Wampum

On this day in history

Behold the Saturday Night Massacre:

Nixon Forces Firing of Cox; Richardson, Ruckelshaus Quit
President Abolishes Prosecutor's Office; FBI Seals Records
By Carroll Kilpatrick
Washington Post Staff Writer
Sunday, October 21, 1973; Page A01

In the most traumatic government upheaval of the Watergate crisis, President Nixon yesterday discharged Special Prosecutor Archibald Cox and accepted the resignations of Attorney General Elliot L. Richardson and Deputy Attorney General William D. Ruckelshaus.

The President also abolished the office of the special prosecutor and turned over to the Justice Department the entire responsibility for further investigation and prosecution of suspects and defendants in Watergate and related cases.

Shortly after the White House announcement, FBI agents sealed off the offices of Richardson and Ruckelshaus in the Justice Department and at Cox's headquarters in an office building on K Street NW.

An FBI spokesman said the agents moved in "at the request of the White House."

Agents told staff members in Cox's office they would be allowed to take out only personal papers. A Justice Department official said the FBI agents and building guards at Richardson's and Ruckelshaus' offices were there "to be sure that nothing was taken out."

Richardson resigned when Mr. Nixon instructed him to fire Cox and Richardson refused. When the President then asked Ruckelshaus to dismiss Cox, he refused, White House spokesman Ronald L. Ziegler said, and he was fired. Ruckelshaus said he resigned.

Finally, the President turned to Solicitor General Robert H. Bork, who by law becomes acting Attorney General when the Attorney General and deputy attorney general are absent, and he carried out the President's order to fire Cox. The letter from the President to Bork also said Ruckelshaus resigned.

These dramatic developments were announced at the White House at 8:25 p.m. after Cox had refused to accept or comply with the terms of an agreement worked out by the President and the Senate Watergate committee under which summarized material from the White House Watergate tapes would be turned over to Cox and the Senate committee.

In announcing the plan Friday night, the President ordered Cox to make no further effort to obtain tapes or other presidential documents.

Cox responded that he could not comply with the President's instructions and elaborated on his refusal and vowed to pursue the tape recordings at a televised news conference yesterday.

That set in motion the chain of events that resulted in the departure of Cox and the two top officials of the Justice Department and immediately raised prospects that the President himself might be impeached or forced to resign.

In a statement last night, Cox said: "Whether ours shall continue to be a government of laws and not of men is now for Congress and ultimately the American people."

The action raised new questions as to whether Congress would proceed to confirm House Minority Leader Gerald R. Ford of Michigan to be Vice President or leave Speaker of the House Carl Albert (D-Okla.) next in line of succession to the highest office in the land.

Richardson met at the White House in the late afternoon with Mr. Nixon and at 8:25 p.m. Ziegler appeared in the White House press room to read a statement outlining the President's decisions.

The President discharged Cox because he "refused to comply with instructions" the President gave him Friday night through the Attorney General, Ziegler said.

Furthermore, Ziegler said, the office of special prosecutor was abolished and its functions have been turned over to the Department of Justice.

The department will carry out the functions of the prosecutor's office "with thoroughness and vigor," Ziegler said.

Mr. Nixon sought to avoid a constitutional confrontation by the action he announced Friday, the press secretary said, to give the courts the information from the tapes which the President had considered privileged.

That action was accepted by "responsible leaders in the Congress and in the country," Ziegler commented, but the special prosecutor "defied" the President's instructions "at a time of serious world crisis" and made it "necessary" for the President to discharge him.

Before taking action, Ziegler said, the President met with Richardson to instruct him to dismiss Cox, but Richardson felt he could not do so because it conflicted with the promise he had made to the Senate, Ziegler said.

After Richardson submitted his resignation, the President directed Ruckelshaus to dismiss Cox. When Ruckelshaus refused to carry out the President's directive, he also was "discharged," Ziegler said. The President's letter to Bork said Ruckelshaus resigned.

Mr. Nixon then directed Bork to carry out the instruction. Bork did so in a two-paragraph letter to Cox, in which he said that at the instruction of the President he was "discharging you, effective at once, from your position as special prosecutor, Watergate special prosecution force."

Bork signed his letter as "acting Attorney General."

Richardson told the President in his letter that he was resigning with "deep regret." He explained that when named Attorney General "you gave me the authority to name a special prosecutor."

"At many points throughout the nomination hearings, I reaffirmed my intention to assure the independence of the special prosecutor," Richardson said.

He said he promised that Cox would not be dismissed except for "extraordinary improprieties."

"While I fully respect the reasons that have led you to conclude that the special prosecutor must be discharged, I trust that you understand that I could not in the light of these firm and repeated commitments carry out your direction that this be done," Richardson said.

Richardson expressed "lasting gratitude" to the President, under whom he also served as under secretary of state, Secretary of Health, Education and Welfare and Secretary of Defense. He became Attorney General in May after the resignation of Richard G. Kleindienst, who explained that because of his close association with former Attorney General John N. Mitchell and others involved in Watergate he did not believe he should stay in the post and carry out their prosecution.

"It has been a privilege to share in your efforts to make the structure of world peace more stable and the structure of our own government more responsive," Richardson wrote Mr. Nixon.

"I believe profoundly in the rightness and importance of those efforts, and I trust that they will meet with increasing success in the remaining years of your presidency."

The President replied with a one-sentence letter, addressed "Dear Elliott." It said: "It is with the deepest regret and with an understanding of the circumstances which brought you to your decision that I accept your resignation."

The White House did not release an exchange of letters between Ruckelshaus and the President. But Ruckelshaus wrote a resignation letter and released it.

In a letter to Bork, the President, noting that by law he was acting Attorney General, said that Cox had "made it apparent that he will not comply with the instructions I issued to him."

"Clearly the government of the United States cannot function if employees of the executive branch are free to ignore in this fashion the instructions of the President," Mr. Nixon wrote.

"Accordingly, in your capacity of acting Attorney General, I direct you to discharge Mr. Cox immediately and to take all steps necessary to return to the Department of Justice the functions now being performed by the Watergate Special Prosecution Force.

"It is my expectation that the Department of Justice will continue with full vigor the investigations and prosecutions that had been entrusted to the Watergate special prosecution force."

At the Justice Department, where there were repeated requests by newsmen to interview Richardson and Ruckelshaus, department spokesman John W. Hushen said they had "no desire to come out and talk to newsmen."

Hushen quoted Bork: "All I will say is that I carried out the President's directive."

Hushen said that Richardson would hold a news conference "within a few days." Beginning about 8 p.m., Richardson spent an hour or so calling "relatives, friends and associates," Hushen said.

White House aides, visibly shocked by the developments, argued that when direct quotations from the presidential tapes are released they will restore confidence in the President.

Sen. John Stennis (D-Miss.), picked by Mr. Nixon to listen to all the tapes, will have "unlimited" access to the pertinent recordings and can decide what should or should not be disclosed.

Stennis is expected to begin listening to them soon, possibly early this week. Those requested by the special prosecutor run 10 hours and one minute. Stennis may decide to listen to all or parts of them more than once. He will be the only one to do so. The President's statement on the tapes and excerpts from them will be delivered to the U.S. District Court here and to the Senate Watergate committee at the same time, officials said.

Lexis-Nexis request

Can anyone with Lexis access send me a copy of this article?

C.I.A. ON USING JOURNALISTS
June 9, 1982, Wednesday
By JUDITH MILLER, SPECIAL TO THE NEW YORK TIMES (NYT); National Desk
Late City Final Edition, Section B, Page 14, Column 5, 395 words

DISPLAYING FIRST 50 OF 395 WORDS -Six years after the Central Intelligence Agency restricted the use of journalists as intelligence agents, the C.I.A. has reluctantly disclosed that journalists were used before the restriction in a variety of roles, ranging from couriers to case officers who secretly supervised other agents. In a sworn statement submitted by...

I would very much appreciate it.

Update: A kind soul sent it - Thank you.

Mud People

The corporatist faction of the RNC messages that Global Warming is, like evolution, just a theory. The religious faction of the RNC messages that the theoretical basis for Global Warming, scientific study of greenhouse gases and carbon budgets is both irreligious, and suspect for ... being insufficiently sheeted.

Unfortunately, the interest groups that form the DNC, "net roots" included, are attached to Kyoto as a form of tactical opposition to the RNC, and are not committed to industrial, urban, and suburban environmental policies. There is nothing that ties sustainability to jobs and human rights, in spite of Bill Clinton's messaging that "jobs" and "ecology" are not mutually exclusive choices at the voting booths.

That leaves a large area of science and public policy without any effective advocacy interest group.

I'd like to consider the Green Party an effective advocacy interest group, but my enrollment in the Maine Independent Green Party did not remove me from the reality-based community.

The water level reported at the Iquitos station in Peru is the lowest in 35 years, and the flow level for much of the past 10 years has been lower than average. For much of Amazonia, the Amazon was the sole means of transportation, and the towns and villages that were formerly connected to each other and the rest of the world -- by steamers -- are now isolated, or connected by much shallower draft vessels. The transportation grid in interior Brazil and Peru has become ... mud.

Dwight wrote about the Bush-Cheney '04 campaign's Global Warming messaging on December 1st, 2003 in Autism, Thimerosal and the Luntz’ Strategy. It is really worth revisiting:

Is global warming real? Do human activities cause global warming? Those are questions of science. To Frank Luntz, a Republican pollster, those were not the right questions. The right questions involved how to manipulate both science and public opinion to avoid political damage while promoting the financial interests of GOP supporters.

Last spring a memo about global warming, written by Luntz surfaced. The

Guardian reports as follows:

The US Republican party is changing tactics on the environment, avoiding "frightening" phrases such as global warming, after a confidential party memo warned that it is the domestic issue on which George Bush is most vulnerable.

The memo, by the leading Republican consultant Frank Luntz, concedes the party has "lost the environmental communications battle" and urges its politicians to encourage the public in the view that there is no scientific consensus on the dangers of greenhouse gases.

"The scientific debate is closing [against us] but not yet closed. There is still a window of opportunity to challenge the science," Mr Luntz writes in the memo, obtained by the Environmental Working Group, a Washington-based campaigning organisation.

"Voters believe that there is no consensus about global warming within the scientific community. Should the public come to believe that the scientific issues are settled, their views about global warming will change accordingly.

"Therefore, you need to continue to make the lack of scientific certainty a primary issue in the debate."

In order to effectively implement the Luntz strategy, two things were needed. First, a body of information purporting to be science had to be developed. That posed no problem as the parties interested in denying the existence of global warming were wealthy and quite willing to fund “studies” that would help them hold off environmental regulation.
...

The second need is for politicians willing to carry the water of the interest groups by pretending that the science is in doubt. In the global warming context, Exhibit A is Oklahoma Senator James Inhofe. Inhofe has called global warming a “hoax.” He took to the Senate floor to promote the theory the medieval warm period.

The Luntz strategy has been largely successful as the scientific debate over global warming rages, glaciers melt, and policy changes are stalled.

The Washington Times is running the "hurricanes distort the atmospheric water flow" and "deforestation" thesii, but does not mention correlation between water tempratures in the tropical Atlantic and tropical Pacific, which are up between 0.5^oC to 1.0^oC over average. This suggests that the pulp industry is lower down the RNC pecking ladder than the coal companies, since they can be sacrificed as "causal", and coal and hydrocarbon extraction and combustion are unmentionable.

I suggest taking another look at We are homeless & adrift on the sea ice.

Today's cartoon

Setting up a wireless link at St. Mary. See also Category Five:Hurricane Katrina work by wireless community volunteers (on the sidebar under Eric's Projects) for more.

It has been suggested that the Volunteer Wireless Relief Efforts, which range from P-15 to CU to RR to ... Rainbow Tribe, be recognized by NOLA next Mardi Gras -- by a float with an antenna.

Signed Copies

If you print this, your printer will have signed and dated it. Isn't that useful? If the paper originals of the unredacted Niger documents were created using a surprisingly large number of laser printers, Fitzgerald could look for the blue dots that will identify the specific machine and specific date the paper was processed by a printer. I think I'll go print an Impeach petition and a couple of dollar bills to cover certified postage. That should cover both ends of the spectrum.

"Strongest hurricane ever"

Those are the words of meteorologist Jeff Masters, as he describes Hurricane Wilma, which a mere 24 hours ago had just moved from tropical storm to hurricane status:

There has never been a hurricane like Wilma before. With an unbelievable round of intensification that saw the pressure drop 85 mb in just 12 hours, Wilma smashed the all-time record for lowest pressure in an Atlantic hurricane this morning. The 4 am hurricane hunter report put the pressure at 884 mb from a dropsonde, and the meteorologist reported an even lower 881 mb pressure extrapolated from 10,000 feet flight altitude. This easily bests the previous record of 888 mb set in Hurricane Gilbert of 1988. The eye of Wilma during this round of intense deepening oscillated between 2 and 4 nautical miles, and the area of hurricane force winds only covered an area up to 15 miles from the center. This is an incredibly compact, amazingly intense hurricane, the likes of which has never been seen. The Hurricane Season of 2005 keeps topping itself with new firsts, and now boasts three of the five most intense hurricanes of all time--Katrina, Rita, and Wilma.

I'll be back with a much more detailed blog later this morning, when I've had time to digest these events. I'll talk about what it was like to be the flight meteorologist on the Hurricane Gilbert flight that set the previous record for most intense Atlantic hurricane.

We're living history this year, everybody, this is a once-in-a-lifetime hurricane season.

Jeff Masters

Wilma's projected path takes her straight into Florida on Saturday night/Sunday morning. Her current 175 mph winds are expected to weaken somewhat (+/- 125 mph), but still be a major hurricane upon impact.

Update: Also from Wunderblog, meteorologist Steve Gregory commented at 3:20 AM:

892mb and 168Kts, a 2NM eye ....that is beyond comprehension and no doubt has never been observed before. They are 'dive bombing in and out of the center to some degree -- with the climb to 700mb to keep at least several thousand feet off the surface. In some respects, this is almost taking on the characteristics of tornado

One of Many Trials

One trial begins today. The presiding judge is Salem Chalabi, nephew of Ahmed Chalabi. Google for Chalabi and Cheney yeilds nearly a third of a million links. Five other judges will sit on the panel. They were selected by Chalabi, and are unnamed.

The offense charged arises from an incident that took place in the village of Al-Dujail in 1982. In July 1982, a small group of villagers attacked Saddam Hussein's convoy as it traveled through the town, located about 60 kilometers north of Baghdad. As a result, state security forces composed of units from the Iraqi Army, Iraqi Intelligence Service and the Ba'ath Party operated in Al-Dujail. In the following few days, hundreds of people were arrested, and some died in custody. Some Al-Dujail villagers were held for as much as 4 years. In addition, the homes of the families of those arrested were destroyed, as were their fruit groves.

The prosecution will argue that Mr. Hussein, in his capacity as President, ordered the execution of some 60 persons at Al-Dujail. Presumably, this is the strongest prosecutorial case. Presumably, Sunni Nationalists are the intended audience of the trial.

Mr. Hussein is represented by Khaleel Abood Saleh Aldelami (Lead), Ayad Khalef Salem Aljobori
Abdalmuhsen Thaib AlKhrbeed, Salyman Kamel Dawood.

From the Statute of the Iraqi Special Tribunal, SECTION SEVEN, Investigations and Indictment

Rights of the Accused

Article 20.
a) All persons shall be equal before the Tribunal.
b) Everyone shall be presumed innocent until proven guilty before the Tribunal in accordance with the law.
c) In the determination of any charge, the accused shall be entitled to a public hearing, having regard to the provisions of the Statute and the rules of procedure made hereunder.
d) In the determination of any charge against the accused pursuant to the present Statute, the accused shall be entitled to a fair hearing conducted impartially and to the following minimum guarantees:

1.   to be informed promptly and in detail of the nature, cause and content of the charge against him;


2.   to have adequate time and facilities for the preparation of his defense and to communicate freely with counsel of his own choosing in confidence. The accused is entitled to have non-Iraqi legal representation, so long as the principal lawyer of such accused is Iraqi;


3.   to be tried without undue delay;


4.   to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;


5.   to examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him. The accused shall also be entitled to raise defences and to present other evidence admissible under this Statute and Iraqi law; and


6.   not to be compelled to testify against himself or to confess guilt, and to remain silent, without such silence being a consideration in the determination of guilt or innocence.

From the Iraq Interim Constitution, 1970, Chapter III

Fundamental Rights and Duties

Article 19 [Equality]

(a) Citizens are equal before the law, without discrimination because of sex, blood, language, social origin, or religion.
(b) Equal opportunities are guaranteed to all citizens, according to the law.

Article 20 [Criminal Trial]

(a) An accused is presumed to be innocent, until proved guilty at a legal trial.
(b) The right of defense is sacred, in all stages of proceedings and prosecution.
(c) Courts sessions are public, unless it becomes secret by a court's decision.

Article 21 [Penalty, Punishment]

(a) Penalty is personal.
(b) There can be no crime, nor punishment, except in conformity with the law. No penalty shall be imposed, except for acts punishable by the law, while they are committed. A severer penalty than that prescribed by the law, when the act was committed, cannot be inflicted.

