LFTC - Letter From The Capitol

LFTC - Index 5/1/09

4 posts - Law Day Special: (1) Tony Blair: The West Must Stand Firm--Wobble Watch; (2) Another Federal Court Goese to War; Team Obama Surrenders--9/11, 3/11 & N/11; (3) Will Racial Quotas Endure in Obama Land?--The Home Front; (4) True Confessions: Third Degree From the Supremes--The Home Front.  Today's Flash: Justice David Souter will retire.  Obama's pick may well replace a staunch liberal with an even more liberal pick, but little difference will likely be noticed.

LFTC - Tony Blair: The West Must Stand Firm

Former British PM Tony Blair recently gave an address on why and how the West must stand firm against threats to its existence.  Setting aside the usual silliness about the Palestinian mess, it is a well-framed defense of Blair's internationalist yet hard-headed idealism.  Blair notes that hard and soft power are complementary, not mutually exclusive, a point LFTC has taken pains to make.  He adds that defeat anywhere risks defeat everywhere--reflecting the interconnected nature of diverse & distant theaters of war.  Well worth a read on Law Day.

LFTC - Another Federal Court Goes to War; Team Obama Surrenders

Here is the Second Circuit's September ruling in ACLU v. Department of Defense (52 pages), in which the federal appeals court decided that the Freedom of Information Act (FOIA) requires release of 87 photos showing prisoner abuse by US forces in Iraq and Afghanistan.  (The Circuit Courts rank in the middle of the federal court system, above trial courts & below the Supreme Court; the 2nd Circuit is centered in New York.)  The Court's legal analysis says much about the propensity of judges to issue rulings in an ivory-tower jurisprudential chamber, to the disregard of national security considerations.  (I will present legal arguments with an eye to lay readers, avoiding arcane technical stuff.)

A reading of the opinion confirms that neither the appeals court's nor the trial court's ruling was casual or slapdash.  Both courts carefully weighed the administration's arguments and took pains to limit possible adverse impact of their decision.  But the appellate ruling (I did not review in full the trial court ruling, only the portions cited in the appellate ruling) reveals anew the perils of ivory-tower jurisprudence.  To be fair, the Court's ruling appears a reasonable interpretation of FOIA, but is nonetheless disturbing on two counts: (1) the close call went against national security considerations, in furtherance of disclosure of marginal value to the American public; (2) the federal courts have been creative in expanding detainee rights at the expense of national security, and one wishes the courts more often, when feeling creative, find an interpretation which puts national security first.

FOIA Interpretation.  The Court considered two basic issues: (1) privacy versus disclosure; (2) possible harm to American forces.  On the first, the court noted that redaction in each photograph prevented individual identification and thus served to protect privacy.  Further, the public interest in full disclosure outweighed other considerations.  In this, the Court assumed that the added glare would not be merely cumulative, supplying salacious detail but adding no real information of value to the public debate.

As to risk to American forces, the Court focused on legal language in FOIA Exemption 7(F), if release of law enforcement information could endanger "any individual" it might be withheld.  (The law enforcement angle is that the Army's Criminal Investigation Division had investigated the abuses, and punished two guilty parties.)  But the gravamen of the Court's ruling was in construing "any individual": the Court said that despite the plain language, "any" did not mean an unknown individual among a large population, but rather, members of a group small enough so that individuals could be identified.  Hence hundreds of thousands of American soldiers were too indeterminate a group, and risks to specific individuals too remote, to apply the exemption.

The Court did note a 2003 case involving data on location of critical infrastructure located near the Hoover Dam, where it withheld disclosure of information as to possible peril from Hoover Dam breaking (to the population), because terrorists might learn information that could facilitate an attack.  Thus, many thousands living near Hoover could be identified with sufficient specificity for the Court in that case to apply the "any individual" language; but notwithstanding a list of every soldier serving in Iraq & Afghanistan, the "any" language does not protect them from possible harm.  It surely is more likely--in reality, a certitude--that soldiers will be killed after inflammatory photos are released, than that a terrorist group could successfully breach a massive dam or hit facilities deep inside the United States.  The latter is quite possible, but the former is certain to come to pass.

Imperial Judicial Creativity.  The courts have, since 9/11, most of the time, come down in cases where there is play in legal interpretation, on the side that tilted against national security.  In three 2004 cases the Supreme Court began to constrain executive--and even legislative--authority to determine detention rules in wartime.  In Hamdan v. Rumsfeld (2006) the Supremes creatively applied Common Article 3 of the Geneva Conventions, by finding that the war in Afghanistan against al-Qaeda wa\\is a civil war, despite bombs bursting all over the globe, because the terrorist group is not a state, a pure non-sequitur that enabled the Court to extend Geneva protection to unlawful combatants.  In Boumediene v. Bush (2008) the 5-Justice majority that decided Hamdan went further, hold that Guantanamo detainees are entitled to habeas corpus--in doing so, the Court creatively defined sovereignty to apply to territory the US leases from a sovereign country.

Bottom Line. Once judges get involved, the norms of law trump those of winning wars.  The Supreme Court has been quite creative when it wants to be--finding a "penumbra" with "emanations" from four Amendments (4, 5, 7 & 9) to create a federal jurisprudential right to abortion that had not been found in the time between 1790 and 1973.  Anyone attending oral argument in December 2007 in the Boumediene case could see visible anger in the faces of several Justices who made the majority; they were clearly going to find a way to apply habeas corpus to the detainees in Gitmo, come Hell or high water.  The result: Detainees released will return to war, as some have already; soldiers will be killed when the photos are released.  Neither helps us fight the wars we are in.  We will have cleansed our soul and gotten a few verbal bouquets, and our enemies will rejoice and be newly energized.

What a WSJ editorial calls "The ACLU's Photo Shoot" will surely harm American interests, but, the WSJ editors write, the ACLU does not care:

This may do particular harm in Pakistan, which is under siege from terrorist violence and growing Taliban control in the north. U.S. officials have been trying to get Pakistan's military and its civilian government to resist the radicals more forcefully, but they say it is unpopular to be seen assisting U.S. policy. Another Abu Ghraib-type photo spread would make that cooperation even harder to obtain.

The ACLU may think that humiliating the U.S. and indicting the Bush Administration are more important than protecting American interests. American soldiers and diplomats may have a different view.

Bottom Line.  Today's ACLU would argue that it is the entity protecting the true national interests of America.  The Greatest Generation knew better.  In WW-II it was understood that "loose lips sink ships."  Some of that war's great secrets were held for a generation; some still are held.  The "full disclosure" mantra today shows anew: Not all change represents progress.  We have taken a Giant Step Backward.

Which leads me to conclude (as I did in my book): Lawyers and judges can lose a war; they cannot win one.

LFTC - Will Racial Quotas Endure in Obama Land?

George Will, who has long written cogently on racial quota issues, spotlights the recently argued case involving New Haven's use of reverse discrimination at the expense of white fire-fighter applicants.  He eviscerates the city's conduct, and wonders if, finally, quotas will meet a well-deserved end.

