Commentary Magazine


Topic: law

Justice Scalia’s Place in Judicial History

Fox News’ Chris Wallace conducted a fascinating interview with the longest-serving member of the Supreme Court, Antonin Scalia. Justice Scalia is on a media tour promoting a book he has co-authored (with Bryan Garner), Reading Law: The Interpretation of Legal Texts. It offers what the authors consider to be 57 valid canons of construction and dispels 13 false notions about legal interpretation.

The time has come, Justice Scalia told the Wall Street Journal, “to sum up the things I care most about with respect to the law.” The main controversy among judges, he said, “is not conservative vs. liberal. The main controversy is how to approach the application of legal text.”

The book’s preface and introduction beautifully frame the competing judicial philosophies in the modern era. On the one side are textualists like Scalia and Garner, who “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”

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Fox News’ Chris Wallace conducted a fascinating interview with the longest-serving member of the Supreme Court, Antonin Scalia. Justice Scalia is on a media tour promoting a book he has co-authored (with Bryan Garner), Reading Law: The Interpretation of Legal Texts. It offers what the authors consider to be 57 valid canons of construction and dispels 13 false notions about legal interpretation.

The time has come, Justice Scalia told the Wall Street Journal, “to sum up the things I care most about with respect to the law.” The main controversy among judges, he said, “is not conservative vs. liberal. The main controversy is how to approach the application of legal text.”

The book’s preface and introduction beautifully frame the competing judicial philosophies in the modern era. On the one side are textualists like Scalia and Garner, who “look for meaning in the governing text, ascribe to that text the meaning that it has borne from its inception, and reject judicial speculation about both the drafters’ extratextually derived purposes and the desirability of the fair reading’s anticipated consequences.”

On the other side is purposivism (where the author’s purpose, not text, is king), consequentialism (which argues that statues should be construed to produce desirable results regardless of what the text may say), and those who argue that a text has no independent meaning apart from authorial intention, which means interpretation is wholly subjective and left completely up to the interpreter.

What connects all these theories is the effort to, in the words of Scalia and Garner, “avoid the constraints of a controlling text.” The appeal of this approach is obvious: it allows judges to effectively write legislation rather than merely interpret it. They can encode into law their own political views. There is something tempting, even intoxicating, in “letting the intangible, protean spirit overtake the tangible, fixed words of authoritative texts.”

There are, however, several problems with this improvisational approach to judicial philosophy. For one thing, it is contrary to the views of the founders and our charter of government (see the United States Constitution, Article One/Section One, Article Three/Section One, as well as Federalist Number 78 for more).

In addition, as Reading Law points out, a philosophy of judicial hegemony and anti-textualism – of turning judges into “statesmen” and even quasi-kings — has led to the politicizing of judges, greater social rancor, less certainty in the law, and less faith in judicial institutions. Nor does it allow for any guiding principle for constitutional interpretation. The Constitution might be interpreted to align with the philosophy of James Madison — or the philosophy of Friedrich Nietzsche. Non-textualists simply make it up as they go along. Which is why the constitutional scholar Gary McDowell has said, “[I]t is not too much to say that the preferences for the rule of law over the rule of men depends upon the intellectual integrity of interpretation.”

Antonin Scalia has spent the last four decades of his life seeking to restore intellectual integrity to the interpretation of the law. Borrowing from an observation by Frank Easterbrook, no one since Justice Joseph Story has done it quite as well.

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The Law as a Moral Teacher

Earlier this week, I spoke to a group of young professionals, most of whom are conservative. And one of the conversations I had was with a person who was asking me about the link between culture and politics, arguing—as others I know have—that culture is “upstream,” and therefore in many respects more important, than politics.

This question reminded me of a passage from the late Alexander Bickel’s book The Morality of Consent, which deals in part with the competing traditions of Locke-Rousseau and Edmund Burke in Western thought and in American constitutionalism and political process:

The unexamined life, said Socrates, is not worth living. Nor is it bearable. To acknowledge no values at all is to deny a difference between ourselves and other particles that tumble in space. The irreducible value, though not the exclusive one, is the idea of law. Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.

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Earlier this week, I spoke to a group of young professionals, most of whom are conservative. And one of the conversations I had was with a person who was asking me about the link between culture and politics, arguing—as others I know have—that culture is “upstream,” and therefore in many respects more important, than politics.

