LFTC - Letter From The Capitol

LFTC - Index 7/17/09

6 posts: (1) Health Care: Dr. Coburn's Congress Rx--The Home Front; (2) CBO v. Bidenomics: No Way Out--The Home Front; (3) Kneecapping FedEx--The Home Front; (4) North Korea: Let the Succession Games Begin--Us v. Them; (5) Intelligence: Congress Crashes--9/11, 3/11 & N/11; (6) F-22 Math--The Home Front.

LFTC - Health Care: Dr. Coburn's Congress Rx

WSJ politics ace John Fund reports on a Senate Health Committee vote (12-11) in favor of adding a proposal by GOP Senator Tom Coburn (OK), a physician, to Team Obama's health care bill: require members of Congress, who now enjoy the high-choice cafeteria Federal Employees' Health Benefits Plan (FEHBP), to switch to any "public option" included in the HC bill.  Coburn reasons that ObamaCare will force out private insurers, and thus Congress should have to live with what it foists off on voters.  Several Democrats supported the measure, but watch for it to be stripped out of any final bill--probably in the middle of the night.

HC ace Betsy McCaughey details how ObamaCare will force those with private insurance into public care--contrary to 44's campaign promise to preserve HC choice:

Two main bills are being rushed through Congress with the goal of combining them into a finished product by August. Under either, a new government bureaucracy will select health plans that it considers in your best interest, and you will have to enroll in one of these "qualified plans." If you now get your plan through work, your employer has a five-year "grace period" to switch you into a qualified plan. If you buy your own insurance, you'll have less time.

And as soon as anything changes in your contract -- such as a change in copays or deductibles, which many insurers change every year -- you'll have to move into a qualified plan instead (House bill, p. 16-17).

When you file your taxes, if you can't prove to the IRS that you are in a qualified plan, you'll be fined thousands of dollars -- as much as the average cost of a health plan for your family size -- and then automatically enrolled in a randomly selected plan (House bill, p. 167-168).

She adds this nugget about US HC quality: "[T]he World Health Organization ranked the United States No. 1 out of 191 countries for being responsive to patients' needs, including providing timely treatments and a choice of doctors."

The WSJ editors call Congressional Democrats reckless for trying to ram through massive, costly HC legislation, whose consequences would include pushing US marginal tax rates (combining federal + state) to 52.4 percent; among the 30 OECD countries only Denmark, Sweden & Belgium would still have higher marginal tax rates.  And this is true even using figure fakery from Team Obama, which understate HC financing needs by an estimated $300B. WSJ pundit Kimberely Strassel spotlights the 2-prong "Greassley Test" that Iowa GOP Senator Chuck Grassley set as the benchmark for his signing on to ObamaCare: preserve private choice and no deficit increase.  The current Senate bill is flunking that test, and Grassley is standing firm (for now, at least).

Coburn's law embodies a safeguard James Madison noted in Federalist 57:

I will add, as a fifth circumstance in the situation of the House of Representatives, restraining them from oppressive measures, that they can make no law which will not have its full operation on themselves and their friends, as well as on the great mass of the society. This has always been deemed one of the strongest bonds by which human policy can connect the rulers and the people together. It creates between them that communion of interests and sympathy of sentiments, of which few governments have furnished examples; but without which every government degenerates into tyranny. If it be asked, what is to restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of the society? I answer: the genius of the whole system; the nature of just and constitutional laws; and above all, the vigilant and manly spirit which actuates the people of America -- a spirit which nourishes freedom, and in return is nourished by it.  (Emphasis added.)

Winston Churchill said of socialism:

"Socialism is a philosophy of failure, the creed of ignorance, and the gospel of envy.  Its inherent virtue is the equal sharing of misery."

Congress knows better.  Under the FEHBP, while health care for the rest of America goes socialist, Congress, pace Federalist 57, stays capitalist.

Bottom Line.  Sitting in Congress today is not James Madison, but the likes of Nancy Pelosi and Barney Frank.  Federalist 57 to them means no more than do the other 84 Federalist Papers.

LFTC - CBO v. Bidenomics: No Way Out

Begin with the July 16, 2009 long-term budget outlook by the Congressional Budget Office.  It warns on p. 15 that spiraling public debt will drive interest rates up and lead to "a vicious cycle in which the government had to issue ever-larger amounts of debt in order to pay ever-higher interest charges."  There is even worse news on p. 18 for Team Obama:

Moreover, the fundamental cause of the rapidly rising debt in CBO's long-term scenarios is not economic fluctuations resulting from business cycles.  Instead, debt soars because of unrelenting growth in federal spending on health care programs and a rise in Social Security spending as a share of GDP, combined with a much smaller increase in tax revenues.  The ever-greater budget deficits Projected under these scenarios would negatively affect the economy through several channels.  (Emphasis added.)

Hudson Institute scholar Diana Furchtgott-Roth notes that CBO's has costed ObamaCare as adding $1 TR to the deficit over the next decade; she also notes that Rep. Joe Barton (R-TX) offered an amendment whereby with $16B over a decade the federal government could subsidize private insurers to fix the uninsured care problem.  Naturally, this will go nowhere.  HC maven Robert Golderg points out that ObamaCare fully protects union HC benefits, and subsidizes union retirees with incomes as high as $90,000 per year.

A WSJ front-pager provides valuable detail on the CBO's input re health care costs, and notes--deliciously--that CBO Director Douglas Elmendorf was picked for the post by none other than..House Speaker Nancy Pelosi & Senate Majority Leader Harry Reid!!!

Meanwhile, Joe Biden hit a home-run yesterday, noting national bankruptcy and offering a novel solution, as reported at CNS News:

“And folks look, AARP knows and the people with me here today know, the president knows, and I know, that the status quo is simply not acceptable,” Biden said at the event on Thursday in Alexandria, Va. “It’s totally unacceptable. And it’s completely unsustainable. Even if we wanted to keep it the way we have it now. It can’t do it financially.”
 
“We’re going to go bankrupt as a nation,” Biden said.
 
“Now, people when I say that look at me and say, ‘What are you talking about, Joe? You’re telling me we have to go spend money to keep from going bankrupt?’” Biden said. “The answer is yes, that's what I’m telling you.” (Audio)

Fittingly, Biden said this in remarks to the American Association of Retired Persons (AARP).  (Now, imagine the mainstream media reaction had Sarah Palin said this; instead of amusement--"That's just Joe...", it would have been scathing derision.  Indeed, as I typed these words this AM, on "Morning Joe" Mika, Willie & Mike were chuckling about Joe's goof, and previewing that they plan to play on today's "MJ" a clip of Jesse Venture attacking Palin.)

In the Biden spirit, with classic government efficiency, NASA admitted last week that the original Moonwalk tapes were re-used and thus the video erased.  Yes, you heard me, ERASED.  And after all, what was the Big Deal, right?  And NASA is far, far more efficient than the typical government bureaucracy.

Former hedge fund manager Andy Kessler sees Bernanke's economy, with Fed policy driving things.  Karl Rove sees Team Obama moving economic goal posts.  Here is a proposal to let private equity help banks.  Nouriel Roubini, who called the financial meltdown, sees a very weak economy for the next 6 months, and notes that deflationary pressures remain in the economy, which means the Fed will keep monetary policy loose for some time.  Business Week sees a major market overhang in $1.4 TR corporate debt added since 2001, of which more than half is due within five years.

Bottom Line.  The prospect that trillions in debt will act as an immense albatross on economic growth, and that the burden will be significantly driven by health care costs, will make fiscally conservative Democrats think long and hard about whether to support ObamaCare.

LFTC - Kneecapping FedEx

Who among us has not sent packages or letters FedEx to take advantage of its speed, reliability and reasonable rates?  Now, we ware warned by George Will, in what he calls "Obama's Next Labor of Labor-Love" FedEx is in Team Obama's gun-sights.  Despite FedEx paying higher wages to its non-union workers than competitor UPS pays its union workers, Congress is proposing to put FedEx under the National Labor Relations Act, thus making FedEx hostage to local strikes anywhere it operates--which is, of course, just about everywhere.  FedEx CEO Fred Smith says if that happens his company will immediately cancel an order for 15 Boeing 777s.  Will notes that the union which covers Boeing's workforce is supporting the bill, despite its impact upon Boeing's union workers.  Read the entire column for the full incredible tale.

LFTC - North Korea: Let the Succession Games Begin

Claudia Rosett wonders what will happen in Pyongyang after Dear Leader becomes Dead Leader.  Kim Jong-Il has designated his 26-year old son, appropriately named Kim Jong-Un (nearly everybody in Korea is named Kim Something, and Korea's national dish is named kimchi) as his successor.  Dear Leader's other two sons are, at least in his judgment (the only one that counts) wastrels.  What then, after Dear Leader passes on into the Next World (where his supply, he hopes, of porno tapes and $600 bottles of brandy & hot babes will be infinite).

CR suggests:

For the U.S. one of the dangers will be the temptation to woo any new ruler, or rulers, of North Korea with yet more talks and aid, in the hope that some kind of reform might defang the regime. The problem is that whoever next takes command in Pyongyang will be inheriting a system built around totalitarian rule, global racketeering and nuclear extortion. It would be hard for any successor to Kim Jong-il, even with the best will in the world (and that is unlikely), to dramatically change course. Recall the disappointment that followed Washington's hopes for reform in Syria, when the young, Western-schooled Bashar Assad took over from his late father, nine years ago, in Damascus. The iron, terrorist-sponsoring system rolled right on.

In the happy event that any successor to Kim is genuinely open to trying to transform North Korea into a benign and free state, there should be no need for wooing by Washington. Pyongyang should be left to become the suitor. Even if that happens, President Obama would be wise to beware the expertise of North Korean officials in rolling Washington for aid, concessions and rotten deals.

But the best option, for Washington and the rest of the democratic world, would be to take advantage of every opening afforded by a transition to work toward bringing down the North Korean regime.

Good advice.  Last time, CR notes, when Kim Il-Sung died and Dear Leader stepped in, Bill Clinton decided to take the advice of the worst president of the 20th century, with predictable results:

During the previous transition, in 1994, when Kim took over from his father Kim-il Sung, North Korea went through a period of internal uncertainties. It was a moment in which President Clinton might have seized the chance to try to strangle the regime, which with the 1991 Soviet collapse had lost its longtime sugar daddy. Instead, Clinton went with an idea put forward by Jimmy Carter during a 1994 visit to Pyongyang and struck a nuclear freeze deal: the Agreed Framework. That helped legitimize Kim Jong-il as a ruler brokering big international deals with the U.S. and its allies, and got him a flow of aid that helped sustain his regime while he consolidated power. All told, the U.S., since 1995, has shipped $1.2 billion worth of free fuel, food and other aid to North Korea. During that time, Kim has built missiles, nuclear bombs and proliferation networks, while the North Korean people have starved.

So what happens this this time?  In 1994 Kim Jong-Il was of mature age (around 50), and solidly ensconced as successor.  This time, Kim Jonng-Un, very recently designated and far younger, is in no such position.  Radio Free Asia reports that as the illiegitmate child of a Japanese-born concubine, Kim is far from certain to succeed his father.

If he lacks for a loyal, powerful Praetorian Guard he may rapidly become Kim Done-In.  In societies which lack a lawfully enacted, universally accepted line of succession, and with no obviously recognized successor, power passes via palace intrigue skills n forming alliances and dispatching rivals, enforced by militia or Praetorian Guards.  May the best warlord win.

LFTC - Intelligence: Congress Crashes

John Yoo, a brilliant Bush 43 lawyer whose name has been outrageously dragged through the dirt by Team Obama and media types, explains perfectly in an op-ed why the National Security Agency's surveillance program was necessary and, by any sensible interpretation of the law, fully legal.  Essential reading.

Now, as to the assassination kerfuffle, read this Dec. 15, 2002--yes, 2002--New York Times front-pager disclosing the CIA plan and that the CIA notified Congress back then:

The Bush administration has prepared a list of terrorist leaders the Central Intelligence Agency is authorized to kill, if capture is impractical and civilian casualties can be minimized, senior military and intelligence officials said.