The International Military Tribunal created August 8th, 1945 by the Government of the United States of America, the Provisional Government of the French Republic, the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the Union of Soviet Socialist Republics, at Nuremburg, on 21 November 1945, rejected the defense motion of 19 November for an internationally recognized authorities on international law on the legal elements of this Trial under the Charter of the Tribunal [on the issue of Nulla poena sine lege (Latin: "no penalty without a law")], ruling that in so far as it was a plea to the jurisdiction of the Tribunal it was in conflict with Article 3 of the Charter.

Zoinks

Proof Positive

Matthew Yglesias, writing in a American Prospect article entitled It’s The Nukes, Stupid reminds us that the reason for the war in Iraq was to prevent Saddam from attacking the United States with nuclear weapons:

We invaded Iraq because this was supposedly the best way to deal with that country's nuclear program, which was, allegedly, highly advanced….

In other words, Hussein not only was going to have a bomb soon, but he was going to use the bomb to attack the United States of America, possibly by giving it to al-Qaeda. This was the reason we went to war.

Yglesias goes to note that much of Washington seems to have forgotten that simple fact, now preferring to believe that promotion of democracy was the reason for the war:

For the past couple of years, the press and the political system have gone into a remarkable amount of denial about this. At some point, Bush changed his mind and decided we went to war in order to build a pluralistic democracy in Iraq. And in light of the WMD realities on the ground, you can see why he did it. Bizarrely, however, huge numbers of other people, including liberal pundits, analysts, and members of Congress, have gone along with this switcheroo. Uranium -- what uranium? Nukes -- what nukes? It's the democracy, stupid.

If you want proof positive that Yglesias is right that the reason for the war was WMD, one need look no further than the words of George W. Bush. Mr. Bush made clear that he would permit Saddam to remain in power, preventing any chance of the development of Iraqi democracy, if, but only if, Saddam disarmed. For instance, on January 2, 2003, Mr. Bush said the following:

First of all, you know, I'm hopeful we won't have to go war, and let's leave it at that...Until Saddam Hussein makes up his mind to disarm -- see, it's his choice to make. See, you need to ask him that question, not me...The question is, will Saddam Hussein disarm. The world has asked him to disarm from weapons of mass destruction. The first indication isn't very positive that he will voluntarily disarm...

You know, Saddam Hussein -- hopefully he realizes we're serious, and hopefully he disarms peacefully. He's a danger to the American people, he's a danger to our friends and allies. For 11 long years, the world has dealt with him. And now he's got to understand, his day of reckoning is coming. And therefore, he must disarm voluntarily, I hope he does.

All right, let's go get a coffee.

On November 3, 2002, Mr. Bush said the following:

And the world is a dangerous place, particularly with people like Saddam Hussein in power.

Saddam Hussein is a man who told the world he wouldn't have weapons of mass destruction, but he's got them. He's a man who a while ago who was close to having a nuclear weapon. Imagine if this madman had a nuclear weapon. It's a man who not only has chemical weapons, but he's used chemical weapons against some of his neighbors. He used chemical weapons, incredibly enough, against his own people. He can't stand America. He can't stand some of our closest friends.

And, not only that, he is -- would like nothing better than to hook-up with one of these shadowy terrorist networks like al Qaeda, provide some weapons and training to them, let them come and do his dirty work, and we wouldn't be able to see his fingerprints on his action.

No, he's a threat...

And my message to Saddam Hussein is that, for the sake of peace, for the sake of freedom, you must disarm like you said you would do. But my message to you all and to the country is this: for the sake of our future freedoms, and for the sake of world peace, if the United Nations can't act, and if Saddam Hussein won't act, the United States will lead a coalition of nations to disarm Saddam Hussein...

Ari Fleisher made clear that disarmament was an alternative to removal of Saddam from power:

MR. FLEISCHER: The President's position is that Saddam Hussein needs to live up to the resolution and disarm. If he does not, he will be disarmed. So that's the President's position, to be clear about what the President is saying.

QUESTION: The President has never said that we want to remove Saddam Hussein from office.

MR. FLEISCHER: The President has said that he hopes that Saddam Hussein and Iraq will comply with the resolution. If they don't, we will disarm them.

QUESTION: In the press conference with Tony Blair, the President didn't say, "We want to remove Saddam Hussein from office"?

MR. FLEISCHER: The President's position is either he will disarm or we will remove him so Iraq is disarmed.

QUESTION: Did he or did he not say that he wants to remove Saddam Hussein, in that press conference with Tony Blair? I mean, is that his position or not?

MR. FLEISCHER: Look, this is an age-old issue and we've gone through this a month ago about can Saddam Hussein disarm.

QUESTION: No, but do we want to remove him from office or not?

MR. FLEISCHER: If he doesn't disarm, yes.

QUESTION: If he does disarm?

MR. FLEISCHER: If Iraq disarms and you have all the other products of the U.N. resolution obeyed and what President Bush called for in New York obeyed, then the regime will have effectively changed. ..This is not very complicated. The objective is to disarm Saddam Hussein and have Saddam Hussein live up to everything that he committed to, that the President called on him to do in his September 12 speech.

As Fleischer said, it was not really very complicated. If Saddam disposed of his WMD, war could be avoided. Saddam had no WMD and George W. Bush was intent on chasing the ghost. Like Matthew Yglesias, it is hard for me to understand why so many people forget.

Can Dick Cheney Be Indicted?

Bloomberg is reporting that Patrick Fitzgerald is taking a hard look at Dick Cheney:

A special counsel is focusing on whether Vice President Dick Cheney played a role in leaking a covert CIA agent's name, according to people familiar with the probe that already threatens top White House aides Karl Rove and Lewis Libby.

The Washington Post also reports:

As the investigation into the leak of a CIA agent's name hurtles to an apparent conclusion, special prosecutor Patrick J. Fitzgerald has zeroed in on the role of Vice President Cheney's office, according to lawyers familiar with the case and government officials. The prosecutor has assembled evidence that suggests Cheney's long-standing tensions with the CIA contributed to the unmasking of operative Valerie Plame.

During Watergate, Leon Jaworski determined that the President could not be indicted while in office. As a result, Richard Nixon was named an un-indicted co-conspirator.

That raises the question of whether or not a Vice President is subject to indictment while in office.

It appears that the answer is in the affirmative. A sitting Vice President is subject to criminal indictment. I come to that conclusion for a number of reasons.

First, it should be noted that the Constitution itself provides no specific grant of immunity from prosecution for a sitting Vice President. The default position is that “no man is above the law.” In the absence of some compelling reason, that default position should apply and a sitting Vice President should be subject to answering for his crimes.

Second, precedent suggests that a Vice President may be indicted. In fact, two sitting Vice Presidents have been indicted. Aaron Burr, while Vice President, was indicted by both New York and New Jersey courts as a result of the duel in which Burr killed Alexander Hamilton.

More recently, Spiro Agnew was subject to a federal indictment for tax evasion and other charges.

Neither Burr nor Agnew asserted and pursued a constitutional challenge to the indictments and no court has ever definitively ruled on the issue. Despite the absence of a definitive court decision, the fact that two sitting Vice Presidents have been indicted suggests that it is possible to do so.

Third, the argument for providing the President immunity from criminal prosecution while in office does not apply with equal force to the Vice President.

It is not difficult to imagine a politically motivated prosecutor, in combination with a compliant Grand Jury, indicting a President for political purposes. The President, while under threat of loss of liberty, might be unable to discharge his or her constitutional duties.

It is that potential impairment of the ability to discharge constitutional duties that argues that the President is immune from indictment while in office. See this Justice Department memo prepared in 2000 (link from Professor Bainbridge).

The OLC memorandum then proceeded to the second part of its constitutional analysis, examining whether criminal proceedings against a sitting President should be barred by the doctrine of separation of powers because such proceedings would "unduly interfere in a direct or formal sense with the conduct of the Presidency." OLC Memo at 27. It was on this ground that the memorandum ultimately concluded that the indictment or criminal prosecution of a sitting President would be unconstitutional.

That argument has great force with regard to a sitting President as the Constitution delegates many duties to the President personally. With regard to Vice Presidents, however, the constitutional delegation of duties is far more limited.

The Constitution delegates few duties to the Vice President. Under Article I, Section 3, Clause 4, the Vice President presides over the Senate and breaks ties. Under the Twenty-Fifth Amendment, the Vice President, along with a majority of the Cabinet, makes the initial determination of the incapacity of the President. Other than waiting for the President to die or become incapacitated, the Vice President has no other constitutional duties.

It is hard to see that depriving the Vice President of the ability to perform those very limited duties would have significant impact on the operation of the government. Thus, the reasons that Presidents should not be subject to criminal process while in office does not apply with equal force to the Vice President.

Finally, scholars of all political stripes seem to agree that the Vice President is subject to indictment. In 1973, Robert Bork, then with the Justice Department, wrote a memo concluding that the Vice President could be indicted:

In response to a motion by the Vice President (Agnew) to enjoin grand jury proceedings against him, then-Solicitor General Robert Bork filed a brief arguing that, consistent with the Constitution, the Vice President could be subject to indictment and criminal prosecution. See Memorandum for the United States Concerning the Vice President's Claim of Constitutional Immunity (filed Oct. 5, 1973), In re Proceedings of the Grand Jury Impaneled December 5, 1972: Application of Spiro T. Agnew, Vice President of the United States (D. Md. 1973) (No. 73-965) ("SG Brief").

More recently, Eric Freedman, of Hofstra University School of Law argued that even sitting Presidents are subject to indictment.

In sum, it appears that there is broad agreement that a sitting Vice President is subject to criminal indictment. None of that, of course, is relevant to the questions of whether or not Vice President Cheney committed a crime or whether or not Patrick Fitzgerald, in his prosecutorial discretion, would choose to indict even if he has the goods. For the answer to those questions, we need to await further developments.

Today's Cartoon

Today's Cartoon is by Mike Lane.

On This Day

Three years ago, October 17, 2002, Brad DeLong noted the cause of the California energy crisis had little to do with environmental regulations and much to do with market manipulation.

Also three years ago, we learned 100 things about Jim Capozzola. The one thing not included on the list is where Jim is now. If you see this Jim, please call or write, MB is worried about you.

Two years ago, Kevin Drum was reporting on an apology from a certain Islam-baiting General.

Public health is always politics

Earlier this year a group of parents with at-risk (unvaccinated) children met with local authorities. When the meeting ended, four of the parents were dead from gun fire and one member of the local law enforcement was treated for a superficial knife wound. It was in one of the 44 local administrative areas in the Kano state of Nigeria, and other than the brief note in Le Monde, which drew attention to the exotic beliefs of the parents, it wasn't news anywere outside of ... one of the 44 local administrative areas in the Kano state of Nigeria.

The sectarian oddity -- the parents belong to a sect which rejects the trapings of modernity -- applies to about 500 children in that area. But that isn't the sole reason why parents choose not to vaccinate. The entire town of Ungogo. also in Kano state, also choose not to vaccinate -- they were promised water and sewage infrastructure -- poliomyelitis (polio) most commonly spreads through contaminated drinking water. Shed through the stool for weeks after a person is infected, it enters through the mouth and multiplies in the intestine -- just like cholera. Ungogo has cholera too. The town council of Ungogo is on record that they want safe water. Every year cholera kills several hundred people in Kano state. Polio and cholera aren't the only pathogens endemic to the human population centers of Kano state which have a fecal-oral transmission vector. The parents of Ungogo don't want the grandparents, parents, children, and infants to be forgotten after the WHO passes out an oral univalent type I vaccine to infants, and continue to have to drink shit soup.

Still larger numbers of parents in Kano state do not want their children to get needle sticks. One concern is the risk of HIV transmission from needle sticks. Another concern is the risk to girls from ... distant, possibly non-altruistic actors. Pfitzer's defense in a case being tried in the US, for deaths that occured in a field trial in Africa, for an anti-meningital product, is that meningitus would have killed as many or more people, so they shouldn't be liable for the people who died as a direct result of having taken Pfitzer's product. Dumping isn't something the Third World, even rural men and women in the most isolated part of Nigera are surprised by, they expect it, it is how the world is.

This can all be tarted up as ignorant Islamic mumbleism, but polio vaccines can be, and are obtained from Moslem Indonesia as from Xtain Europe or North America, and "buy Moslem" is no sillier than buy Blue or buy Coop, or any other top-down affiliate marketing, or bottom-up community preference, and there is a very good case for buying pharmacuticals for Third World consumers from Third World producers. Kano state is the polio hotspot in Nigeria, and Nigeria and Yemen the globe's polio hotspots.

John Kenedy said he was updating the latin civis Romanus sum claim to universality of the human condition, but the the point of his going to West Berlin, surrounded by the Soviet Zone, was to recognized that in the age of fission-fusion weapons delivered by ICBMs, Kansas City was just as "front line" as Berlin divided by die Innerstädtische Grenze. Overkill and prompt mortality had become the universal human condition.

Are we Africans? Outside of the condemned to accelerated death for addiction and/or moral turpitude, IV drug users, First World needle stick does not carry significant HIV risk. First World transfusions have -- over 4,000 hemophiliacs in France, nearly 200 in Iran. It is a long list of killed by medicine, prioir to the systematic heating of blood products in the early 1980s, in the First World. It goes downhill from there, the Second World, Socialist Eastern Europe had both needle stick and transfusion risk much later than the First World, and in sub-saharan Africa, the shared needle for "vitamins" and "medicines" is so close to the present that not all the infected cohort are dead yet.

Our form of "African medicine", the shape of the shared needle in the First, and other Worlds, is the standard multi-dose vial, a vial that is made "safe" by the adulteration of the vaccine by a mercury-based preservative to prevent the growth of bacteria and fungi introduced into the vial by first and subsequent needle penetration of the barrier cap.
As we think through the policies and politics of public health, in particular, polio causation and vaccination, we need to be aware what are the unstated presumptions, the limits of the box. An program of oral uni-valent,type I vaccine that eradicates poliomyelitis, but leaves girls education unimproved, the shit soup no less shitty, the haves undisturbed by the have-nots, and Thimerosal in a significant portion of the vaccine delivery system, and its manufacturers liability proof, has some beneficiaries other than the infants in Kano state Nigeria.

How should Kano authorities handle the polio outbreak? Would you support a Kano law requiring that children of the "simpletons" be vaccinated against polio? Would you support a Kano law requireing the children of Ungogo be vaccinated against polio? Would you support a Kano law that "simpletons" and Ungogo towns people be provided uncontaminated water and functional sewage systems?

Het woord apartheid komt uit het Afrikaans. Het woord is als leenwoord in bijna elke andere taal onvertaald opgenomen.

Een Afrikaner, wat is dat eigenlijk? Ik ben Afrikaaner, en ik ben Afrikaans.

What are we going to do about public health, in America and in Africa? Apartheid is a loanword in many languages other than Afrikaans. Can Apartheid work? If so, for whom?

Will Fitzgerald learn from Walsh's mistakes?

Investigations of the White House, particularly in the hands of Republican Administrations, are far from uncommon in recent US history. While much of the focus is placed on Ken Starr's two-year long witch-hunt of Clinton and associates, the longest investigation (1986 - 1993), and potentially most devastating, in the number and seniority of potential indictees, was Lawrence Walsh's inquest into the events surround the Iran-Contra scandal, plotted and carried out from the White House during the Reagan Administration.

If one considers the Plame controversy to be "too complicated", the facts surrounding Iran-Contra could make your head explode. Here are the basics, for those too young to remember:

1) US hostages were held in Lebanon by Islamic organizations (Hezbollah) with close ties to post-revolution Iran.

2) In July 1985, the Israeli government offered to be an intermediary in a secret deal to sell arms to Iran, with the hope Iran in turn would pressure Lebanese Hezbollah to release the hostages. After the original transaction, the first hostage was freed in September, 1985.

3) The Reagan Administration, pleased with the result, decided to try again, but with a larger cache of weapons, hoping all remaining hostages would be released. Problem was, such an expenditure required Congressional consent. Reagan's NSA advisor, Robert McFarlane, informed Defense Secretary Casper Weinberger's chief military assistant, Major General Colin Powell, to try and procure the missiles anyway. The deal fell through, however, when Iran wasn't thrilled with the initial delivery of Hawk SAMs. Reagan signs a document first terming the policy, "arms-for-hostages".

4) In January, 1986, McFarlane decided to bypass the Israelis, who he felt had failed to negotiate properly with the Iranians, and put his own man, Michael Ledeen, in charge. After some original miscues, the Reagan Administration finally sold, at a huge markup, thousands of missiles to Iran (to aid them in their ongoing war with Iraq.) The original Lebanon hostages were released, but more were taken. The policy was finally discontinued when it was determined to be promoting hostage taking.

5) The sale of the arms produced millions of dollars which could not be merely placed into the US Treasury's bank account. In 1982, Congress passed the Boland Amendment, which prohibited funding Reagan's pet project, the Nicaraguan Contras. McFarlane's successor, John Poindexter, turned the task of using proceeds from the Iranian arms sales to fund the Contras over to his senior assistant, Colonel Oliver North.

6) A Middle Eastern newspaper exposed the "arms-for-hostages" in November, 1986. Four weeks later, under mounting pressure, Reagan appointed the "Tower Commission", named for it's chair, Senator John Tower of Texas. At this point, Reagan claimed complete ignorance of all relevant matters. The Tower Commission implicated Casey, McFarland, Weinberger, Poindexter, and North, but essentially gave Reagan and Vice President George Bush a pass.