Maybe.  the Court will decide by the end of June, all cases argued this term.  Logically, election of an African-American President should consign racial spoils to the ash heap of history.  But Justice Kennedy, not logic, guides the Supremos these days.  we shall have to see out of which side of bed he gets the morning he decides.  Stay tuned.

LFTC - True Confessions: Third Degree From Five Supremes

On April 6, 2009 the Supreme Court decided Corley v. United States.  The vote was 5-4, with swing stalwart Anthony Kennedy getting out of the left side of his intellectual mess of a bed this time.  The case concerns lots of haggling over statutory interpretation of a statute enacted over 40 years ago, of interest primarily to lawyers and those with a taste for pedantry.  But there is a larger point here: the degree to which a willful liberal majority intrudes into a local armed robbery case and micro-manages it.  Put simply, federal courts regard a 6 hour delay as maximum permissible before a suspect is arraigned before a federal judge.  Here a suspect who had tried to run over a cop (a fact not disputed) when fleeing arrest for armed robbery began confessing after 9-1/2 hours in custody--of which 3-1/2 hours was at the hospital, where he received medical treatment, time the officers deducted.  The suspect asked for a break, once he began confessing, and was allowed a night's sleep before questioning resumed.

In all it was--including time for treatment and sleeping--a total of 29-1/2 hours before the suspect was arraigned in court.  Lower courts upheld the ruling.  But five Supremes overturned it.  Given reasonable dispute as to how the statute should be interpreted, this is judicial pettifogging, meddling and thus unhelpful.  Yes, the republic will endure, but it is not a better--let alone, safer--place for this ruling.

LFTC - 4/30/09

4 posts: (1) Energy Facts or Green Fantasies?--"It's the Earth Stupid!"; (2) Smart Grid: How Smart? How Vulnerable?--"It's the Earth Stupid!"; (3) School Non-Choice; Student Non-Teach: Obama Educracy's Meanest Hour--The Home Front; (4) Managing Nuclear Matters--9/11, 3/11 &N/11.   N.B., The swine flu is now a pandemic (officially defined as an epidemic that causes human deaths in two or more countries), and a fast-g news target.  Yesterday's LFTC includes my posting on the issue, as well as Obama's first 100 days.  Materials from the panel discussion at the University of Miami yesterday, in which I participated, will be posted when available.

LFTC: Energy Facts or Green Fantasies?

Former Secretary of Energy James Schlesinger and another energy maven debunk the notion that solar & wind power can provide the mainstay of our energy; they are too episodic and thus lack the reliability to sustain steady consumption of power.

Pundit Robert Samuelson calls "make believe" the economics cited in support of Greening America.  He writes, of economic models Greens rely upon:

The trouble is that these models embody wildly unrealistic assumptions: There are no business cycles; the economy is always at "full employment"; strong growth is assumed, based on past growth rates; the economy automatically accommodates major changes -- if fossil fuel prices rise (as they would under anti-global-warming laws), consumers quickly use less and new supplies of "clean energy" magically materialize....

In truth, models have a dismal record of predicting major economic upheavals or their consequences. They didn't anticipate the present economic crisis. They didn't predict the run-up in oil prices to almost $150 a barrel last year. In the 1970s, they didn't foresee runaway inflation. "General equilibrium" models can help evaluate different policy proposals by comparing them against a common baseline. But these models can't tell us how the economy will look in 10 or 20 years because so much is assumed or ignored -- growth rates; financial and geopolitical crises; major bottlenecks; crippling inflation or unemployment.

The selling of the green economy involves much economic make-believe. Environmentalists not only maximize the dangers of global warming -- from rising sea levels to advancing tropical diseases -- they also minimize the costs of dealing with it. Actually, no one involved in this debate really knows what the consequences or costs might be. All are inferred from models of uncertain reliability. Great schemes of economic and social engineering are proposed on shaky foundations of knowledge. Candor and common sense are in scarce supply.

Energy maven William Tucker fleshes out the same idea, focusing on the scale of energy power and cost, and on the fantasies of Silicon Valley replicating their Information Age triumphs.  This time, as Tucker explains, they are bucking Einstein.

Bottom Line.  Green are going Rosy Scenario one better, with Promises from Pangloss.  Bet on Einstein.

LFTC - Smart Grid: How Smart? How Vulnerable?

Smart?  A Feb. 19 Business Week smart grid story profiled some communities implementing early versions of the project that Team Obama wants for long-term electric grid upgrade.  WIRED Magazine did a March 2009 special report on Smart Grid technology--a two-page cover summary + seven embedded links to sub-topics.  A current Business Week story spotlights a major obstacle to smart grid roll-out: consumer activists who vehemently oppose any form of market pricing--such as peak-load pricing--regardless of efficiency gains to the provision of electric power.  They oppose not only mandated flexible pricing, but default in/opt-out offerings; only pure opt-in do they find acceptable.  As the most uneconomic customers will never opt-in, that is a killer amendment.

Vulnerable?  A March 23 Business Week story notes that hackers pose a potentially grave threat to electric grids--even to our existing, relatively dumb grid, let alone to a smarter, more networked and programmable grid; Chinese hackers already are suspected of causing two blackouts via cyber-sabotage.  WSJ pundit Bret Stephens calls Hiroshima 2.0 this Homeland Security turbine destruction simulation 2007 video (1:04).  Stephens writes:

Now imagine the attack being conducted against 60 large generators, simultaneously. Imagine, too, similar attacks against chemical plants, causing Bhopal-style toxic leaks. Imagine malicious software codes planted in U.S. weapons systems, which could lie undetected until triggered by a set of conditions similar to mobilization.

BS qoutes a top private sector cyberspace expert:

"If you shut down power for about three days," he says, "it causes very little damage. We can handle a long weekend. But if you shut down power for longer, all kinds of other things begin to happen. After about 10 days the curve levels off with about 72% of all economic activity shut down. You don't have air conditioning in the summer; you don't have heating in the winter. Thousands of people die."

This is akin to what an EMP (electromagnetic pulse) attack could do, as LFTC has written about several times (see Archives link on left side for September 15, 2008 detailed posting on EMP's vast damage potential), except it is far easier and cheaper to use the Internet for a cyberwar strike than to launch a missile carrying a nuke that detonates 300 miles above Dorothy's Kansas.  Islamic terrorists lack this cyberwar capability, but Russia & China have it.  To his credit, SecDef Gates is appointing the current head of the National Security Agency to head the Pentagon's new Cyber Command.  Not a moment too soon, writes Heritage Foundations scholar Peter Brookes, as more than 100 nations are developing cyberwar capabilities.

LFTC - School Non-Choice, Student Non-Teach: Obama Educracy's Meanest Hour

George Will details how Democrats are genuflecting to their union base at the expense of minority children in the District of Columbia in a typically tart and apposite column.  Read the entire piece, for not only its wit, but for just how low Democrats are sinking on this issue, aspirations of minority children for better schooling be damned.