The previously undisclosed C.I.A. list includes key Qaeda leaders like Osama bin Laden and his chief deputy, Ayman al-Zawahiri, as well as other principal figures from Al Qaeda and affiliated terrorist groups, the officials said. The names of about two dozen terrorist leaders have recently been on the lethal-force list, officials said. "It's the worst of the worst," an official said.

President Bush has provided written legal authority to the C.I.A. to hunt down and kill the terrorists without seeking further approval each time the agency is about to stage an operation. Some officials said the terrorist list was known as the "high-value target list." A spokesman for the White House declined to discuss the list or issues involving the use of lethal force against terrorists. A spokesman for the C.I.A. also declined to comment on the list.

Despite the authority given to the agency, Mr. Bush has not waived the executive order banning assassinations, officials said. The presidential authority to kill terrorists defines operatives of Al Qaeda as enemy combatants and thus legitimate targets for lethal force.

Congress was notified--had it not been, the front-page story would have triggered a huge firestorm then, which did not occur:

Under current intelligence law, the president must sign a finding to provide the legal basis for covert actions to be carried out by the C.I.A. In response to past abuses, the decision-making process has grown into a highly formalized review in which the White House, Justice Department, State Department, Pentagon and C.I.A. take part.

The administration must notify Congressional leaders of any covert action finding signed by the president. In the case of the presidential finding authorizing the use of lethal force against members of Al Qaeda, Congressional leaders have been notified as required, the officials said.

Now read this Washington Post front-pager on why Leon Panetta pulled the plug on the CIA assassination program: because activation had begun.  In a piece that should be read in its entirety, WP columnist David Ignatius explains why Congress's rash act in taking the CIA mess public will damage the Agency and, consequently, our ability to gather intelligence and work with foreign countries:

As other countries watch the United States lacerate its intelligence service -- for activities already investigated or never undertaken -- perhaps they admire America's commitment to democracy and the rule of law. More likely, I fear, they conclude that we are just plain nuts.

The latest "scandals" involving the Central Intelligence Agency are genuinely hard to understand, other than in terms of political payback. Attorney General Eric Holder is considering appointing a prosecutor to investigate criminal actions by CIA officers involved in the harsh interrogation of al-Qaeda prisoners. But the internal CIA report on which he's said to be basing this decision was referred five years ago to the Justice Department, where attorneys concluded that no prosecution was warranted.

Meanwhile, Democrats in Congress are indignant that they were never briefed about a program to assassinate al-Qaeda operatives in friendly countries. Never mind that the program wasn't implemented, or that the United States is routinely assassinating al-Qaeda operatives using unmanned drones. And never mind that Leon Panetta, the new CIA director -- fearing a potential flap -- briefed Congress about the program soon after he became aware of it. There was a flap anyway -- with a new hemorrhage of secrets and a new shudder from America's intelligence partners around the world.

Informing Congress: Applicable Law. Section 413 of the National Security Act of 1947 spells out general reporting requirements for intelligence agencies to inform Congress.  Sub-section (a) covers reporting non-covert activities; sub (b) covers reporting covert activities.  413(1) requires the President to "ensure" that the Intelligence Committees are "fully and currently informed" of "any significant intelligence activity"; 413(2) provides that such requirements do not mean that permission from Congress is required as a condition precedent to initiate such activity.  413(a) essentially restates 413.  413(b) adds special rules for covert actions--defined in 413(e) as governmental acts in which the government's role "will not be apparent or acknowledged publicly"; the President must issue a written finding in advance (or within 48 hours given a time-urgent covert operation), that the action is "necessary to support identifiable foreign policy objectives of the United States and is important to the national security of the United States."  413(b)(5) bars authorizing any action that would violate the Constitution or any federal statute.

How does all this sort out?  Basically, whether "a significant activity" is underway--triggering legal obligations to inform Congress--turns upon two questions: (1) Is the activity "significant" per the law?  (2) Is it far enough along to require telling Congress?  Assassinating al-Qaeda leaders is clearly significant.  But where does one place this CIA program at issue in the continuum from two guys swapping ideas in lawn chairs on a Saturday afternoon to planes taking off to ferry assassins to the target area?

Clearly the former is not covered, by any reasonable calculus.  Equally, the latter is covered.  The program at issue in the current flap was at the training & testing stage.  Notifying Congress early on raises the risk of disclosure and thus, compromise of the operation.  Congress is biased strongly toward disclosure in doubtful cases--ever jealous of its jurisdictional prerogatives--which it interprets broadly.  Intelligence agencies are properly biased toward secrecy, to protect operations & operatives.

The process can work only if both sides recognize that good-faith disagreements will  inevitably arise, which are best resolved behind closed doors.  Congress is too political a body to consistently manage this.  It is not because Congress lacks security mavens who understand the need for secrecy--think Jim Webb & John McCain.  The problem is that a secret is as safe as the biggest blabbermouth that knows it; and Congress is loaded wit...blabbermouths.  Thus the present mess, which can only harm future intelligence efforts.

Bottom Line.  A poisonous marriage of manic legalism and Congressional imperialism is once again, as in the 1970s, undermining our intelligence services.  We likely will, sooner or later, pay a price for such insanity.

LFTC - F-22 Math

An AEI article spotlights the F-22 program.  Lots of problems, but we need more.  In aerial fly-offs the F-22's kill ratio against other planes is 221-0.  Sounds pretty good to me.  But the 187 we have as official inventory works out, after adjustments, to as few as 20--yes, NOT a misprint, twenty--F-22s available for combat.  Read this astonishing, informative two-pager.

LFTC - Index 7/16/09

4 posts: (1) Sotmomayor: Day Three--The Home Front; (2) Health Care: Team Obama's Flow Chart--The Home Front; (3) Africa: Obama's Overdue Takedown Unduplicated Elsewhere--Wobble Watch; (4) Assassination Bans: NOT Only in America--OOPS!

LFTC - Sotomayor: Day Three

Here are the various parts of the hearing transcript: Part I Transcript, Part II Transcript, Part III Transcript, Part IV Transcript.  Nothing HUGE leaped out yesterday, so I leave you to peruse the transcript.

LFTC - Health Care: Team Obama's Flow Chart

The Republican staff of the Joint Economic Committee prepared a color organizational flow chart for Team Obama's health care plan. Check it out.  "Organizational" does not do justice to what you will see.  How about Terminally Dysfunctional?  Off the Wall?  Alternate Quantum Universe?

Author & lawyer critic Phillip K. Howard warns that without lawsuit reform HC reform is doomed:

Studies have repeatedly demonstrated that the current ad hoc system of justice, with verdicts that vary widely from one jury to the next, has spawned a culture of legal fear and self protection. Studies also show that the system fails injured patients -- a claim takes an average of five years to resolve and nearly 60 cents out of every dollar spent in the malpractice system ends up going to lawyers or administrative costs.

That's why most of the important health-care constituencies, from the American Medical Association to AARP, favor creating pilot projects for special health courts. Mr. Obama has recently talked about the need "to explore a range of ideas about how to . . . scale back the excessive defensive medicine."

But one interest group hates the idea. You guessed which one. Sen. Mike Enzi (R., Wy.) discovered just how powerful the trial lawyers are when he proposed creating health court pilot projects. His proposal was only to permit experiments, not broad-scale tort reform, and it had been developed with Sen. Max Baucus (D., Mt.), chairman of the Finance Committee. But when Mr. Enzi offered this modest proposal, other members of the Senate Committee on Health, Education, Labor and Pensions killed the idea, declaring that the Constitution requires juries to be the ultimate decision maker in civil lawsuits.

That's not true. Special courts without juries are common in America and include courts for bankruptcy, tax disputes, workers compensation and more. America has a long history of using expert courts when there is a need for expertise and consistency. It's hard to imagine any area that needs consistent justice more than health care.

Big Pharma is selling out to Team Obama.

Meanwhile, John Fleming (R-LA) has introduced House Resolution 615, calling upon all Members of Congress to sign on to the public option, if enacted into law.  Congress has a better HC plan.  About five dozen GOP Members have signed on.  Not one single Democrat has done so.

LFTC - Africa: Obama's Overdue Takedown Unduplicated Elsewhere

Human rights maven Anne Bayevsky asks why President Obama got tough with Africa while playing soft in Cairo.  Her opening paragraphs frame the issue:

SPEAKING in Ghana on Saturday, Barack Obama lectured Africans on local repression, corruption, brutality, good governance and accountability. The startling contrast to his June speech in Cairo was revealing.

Stroking Muslim and Arab nations has become the hallmark of the US President's foreign policy.

In Egypt, he chose not to utter the words terrorism or genocide. In Egypt, there was nothing "brutal" he could conjure up, no "corruption" and no "repression". In Ghana, with a 70 per cent Christian population, he mentioned "good governance" seven times and added direct calls to "make change from the bottom up". He praised "people taking control of their destiny" and pressed "young people" to "hold your leaders accountable".

He made no such calls for action by the people of Arab states, despite the fact not a single Arab country is free, according to the latest Freedom House global survey. Before the Muslim world Obama donned the role of apologist-in-chief. Over and over again his examples of shortfalls in the protection of rights and freedoms were American: the "prison at Guantanamo Bay", "rules on charitable giving (that) have made it harder for Muslims to fulfil their religious obligation", impediments to the choice of Muslim women to shroud their bodies.

Christian Africa was to be treated to no such self-flagellation. In a rare tongue-lashing for Africans from any US president, he chastised: "It's easy to point fingers and to pin the blame of these problems on others. Yes, a colonial map that made little sense helped to breed conflict ... but the West is not responsible for the destruction of the Zimbabwean economy ... or wars in which children are enlisted as combatants ... tribalism and patronage and nepotism ... and ... corruption."

He might equally have said to the Arab and Muslim world: "It's easy to scapegoat Israel and blame your problems on the presence of Jews -- albeit on a fraction of 1 per cent of the territory inhabited by the Arab world -- but Israel is not responsible for poverty, illiteracy, torture, trafficking, slavery and oppression rampant across your countries." But he did not.

Bayevsky further documents her case, in an excellent piece.  It is, however, a great thing that President Obama, by virtue of his African heritage, could say politically incorrect things to Africans that no prior modern-era American President would dare have said.

WSJ pundit Bret Stephens agrees with Bayevsky re Obama on Africa, but notes that Obama is lagging on free trade, which he proposes for Africa, while stalling on Free Trade agreement with South Korea and Colombia, to vital US allies.  Stephens notes the roots of Western guilt re Africa, a spell now broken by Obama's public flogging of African corruption and incompetence:

All this is not only true, it's groundbreaking. Since British Prime Minister Harold Macmillan gave his "Wind of Change" speech (also in Ghana) nearly 50 years ago, Western policy toward Africa has been a matter of throwing money at a guilty conscience (or a client of convenience), no questions asked. The result, as Mr. Obama pointed out, was that countries such as Kenya, which had a larger GDP than South Korea in 1961, "have been badly outpaced."

Maybe it took a president unburdened by that kind of guilt to junk the policy. Or maybe it simply took a conversation with some of the Francises of Africa -- the politically invisible middle classes held down by their own kleptocratic rulers. Whatever the case, Africa will be well served if Mr. Obama can make good on his rhetoric.

Now if only Mr. Obama would apply those same principles to the rest of his agenda, foreign and domestic.

For instance, if trade and investment are good ideas for the U.S.-Africa relationship, why has the Obama administration dragged its feet on free-trade agreements with Colombia and South Korea? Or, if the U.S. owes Africa no apologies for its recent disasters, why has Mr. Obama gone to such lengths to apologize to Iran for the 1953 Mossadegh coup, and, in his Cairo speech, to the entire Muslim world for the politics of the Cold War? Or if Mr. Obama wants to "isolate" irresponsible actors, why does he continue to promise engagement with Iran, Syria, Russia and perhaps North Korea no matter how they behave?

Stephens closes with this gem:

In his conversation with Francis, Mr. Obama records his lament that Kenya's "big men" fail to take responsibility for their country:

"'Attitudes aren't so different in America,' I told Francis."

"'You are probably right,' he said. 'But you see, a rich country like America can perhaps afford to be stupid.'"

Somebody make this guy treasury secretary.

