. However, 44% say he is not qualified to be president, even though he has now served 17 months in the job.”

Gov. Bob McDonnell took a few hits early in his term but his approval stands at 63%, according to an internal poll.

The North Korean soccer team took a beating. (“After an embarrassing 7-0 drubbing by Portugal yesterday, will the North Korean soccer team have to face the wrath of Kim Jong Il?”) Maybe they should have hired Chinese players instead of Chinese fans.

Obama took it on the chin in court yesterday: “A federal judge in New Orleans halted President Obama’s deepwater drilling moratorium on Tuesday, saying the government never justified the ban and appeared to mislead the public in the wake of the Gulf of Mexico oil spill. Judge Martin L.C. Feldman issued an injunction, saying that the moratorium will hurt drilling-rig operators and suppliers and that the government has not proved an outright ban is needed, rather than a more limited moratorium. He also said the Interior Department also misstated the opinion of the experts it consulted. Those experts from the National Academy of Engineering have said they don’t support the blanket ban.”

It took the NRA to put a bullet through the heart of campaign finance “reform”: “Rep. Mike Castle (Del.), one of just two Republican sponsors of a sweeping campaign finance bill, is so upset about late changes to the measure he is considering withdrawing his support and voting against it. ‘He’s absolutely opposed to the [NRA] exemption,’ Castle spokeswoman Kate Dickens told The Hill. ‘The exemptions are getting bigger and bigger. I don’t think they are even done yet.'”

It took Obama to put Russ Feingold’s seat at risk. “Incumbent Democrat Russ Feingold is still in a virtual dead heat with endorsed Republican challenger Ron Johnson in Wisconsin’s U.S. Senate race.”

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Judicial Victory

Kudos to the D.C. Circuit Court of Appeals for overturning a lower court’s ruling according to which some detainees being held at the Bagram detention facility in Afghanistan were entitled to habeas corpus hearings. Federal Judge John Bates’s ruling had applied only to non-Afghanis, but it is not hard to imagine that if his ruling had been allowed to stand, it would have led to the extension of criminal-justice protections to all suspected terrorists held in American detention facilities overseas.

That would have made it extraordinarily hard to wage war on terrorism, or whatever it’s being called this week. It is simply impossible to apply domestic standards of civil liberties to a foreign battlefield — not if you want to be able to defeat ruthless organizations like al-Qaeda. The Obama administration deserves credit for recognizing that and for fighting Judge Bates’s misguided decision. Credit also goes, of course, to the three-judge panel of the D.C. court for unanimously overturning his ruling.

The fact that the appeals-court decision came from a conservative judge (David Sentelle) and two liberals (Harry Edwards and David Tatel) means that it is unlikely to be overturned by the full court or by the Supreme Court. That’s a victory for the good guys: the men and women of the military, intelligence, and law-enforcement services, who risk their lives to capture dangerous extremists and whose work would be for naught if the courts created a revolving door for detainees.

Kudos to the D.C. Circuit Court of Appeals for overturning a lower court’s ruling according to which some detainees being held at the Bagram detention facility in Afghanistan were entitled to habeas corpus hearings. Federal Judge John Bates’s ruling had applied only to non-Afghanis, but it is not hard to imagine that if his ruling had been allowed to stand, it would have led to the extension of criminal-justice protections to all suspected terrorists held in American detention facilities overseas.

That would have made it extraordinarily hard to wage war on terrorism, or whatever it’s being called this week. It is simply impossible to apply domestic standards of civil liberties to a foreign battlefield — not if you want to be able to defeat ruthless organizations like al-Qaeda. The Obama administration deserves credit for recognizing that and for fighting Judge Bates’s misguided decision. Credit also goes, of course, to the three-judge panel of the D.C. court for unanimously overturning his ruling.

The fact that the appeals-court decision came from a conservative judge (David Sentelle) and two liberals (Harry Edwards and David Tatel) means that it is unlikely to be overturned by the full court or by the Supreme Court. That’s a victory for the good guys: the men and women of the military, intelligence, and law-enforcement services, who risk their lives to capture dangerous extremists and whose work would be for naught if the courts created a revolving door for detainees.

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Flotsam and Jetsam

No (except from the Obami): “Does anyone think that Iran would be shipping arms to terrorists or building nuclear weapons if it was a democracy?” asks Elliott Abrams.

Predictable (when you nominate Tony Rezko’s banker): “It could be a rough few months ahead for Alexi Giannoulias. A federal judge ruled Wednesday that former Gov. Rod Blagojevich’s trial will proceed on June 3, as scheduled. Blagojevich’s team had been seeking a postponement until November, saying they didn’t have enough time to prepare. … But that’s not all Giannoulias will be dealing with. By late April, the Giannoulias family bank must come up with $85 million in order to comply with a federal agreement and keep operating. Giannoulias has already said that he expects the bank to fail.”