This question reminded me of a passage from the late Alexander Bickel’s book The Morality of Consent, which deals in part with the competing traditions of Locke-Rousseau and Edmund Burke in Western thought and in American constitutionalism and political process:

The unexamined life, said Socrates, is not worth living. Nor is it bearable. To acknowledge no values at all is to deny a difference between ourselves and other particles that tumble in space. The irreducible value, though not the exclusive one, is the idea of law. Law is more than just another opinion; not because it embodies all right values, or because the values it does embody tend from time to time to reflect those of a majority or plurality, but because it is the value of values. Law is the principal institution through which a society can assert its values.

That statement seems to me to be quite right, and a nice rejoinder to those who say—with what must be barely a moment’s reflection—that we cannot “legislate morality.” In fact, we have legislated/legislate morality all the time—from slavery and segregation, to abortion and same-sex marriage, to welfare and environmental laws, to crime and drug use, to immigration policy and the global AIDS initiative, to much else. Jerry Sandusky was convicted of 45 counts of child abuse because we decided to legislate morality. It’s even said by some, mostly on the left, that the federal budget is a “moral document.” The law is, in fact, the most comprehensive embodiment of what a free society believes. It tells the world, and each other, who we are and what we believe.

This is not to downplay the significance of culture, which is enormously important to a society. But culture is, in some respects, subconscious and pre-social. The law, by contrast, is something that is actively thought out. That doesn’t mean it’s always well thought out, of course. But laws are a self-governing society’s conscious, willful expression of a set of beliefs and convictions. And among other reasons, that is why politics and government are, for all the complaints we (rightly) might have about them, terribly important and, at their best, something of a high calling. That’s worth bearing in mind even, and maybe especially, during a particularly ferocious presidential election.

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Hillary in SC

Most of the conversation about last night’s Democratic debate in South Carolina is about how strikingly personal and heated the exchanges were between Senators Clinton and Obama. It appears as if having to deal with the flood of false charges made by Bill Clinton is starting to agitate the young Senator from Illinois. Bill Clinton is an icon among many Democrats; he is also a promiscuous liar. Barack Obama is having to deal with both things.

But last night there were also two important moments on substantive issues. The first came when Joe Johns of CNN prefaced a question to Hillary Clinton this way: “Last week, U.S. military commanders on the ground in Iraq said that Baghdad is now 75 percent secured. There’s also important signs of political progress, including de-Baathification, which was basically long awaited. That, of course, was a big benchmark. Last week, you said the next president will, quote, ‘have a war to end in Iraq.’ In light of the new military and political progress on the ground there in Iraq, are you looking to end this war or win it?

Senator Clinton responded this way: “I’m looking to bring our troops home, starting within 60 days of my becoming president…”

This is about as clear as things can get. Hillary Clinton, when asked if she is looking to win the war, answered that she is looking to bring the troops home. She obviously believes victory is impossible and that her role as commander-in-chief would be to navigate an American loss in Iraq as quickly as possible. Given the security and political progress we’ve seen there in the last year and the consequences of losing in Iraq, her position is not only unwise; it is reckless. What is it that would drive Mrs. Clinton to delude herself into believing the United States has irredeemably lost a war in which we’re making remarkable and empirically demonstrable progress? And what additional evidence does the nation need that leading Democrats are invested in a narrative of defeat in Iraq – and they will stick with it regardless of the progress we make? This, in turn, gives rise to a third question: Will the American people elect a person for President who has an ideological stake in seeing America lose this war, which is itself part of an epic struggle against militant Islam?

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Most of the conversation about last night’s Democratic debate in South Carolina is about how strikingly personal and heated the exchanges were between Senators Clinton and Obama. It appears as if having to deal with the flood of false charges made by Bill Clinton is starting to agitate the young Senator from Illinois. Bill Clinton is an icon among many Democrats; he is also a promiscuous liar. Barack Obama is having to deal with both things.

But last night there were also two important moments on substantive issues. The first came when Joe Johns of CNN prefaced a question to Hillary Clinton this way: “Last week, U.S. military commanders on the ground in Iraq said that Baghdad is now 75 percent secured. There’s also important signs of political progress, including de-Baathification, which was basically long awaited. That, of course, was a big benchmark. Last week, you said the next president will, quote, ‘have a war to end in Iraq.’ In light of the new military and political progress on the ground there in Iraq, are you looking to end this war or win it?