LFTC - Assassination Bans: NOT Only in America

My good friend & LFTC reader with whom on Tuesday I discussed America's assassination ban disputed my contention that such a ban exists only in America.  He named pacifist Germany and Constitutionally-limited Japan as examples.  I was unable to verify this on the Internet, but likely he is right.

The following July 15, 2009 report from Stratfor, reprinted with permission from Stratfor, explains why the CIA assassination program likely involved sending hit teams to countries outside the war zone, and not necessarily friendly to the US--and also why, thanks to disclosure by Democrats, the program is dead, and al-Qaeda now knows its operatives in many countries cannot be targeted by American assets:

U.S. Reacion to the CIA Assassination Program

On June 23, 2009, Director of Central Intelligence Leon Panetta learned of a highly compartmentalized program to assassinate al Qaeda operatives that was launched by the CIA in the wake of the 9/11 attacks. When Panetta found out that the covert program had not been disclosed to Congress, he canceled it and then called an emergency meeting June 24 to brief congressional oversight committees on the program. Over the past week, many details of the program have been leaked to the press and the issue has received extensive media coverage.

That a program existed to assassinate al Qaeda leaders should certainly come as no surprise to anyone. It has been well-publicized that the Clinton administration had launched military operations and attempted to use covert programs to strike the al Qaeda leadership in the wake of the 1998 East Africa embassy bombings. In fact, the Clinton administration has come under strong criticism for not doing more to decapitate al Qaeda prior to 2001. Furthermore, since 2002, the CIA has conducted scores of strikes against al Qaeda targets in Pakistan using unmanned aerial vehicles (UAVs) like the MQ-1 Predator and the larger MQ-9 Reaper.

These strikes have dramatically increased over the past two years and the pace did not slacken when the Obama administration came to power in January. So far in 2009 there have been more than two dozen UAV strikes in Pakistan alone. In November 2002, the CIA also employed a UAV to kill Abu Ali al-Harithi, a senior al Qaeda leader suspected of planning the October 2000 attack against the USS Cole. The U.S. government has also attacked al Qaeda leaders at other times and in other places, such as the May 1, 2008, attack against al Qaeda-linked figures in Somalia using an AC-130 gunship.

As early as Oct. 28, 2001, The Washington Post ran a story discussing the Clinton-era presidential finding authorizing operations to capture or kill al Qaeda targets. The Oct. 28 Washington Post story also provided details of a finding signed by President George W. Bush following the 9/11 attacks that reportedly provided authorization to strike a larger cross section of al Qaeda targets, including those who are not in the Afghan theater of operations. Such presidential findings are used to authorize covert actions, but in this case the finding would also provide permission to contravene Executive Order 12333, which prohibits assassinations.

In the immediate aftermath of the 9/11 attacks, Bush and the members of his administration were very clear that they sought to capture or kill Osama bin Laden and the members of the al Qaeda organization. During the 2004 and 2008 presidential elections in the United States, every major candidate, including Barack Obama, stated that they would seek to kill bin Laden and destroy al Qaeda. Indeed, on the campaign trail, Obama was quite vocal in his criticism of the Bush administration for not doing more to go after al Qaeda’s leadership in Pakistan. This means that, regardless of who is in the White House, it is U.S. policy to go after individual al Qaeda members as well as the al Qaeda organization.

In light of these facts, it would appear that there was nothing particularly controversial about the covert assassination program itself, and the controversy that has arisen over it has more to do with the failure to report covert activities to Congress. The political uproar and the manner in which the program was canceled, however, will likely have a negative impact on CIA morale and U.S. counterterrorism efforts.

Program Details

As noted above, that the U.S. government has attempted to locate and kill al Qaeda members is not shocking. Bush’s signing of a classified finding authorizing the assassination of al Qaeda members has been a poorly kept secret for many years now, and the U.S. government has succeeded in killing al Qaeda leaders in Pakistan, Yemen and Somalia.

While Hellfire missiles are quite effective at hitting trucks in Yemen and AC-130 gunships are great for striking walled compounds in the Somali badlands, there are many places in the world where it is simply not possible to use such tools against militants. One cannot launch a hellfire from a UAV at a target in Milan or use an AC-130 to attack a target in Doha. Furthermore, there are certain parts of the world — including some countries considered to be U.S. allies — where it is very difficult for the United States to conduct counterterrorism operations at all. These difficulties have been seen in past cases where the governments have refused U.S. requests to detain terrorist suspects or have alerted the suspects to the U.S. interest in them, compromising U.S. intelligence efforts and allowing the suspects to flee.

A prime example of this occurred in 1996, when the United States asked the government of Qatar for assistance in capturing al Qaeda operational mastermind Khalid Sheikh Mohammed, who was living openly in Qatar and even working for the Qatari government as a project engineer. Mohammed was tipped off to American intentions by the Qatari authorities and fled to Pakistan. According to the 9/11 commission report, Mohammed was closely associated with Sheikh Abdullah bin Khalid al-Thani, who was then the Qatari minister of religious affairs. After fleeing Doha, Mohammed went on to plan several al Qaeda attacks against the United States, including the 9/11 operation.

Given these realities, it appears that the recently disclosed assassination program was intended to provide the United States with a far more subtle and surgical tool to use in attacks against al Qaeda leaders in locations where Hellfire missiles are not appropriate and where host government assistance is unlikely to be provided. Some media reports indicate that the program was never fully developed and deployed; others indicate that it may have conducted a limited number of operations.

Unlike UAV strikes, where pilots fly the vehicles by satellite link and can actually be located a half a world away, or the very tough and resilient airframe of an AC-130, which can fly thousands of feet above a target, a surgical assassination capability means that the CIA would have to put boots on the ground in hostile territory where operatives, by their very presence, would be violating the laws of the sovereign country in which they were operating. Such operatives, under nonofficial cover by necessity, would be at risk of arrest if they were detected.

Also, because of the nature of such a program, a higher level of operational security is required than in the program to strike al Qaeda targets using UAVs. It is far more complex to move officers and weapons into hostile territory in a stealthy manner to strike a target without warning and with plausible deniability. Once a target is struck with a barrage of Hellfire missiles, it is fairly hard to deny what happened. There is ample physical evidence tying the attack to American UAVs. When a person is struck by a sniper’s bullet or a small IED, the perpetrator and sponsor have far more deniability. By its very nature, and by operational necessity, such a program must be extremely covert.

Even with the cooperation of the host government, conducting an extraordinary rendition in a friendly country like Italy has proved to be politically controversial and personally risky for CIA officers, who can be threatened with arrest and trial. Conducting assassination operations in a country that is not so friendly is a far riskier undertaking. As seen by the Russian officers arrested in Doha after the February 2004 assassination of former Chechen President Zelimkhan Yandarbiyev, such operations can generate blowback. The Russian officers responsible for the Yandarbiyev hit were arrested, tortured, tried and sentenced to life in prison (though after several months they were released into Russian custody to serve the remainder of their sentences).

Because of the physical risk to the officers involved in such operations, and the political blowback such operations can cause, it is not surprising that the details of such a program would be strictly compartmentalized inside the CIA and not widely disseminated beyond the gates of Langley. In fact, it is highly doubtful that the details of such a program were even widely known inside the CIA’s counterterrorism center (CTC) — though almost certainly some of the CTC staff suspected that such a covert program existed somewhere. The details regarding such a program were undoubtedly guarded carefully within the clandestine service, with the officer in charge most likely reporting directly to the deputy director of operations, who reports personally to the director of the CIA.

Loose Lips Sink Ships

As trite as this old saying may sound, it is painfully true. In the counterterrorism realm, leaks destroy counterterrorism cases and often allow terrorist suspects to escape and kill again. There have been several leaks of “sources and methods” by congressional sources over the past decade that have disclosed details of sensitive U.S. government programs designed to do things such as intercept al Qaeda satellite phone signals and track al Qaeda financing. A classified appendix to the report of the 2005 Robb-Silberman Commission on Intelligence Capabilities (which incidentally was leaked to the press) discussed several such leaks, noted the costs they impose on the American taxpayers and highlighted the damage they do to intelligence programs.

The fear that details of a sensitive program designed to assassinate al Qaeda operatives in foreign countries could be leaked was probably the reason for the Bush administration’s decision to withhold knowledge of the program from the U.S. Congress, even though amendments to the National Security Act of 1947 mandate the reporting of most covert intelligence programs to Congress. Given the imaginative legal guidance provided by Bush administration lawyers regarding subjects such as enhanced interrogation, it would not be surprising to find that White House lawyers focused on loopholes in the National Security Act reporting requirements.

The validity of such legal opinions may soon be tested. House Intelligence Committee Chairman Silvestre Reyes, D-Texas, recently said he was considering an investigation into the failure to report the program to Congress, and House Democrats have announced that they want to change the reporting requirements to make them even more inclusive.

Under the current version of the National Security Act, with very few exceptions, the administration is required to report the most sensitive covert activities to, at the very least, the so-called “gang of eight” that includes the chairmen and ranking minority members of the congressional intelligence committees, the speaker and minority leader of the House of Representatives and the majority and minority leaders of the Senate. In the wake of the program’s disclosure, some Democrats would like to expand this minimum reporting requirement to include the entire membership of the congressional intelligence committees, which would increase the absolute minimum number of people to be briefed from eight to 40. Some congressmen argue that presidents, prompted by the CIA, are too loose in their invocation of the “extraordinary circumstances” that allow them to report only to the gang of eight and not the full committees. Yet ironically, the existence of the covert CIA program stayed secret for over seven and a half years, and yet here we are writing about it less than a month after the congressional committees were briefed.

The addition of that many additional lips to briefings pertaining to covert actions is not the only thing that will cause great consternation at the CIA. While legally mandated, disclosing covert programs to Congress has been very problematic. The angst felt at Langley over potential increases in the number of people to be briefed will be compounded by the recent reports that Attorney General Eric Holder may appoint a special prosecutor to investigate CIA interrogations and ethics reporting.

In April we discussed how some of the early actions of the Obama administration were having a chilling effect on U.S. counterterrorism programs and personnel. Expanding the minimum reporting requirements under the National Security Act will serve to turn the thermostat down several additional notches, as did Panetta’s overt killing of the covert program. It is one thing to quietly kill a controversial program; it is quite another to repudiate the CIA in public. In addition to damaging the already low morale at the agency, Panetta has announced in a very public manner that the United States has taken one important tool entirely out of the counterterrorism toolbox: Al Qaeda no longer has to fear the possibility of clandestine American assassination teams.

LFTC - Index 7/16/09

4 posts: (1) Sotomayor: Day Three--The Home Front; (2) Health Care: Team Obama's Flow Chart--The Home Front; (3) Africa: Obama's Overdue Takedown Unduplicated Elsewhere--Wobble Watch; (4) Assassination Bans: NOT Only in America--OOPS!

LFTC - Index 7/15/09

4 posts: (1) Sotomayor: Day Two--The Home Front; (2) CIA: Lawfare Enters the Political Arena--Wobble Watch; (3) Defense: Down Under Ramps Up--Wobble Watch; (4) Health Care: Team Obama's Beltway Squeeze Play--The Home Front;

LFTC - Sotomayor: Day Two

Yesterday Senators took their 30-minute rounds questioning Supreme Court nominee Judge Sonia Sotomayor.  Here are the Part I Transcript, Part II Transcript, Part III Transcript, Part IV Transcript & Part V Transcript from Tuesday's hearing.

Confirmation Conversion?  Sen. Jefferson Sessions (R-AL) suggested that Sotomayor's turnaround on the role of race & gender in judging, at her hearing yesterday, might be a "confirmation conversion."  Leave us juxtapose what Sotomayor said then versus what she said now:

SOTOMAYOR THEN:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.  (Emphases added.)

SOTOMAYOR NOW:

"I want to state upfront, unequivocally and without doubt: I do not believe that any racial, ethnic or gender group has an advantage in sound judging," Sotomayor said. "I do believe that every person has an equal opportunity to be a good and wise judge, regardless of their background or life experiences."

As Fox news anchors like to say: "We report, you decide."  Or as in that old Intellivision commercial: "You make the call."

Abigail Thernstrom, author of books on civil rights progress, fears Sotomayor will become an ethnic activist on the Supreme bench.  Democratic strategist & Fox news analyst Kirsten Powers calls "silly" the idea that life experiences have no influence on judging, but adds this re Baby Boomer liberals' obsession with race & gender:

But she did say "better." Why would she make the "wise Latina" assertion multiple times?