It is at this point, on December 18, 1986, that Attorney General Edwin Meese requested the appointment of an Independent Counsel. Lawrence Walsh, a life-long Republican, semi-retired former US Attorney from Oklahoma City, was selected for the job and took over the FBI's investigation, termed "Operation Front Door", initiated by William Webster in late November 26, 1986.

From the beginning, however, Walsh didn't stand a chance. Congress opened its own hearings in the weeks after Walsh arrived in Washington; the Senate Select Committee on Secret Miliary Assistance to Iran and the Nicaraguan Opposition was formally established by Senate Resolution 23 on January 6, 1987, and the House Select Committee to Investigate Covert Arms Transactions with Iran was established by House Resolution 12 on January 7, 1987.

The ranking Republican on the House Select Committee was none other than Congressman Richard Cheney of Wyoming.

Cheney successfully blocked Chairman Lee Aspin's attempts to depose Vice President George H.W. Bush on his knowledge of events surrounding Iran-Contra. He also succeeded in making the final report almost entirely partisan, without a single Republican House member and only three moderate Republican Senators signing onto it. The "minority report" completely exonerated Bush and saved his presidential bid the following year.

For his service, George Bush made Dick Cheney Defense Secretary in 1989.

Republicans on the Select Committee also sought, and received, immunity for many of their key witnesses (North, Weinberger, etc.), despite being warned that it could lead to an inability to later convict them for any discovered crimes. Of course, this is precisely what happened when the appellate court overturned all convictions.

Of course, a true watchdog press could have aided by bringing pressure on controlling politicians. However, in a 1993 article, Robert Parry, who, as a reporter for AP and Newsweek broke many of the original Iran-Contra stories, describes a media atmosphere at the time not dissimilar to today's:

As Lawrence Walsh ends his six-year Iran-contra investigation, Washington insiders are busy judging how big a failure the independent prosecutor has been. "The truth is that when Walsh finally goes home, he will leave a perceived loser," concluded Marjorie Williams in a recent Washington Post profile.

"Loser" is only one of the epithets that the D.C. press corps has hurled at Walsh since he indicted former Defense Secretary Caspar Weinberger a year ago. In journal after influential journal, the eighty-one-year-old ex-federal judge has been likened to Captains Ahab and Queeg, Victor Hugo's Inspector Javert, Coleridge's Ancient Mariner, and even the Inquisition's Torquemada. The trashing of Lawrence Walsh has become a journalistic cottage industry--and has put the press in the disturbing role of objecting to discovery of the truth.

Washington's overt hostility to the investigation, as evidenced in commentaries by liberals as well as conservatives, has even contributed to the success of the Reagan-Bush administrations' long- running cover-up. The assaults on Walsh have served as a kind of peer-group enforcement mechanism that has limited his investigation's options.

James Brosnahan, the San Francisco trial attorney who moved to Washington last fall to prosecute Weinberger (before Bush pardoned him), came to see the unrelenting attacks against Walsh as part of the obstruction of justice. "It was all so transparent that I was disappointed more people didn't pick up on the fact that all they were really trying to do was obstruct the trial of Weinberger," he says.

The final icing on the cake which sunk the Iran-Contra investigation was Bush's pardoning of Weinberger and six others after Walsh discovered Weinberger's handwritten notes on Iran-Contra in the summer of 1988, referenced by Parry above. The notes purportedly proved that not only was Weinberger much more involved than he'd reported to Congress in 1986, but so were Reagan, Bush and Powell, who, post-Gulf War I had achieved an almost god-like status in the eyes of the electorate.

It's rather ironic that many on both the Left and Right, when analyzing the current investigations by SP Fitzgerald on the outing of Valerie Plame, look to Colin Powell as a possible "straight-shooter" whose personal integrity would trump any loyalty he might feel for Bush. That may still be case, but it appears that Powell owes a fairly significant debt to the Bush family. And of course, we have no clue as to what new transgressions might be exposed should the Plame investigation bear fruit.

The facts are that many of the actors in the current Plame Affair have strong ties to Reagan's inner circle and/or Defense Department, including I. Lewis "Scooter" Libby, who served as a Director of Special Projects (1982 - 1985), Donald Rumsfeld, Reagan's Special Envoy to the Middle East (1983 - 1984) and on Reagan's General Advisory Committee on Arms Control (1982 - 1986), and Stephen Hadley, appointed by Reagan to the very important position of Counsel to the Special Review Board, aka, the "Tower Commission". They cut their obstructionist teeth on Iran-Contra, and learned long ago that the media was a powerful tool in the undermining of a special prosecutor and his pet grand jury.

Fitzgerald is a very competent guy. But so was Walsh, and he was sent packing, disgraced, for investigating a case which easily could have brought down a king, and nearly did. Walsh's targets had at their disposal a malleable Congress and self-serving press corps. But even the House of that Congress was ostensibly controlled by Democrats, and the media had yet to be fully corporatized. Thus, Fitzgerald has far more potential landmines to avoid, with much less support. A few pardons here, or Congressional investigations there, and Rove, Scooter and their bosses are sitting pretty for as long as they like.

Fitzgerald then finds himself inducted into the Loser Special Prosecutor/Independent Investigator Hall of Fame. Right next to Lawrence Walsh and Ken Starr.

[Nota bene: I discovered while researching this piece that former Nixon counsel John Dean expressed similar concerns regarding Congress subverting the Plame investigation vis-a-vis Iran-Contra back in January, 2004.)

Polio Outbreak Among Amish in Minnesota

Yahoo News reports:

Residents of an isolated Amish community appear divided on what to do after doctors diagnosed four cases of the polio virus in their children. Some have decided on vaccinations to ward off future polio cases, while others prefer leaving the matter in God's hands.

About two dozen Amish households dot the hillsides in central Minnesota's rolling farm country. On Thursday, state health officials announced the four polio infections — the first known cases in the United States in five years.

The Amish community — it has no official name — has seen a flurry of visitors from the state Health Department after three siblings under 16 were diagnosed. Two weeks earlier, an infant from the community had been diagnosed with polio, and state doctors expect more cases to turn up.

None of the four have developed symptoms, and health officials say most polio cases do not result in paralysis. But they have urged members of the community to be immunized as soon as possible to reduce the chances the virus will spread. Only unvaccinated people are at risk….

"Some people are very open, some people want to think about it, some people just say no," said Harry Hull, the state epidemiologist.

After consulting with Amish community leaders, state and county officials decided to approach families separately about vaccinations to avoid social pressures in the extremely close-knit community.

The Minnesota outbreak is not the first clash between Amish culture and polio:

The last reported cases of paralytic polio in the United States were three in 1999, and three the year before that. There was a significant outbreak in 1979 in Amish communities in Iowa, Wisconsin, Missouri and Pennsylvania.

Many Amish people were vaccinated after that outbreak, said Jane Seward, chief of the viral-vaccine preventable disease unit at the Centers for Disease Control.

Until 2000, the United States used a live virus vaccine for polio — which caused about eight cases of paralytic polio a year. The United States and Canada now use an injected vaccine made from the killed virus, but some Amish still fear that a vaccination could inadvertently infect their children with polio.

The Minnesota case raises many issues about vaccinations and religious belief. It is well settled that health authorities (i.e. the state) may require medical interventions for children over the religious objections of the parents. Jehovah's Witnesses traditionally refused blood transfusions. Courts have upheld forcing such transfusions on the children of Jehovah’s Witnesses. It should be noted that the position of that church towards blood transfusions has changed over the last five years or so.

How should Minnesota authorities handle the polio outbreak? Would you support a Minnesota law requiring that children of the Amish be vaccinated against polio?

On this Date

On this date, October 17, In 2002, Jeanne was posting letters from readers. Those letters included ones on Democracy and the Rule of Law, Education and Western Values, No Real Paradox or Irony, and others. Please read them all.

Meanwhile, on this date in 2003, Julia awarded a coveted Claude Rains Memorial Gambling Awareness Award to

Howie "my wife only worked for Schwarzenegger for a really little while, so that's not like a connection" Kurtz.

Cartoon Of The Day

Today's Cartoon comes from the Greensboro News Record and celebrates Halloween:

Algebra of Armourers

Condi Rice and Jack Staw are flogging shapped charges.

Garrett Birkoff and Saunders McLaine wrote Survey of Modern Algebra, which was my first real algebra text. Condi and Jack, being high-class dilettantes, wouldn't appreciate the irony, or the beauty, in this cite: Garret Birkhoff, et al. "Explosives With Lined Cavities". Journal of Applied Physics. June 1948, p. 563-582. This is the "original" treatise on shaped charges.

Giorgio Ferrari. "The Hows and Whys of Armor Penetration" Military Technology, October 1988, p. 81-96. This is described as "simply the best short summary you'll ever find of how both shaped charges and KE penetrators work their magic". I wish I had a copy. With between 100 and 300 .mil readers every month (the 343 Quartermaster posts had rather wider readership), maybe one will land on the steps to my studiously soft, aluminium skinned travel trailer. Hope springs eternal.

On to Iran.

The claim is that Iran is sending shaped charge munitions, the kind usually delivered in HEAT (High Explosive Anti-Tank) payloads on direct-fire weapons -- the primary weapon of tanks, helicopter- and man-packed rockets -- a few kilograms, sufficient to deliver a metal jet capable of blowing a jet of liquid metal and hot gas into the crew or engineering compartment of an armored vehicle. The primary alternative is the kind usually used in steel structure demolition, again, comically small charges. These use high, or very-high brisance explosives, the kind I wrote about here and here discussing the RDX, HMX and PETN inventories abandoned in-place (transfered to the armed opposition's reserve) by US forces in Iraq.

The last time this nonsense was run was in early August, when MSNBC decided to improve on physics and attribute the rotation and displacement of a 37 ton mass object to a shaped charge. Here is an interesting piece on building a moly jet that cut through 3.4 meters of high-strength armor steel at the Nevada Test Site's Big Explosives Experimental Facility, which is seriously cool. Distinguishing between a jet puncture mark and the blast damage needed to rotate and displace a 37 ton mass is an exercise left to CENTCOM media handlers, and blind mice.

This week's nonsense is that there is some significant causal link between Iran and an uptick in the butcher's bill for Brits in Occupied Iraq. There are big explosions going off in Iran, the explosions at a shopping center in Ahvaz, capital of Khuzestan province killed five people this week. Four earlier bombings in June killed at least eight people, also in Ahvaz. Naturally, these are blamed on the British, that's an Iranian cultural tradition, and the UK has responded in kind.

September 5th, two men were travelling in an armoured Land Rover. When the bomb went off, their vehicle was destroyed, consistent with a the blast effect of a unshaped charge, enhanced with a fragmentation jacket, and the two men killed. The men were Fusilier Donal Anthony Meade, 20, from Plumstead in south east London, and Fusilier Stephen Robert Manning, 22, from Erith in Kent. They will be "sorely missed", according to their former CO, but not by Blair, Straw, or Rice, who are going to use their deaths to sell the message Hamas/Iran/IED to anyone who still believes them.

In related news, Captain Ken Masters, 40, commanding officer of 61 Section of the Royal Military Police Special Investigations Branch (SIB), who was the military officer in charge of all investigations against British troops serving in Iraq, has just taken his own life. He was in charge of investigating the events surrounding the "rescue" a month ago of two SAS troops who were "engaged in undercover surveillance of several senior Iraqi police officers who were suspected of being behind a series of attacks on British troops."

Too much detail

I don't know that Judith Miller is an intelligence officer employed in as a non-official cover (NOC) operative by the Defense Intelligence Agency, or the National Security Agency or the fourth floor (in the seventh corridor of D Ring) of the Pentagon, or in one of the 13 other elements of the Intelligence Community. She does have some of the characteristics of one, with the cover job of being a journalist.

It is hard to imagine someone who hangs out in the Aspen Conference Jet-Set who hasn't come across the ecological factoid that aspen propgates by root suckering to form groups of trees called "clones", and that individual clones can occupy an area from a few tenths of an acre to many acres in size. So a reference to connected-by-roots hardly needs to be temporally or spatially specific.

I'm mildly curious why I should should think about Scooter, and not any other particular person and why I should think about August 2003, and not any other particular point in time, and why I should think about Wyoming and not any other particular place in the US, the UK, even Iraq. There are lots of places and people in Judith Miller's ouvre as operative-as-reporter that are just as interesting and where nexi of acts and intents appear to exist -- the unexplored territory leading up to her exchange of email with Ministry of Defence scientist David Kelly on July 17th, 2003, his death hours latter, and the implications of Lord Hutton's investigation into the death, for one, and I'm sure there are lots of other.

Well, I've got melting kids and Mark Kleiman, Empty Wheel at the Last Hurrah, Jane at Fire Dog Lake, and Digby are the manditory Plame v Miller reads.

Update: The evidence taken before the Foreign Affairs Committee on Tuesday 15 July 2003 -- the interview Judy Miller is so ... oddly aware of, and wants David Kelly to know she, and the person or persons using her to signal Dr. Kelly, is here What is odd is how much effort David Kelly goes to to avoid answering the rather mild question of whether or not he'd recently communicated with journalists. He was asked to provide the investigating committee with a list of journalists he'd had communications with by Thursday, the 17th, which he agreed, or perhaps he didn't agree, to do via the MOD. And of course he died first.

On This Day…

Three years ago, October 16, 2002, Jeff Cooper decided to take a break from blogging. In announcing his break, Jeff quoted Patrick Nielsen Hayden by way of identifying what is undoubtedly the best topic sentence ever in a blog post:

Matthew Yglesias began a post the other day by writing: "Chris Bertram has a discussion of this Thomas Pogge article (which I will read as soon as I'm done blogging about it)…." To which Patrick Nielsen Hayden responded: "Matthew Yglesias has the ultimate blog post opening. Blogging is over now. Everyone, go home and reintroduce yourselves to your spouses and significant others."

Sam Heldman noted the beginnings of the Roy Moore Ten Commandments fiasco:

There's a trial going on in the U.S. District Court for the Middle District of Alabama (that's the one in Montgomery), challenging the installation of a Ten Commandments statue in the State Supreme Court's building. The statue was placed there secretly by Chief Justice Moore, who also made national news with his views in a custody case, that (among other things) homosexuality is an abomination. The federal judge hearing the Ten Commandments-statue case, Judge Thompson, is extraordinarily scholarly. He also sometimes takes some time to issue rulings (presumably because he wants to be meticulous), so do not be surprised if this trial fails to end with a ruling from the bench.

Also three years ago today, some guy at a blog called Politics, Law, and Autism started as series in which he compared economic performance by the party of the President:

The twenty years of budgets prepared by Republican presidents increased the national debt by $3.8 trillion. The average yearly deficit under Republican budgets was $190 billion.

The twenty years of budgets prepared by Democratic presidents increased the national debt by $719.5 billion. The average yearly deficit under Democratic budgets was $36 billion.

Bye Scooter!

As a special gift the developer is giving each person that buys a unit at The Meridian South beach condoninium the Other Place a FREE Vespa.

Wave at Dickie as you pass. Remember "is and will remain an undercover officer".

Riverbend's The Referendum...

Her post today is a must read. Just mouse on the cover of her book on the sidebar.

Very Nice Autumn Pictures

Autumn must come early in New England. NTodd has some wonderful pictures to prove it.

Pass the White Out Please

Another document is ... scheduled for liquidation. The government made an unusual request yesterday to a federal appeals court for an order that would expunge reports that have not been adopted by the federal district court. The targeted document are reports written by former special master Alan Balaran in the Indian Trust case.

Chief Judge Donald H. Ginsburg, U.S. Court of Appeals for the District of Columbia, cautioned the government that it was seeking an extraordinary action by the appeals court, especially in a case where it had shown "no tangible consequences" of the Balaran reports affecting the litigation.

Judge A. Raymond Randolph asked "What does that mean?" as he attempted to dissect what the government meant by its request to "vacate" reports.

I've a copy of the Interim Report of the Special Master Regarding the Filing of Interior's Eight Quarterly Report, which is interesting bureaucratic reading. Its 54 pages, 112kB.

The government has another motion, also pending before the appeals court, to remove U.S. District Judge Royce Lamberth, who has presided over the lawsuit, titled Cobell versus Norton, since the inception of the case in 1996. A date has not been set for a hearing on that request.

Cross-posted to Triballaw.

Wallace et Gromit, c'est nous.

We live, as Wallace and Gromit, between a "W" and a "G", and like the stylists imitated by Yellow Cake Forgery Unit this week, we care rather more for the missing legitimate successor to the office created by the Continental Congress, than we do for the buffoon we'd prefer went missing, or wouldn't miss if he followed his minions to relaxing vacations at various Federal minimum security spas and retreats. In this, we are domestic Shia. The "and his family" by a Salafi is as unlikely as snowfall in Miami.

Like Wallace and Gromit, we are also troubled by were rabbits, Iraqi WMDs, and prospects of sexed up Downing Street memos being breathlessly sold in every media market in ... a cartoon of a country.

How many times has the Office of the Secretary of Defense (proxy-xx.osd.mil) fetched the Koufax award posts?

Quite a few. 112 times this month, for the 2003 award post, ditto for the 2004 award post, and another 43 times for the October is Koufax Pledge Drive month.

Its really just four drone boxen that hit us at clocked intervals. Another pair of drones at Headquarter of the Army (hqda.pentagon.mil) run the same ruleset.