Senator Clinton responded this way: “I’m looking to bring our troops home, starting within 60 days of my becoming president…”

This is about as clear as things can get. Hillary Clinton, when asked if she is looking to win the war, answered that she is looking to bring the troops home. She obviously believes victory is impossible and that her role as commander-in-chief would be to navigate an American loss in Iraq as quickly as possible. Given the security and political progress we’ve seen there in the last year and the consequences of losing in Iraq, her position is not only unwise; it is reckless. What is it that would drive Mrs. Clinton to delude herself into believing the United States has irredeemably lost a war in which we’re making remarkable and empirically demonstrable progress? And what additional evidence does the nation need that leading Democrats are invested in a narrative of defeat in Iraq – and they will stick with it regardless of the progress we make? This, in turn, gives rise to a third question: Will the American people elect a person for President who has an ideological stake in seeing America lose this war, which is itself part of an epic struggle against militant Islam?

Later in last night’s debate another revealing moment occurred. During a conversation about poverty, Senator Clinton said this:

Well, I respect John’s [Edwards] commitment to ending poverty. That’s why, 35 years ago, when I graduated from law school, I didn’t go to work for a law firm. I went to work for Marian Wright Edelman at the Children’s Defense Fund, because ending poverty– particularly ending poverty for children, has been the central core cause of everything that I’ve been doing for 35 years.

It’s worth recalling that Ms. Edelman, president of the Children’s Defense Fund, was a fierce critic of welfare reform and called the 1996 law an “outrage… that will hurt and impoverish millions of American children.” Her husband Peter Edelman, then Assistant Secretary for Planning and Evaluation at the Department of Health and Human Services, called the new law “awful” policy that would do “serious harm to American children.” He resigned from his post in protest. And Mrs. Clinton was hardly a champion, and at various points a critic, of welfare reform within the Clinton Administration.

Yet it turns out that the 1996 welfare reform bill was the most successful and dramatic social policy innovation in many decades. The welfare caseload has declined by more than 60 percent since its high-water mark in 1994. All but one state reduced its caseloads by at least one-third, and some states reduced them by more than 90 percent. Not only has the number of people on welfare plunged, but in the wake of welfare reform overall poverty, child poverty, black child poverty, and child hunger declined, while employment of single mothers increased.

Last night’s debate also focused on health care, so it is worth recalling that Mrs. Clinton, as first lady, attempted to engineer a government takeover of our health care system. Her idea was awful and she was politically routed. Her health care failure helped set the stage for Republicans taking control of the House of Representatives for the first time in forty years (Republicans picked up 52 House seats, as well as eight Senate seats, in the 1994 mid-term election).

Senator Clinton portrays herself as a person of extraordinary experience and ability, one who would be “the best president on day one.” Yet most of her experience was as first lady of Arkansas and then the United States. She fulfilled that role for 20 years – and to the degree that she was involved in driving specific policies, she was often wrong.

The GOP is in a bad way right now. But if Hillary Rodham Clinton is the Democratic nominee, a pathway for a GOP victory in November opens up. She wants to make the race about her stances on the issues and her record. So do Republicans.

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Huckabee’s Further Flip-Flopping

According to The Hill,

Republican presidential candidate Mike Huckabee has reversed his position on a federal ban aimed at workplace smoking and now believes the issue should be addressed by state and local governments. The about-face is apparent in a Huckabee campaign statement, sent to The Hill Tuesday evening in response to questions about the smoking ban proposal. It clashes with the stance Huckabee has taken during his race for the White House and with his record as governor of Arkansas, when he signed into law a measure prohibiting smoking in most indoor public places. At an August 2007 forum on cancer hosted by cyclist and activist Lance Armstrong and moderated by MSNBC host Chris Matthews, Huckabee said he supported a federal smoking ban. “If you are president in 2009 and Congress brings you a bill to outlaw smoking nationwide in public places, would you sign it?” Matthews asked. “I would, certainly would. In fact, I would, just like I did as governor of Arkansas, I think there should be no smoking in any indoor area where people have to work,” Huckabee responded, triggering applause from the crowd.

This comes in the aftermath of Huckabee’s head-snapping change on immigration. Only a few weeks after he lectured the other candidates about the virtues of providing student loans to children of illegal immigrants, he proudly accepted the endorsement of Jim Gilchrist, the founder of the Minuteman Project, a group fiercely critical of illegal immigrants. Huckabee then adapted an immigration plan that is very much at odds with his past position.