Pathetic: “Rounding up the votes for health care has also proven difficult. House Democratic Whip Jim Clyburn told McClatchy Newspapers that final consideration of the bill may not occur until Easter (April 4) or later. He is dealing with dozens of members who refuse to commit to a firm position in hopes their silence will force the leadership to pull the bill and move on to other issues. ‘Just say nothing,’ is how one Democratic staffer explained the strategy being taken by many members. ‘Maybe it will just go away, and we can avoid a tough vote this close to the election.'” Maybe it will just go away? Profiles in courage they aren’t.

Close: According to Byron York, “there are 209 votes against the bill at this moment, leaving opponents seven short of being able to defeat it. By the same count, there are 204 votes for the bill, leaving the Democratic leadership 12 short of being able to pass it. There are 18 votes thought to be undecided.” In other words, seven votes away from Obama’s Waterloo.

Cranky Big Labor bosses descend on the White House: “AFL-CIO President Richard Trumka is headed into a meeting with President Obama this afternoon after the White House and Congressional leaders have begun to discuss a higher-than-expected excise tax on some health care plans, in order to maintain their claim that health care legislation will reduce the deficit, a source involved in health care talks said.” Remember that the overwhelming support of core Democrats in midterm elections is what’s supposed to counteract the tsunami of opposition to ObamaCare. But what if that support is only lukewarm?

Obvious who you want making national-security calls. “Gen. Stanley A. McChrystal, the top commander of American and NATO troops in Afghanistan, contradicted the attorney general on Wednesday when he said that actually, the military still wants to capture Osama bin Laden alive. ‘I think that is something that is understood by everyone,’ he said. But perhaps not by Attorney General Eric H. Holder Jr., who on Tuesday told a House subcommittee that the chances of capturing Mr. bin Laden alive were ‘infinitesimal’ and that he would either be killed by the United States or killed by his own people.”

Common, among many observers these days: “Arab world says hopes in Obama are dwindling.”

Picky, picky: “From Maine to Hawaii, Americans send people to Washington, D.C., to be their representatives — to cast votes that represent the will of the people who elected them to do the job. But now, as the House of Representatives moves toward approving one of the most sweeping pieces of domestic legislation in U.S. history, critics are fuming that Speaker Nancy Pelosi plans to usher through a health care bill … without a vote.”

No (except from the Obami): “Does anyone think that Iran would be shipping arms to terrorists or building nuclear weapons if it was a democracy?” asks Elliott Abrams.

Predictable (when you nominate Tony Rezko’s banker): “It could be a rough few months ahead for Alexi Giannoulias. A federal judge ruled Wednesday that former Gov. Rod Blagojevich’s trial will proceed on June 3, as scheduled. Blagojevich’s team had been seeking a postponement until November, saying they didn’t have enough time to prepare. … But that’s not all Giannoulias will be dealing with. By late April, the Giannoulias family bank must come up with $85 million in order to comply with a federal agreement and keep operating. Giannoulias has already said that he expects the bank to fail.”

Pathetic: “Rounding up the votes for health care has also proven difficult. House Democratic Whip Jim Clyburn told McClatchy Newspapers that final consideration of the bill may not occur until Easter (April 4) or later. He is dealing with dozens of members who refuse to commit to a firm position in hopes their silence will force the leadership to pull the bill and move on to other issues. ‘Just say nothing,’ is how one Democratic staffer explained the strategy being taken by many members. ‘Maybe it will just go away, and we can avoid a tough vote this close to the election.'” Maybe it will just go away? Profiles in courage they aren’t.

Close: According to Byron York, “there are 209 votes against the bill at this moment, leaving opponents seven short of being able to defeat it. By the same count, there are 204 votes for the bill, leaving the Democratic leadership 12 short of being able to pass it. There are 18 votes thought to be undecided.” In other words, seven votes away from Obama’s Waterloo.

Cranky Big Labor bosses descend on the White House: “AFL-CIO President Richard Trumka is headed into a meeting with President Obama this afternoon after the White House and Congressional leaders have begun to discuss a higher-than-expected excise tax on some health care plans, in order to maintain their claim that health care legislation will reduce the deficit, a source involved in health care talks said.” Remember that the overwhelming support of core Democrats in midterm elections is what’s supposed to counteract the tsunami of opposition to ObamaCare. But what if that support is only lukewarm?

Obvious who you want making national-security calls. “Gen. Stanley A. McChrystal, the top commander of American and NATO troops in Afghanistan, contradicted the attorney general on Wednesday when he said that actually, the military still wants to capture Osama bin Laden alive. ‘I think that is something that is understood by everyone,’ he said. But perhaps not by Attorney General Eric H. Holder Jr., who on Tuesday told a House subcommittee that the chances of capturing Mr. bin Laden alive were ‘infinitesimal’ and that he would either be killed by the United States or killed by his own people.”

Common, among many observers these days: “Arab world says hopes in Obama are dwindling.”