Simple: This kind of thinking is commonplace among baby-boomer liberals, who've conferred special status on women and minorities that goes beyond mere equality.

There is surely a psychological explanation for it, and it goes something like this: Women and Latinos (along with other minorities) were long discriminated against in this country, in sometimes humiliating ways. As these groups worked toward equality, a certain mythology sprung up that they weren't just equal to the people who were keeping them down, they were "better."

Perhaps it was a way of coping, or just a way of rallying the troops. Sotomayor herself has said she was trying to inspire young people with these speeches.

When I was growing up, the common refrain I heard among my mother's feminist friends and later in college in women's studies classes was, "If women ran the world, there would be no war." Or: "If women were in charge, the world would be a better place."

I don't know what Sotomayor heard about Latinos in her childhood (though I'm sure, like any ethnicity, there was a healthy pride). But the sense that she would reach a "better result" than a white man probably flows more from a feminist influence than a racial one.

In Sotomayor's favor, James Taranto of Best of the Web posted "The Diabetic Jailbird" Tuesday, in which he recounts a case where Sotomayor recused herself out of an abundance of caution, to avoid the appearance of bias:

The New York Times reports on a case that ought to offer some reassurance. In 1997, while she was still a trial judge, Sotomayor recused herself from hearing a case called John Doe v. City of New York, on the ground that she had "personal knowledge regarding the claims." She told senators in a written questionnaire that she didn't remember the details, but the Times dug them up:

The file, pulled from the archives, suggests that the "personal knowledge" that the judge cited stemmed from her history of Type 1 diabetes, which the judge has said was diagnosed when she was a child.

The plaintiff in the case, who used the pseudonym John Doe, was also a diabetic, and had been an inmate in the New York City jails system. He claimed in a lawsuit that after his arrest, the police and the Department of Correction withheld his medications in a way that caused extreme pain and discomfort, and led to his hospitalization.

The judge withdrew from the case soon after it was assigned to her, court records show; she was not required to list any details on her reasoning.

But one legal scholar said that if it was based, as it seemed to be, on her own standing as a diabetic, her decision was exceptionally cautious.

"Under no circumstances, by any stretch of the imagination, would that alone require disqualification," said Steven Lubet, a legal ethics professor at Northwestern University. Professor Lubet said judges were generally required to step aside from a case whenever there is a reasonable question concerning impartiality.

It's only one case, and it doesn't implicate "our differences as women or men of color." But it does suggest that in practice Sotomayor takes her obligation to be impartial seriously, notwithstanding her musings to the contrary.

Politics: Can GOP Senators Risk Alienating Hispanics?  One wonders if any GOP Senator saw Pat Buchanan's blunt advice for GOP questioners in his Tuesday Human Events piece: ignore fear of Hispanic defections and expose Sotomayor as a quota queen--among other things, PB notes that Sotomayor (I had missed this) took the position that depriving felons in new York of the vote franchise violated their civil rights, apparently because doing so has a disparate impact upon minorities, who comprise a disproportionate share of the prison population.

PB notes that Hispanics were 7.7 percent of the 2008 election vote, versus 74 percent for whites, and that had John McCain gotten 58 percent of the white vote--Bush's 2004 total--instead of 55 percent he would have gained as much as by winning Hispanics with 62 percent of the vote, instead of getting only 32 percent of the Hispanic vote.

WSJ pundit Collin Levy writes on Sotomayor's views regarding international law.  She notes political risk for Democrats:

Like several of the judges on the left branch of the court, Judge Sotomayor has said she favors a broader consideration of foreign and international law in U.S. judicial opinions. While she rarely had occasion to dip into foreign sources during her time on the Second Circuit, she recently went out of her way to embrace the concept and its applications by the high court.

In a speech to the American Civil Liberties Union of Puerto Rico in April, Judge Sotomayor explained that "ideas have no boundaries," and that "international law and foreign law will be very important in the discussion of how to think about the unsettled issues in our own legal system." To discourage the use of foreign or international law, she added, would "be asking American judges to close their minds to good ideas."

That's political quicksand for a judge Democrats are eager to portray as a moderate inclined to narrow reading of text and precedent.

Leahy's Low Lie on Miguel Estrada's Nomination.  Ed Whelan of NRO Bench Memos sent out this 7/13 Leahy/Estrada blog post on how Sen. Patrick Leahy, the Vermont Democrat who chairs the Senate Judiciary Committee, presented a grossly misleading picture of how the nomination of Miguel Estrada was handled by the GOP.  Judge for yourself:

When Senator Lindsey Graham used the example of Republican support for President Bush’s D.C. Circuit nominee Miguel Estrada to make the elementary point that Republican concerns about Judge Sotomayor are based on her judicial philosophy, not on her Hispanic ethnicity, Judiciary Committee Chairman Pat Leahy saw fit to respond in this way:
 
I'd just note, just so we make sure we're all dealing with the same facts, Mr. Estrada was nominated when the Republicans were in charge of the Senate, was not given a hearing by the Republicans. He was given a hearing when the Democrats took back the majority in the Senate ….
 
Well, let’s “make sure we’re all dealing with the same facts,” Senator Leahy:
 
1.  President Bush announced his nomination of Estrada to the D.C. Circuit on May 9, 2001. Fifteen days later, Senator Jeffords left the Republican Party and flipped control of the Senate from the Republicans to the Democrats.  Leahy surely remembers that well, both because Jeffords was his fellow Vermonter and because the flip made him chairman of the Judiciary Committee.
 
2.  When Leahy says that Estrada “was not given a hearing when the Republicans were in charge of the Senate,” he is technically accurate in that Senate Republicans did not try to hold a confirmation hearing on Estrada’s nomination within its first 15 days.  Had they tried to do so (even before the ABA completed its evaluation of Estrada), Democrats never would have permitted it.
 
To put this timing in context:  During the Bush 43 administration, the average time from nomination to hearing for federal appellate nominees was 166 days overall, and 197 days while Leahy was chairman.  No federal appellate nominee other than Clinton nominee Helene White (the beneficiary of a special deal received a hearing in less than 30 days.  And of President Bush’s first batch of nominees, the first to receive a hearing waited 62 days.
 
3.  Leahy finally gave Estrada a hearing on September 26, 2002—more than 16 months after his nomination—but it was clear that Democrats would not vote Estrada out of committee.  Once the Republicans regained control of the Senate in 2003, the Judiciary Committee promptly voted Estrada out of committee on a party-line vote (Republicans in favor, Democrats opposed).  Democrats then filibustered his nomination on the Senate floor, defeating a record seven cloture votes.
 
4.  It is outrageous of Leahy to give his grossly misleading account of the Estrada nomination in a context that vilely insinuates that Republican opposition to Sotomayor is based on her Hispanic ethnicity.

More of Whelan's ably documented account: Patrick Leahy is one slick and nasty piece of work.

How Much Deference is a President Owed On Supreme Court Picks?  Washington Post Ruth Marcus neatly sums up in her column the political price paid by Barack Obama's votes against Bush 43's two Supreme nominees:

You don't have to be cynical to think politics was at play, too; in fact, you just have to read The Post, which reported that Obama's Senate chief of staff, Pete Rouse, warned him that a vote for Roberts could cripple his presidential ambitions.

And it's possible to look at Roberts's performance on the court and say that Obama's worst fears were realized: Roberts is no humble umpire.

But it's also true that Obama's reported remarks to Rouse -- that if he were president, he wouldn't want his nominees turned down on purely ideological grounds -- were prescient.

A Wall Street Journal editorial addresses Democratic senators who used the hearing to accuse conservative Justices of judicial activism.  The editors offer a riposte to Russ Feingold's comment Monday, that an judicial activist is a judge whose decision you disagree with, and to a top liberal law scholar who defines activism as overturning any statute:

The activists in Mr. Leahy's rhetorical show are, presto, the conservatives of the Roberts Court, which has very, very cautiously chipped away at some precedent in cases on issues like the Second Amendment and campaign finance reform.

Under this brave new meaning of judicial activism advanced several years ago by now-White House aide Cass Sunstein, a judicial activist is any judge invalidating a federal law, however shoddily made. Ergo, conservative judges are obliged to uphold liberal precedents no matter how narrow the vote and how recent the case, while liberals can overturn long-time principles in the name of the evolving Constitution.

The effect is a liberal ratchet, where precedents like Miranda v. Arizona and Roe v. Wade are cast in stone, but any rethinking by the Roberts Court of the six-year-old 5-4 campaign-finance ruling in McConnell v. FEC is a scandal. "So many of the rulings of the current conservative majority on the Supreme Court can be described as activist," Wisconsin Democrat Russ Feingold insisted. "The best definition of a judicial activist is when a judge decides a case in a way you don't like."

Actually, we have a better one. An activist judge is one who is willing to decide cases based on something other than what's in the Constitution. But that's a troublesome standard for Sonia Sotomayor, who in speeches and writings has shown she is open to a wide variety of sources, from human empathy to personal experience to foreign and international law to help her in judging cases, or to "set our creative juices flowing," as she said of the latter.  (Emphasis added.)

Bottom Line.  Sotomayor sailed.  Barring revelations of love in Argentina or ties to bin Laden, she is in.  But to win confirmation she is being, to put it mildly, less than candid about her racialist past--and present.  Her performance yesterday was living proof of what a law professor of mine told me about prevaricators on the witness stand: "A skillful, determined liar rarely breaks down under courtroom cross-examination."  That stuff happens on TV and at the movies.  A federal judge with experience in thousands of trials and hundreds of appellate cases is not about to be taken down one step short of the ultimate professional prize she has long sought so ardently.

LFTC - CIA: Lawfare Enters the Political Arena

NRO legal ace Andy McCarthy addresses the "kill bin Laden" legalities and realities in a sharp two-pager:

This is their most ludicrous gambit in a long time — and that’s saying something. Given their eight years of complaints about President Bush’s failure to kill or capture Osama bin Laden, and given President Clinton’s indignant insistence (against the weight of the evidence) that he absolutely wanted the CIA to kill bin Laden, one is moved to ask: What did Democrats think the CIA was doing for the last eight years?

And if Democrats did not believe the CIA was considering plans to kill or capture bin Laden, why weren’t they screaming from the rafters about such a lapse?

McCarthy strikes the practical inter-branch balance:

So the president and Congress are locked in a tense, dynamic dance. Since no one wants needlessly to provoke a constitutional crisis, presidents have occasionally (and foolishly) agreed as a matter of comity to legislation that seemingly permits Congress to intrude on intelligence and military operations. Presidents conduct those operations in a practical manner that is respectful — but not subservient. The 1947 National Security Act is a good example. It requires that Congress be kept “fully and currently informed” of intelligence matters, including any “significant anticipated intelligence activity.” But it does not define what “fully and currently informed” means, nor at what point a contemplated plan of action becomes significant enough that the obligation to inform congressional leaders is triggered.

When everyone is being an adult and acting in good faith, this doesn’t present a problem. No one expects the CIA to alert congressional leadership every time some agent conjures up a potential operation or to waste Congress’s time with briefings to explain the agency’s current thinking on matters (like how to neutralize al-Qaeda) that everyone knows the agency is working on. After all, if Congress wants to inquire about such things, it can ask. At the same time, if the CIA is about to embark on an effort that could have significant policy or security consequences, it is in the interest of the president and the country that bipartisan congressional leadership be given a heads-up.

McCarthy nails four ways Democrats have messed up the "kill bin Laden" issue:

So, to score some political points, Democrats have put themselves in the position of opposing CIA efforts to defeat our enemies. This misbegotten strategy can only remind the public of a few unwelcome facts:

First, when Democrats were in charge in the 1990s, at the time when bin Laden declared war on the United States and then bombed our embassies and the U.S.S. Cole, the Democrats’ strategy to protect the country was to file indictments — with no meaningful effort to capture bin Laden or his top aide, Ayman al-Zawahiri, much less kill them.

Second, when opportunities to kill bin Laden arose, the CIA’s hands were tied because President Clinton so muddled the rules of engagement that our special-ops agents could not be sure whether Democrats would indict them for such operations.