It also comes in the wake of Huckabee’s declaration that his conscience would not allow him to run advertisements critical of Mitt Romney in Iowa—a declaration, it’s worth pointing out, he made at a press conference in which he revealed to reporters the ad he refused to run, thereby ensuring it would get widespread attention. But Huckabee’s conscience seems to have gone on sabbatical the other day, when he responded to Fred Thompson’s substantive criticisms of his record this way: “Fred Thompson talks about putting America first, and yet he’s the one who is a registered foreign agent, lobbied for foreign countries, was in a law firm that did lobbying work for Libya. I certainly wouldn’t put my name on something like that.”

Such things might be dismissed as par for the political course, except that Huckabee, who once favored quarantining AIDS patients but now denies it, has made a virtue out of his supposed steadfastness. “You are not going to find moments on YouTube of me saying something different about the sanctity of life today than I said ten years ago, ten minutes ago, or fifty years ago,” Huckabee has said, referring to footage of Governor Romney declaring his support for abortion rights, a position he later changed. “You are not going to find something in YouTube where I said something completely different about gun ownership and the second amendment than I did last week, ten weeks ago, ten years go.”

Those words seem far less compelling than they once did. What we are finding is that Huckabee, who has long believed in religious conversions, appears to have a new-found affinity for political ones.

According to The Hill,

Republican presidential candidate Mike Huckabee has reversed his position on a federal ban aimed at workplace smoking and now believes the issue should be addressed by state and local governments. The about-face is apparent in a Huckabee campaign statement, sent to The Hill Tuesday evening in response to questions about the smoking ban proposal. It clashes with the stance Huckabee has taken during his race for the White House and with his record as governor of Arkansas, when he signed into law a measure prohibiting smoking in most indoor public places. At an August 2007 forum on cancer hosted by cyclist and activist Lance Armstrong and moderated by MSNBC host Chris Matthews, Huckabee said he supported a federal smoking ban. “If you are president in 2009 and Congress brings you a bill to outlaw smoking nationwide in public places, would you sign it?” Matthews asked. “I would, certainly would. In fact, I would, just like I did as governor of Arkansas, I think there should be no smoking in any indoor area where people have to work,” Huckabee responded, triggering applause from the crowd.

This comes in the aftermath of Huckabee’s head-snapping change on immigration. Only a few weeks after he lectured the other candidates about the virtues of providing student loans to children of illegal immigrants, he proudly accepted the endorsement of Jim Gilchrist, the founder of the Minuteman Project, a group fiercely critical of illegal immigrants. Huckabee then adapted an immigration plan that is very much at odds with his past position.

It also comes in the wake of Huckabee’s declaration that his conscience would not allow him to run advertisements critical of Mitt Romney in Iowa—a declaration, it’s worth pointing out, he made at a press conference in which he revealed to reporters the ad he refused to run, thereby ensuring it would get widespread attention. But Huckabee’s conscience seems to have gone on sabbatical the other day, when he responded to Fred Thompson’s substantive criticisms of his record this way: “Fred Thompson talks about putting America first, and yet he’s the one who is a registered foreign agent, lobbied for foreign countries, was in a law firm that did lobbying work for Libya. I certainly wouldn’t put my name on something like that.”

Such things might be dismissed as par for the political course, except that Huckabee, who once favored quarantining AIDS patients but now denies it, has made a virtue out of his supposed steadfastness. “You are not going to find moments on YouTube of me saying something different about the sanctity of life today than I said ten years ago, ten minutes ago, or fifty years ago,” Huckabee has said, referring to footage of Governor Romney declaring his support for abortion rights, a position he later changed. “You are not going to find something in YouTube where I said something completely different about gun ownership and the second amendment than I did last week, ten weeks ago, ten years go.”

Those words seem far less compelling than they once did. What we are finding is that Huckabee, who has long believed in religious conversions, appears to have a new-found affinity for political ones.

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Bookshelf

• I spent the past month staying in a string of New England country inns, most of which were of the sort that have libraries—of a sort. These moldering collections typically consist of Reader’s Digest Condensed Books (remember them?) and the best sellers of yesteryear, lightly sprinkled with the odd novelty. On occasion the novelties can be quite odd indeed. I passed a pleasant evening reading the memoirs of Lowell Thomas (remember him?) as I sat by the Atlantic Ocean a couple of weeks ago, and the very next night I stumbled across a copy of Karl Marx’s ‘Capital’ in Lithographs, a 1934 volume abridged and illustrated by Hugo Gellert, a long-forgotten artist whose earnest prose breathes the air of other spheres:

But out of the East rises a new Prometheus. And all the Gods in the World cannot chain him! The great disciple of Karl Marx, Lenin, led the Russian workers and peasants who created the Union of Socialist Soviet Republics. And these workers and peasants became the Masters of their own destiny. The Young Giant with his mighty hands builds the future of mankind and bright lights flare up in his wake . . . .