A WSJ editorial tells the remarkable story of the private volunteer education group, Teach for America, and the appalling tale as to how unions and the education lobby stymie much of what the group can accomplish by inducing politicians to put low quotas on the number of applicants permitted to actually teach, using spurious claims of "qualifications" to protect unionized teachers no matter how mediocre:

If you've spent time on university campuses lately, you probably know the answer. Teach for America -- the privately funded program that sends college grads into America's poorest school districts for two years -- received 35,000 applications this year, up 42% from 2008. More than 11% of Ivy League seniors applied, including 35% of African-American seniors at Harvard. Teach for America has been gaining applicants since it was founded in 1990, but its popularity has exploded this year amid a tight job market.

So poor urban and rural school districts must be rejoicing, right? Hardly. Union and bureaucratic opposition is so strong that Teach for America is allotted a mere 3,800 teaching slots nationwide, or a little more than one in 10 of this year's applicants. Districts place a cap on the number of Teach for America teachers they will accept, typically between 10% and 30% of new hires. In the Washington area, that number is about 25% to 30%, but in Chicago, former home of Secretary of Education Arne Duncan, it is an embarrassing 10%.

Cheers for Teach for America CEO Wendy Kopp and her volunteer corps.  As for the unions, educrats and their political servants, what can be said is mostly, alas, unprintable.l

LFTC - Managing Nuclear Matters

Hudson Institute scholar and ex-Bush 43 State Dept. official Christopher Ford analyzes how best to secure nuclear material from dangerous actors.  Pundit David Frum explains how replacing America's current aging, increasingly potentially unreliable nuclear arsenal with a smaller, modernized force would preserve deterrence while reducing the risk of hostile diversion.  DF sees President 44 going astray in pursuit of the utopian goal of total nuclear elimination:

The Bush administration planned further reduction. Many nuclear experts believe that the United States could safely eliminate all of its existing inventory and replace it with just 300 modern, reliable warheads.
These new weapons, on a new generation of missiles, could overwhelmingly deter any potential nuclear aggressor, while all but eliminating the risk of nuclear accident. Unlike current weapons, they do not need frequent refreshment of their nuclear core. They present near-zero risk of a radioactive leak. And they cannot be detonated by accident: According to one expert, these next-generation weapons could be loaded into a cannon and fired at a wall at four times the speed of sound without risk of unintended explosion.

Sounds good. Yet in Prague, President Obama made himself the main obstacle to this 95% nuclear cut. Before replacing its existing nuclear arsenal, the United States would have to make absolutely sure that the new weapons worked as designed. That would require a live test of one of these devices. But the United States has not tested a nuclear weapon since 1992, and President Obama’s words in Prague seemed to rule out any such test in the future.

I think intuitively that 300 warheads in too low; 1,000 would provide for a better cushion.  But the idea is sound.  It will fall prey to nuclear utopianism in this administration.

LFTC - Index 4/29/09

6 posts: (1) Specter's Shift: Senatorial Sultan Specter--The Home Front; (2) Obama's First 100: My Panel at Univ. of Miami + Sun-Sentinel Op-Ed--The Home Front; (3 Obama's Novus Ordo Seclorum--The Home Front; (4) Flu Pandemic: Globalism Needs Localism--"It's the Earth Stupid!"; (5) Torturing With Two-Thirds Truth--The Home Front; (6) Scare Force One: Fear Lasts a Lifetime--9/11, 3/11 & N/11.

LFTC - Specter's Shift: Senatorial Sultan Specter

Pennsylvania GOP Senator Arlen Specter's decision to switch parties for the next election--clearly made to avoid a primary fight he would lose--teaches anew two lessons: (1) politicians who are not "conviction politicians"--a British phrase for Margaret Thatcher, applied also to Ronald Reagan--often care more about staying in office than advancing the goals of their chosen political party; (2) dissident members of a political party can exert vastly disproportionate leverage, versus their absolute number, when contending parties are balanced near some power-changing point.  That Specter lunched, deciding at the last moment, yesterday with the GOP rather than Democratic Senators attests to his having been the most powerful senator in the GOP--power derived from malleable loyalty; Democrats may find their new member equally able to manipulate them in pursuit of senatorial seigneur status.

In addition, in the particular context of Specter's switch, Republicans have added incentive to do everything to see that Al Franken is not seated, lest he give Democrats a filibuster-proof majority; conversely, Democrats have every incentive to seat Franken as soon as possible.

LFTC - Obama's First 100: My Panel at Univ. of Miami + Sun-Sentinel Op-Ed

On April 29 at 2:30 - 4 PM, I will appear on a panel at my alma mater, the University of Miami, assessing President Obama's first 100 days.  The forum will be held at the Learning Center, LC-110, located at 5150 Brunson Drive.  The Learning Center was opened a few years before I arrived as a freshman in September 1965, and I attended many classes there.  It is open to the public.  Coinciding with my panel appearance is my Obama 100-Days op-ed appearing in the Sun-Sentinel, covering the Miami - Fort Lauderdale area.

LFTC - Obama's Novus Ordo Seclorum

New Hampshire GOP Senator Judd Gregg, briefly nominee for Secretary of Obama-Commerce, says of changes underway, "Elections Have Consequences."  Indeed they do.  JG sees the health care placeholder as a massive stalking horse for destroying private sector health care:

Health-care reform is not just about the price tag. How it gets done matters too. And in Mr. Gregg's view, the Obama administration's goal is crystal-clear. "This is a single-payer government. . . . It doesn't want to say that publicly and it rejects it publicly. But the goal is to push that substantively. Because that's what they believe." In other words, what Mr. Obama bills as a "public option" for those who need health insurance but can't get it through their employer or in the private market would soon become the only option -- even for those happy with their current insurance.

Before you cry "conspiracy," Mr. Gregg argues that he has history on his side. The Democrats, he says, pulled the same public-private switcheroo before with student loans for college. Back in the late 1990s, "there was a huge debate in the committee . . . between myself and [Senator Ted] Kennedy over a private plan versus a public plan." In the end, they compromised -- the government would offer loans directly to students, but that program would have to compete with private-sector lenders. "And the agreement was very formal, and the record shows this very clearly. We agreed to level the playing field, put both plans on the playing field at an equal status and see who won. Well, private plans won. Big time."

Given the choice, most borrowers went to the private sector for their loans. But the Democrats who wanted to nationalize the student-loan market did not take defeat in the marketplace gracefully. "They didn't like that," Mr. Gregg says. "So ever since then they've tilted the playing field back and now they're going to wipe out the private plans in their budget."

When it comes to health insurance, Mr. Gregg expects more of the same. "That's the scenario that you're going to see if you have a public plan for insurance that competes with the private plans. That's the game plan" -- call it competition at first, but tighten the screws until the private insurers leave the market or get forced out. But with health-care spending representing 17% of GDP and climbing, the stakes are much, much larger. "Everyone in this country is affected by these policies."

Charles Krauthammer sees a "grand strategy" in Obama's programs.  44 will use the massive endless budget deficits to justify cutting Social Security for upper-income recipients, and will use Medicare to ration coverage for the elderly:

Obama's own budget projections show staggering budget deficits going out to 2019. If he knows his social agenda is going to drown us in debt, what's he up to?

He has an idea. But he dare not speak of it yet. He has only hinted. When asked in his March 24 news conference about the huge debt he's incurring, Obama spoke vaguely of "additional adjustments" that will be unfolding in future budgets.