Picky, picky: “From Maine to Hawaii, Americans send people to Washington, D.C., to be their representatives — to cast votes that represent the will of the people who elected them to do the job. But now, as the House of Representatives moves toward approving one of the most sweeping pieces of domestic legislation in U.S. history, critics are fuming that Speaker Nancy Pelosi plans to usher through a health care bill … without a vote.”

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Democrats Wake Up: “Not-Bush” Makes No Sense

It seems that Scott Brown’s election has had a liberating effect on Democratic senators. Perhaps it was Brown’s stirring call to spend money on defense and not on lawyers for terrorists. Or maybe it’s the growing awareness that Obama is not politically invincible, perhaps not even viable. It might be that they’re listening to the voters a little more carefully and are somewhat more attuned to polls that show little patience for Obama’s policy of approaching terrorism as ordinary crime-fighting.

What Democratic lawmakers were willing to mutely accept or spin on behalf of their president, they now are beginning to criticize. The Wall Street Journal editors observe:

In a letter to President Obama this week, Democrats Blanche Lincoln and Jim Webb, Republicans Lindsey Graham, John McCain and Susan Collins, and Independent Democrat Joe Lieberman wrote that “The attacks of 9/11 were acts of war, and those who planned and carried out those attacks are war criminals.”

The six Senators “strongly” urged the White House to reconsider its decision to prosecute Khalid Sheikh Mohammed and other terrorists in New York federal district court, which they argued is “without precedent in our nation’s history.”

And then there was the decision — made without reflection or input from intelligence officials — to treat the Christmas Day bomber as a common criminal defendant. This was initially the subject of criticism only from the Right. No more:

Earlier this week Mr. Lieberman and Mrs. Collins also wrote that the decision to treat Abdulmutallab as a common criminal “almost certainly prevented the military and the intelligence community from obtaining information that would have been critical to learning more about how our enemy operates and to preventing future attacks.”

There’s much to be done by Congress. As the editors note: “the Members can pass a law that strips the federal courts of jurisdiction over such unlawful enemy combatants as Abdulmutallab and KSM.” It gets a bit dicey, of course, because a federal court already has jurisdiction over Abdulmutallab. A smart lawyer experienced in these cases tells me: “What they have done by indicting him, however, is injected a huge wild card into the process — a federal judge. The judge could very easily get in the way. We’ve shifted people from enemy combatant status to criminal status before, but don’t recall doing it the other way.”

That’s not to say the obstacles can’t be overcome and the effort should not be made. They should. It’s important to have the public debate and see whether we have a broad-based consensus in this country that Obama’s knee-jerk rejection to Bush-era anti-terrorism policies was foolhardy, that a military tribunal is an appropriate forum for handling al-Qaeda-supported or -trained terrorists (without regard to where they are apprehended), and that high-value detainees should be interrogated minus the Miranda warnings by trained intelligence personnel with all the available data to elicit the maximum amount of intelligence information. There is nothing contrary to our “values” or our legal precedents in any of this. It’s the Obami and their Justice Department lefty lawyers who are out of step with both. In the wake of the Massachusetts epic upset, Democratic lawmakers are starting to come to their senses. That’s a very good thing for the country and might spare a few of them Martha Coakely’s fate.

It seems that Scott Brown’s election has had a liberating effect on Democratic senators. Perhaps it was Brown’s stirring call to spend money on defense and not on lawyers for terrorists. Or maybe it’s the growing awareness that Obama is not politically invincible, perhaps not even viable. It might be that they’re listening to the voters a little more carefully and are somewhat more attuned to polls that show little patience for Obama’s policy of approaching terrorism as ordinary crime-fighting.

What Democratic lawmakers were willing to mutely accept or spin on behalf of their president, they now are beginning to criticize. The Wall Street Journal editors observe:

In a letter to President Obama this week, Democrats Blanche Lincoln and Jim Webb, Republicans Lindsey Graham, John McCain and Susan Collins, and Independent Democrat Joe Lieberman wrote that “The attacks of 9/11 were acts of war, and those who planned and carried out those attacks are war criminals.”

The six Senators “strongly” urged the White House to reconsider its decision to prosecute Khalid Sheikh Mohammed and other terrorists in New York federal district court, which they argued is “without precedent in our nation’s history.”

And then there was the decision — made without reflection or input from intelligence officials — to treat the Christmas Day bomber as a common criminal defendant. This was initially the subject of criticism only from the Right. No more:

Earlier this week Mr. Lieberman and Mrs. Collins also wrote that the decision to treat Abdulmutallab as a common criminal “almost certainly prevented the military and the intelligence community from obtaining information that would have been critical to learning more about how our enemy operates and to preventing future attacks.”