More often, though, I contented myself with mysteries and thrillers of varying vintages, the oldest of which was John le Carré’s The Spy Who Came In from the Cold, published in 1963, mere months before the assassination of John F. Kennedy robbed a generation of Americans of their dewy-eyed innocence, blah blah blah. Not that the pseudonymous author of The Spy Who Came In from the Cold had much innocence of which to be robbed, judging by the book’s denouement, which hinges on the complete and final disillusion of its grubby, self-pitying anti-hero:

What do you think spies are: priests, saints and martyrs? They’re a squalid procession of vain fools, traitors too, yes; pansies, sadists and drunkards, people who play cowboys and Indians to brighten their rotten lives.

As it happens, I’d never read a word of le Carré, and I was fascinated to find that he appears to be the man who introduced moral equivalence to modern espionage fiction. (Actually, Somerset Maugham beat him to the punch four decades earlier with Ashenden, but that book’s eponymous secret agent is not so much disillusioned as indifferent.) In The Spy Who Came In from the Cold, the Brits and Russians are interchangeably unscrupulous and cynical, and it is taken for granted that neither side deserves to prevail in the “long twilight struggle” proclaimed a scant two years earlier by the idealistic speechwriters of the soon-to-be-martyred architect of the New Frontier. It says something noteworthy about the emerging ethos of the Sixties that such a book was soon to become one of its emblematic literary successes.

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• I spent the past month staying in a string of New England country inns, most of which were of the sort that have libraries—of a sort. These moldering collections typically consist of Reader’s Digest Condensed Books (remember them?) and the best sellers of yesteryear, lightly sprinkled with the odd novelty. On occasion the novelties can be quite odd indeed. I passed a pleasant evening reading the memoirs of Lowell Thomas (remember him?) as I sat by the Atlantic Ocean a couple of weeks ago, and the very next night I stumbled across a copy of Karl Marx’s ‘Capital’ in Lithographs, a 1934 volume abridged and illustrated by Hugo Gellert, a long-forgotten artist whose earnest prose breathes the air of other spheres:

But out of the East rises a new Prometheus. And all the Gods in the World cannot chain him! The great disciple of Karl Marx, Lenin, led the Russian workers and peasants who created the Union of Socialist Soviet Republics. And these workers and peasants became the Masters of their own destiny. The Young Giant with his mighty hands builds the future of mankind and bright lights flare up in his wake . . . .

More often, though, I contented myself with mysteries and thrillers of varying vintages, the oldest of which was John le Carré’s The Spy Who Came In from the Cold, published in 1963, mere months before the assassination of John F. Kennedy robbed a generation of Americans of their dewy-eyed innocence, blah blah blah. Not that the pseudonymous author of The Spy Who Came In from the Cold had much innocence of which to be robbed, judging by the book’s denouement, which hinges on the complete and final disillusion of its grubby, self-pitying anti-hero:

What do you think spies are: priests, saints and martyrs? They’re a squalid procession of vain fools, traitors too, yes; pansies, sadists and drunkards, people who play cowboys and Indians to brighten their rotten lives.

As it happens, I’d never read a word of le Carré, and I was fascinated to find that he appears to be the man who introduced moral equivalence to modern espionage fiction. (Actually, Somerset Maugham beat him to the punch four decades earlier with Ashenden, but that book’s eponymous secret agent is not so much disillusioned as indifferent.) In The Spy Who Came In from the Cold, the Brits and Russians are interchangeably unscrupulous and cynical, and it is taken for granted that neither side deserves to prevail in the “long twilight struggle” proclaimed a scant two years earlier by the idealistic speechwriters of the soon-to-be-martyred architect of the New Frontier. It says something noteworthy about the emerging ethos of the Sixties that such a book was soon to become one of its emblematic literary successes.