Third, after 9/11, even as President Bush’s warfare strategy decimated al-Qaeda’s top hierarchy, Democrats complained that the Bush administration had failed to kill or capture bin Laden. Now that the political winds have shifted, they have returned to their default position of complaining that government agents were trying to kill or capture bin Laden.

Fourth, this bizarre complaint comes in the form of grousing about a failure to notify Congress, voiced by Sen. Dianne Feinstein, among others. But consider that back in February, Senator Feinstein publicly revealed that Pakistan’s government was allowing the United States to use Pakistani territory as a base for Predator drones being used for controversial targeted assassinations. Unlike Leahy’s aforementioned malfeasance, Feinstein’s unfortunate revelation was doubtlessly inadvertent. But it underscores the danger of informing Congress about intelligence activities.

The last point is a critical one, showing starkly the difference between Democrats and Republicans on national security. President Obama is clearly conducting a war in Pakistan, a country with which we are formally at peace. The legitimate existence of wartime conditions is crucial: If we are not at war, there is no basis in international law for killing Pakistanis (or non-Pakistanis) in Pakistan.

A Partially Contrary View Worth Considering.  I had lunch yesterday with an old friend and LFTC reader.  Savvy in the ways of Washington, the law and diplomatic realities, he pointed out that clandestine operations in a war zone or hostile nation are one thing, but those in allied nations are another.  Knocking someone off in Kabul thus differs from doing so in London.  He added that informing the Gang of Eight Congressional leaders offers reasonable assurance of keeping things out of the papers.  He worries about unfettered Executive branch covert actions.  Investigations of the kind Democrats now call for should, he added, be conducted behind closed doors.

These are legitimate concerns.  I could live with such rules.  Alas, Congress today is led by people whose contempt for such considerations of confidendiality makes it hard to agree.  But the point about operating in allied nations is a clearly vital one; it does, however, point primarily towards gaining consent of the locals.  We have, my friend noted, conducted "rendition" operations (in plain English, kidnappings) in allied countries whose governments have not complied with requests to turn over terror suspects.  I see this as a lose-lose issue: either let an ally shelter a terrorist or antagonize an ally by rendition.  I see no right answer for all cases.

Bottom Line.  Democrats from time to time bury their past positions in the Memory Hole, and use lawfare in the political arena to damage the opposing party and provide cover for their own.  With delicate battlefield situations in Afghanistan and Pakistan, perhaps even knife-edge tipping points, to do anything that may impair our ability to collect intelligence and act upon it is astonishing in its brazenness.

LFTC - Defense: Down Under Ramps Up

Policy maven Doug Bandow writes in TAS on how Australia is significantly beefing up its defense plans, taking account of less assurance of American defense support due to other commitments, and reflecting China's and India's rise and growing influence.  A nation of 21M, adding $72B to a multi-year program represents the per capita equivalent commitment of over one trillion dollars--$1.07TR--for 306M population America.  Bandow's article is a solid read.  And Down Under is as solid an ally as we have.

LFTC - Energy: Palin Proposes, Obama Opposes

Sarah Palin's Tuesday Washington Post op-ed sees "cap & tax" rather than cap & trade in Team Obama proposals.  In a crisply worded op-ed, she proposes (though not using the campaign mantra) "Drill baby drill!" to achieve energy independence.  Energy is Palin's strongest suit.  She begins by signaling a major focus of her post-governorship efforts:

Unfortunately, many in the national media would rather focus on the personality-driven political gossip of the day than on the gravity of these challenges. So, at risk of disappointing the chattering class, let me make clear what is foremost on my mind and where my focus will be:

I am deeply concerned about President Obama's cap-and-trade energy plan, and I believe it is an enormous threat to our economy. It would undermine our recovery over the short term and would inflict permanent damage.

Palin quips that if cap & trade is enacted and its kills jobs, Team Obama will get an education: "The ironic beauty in this plan? Soon, even the most ardent liberal will understand supply-side economics."

Palin then cites Alaska's example for energy policy:

In Alaska, we are progressing on the largest private-sector energy project in history. Our 3,000-mile natural gas pipeline will transport hundreds of trillions of cubic feet of our clean natural gas to hungry markets across America. We can safely drill for U.S. oil offshore and in a tiny, 2,000-acre corner of the Arctic National Wildlife Refuge if ever given the go-ahead by Washington bureaucrats.

Of course, Alaska is not the sole source of American energy. Many states have abundant coal, whose technology is continuously making it into a cleaner energy source. Westerners literally sit on mountains of oil and gas, and every state can consider the possibility of nuclear energy.

We have an important choice to make. Do we want to control our energy supply and its environmental impact? Or, do we want to outsource it to China, Russia and Saudi Arabia? Make no mistake: President Obama's plan will result in the latter.

Bottom Line.  Sarah Palin has picked the ideal issue for her to reintroduce herself to the American public, one in which her expertise exceeds not only that of Barack Obama and Joe Biden, but even of John McCain.  "Drill baby drill!" was sound policy, drowned out in last fall's financial market and economic meltdown.  If Palin can make a difference in how the public sees energy choices and how they relate to security and environmental issues, she will have made a major contribution to policy debate and voter education.

LFTC - Health Care: Team Obama's Beltway Squeeze Play

Yuval Levin writes at NRO about the President's "health care Fantasyland" in which Medicare--the chief culprit in the exploding federal unfunded liability projection-- & SCHIP (the state children's HC program, which also actually benefits some adults) are models for a comprehensive HC bill that will not add to the federal deficit over the next decade.  Rich Lowry of NRO, borrowing from House HC tyrant Henry Waxman (D-CA) calls HC "Obama's make-or-break" in terms of his Presidential political fortunes:

Once again, people are being asked to believe that a trillion dollars in new spending is fiscally prudent. Once again, they’re being asked to believe that the government can manage an enormous, complex enterprise — more complex even than the failing auto companies. Once again, they’re being asked by their supremely self-confident president to suspend their disbelief. If the public doesn’t go along this time, the Obama phenomenon will experience the end of its heroic period.

WSJ pundit Kimberley Strassel details how Team Obama is pressuring HC groups to deal only with the Democrats, shut up in public, and bargain among each other for scraps.  A sobering read.  KS writes:

Democrats have complemented their smiling encouragements with behind-the-scenes threats. After retaking the House in 2006, the party made clear that companies that did not hire Democratic lobbyists would not get a hearing in Washington. The ruling party is now seeing the fruits of its bullying. These days, a meeting of health-care lobbyists is better described as a reunion of Senate Finance Chairman Max Baucus's former aides. Health-care lobbying has been turned on its head: The new cabal of Democratic lobbyists does not exist to protect the industry from Congress. It exists to present Democratic ultimatums to business.

When Senate Republicans last month hosted a meeting to discuss reform ideas, Mr. Baucus's office called in a block of these Democratic lobbyists to deliver a message. "They said, 'Republicans are having this meeting and you need to let all of your clients know if they have someone there, that will be viewed as a hostile act,'" reported one attendee to the Baucus caucus. Message to companies that don't agree with their Beltway lobbyist: Pull a Rick Scott (the former hospital executive running ads critical of ObamaCare), and you'll be sorry.

All these actions -- the White House meetings, the strung-out negotiations, the muzzling -- have been taken with one aim: To buy silence. President Barack Obama is committed to a public option. Liberal Democrats intend to make the private sector fund their plans. They figure by the time they drop a bill that contains odious elements, it'll be too late for any industry player -- big or small -- to cut a Harry & Louise ad.

A WSJ op-ed spotlights RomneyCare's results in Massachusetts, after its first three years.  Much like ObamaCare, it uses "community rating" and "guaranteed issue" to force insurers to issue policies to anyone requesting, as regulated prices.  The upshot: strategic gaming of the HC system.  People sign up upon becoming ill, then off-load huge HC expenses; upon getting well, they drop the policies to avoid paying premiums while they are healthy.

Bottom Line.  Pushing government's tentacles further into the HC system will make HC worse and more expensive.  As humorist P. J. O'Rourke once quipped: "If you think health care is expensive now, wait until you see what it costs when it's free."

LFTC - Index 7/14/09

5 posts: (1) Sotomayor: Day One--The Home Front; (2) CIA: Pelosi's Political Predator Pounce--The Home Front; (3) Obama's Russia "Reset" Resets Missile Defense & Eastern Europe--Wobble Watch; (4) Obamanomics: Higher Taxes Forever--The Home Front; (5) Afghan Ally's 2001 Atrocity?--Wobble Watch.

LFTC - Sotomayor: Day One

What follows are noteworthy statements and comments from Monday's hearing, part of which I heard live and thus took contemporaneous notes.  I omitted statements from Senators that I thought added little.  Begin first with Judge Sotomayor's 3-page opening statement--actually delivered after all the Senators had made their introductory remarks.  At the heart of her brief, mostly autobiographical statement are these three paragraphs, giving her stated philosophy of applying the law as a judge:

Throughout my seventeen years on the bench, I have witnessed the human consequences of my decisions. Those decisions have been made not to serve the interests of any one litigant, but always to serve the larger interest of impartial justice.

In the past month, many Senators have asked me about my judicial philosophy. It is simple: fidelity to the law. The task of a judge is not to make the law – it is to apply the law. And it is clear, I believe, that my record in two courts reflects my rigorous commitment to interpreting the Constitution according to its terms; interpreting statutes according to their terms and Congress’s intent; and hewing faithfully to precedents established by the Supreme Court and my Circuit Court. In each case I have heard, I have applied the law to the facts at hand.

The process of judging is enhanced when the arguments and concerns of the parties to the litigation are understood and acknowledged. That is why I generally structure my opinions by setting out what the law requires and then by explaining why a contrary position, sympathetic or not, is accepted or rejected. That is how I seek to strengthen both the rule of law and faith in the impartiality of our justice system. My personal and professional experiences help me listen and understand, with the law always commanding the result in every case.

Senator Patrick Leahy (D-VT), who chairs the Senate Judiciary Committee, led off with a statement recounting past instances of prejudice against nominees to to race & religion, cited Judge Sotomayor's respected judicial record, and in pre-emptive fashion declared as unfair any objections raised as to controversial outside statements.

Ranking Minority Senator Jefferson Sessions (R-AL) begain with Stomomayor quotes.  "My experience will reflect the facts I choose to see."  This runs counter, he said, to neutral fact-finding that is central to law.  Re the judge's now famous (or infamous, depending, I suppose, upon point of view) "a wise Latina" (“I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”) the nominee did not misspeak.  He noted that Justice Ginsburg's judicial record, lauded during her confirmation hearing in 1993 (Ginsburg was confirmed 96-3) did not prevent her from assuming a very activist role on the Supreme Court.  Lower court judges are constrained by judicial precedent and consequent fear of reversal, whereas Supreme Court Justices need not fear reversal.  Re "empathy" Sessions stated, reflecting on his extensive appearance in court: "Empathy for one party is always prejudice against another"--as in DiStefano v. Ricci, the New Haven firefighters case.

Former Judiciary Chairman Orrin Hatch (R-UT) noted the three-prong test then-Senator Obama applied to the appeals court nomination (9th Circuit) of Janice Rogers Brown: (1) set aside her personal views and decide each case on the merits alone; (2) "extensively explored" Brown's views in speeches--and she was not up for a Supreme Court seat; (3) "race, gender, life story are important, they cannot distract from the kind of judge she should be."  Senator Obama voted against confirming Janice Rogers Brown.  He also voted to filibuster the nomination of Supreme Court nominee Samuel Alito & voted against confirmation when the filibuster failed, despite Alito's having received the American Bar Association (ABA)'s highest rating.  He also voted against President Bush's first nominee, John Roberts, whose legal qualifications were nonpareil even by legal eagle standards.  Miguel Estrada was qualified & with great life story, but Democrats filibustered his nomination.

Sen. Dianne Feinstein (D-CA) cited 11 cases in which the sitting Supreme Court overturned precedents, some longstanding, in which the Bush nominees joined with the majority.  Supreme Court nominees are not mere "umpires who call balls and strikes."  Experience and philosophy count too, and Sotomayor will brings hers, to the benefit of the Supreme Court.