There’s much to be done by Congress. As the editors note: “the Members can pass a law that strips the federal courts of jurisdiction over such unlawful enemy combatants as Abdulmutallab and KSM.” It gets a bit dicey, of course, because a federal court already has jurisdiction over Abdulmutallab. A smart lawyer experienced in these cases tells me: “What they have done by indicting him, however, is injected a huge wild card into the process — a federal judge. The judge could very easily get in the way. We’ve shifted people from enemy combatant status to criminal status before, but don’t recall doing it the other way.”

That’s not to say the obstacles can’t be overcome and the effort should not be made. They should. It’s important to have the public debate and see whether we have a broad-based consensus in this country that Obama’s knee-jerk rejection to Bush-era anti-terrorism policies was foolhardy, that a military tribunal is an appropriate forum for handling al-Qaeda-supported or -trained terrorists (without regard to where they are apprehended), and that high-value detainees should be interrogated minus the Miranda warnings by trained intelligence personnel with all the available data to elicit the maximum amount of intelligence information. There is nothing contrary to our “values” or our legal precedents in any of this. It’s the Obami and their Justice Department lefty lawyers who are out of step with both. In the wake of the Massachusetts epic upset, Democratic lawmakers are starting to come to their senses. That’s a very good thing for the country and might spare a few of them Martha Coakely’s fate.

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Back to the Future

A year into the Obama administration, a pattern has been established for public diplomacy with Israel versus the Palestinians. For Israel, the administration airs an ongoing series of petty complaints, most of which relate to housing construction in Obama-disapproved neighborhoods of Jerusalem. Such construction is hurting the peace process, intones Robert Gibbs; it prevents the recommencement of negotiations and is inconsistent with the Road Map, he laments.

Even defensive IDF operations, such as the one last week that eliminated three Fatah murderers, are now reason for public finger-wagging from the administration and requests for “clarification.” This was done on behalf of the Palestinian Authority. There indeed should have been a request for clarification, but it should have been directed at the PA, given the fact that the terrorists in question were on the payroll of the Palestinian Authority’s ruling party, Fatah.

By contrast, the administration has been indifferent to Palestinian terrorism and its official celebration by the PA. I can’t recall a single instance in which the president or a prominent member of his administration criticized the Palestinians for anything. Maybe it’s because the PA has been doing such a commendable job when it comes to incitement and terrorism? Not quite.

In just the past week, official PA television has hailed the first female Palestinian suicide bomber; PA president Mahmoud Abbas personally honored Dalal Mughrabi, a legend of Palestinian terrorism who participated in the coastal-road massacre, the deadliest act of terrorism in Israel’s history (37 innocents were murdered); and both Abbas and the supposedly moderate PA Prime Minister, Salaam Fayyad, celebrated the killers of Rabbi Meir Avshalom Hai, who was gunned down by members of Fatah while driving last week.

Meanwhile, Politico reported that a federal judge “complained that the Obama administration was ‘particularly unhelpful’ and the State Department ‘mealy-mouthed’ in refusing to provide official guidance” on a lawsuit that implicates the Palestinian Authority in the terror murder of an American citizen.

President Obama is repeating one of the worst mistakes of the Oslo period, when the official promotion of terrorism by the Palestinian Authority was studiously ignored on behalf of the larger “peace” mission. We know how successful that strategy was.

A year into the Obama administration, a pattern has been established for public diplomacy with Israel versus the Palestinians. For Israel, the administration airs an ongoing series of petty complaints, most of which relate to housing construction in Obama-disapproved neighborhoods of Jerusalem. Such construction is hurting the peace process, intones Robert Gibbs; it prevents the recommencement of negotiations and is inconsistent with the Road Map, he laments.

Even defensive IDF operations, such as the one last week that eliminated three Fatah murderers, are now reason for public finger-wagging from the administration and requests for “clarification.” This was done on behalf of the Palestinian Authority. There indeed should have been a request for clarification, but it should have been directed at the PA, given the fact that the terrorists in question were on the payroll of the Palestinian Authority’s ruling party, Fatah.

By contrast, the administration has been indifferent to Palestinian terrorism and its official celebration by the PA. I can’t recall a single instance in which the president or a prominent member of his administration criticized the Palestinians for anything. Maybe it’s because the PA has been doing such a commendable job when it comes to incitement and terrorism? Not quite.

In just the past week, official PA television has hailed the first female Palestinian suicide bomber; PA president Mahmoud Abbas personally honored Dalal Mughrabi, a legend of Palestinian terrorism who participated in the coastal-road massacre, the deadliest act of terrorism in Israel’s history (37 innocents were murdered); and both Abbas and the supposedly moderate PA Prime Minister, Salaam Fayyad, celebrated the killers of Rabbi Meir Avshalom Hai, who was gunned down by members of Fatah while driving last week.

Meanwhile, Politico reported that a federal judge “complained that the Obama administration was ‘particularly unhelpful’ and the State Department ‘mealy-mouthed’ in refusing to provide official guidance” on a lawsuit that implicates the Palestinian Authority in the terror murder of an American citizen.