But if Rummy and England (who should never be confirmed as A/SecDef, or confirmed as SecNav), and Dr. Francis J. Harvey, SecArmy, care about the Koufax Awards, they should open their wallets like all of Wampum's readers have. If they can't use PayPal or Amazon to MIPR us some turkee, they could send us something they have and don't need and we could use. There is a carrier coming off the Forces list for 2006 and I've always wanted a carrier to fill out my bathtub task force. That would be fine.

Enjoy the graphics guys.

Today's Cartoon

Today's Cartoon is from John Trever of the The Albuquerque Journal:

On This Day

Today is October 15, 2005. On October 15, 2002, Charles Dodgson at Through The Looking Glass wrote a prescient post concerning the inadequacy of the administration's pre-war planning.

But it's not as if Cheney and Rumsfeld are just Bush I retreads trying to redo the Gulf War. It's important to remember they're older than that. They are, in fact, Nixon administration retreads trying to redo Vietnam --- a war where technical superiority and early large set-piece victories … didn't exactly prefigure success...

Charles wrote that post several months before the invasion of Iraq.

Kevin at Lean Left shows us how little the issues have changed in the last two years. On October 15, 2003, Kevin wrote several short posts including one about reporters identifying their sources (in the Wen Ho Lee case), the lack of security on paperless voting machines, a report of a poll on whether the public takes the Valerie Plame matter seriously, and a note that Colin Powell mislead the country in his UN presentation about Iraq. Those issues certainly have not disappeared in the last two years.

If the two or three year anniversary of a post of which you are particularly proud is approaching, please send us a link so that we may include it in a "On This Day" post.

Notes to Progressive Oilmen (II)

Nikolas Kozloff's Hugo Chávez and the Politics of Race is a good read. Since I wrote Notes to Progressive Oilmen not quite two weeks ago I've written to most of the current or previously cycle executives of the Federally Recognized Maine Tribes, and lots of backs-and-forths with the gentleman identified in the original article that broke the news, at least in Indian Country.

What I haven't gotten (yet) is the time of day from anyone actually connected to CITGO, or the Venezuelan trade or diplomatic missions to the US, or found (still groveling the DOJ's online db) the registered lobbyists hired to help Venezuelan trade or diplomatic activities inside the Beltway.

Anyone with clues, send me some. There are at least 2,000 Indian households in Maine that could use 1,000 gallons each in the next heating season.

Venezuela and the CIA vs Bush Wet Ops Gang

Today Isaias Rodriguez, Vicepresidente de la República Bolivariana de Venezuela (Le Monde describes him as le procureur général du Venezuela), just released the results of the investigation into the 18 November 2004 assassination of Danilo Anderson. The trial date is set for June 4th. Just in time for the mid-terms.

Acording to Mr. Rodriguez, "l'enquête a établi que des agents de l'agence de renseignement américaine avaient participé à des réunions à Miami, au Panama et à Maracaïbo au Venezuela, au cours desquelles l'assassinat avait été "planifié".

Take a detour to Toni Solo's Danilo Anderson and Condoleeza Rice in Counter Punch and soak up the background of the April 2002 Coup.

Yesterday John Negroponte, Director of National Intelligence (DNI) and Porter Goss, Director of the Central Intelligence Agency (D/CIA), announced the appointment of the current Deputy Director of the Directorate of Operations (DO) to be the Director of the National Clandestine Service (D/NCS).

The backgrounder contained this rather topical note -- The DDO "is and will remain an undercover officer", which is the Agency's way of making a point.

Whoever replaces the Karl Rove / Scooter Libby / Steven Hadley / Ari Flisher / Condi Rice gang of former uber-operators should highlight that line and post the memo in a permanently conspicuous place.

Funding the ACLU

Tapped pointed me to a Julian Sanchez post at Reason’s Hit and Run about efforts by Republican Congressman John Hostettler to prevent the ALCU from collecting attorney fees when it prevails in Establishment Clause litigation:

Meanwhile, a petition drive spearheaded by the Center for Reclaiming America is mobilizing more than 100,000 Americans to urge Congress to pass a bill to curb the ACLU by denying plaintiff attorneys the right to collect attorney fees in lawsuits that target religion in the public square. The petition in support of legislation by Representative John Hostettler (Rep.-Indiana) calls for "a stand against the ACLU's radical agenda, which undermines our nation's moral and religious heritage."

Congressman Hostettler's bill would amend the Civil Rights Attorney's Fees Act of 1976 to prohibit prevailing parties from being awarded attorney's fees in religious establishment cases, but not in other civil rights filings.

Sanchez correctly explains one reason behind the effort:

Just ponder the logic here for a minute: When a citizen successfully argues that the government has illegally violated his right to free speech, we try to ensure that he doesn't have to bankrupt himself just to make the government obey the Constitution. Is there any way to interpret this narrow exception other than as a desire to not see the Establishment Clause enforced, signalling that even if you can prove the government has broken the law, you may have to ruin yourself just to get it to stop?

There is another reason the right wants to prevent the award of attorney fees in Establishment Clause cases. Such awards provide significant funding to the ACLU. Ten Commandment litigation has been particularly generous for the ACLU. A few examples are in order.

The Georgia chapter of the ACLU received $150,000 in attorney fees as part of the settlement of a Ten Commandments case in Barrow County. Alabama paid almost $550,000 in fees in the Roy Moore Ten Commandments case. According to the Eagle Forum taxpayers in Kentucky paid $121,500 to the ACLU in a Ten Commandments case, and a Tennessee county paid the ACLU $50,000 in another such case. The Ten Commandments netted the ACLU $69,000 in Hamilton County, Tennessee and $74,000 in Habersham County, Georgia.

It is small wonder that opponents of the ACLU would want to cut off the funding source. Of course, if the right really wants to prevent funding of the ACLU, it could just stop placing religious symbols in courthouses.

On This Day…

Three years ago today, October 14, 2002, Atrios noted that “Experts Agree, CNN run by Monkeys”. Click through for the image, it is well worth it.

Two years ago today, a debate between Jonathan Schwarz and Sebastian Holsclaw began. For a prize of $100.00 to the winner, they debated the following proposition:

"It is a complete fabrication that the Bush administration argued in the runup to the war that there was an imminent threat from Iraq."

Dan Drezner was the judge, referee, and host of the debate.

We hope to make “On This Day…” a regular feature. If the anniversary of something of which you are particularly proud is approaching, please let us know and we will try to post a link.

Cartoon of the Day

Today's Cartoon of the day comes from John Branch of the San Antionio Express News.

Only twelve hours left!

In today's matching challenge grant. If we can raise another $310 in that time, an anonymous benefactor will match the amount, which means a mininum of $500 for the Awards.

I do want to take this time, however, to address some questions which have arisen in our comments as well as other bloggers who have kindly lobbied our cause this month.

Top on the list is the concern that, why, in this age of free or minimal cost Blog tech, does it cost us anything to hold the awards in the first place. The easy answer is simply "bandwidth", but to be honest, it's much more complicated than that. We can get cheap bandwidth, but the reason it's cheap is it's not particularly reliable, particularly during "bursts", like the 15K hits per hour we get when Atrios or Kos link to us during the awards. Thus, we've opted for dedicated bandwidth, which doesn't come cheap.

Of course, we could just set up with a really large pipe, such as provided by Blogger. We'd have no problem with load times. We would, however, be subject to the various glitches common to Blogger and Haloscan, such as the tendency to drop comments, sometimes in very large numbers. Since about 1/2 of Koufax nominations and voting occurs within comments, it seems as though we should make sure that part of the process is reliable. In addition, in light of last year's attempts to cast multiple votes, having a true window into the world of IP addresses visiting the site seems to now be necessary. In order to do all this, we have opted to not to be virtually hosted, a la Blogger/TypePad, but have a dedicated server which answers only to Eric.

These things together are our major costs, which we've estimated will run a minimum of $800/month for the three months the awards are in full swing, if traffic stays the same as last year. Since every year we've grown exponentially, this is probably a low-ball figure, but its the one we're going with at this point. There are other incidental costs, such as electricity. Not the actual watts necessary to power the computers, but the cost of opting for a campsite with electric hookups, versus the usual "rustic" National Park/Forest campgrounds we tend to utilize at a very low fee. In additon, our backup server needs a new harddrive, something we would generally put off until the regular one fails, since who cares if we're offline for a day or two during non-Koufax periods. But those are all secondary to the hosting costs.

We hope this gives our readers some insight as to why we're running this pledge drive. Please feel free to continue to ask questions or provide suggestions as to how to make the 2005 Koufax Awards the best ever.

An off-year for peas

The International Atomic Energy Agency was formed in 1957 as the international "Atoms for Peace" organization. Representative Sterling Cole (R-NY ), Chairman of the Joint Committee on Atomic Energy, resigned from the Congress on 12/1/57 and was appointed its first Director General. There is some momentary irony, which I've left in the extended section for those who enjoy detours into Republic of Irony.

Cole was succeeded in 1961 by Dr. Sigvard Eklund, who in 1957 was Secretary General for the Second International United Nations Conference on the Peaceful Uses of Atomic Energy, and previously Director of the Reactor Development Division at the Swedish Atomic Energy Company (AB Atomenergi, Stockholm). Cole started the political enterprise of nuclear proliferation, which Eklund executed for the next 20 years, until succeeded by Hans Blix in 1981, who in turn was succeeded in Mohammad ElBaradi in 1997.

It is impossible to overstate the importance of the IAEA in intentionally causing the proliferation of a vast array of enrichment and reactor technologies, and reprocessing technologies, including plutonium seperation and the plutonium economy. As important, in the momentary sense of import, as the claims concerning Iraq's basically fictional nuclear weapons program from 1988 to the present, and the IAEA's role, first under Blix, then ElBaradi, in actually testing those claims by Republican and Likud administrations, the long range program of the IAEA remains, nuclear proliferation. A program of simply staggering present and unavoidable consequent cost, for regions of the world needing energy available by political cooperation and interdependence, rather than isolation, false independence, and eventual aggression, with, and without, atomic arms. India is proximal to the Sui and Pars natural gas fields, but the plan of record is nukes, nukes, nukes.

When the Anglo/American cooking-the-nuclear-proliferation-books is history, the sensibility of the International Atomic Energy Agency and its Director, Mohammad ElBaradei, sharing the 2005 Norwegian Nobel Peace Prize for work against the further proliferation of nuclear weapons won't look quite as good as a prize for work for peace it does as a symbolic slap in the face to the NeoCons and the Likudniks and their puppet-in-chief.

A not-faked prize for non-proliferation would go to the World Information Service on Energy. This year it went to Duke Energy, Westinghouse, General Atomics, General Electric, British Nuclear Fuels, and on and on, via their treaty-based trade association, which is all the IAEA is, for marketing and sexed-up remediation. Remember, the inspections found ... nothing.

Jersy mobsters running tanker trucks of PCPs valve-wide-open down two-lanes in Warren County North Carolina are safely disposing toxic waste too, at very low cost, for some definition of "safe", and "cost". Its simply one not shared by the people of North Carolina.

On July 2nd, 1953, Chairman Cole wrote Preident Eisenhower and proposed that the President appoint a commission to assess existing laws so that those guilty of treason, espionage, or wrongful disclosure of confidential matters did not go unpunished. "I cannot underscore too heavily my conviction," he wrote, ". . . that the integrity of official secrets must not be violated and that wrong-doers must receive their just deserts". Eisenhower's reply

Dear Mr. Cole:1 I have your letter of July second suggesting the desirability of an early re-examination of federal statutes relating to espionage, treason, or wrongful disclosure of official secrets, to overcome the present inconsistencies between the Espionage Act, the Atomic Energy Act of 1946, and other laws and constitutional provisions relating to the safeguarding of information vital to our national security.2

It is clear that some action should be promptly initiated in this area, and I am accordingly requesting the Attorney General and the Chairman of the Atomic Energy Commission to confer on the subject and prepare recommendations for my consideration.3 Sincerely

That was a frank exchange of views between the head of, and a ranking member of, the Republican Party in an ethical universe that seems to have vanished without a trace.

Massive Savings From Tort Reform -- Read All About It

The estimable Walter Olson, at Point of Law links to this Houston Business Journal article touting the health care cost savings allegedly resulting from passage of tort reform in Texas.

Two years after sweeping medical liability reform in Texas, Houston-area physicians are finally experiencing some positive effects. All five of the state's largest physician insurers have announced rate cuts in 2005, according to The Texas Alliance for Patient Access.

Passage of Proposition 12, also known as tort reform, on Sept. 1, 2003, caused some insurers to consider adjustments to malpractice rates. The state referendum, which placed a cap on jury awards related to malpractice suits, has resulted in attracting more insurance carriers to the state as well as more doctors.

"Last year, we were 'wait and see,' but now we're definitely pleased," notes family practitioner Dr. Robert Vanzant, president of the Harris County Medical Society.

"What's happening is going to help stabilize health care costs in Texas," he adds.

I have my doubts about whether the passage of the tort reform legislation caused malpractice insurance rates to fall. Putting such doubts aside for the moment, and assuming that the legislation did, in fact, lower premiums, how large an effect will that have on health care costs?

The rate cuts by the state's five largest physician insurers -- many double-digit reductions -- will collectively result in $48.6 million in annualized premium savings for Texas physicians, Marcus says.

Let’s assume for the purpose of argument that tort reform in Texas has resulted in a $50 million per year reduction in physicians malpractice insurance premiums. Let’s further assume that doctors will pass all of those along to patients. How much can Texans expect their health insurance premiums to be reduced?

There are about 21 million Texans. If the savings are spread evenly across the population, the average citizen will see his or her monthly health care premium reduced by 20 cents per month.

With that kind of money, if 36 Texans pooled their savings for a year, together they would have almost enough money for a year’s subscription to the Houston Business Journal where they could read about how much better off they are.

From the Greensboro News Record

by Larry Wright of the Detroit News

What shall we do with the BRACen sailor ...

I'm looking at the Force Structure Plan and there are some sentences that would do well in a creative writing class, but don't have a lot to do with rational defense policy.

It isn't a long document, and it is the policy document that any critic, Congressional or otherwise, of any element of the current round of proposed closures and realignments, must point to one way or another. In the spirit of Juan Cole's one-sided debates with George Bush, I'll pull on these wayward ... er ... threads.

Strategy and Force Development (verbiage about resolve and commitment, allies and dangerous capabilities, and the President) ... forces must have the ability to defeat any adversary at the time, place, and in the manner of US choosing.

Now the interesting thing in this bit is the part I've emboldened. Any adversary could be CENTO, the EU, plus wicked big bits of the OAS, and parts of OAU just for completeness -- that's Iran/Iraq/Afganistan/Pakistan, plus France, friends and relations, Venezuela/Brazil/Mexico and lots of Africa, in particular the bits with either oil or muslims. Oh. And Canada. Oh Canada. Bush's foreign critics, armed, and, at least for the moment, unarmed.

That "any adversary", without recourse to alliances and alllies is over the top. Gulf II, Gulf I, Vietnam, Korea, Europe and the Pacific (1941-1945), and Europe (1917-1918), were all conflicts in which the US did not risk war without alliances and alllies. Once those national military experiences are subtracted from the 20th century, what is left is Panama, Grenada, the Spanish American War and ... not a lot else. We'll have to come back to this, so on to the next quotable quote.

Transformation to a Capabilities-Based Approach: The purpose of transformation is to extend key advantages and reduce vulnerabilites. We are now in a long-term struggle against persistent, adaptive adversaries, and must transform to prevail.

If the intent is to refer to Mohammad Atta's gang of 19 suicides, they be dead. Wicked Dead. For everything else, from Bali to London, the adversaries (do note the plural) are neither persistent, nor are they particularly adaptive (compare, Viet Cong, IRA), and no transformation of the force structure, other than articulating police and intelligence forces elements instead of military force elements, is likely to have the slightest non-negative net effect.

Note Well: This transformation from the well-known to "capabilities-based" unknown motivates everything that follows, and presumes, without definition, what "capabilites" are, or aren't. However, it gets better.

Transformational change is not limited to operational forces. We also want to change long-standing business process within the Department to take advantage of information technology.

Which of the following is now obsoleted by this novel idea? The Johnson Subcommittee (1945),
the Department of Defense (1947), the Joint Financial Management Improvement Program (1950), the Planning, Programming and Budget System (1962), the Financial Management Service (1974), the Defense Business Operating Fund (1992), the Clinger-Cohen Act (1996), the Defense Working Capital Fund (1997), the Defense Reform Initiative (1997), the Financial Management Modernization Program (7/2001), or any of the post-9/2001 management and procurement exercises?

Is "IT" ever going to make it inside the Pentagon???

IT has been inside the Pentagon since Big Mac introduced the PPBS in 1962. I'm not that surprised that its been overlooked by the current SecDef/OSD, and not at all surprised that "tak[ing] advantage of information technology" is being flogged on Congress critters and the rubes as the novelty that moots all prior knowlege.

The Traditional challenges para in Probable Threats to National Security is well written, and the writer makes the case for "maintenance of sufficient combat overmatch in key areas of traditional military competition". Combat overmatch is a reasonable policy goal (try the inverse, the perpetual sticky Republican Rant that buys the Armed Forces ... zippo), just so long as spending the adversaries into the ground ... just spends the adversaries into the ground, and doesn't cause significant and otherwise untasked and unrecoverable military industrial distortions, Ike's caution is as good or better today as it was January 17th, 1961.

However, if one needs to find "adversaries [] likely to exploit a host of irregular methods [] to erode U.S. influence, power, and national will over time", the Bush/Cheney/Rumsford/Frith/Perl/ clique should not be overlooked, particularly their penchant for torture and violation of the Geneva Convenions (all of them).