Sen. Russ Fiengold (D-WI) defined a judicial activist as "someone who reaches a decision you do not like."  He said that Sotomayor's 1002 "wise Latina" Berkeley speech was taken out of context.  Sotomayor's 2001 speech was a formal lecture, titled "A Latina Judge's Voice"; it was the Judge Mario G. Olmos Memorial Lecture.  (Judge Olmos was a California Superior Court judge.)  Her lecture eas published in the Spring 2002 issue of Berkeley La Raza Law Journal, a symposium issue entitled "Raising the Bar: Latino and Latina Presence in the Judiciary and the Struggle for Representation."  Sotomayor gave this speech well after having been elevated in 1998 to the U.S. Court of Appeals, Second Circuit, by President Clinton (she was put on the federal District Court bench in 1990 by George H. W. Bush).  She was, this, one step from the Supreme Court.

Let's review, once more, that "A Latina's Voice" speech.  It ran 4,000 words.  A full 3,000 words, running some 10 pages, discusses nothing BUT race, gender and prejudice.  Here is a key passage, including the "wise Latina" statement:

Whether born from experience or inherent physiological or cultural differences, a possibility I abhor less or discount less than my colleague Judge Cedarbaum, our gender and national origins may and will make a difference in our judging. Justice O'Connor has often been cited as saying that a wise old man and wise old woman will reach the same conclusion in deciding cases. I am not so sure Justice O'Connor is the author of that line since Professor Resnik attributes that line to Supreme Court Justice Coyle. I am also not so sure that I agree with the statement. First, as Professor Martha Minnow has noted, there can never be a universal definition of wise. Second, I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.

Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.

However, to understand takes time and effort, something that not all people are willing to give. For others, their experiences limit their ability to understand the experiences of others. Other simply do not care. Hence, one must accept the proposition that a difference there will be by the presence of women and people of color on the bench. Personal experiences affect the facts that judges choose to see. My hope is that I will take the good from my experiences and extrapolate them further into areas with which I am unfamiliar. I simply do not know exactly what that difference will be in my judging. But I accept there will be some based on my gender and my Latina heritage.

Either Sen. Feingold did not read the speech, or does not care what actually she said then--which also is hard to reconcile with her words quoted from her opening statement.  My boldfacing of her last paragraph above clinches the reality: Sotomayor's race & gender are central to her worldview and WILL affect her judging in key cases.  In the New Haven firefighters case just reversed by the Supreme Court, Sotomayor ruled that firefighter plaintiffs were not even entitled to a jury trial to determine facts; instead, she voted with the majority to grant defendants summary judgment.  Even the four dissenting Justices on the Supreme Court took the position that there should be a trial to determine more fully the facts; thus they disagreed with her on that point.  (The majority, for reasons cited in Justice Alito's concurrence, resolved the case summarily in favor of plaintiff.)  Thus Sotomayor clearly, by any reasonable assessment, voted her race & gender biases in that case.  She can be expected to do so in key cases that come before the Court.

Sen. John Kyl (R-AZ) cited an Hispanic judge (Judge Baez) stating that ethnicity should not bias a decision.  What counts are "not 95 percent of cases, but the 5 percent of cases when the existing law will not reach a decision."  Then a judge's heart decides.  Which Constitutional law professor said that?  Barack Obama.

Sen. Lindsey Graham (R-SC) worried that Judge Sotomayor's words as a sitting judge augur for rulings he will not like, but also said he does not wish to discourage judges from speaking their minds.  Graham indicates he likely will vote for her, deferring to Presidential prerogative.  Graham added that he did not know--could not--what is in Sotomayor's heart; likewise, he said, she could not know what is in his.

Sen. John Cornyn (R-TX), noted in his opening statement 2006 & 2009 statements by Sotomayor rejecting objectivity and referring to foreign law:

So Americans need to know whether you would limit, for example, the scope of the Second Amendment and whether we can count on you to uphold one of the fundamental liberties enshrined in the Bill of Rights. They need to know -- we need to know -- whether you would limit the scope of the Fifth Amendment and whether you would expand the definition of "public use" by which government can take private property from one person and give it to another.

And we need to know whether you will uphold the plain language of the Equal Protection Clause of the 14th Amendment, promising that no state shall deny to any person within its jurisdiction the equal protection of the laws.

Judge, some of your opinions suggest that you would limit some of these constitutional rights, and some of your public statements that have already been mentioned suggest that you would invent rights that do not exist in the Constitution.

For example, in a 2001 speech, you argued that there is no objectivity in law, but only what you called a series of perspectives rooted in life experience of the judge.

In a 2006 speech, you said that judges can and even must change the law, even introducing what you called, quote, "radical change," closed quote, to meet the needs of an evolving society.

In a 2009 speech, you endorsed the use of foreign law in interpreting the American Constitution on the grounds that it gives judges, quote, "good ideas," closed quote, that, quote, "get their creative juices flowing," closed quote.

Sen. Tom Coburn (R-OK) stressed Sotomayor's view that unless we take more account of foreign law we will lose standing in the world.

Polling expert Karlyn Bowman of the American Enterprise Institute discusses the American public's attitude towards Sotomayor.

Bottom Line.  The Big Game is Tuesday and, perhaps, Wednesday.  Enough GOP cards were laid out today so that Sotomayor has fair warning of the lines of questioning the GOP senators will take tomorrow.  If she wishes to get lots of GOP votes, she may need to offer a few explanations.  Stay tuned.

LFTC - CIA: Pelosi's Political Predator Pounce

The Hill reports that House Speaker Nancy Pelosi has decided--along with other top Democrats--to take a plunge on the CIA decision to decline to inform Congress of an assassination plan that never reached operational status.  They calculate that the weekend revelations about plans purportedly including VP Dick Cheney shifts the political balance in their favor.  Thus Democrats are apparently gearing up for a public donnybrook, figuring that it will put the spotlight back on the Bush administration.  This gives them political cover to change the national conversation after the Sotomayor hearings end, and with their health care and cap & trade proposals languishing and with calls for a second stimulus bill politically toxic.  A Washington Post front-pager details legal arguments about assassination versus warfare, and shows perfectly how lawfare advocates can gum up the simplest proposition.

Bottom Line.  Since the target this time is Team Bush and not the CIA directly, Director Leon Panetta, who protected the Agency in May when Nancy Pelosi accused it of lying to Congress, seems to have decided that such an inquiry will not damage the Agency.  This is a mirage, and if an inquiry goes ahead, more damage will be done to the intelligence community by a reckless majority party in the Congress.

LFTC - Obama's Russia "Reset" Resets Missile Defense & Eastern Europe

Charles Krauthammer nails how Moscow took our rookie President to the cleaners last week, by re-linking missile defense to arms agreements on offensive weapons. Richard Nixon's monster mistake in the 1972 SALT I Treaty was just that.  Missile defense development was hampered for 30 years, until in 2001 President Bush gave the permitted 6 months notice and exited the ABM Treaty in December 2001--without the feared objection from Vladimir Putin.  Rest assured that if Obama signs a new agreement with the Russians, this time there will be no exit clause, and essential missile defense development will once again be stifled--just as nuclear threats from rogue nations--recall the North Korean ship, possibly carrying missiles or nuclear material to Burma, which just turned back home--are jumping to a new level of danger.  As for nuclearizing Iran, Reuel Marc Gerecht informs us that though the regime is irremediably split asunder, whoever emerges victorious will pursue Iran's nuclear program.

WSJ editor Melanie Kirkpatrick interviewed James Schlesinger on nuclear weapons deterrence, whose nonpareil national security resume makes him, MK notes, the "Yoda" of nuclear strategists.  JS sees a combination of American utopian and parochial strains undermining support among politicians and the public for maintaining a nuclear arsenal in good shape, to deter aggressors.  We will, JS says, always need nuclear weapons, because in a zero world the prospect of clandestine breakout by one or more hostile nations accumulating a small stock of weapons is a risk we cannot prudently run.

Yet incredibly, the Pentagon's Reliable Replacement Warhead program, intended to upgrade America's nuclear stockpile, is "toxic" on Capitol Hill, Congress having refused to date to fund it--despite that fact that every nuclear power save us continually updates its stockpile, including our European allies.  JS notes that the human capital in the form of knowledge of nuclear weapons design and grasp of complex nuclear deterrence is disappearing as the Cold War recedes into the historical background and Father Time takes its toll.

If the Omniscient One is not careful (he isn't, trusting his Ivy League smarts & charm above mere geostrategic considerations) we will lose Eastern Europe, as he trades missile defense for reduction of arms Russia is phasing out anyway, and for Russian assurances re Eastern Europe given in return for limiting our protective umbrella on the ground there--a gain Russia will swallow whilst retaining the ability to break its promises (it will, whenever convenient).

If 44 trusts Russia's leaders, he should see a recent CBS video clip: Vago Muradian of Defense News TV interviewed a smart guy who has written a book on Afghanistan; the clip (6:07) features Army Times reporter Sean Naylor, who notes that in southern Afghanistan we face three types of adversaries: hard-core Taliban; part-timers who might be bought off; and foreign fighters, superbly equipped with advanced gear, some of whom speak Farsi and some of whom speak Russian.

Anne Applebaum notes that 44 acted as if Dmitri Medvedev runs Russia, when in reality he runs the men's room at the Kremlin (my indelicate phrase, not AA's).  Liz Cheney notes 44's belief in moral equivalence between America and the Soviet Union during the Cold War.

Meanwhile, it took a revolt by State Department career foreign officers to stop the White House from exceeding the traditional percentage limit for political ambassadorial appointees (30 percent, versus 70 percent professional appointees).  Politics, not policy, it seems, drives much of Team Obama's foreign policy.

Bottom Line.  Our rookie President is a legend in his own mind--and those of his ardent true believers.  In real life, 44 is not in Vladimir Putin's league.  Much was made of Sarah Palin's foreign policy inexperience, but at least she, unlike 44, would not trade missile defense--the first operational missile defense base is at Fort Greeley, on Kodiak Island, Alaska.

LFTC - Obamanomics: Higher Taxes Forever

Here are the details on revenues and expenditures as the federal deficit tops $1TR for the first time--in but 9 months of FY09.  For calendar 2009 it could top $2TR if the economy worsens.  Mortimer Zuckerman writes that the economy is "worse than you think" in his WSJ piece; he lists ten reasons that bear close reading.  George Will illuminates Team Obama's program for paying for its extravagances: higher taxes, then higher still, then...you get the idea.  Enjoy a witty, informative column.  Better yet, laugh, then weep.

Then read Michael Barone's dissection of Congressional & presidential fecklessness re cap & trade and health care, with 2009's main achievement so far being passing a stimulus bill whose principal impact to date has been to bail out states' profligate spending--much of that to subsidize public employee unions.  Then weep some more as taxpayer funds go down the proverbial tube.

Then read Robert Samuelson's analysis and historical perspective on federal spending, taxation and deficits, and the sharp left turn Team Obama is taking.  And take out the handkerchief again.  Then read how $413M sent from Washington to New Hampshire has created all of 34 jobs.  Yes, 34!  That equates to $12,147,058.82 per job.  Apply that to about 3 million jobs lost since 44 took office, and you get $36,441,176,460,000.  More than $36 TRILLION.  Now apply the number to the 7.2M people who have lost their jobs in this recession, and you get...$87,458,823,500,000.  More than $87 TRILLION.  They used to say, as New Hampshire goes in the Presidential primary, so goes the nation; leave us hope that as Washington per job spending goes in New Hampshire, it does not do with the other 49 states.

Peter Ferrara, ever creative, proposes raising--yes, raising the tax rate on the bottom 60 percent to zero--yes, zero--percent.  PF explains that currently the Earned Income Tax Credit--an idea first used in California by Governor Ronald--yes, that Ronald--Reagan, to help the poor, and presented by RR in 1972 testimony to the Senate Finance Committee, actually makes the bottom 60 percent of taxpayers net recipients, via refundable tax credits, to the tune of a negative 3.6 percent rate.  PF says: raise the rate to zero and eliminate the credits, and the net is revenue-neutral and taxpayer-neutral, while cleaning up the tax code.  Alas for PF, Team Obama gives income tax credits to people who do not pay income taxes, and are not going to listen.  Rationality and taxation rarely meet in governmental taxation schemes.