Rarely have two more anodyne words carried such import. "Additional adjustments" equals major cuts in Social Security and Medicare/Medicaid.

Social Security is relatively easy. A bipartisan commission (like the 1983 Alan Greenspan commission) recommends some combination of means testing for richer people, increasing the retirement age and a technical change in the inflation measure (indexing benefits to prices instead of wages). The proposal is brought to Congress for a no-amendment up-or-down vote. Done.

The hard part is Medicare and Medicaid. In an aging population, how do you keep them from blowing up the budget? There is only one answer: rationing.

In effect, Obama will echo what maverick Democratic Colorado Governor Rihard Lamm bluntly said in 1984, about the terminally-ill elderly having a "duty to die" rather than burden their children with the huge cost of end-of-life sustaining care.  An NY Times report put it then:

Elderly people who are terminally ill have a ''duty to die and get out of the way'' instead of trying to prolong their lives by artificial means, Gov. Richard D. Lamm of Colorado said Tuesday. People who die without having life artificially extended are similar to ''leaves falling off ...

Economist Irwin Stelzer sees low pay & tiny cars in our future.  After what is in the paragraphs above, Stelzer is by comparison the bearer of glad tidings.

Bottom Line.  President Obama seeks whaat would be, in effect, a Novus Ordo Seclorum--a "new cycle for the centuries."

LFTC - Flu Pandemic: Globalism Needs Localism

As the risk of pandemic grows, NY Times columnist David Brooks nails the swine flu response key: "subsidiarity"--the principle of governance that pushes authority as far down the ladder as possible.  DB explains:

In the first place, the decentralized approach is much faster. Mexico responded unilaterally and aggressively to close schools and cancel events. The U.S. has responded with astonishing speed, considering there are still few illnesses and just one hospitalization.

The Times published a photo on Monday of the New York City health commissioner, Dr. Thomas R. Frieden, leading a crisis response meeting. The photo is the very image of a focused, local response. People are wearing polo shirts and casual wear — intensely concentrating on the concrete incidents in their own backyard.

If the response were coordinated by a global agency, those local officials would not be so empowered. Power would be wielded by officials from nations that are far away and emotionally aloof from ground zero. The institution would have to poll its members, negotiate internal differences and proceed, as all multinationals do, at the pace of the most recalcitrant stragglers.

Second, the decentralized approach is more credible. It is a fact of human nature that in times of crisis, people like to feel protected by one of their own. They will only trust people who share their historical experience, who understand their cultural assumptions about disease and the threat of outsiders and who have the legitimacy to make brutal choices. If some authority is going to restrict freedom, it should be somebody elected by the people, not a stranger.

Finally, the decentralized approach has coped reasonably well with uncertainty. It is clear from the response, so far, that there is an informal network of scientists who have met over the years and come to certain shared understandings about things like quarantining and rates of infection. It is also clear that there is a ton they don’t understand.

Washington Post columnist Anne Applebaum promotes the World Health Organization as lead responder to pandemics:

Just about anywhere in the world, in other words, I would have caught a whiff of swine flu panic. I would also have been told what the World Health Organization is doing about it. The Geneva-based WHO is the organization we all turn to at times like this, and rightly so: With more than 60 years' experience, and real achievements under its belt -- it led the successful campaign to eliminate smallpox in the 1970s -- the WHO may well be the only international organization that we cannot live without. When infectious diseases are spread rapidly across borders, WHO is expected to coordinate the scientific response of national public health officials, from France to Malaysia, as well as the global information campaign needed to explain it. No national government can do the same.

AA details how the Soviet-style kakistocracy (rule of the worst) in Geneva can derail the WHO's efforts, and then concludes:

I am not trying to bash the World Health Organization: My point, rather, is that this is an institution that could easily drift into irrelevance under the influence of the institutional culture of the United Nations in Geneva. Look how much time and money it wastes, even though its director general is competent, and imagine how much more time and money it would waste if she were not -- as some of her predecessors were not. Look how little effort is made to ensure that the agency stays focused on the one task -- infectious-disease control -- that only it can carry out. At the same time, look how much diplomatic energy is also wasted on institutions of far less importance. I am thinking here of last week's U.N. World Conference on Racism, notable largely for the fact that the president of Iran, a country that openly persecutes religious dissenters, used it to deliver an anti-Semitic diatribe.

The truth is that we tend to treat the really important U.N. institutions the way we treat the local water utility: Most of the time we don't care who runs it or how well -- but in an emergency, we expect a superhuman response. Now, just as we might really be on the brink of an emergency, it is worth reminding ourselves that if we want the WHO to be there when we need it, the organization must be constantly monitored and fully funded. U.N. member governments should make absolutely sure it stays focused: After all, only the WHO is equipped to carry out the international monitoring of the spread of a new infectious disease. Let's cross our fingers and hope that this time, it hasn't been distracted by something else.

Read both excellent columns in full.  Then read ex-Bush 43 official, now Hudson Institute scholar, Tevi Troy, on how steps taken under Bush 43 are helping Team Obama respond now to swine flu.  A WSJ editorial adds that the swine flu is no ordinary flu: like the 1918 Great Influenza it targets those in the prime of life, rather than infants and elderly.  (This oddity was explained by author John Barry in his classic book, The Great Influenza.  Certain pandemics, instead of overwhelming weak immune systems, use biological judo to trick strong immune systems into nuking healthy as well as sick cells.)

Bottom Line.  The lesson of the swine flu outbreak is that while meaningful global coordination is vital, without effective local response nothing will work.  President Bush learned the hard way in 2005 with Hurricane Katrina, where a stupefyingly catatonic governor--who waited until five days after the storm creamed New Orleans to declare an emergency--can destroy a President's credibility (yes, the federal response then was flawed, too, but far less so than that of the locals); in 2008, with Hurricane Gustav, a more competent federal response meshed with a governor who declared an emergency five days before the storm hit.  Many raw resources must be provided via a centralized governing authority, but unless supplies are prepositioned and competent local governance added, a crisis becomes disaster or, worse, catastrophe.

LFTC - Torturing With Two-Thirds Truth

Ex-Bush 43 speechwriter William McGurn explains why Congress refuses today to outlaw waterboarding:

Over the past few years, the Democrats have moved to ban waterboarding only when it was clear that such a bill would not pass -- or would be vetoed by George W. Bush. In September 2006, Sen. Edward Kennedy introduced an amendment to the Military Commissions Act that would have effectively defined waterboarding as a war crime, and it was defeated largely along partisan lines. In February 2008, when Democrats were in control of Congress, they made a big fuss about sending a bill that would have limited interrogation to techniques found in the Army field manual. They did so knowing President Bush would veto it, and that he had the votes to sustain that veto.

Today the Democrats have an even larger majority -- plus a president who would sign such legislation. So why the call for a truth commission instead? The answer is a nasty one: If Congress made waterboarding illegal now, they would be making clear that it was not illegal before.

Politics leads to this, he writes:

In other words, what the Beltway has planned is a circus -- where the decks are stacked, people are smeared, and conclusions are foregone. In such an environment, the only way to restore some sense of fairness is with fuller and more honest disclosure. Here are a few places to start.