President Obama is repeating one of the worst mistakes of the Oslo period, when the official promotion of terrorism by the Palestinian Authority was studiously ignored on behalf of the larger “peace” mission. We know how successful that strategy was.

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Nor Any Drop to Drink

The man-made water shortage plaguing California is usually called “man-made drought,” but this bumper-sticker description doesn’t capture the essence of the issue. It focuses us on the frightful word — drought, – evoking associations with natural, climate-induced drought. Unlike natural drought, however, man’s conscious choices about the use of water affect us 100 percent of the time — and are always subject to our discretion.

The man-made drought in California is uniquely emblematic of a shift in the political thinking of the Left toward prioritizing abstract, untested ideas about the environment over the survival of man. Few can be unaware today that in California’s San Joaquin Valley, some of the most productive agricultural land in North America has had its water turned off due to a federal judge’s ruling to protect the endangered Delta smelt. This decision has cost California’s $18 billion economy more than $1 billion in revenues and as many as 40,000 jobs. What is less widely known is that it was an FDR-era public-works project that modernized the irrigation of the San Joaquin Valley to begin with. Regularizing the delivery of water was intended to stabilize crop production, agricultural income, and jobs.

The policy of the U.S. government has thus effectively changed in the intervening decades, with the Endangered Species Act of 1973 increasingly invoked to shut down the artificial irrigation that had been made possible by earlier government projects. Significantly, however, the choice here is not between delivering water for irrigation and letting Mother Nature do as she will. The alternative use of the water is governed by human decision as well. In the case of the San Joaquin River recovery project, for example, water that had gone to agriculture since 1942 is being redirected to the San Joaquin riverbed, with the hope of restoring the river to its condition before the Friant Dam had been built.

The water being withheld out of concern for the Delta smelt, meanwhile, is sitting in reservoirs. It can’t be pumped because the pumps themselves are the menace to the two-inch smelt. Neither alternative in this case delivers a “natural” outcome; both are managed by man with deliberately chosen objectives. But the objective of protecting endangered species is particularly ill-defined and open-ended. As Congressman Devin Nunes, a Republican from the San Joaquin Valley, points out, no California fish put on the endangered-species list since 1974 has ever been removed from it. This casts doubt on the original purpose of the enterprise as well as its methodology.

Governor Schwarzenegger led an effort in 2009 to get California out of the water-infrastructure straitjacket imposed by lawsuits, but succeeded mainly in guaranteeing that state regulation of public water use be increasingly intrusive. Environmental groups are now shifting their efforts to the Santa Ana sucker, a small bait fish whose protection portends, at a minimum, irrigation losses for citrus growers east of Los Angeles. Man’s technology has advanced considerably since the ancient Sumerians irrigated their Mesopotamian fields 6,000 years ago, but his wisdom has a long way to go.

The man-made water shortage plaguing California is usually called “man-made drought,” but this bumper-sticker description doesn’t capture the essence of the issue. It focuses us on the frightful word — drought, – evoking associations with natural, climate-induced drought. Unlike natural drought, however, man’s conscious choices about the use of water affect us 100 percent of the time — and are always subject to our discretion.

The man-made drought in California is uniquely emblematic of a shift in the political thinking of the Left toward prioritizing abstract, untested ideas about the environment over the survival of man. Few can be unaware today that in California’s San Joaquin Valley, some of the most productive agricultural land in North America has had its water turned off due to a federal judge’s ruling to protect the endangered Delta smelt. This decision has cost California’s $18 billion economy more than $1 billion in revenues and as many as 40,000 jobs. What is less widely known is that it was an FDR-era public-works project that modernized the irrigation of the San Joaquin Valley to begin with. Regularizing the delivery of water was intended to stabilize crop production, agricultural income, and jobs.

The policy of the U.S. government has thus effectively changed in the intervening decades, with the Endangered Species Act of 1973 increasingly invoked to shut down the artificial irrigation that had been made possible by earlier government projects. Significantly, however, the choice here is not between delivering water for irrigation and letting Mother Nature do as she will. The alternative use of the water is governed by human decision as well. In the case of the San Joaquin River recovery project, for example, water that had gone to agriculture since 1942 is being redirected to the San Joaquin riverbed, with the hope of restoring the river to its condition before the Friant Dam had been built.

The water being withheld out of concern for the Delta smelt, meanwhile, is sitting in reservoirs. It can’t be pumped because the pumps themselves are the menace to the two-inch smelt. Neither alternative in this case delivers a “natural” outcome; both are managed by man with deliberately chosen objectives. But the objective of protecting endangered species is particularly ill-defined and open-ended. As Congressman Devin Nunes, a Republican from the San Joaquin Valley, points out, no California fish put on the endangered-species list since 1974 has ever been removed from it. This casts doubt on the original purpose of the enterprise as well as its methodology.