Bottom Line.  Tax hikes seem inevitable, but if enacted, will kill economic recovery.  Team Obama--and the rest of America--will learn anew the economic equivalent of finding oneself between the proverbial rock and hard place.

LFTC - Afghan Ally's 2001 Atrocity?

A Friday New York Times front-pager reports that an Afghan warlord ally of ours in 2001 massacred Taliban prisoners by the hundreds--perhaps a few thousand.  The NYT also reports that senior US officials declined to investigate what if true, would represent a war crime committed by an ally.  Can such a cover-up, if it was carried out, be defended--even granting that such conduct is stomach-turning?  On Monday the NYT reported that President Obama intends to look into the matter, and if he deems war crimes were committed, presumably will take action.

Hark back to the years 1941 - 1945.  On June 22, 1941 Hitler's legions hurled themselves into Soviet Russia.  Soviet dictator Josef Stalin became our staunch ally.  Yet Marshall Stalin's genocides matched in scale those of the Nazis.  Yes, there is something especially shocking about how Holocaust victims were murdered, to be sure, but Stalin's mass murder total exceeded that of the Nazis.  So where we to refuse to send vital supplies to the Russians, whose massive armies kept 3 million Germans plus replacements bottled up inside Russia and inflicted millions of casualties?  Defeating a weakened Russia would have freed those divisions to buttress the Western Front, making a Normandy landing impossible, and thus consigned Europe to indefinite Nazi tyranny.  Soviet troops matched Nazi barbarity on the Eastern Front.  Stalin parked his Army outside Warsaw in 1944 and even prevented his European allies and the US from landing troops to protect the Polish Home Army, and thus the Nazis slaughtered nearly all in the Warsaw Ghetto uprising.  We stayed allies of Russia.

Fast forward to 1980, when after the brutal Soviet invasion of December 1979, an heroic Afghan resistance sprung up.  Many leaders of that resistance were warlords who lived to fight the Taliban after 2001.  Russian tactics were extremely brutal--dropping toy-shaped mines to maim Afghan children rather than kill them, making them a burden on Afghan families.  (Charlie Wilson's War, to its credit, told this historical truth.)  Without American aid, not even the heroic Afghan resistance could have prevailed; it took the Stinger surface-to-air missile to take the murderous Hind helicopter, with its awesome firepower, out of the war.  With a Soviet win in Afghanistan, the Cold War might not have ended.

Now we face Taliban & al-Qaeda, whose brutality cannot match in scale that of the two great industrial powers, but whose brutality one-on-one is unspeakable.  Our allies are just as nasty as they were in 1980.  We cannot possibly prevail without local allies.  Is it better we lose?  Or should we then have tried to stage trials and had a global circus that discredited us at the beginning of the fight against al-Qaeda, and undercut domestic support for the war?  Such would have enabled al-Qaeda to keep a safe haven in Afghanistan and prepare virtually unhindered for a sequel to 9/11.

None of this justifies war crimes by our allies.  And if our own troops did this, surely they would have been, and should have been, punished.  Even then, a closed trial, with no photos released, would have been needed to avoid excess damage tot he war effort.

Bottom Line.  Modern Western countries have a profound and civilized unease about harsh tactics used in wars.  This is commendable and understandable.  But practical judgments must be made by commanders, balancing desire for justice against keeping wartime morale up and being able to fight the enemy.  There are no easy, all-purpose answers to this dilemma.  This time, the commanders, if they did "avert an inquiry," as the Gray Lady puts it, made the correct--if painful--call.

LFTC - Index 7/13/09

5 posts: (1) Justice Ginsburg's Sunday Sally for Sotomayor--The Home Front; (2) CIA Targeting Ban: Only in America--Wobble Watch; (3) Palin Derangement Syndrome: Mainstream Media Confession--MSM Murders; (4) "King Canute G8"--"It's the Earth Stupid!"; (5) "The Hurt Locker": America's Heroes Honored--Class & Crass.

LFTC: Justice Ginsburg's Sunday Sally for Sotomayor

Justice Ginsburg's Sally for Sonia.  Yesterday's Sunday Times Magazine article endorsing Supreme Court nominee Sonia Sotomayor by Associate Justice Ruth Bader Ginsburg is without modern precedent.  RG cannot wait for Sonia, and her import is clear.  More LEFTY women.  Excerpts:

Q: At your confirmation hearings in 1993, you talked  about how you hoped to see three or four women on the court. How do you feel about how long it has taken to see simply one more woman nominated?

JUSTICE GINSBURG: My prediction was right for the Supreme Court of Canada. They have Beverley McLachlin as the chief justice, and they have at least three other women. The attrition rate is slow on this court.

Q: Now that Judge Sotomayor has been nominated, how do you feel about that?

JUSTICE GINSBURG: I feel great that I don’t have to be the lone woman around this place.

Q: What has that been like?

JUSTICE GINSBURG: It’s almost like being back in law school in 1956, when there were 9 of us in a class of over 500, so that meant most sections had just 2 women, and you felt that every eye was on you. Every time you went to answer a question, you were answering for your entire sex. It may not have been true, but certainly you felt that way. You were different and the object of curiosity.

Q: Did you feel that this time around from your male colleagues?

JUSTICE GINSBURG: My basic concern about being all alone was the public got the wrong perception of the court. It just doesn’t look right in the year 2009.

Q: Why on a deeper level does it matter? It’s not just the symbolism, right?

JUSTICE GINSBURG: It matters for women to be there at the conference table to be doing everything that the court does. I hope that these hearings for Sonia will be as civil as mine were and Steve Breyer’s were. Ours were unusual in that respect.

Q: Did you think that all the attention to the criticism of Sotomayor as being “bullying” or not as smart is sex-inflected? Does that have to do with the rarity of a woman in her position, and the particular challenges?

JUSTICE GINSBURG: I can’t say that it was just that she was a woman. There are some people in Congress who would criticize severely anyone President Obama nominated. They’ll seize on any handle. One is that she’s a woman, another is that she made the remark about Latina women. [In 2001 Sotomayor said: “I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn’t lived that life.”] And I thought it was ridiculous for them to make a big deal out of that. Think of how many times you’ve said something that you didn’t get out quite right, and you would edit your statement if you could. I’m sure she meant no more than what I mean when I say: Yes, women bring a different life experience to the table. All of our differences make the conference better. That I’m a woman, that’s part of it, that I’m Jewish, that’s part of it, that I grew up in Brooklyn, N.Y., and I went to summer camp in the Adirondacks, all these things are part of me.

Once Justice O’Connor was questioning counsel at oral argument. I thought she was done, so I asked a question, and Sandra said: Just a minute, I’m not finished. So I apologized to her and she said, It’s O.K., Ruth. The guys do it to each other all the time, they step on each other’s questions. And then there appeared an item in USA Today, and the headline was something like“Rude Ruth Interrupts Sandra.”

Q: It seemed to me that male judges do much more abrasive things all the time, and it goes unremarked.

JUSTICE GINSBURG: Yes, the notion that Sonia is an aggressive questioner — what else is new? Has anybody watched Scalia or Breyer up on the bench?

Q: She’ll fit right in?

JUSTICE GINSBURG: She’ll hold her own.

Q: From your point of view, does having another woman on the court matter primarily in terms of the public’s perception, or also for what it feels like to be in conference and on the bench?

JUSTICE GINSBURG: All of those things. What was particularly good was that Sandra and I were different — not cast in the same mold. Sandra gets out two words to my every one. I think that Sonia and I will also be quite different in our style. I think she may be the first justice who didn’t have English as her native language. And she has done just about everything that you can do in law as a prosecutor, in a private firm and on the District Court and the Court of Appeals.

Q: Do you know her well or a little bit?

JUSTICE GINSBURG: I know her because I’m the Second Circuit Justice. So I go once a year to the Judicial Conference.

Q: What do you think about Judge Sotomayor’s frank remarks that she is a product of affirmative action?

JUSTICE GINSBURG: So am I. I was the first tenured woman at Columbia. That was 1972, every law school was looking for its woman. Why? Because Stan Pottinger, who was then head of the office for civil rights of the Department of Health, Education and Welfare, was enforcing the Nixon government contract program. Every university had a contract, and Stan Pottinger would go around and ask, How are you doing on your affirmative-action plan? William McGill, who was then the president of Columbia, was asked by a reporter: How is Columbia doing with its affirmative action? He said, It’s no mistake that the two most recent appointments to the law school are a woman and an African-American man.

Q: And was that you?

JUSTICE GINSBURG: I was the woman. I never would have gotten that invitation from Columbia without the push from the Nixon administration. I understand that there is a thought that people will point to the affirmative-action baby and say she couldn’t have made it if she were judged solely on the merits. But when I got to Columbia I was well regarded by my colleagues even though they certainly disagreed with many of the positions that I was taking. They backed me up: If that’s what I thought, I should be able to speak my mind.

Justice Ginsburg thinks it "ridiculous" that a "remark" about "a wise Latina" is made a big deal.  Probably she hasn't read Sotomayor's formal 2001 speech with several pages drenched in quota talk.  Soon to be Supreme Sonia is a passionate racialist--just as Supreme Ruth is a passionate gender & race ideologue--as illustrated by her dissent in the New Haven firefighters case, steeped in race-consciousness.  No wonder Justice Ginsburg broke precedent to lobby publicly for this nominee.

Legal Ethics and Justice Ginsburg's Interview.  In doing so she may have violated legal ethics governing the conduct of judges.  The American Bar Associations Code of Judicial Conduct.  Consider these canons:

Canon 2. A Judge Should Avoid Impropriety and the Appearance of Impropriety in All Activities

A. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

B. A judge should not allow family, social, political, or other relationships to influence judicial conduct or judgment. A judge should not lend the prestige of office to advance the private interests of others; nor should a judge convey or permit others to convey the impression that they are in a special position of influence. A judge shall not testify as a character witness.

QUESTION: "Lend prestige of office to advance the private interest of others"--does this include advancing someone's desire to serve on the Supreme Court?

Canon 5. A Judge Shall so Conduct the Judge's Extra-Judicial Activities as to Minimize the Risk of Conflict With Judicial Obligations

A. Extra-Judicial Activities in General. A judge shall conduct all of the judge's extra-judicial activities so that they do not:

(1) cast reasonable doubt on the judge's capacity to act impartially as a judge;

(2) demean the judicial office; or

(3) interfere with the proper performance of judicial duties.

Commentary: Complete separation of a judge from extra-judicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives.

Expressions of bias or prejudice by a judge, even outside the judge's judicial activities, may cast reasonable doubt on the judge's capacity to act impartially as a judge. Expressions that may do so include jokes or other remarks demeaning individuals on the basis of their race, sex, religion, national origin, disability, age, sexual orientation or socioeconomic status. See Section 2C and accompanying Commentary.

QUESTIONS: How impartial does Justice Ginsburg sound?  Does not praising "a wise Latina" racialist arguably demean white males?

Canon 7. A Judge Shall Refrain From Political Activity

A. A judge shall not:

(1) act as a leader or hold any office in a political organization;

(2) make speeches for a political organization or candidate or publicly endorse a candidate for public office;

(3) attend political functions that are likely to be considered as being political in nature;

(4) solicit funds or pay an assessment or make a contribution to a political organization or candidate, or purchase tickets for political party dinners or other functions;

B. A judge shall resign from office when the judge becomes a candidate for an elective public office or for a nomination thereto.

C. A judge shall not otherwise engage in any political activity.

QUESTION; Does not lobbying the Senate to confirm a judicial appointee constitute engaging in "other political activity"?

Cases Versus Speeches: Why Supreme Court Nominee Speeches May Matter More.  Judge Andrew Napolitano well summed up Sotomayor's record: Her court rulings are within what passes for mainstream today; but her statements, such as "wise Latina," are well outside it.  Ordinarily a judicial confirmation is--and should be--determined by he first.  But Supreme Court nominations are different.  Because Supreme Court Justices are not only tenured for life, but, unlike lower federal court judges, are at the very top of America's legal pyramid and thus have zero fear of being reversed by higher legal authority, their views expressed outside the courtroom take on far greater significance.  Thus, a strong ideological judge may well temper such sentiments sitting on lower courts, lest promotion be made impossible by repeated reversals; but once at the apex, all judicial--and hence, constitutional--bets are off.