McGurn recommends declassifying the memos ex-VP Cheney wants made public, plus any CIA notes on what Members of Congress were told, plus what techniques (if any) were rejected.  Sensitive data can be redacted.

Former terror prosecutor Andy McCarthy recounts how & why Ted Kennedy tried to get Congress to outlaw waterboarding, because he knew that it was not deemed illegal, given ambiguous statutes:

To enact laws against coercive interrogation today would demonstrate that Democratic witch-hunts based on the coercive interrogation of yesterday — against the intelligence officers who carried it out and the legal experts who arrived at the inconvenient truth that our law did not prohibit it — are grotesque. These investigations violate the constitutional bar against ex post facto prosecutions. They run afoul of the constitutionally derived “rule of lenity,” which bars prosecutions based on vague statutes that fail to provide adequate notice of what the law forbids. And they flout the doctrine of qualified immunity, which protects government officials from liability unless their conduct transgresses, as the Supreme Court has put it, “clearly established statutory or constitutional rights.”

What is going on beneath President Obama’s theatrics about “our values” (again, meaning his values) is a cynical farce. If our values were really at stake, if there were a consensus among us (i.e., Americans) that harsh interrogation tactics could never be justified, the Democrat-controlled Congress would outlaw them today and bask in the resulting adulation. But there is no such legislation, because the goal here has nothing to do with improving American policy.

As ever, McCarthy's piece merits a close read.

WSJ pundit Bret Stephens extracts nuggets from days past showing that Congress is practicing what he terms "the politics of liberal amnesia":

"Unfortunately, we are not living in times in which lawyers can say no to an operation just to play it safe," said Democrat Bob Graham, chairman of the Senate Select Committee on Intelligence during the 2002 confirmation hearing of Scott Muller to be the CIA's general counsel. "We need excellent, aggressive lawyers who give sound, accurate legal advice, not lawyers who say no to an otherwise legal opinion just because it is easier to put on the brakes,"

Stephens adds what George Tenet--who tallied 20 plots stopped by information gleaned from detainees, recounted as to what Hill leaders who were briefed said of the risk of  informing the entire Congress:

"Within weeks of the program's inception," writes Mr. Tenet, "senior congressional leaders were called to the White House and briefed on it. . . . At one point in 2004 there was even a discussion with the congressional leadership in the White House Situation Room with regard to whether new legislation should be introduced to amend the FISA statute, to put the program on a broader legal foundation. The view that day on the part of members of Congress was that this could not be done without jeopardizing the program."

Cheney is not, BTW, hypocritical to have opposed disclosure originally and seek wider disclosure now.  At first, he wanted everything kept under wraps, as wartime secrets.  Now we already know two-thirds of the puzzle: (1) what techniques of interrogation were used; (2) what information we learned.  Left is the third part of the puzzle: How we learned what we learned: Did normal or harsh techniques yield information (or did both) that saved thousands of American lives?

Bottom Line.  In terms of fighting the war effectively, I have written often on LFTC that wartime secrecy should have prevailed.  It did not.  Our enemies already know how we questioned them and what we learned.  Knowing if harsh stuff worked or did not is for war purposes moot, as these are now all banned.  And our enemies can now train to resist all permissible techniques, which are limited to those in the published Army Field Manual.  If harsh techniques yielded vital information, then critics will have to explain to the American people why thousands should have died to protect the "human dignity" of detainees whose comrades never reciprocate gentle treatment (or to give America a better reputation among those who rarely fight on our side--and if they fight against us, surely do so for other reasons than detainee treatment in virtually all conceivable cases).  And that, to be sure, is a risk critics prefer not to take.

Yet in the end the single certitude is that there will be no winners, only losers, bigger losers and even bigger losers.   I have seen this movie: Vietnam.  Divisive domestic debate is never clearly resolved, passions aroused never go away.  The 2004 & 2008 campaigns featured Presidential candidates, one from each side of the war--Kerry left, McCain right.  This latest debate will divide generations among pre-Boomers, Boomers and the post-Boomer generations that follow.  There will be no definitive resolution.  No miraculous cleansing that will heal wounds--rather, there will be serial cut and thrust that wounds heels.

When choosing a war as a model, we should pick a winning war.  World War II, not Vietnam, should be our domestic debate model.  Alas, we have, this time, chosen Vietnam.

LFTC - Scare Force One: Fear for a Lifetime

Besides annoyance as the rude officials from Washington running roughshod over local officials and contemptuous of the feelings of New Yorkers, we learn anew two unhappy things from Monday's unannounced government photo-op flyover of NYC and the public and official alarm it generated.  First, for those who live and work where terror has struck,the fear, like a victim's memory of a mugging, never truly goes away.  Second, such fear suspends rational thought: the presence of a jet fighter--which no terrorist can hijack--and the slow speed at which the 747 Air Force One doppelganger was flying--should have signaled that the flyover was friendly.  Never mind the waste of $328 grand, when Adobe Photoshop would have done nicely to create te desired images.

LFTC - Index 4/28/09

3 posts: (1) Banks: Lending? Selling Toxic Assets; Arms Twisted?--"It's the Earth Stupid!"; (2) Should Taxpayers Finance "Sharia Finance"?--9/11, 3/11 & N/11; (3) Wall Street's Finest Week & Worst Weekend--The Home Front.

LFTC - Banks: Lending? Selling Toxic Assets? Arms Twisted?

Today's WSJ informs us that the nation's two monster banks, Citi & BOA, likely will need another capital transfusions from Uncle Sam.

Economist Alan Reynolds casts a gimlet eye at stories about banks not lending.  Here is a Charlie Rose video clip (0:59) that suggests banks won't unload toxic assets because the market for them is too low.

Meanwhile, a WSJ report says that BOA CEO Ken Lewis has testified that he was forced by Bush 43 Treasury Secretary Hank Paulson to buy Merrill Lynch.  NY State Attorney-General Andrew Cuomo plans to investigate.  A WSJ editorial adds shocking detail on how Paulson & Fed Chairman Bernanke forced Lewis: not only to swallow Merrill even after BOA due diligence review found billions in undisclosed Merrill toxic assets, but to conceal same from shareholders voting on the deal!!!!

Meanwhile, former Merrill CEO John Thain disputes BOA's version of events involving the BOA - Merrill deal.

New York Times reporter Andrew Ross Sorkin explains the real purpose of the stress tests: ascertain how much capital banks may need to stay afloat.  AS also shows why private investors ear to tread in bank investments:

But what private investor is going to invest in any of the failing banks, knowing full well that the government may end up coming in later on and diluting the investor’s stake?

This may end feeling a little bit like a replay of the government’s intervention in Fannie Mae and Freddie Mac. You’ll recall that Henry M. Paulson Jr., the former Treasury secretary, received temporary powers from Congress to take over Fannie and Freddie. At the time, he said he didn’t plan to use those powers, just the threat of them.

“If you’ve got a bazooka, and people know you’ve got it, you may not have to take it out,” he said. But that authority to seize the two mortgage finance giants scared off any suitor that was considering making an investment.

Bottom Line.  Banks remain on the critical list, and private investors remain wary of having Uncle Sam as a partner, because, regardless of the amount of the government stake, Uncle will be your senior partner, and call the shots.