Governor Schwarzenegger led an effort in 2009 to get California out of the water-infrastructure straitjacket imposed by lawsuits, but succeeded mainly in guaranteeing that state regulation of public water use be increasingly intrusive. Environmental groups are now shifting their efforts to the Santa Ana sucker, a small bait fish whose protection portends, at a minimum, irrigation losses for citrus growers east of Los Angeles. Man’s technology has advanced considerably since the ancient Sumerians irrigated their Mesopotamian fields 6,000 years ago, but his wisdom has a long way to go.

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Why Are We Doing This?

Former Attorney General Michael Mukasey had tough words for the mind-numbingly misguided decision to move KSM to New York for trial. For starters, he thinks Obama has increased the danger of a terror incident in New York:

“The question is not whether they’re going to escape. The question is whether, not only that particular facility, but the city [at] large, will then become the focus for mischief in the form of murder by adherents of Khalid Sheikh Mohammed — whether this raises the odds that it will. I would suggest to you that it raises them very high.”

And as for the rationale for moving the 9/11 mastermind to a civilian court, Mukasey explains:

“The plan seems to be to abandon the view that we’re in a war,” Mukasey said. “I can’t see anything good coming out of this. I certainly can’t see anything good coming out of it very quickly. And it think it would have been far preferable to try these case[s] in the venue that Congress created for trying and where they were about to be tried.”

Mukasey, a former federal judge who oversaw cases relating to the 1993 World Trade Center attacks, warned that a civilian court trial for the Sept. 11 plotters could produce “a cornucopia of information for those still at large and a circus for those still in custody.”

Mukasey is no political partisan. What he is, however, is the most experienced and knowledgeable judge in America on trying terrorists in civilian court. Perhaps the Obami should have sought out and listened to his counsel. Instead, they’ve come to believe the claptrap of the ACLU and the leftist lawyers who now populate the Justice Department.

They are out to prove a point about our traditions or legal system, or something. But wait. We didn’t try German soldiers in federal court, nor combatants in any other war. And our legal system currently provides for military tribunals, where the U.S.S. Cole terrorists will be tried. So what exactly is the reason for all this? When he returns from bowing to the emperor of Japan, the president, we suppose, can opine on American traditions and historical precedent.

Former Attorney General Michael Mukasey had tough words for the mind-numbingly misguided decision to move KSM to New York for trial. For starters, he thinks Obama has increased the danger of a terror incident in New York:

“The question is not whether they’re going to escape. The question is whether, not only that particular facility, but the city [at] large, will then become the focus for mischief in the form of murder by adherents of Khalid Sheikh Mohammed — whether this raises the odds that it will. I would suggest to you that it raises them very high.”

And as for the rationale for moving the 9/11 mastermind to a civilian court, Mukasey explains:

“The plan seems to be to abandon the view that we’re in a war,” Mukasey said. “I can’t see anything good coming out of this. I certainly can’t see anything good coming out of it very quickly. And it think it would have been far preferable to try these case[s] in the venue that Congress created for trying and where they were about to be tried.”

Mukasey, a former federal judge who oversaw cases relating to the 1993 World Trade Center attacks, warned that a civilian court trial for the Sept. 11 plotters could produce “a cornucopia of information for those still at large and a circus for those still in custody.”

Mukasey is no political partisan. What he is, however, is the most experienced and knowledgeable judge in America on trying terrorists in civilian court. Perhaps the Obami should have sought out and listened to his counsel. Instead, they’ve come to believe the claptrap of the ACLU and the leftist lawyers who now populate the Justice Department.

They are out to prove a point about our traditions or legal system, or something. But wait. We didn’t try German soldiers in federal court, nor combatants in any other war. And our legal system currently provides for military tribunals, where the U.S.S. Cole terrorists will be tried. So what exactly is the reason for all this? When he returns from bowing to the emperor of Japan, the president, we suppose, can opine on American traditions and historical precedent.

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Your Tax Dollars at Work

On Friday, a federal judge set aside a $200 million judgment against the Palestinian Authority for its involvement in terrorism and ordered a new trial, with one stipulation:

[the judge] said that he would vacate the previous legal victory only if the Palestinian Authority put up a $192.7 million bond to ensure that it does not default again if it loses in court.

The case was brought by an American woman whose husband, Aharon Ellis, also an American citizen, was murdered by a Palestinian terrorist in 2002. Set aside for a moment the question of whether the actions of foreign entities such as the PA should be dealt with in U.S. courts, or as matters of U.S. foreign policy (I’m inclined toward the latter). Also put aside the Bush administration’s refusal to offer an opinion on the case — an opinion the presiding federal judge requested — due to fears “that lawsuits by victims of terrorism could harm the ‘financial and political viability’ of the Palestinian Authority.”