• Repellent though the message of The Spy Who Came In from the Cold may be, it at least has the advantage of being exceedingly well written, albeit in a style indistinguishable from that of Graham Greene. In 1963 many best sellers still aspired to the condition of literature, and as late as 1987, Scott Turow, the author of Presumed Innocent, was clearly doing his best to produce a serious novel. Would that his editor had thus insisted on a complete rewrite, since Turow is a chronic overwriter who should be forced to spend a full year reading nothing but the complete works of Elmore Leonard. To be sure, he is also capable of writing with admirably clear-eyed straightforwardness about the mixed motives of lawyers and lawmen, and Presumed Innocent, which I found on the shelves of a Connecticut inn last week, has a richness of observation that helps to bring it within spitting distance of seriousness. Alas, it is disfigured at clockwork intervals by patches of the deepest purple:

Whatever wild, surging, libidinal rivers Carolyn undammed in me by her manner and appearance, there was something about the tender attention she showed this needy child that drew me over the brink, that gave my emotions a melting, yearning quality that I took to be far more significant than all my priapic heat.

No doubt this sentence was written with a straight face, but that doesn’t make it any easier to read with one.

• Unlike Scott Turow, John Grisham makes no pretense of being a serious writer. Indeed, it would be an act of charity to describe his lumpy prose as functional, for it bears much the same relationship to his elaborate plots that the flavor-free iceberg lettuce in a Midwestern salad bears to the Thousand Island dressing in which it is drenched. Since I find it all but impossible to read an ill-written book, I’ve hitherto made a point of steering clear of Grisham, but I reluctantly confess to having rather enjoyed The Firm, the 1991 novel in which he recounts the protracted travails and ultimate triumph of an Ivy League law-school grad who takes a way-the-hell-too-good-to-be-true job with a Memphis law firm that turns out to be a wholly owned subsidiary of Mafia, Inc.

Needless to say, The Firm is all plot and a yard wide, but at least it’s full of interesting facts. (Should the need ever arise, I now know how to launder large sums of money.) Even better, it’s a lawyer joke blown up to book length. Did you hear the one about the hot young gun fresh out of Harvard Law who landed a job with a firm that gave him a BMW and paid off his student loans . . . then tried to murder him? That’s my kind of moral equivalence.

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Our Unshakeable September 10th Mentality

Suppose a CIA officer stationed in Madrid identifies an al-Qaeda operative by the name, let’s say, of Jihad Jihadi, and observes him talking on a cellphone. Using tradecraft taught on the Farm—the agency training camp back in Virginia—the CIA officer skillfully manages to find out the cellphone’s number and then puts in a request to the National Security Agency, the U.S. government’s signals-intelligence arm, to scoop up all conversations from the phone and have them translated. Can it be lawfully done?

Even if it turns out that the number Mr. Jihadi is telephoning belongs to a man named, say, Osama Fatwa, who is a pupil in a flight school in Florida where he is studying how to fly 747′s but not to land them, and even though Mr. Jihadi is located on foreign soil, the NSA might nonetheless be compelled to decline the CIA request.

Michael McConnell, the Director of National Intelligence, explains in an op-ed in today’s Washington Post:

Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.

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Suppose a CIA officer stationed in Madrid identifies an al-Qaeda operative by the name, let’s say, of Jihad Jihadi, and observes him talking on a cellphone. Using tradecraft taught on the Farm—the agency training camp back in Virginia—the CIA officer skillfully manages to find out the cellphone’s number and then puts in a request to the National Security Agency, the U.S. government’s signals-intelligence arm, to scoop up all conversations from the phone and have them translated. Can it be lawfully done?

Even if it turns out that the number Mr. Jihadi is telephoning belongs to a man named, say, Osama Fatwa, who is a pupil in a flight school in Florida where he is studying how to fly 747′s but not to land them, and even though Mr. Jihadi is located on foreign soil, the NSA might nonetheless be compelled to decline the CIA request.

Michael McConnell, the Director of National Intelligence, explains in an op-ed in today’s Washington Post:

Many Americans would be surprised at just what the current law requires. To state the facts plainly: In a significant number of cases, our intelligence agencies must obtain a court order to monitor the communications of foreigners suspected of terrorist activity who are physically located in foreign countries.

In the aftermath of September 11, such restrictions—a consequence of the 1978 FISA Act—were rightly viewed as dangerously anachronistic, and President Bush set in motion his top-secret Terrorist Surveillance Program, under which the NSA was authorized to tap the conversations and intercept the emails of suspected terrorists without a warrant, if one party in the conversation was located abroad.
 