If negating "U.S. influence, power, and national will" translates as "ability to obtain and retain wartime allies" the adversaries currently holding Occupied Washington appear to be quite capable.

The War on Terrorism imparts an urgency to defense transformation; we must transform to win the war.

Here we have a domestic political message elevated to the status of doctrine. This is where every intelligent military reader should stop, and take a walk. Past one, or two bars if that helps clear the mind. Transformation, whatever that is, is a change from a doctrine to another. The motivation for a fundamental doctrinal change could be something fundamental like ... a fundamental change in the relationship between fire and maneuver, the changing nature of close air support, the compression of the sensor to shooter loop, or important coalition and jointness issues,

Anything less should not make it past the charm school's thesis adviser's desk.

On to asymetry, Ollie North's other claim to fame.

The Irregular challenges subsection slips "global security" in as an alternate formulation of "national security", and suggests that Che is still operating in Bolivia, or Africa, or Laos. Note 9/11 is described as "innovative". Condi Rice must have written that sentence.

Now I regret that I haven't written the follow-up to Ew! Pew Stinks, but it is worth pointing out that 66% of the so-called "intelligent" and "sophisticated" demographic will buy the next bit of tripe like teen age boys buy Paris Hilton, or DLC Dems bought Kerry's inevitability and electability but ... this really is crap and people who work on the problem know it is ... crap.

The interdependent nature of the [US national] infrastructure crests [sic] more vulnerability because attacks against one sector -- the electrical power grid for instance -- would impact other sectors as well. Parts of the defense-related critical infrastructure are vulnerable to a wide range of attacks, especially those that rely on commercial sector elements with multiple single points of failure.

There is a Democratic response to external threat, and it isn't a brittle egg shell perimeter defense, augmented by lawless, even insane random acting out. Domestic spending on incrementally resillient, modernized, efficient infrastructure, defense in depth, integrated into the civil economy, and support for the international law and treaty system. I'm still looking for a Democratic candidate who wants to run on defense, and peace.

The next para is simply insane:

The continuing illicit proliferation of WMD technology and experties makes contending with catastrophic challenges an enduring necessity. A single catastrophic attack against the United States is an unacceptable prospect. The strategic effect of such an attack transcends the mere economic and social costs. It represents a more fundamental, existential threat to our nation, our institutions, and our free society. Thus, new emphasis must be applied to capabilites that enable us to dissuade acquisition of catastrophic capabilities, deter their use, and finally, when necessary, defeat them prior to the posing direct threats to us and our partners.

The claim here is that one nuke, one package, is end-game. Look back at the photo. Translate that in your mind to manufacture of heavy airlift, to heavy maneuver, to ... all the way down to victory gardens. The claim is obviously false. One package is a tragedy on the scale of ... last week's earthquake in Kashmir, or last Boxing Day's Tsunami, or the Boxing Day before that's earthquake in Bam (Iran), or ...

The possibility of one, or more, or a lot more, packages being exchanged by nuclear-weapons states has been present for five decades. At no point has that greater absolute risk motivated the risk of attempting preemption. And "state actors" present a different profile to the targeteer than nebulous "non-state actors".

On to the coda:

Finally, at the direction of the President, we will defeat adversaries at the time, place, and in the manner of our choosing -- setting the conditions for future security.

The unfortunate any adversary language is now fixed, but Congress, the author of the Articles of War, the sole Constitutional entity capable of bringing a State of War into being, and non-being, are conspicuously absent, and failing to mention the Laws of Nations and the Laws of War at this point in the drill is ... simply torture.

Now, where are we going with all this verbal crap? The next BRAC post has the numbers.

Google Key: BRAC list

Agreeing With Rich Lowry

It may be snowing in Hades since I find myself in in the awkward position of agreeing with Rich Lowry of NRO:

The nomination of Harriet Miers to the Supreme Court is foundering, but President Bush is confident that she will be confirmed. Bush thus displays a touching faith in the power of hypocrisy, double standards, and contradictions to see his nominee through. The case for Miers is an unholy mess, an opportunistic collection of whatever rhetorical flotsam happens to be at hand.

The White House and its allies have long argued that it is wrong to bring a judicial nominee's faith into the discussion about his merits, and any attempt to do so amounts to religious bigotry. When it was suggested that John Roberts's Catholic faith might be an area for inquiry in his confirmation, White House allies recoiled in horror.

Now the White House tells conservatives that Miers will vote the right way because she's a born-again Christian. This is the chief reason that some prominent Christian conservatives are supporting her, in a blatant bit of right-wing identity politics. They apparently believe her religious faith will determine what she thinks about the equal-protection clause, the separation of powers, and other nettlesome constitutional issues. As sociology, there is something to this — an evangelical is more likely to be conservative than a Unitarian — but to place so much weight on Miers's demographic profile, rather than her own merits and judicial philosophy, is noxious and un-American.

But don't worry: As soon as Democrats try to probe Miers's evangelicalism, these Republicans will be back to saying her faith should be off-limits.

If Lowry had accused President Bush of having a "touching faith in the power of hypocrisy, double standards, and contradictions" in 2002 instead of 2005, would the right have considered him a political columnist or a fifth columnist?

Miers and Affirmative Action

Much has been made of Harriet Miers as a stealth nominee. That characterization has more than a grain of truth. She has a very thin paper trail on most constitutional issues. Just how thin her paper trial is can be seen by browsing the University of Michigan Law School library site which contains much of the available background material about Miers.

It is appropriate that the Miers collection is at the University of Michigan because on at least one issue, the stealth candidate has left a radar signature. That issue is affirmative action.

The last important affirmative action case decided by the Supreme Court involved the University of Michigan law school. That case, Grutter v. Bollinger, held that:

The Law School's narrowly tailored use of race in admissions decisions to further a compelling interest in obtaining the educational benefits that flow from a diverse student body is not prohibited by the Equal Protection Clause.

The majority opinion in Grutter was penned by Justice O’Conner.

Justice O’Conner’s opinion was joined, in whole, only by Justices Breyer, Ginsburg, Souter, and Stevens. Thus, if and when Harriet Miers takes Justice O’Connor’s seat on the Court, the fate of the use of race as one of many considerations in university admissions decisions will be in doubt. What exactly is Ms. Miers’ position on affirmative action?

Ms. Miers had little contact with constitutional issues as a litigator in Texas. Her positions in the White House Counsel’s Office on such issues have not been, and will not be, disclosed. On affirmative action, though, Ms. Miers’ political experience as a member of the Dallas City Council may shed some light on her thinking. From Knight-Ridder:

In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.

In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

And some constitutional scholars say that if Miers were to embrace the same views as a justice on the high court, she would fall more in line with the court's pragmatic, moderate wing than with its doctrinaire extremes.

"There's an acknowledgement in her comments that race matters and is relevant, and from a fairness standpoint, we should acknowledge the impact of a particular political structure on voters of color," said George Washington University law professor Spencer Overton, a voting rights expert. "It's not unlike something you could see Justice Sandra Day O'Connor saying. A rigid quota system may be bad, but diversity is a compelling interest, and we want institutions to reflect society as a whole."

The specifics of the 1990 voting rights suit also shine light on Miers’ thinking:

In the 1990 federal lawsuit, Miers was called to the stand by a lawyer representing black and Hispanic citizens who felt the City Council's structure illegally impeded their ability to win seats.

Only two of the city's eight single-member council districts had ever been represented by blacks; no blacks had ever been elected to the three citywide seats. Hispanics had no single-member representatives, and only one Mexican-American had ever won a citywide seat.

Blacks and Hispanics made up more than 40 percent of the city's population.
The plaintiffs complained that the structure diluted the potential for minority representation on the council by drawing district lines that minimized the impact of minority votes.

Miers agreed that there were too few minorities on the council, and that increasing the number of single-member districts - thus redrawing district lines - would be one way to change that. She said the structure needed to "encourage additional African-American, Mexican-American representation on the council."
She also said that as "one of the ingredients" in remaking the council, a racial balance would be important. Miers was careful not to endorse the idea that race should be the sole or even primary focus on redistricting efforts, saying at one point that "while race is an issue, you have economic diversity, which is really the crux" of the problem.

"To be representative, you've got to deal with more than race," she said.

Miers took other positions of note while on the Dallas City Council. The Morning News reports:

Miers was one of 10 Dallas council members to unanimously approve a 1989 agenda item that revised minimum height, weight and vision requirements for Dallas firefighters to facilitate "promotion of certain ranks in the Fire Department," particularly women….

(Miers) voted in 1991 to ratify a resolution urging the Texas State Legislature to observe the Rev. Martin Luther King's birthday as a state holiday. The council unanimously ratified the resolution.

Miers position on affirmative action has not been overlooked by the right.

John Yoo, at the American Enterprise Institute, writes:

President Bush stepped to the plate yesterday to nominate a replacement for Justice Sandra Day O'Connor…. The president swung and missed. His choice of his counsel, Harriet Miers, passes up a rare opportunity to change the direction of the Supreme Court. O'Connor provided decisive votes for affirmative action in colleges and universities…

Less than one year of that service was as White House counsel; the rest has been as staff secretary (the person who controls paper flow to the president) and deputy White House chief of staff. By all accounts, Miers distinguished herself as a loyal, dedicated and hard-working aide. But, according to press reports, she did not win a reputation as a forceful conservative on … affirmative action.

David Frum, a former speech writer for President Bush, elaborates Yoo’s point:

Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.

Which, of course, means that, from my point of view, she was on the correct side.

Miers’ affirmative action position has been noted by the right blogosphere. Powerline writes:

Unlike most of Miers' other views, the evidence here doesn't come primarily from 15 years ago. Miers apparently supported, and perhaps helped the influence, the administration's position in the University of Michigan affirmative actions, which we strongly criticized at the time…Conservatives should be unhappy that Bush nominated someone who comes out on the wrong side of the affirmative action debate.

Professor Bainbridge writes:

at least on this issue, Miers is likely to be an O'Connor clone … AND... at least on this issue, Bush broke his promise to appoint judges in the Scalia and Thomas mold.

At least from my point of view, that is a good thing.

The Right Coast writes:

This is very disturbing. It does appear that we are now once again facing a nomination of a David Souter or a Sandra Day O'Connor.

I certainly hope so.

The right has noticed Harriet Miers’ position on affirmative action. Has the left also taken notice?

I do not presume to advise other liberals and Democrats whether or not to support the nomination of Miers. I do think it is worth asking whether, if the Miers’ nomination fails or is withdrawn, I would be able to write a similar post about the next Bush nominee.

They get letters!

My old town newspaper, the Portland Press Herald, put out its daily letters to the editor this morning. Lo and behold, there were the words of a friend:

The president has temporarily turned from billionaire relief to hurricane relief. Our nation's venerable but embattled estate tax could go a long way toward funding his new project. Does he care?

Of all the ways that resources are being transferred from average working families into the hands of the very rich - corporate corruption, regressive taxation, disastrous trade policies, declining real wages, de-funding education, attacking workers' rights and organizations, constricting bankruptcy, circumscribing corporate liability, abandoning pensions, undermining Social Security, etc. - probably the worst is eliminating this federal tax on huge inheritances.

For nearly 100 years, America's only true direct tax on wealth, the estate tax represents the trend toward increased equality that has been one of the very best features of our national evolution.

Leveling measures such as the estate tax resulted from a hard-won consensus that redistributing massive accumulated wealth was healthy for our society.

The current malicious and dishonest attempt to permanently eliminate the estate tax epitomizes the arrogance of an American plutocracy whose selfish and short-sighted purpose threatens to weaken not just our economy but our very democracy by further concentrating the power of America's wealth in ever fewer hands.

The day is coming - perhaps hastened by Katrina and Rita - when the great majority of Americans harmed by such policies will realize how badly they have been hoodwinked by those they trusted to lead them.

When that happens, the greedy and powerful few will be fortunate, indeed, to lose nothing more than their enormous inheritances.

Mike Roland
Portland

Mike has been on the side of social justice for decades, so I feel his powerful words deserve to be passed on beyond our small corner of southern Maine.

You can also show Mike's daughter, Karin (one of my dearest friends) some love by visiting Maine Won't Discriminate/No On 1, where she heads up their internet presence.

Is Pakistan? (VIII) (Update)

If the strategies common to Wes Clark and John Abizaid for the destruction of Osama Bin Ladin and the forces that escaped from Tora Bora between the 28th and the 30th of November 2001, via the obvious escape routes, which Tommy Franks didn't close with rotary wing deployed light infantry, to Pakistan, were effected, the result would be destruction via bombardment, primarily aerial, of Miran Shah, Razmak, Bajorr, Wana and minor built-up areas of the areas that constitute the Federally Administered Tribal Area of the North West Frontier Province of Pakistan -- the Khyber, Kurram, Bajorr, Mohmand, Orakzai, South Waziristan and North Waziristan Agencies.

It would differ in scope from the Saturday morning seismic event that has devastated Azad Kashmir, the Northern Areas, the North West Frontier Province, and the Badakhshan, Nurestan, and Konar provinces of Afganistan. However it would not differ in its inate indifference to civilians and combatants.

The Kashmir Quake of 8 October 2005 is a human tragedy of the first magnitude, like the Bam Quake of 26 December 2003, and the Asian Tsunami of 26 December 2004. It is, magnified, what the political policy of the Bush Regime achieves, where ever it is articulated by military means.

The Bush Regime would like to expend a lot of money blowing up bits of Pakistan, a desire shared by far too many of his critics who mounted campaigns in the last cycle, and who are already mounting camaigns in the next cycle. But schools for girls, aid for women of child-bearing age, economic development, and policing, within the societies that stand, by mutual intent, outside of the Punjab State, is the better choice. It was Judith who beheaded Holofernes (Judith 13,1-10), and more, rather than fewer, Judiths, is feminist policy.

The link is to Artemisia Gentilesch's work of 1620. I spent some time there, comparing her work to Caravaggio's work of 1598-1599. I prefer Gentilesch's realism.

Former prime minister Benazir Bhutto, who is running a competitive campaign, has already expressed her dissatisfaction over the Muhareff government’s rescue efforts that center around the upmarket F-10 residential tower in Islamabad, which is now a pile of photogenic rubble, and fail to deliver aid to the northern areas where vastly larger human tragedy is abandonded off-camera.

Update: Le Monde reports that the surviving population in Muzaffarabad, largely left to their own resources by the Punjabi state "ont pris d'assaut des camions d'aide" (are seizing by force the relief goods in the trucks being sent into the area). If this follows the obvious trajectory, "who lost Azad Kashmir and the Northern Areas" will become part of the next Punjabi electoral cycle, and more importantly, when a referendum is eventually held, Pakistan's claim to Kashmir will finally be exhausted.

Republicans seek to cut off their right arms

Or so it would seem:

Tax Panel Says Popular Breaks Should Be Cut
By DAVID E. ROSENBAUM

WASHINGTON, Oct. 11 - President Bush's tax advisory commission indicated on Tuesday that it would not propose replacing the income tax with a national sales tax or a value-added tax, but would recommend limits in the popular tax deductions for mortgage interest and employer-provided health insurance.

...

That is mainly what led to an examination of ways to modify the deductions for mortgage interest and health insurance, two of the largest tax breaks now available to individuals. Together, the two deductions will cost the treasury about $250 billion this year, with the benefits going disproportionately to the most affluent taxpayers.

My problem with this last statement is one of semantics. When Dwight read it, his interpretation was that the rich get a higher monetary benefit, ergo, the statement is true. I interpreted it, however, as indicating that the "benefit" of the mortgage deduction has some sort of means test skewed for the wealthy, and thus not everyone who pays interest on a mortgage on a primary residence has the ability to claim the deduction. Under this reading, the statement is thus misleading, and is used by the article's author to cushion the fact that lots and lots of poor and middleclass homeowners, particularly those who have gambled on having their interest-only and/or balloon loans offset by the current income tax deduction schedule.

Does the Bush Administration and it's GOP lackeys really want to alienate a group, which in the past, have been fairly reliable in turning out votes for them? Initially, it looks like the answer is "yes", but one of the leading proposals put forth to "revise" the mortgage deduction indicates a possible different agenda:

For mortgage loans up to $1 million, taxpayers can now deduct all the interest. One proposal discussed on Tuesday would cap the deduction at the maximum mortgage the Federal Housing Administration will insure.

That level changes each year and varies depending on housing costs in each county, with a maximum loan limit now of $312,895 in communities where housing is most expensive and a national average of $244,000, according to the housing administration.

Another proposal under consideration was to change the interest deduction to a credit, meaning that taxpayers with the same size mortgage payments would get the same tax break regardless of what tax bracket they were in.

The one point left out of all this is that the super-rich are not the only ones who now hold mortgages of more than $300,000. In certain areas, such as the East and West Coasts, very much "middle class" homeowners are forced by skyrocketing housing markets into much higher loans than they should, under "normal" circumstances, even consider. Those families are already being squeezed by large interest payments, which, unless they're fixed rate, are only going to go up if Greenspan or his yet-unnamed-yet-likeminded successor have their way. By reducing the amount of interest they can deduct, the gopher snake becomes an anaconda very fast.

Of course, Republicans should in fact care about these middle class families, right? Oh, that's right, they're predominately in Blue States and weren't voting for them anyway.