Forget all of that. And consider instead the fact that the United States has commenced the transfer of $150 million to the PA, and the Europeans have started sending their sizable portion of $473 million. This is exactly the kind of aid money that in years past the PA used to fund the terror groups whose attacks killed more than a thousand Israelis and over fifty Americans — including Aharon Ellis. According to an Israeli government report from June 2002 — a study based on captured PA documents — the PA was siphoning off some $5 to $10 million per month of foreign aid to fund the terror war on Israel.

This is one of the great unresolved travesties of the intifada — the horrible fact that the PA’s foreign benefactors to a great extent financially underwrote the terror war. Exactly how much aid money was used is not known. But it was a tremendous amount, and vital to the PA’s ability to prosecute its war, especially as the Palestinian economy was sent into a tailspin at the outset of the violence. As the PA stands on the precipice of once again being inundated with foreign aid, it’s worth wondering whether American and European taxpayers will again be put in the position of unwittingly funding terrorism. This time, ignorance of the way the PA does business cannot be an excuse.

On Friday, a federal judge set aside a $200 million judgment against the Palestinian Authority for its involvement in terrorism and ordered a new trial, with one stipulation:

[the judge] said that he would vacate the previous legal victory only if the Palestinian Authority put up a $192.7 million bond to ensure that it does not default again if it loses in court.

The case was brought by an American woman whose husband, Aharon Ellis, also an American citizen, was murdered by a Palestinian terrorist in 2002. Set aside for a moment the question of whether the actions of foreign entities such as the PA should be dealt with in U.S. courts, or as matters of U.S. foreign policy (I’m inclined toward the latter). Also put aside the Bush administration’s refusal to offer an opinion on the case — an opinion the presiding federal judge requested — due to fears “that lawsuits by victims of terrorism could harm the ‘financial and political viability’ of the Palestinian Authority.”

Forget all of that. And consider instead the fact that the United States has commenced the transfer of $150 million to the PA, and the Europeans have started sending their sizable portion of $473 million. This is exactly the kind of aid money that in years past the PA used to fund the terror groups whose attacks killed more than a thousand Israelis and over fifty Americans — including Aharon Ellis. According to an Israeli government report from June 2002 — a study based on captured PA documents — the PA was siphoning off some $5 to $10 million per month of foreign aid to fund the terror war on Israel.

This is one of the great unresolved travesties of the intifada — the horrible fact that the PA’s foreign benefactors to a great extent financially underwrote the terror war. Exactly how much aid money was used is not known. But it was a tremendous amount, and vital to the PA’s ability to prosecute its war, especially as the Palestinian economy was sent into a tailspin at the outset of the violence. As the PA stands on the precipice of once again being inundated with foreign aid, it’s worth wondering whether American and European taxpayers will again be put in the position of unwittingly funding terrorism. This time, ignorance of the way the PA does business cannot be an excuse.

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The News Media vs. the Innocent

Should Congress enact a “shield law” for journalists, exempting them from the obligation to disclose their confidential sources to grand juries investigating crimes and in court cases?

I have explored some of the implications of such a law for our national security. But there is a civil-court dimension to the problem as well. In The News Media vs. the Innocent, Steve Chapman gets to the essence of it in today’s Chicago Tribune.

Years ago, Ray Donovan, Ronald Reagan’s labor secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, “Which office do I go to to get my reputation back?”

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the Sept. 11, 2001, attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died.

In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the Army, a “person of interest.” Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, the New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have “destroyed his life” even though “there’s not a scintilla of evidence to suggest Dr. Hatfill had anything to do with” the anthrax attacks.

To read the rest of Chapman’s column, click here.

Should Congress enact a “shield law” for journalists, exempting them from the obligation to disclose their confidential sources to grand juries investigating crimes and in court cases?

I have explored some of the implications of such a law for our national security. But there is a civil-court dimension to the problem as well. In The News Media vs. the Innocent, Steve Chapman gets to the essence of it in today’s Chicago Tribune.

Years ago, Ray Donovan, Ronald Reagan’s labor secretary, was prosecuted for corruption, only to be acquitted. After the verdict, Donovan asked plaintively, “Which office do I go to to get my reputation back?”

Steven Hatfill knows where to go to get his reputation back. But upon arriving there, he finds the door blocked by someone who says her privileges are more important than his good name. That someone, of course, is a journalist. And, not surprisingly, she enjoys the broad support of other journalists, who have proved to be slow learners about the obligations they share with their fellow citizens.

Hatfill was a casualty of the anthrax scare of 2001. Just after the Sept. 11, 2001, attacks, someone mailed letters containing anthrax spores to several news organizations and a pair of U.S. senators. Some 22 people were infected, and five died.

In the aftermath, the Justice Department labeled Hatfill, who had done research on biological warfare for the Army, a “person of interest.” Secret information leaked to the press suggested he was the terrorist behind the attacks.

But the suspicions were wrong. Hatfill asserted his innocence, and he was never charged in the case. He sued the government, the New York Times and others for damages. Federal Judge Reggie Walton concluded that the claims have “destroyed his life” even though “there’s not a scintilla of evidence to suggest Dr. Hatfill had anything to do with” the anthrax attacks.