LFTC - Should Taxpayers Finance "Sharia-Finance"?

Washington Examiner editor Quinn Hillyer details the growing conflict between institutions who invest in countries funding terror, and those who push for "divest terror" policies barring such investments.  This has been a major initiative for Frank Gaffney's indefatigable Center for Security Policy, and is well worth supporting.

LFTC - Wall Street's Finest Week & Worst Weekend

Peggy Noonan's Good Friday column was one of her best: an account of how nobly Wall Street behaved immediately after 9/11, working together heroically to re-open the NYSE by Monday Sept. 17.  Near the end of a stirring column, PN writes:

And so the next morning, Monday, Sept. 17, 2001, the New York Stock Exchange opened with a podium full of firemen, cops, emergency medical workers and elected officials. A Marine Corps major sang "God Bless America." There was silence. Then a Port Authority police officer, one of the last guys to come out of the pile, began to ring the bell. The others on the podium joined in. And as the bell rang out in triumph, the traders on the floor began to cry and cheer and shout themselves hoarse. Catherine Kinney was below the podium. "Was there a cheer—oh my God, you wouldn't believe. I cried, I did. And prices start to go across the tape . . ."

America was open for business again.

It was a great moment in Wall Street history.

Wall Street's post-9/11 heroics came before The Last Bubble and The Final Fall.  As to its Worst Weekend, I have dredged up a Dec. 20, 2008 article on how & why Lehman Brothers went under and Wall Street then died.  It is a riveting read, showing that the unity that had often saved the Street in crises past was no longer in evidence.  Rather it was, as the French say, sauve qui peut.

Bottom Line.  The great business historian John Brooks authored Once in Golconda, a history of Wall Street's tumultuous 1920s and calamitous 1930s, and The Go-Go Years, chronicling the soaring 1960s rise of gunslinger mutual fund and conglomerate takeovers.  The real-life Golkonda was a city in India renowned for its riches of diamonds.  Wall Street's past excesses were wild enough.  What came to pass after 9/11 and the Street's heroics was excess beyond imagination.  Had other private and public institutions held firm, the damage might well have been contained.  But they, too failed.  And now Wall Street is dead and gone.

LFTC - Index 4/27/09

2 posts: (1) Soul Cleansing as Pakistan Totters, Iraq & Afghanistan Await Photos--The Home Front; (2) Torture: Then & Now--The Home Front; (3) War: Is Law or Survival Supreme?--The Home Front.

LFTC - Soul Cleansing as Pakistan Totters, Iraq & Afghanistan Await Photos

Pakistan Poised on the Precipice While We Argue Detentions Past.  Long War Journal blogger Bill Roggio shows how the Taliban advance is heading for Islamabad, Pakistan's capital, and even known nuclear weapon & research sites.  And we argue over whether we should prosecute or simply haul before some inquisitorial body (Congress or a "Truth" Commission) officials who directed interrogation practices 2002 - 2005.  Who is more serious about fighting this war?

Ex-CIA-er Michael Scheuer, a savage critic of Bush, lambastes Obama for trying to impose his idealism on the world (like Bush) and adds that harsh interrogation, in his view, will not be a major recruiting tool--rather, our alliances with Israel & despotic Arab regimes accomplishes that task.  He sees Obama dismantling 2/3 of the Bush troika of interrogation, rendition and Predator strikes and offers thus worst-case scenario:

In surprisingly good English, the captive quietly answers: 'Yes, all thanks to God, I do know when the mujaheddin will, with God's permission, detonate a nuclear weapon in the United States, and I also know how many and in which cities." Startled, the CIA interrogators quickly demand more detail. Smiling his trademark shy smile, the captive says nothing. Reporting the interrogation's results to the White House, the CIA director can only shrug when the president asks: "What can we do to make Osama bin Laden talk?"

Americans should keep this worst-case scenario in mind as they watch the tragicomic spectacle taking place in the wake of the publication of the Justice Department's interrogation memos.

A Pew Poll published April 23, 2009 on public attitudes towards torture is revealing.  Compared to three polls taken before dating back to November 2007, it shows that from a high of 31 percent who in February 2009 opposed torture under any circumstances, a low of 25 percent feel that way in the latest poll.  Thus, the public has shifted marginally away from the "never" view in the past 2 months.

Abu Ghraib II: Undoing Victory in Iraq, Afghanistan, to Cleanse Our Souls in Public?  The ACLU brought a Freedom of Information Act lawsuit to force release of 87 photos of prisoner abuse in Iraq & Afghanistan; the photos must be released by May 28.  Team Bush litigated it, citing the risk to American forces should the photos spark violence against our military (pace Scheuer, they will).  But a court last September sided with the ACLU & refused to reconsider last month; last week Team Obama decided not to fight on by appealing to the Supreme Court.  (I will provide, in a later post--on May 1, Law Day, fittingly--a detailed analysis of the Court's reasoning in the Sept. 2008 ruling.  It is too independently important to extend this post here, which focuses on purely practical consequences of releasing the photos.)

The certain result: photos serving to recruit new jihadists, taken completely out of context--namely, that we detained about 100,000 since 9/11, abused precious few, and released most.  Lawfare wins another round.  Warfare loses.  Is it really worth risking success in Iraq & Afghanistan, after over 6,000 dead Americans, just to make ourselves feel good about how noble we are in vindicating idealized rule of law during wartime?  The greatest Generation knew better.  As Winston Churchill put it succinctly: "In wartime truth is so precious that she should always be attended by a bodyguard of lies."

Two questions come to mind.  First, why weren't the photos burned post Abu Ghraib?  Probably for fear of our runaway courts.  Second, when soldiers who knew nothing of these abuses are blown up by a roadside IED set by an enraged Iraqi, who will explain to his (or her) family that such as the collateral consequence of legalist purity?

Flashbacks: Washington 1943, Japan 1946.  In 1943 Senator Harry Truman held hearings into procurement abuses at the War Department (which did not become the Defense Department until shortly after WW-II ended).  HST served the war effort by improving efficiency and honesty in wartime contracting.  Publicity spurred reform, and shamed the guilty without getting Americans killed overseas.  It is a fair inference that abused prisoners, upon release, will tell family, friends, and tribe of abuse.

But only on the Internet, with photos posed, can such tales be spread wider,  Inflammatory photos will make the problem far worse.  In two wars where some quarter of a million soldiers have served, with thousands of firefights, tens of thousands of detainees, unimaginable stress, it would be beyond human perfection to encounter zero abuses.  These are unrepresentative, a fact most Americans understand, but al-Jazeera, and millions of impressionable Islamic youth worldwide, will not be so understanding.  Far from making us stronger, revelation of the photos will seriously endanger our war efforts, ad potential huge cost to our national security.

Recall that in 1946 General MacArthur, Proconsul of Japan, nursed that country in seen years to nascent democracy, laying the foundation for the prosperous, pro-Western Japan of the past half-century.  To accomplish this he sanctioned cover-up of the Emperor's complicity in the war, and in Japanese atrocities.  MacArthur settled for getting the Emperor to tell the Japanese people that his royal personage was no longer Divine.  Would the world be--or Japan, for that matter--be a better place had the Emperor been tried as a war criminal, and the Japanese people aroused to resist further, and hating America forever?  By the "logic" of our President, a bunch of federal judges, the ACLU, they would answer in the affirmative.