Plus, all that squeezing means less extra cash to be handed over to Democratic candidates. There's always a silver lining for the campaign finance-obsessed like Delay.

Imagine ...

... the political party leaderships forced from the impass of no party winning (sans election fraud, Florida '00, Ohio '04), to form a government.

La cohabitation à la française is modernly defined by the abandonment of domestic policy -- economic, social, education, etc., by the President of the Republic to the Prime Minister, who are not both members of the same political party.

Germany is about to set foot into that unexplored country. The CDU-CSU plus SDP (minus the Greens) government could be gridlock, as the US has had since the '94 midterms made Newt Gingrich Speaker of the House, until Karl Rove managed to create a single, unified, party-state in the '02 midterms, or it could be something novel -- a government that governs by compromise across the divisions of position between its constitutent parties.

There are days at a time when I'd give my eye teeth for honest Republican. We could go cut paper (target shooting) and talk about arms and crime and original intent and the commerce in Indian land and chattels, and Continental currencies on the fluid frontier, or engine performance, efficiency and car racing.

US-CERT Security Alert TA05-284A

Microsoft has just published its October notice of vulnerabilities.

• Microsoft Plug and Play contains a flaw in the handling of message buffers that may result in local or remote arbitrary code execution or denial-of-service conditions.


• A buffer overflow in Microsoft Collaboration Data Objects may allow a remote, unauthenticated attacker to execute arbitrary code on a vulnerable system.


• Microsoft Windows Shell does not properly handle some shortcut files and may permit arbitrary code execution when a specially-crafted file is opened.


• A buffer overflow in Microsoft DirectShow may allow a remote,unauthenticated attacker to execute arbitrary code on a vulnerable system.


• Microsoft Distributed Transaction Coordinator (MSDTC) may be vulnerable to a flaw that allows remote, unauthenticated attackers to execute arbitrary code.


• Microsoft COM+ contains a vulnerability due to a memory management flaw that may allow an attacker to take complete control of an affected system.


• Microsoft Internet Explorer will initialize COM objects that were not intended to be used in the web browser. Several COM objects have been identified that may allow an attacker to execute arbitrary code or crash Internet Explorer.


• Microsoft Internet Explorer will initialize (non-ActiveX) COM objects that were not intended to be used in the web browser. This may allow an attacker to execute arbitrary code or crash Internet Explorer.

US-CERT summarizes these as follows:

Exploitation of these vulnerabilities may allow a remote, unauthenticated attacker to execute arbitrary code with SYSTEM privileges or with the privileges of the user. If the user is logged on with administrative privileges, the attacker could take complete control of an affected system. An attacker may also be able to cause a denial of service.

The US-CERT published Vulnerability Notes for each of the work-arounds, the most recent version of which is here.

Now what US-CERT doesn't say is that the root cause for these vulnerabilities is the shared fate process model (no memory protection) of MS DOS and the windowing operating system products that, at their root, run MS DOS. What US-CERT also doesn't say is that the exploitation of generic and specific vulnerabilities in MS DOS, et. seq., is economically motivated, and that exploits, usually presented in the form of virii with one or more exploits as its payload. In the drone monitoring line of ... technial recreation, assemblies of virally acquired machines in the tens of thousands is non-remarkable, and of course these drone armies are observed to be engaged in economic activity -- running ddos attacks, sourcing comment spam, sourcing email spam, ...

And every new PC has some company's anti-virus product bundled in ... for the first 30 days or so.

Investment Bonanza

Some of us content ourselves with market returns on our investments by buying index funds. Most investors are very pleased if they beat the market by a few percentage points. In the last year, the Standard and Poor’s 500 is up something like 7% since the index was at something slightly above 1100 a year ago and closed today at about 1185.

Things are different for shareholders of Halliburton.

Raw Story reports:

The company has been criticized by auditors for its handling of a no-bid contact in Iraq. Auditors found the firm marked up meal prices for troops and inflated gas prices in a deal with a Kuwaiti supplier. The company built the American prison at Guantanamo Bay.

Despite those problems, shareholders of Halliburton have done quite well.

Halliburton was trading in the mid thirties a year ago. Today, it closed at nearly 62, which results in a one year profit of a cool 77% or so. Why has HAL done so well?

“Halliburton has already raked in more than $10 billion from the Bush-Cheney Administration for work in Iraq, and they were awarded some of the first Katrina contracts," Lautenberg said in a statement…

Of course, favoritism, or cronyism if you prefer, is not the only possible reason for the gains to Halliburton shareholders.

Given the history of the Halliburton/ Dresser merger consummated by Vice President Cheney (in which Cheney failed to realize that Halliburton was acquiring not only Dresser Industries but also massive potential asbestos liability) and the subsequent accounting scandals, perhaps Halliburton stockholders are just regaining the ground it lost while under bad management.

It is amazing how competent management can change the fortunes of a business. Perhaps it is time we try to run the government more like a business, a least in that respect.

Endnote: Please note that despite the fact that Vice President Cheney owns a couple hundred thousand Halliburton stock options, he does not personally profit from the rise in the value of those options because he has agreed to donate the net profit to charity and has agreed not to take a tax deduction for that gift.

(NB: Dwight, not I, MB, was the author of this post. One of the problems with sharing a machine, as mine is, once again, on it's way for repair at HP. Sigh.)

October is 33.3% finished

And so our 2005 Koufax Awards pledge drive is one-third done as well.

We are very thrilled by the generous contributions we have received so far and thank each and every one of those kind souls.

Unfortunately, we are far from meeting even our minimum costs (bandwidth, power, bananas, etc.) for what we expect to be a significantly larger event than last year's record breaker.

Thus, this is just a small reminder, in case anyone missed all the blaring links interspersed around the page, that the Koufax Awards Pledge Drive is still chugging along.

Dwight, (on whose computer I'm typing right now, as we've invaded the Meredith's lovely new abode in Greensboro,) has threatened to write the next "reminder" post, and we all know that means lots and lots of lawyerly "motivation", aka guilt tripping.

So please consider contributing if you enjoy reading the Koufax nominees as much as we love putting them all together.

Update!: Just like NPR, we just got a "challenge match"! We have an anonymous benefactor who has promised to match any amount equal to or above $500 contributed within the next 72 hours. Yee haw!

How and where to donate for the earthquake victims

The Editor of the South Asia Tribune has asked that this link be made widely available so that immediate info on how and where to donate for the earthquake victims is available.

Pakistan seeks assistance in the following areas: Cargo helicopters, engineering plant equipment (to open routes, for reconstruction of roads), relief goods, food medicines, tents, blankets. Pakistan is self sufficient in manpower enforcements.

Update: The number of dead is now approaching 50,000. Date shifted to keep at top of page.

DAWN can be found here.

"The loss in five Azad Kashmir districts and six northern districts of NWFP is colossal." Zafar Iqbal, Assistant Resident of the United Nations system in Pakistan.

Google key: Pakistan Relief, Pakistan Earthquake, Disaster Relief

Levin's "Using Our Leverage: The Troops"

Wampum, October 31, 2004:

a cease-fire supports our troops.

a cease-fire ends planned manuvers that are likely to result in battle, and removes the americans from the iraqi domestic calculation of the balance of forces. it isn't peace, but it is better than what we have, because we don't know who the real rulers of iraq are, or will be.

as long as our troops are proping up some party or another, they will be the "buffer" between the militia of a party that can't hold onto civil government by its own organic means, and the other militias that are no worse qualified.
...

Senator Carl Levin (D-MI), October 10, 2005:

...
Our military leaders have long told us that there can be no purely military solution in Iraq and that a genuine, broad-based political settlement among the Iraqis is essential for success and for the defeat of the insurgency.
...
I believe that if the Iraqis fail to reach a political solution by the end of the year we must consider a timetable for withdrawal of U.S. forces. This does not mean setting a date now for departure. It simply means conveying clearly and forcefully to Iraqis that the presence of our forces is not indefinite and that our staying there requires them to come together politically, since Iraqi unity offers the only hope of defeating the insurgency.
...

I've struck out the bits of Levin's comment that simply don't make sense, as nationalist insurgencies aren't "defeated" by cotillions of puppet politicians, but by the transformation of nationalist movements from armed operations to political operations. Fortunately, "defeating of the insurgency" is non-operative language once Levin's text makes it past the censors inside the beltway, as the transformation of the Al Sadr militia demonstrated earlier in the Bush Romance with Cordite.

Unconditional victory sounds nice, and after his speech of Sept. 30th, 1943, that the German Army would never leave Stalingrad, the Madman-at-Wolfsschanze would hear "no bad news". We've an Idiot-at-Crawford, and Cheney and the NeoCons happy to play Madmen-in-the-Oval, all hearing-adverse when the news is ... reality-based.

Removing U.S. forces from the Iraqi domestic calculation of the balance of forces is not optional. it will happen one way or another. We must consider timetables for withdrawal of U.S. forces. While we are considering timetables, we must also consider the alternatives each timetable draws down the existing U.S. forces Order of Battle.

If policing, or reinforced policing, is our policy (articulated by Cole), then heavy maneuver and combat air and their logistical tail are not necessary, and war with Iran becomes non-startable (it is always non-winable, for large values of definitions of "winable"). Unfortunately, Juan arives at the inverse, and advocates removing U.S. infantry as being inherently incapable of achieving military / political goals (Fallujah et al.), and leaving heavy maneuver and combat air and their logistical tail -- to reinforce the militias-of-the-moment that control the "Iraqi Army".

If stability, or a monoploy of violence, is our policy (articulated by Clark), then infantry and heavy maneuver and combat air and their logistical tail are necessary, until their target inventory is exhausted, and war with Iran remains startable, though non-winable, or about the time that Nationalisms are extinguished in Iraq, all competitors to the militias-of-the-moment that control the "Iraqi Army" and the "Iraqi Government" are killed or captured (and executed), hell freezes over, and Americans and Iraqis agree that Iraq really is the 52nd state in the Union.

We need to get most dangerous part of the force structure de-articulated from the Iraq theater of operations. Three years ago we could have saved the Iraqi Army as an institution temporarily without political leadership, and saved 1,500 US KIA and an absurdly large number of Iraqi civilians and a pathetically small number of Iraqi irregulars also KIA, and an order of magnitude each, of wounded, if we'd simply deedee[d] back several klicks and treat[ed] the opfors like WARSAW Pact forces who've temporarily misplaced their leadership. It was heavy maneuver and combat air and their logistical tail that made that mistake militarily possible, and US politics (Idiots and Madmen, see above) that made that mistake policy. Those are the first elements, not the last elements, that need to be withdrawn, not just from the Halliburton Fortresses, but from CENTCOM's AOR. At any point in time until there is an elected government in the US, it is heavy maneuver and combat air and their logistical tail in the CENTCOM AOR that hangs over our heads.

John Abizaid has no necessity, or utility case, for a substantial accumulation of assets. Its not reducing the daily killed-on-C1 (the Greensboro paper put all six of Saturday's II MEF KIA on C1), its about taking the Bush Romance with Cordite off life support, and containing the size and scope of its death rattle.

Comparitive Religions

Since today is a ... holy day ... for public and many private institutions in the United States, a case.

It began as O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 342 F.3d 1170 (10th Cir. 2003). The plaintiffs sought, and obtained a preliminary injunction, brought under the Religious Freedom Restoration Act ("RFRA"), which enjoined the United States from relying on the Controlled Substances Act ("CSA") and the United Nations Convention on Psychotropic Substances ("Convention") to prohibit the sacramental use of hoasca by Uniao do Vegetal and its members (collectively "UDV").

O Centro Espirita Beneficiente Uniao Do Vegetal has tax exempt status pursuant to 26 U.S.C. § 501(c)(3), and is recognized as a church under 26 U.S.C. §§ 509(a)(1) and 170(b)(1)(A)(i).

Hoasca is a liquid tea-like mixture made from the plants psychotria viridis and banisteriposis caapi. These plants are indigenous to Brazil. Psychotria viridis contains dimethyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention.

The preliminary injunction was appealed by the Government and affirmed by a panel, and the Government's en banc petition was granted, along with a temporary stay of the preliminary injunction, and the en banc 10th Circuit Court vacated the temporary stay of the district court's preliminary injunction.

Petition for Certiorari was granted in Gonzales (formerly Ashcroft) v. Centro Espirita Beneficiente Uniao do Vegetal. Docket No. 04-1084, Briefs. Argument is set for 11/1/05.

For scientific reading, see the following: Human Psychopharmacology of Hoasca: a plant hallucinogen used in ritual context in Brazil in the Journal of Nervous and Mental Disorders, Vol 184 (No. 2) Feb 1996, 86-94, by C.S. Grob; D.J. McKenna; J.C. Callaway; G.S. Brito; G. Oberlaender; O.L. Saide; E. Labigalini; C. Tacla; C.T. Miranda; R.J. Strassman; K.B. Boone.

See also The Hoasca Project.

It’s a Mad, Mad, Mad, Mad World

Visiting political blogs located in the right hemisphere of blogtopia (hey, skippy) can be shocking to your system.

While following an extended chain of links, I happened across the following:

I have read several justifications (by conservatives) for supporting President Bush's nomination of Harriet Miers to the Supreme Court …

One … is the assertion that we should support Harriet Miers because she gave us Janice Rogers Brown, Priscilla Owen, Bill Pryor, and other stellar appellate court nominees.

The post quoted above ably demonstrates that Harriet Miers has little or no responsibility for those nominees. Whew… that is a relief.

What is still troubling, though, is that in the universe in which Spock has a beard, Janice Rogers Brown is a “stellar appellate court nominee.”

Correction

In Complex, Important Issues Should be Decided by Smart People, I argued that persons ascending to the bench of the Supreme Court should be of the highest intellectual caliber.

A commenter took issue with my post, and in response, also in comments, I noted that Harriet Miers had not made the law review at SMU. That was incorrect. My error was noted by David Nieporent. Thanks David.

I should have known that relying on Rich Lowry of the Corner without checking for myself was far too great a risk to take.

In fact, Ms. Miers was the Comment Editor for Southwestern Law Journal, 1969 – 1970. She also published a note in that law review.

I regret and apologize for the error.

Notice to Mariners

"They would make fine servants... With 50 men we could subjugate them all and make them do whatever we want."

Christopher Columbus

Cobell v Norton -- Tiger Teaming Interior

Earl E. Devaney, who's the Inspector General for the Department of the Interior, had a tiger team run an attack on the National Business Center. The IG's tiger team were able to again enter the National Business Center computers "without detection" and were able to freely manipulate data.

via the Indian Trust list, slightly geeked up for technical accuracy.

According to Devaney: "That some of NBC's most sensitive personal privacy and financial data have been compromised, yet again, raises grave concerns as to their overall security posture."

The report, dated Sept. 6 and filed with the court Wednesday night, contradicts statements government lawyers gave a federal judge overseeing a class-action lawsuit into the Interior Department's acknowledged mishandling of Indian Trust accounts. During a hearing that lasted 59 days, government lawyers repeatedly assured U.S. District Judge Royce Lamberth that worries about the security of trust data had been greatly exaggerated by lawyers for the Indians.

There was expert testimony in early May. The expert testified that he easily hacked into government computers and obtained sensitive personal information about top Interior officials and the country's astronauts by accessing NASA's computers through Interior's National Business Center. NBC computers process payroll data and store personnel information for Interior as well as other government agencies, including the National Aeronautics and Space Administration.

"This new report makes clear that Secretary Norton is utterly incompetent and unfit to manage individual Indians' trust assets," said Dennis M. Gingold, lead attorney for the Indian plaintiffs. "Here we have clear and unmistakable evidence that data within Interior computer is still wide open to hackers and that makes Secretary Norton dishonest, too."

For years, Secretary Norton has assured the public and the court that she had secured the trust systems.

In the new report, Devaney discloses that hackers were able to penetrate Interior computer systems and manipulate and alter data as they went.

Devaney warned three top Interior officers, including James E. Cason, the associate deputy secretary in charge of the troubled Indian Trust, that despite "a spate of recently issued policies and guidelines" testing by his staff revealed "several bureaus and offices still suffer from serious weakness in their security posture."

"These weaknesses, in turn, negatively impact DOI's IT [information technology] security overall," the inspector general said.

"...These findings send an important message to all DOI's IT and other senior managers: inter-connected systems are only as strong as their weakest link. Due to vulnerabilities in several bureaus' IT systems, DOI internal networks, as a whole are vulnerable to unauthorized access," the report states.

"On multiple occasions, we found little or no network or application security in use within DOI's internal networks," it says. "Remote access vulnerabilities were exploited that allow our penetration testers to masquerade as authorized users, roam around in the internal networks of some of the most sensitive of DOI systems, and, most recently actually manipulate data."

Rather than address these problems, Devaney said Interior officials "have, to date, expended considerable time and energy debating our findings, challenging our methodology, and impugning the credentials and integrity of our staff and contractors."

Devaney's concern about computer security at the department has been a long-standing one. During the recent court hearings, he testified he would give the department a grade of "F" for its failure to provide good security.

In his memo Devaney noted that in the past Interior officials have refused to accept his findings and have failed to address the department's computer security shortcomings. Plaintiffs in the Cobell vs. Norton litigation have requested that a federal district court judge order Secretary Norton to shut down Interior's information technology systems to secure the trust data.