To read the rest of Chapman’s column, click here.

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Cool It, Aftergood

Steve Aftergood, the proprietor of the blog Secrecy News, knows more about secrecy in government than just about anyone else in the United States. He has also thought deeply about the issue. He and I disagree about a great many things, including his contention that the Bush administration has been excessively secretive about what he calls its “shameful” activities in the realm of national security.

But unlike some of his colleagues in the open-government lobby, Aftergood believes that “genuine national security secrets such as confidential sources and legally authorized intelligence methods should be protected from disclosure.”

In this, he evidently disagrees with the premise of Wikileaks.org, whose purpose is to develop “an uncensorable version of Wikipedia for untraceable mass document leaking and analysis” that will combine “the protection and anonymity of cutting-edge cryptographic technologies. . . . Anybody can post comments to it. No technical knowledge is required.”

Aftergood has pointed out that there is a cardinal distinction between unauthorized disclosure of classified information in a democracy and in an authoritarian state, a distinction that Wikileaks.org (the site has been temporarily shut down by order of a federal judge) aims to blur:

In a democratic system, people have the opportunity to define their own disclosure standards. If you violate those standards or encourage others to do so then you are in effect undermining the democratic process.

Jay Lim of Wikileaks.org is unhappy with this kind of criticism, and has written a message to Aftergood, which has been posted on Secrecy News.

Who’s side are you on here Stephen [sic]? It is time this constant harping stopped.

You know full well if you make n comments about us and m negative ones about us it’ll only be the negative comment that is reported — since everyone else has only positive things to say and by your position at FAS [Federation of American Scientists} there is an expectation of positive comment. You are not a child. As a result of your previous criticism it seem you are becoming the “go to” man for negative comments on Wikileaks. Over the last year, our most quoted critic has not been a right wing radio host, it has not been the Chinese ambassador, it has not been Pentagon bureaucrats, it has been you Stephen [sic]. You are the number one public enemy of this project. On top of everything else, your quote is the only critical entry on our Wikipedia page. Some friend of openness!

We are very disappointed in your lack of support and suggest you cool it. If you don’t, we will, with great reluctance, be forced to respond.

Jay Lim

“Cool it” Aftergood. In other words: the message from Wikileaks.org to Aftergood is that he should shut up or they will “be forced to respond.” This sounds awfully like a threat. Is it not ominous that this is how some advocates of openness in government want to conduct the discussion? What does this tell us about Wikileaks.org project and the people behind it?

Steve Aftergood, the proprietor of the blog Secrecy News, knows more about secrecy in government than just about anyone else in the United States. He has also thought deeply about the issue. He and I disagree about a great many things, including his contention that the Bush administration has been excessively secretive about what he calls its “shameful” activities in the realm of national security.

But unlike some of his colleagues in the open-government lobby, Aftergood believes that “genuine national security secrets such as confidential sources and legally authorized intelligence methods should be protected from disclosure.”

In this, he evidently disagrees with the premise of Wikileaks.org, whose purpose is to develop “an uncensorable version of Wikipedia for untraceable mass document leaking and analysis” that will combine “the protection and anonymity of cutting-edge cryptographic technologies. . . . Anybody can post comments to it. No technical knowledge is required.”

Aftergood has pointed out that there is a cardinal distinction between unauthorized disclosure of classified information in a democracy and in an authoritarian state, a distinction that Wikileaks.org (the site has been temporarily shut down by order of a federal judge) aims to blur:

In a democratic system, people have the opportunity to define their own disclosure standards. If you violate those standards or encourage others to do so then you are in effect undermining the democratic process.

Jay Lim of Wikileaks.org is unhappy with this kind of criticism, and has written a message to Aftergood, which has been posted on Secrecy News.

Who’s side are you on here Stephen [sic]? It is time this constant harping stopped.

You know full well if you make n comments about us and m negative ones about us it’ll only be the negative comment that is reported — since everyone else has only positive things to say and by your position at FAS [Federation of American Scientists} there is an expectation of positive comment. You are not a child. As a result of your previous criticism it seem you are becoming the “go to” man for negative comments on Wikileaks. Over the last year, our most quoted critic has not been a right wing radio host, it has not been the Chinese ambassador, it has not been Pentagon bureaucrats, it has been you Stephen [sic]. You are the number one public enemy of this project. On top of everything else, your quote is the only critical entry on our Wikipedia page. Some friend of openness!

We are very disappointed in your lack of support and suggest you cool it. If you don’t, we will, with great reluctance, be forced to respond.

Jay Lim

“Cool it” Aftergood. In other words: the message from Wikileaks.org to Aftergood is that he should shut up or they will “be forced to respond.” This sounds awfully like a threat. Is it not ominous that this is how some advocates of openness in government want to conduct the discussion? What does this tell us about Wikileaks.org project and the people behind it?

Read Less




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