Questions for and Answers About Sotomayor.  Jed Babbin of Human Events has questions for nominee Sonia.  JB focuses on racial quota activism, judicial bias versus contrary factual evidence (per the New Haven firefighters case), gun rights, international law versus supremacy of Constitutional law, and rights of the unborn.  First Amendment superstar Floyd Abrams recounts two cases he argued before Judge Sotmomayor, in which she performed very well, asking questions that Abrams calls "tough and fair, demanding and acute."

But the hearings will be a Kabuki ritual, as this NY Times front-pager explains.  Nominees practice to dance around questions:

In general, though, nominees are apt to dodge questions.

“Justice Ginsburg’s favored technique took the form of a pincer movement,” Elena Kagan, now the United States solicitor general, wrote in The University of Chicago Law Review in 1995. If a question was too specific, she would decline to answer on the ground that she did not want to forecast a vote. If it was too general, she would say a judge should not deal in abstractions or hypothetical questions.

“Some room may have remained in theory between these two responses; perhaps a senator could learn something about Justice Ginsburg’s legal views if he pitched his question at precisely the right level of generality,” wrote Ms. Kagan, then a law professor at the University of Chicago.

There is a significant exception to this rule, one illustrated in Justice Ginsburg’s hearings. Nominees often feel free, or are even required, to discuss their writings off the bench.

The last nominee to err on the side of candor was Robert Bork, voted down 58-42 in 1987:

It is possible to be too candid, as Judge Robert H. Bork learned in giving the nation a guided tour of his judicial philosophy in 1987, which included a narrow understanding of the right to privacy and the scope of the First Amendment. “He was honest and forthcoming, and it was a suicide mission,” said Steven Lubet, a law professor at Northwestern. “It was self-immolation.” The Senate rejected Judge Bork’s nomination.

Meanwhile, guerrilla warfare looms: Sonia supporters are asking reporters to probe Frank Ricci, the New Haven firefighter who will testify at the Senate hearing.

My Question for Sotomayor.  "Judge Sotomayor, in a 2001 Berkeley speech you said: 'I would hope that a wise Latina woman with the richness of her experiences would more often than not reach a better conclusion than a white male who hasn't lived that life.'  My question is this: 'Are there any areas of life where the richness of a white male's experiences would more often than not enable him reach a better conclusion than a wise Latina?'"

Akron Coda.  The cost of P.C, race consciousness was illustrated dramatically over Independence Weekend, when a South Akron, Ohio mob of black teens sucker-punched a white male and attacked his family and friends, including a teenage girl; only one male, a construction worker, was seriously injured.  The mob shouted "This is our world!" and "This is a black world!" as they pummeled the victims, all white.  The police, true to P.C. form, are not treating the attack as a hate crime, something there is zero doubt they would do were the races of attacking mob and victims reversed.

This is the dark side (no pun intended) of the world that Justices like Ginsburg and Justice-to-be Sotomayor will perpetuate, should their racialist hyper-consciousness become more deeply embedded in Supreme Court jurisprudence and, consequently, the civic ethos.

Bottom Line.  Judge Sotomayor will be confirmed, unless she makes the mistake (she won't) of matching the candor of Robert Bork.  She will not make that mistake, and if she looks about to make it under hard GOP questioning, look for the Democrats running the Senate show to intercede.  Once elevated, Sotomayor will be free to chart her own judicial course.  In a war between judicial discipline and deep-seated racialist and gender passion, the latter will win in key cases.  Such cases will not represent most of the work done at the Court, but a few landmark rulings matter more than the great mass of cases.  Age 54, Sotomayor figures to be on the Court for decades.  As for Justice Ginsburg, she seems to have violated legal ethics, but do not expect the ABA to stir, as she is regarded as a God by much of the legal fraternity.

LFTC - CIA Targeting Ban: Only in America

The Wall Street Journal reports that the CIA plan Congress is now screaming about, which was canceled before it became operational, was one of using targeted kidnappings and assassinations of senior al-Qaeda leaders.  Ultimately President Bush did issue an order authorizing such efforts, provided that killing was only done if capture seemed too risky, but nothing came of it.  CIA Director Leon Panetta officially killed it June 23.

Only in America can something like this be controversial.  Still on the books--unique in the world--are the Ford (EO 11905) & Reagan (EO 12333) Executive Orders banning assassination as a tool of policy.  Only in America is the Legislative branch regularly briefed on intelligence operations.  Only in America do such things leak to the press like Niagara Falls on a rainy Sunday.  Only in America is this a scandal.  Only in America does the Judiciary intervene on matters like this (as happened with the late-1980s Iran-contra prosecutions of several intelligence officers).  Only in America does the Legislative branch conduct periodic public inquisitions of intelligence activities and personnel.  It even does so, Jed Babbin of Human Events notes, to protect its own members from their own sins committed against the agency, such as Nancy Pelosi's lies while serving as Speaker of the House.

Think of it.  Because of the assassinations ban it would have been illegal to knock off Saddam and his satanic sons, in lieu of launching the Iraq War.  It would be illegal to send in special ops to kill bin Laden and Zawahiri, though we launch Predator strikes that kill innocent civilians when they go awry.  To be sure, many Predator strikes have been effective, and many casualty reports inaccurate, yet as the WSJ editors report, even successful Predator strikes are drawing domestic and international fire (even from our allies).  None of these operations would have been easy--in truth, near impossible, due to lack of in-country assets and local intelligence, but in principle we should have had no qualms about doing so.

Israel doesn't.  The Israelis have targeted not only terrorists but those helping them.  They first warned gun designer Gerald Bull to stop working on a super-gun for Saddam, and then, when Bull kept on, they assassinated him in Paris.  The Israelis have slowed the Iranian nuclear program by killing certain key Iranian personnel they were able to find and reach.  Nor do France or Russia have qualms.

Part of the blame, too, falls on President Bush, for not--the day after 9/11-revoking the two executive orders banning assassination.  Outside of "the usual suspects" how many Americans would have thought it wrong to kill bin Laden on sight after 9/11?  In 1998, Bill Clinton ordered a cruise missile strike aimed at bin Laden, missing by a few hours when Pakistani intelligence, told of the missile overflight, warned bin Laden.  Clearly it violated the policy, but Clinton's lawyers found a loophole, which should not have been necessary.  The only thing wrong Clinton did was inform the Pakistanis, whose intelligence services are riven with Islamists.

Bottom Line.  There is no chance, of course, that President Obama will revoke the two offending orders.  America will continue to have a Goody Two-Shoes intelligence policy that strips it of potentially vital tools for fighting our enemies.  We may, one day, pay a fearful prices for such foolishness and moral grandstanding.

LFTC - Palin Derangement Syndrome: MainStream Media Confession

Reporter Carl Cannon posted a stunning article Friday on AOL Politics Daily, conceding MainStream Media (MSM) bias against Sarah Palin versus Joe Biden during the 2008 election:

In the 2008 election, we took sides, straight and simple, particularly with regard to the vice presidential race. I don't know that we played a decisive role in that campaign, and I'm not saying the better side lost. What I am saying is that we simply didn't hold Joe Biden to the same standard as Sarah Palin, and for me, the real loser in this sordid tale is my chosen profession.

Later on in the article, after a brief historical survey, Cannon provides numerous specific examples of outrageous commentary, false accusations, disregard of contrary evidence, crude caricature, etc.  Read this astonishing admission by an MSM member, who is to be praised for coming out with the truth.

Meanwhile, California political legend Willie Brown says that the Palin-is finished pundits are wrong, and that Palin is a political genius.

Bottom Line.  Palin Derangement Syndrome will surely persist.  And harassment of her will continue after she departs the governorship.  But at least there are cracks in the facade of MSM, and in the long run perhaps more MSM types--some of whom are fair-minded--will apply a rule of reason in assessing Palin, treating her more like they treat other candidates.

LFTC - "King Canute G8"

A Wall Street Journal editorial captures last week's G8 Summit climate change posturing perfectly: It is like King Canute's attempt to roll back the tides.  Among the tides, according to an Australian online news source, is that in most places the Antarctic ice cap is growing, not shrinking, as Al Gore & Friends scream at the top of their lungs:

The results of ice-core drilling and sea ice monitoring indicate there is no large-scale melting of ice over most of Antarctica, although experts are concerned at ice losses on the continent's western coast.

Antarctica has 90 per cent of the Earth's ice and 80 per cent of its fresh water, The Australian reports. Extensive melting of Antarctic ice sheets would be required to raise sea levels substantially, and ice is melting in parts of west Antarctica. The destabilisation of the Wilkins ice shelf generated international headlines this month.

However, the picture is very different in east Antarctica, which includes the territory claimed by Australia.

East Antarctica is four times the size of west Antarctica and parts of it are cooling. The Scientific Committee on Antarctic Research report prepared for last week's meeting of Antarctic Treaty nations in Washington noted the South Pole had shown "significant cooling in recent decades".

Ice in the West has been "calving"--geologist-speak for chunks dropping off the continental shelf into the water; this is a common phenomenon.  Both Australian & British surveys show overall Antarctic cooling over the past three decades. The Spectator Online recounts how an Australian geologist has debunked climate change in a new book, Heaven and Earth (2009).  As the excellent two-pager notes, the Australian government may well fall over PM Kevin Rudd's climate change hawkish push for cap & trade, which has passed the House but if rejected by a skeptical Senate twice, will force dissolution of the Rudd government.  If so, Down Under will be, as to global climate (and other issues, too), Up Over.

Not a moment too soon, as Al Gore has just said that climate change initiatives would advance global governance--unsaid is that such suzerainty would be exercised by Gore and his fellow trans-nationalist elites.  Here is the latest dumb Big Idea: "greening" the Internet by improving energy efficiency; energy efficiency gains have consistently been consumed by new applications, for decades.  And here is the latest Dumb Royal Enviro-Pronouncement from Prince Charles: Charles gives us 8 years to save the planet.

After giving major examples worldwide of nations backing away from climate change proposals and Green energy projects, the WSJ editorial aptly ends with this gem:

In the legend of Canute, the king, after failing to stop the rising tide, told the assembled crowd: "Let all men know how empty and worthless is the power of kings, for there is none worthy of the name, but He whom heaven, earth and sea obey by eternal laws." If a medieval monarch could draw the right conclusion, how hard can it be for his sophisticated 21st-century successors?

Bottom Line.  Climate change hysteria has peaked.  The global economic meltdown, and prospects of protracted bad economic times, are the proverbial dark cloud with a sliver lining: saving trillions of dollars worldwide as economic reality tempers the push for Green policies.

LFTC - "The Hurt Locker": America's Heroes Honored

Read this fine Washington Post review of "The Hurt Locker," a stunning film about our military's challenge in Iraq.

"The Hurt Locker" (2009), opened July 26 in NYC & LA; a second wave of roll-outs came July 10, to Washington DC and other major cities..  "Hurt Locker" is military-speak for where wounded are taken.  It is a gritty, realistic tribute to an Army bomb squad working in Iraq--desperately dangerous and essential to quelling the insurgency.  A regular LFTC reader attended the film with me yesterday, and perfectly captured its essence: it is more documentary than story.

But what a documentary!  Searing, with one 5-minute scene not for the faint of heart, the film educates us vicariously--to the degree that a film can--as to just how dangerous and wearing our military's mission in Iraq has been.  Counter-insurgency confronts soldiers daily with ambiguous situations where misjudgments can either lead to injury or death for soldiers, civilians or the bad guys (or all three).  The insurgents are stupefyingly brutal.  An outside power has two routes to victory: (1) extreme mass brutality, as the Nazis or Soviets or many Arab regimes or non-Arab Iran or North Korea would have done; or (2) winning local hearts & minds by putting protection of innocent civilian life first--even at the cost of higher force casualties and even if the beneficiaries are not notably grateful (or are, but are afraid to show it).  America, and its soldiers, have nobly chosen the latter--at great cost to our soldiers' lives, that they willingly, heroically accept.

Here is the film's official website.  The Video tab offers a trailer; the theaters tab gives the schedule.  Above all, LFTC readers, see this film.