The New York Times revealed the existence of this program in December 2005, arguably compromising it, and the disclosure has been roiling our politics ever since. Whatever damage to our national security was inflicted by our newspaper of record, McConnell is urgently pushing for reform of FISA. “Technology and threats have changed,” he notes, “but the law remains essentially the same,” and our failure to keep pace “comes at an increasingly steep price.”
 
What exactly is that steep price? We made a downpayment with attacks on our embassies in Africa in 1998 and a major installment with the horrors of September 11, 2001. The fact is that tracking terrorist communications would be a problematic enterprise even if we were not tying our hands behind our backs. Insight into the tremendous difficulties involved comes from a recently declassified—and heavily redacted—top-secret NSA report looking back at the agency’s counterterrorism efforts in the 1970′s.
 
The report acknowledges that as terrorism emerged as a significant security concern in that era, with the rise of the Japanese Red Army, the Italian Red Brigades, and numerous Palestinian groups taking the lead, the NSA was “slow to take up the problem” and its “overall approach was rather haphazard.”

The explanation offered for the NSA’s lackluster response is that the signals-intelligence profile of a terrorist group was markedly different from the conventional military and diplomatic communications profile that the agency was accustomed to monitoring. “For the most part, terrorist groups lacked dedicated communications systems,” and as a result, the NSA was “confronted with the prospect of picking out the needles of terrorist transmissions in the haystack of [XXXXXX].” The nature of the “haystack” remains classified and the words defining it were excised from the report. But we do not have to guess in the dark. The report explains the essential difficulty: “the volume of traffic was so high, and the nature of terrorist communications so subtle, that finding anything transmitted by terrorists was problematic.”
 
Technology may have changed a great deal since the 1970’s, but the nature of terrorist communication has not. As in the 9/11 plot, terrorists cells are tiny and they do not use dedicated communications systems. Our intelligence agencies are still looking for a needle in haystack. Are we going to strew obstacles in their way beyond the formidable technological ones that are intrinsic to the problem? Or to put the question another way, are we in the grip of an unshakeable September 10th mentality and determined to set ourselves up for catastrophic failure once again?
 

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Hillary’s Time Tunnel, Episode 3

Can one go back into the past and alter the course of history? The Hillary Clinton for President Exploratory Committee has released its own remake of Hillary’s favorite show, The Time Tunnel. Starring Bill Clinton, it is now available here on YouTube.

In this latest episode—click here for episode one, and here for episode two—Bill Clinton enters the Time Tunnel and alters key happenings in Hillary’s life and career, long before she became a United States Senator and long before he became President.

The drama opens with Bill journeying across his own memories to the moment he met Hillary thirty-five years ago. We see her progress from law school to a career in public service—working for the Children’s Defense Fund and then the House Judiciary Committee. Foreshadowing events that would occur decades later, we then see Hillary following Bill to Arkansas as he became a devoted “public servant” while she taught in the local law school and set up a legal-aid clinic for poor people.

Suspense builds as history takes an astonishing turn in a direction starkly different from the way things happened the first time around. Thanks to the Time Tunnel, Hillary’s years working within the Rose law firm in Little Rock are erased. In an unexpected turn of events, her close friend and law partner Vincent Foster will never come to take his own life; her other close friend and law partner Webster Hubbell will never become a ranking official in the Justice Department and then a convicted felon. Hillary does not join them both in litigating against low-income consumers in a utility-rate case. Hubbell does not later recall, as he would in his memoirs, that “instead of defending poor people and righting wrongs, we found ourselves squarely on the side of corporate greed against the little people.” Read More

Can one go back into the past and alter the course of history? The Hillary Clinton for President Exploratory Committee has released its own remake of Hillary’s favorite show, The Time Tunnel. Starring Bill Clinton, it is now available here on YouTube.

In this latest episode—click here for episode one, and here for episode two—Bill Clinton enters the Time Tunnel and alters key happenings in Hillary’s life and career, long before she became a United States Senator and long before he became President.

The drama opens with Bill journeying across his own memories to the moment he met Hillary thirty-five years ago. We see her progress from law school to a career in public service—working for the Children’s Defense Fund and then the House Judiciary Committee. Foreshadowing events that would occur decades later, we then see Hillary following Bill to Arkansas as he became a devoted “public servant” while she taught in the local law school and set up a legal-aid clinic for poor people.