Bottom Line.  In a series of reckless actions that stupefy in their potential to damage America's ability to fight its wars, the passions of President Obama's hard-core supporters will be satiated, and the appetites ofLawfare hawks will be whetted even as jihadists will be recruited.  Those pleased by disclosure will--with rare exceptions--decline to take up arms on our behalf in the war; those infuriated by it will, in greater numbers, surely take up arms against us.  The domestic divide over treatment of detainees will harden and deepen, probably to last as long as the forty-plus year divide that Vietnam produced.  The issue will have been joined irremediably, with no turning back.  America will earn not praise but enmity from exposure of inflammatory photos.  Cleansing one's soul in public seems an odd way to wage war under any circumstances.  That a war with potentialWMD attacks might be waged this way is literally beyond imagining, let alone full comprehension.

LFTC - Torture: Then & Now

Human Events publisher Jed Babbin, longtime Defense official & lawyer par excellence, details how the law governing torture has been interpreted to date.  (Here are the three applicable sections of the United States Code that implement the United Nations Convention against Torture--UNCAT).  As circumstance affects the applications of subjective standards, what is deemed legal in 2002 is not in 2009, after the law John McCain pushed through Congress in 2005.  As Judge Janine Pirro noted over the weekend, we prosecuted Japanese for waterboarding; but judges, who often have sidestepped precedent to give terrorists legal rights they had never had before, can do so here, too, albeit likely they will decline to do so.

Of waterboarding and law JB writes:

Under the 2002 version of the law – Title 18 US Code Section 2340 – waterboarding was legal because it didn’t cause prolonged psychological harm.  That is precisely the basis for the August 2, 2002 legal opinion signed by then-Assistant Attorney General Jay Bybee which found – on the basis of extensive psychological evidence on waterboarding obtained in military training in which almost 27,000 men were subjected to it – that waterboarding didn’t cause prolonged psychological harm. 

People in the media – including, unfortunately, some conservative commentators – have said repeatedly that the legal opinions are outrageous and abominable.  That statement betrays a profound ignorance of the law as it stood when the opinions were written.

They conflate the 2002 law with what it was amended to say in 2005. Sen. John McCain sponsored and Congress passed an amendment to the law to include “cruel, inhuman and degrading” treatment in the definition of torture.  Congress had previously limited the UNCAT ratification to exclude those terms because no one can define them.   But from then on, waterboarding – at least degrading and cruel – was against the law.  Not before.

About one hundred high-valued detainees have been captured since 9-11.  Of those, three have been waterboarded.  And the waterboarding stopped some time in mid-2003.

JB notes also that Members of Congress not only were briefed, but that if they remained silent while believing war crimes were being committed, they too could face prosecution.

Another Outrage Permutation.  The same folks pushing for going after Bush officials often are those demonizing Israel.  Bret Stephens compares the outrage Israel faces over kid-gloves tactics in Gaza, with the free pass Russia got over brutal suppression of revolt in Chechnya.  Essayist Noemie Emery chimes in with this pithy paragraph applying common (non-lawyer) sense perspective as to what is "torture":

Let's get at the truth too about the word "torture," which to different people, means different things. Some think "torture" means standing on the 98th floor of a burning skyscraper and realizing you have a choice between jumping and being incinerated. Some think torture is being crushed when a building implodes around you. Some think torture is not thinking you might drown for several minutes, but looking at burning buildings on television and knowing that people you love are inside them. They remember that being crushed, incinerated, or killed in a jump from the 98th story happened to almost 3,000 blameless Americans (as well as a number of foreigners), and that 125 Pentagon employees were killed at their desks, while many survivors suffered terrible burns. They think the choice between stopping this from happening again by slapping around or scaring the hell out of a cluster of brigands, or leaving the brigands alone and letting it happen again, is a no-brainer.

Columnist David Broder, who thinks that the 2002 - 2005 interrogation practices were "one of the darkest chapters in American history, counsels 44 to stop the juggernaut before it runs over everything.  And former CIA Director Porter Goss weighs in, stating that he was one of the senior Members of Congress briefed on what the CIA was doing, and is "slack-jawed" to see others repudiating what they had heard and supported back then:

I do not recall a single objection from my colleagues. They did not vote to stop authorizing CIA funding. And for those who now reveal filed "memorandums for the record" suggesting concern, real concern should have been expressed immediately -- to the committee chairs, the briefers, the House speaker or minority leader, the CIA director or the president's national security adviser -- and not quietly filed away in case the day came when the political winds shifted. And shifted they have.

Goss warns what the damage can ultimately prove to be:

I am speaking out now because I feel our government has crossed the red line between properly protecting our national security and trying to gain partisan political advantage. We can't have a secret intelligence service if we keep giving away all the secrets. Americans have to decide now.

Holder: Then & Now.  Attorney-General Eric Holder now intends to look into past Bush practices and decide if prosecution of anyone is warranted.  But the transcript of his Jan. 28, 2002 CNN interview with Paula Zahn contains this exchange:

ZAHN: The president will be meeting with his National Security team this morning to talk about, well, the apparent discord here. Give us a preview of what this discussion might entail. When you have Secretary of State Powell saying, "Let's abide by the Geneva Convention," and then folks on the other side, we are told, saying "Wait a minute. If we hold them to that kind of status, then all they'll be required to give us is their name, rank and file number."

HOLDER: Yes, it seems to me this is an argument that is really consequential. One of the things we clearly want to do with these prisoners is to have an ability to interrogate them and find out what their future plans might be, where other cells are located; under the Geneva Convention that you are really limited in the amount of information that you can elicit from people.

It seems to me that given the way in which they have conducted themselves, however, that they are not, in fact, people entitled to the protection of the Geneva Convention. They are not prisoners of war. If, for instance, Mohammed Atta had survived the attack on the World Trade Center, would we now be calling him a prisoner of war? I think not. Should Zacarias Moussaoui be called a prisoner of war? Again, I think not.

And yet, I understand what Secretary Powell is concerned about, and that is we're going to be fighting this war with people who are special forces, not people who are generally in uniform. And if unfortunately they somehow become detained, we would want them to be treated in an appropriate way consistent with the Geneva Convention.

We have, alas, learned via bitter experience--Korea, Vietnam (McCain included), War on Terror--that really bad guys do not reciprocate good treatment (less than 100 of some 100,000 terror detainees were, so far as we know, subjected to enhanced interrogation methods).  And bad treatment they mete out--far worse than any we mete out--is not calibrated to our actions; they happily torture away for fun as well as profit.  If ever we fight a Geneva-compliant adversary, only then will reciprocal good treatment be a real prospect.  In such event we will--and should--follow Geneva.  Even then, a WMD "ticking bomb" exception will be recognized by most.

Bottom Line.  The ball, in the event, Goss places in 44's court.  And that is indeed where it stays.  And his presidency could hang in the balance if he decides unwisely.  44 must stop this domestic implosion in the making, before it is too late.  He has very little time to do so.