Readers of this series will recall that Richard J. Pierce Jr., Associate Dean for Faculty Development and Lyle T. Alverson Professor of Law, George Washington University Law School, and author of Economic Regulation: Cases and Materials, 1994, a work that is in theory universally applicable, and in practice exists in a universe lacking Indian title over land, oil, gas, coal, uranium, water, rights of way and gravity, went over the top in a tall tin foil hat in January 2004, and filed a complaint with the Chief Judge of the United States Circuit Court for the District of Columbia, charging that Judge Royce Lambeth was conducting a "Reign of Terror" at the Department of the Interior. The Administrative Law Review, Winter 2005 carried that explosive missive, untainted by tedious fact-checking.

He wasn't partial to the standing of environmentalists in Friends of the Earth v Laidlaw Environmental Sciences, but he didn't win that one either. I don't know why he isn't a Bush nominee for something, on the Bench or off, he's got what it takes. The Bush Regime wants Lambeth off the case too.

For readers who need help understanding the signifigance of the remote access, privileged user penetration of the NBC data center, in particular the Indian Trust data set, simply post your legal name, SSN, and a major credit card number (don't forget the 3-digit code on the back, or the expiration date),in comments and someone will help you understand what it means to have your property in the trust of another.

Earl Devaney's Penetration Testing memo to Assistant Secretary for Policy, Management and Budget Lynn Scarlett is here (pdf format, 21pp).

Google key: Cobell v Norton, Indian Trust Fund, Gail Norton, Royce Lambeth, Richard Pierce, Penetration Testing, Computer Security, Network Security, Tiger Team, Cybercrime

Laying the Groundwork

A few days back, I speculated that BushCo would use the current bird flu hysteria anxiety, to push through one of their top priorities, full immunity against the hundreds of thimerosal claims working their way (so far very successfully) through state courts.

In today's Seattle Times, I saw more evidence that this is in fact the case.

Anthony Fauci, chief of infectious diseases at the National Institutes of Health, said that although the current activity comes from the bird-flu pandemic some scientists fear is brewing in Southeast Asia, the key to being able to produce a pandemic vaccine on short notice is to have an effective vaccine-production infrastructure in place.

To accomplish that, he said, liability must be addressed. Currently, federal vaccine-liability protections apply only to routine childhood vaccines. Also key will be profitability, because the domestic market for ordinary flu vaccines is too small to attract companies beholden to shareholders.

Now, the problem with this statement is that on October 11, 2004, reacting to last year's Chiron influenza fiasco, Congress included a measure in the American Jobs Creation Act (PL 108-357) that added the flu vaccine to the list of vaccines covered under the National Vaccine Injury Compensation Program (NVICP).

Are we really to believe that a key official in the National Institutes of Health was not aware that such a significant event had occured only a year previous? Even more important, what caused Dr. Fauci to come to such a conclusion, after putting forth the exact opposite argument only a few days before Congress acted on the influenza liability issues?

“‘Bush and Vice President Dick Cheney have tried to frame the issue as part of the administration’s overall health care agenda, saying it’s the threat of lawsuits that keeps manufacturers from entering and staying in the vaccine business. But that’s only a very small part of the problem,’ said Anthony Fauci, the infectious disease chief at the National Institutes of Health and a chief [HHS Secretary] Thompson adviser. More significant, he said, are the low-profit margin vaccines provide, unpredictable demand and the complexity of the manufacturing process. ‘The fragility of the vaccine enterprise is an issue that has been present for decades,’ Fauci said. ‘It has been an accident waiting to happen.’” [“Flu Vaccine an Issue in Presidential Race,” Laura Meckler, Associated Press, 10/20/04]

So why the sudden epiphany?

This is a post teaching Dwight

How to post pictures.

Complex, Important Issues Should be Decided by Smart People

Kevin Drum and Matthew Yglesisas recently made some mistaken comments about the nature and functioning of the Supreme Court.

Kevin writes:

Oddly enough, I agree with the conservative White House lawyer who said this:

Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution's text, structure and history and who call balls and strikes.

I actually think the length of modern Supreme Court decisions is ridiculous, and the "brilliant thinkers" who produce the cleverest arguments aren't necessarily the best judges. The Supreme Court's job is to provide guidance to lower courts, not to produce absurdly subtle arguments that mere mortals can neither understand nor apply coherently.

In other words, the fact that Harriet Miers isn't the most brilliant legal mind in the country isn't necessarily a strike against her.

I think it is a serious strike against her. Kevin’s point has a Ross Perot feel to it.

If we just roll up our sleeves, get under the hood, put the crazy aunt back in the attic, and apply a little common sense, all of those seemingly intractable public policy issues will be solved by Thursday and I can go back to worrying about whether someone is trying to disrupt my daughter’s wedding.

The reason that intractable public policy issues are not solved by Thursday has nothing to do with a failure to put the crazy aunt back in the attic, but a lot to do with the fact that the problems are hard to solve. The reason that some opinions are lengthy and seem to turn on what Kevin calls “absurdly subtle arguments” is that the law is complicated.

The reasons that the law is complicated is that the relations between branches of government, the relationship between the states and the federal government, the relationship between and among the states, the relationship between governments of all levels and citizens, and the relationships between and among citizens are all very complicated. It is impossible to have a complex society without complex rules to govern it.

It is simple to be for “due process under the law.” It is far more complex to decide how much process is due (or “do” as one very poor law student once wrote on an exam). It is simple to be in favor of “equal protection under the law” but it is incredibly complex to decide what characteristics make two persons or two treatments unequal for the purpose of applying the principle.

I, too, think that it is sometimes advisable for the Court to draw bright lines. My favorite joke about Sandra Day O’Conner is that if she wrote the opinion in the Ten Commandment cases, she would uphold five and overturn five. Nonetheless, the reason that the Court’s decisions do not always seem simple and clear is that they are dealing with complex, difficult issues.

The cases that make it to the Supreme Court often present particularly complex issues of law. Disputes with simple facts and simple laws are usually resolved without the need of litigation. If both sides can predict the outcome of a court case within a narrow range, the time, effort, and expense of litigation provides a powerful incentive to settle without the need of much or any judicial intervention.

If the law is clear but the facts are complex, then a trial is an appropriate method of resolving the factual dispute and there is little need for the additional expense of an appeal.

Disputes that are factually straightforward but legally complex are good candidates for an appeal. If the legal issues are close but with a distinct advantage to one view, the appellate court will likely issue a unanimous decision, and other appellate courts will agree. In that event, no Supreme Court case is necessary.

Only if the legal issue is novel, very important, or if various Circuit courts have disagreed, is it likely that the Supreme Court will grant cert. Of the cases the Supreme Court takes, many are sufficiently clear to garner a unanimous vote of the Justices or a near unanimous vote. In those cases, the legal ability of a single Justice is not relevant to the outcome. Only in the event that the issue is so close that the Court is split will the vote of a single Justice be outcome determinative.

Those cases are a narrow slice of Supreme Court cases, which, in turn, are a very narrow slice of appeals, which are a narrow slice of cases, which are a reasonably narrow slice of disputes. Perhaps it is okay with Kevin if the most important, complex, and difficult decisions that our society generates are decided by mediocre minds, but it is not okay by me.

The law is the glue that holds together the vast, diverse, ever changing, complex fabric of society. We should not let the contract for the manufacture of that glue to the lowest bidder without first making sure that it will be made to the most exacting standards. If the glue fails, nothing will be left to prevent the fabric of our society from rending.

Matthew Yglesias, writing at Tapped, argues in favor of putting intellectual lightweights on the Court.

That argument is reminiscent of the questions asked by Nebraska Senator Roman Hruska during the confirmation battle over Nixon nominee to the Court, G. Harrold Carswell:

So what if he is mediocre? There are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?

Yglesias writes:

It sounds odd, but why not lightweights?...

But far and away the most important thing about a Supreme Court justice is the way he or she votes. This doesn't simply reduce to the justice's political preferences, but it's basically about his theory of judging, not his intelligence. If you replaced Antonin Scalia with a duplicate of Clarence Thomas, the Court would feature fewer witty and acerbic dissents, but there would be no practical impact. If you replaced Thomas with a clone of Scalia, there would probably be no impact whatsoever except that Thomas' eccentric view that the establishment clause doesn't apply to state governments would be expressed a bit more compellingly.

There is no doubt that the vote is important. It may be determinative for the parties to the action and deciding disputes is, at one level, what the judiciary is all about. For those not a party to the case, though, the importance is not in the winner and loser but in the reasoning that will be applied to future cases.

Kevin, correctly, notes that “the Supreme Court's job is to provide guidance to lower courts.” The vote cast by a Justice provides no such guidance. It is the opinion, and the reasoning contained therein, from which lower courts take their direction.

If the court decided a case simply by announcing a winner and a loser, stating only that the equal protection clause commands the decision, lower courts would be left to wonder what characteristics of the dispute were important to the decision that two or more persons were equal but received differing treatment.

If the Court is split 4-4 on an issue and the ninth Justice joins one of the opinions, the majority opinion becomes binding precedent. If the ninth Justice simply votes while “concurring in the judgment only,” then it is difficult or impossible to determine which material facts determined the outcome and the value of the case as precedent is limited.

The vote of a Justice is one thing, but the influence of a justice is something quite different. William Brennan and Thurgood Marshall often voted alike but no student of the court would argue that they had identical influence within the Court or on the development of the law (at least in their capacities as Justices. Marshall’s influence on the law as a litigator is unsurpassed).

If the way a Justice votes is by “far and away the most important thing about a Supreme Court justice,” then we should be able to quantify the influence of the various justices by tallying up the number of cases in which he or she was in the majority. Such a tally would, in fact, tell us very little about a Justice's impact on the Court or on the development of the law.

The law develops slowly. A well crafted, well reasoned dissent has often become the majority opinion, and therefore binding precedent, years, or even decades, after its issuance. That can not be said of a vote.

One of the reasons that Bush v. Gore is so objectionable is that it appears that the court decided the case without consideration of the effect it would have on the development of the law or our polity. That perception results, in large part, from the Court’s disavowal of the case as precedent. In other words, the justices voted to determine the outcome of one case, not to provide guidance to other courts, and to other parties to other disputes. That is what you get when all that matters is the vote and not the reasoning.

The reasoning of Supreme Court opinions leads to the development of the law. That is far too important to trust to “lightweights.”

Edited slightly for clarity.

Mistaken Identity

The Leftcoaster points us to this Scotsman.com article:

US president George Bush has said that he was instructed by God to invade Iraq and Afghanistan, according to a new BBC series.

The claim comes from the first meeting between the US leader, the Palestinian Prime Minister Mahmoud Abbas (also known as Abu Mazen), and his then foreign minister in June 2003.

The ministers say that Bush also revealed to them that he had been told by God to create a Palestinian state.

Former Palestinian foreign minister Nabil Shaath, now the information minister, describes the meeting with the US leader, in the BBC2 programme, Elusive Peace: Israel and the Arabs. He says: "President Bush said to all of us: 'I'm driven with a mission from God. God would tell me, 'George, go and fight those terrorists in Afghanistan'.

"And I did, and then God would tell me, 'George, go and end the tyranny in Iraq...' And I did.

"'And now, again, I feel God's words coming to me, 'Go get the Palestinians their state and get the Israelis their security, and get peace in the Middle East.' And by God I'm gonna do it."

Hiring Armstrong Williams to promote No Child Left Behind is one thing, but the Vice President really never should have hired James Earl Jones.

technical owies (updates)

some humorous party kluged up a 1k+ host trackback attack on wampum a couple of hours ago. i'll fix this eventually. these things come and go, as ad campaigns and other ill humors ebb and flow.

update 1: ok. i have a hypothesis, thanks to tom in hawai'i. if he can post a comment, but we get "document contains no data" from POST methods, and google is horked, from our point of view, so its the cache at our satellite operator's shop that is broken, so its our view of the web (to us and from us) that is horked. cache inconsistency (POST method failure) at an interveaning service provider (DirectWay the satellite operator) is independent from the state of the colo/node/server/blog that is wampum. two events, not one, and unrelated in cause and effect.

i've got a nice cd of slack guitar i'd planned to give tom when he came up to 12 mile at painted rocks (lake superior) for a 2nd weekend visit. now i'll have to listen to it all by myself, or send it to honalulu.

update 2; yup. hypothesis confirmed by data (literally).

the mt-tb.cgi attack had 575 unique insert-from addresses, and 1658 insert-attempts on 06/Oct, the hourly totals were: 3, 0, 0, 0, 2, 131, 154, 145, 70,169, 162, 117, 73, 34, 64, 39, 43, 81, 81, 113, 58, 66, 61. in the first 8 hours of 07/Oct,, 301 unique insert-from addresses, and 715 insert-attempts. none of the insert-attempts actually resulted in a track-back being inserted, and not because "trackbacks" were turned off. the execute bits of the mode mask for cgi-bin/mt-tb.cgi are zeros.

there is some humor in being the target of a ddos, our webalizer "visits" and "sites" metrics went up by just the numbers the para above would suggest.

MT Problems

We're experiencing some problems with Movable Type, possibly due to my turning back on Trackbacks and us then being slammed. Sigh. So for the moment, comments do not seem to be working, nor does our rebuild process.

We're working on it, though we may have to upgrade.

Note: More people have contributed, but I'm not able to update the information above as of yet, as that requires a rebuild of the main template.

Not thrilled with Amazon's Honor Pay

For one big reason. It doesn't send me an email letting me know who contributed.

I personally think thank you notes to contributors are important. If someone cares enough about your cause to send you their hard earned money, the very least you can do is thank them personally. I was absolutely floored the first time I got a note back from one of my thank yous, where the contributor said they'd never been thanked by a blogger for a donation before. Ugh! My mother would be rolling in her grave (well, if she had not been cremated, that is.) Okay, her urn would be rumbling.

So until I find out how to get Amazon to inform of when and who sends us donations, I want to thank the two kind people who donated via the Honor System sometime within the last 24 hours. Our warmest regards.

Update: Seems now to be working for new contributors, but our two previous ones are still anonymous. Thank you again.

Transnets, des gadgets aux réseaux

Le Monde, or rather, a blogger at Le Monde, has picked up our (the RR/CC/P15, plagued by egos greater than the übermenchen of the Überbloggen) work to replace the communications fabric in the NOLA-and-east coast with WiMAX and related, primarily wireless technologies.

I'm glad I came across this, as I spent some of this morning corresponding on the IEPREP WG mailing list, most of who's contributors (carriers, vendors and so on) are working on the problem of kicking users off the voice and data networks when the uniforms want all of the available network -- nominally to do something useful in an emergency, but in actual fact, because federal procurement standards for network elements contain requirements for -- lawful intercept (wiretap) and first-responder priority (dark nets) and ... so on. It wasn't the best use of my time.

There is real-time presence data and things that produce and/or consume such data. I'm simply interested in a problem that can be characterized as wicked lazy write-through or disconnected operations presence, and mechanism(s) that produce and/or consume such data. There is a name for this in the humanitarian / disaster relief literature -- an "I AM Alive (IAA)" application or protocol, which was my interest, it having been on the IEPREG WG Charter when it began three years ago, and amazingly absent from the US response to Katrina -- for whom there are only a safe number of dead, lots of uncomfortable living, and a studiously unknown number of persons missing and presumed ... never to have ever existed at all. So what does the International Federation of Red Cross and Red Crescent Societies have to say about users and data in disaters?

People need information as much as water, food, medicine or shelter. Information can save lives, livelihoods and resources. It may be the only form of disaster preparedness that the most vulnerable can afford. The right kind of information leads to a deeper understanding of needs and ways to respond. The wrong information can lead to inappropriate, even dangerous interventions.

Information bestows power. Lack of information can make people victims of disaster. Do aid organizations use information to accumulate power for themselves or to empower others? The report calls on agencies to focus less on gathering information for their own needs and more on exchanging information with the people they seek to support.

So, the fellicitous event was that M. Francis Pisani linked to the document above, and I'm now aware of its existence. On to an IAA requirements spec and so on.

Chapeau M. Pisani.

The 2005 Nobel Peace Prize

Public TV in Norway (NRK) announced this evening that the Nobel Prize for Peace is going to the IAEA and Mohamed ElBaradei, and the Hiroshima/Nagaski survivors' organization, Nihon Hidankyo. The NRK also mentioned the organization recently formed by Richard Lugar and Sam Nunn, which Peter Doud wrote us excitedly about a few months ago. Not my cuppa, since they're happy to shove Pu 239 out of Soviet nosecones and a post-Soviet plutonium economy, which seems about as safe and sane as moving nine grams of heavy metals -- mercury, lead, depleated uranium, its a matter of taste -- through one's head at speeds between 1,000 and 2,000 fps.

There is a shortage of Peace in the world, and working for more is as good a way to pass the time as any. I'm going to count the influential Democrats who advocate Peace in the present by means other than the triumph of (American) arms. Kucinich. Edwards. Gore. Finegold. Boxer. Only a handful.

Fourth time's the charm?

How do you fulfill your promise to one of your largest campaign contributors (and longtime financial "ally") to provide immunity from potentially billions in product liability claims?