Suspense builds as history takes an astonishing turn in a direction starkly different from the way things happened the first time around. Thanks to the Time Tunnel, Hillary’s years working within the Rose law firm in Little Rock are erased. In an unexpected turn of events, her close friend and law partner Vincent Foster will never come to take his own life; her other close friend and law partner Webster Hubbell will never become a ranking official in the Justice Department and then a convicted felon. Hillary does not join them both in litigating against low-income consumers in a utility-rate case. Hubbell does not later recall, as he would in his memoirs, that “instead of defending poor people and righting wrongs, we found ourselves squarely on the side of corporate greed against the little people.”

The action then shifts to the climactic years at the White House. “Everyone knows,” says Bill, “that when I was in the White House and Hillary was the First Lady, she led our efforts to try to get health care for all Americans. And everyone knows we didn’t succeed.” As for what he himself was up to, we are given to understand that he was a faithful husband to his beloved First Lady. We are not shown the fateful moment in the White House alcove where Monica reveals her thong. In this version of the past, it would seem that Bill immediately said to the chubby intern, “thanks but no thanks”—and strutted off to the Oval Office to plot attacks on al Qaeda.

Alas, those who enter the Time Tunnel never ever succeed in altering the course of history; only some insignificant details can be changed. On September 11, 2001, 9/11 happened exactly on schedule. At 8:46 AM, a Boeing 767 aircraft crashed into the northern side of the North Tower of the World Trade Center. Hillary ran for a second term in the Senate and won. Now she is running for President. Will the Time Tunnel give her a chance? Or will Whitewater and/or the vast right-wing conspiracy reemerge? Despite the best efforts of her Exploratory Committee, the Time Tunnel can neither help nor halt her. To find out what will happen next in this thrilling show, be sure to stay tuned.

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Al Gore’s Hypothetical Candidacy

Al Gore’s Oscar was as predictable as the thunderous ovations he received at the Academy Awards last night. But it was also a reminder that there is nothing Democrats love more than a politician who isn’t actually running for President. Ever since liberals began mythologizing JFK, the party’s nominees invariably fail to measure up. It’s as if any politician who has the guts to enter the arena and dirty his hands immediately loses “purity,” and faces a cynical column from Joe Klein. As a result, come primary season, the Democratic chattering class always falls in love with a hypothetical candidate: Mario Cuomo, John F. Kennedy, Jr., Colin Powell, The West Wing’s Josiah Bartlett.
This is the real meaning behind last week’s Hillary-Obama feud. Hillary is the most successful fundraiser in the party’s history. Her name is known to 100 percent of voters—something that no Democrat has ever achieved this early in a presidential campaign. Yet no one should be surprised, now that she is in reach of becoming the party’s nominee, that the same political and financial backers who cheered her during her White House days are racing to tear her down.

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Al Gore’s Oscar was as predictable as the thunderous ovations he received at the Academy Awards last night. But it was also a reminder that there is nothing Democrats love more than a politician who isn’t actually running for President. Ever since liberals began mythologizing JFK, the party’s nominees invariably fail to measure up. It’s as if any politician who has the guts to enter the arena and dirty his hands immediately loses “purity,” and faces a cynical column from Joe Klein. As a result, come primary season, the Democratic chattering class always falls in love with a hypothetical candidate: Mario Cuomo, John F. Kennedy, Jr., Colin Powell, The West Wing’s Josiah Bartlett.
This is the real meaning behind last week’s Hillary-Obama feud. Hillary is the most successful fundraiser in the party’s history. Her name is known to 100 percent of voters—something that no Democrat has ever achieved this early in a presidential campaign. Yet no one should be surprised, now that she is in reach of becoming the party’s nominee, that the same political and financial backers who cheered her during her White House days are racing to tear her down.

But this will be a short-lived story. It is a safe bet that buyer’s remorse over Barack Obama will set in by this fall as E.J. Dionne, Arianna Huffington, and Jonathan Alter complain about his failings. (In fact, Joe Klein has already started.)

In the meantime, these early grenades tossed in Hillary’s direction are, I would argue, ultimately good for her candidacy. A fractious, heated primary, with Obama, Edwards, and possibly Gore lining up to her Left allows her to pursue a centrist triangulation strategy that makes her seem measured, reasonable, and non-ideological. Were Hillary to be the party’s runaway favorite this early on, we would be reading nothing but stories about her shady dealings with cattle futures and the Rose law firm. Instead, we will be reading more about how this really ought to be Al Gore’s time.

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