LFTC - War: Is Law or Survival Supreme?

FDR, Like Honest Abe, Pushed the Constitution Aside to Win Wars.  Much has been made of the supremacy of law in fighting a war.  I noted in LFTC last week that Abraham Lincoln ignored a habeas corpus writ in arresting thousands of Copperheads and their leader, Cornelius Vallandigham, in 1863, to undercut their push for a compromise peace that would permanently have sundered the Union.  But begin with a little-known tale from World War II, told in A Man Called Intrepid (1976, at pages 235-243), the book by writer William Stevenson about Sir William Stephenson (no relation), who was the secret envoy between President Franklin Roosevelt and British Prime Minister Winston Churchill, and thus privy to many a dark secret.

In the Spring of 1941 a desperate drama unfolded, beginning with the May 21 breakout of the German battleship Bismarck, into the North Atlantic, leaving all shipping at risk.  But Churchill alerted FDR, warning that the super-ship and the heavy cruiser Prinz Eugen, both spotted off the coast of Norway, "could alter the whole course of the war."

The Brits sent a total of 8 battleships, 2 aircraft carriers, 11 cruisers, 21 destroyers, 6 submarines plus several squadrons of airplanes.  But they were to obtain the help of America, too--without which the ship might have made it safely to a port in occupied France and taken shelter under air cover.  On May 22 Bismarck engaged two UK battleships, damaging Prince of Wales (later sunk in December 1941 by Japanese air power, along with the battle cruiser Repulse) and sinking the best Brit ship afloat, the celebrated Hood, with a direct magazine hit; the ship sunk in 3 minutes with all but 3 of 1,400 hands (this 1:50 Bismarck v. Hood clip combines still images with the shocking seconds when the Hood was hit--it looks real but I wonder; in the event a close approximation at least).  FDR remarked, when told: "The Hood sunk?  It's the end of "Rule Britannia."  The ship slipped her pursuers and was not located for 30 hours.  When spotted by a Coast Guard cutter, nearing France, a PBY Catalina amphibious flying boat reconnaissance plane took off from Scotland with a mixed Brit-US Navy crew, and fixed Bismarck's position.  On May 27 the great ship was sunk.  Its sister ship, the Tirpitz, was sunk at its base in Norway in 1944, never making it to the Atlantic.  (Here is a Bismarck & Tirpitz webpage.)

Now for the law.  America was legally a neutral.  Members of the plane that fixed the ship's position, sealing its fate, were American, operating under direct authorization from the President of the United States.  That information was communicated to the British, enabling their ships to corner and sink the Bismarck.  Germany did not go to war, officially, with America until after Pearl Harbor, which was bombed December 7, 1941.  So 6-1/2 months before we were at war with Germany, we committed an act of war.  FDR understood the implications.

Consider this May 24 question FDR had asked adviser Robert Sherwood: "Suppose the Bismarck does show up in the Caribbean?  We have some submarines down there.  Suppose we order them to attack her and attempt to sink her?  Do you think the people would demand to have me impeached?"  The answer is unrecorded.

Lawyers saved Mullah Omar!  In late 2001 a Predator had Mullah Omar in its sights.  By the time lawyers finished debating what was permissible, the target was gone.  The terrorists have only three ways they can beat us: our technology, our media and our laws.

Lawfare Escalation.  Let us now hear from Ted Olson, expert from awful experience as to what is unfolding now:

And that's before we get to potential prosecutions, separate investigations by various congressional committees, lawsuits in civil courts, bar association probes, and possible legal tribunals around the world.

And then -- well, why stop at the memos? "If it's prosecutable because we waterboarded somebody or deprived him of sleep, what about sending a drone to blow him up without a trial or a hearing?" Olson asked. "What if the person we blew up was carrying a three-year old child? We know things like that have happened. We know innocent people have been killed. We know this administration has done it. Are they going to be prosecuted for that?"

And finally, when everyone is finished investigating, what's to stop the next president from holding Obama administration officials "accountable" for some "controversial" action?

ANSWER (ALL TOGETHER NOW, 1,2 3....): NOTHING.

David Frum sees what will come, unless there is a drastic reversal by 44:

Revenge will be exacted for revenge, the costs of government service will escalate, mobilizing cross-party support will become practically impossible for any important action and the political life of the American republic will take another step toward the play-for-keeps destructiveness of the last days of the Roman republic.

It's a nightmare future. Let's banish the possibility now. President Obama needs to do three things: - If he wants an investigation, he should follow the precedent of the 9/11 commission, whose mission was confined to fact-finding only. - He should declare unambiguously now: There will be no prosecutions, period. - He must serve notice on the European allies: Attempts in Europe to engage in local proceedings against Americans for official acts during their service in government will be regarded as unfriendly acts for which costs will be exacted across the full spectrum of government-to-government relations.

Obama's promises of unity and change could have meant -- could still mean -- a departure away from the tit-for-tat use of law as a weapon of politics of the previous generation. If however it turns out to mean an escalation of the use of law, be warned: This is one escalation that will not soon be de-escalated.

Proof of what will happen comes from an article by Stephen Hayes, ex-VP Dick Cheney's biographer, quoting Cheney himself as to why he is speaking out in public now:

I went through the Iran-contra hearings and watched the way administration officials ran for cover and left the little guys out to dry. And I was bound and determined that wasn't going to happen this time. I think to George Tenet's credit--I don't agree with George on a lot of stuff--but I think he was of the same view and that's why we had all of these requests coming through for policy guidance and for legal opinions. And this time around I'll do my damndest to defend anybody out there--be they in the agency carrying out the orders or the lawyers who wrote the opinions. I don't know whether anybody else will, but I sure as hell will.

The Framers Speak: Against Purist Constitutionalism.  Like Lincoln & FDR, the Framers understood the limits of Constitutions:  Writing in Federalist 41 James Madison--whose leading role at the 1787 Philadelphia Grand Convention earned him the sobriquet "Father of the Constitution--stated:

The means of security can only be regulated by the means and the danger of attack. They will, in fact, be ever determined by these rules, and by no others. It is in vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than in vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions.

Writing in Federalist 36 Alexander Hamilton--whose vision of a commercial republic the US today most closely resembles, out of the visions of all the Framers--stated:

And as I know nothing to exempt this portion of the globe from the common calamities that have befallen other parts of it, I acknowledge my aversion to every project that is calculated to disarm the government of a single weapon, which in any possible contingency might be usefully employed for the general defense and security.

Bottom Line.  Thomas Jefferson famously called the cast of the 1787 Grand Constitutional Convention "an assembly of demi-gods."  But they were not Gods.  And our Constitution is not a Quranic literal recitation of the Word of God.  It is not a Bible.  It is a broad charter of government that, as Madison noted, cannot--should not--cover every exigent circumstance.  Presidents past have recognized and acted on this.  In the face of WMD threats, a President who does not put survival first under certain circumstances--which cannot in the very nature of things be defined with precision in advance--will have sacrificed life and liberty in the name of sacralizing the Constitution.  Survival of necessity comes first, because otherwise there is no society left within which law can reign.