A) Whip up fear over a multitude of hidden terrorist cells in the country, then secretly attach the provision to a bill purportedly designed to make America more "secure" (The Homeland Security Act of 2003). When that fails,

B) Whip up fear over terrorists using biological agents, such as anthrax and smallpox, yes, even SARS, in an attack, creating widespread death and destruction. Use your favorite Senate Majority Leader stooge (and contribution recipient) to put forth legislation to produce and stockpile anthrax and smallpox vaccines. Include the provision, arguing that manufacturers won't produce vaccines if they fear lawsuits, despite the fact such vaccines are already protected under Executive Order. When that bill fails to make it out of committee and Americans become cynical over suggestions of plastic wrap and duct tape, move on to:

C) Whip of patriotic fervor that our troops fighting the War on Terror (TM) are more in need of new, improved super-bug vaccines (due to the huge number of WMDs found in Iraq) than body armor. Hide provision under an umbrella sending all liability claims to federal court and limiting non-medical awards against pharmaceutical companies to $250K (S.3, the Protecting America in the War on Terror Act of 2005). Assert that you cannot protect the troops without these not-yet-even-developed-or-proven vaccines, and companies won't make them without blanket liability, a la B above. When bill fails to, again, make it out of committee due to the inclusion of a pay increase for soldiers, you then go to:

D) Whip up fear, feeding upon increased media coverage and moderate public health officals' concerns, of a pandemic of avian flu. First offer up policy changes which would allow the use of military quarentines of at-risk populations, and when that idea is attacked as too radical, promote legislation to develop, manufacture and stockpile a suitable vaccine. Include the provision (having found a new stooge, since the old one is now in hot water), arguing, as in B and C above, that manufactures won't produce the vaccine if they're afraid of liability claims, despite the ability to protect them from future claims via Executive Order.

In the past, the attempts by Bush, Frist, Gregg, Lott, Armey and others to indemnify Eli Lilly against pending thimerosal liability claims through unrelated legislation have failed. This time, Democrats are vulnerable, as bird flu has been on our radar for months. Will we sell out 30 million mercury poisoned children to protect our own skins? Only time, and the Congressional Record, will tell.

Rumor Mill

Americablog (permanent link bloggered) notes that Karl Rove has been absent from White House functions that he normally attends (such as Mr. Bush’s recent press conference). Speculation is that his absence is the beginning of a process in which the White House distances itself from Rove.

Raw Story reports an unconfirmed rumor that Rove has received a target letter from the special prosecutor:

Word on Capitol Hill is that Rove has received a "target letter," or a letter from the prosecutor investigating the outing of CIA agent Valerie Plame Wilson telling him that he is now a target in the investigation. To date, no reporters have been able to confirm this account.

Radar Magazine reports a rumor that 22 indictments are imminent in the Plame matter:

The D.C. Rumor mill is thrumming with whispers that 22 indictments are about to be handed down on the outed-CIA agent Valerie Plame case.

Many thanks to Susie for the links.

Please take with an appropriate dose of salt unless and until confirmed.

Update: On the rumor that Rove has receivd a target letter, this Reuters report is pretty suggestive:

The federal prosecutor investigating who leaked the identity of a CIA operative is expected to signal within days whether he intends to bring indictments in the case, legal sources close to the investigation said on Wednesday.

As a first step, prosecutor Patrick Fitzgerald was expected to notify officials by letter if they have become targets, said the lawyers, who spoke on condition of anonymity because of the sensitivity of the matter....Rove's attorney, Robert Luskin, declined to say whether his client had been contacted by Fitzgerald. In the past, Luskin has said that Rove was assured that he was not a target.

No comment from the formerly talkative Luskin speaks loudly, at least to my ear.

Update II: From Editor and Publisher:

Is it the beginning of the end or the end of the beginning? Whatever way you look at it, it seems clear to many in Washington right now that indictments in the Valerie Plame affair will likely be announced soon, possibly on Thursday.

More: Josh Marshall is also reading some tea leaves:

The fact that the president has decided to schedule a "major speech" on Iraq and terrorism, apropos of more or less nothing, would seem to suggest some bad coming down the pike. On the other hand, he seems to schedule these speeches about twice a month nowadays.

More aluminum tubes stuffed full of yellowcake

The Franklin/AIPAC/NeoCon espionage and pretext-for-war-against-Iran story just took a turn for ... sentencing. Franklin entered a plea, admitting he passed classified data to Israeli diplomat (chief political officer at the embassy) Naor Gilon and to two former AIPAC officials, Steve Rosen and Keith Weissman.

As part of his plea agreement with the prosecution Franklin will be allowed to serve his term at a minimum security detention camp and will also be allowed to keep part of his federal pension, which is assigned to his wife.

For a guy trying to get somewhere between 10^^3 and 10^^4 Americans killed (and that assumes that the war doesn't generalize in terms of ordinance or nations party to the belligerency), and somewhere between 10^^4 and 10^^5 Iranians killed (same assumptions), and compromise most of the oil and gas production, pipeline, storage, refining, liquification and offloading assets from Baluchistan to Suez (everyone is in targeting mode, offense or defense, and if you want a clue, think about the submarine campaigns in the North Atlantic, and how many weeks from famine and freezing the UK was in the Winter of 1917 and the Spring of 1943.) ... Club Fed seems anti-climactic.

I hope Robert Byrd's staff has the sense to go schedule in a trip to Kearneysville, so that he can explain to a town hall why treason in defense of NeoCon nuttery is something even Republicans who are not lower down on the food-chain than the cultists in Mujahedin-e Khalq Organization (MEK), should eschew.

Federal Judicial Experience and SCOTUS Nominations, By the Numbers

What do Hariett Miers, William O. Douglas, William Brennan, William Rehnquist, Lewis Powell, Earl Warren, Felix Frankfurter, Arthur Goldberg, Abe Fortas and Byron White have in common?

None had any federal court judicial experience before being appointed to the Supreme Court (Brennan has about seven years experience as a New Jersey state court judge, first on the trial bench and then on the New Jersey Supreme Court).

Much has been made of President Bush’s tendency to nominate people with little or no relevant experience to important positions. The latest in the line is Harriet Miers, who has been nominated to the Supreme Court despite having no judicial experience whatsoever.

One quite relevant experience for a Supreme Court nominee is time spent as a judge on a lower federal court bench. That is not the only possible qualification but it is a good one.

Appointing Justices with little or no Federal Court judicial experience was a trend for Republican Presidents long before President Bush, although he has certainly done his part to continue it. Republican Presidents have made 11 of the last 13 nominations to the Supreme Court (with 11 being confirmed, Robert Bork and Daniel Ginsberg being the exceptions. That counts Justice Rehnquist once despite his having been nominated for the position of Associate Justice by President Nixon and for Chief Justice by President Reagan).

The two Justices nominated by a Democratic President, both by President Clinton, Ruth Bader Ginsberg, and Stephen Breyer had a total of 27 years judicial experience on the Circuit Court prior to their nominations to the Supreme Court (14 years for Breyer, 13 for Ginsberg). How do the 11 Republican nominees compare?

Chief Justice William Rehnquist had no judicial experience before President Nixon appointed him to the Court.

Justice John Paul Stevens, appointed by President Ford, had five years of experience on the Seventh Circuit before being nominated to the Supreme Court.

Justice Sandra Day O’Conner had no federal judicial experience before President Reagan made her the first female Supreme Court nominee. She had served as a state trial judge for four years and a state Supreme Court justice for two years.

Justice Antonin Scalia had four years on the bench of the D.C. Circuit Court before President Reagan picked him for the high court.

Judge Bork had six years on the Circuit Court before he was chosen by President Reagan.

Judge Daniel Ginsberg had served one year on the D.C. Circuit Court before being nominated to the Supreme Court.

Justice Anthony Kennedy had served 13 years on the Ninth Circuit Court of Appeals before being elevated to the Supreme Court.

Justice David Souter was nominated to the Court less than a year after becoming a Circuit Court Judge. Justice Souter had served five years as a state trial judge and seven years as a state Supreme Court Justice.

Justice Clarence Thomas’s 1991 nomination to the Supreme Court by the first President Bush occurred about one year after he became a Circuit Court Judge.

Chief Justice John Roberts had two years experience on the Circuit Court before President Bush selected him to be Chief Justice.

Harriet Miers has no judicial experience.

Thus, while the last two nominations to the Supreme Court by a Democratic President had a combined 27 years of federal judicial experience, the last 11 Republican nominees have a total of 33 years of federal court experience. I found it interesting that none of the nominees had served on a District Court bench.

If we limit the analysis to the Republican nominees who were not defeated or withdrawn, those nine have a total of 26 years of federal judicial experience, one fewer than the total for the two Democratic nominated justices.

As I noted above, federal judicial experience is not the only possible qualification for a Supreme Court position, but it is one of jobs which provides an opportunity to develop and display the knowledge, intellect, temperament, and skill needed on the Supreme Court.

Some may wish to note that of the four Republican nominations most deeply regretted in conservative circles (Brennan, O’Conner, Souter, and Kennedy), only Kennedy had any substantial Federal Court experience.

I rarely hear liberals rue the appointments of Ginsberg and Breyer.

Blogging History?

Blogging history may have been made here at Wampum yesterday.

As many of you are aware, one of the perpetual issues in blogging is how to deal with comment trolls. Teresa at Making Light has been the leader in the disemvowelment movement. Instead of banning trolls, or deleting their comments, she advocates removing all of the vowels from the comment and permitting the comment to remain.

We here at Wampum have adopted disemvowelling as the preferred sanction for trolls. Teresa is right, it works.

Recently, MB posted a notice about the upcoming Koufax Awards. One commenter left a nasty, trollish comment. MB appropriately applied the disemvowelment sanction.

Yesterday, a non-troll, Chris Clarke, left a comment replying to the troll. Chris’s comment, in pertinent part, was:

Wht's th mttr, Jhn? Dd Ms. Mrctt trn y dwn fr dt? Y pr lttl pthtc bstrd.

(Thought I'd save you the work, MB…)

There you have it. To my knowledge, that is the first instance of self-disemvowelment in blogging history. I am proud to be (loosely) associated with such a historic moment.

Remedies for Everyone

Kevin Drum, the Political Animal links to New Jersey.com for a story about the use of eminent domain. Kevin provides the following quote from the story:

On May 24, the five-member township committee voted unanimously to authorize the municipality to seize Segal's land through eminent domain and name its own developer.

"They want to steal my land," Segal said. "What right do they have when I intend to do the exact same thing they want to do with my property?"
.... Segal...signed a contract last week to sell his property to Centex Homes for about $13 million, contingent upon local approval. Centex, a nationally known developer with projects in Middlesex, Morris and Monmouth counties, would then build 100 townhouses on Segal's property....

Florio and Capodice [the mayor and deputy mayor] said they preferred AMJM because it is a local company.

"I've never heard of Centex," Capodice said. "They're not Union County people."

Kevin suggests that the New Jersey township’s use of eminent domain may be even more outrageous than of New London in the Kelo case.

This isn't about a city condemning blighted land for redevelopment. It's not even about a city condemning good land for redevelopment. It's about a city condemning good land for a project that's almost identical to the project the land's current owner wants to put up himself.

While Kevin is correct that the unmistakable stench of corruption surrounds the New Jersey case, there is one key difference between it and the Kelo case.

In Kelo, the landowners did not want to sell their land. In New Jersey, the landowner not only wanted to sell, he had entered into a contract to sell for $13 million. If the township takes the land by eminent domain, the Constitution requires that it pay “just compensation.” How much compensation will be “just?”

Having tried a number of eminent domain cases, I have never seen better evidence of value than a signed sales contract for the very same tract of land, negotiated between sophisticated parties in an arms length transaction. It seems clear that the amount of compensation for the taking of the land will be the same $13 million as the landowner would have received under the contract.

If so, the use of eminent domain will have no effect on the outcome for the landowner. The landowner is quoted as saying “They want to steal my land," but it is hard to see how that is true as long as the landowner gets the same price for the land as he would have in the absence of the use of eminent domain.

One potentially aggrieved party is Centex, the buyer of the land under the contract. According to the article, Centex stood to make $15 million or so from the development project. That profit will be taken from Centex and given to another developer if the taking occurs. That, of course, would be an outrage unless Centex gets to recover for its loss.

I do not know much about New Jersey law, but in lots of places a contract to purchase land is a property interest. It is enforceable through an action for specific performance. If that is true in New Jersey, then Centex has a property interest in the land and that interest would be taken by government’s use of eminent domain. Centex, then, would have a Fifth Amendment right to just compensation for the taking just like the landowner. That compensation should make Centex whole.

If all of that plays out as I expect, the township will take the property by eminent domain and play the landowner the $13 million for the taking. The landowner, who purchased the property for $1.5 million, will take his $11.5 million profit and be none the worse off. The township will sell the land (probably for the same $13 million) to its preferred developer. Centex will sue the township and will be paid just compensation for its lost profits. Centex will therefore be made whole.

The only losers in that scenario are the taxpayers of the Township who are stuck paying for Centex’s profits as a result of their political leaders wanting to favor local developers.

Kevin is right that that is an outrage. Fortunately, those taxpayers also have a remedy. They just have to wait until election day to pursue it.

Long live America!!!

Well, at least the bits doing Hurricane Katrina relief and not completely defined by subordinance to FEMA. MSNBC just ran a story that's been a couple of days in the making. Here's the link. They finally got into the Waveland area, where Mac Dearman's been leading one of the wireless ISP volunteer efforts, and Rainbow Tribe are running a free kitchen and (as usual) doing unauthorized good. I'm tickled that MSNBC put a photo of some NPGS students on the spash page. I grew up inside the NPGS, and students are invariably nice, if sometimes clumsey. For another (wicked rare) story on some part of the USG that worked, despite the pervasive brain-death and political charades in Occupied Washington City, point a browser at Indian Country Today, where the Eastern Office of the BIA actually did FEMA's job for FEMA, and didn't card to make sure only members of Federally Recognized Indian Tribes (aka "FRITs") got ice and food and gas and more.

Right after Converge South we're scheduled to replace the mobile VSAT and wireless team from Mobile Learning Labs, who are returning to Toronto, in Unoccupied Canada.

Update: The South Bend Tribune (Indiana) is covering the story also. Here's the link. There is one error, the SBT attributes this:

That team brought a number of vehicles, including a 33-foot RV loaded with Wi-Fi and satellite gear as well as emerging technologies for carrying high-bandwidth connections over a range of miles.

to the team from the NPGS.

The correct attribution is on the side of the trailer. I'm pleased to see Carl Malmud quoted. He documented my 3rd major network buildout for Dan Lynch's InterOp, a dog's age ago.

Death to America!!!

Well, perhaps not quite that far over the top, but in what critical framework should David Gross, a comms and telecomms lawyer (AirTouch/Vodaphone), and in the 2000 Bush/Cheney Campaign, National Executive Director of Lawyers for Bush-Cheney, and consequent to the Dec 12th, 2000 coup, Coordinator for International Communications and Information Policy in the Bureau of Economic and Business Affairs in the Department of State, prevail at the World Summit on the Information Society (WSIS)?

The question is simple: should Verisign, via the front organizations it controls (ICANN, the US DoC, as a sometime technical lobbyist I am in professional awe of their political and technical lobbying accomplishments), be first among non-equals in access to revenue generating franchises that derive from the "Best Practices" of the implimentors, operators, and users of the network of networks ("catanet" is the technical term, a concatenation of networks) using the Internet Protocols, in particular those that allow for routable public address spaces, and distributed coherent public name spaces, and the mechanism for name-to-address mapping, in particular the "Best Practice" of having a single DNS root, or not? I contributed to that document, and co-authored a corrolary document, RFC 2929 Domain Name System (DNS) IANA Considerations.

The locus of control over the address and name spaces has changed very little over 30 years. BBN no longer runs the ipv4 address registry, and SRI no longer runs the .arpa name registry. Address allocation is now down by Regional Internet Registries (RIRs), which as institutions are proactive in moving resource allocation decisions towards new users, however, the control of the namespace is still in the hands of a USG sponsored corporation, initially SRI, then Network Solutions (now Verisign, NSI was recently spun off as a pure registrar play), then IANA/ISC/Verisign, now ICANN/Verisign. that is, a single point of control and failure.

So, the USG's theory of the future of the Internet is an infinite continuation of the current "public/private partnership" and absolutely no control by governments, or a "public/private" not completely defined by Verisign and its co-petitors (Afilias, NeuStar, Network Solutions, GoDaddy, Dotster, etc.) and primary customers (brand managers, copywrite and trademark holders, etc.), other than of course, the USG's control.

There is an alternative theory of the future of the Internet:

Iran, Brazil, et al, and as of 09/29, the EU as well, for management of the global public root by an international treaty organization.

China's position deserves a note by itself, and 110% of Amero-centric netweenies wet themselves over political censorship, but the real issue as far as I understand it (putting on my Two working visits to Beijing, invited guest, Chinese Network Information Center and Chinese Academies of Science and Engineering, on the issue of character repitoires in the DNS, and technical lobbying in the IETF and ICANN hat), is the possible partition of the single global public root, into an eight-bit-clean global public root and associated infrastructure (Chinese et al "just work"), and a seven-bit-clean global public root and associated infrastructure (Chinese et al "just don't work"), with ASCII and ISO8859-1 working equivalently in both global public roots and associated infrastructures.

Now the importance of this question is slightly greater than what happens to bloodless bits of fictional "free speech" on the Internet (keeping in mind that "free speech" means overwhelmingly economically, racially and gender privileged "speech"). Literacy and services delivery to communities not completely defined by Flash-happy broadband and targeted high click-through demographics is my take on this. Yours is yours.

How can a desirable outcome arise from a US victory? Are Americans, not to mention any other jurisdictionally defined demographic, liberated by the defeat of Regime's attempt to retain exclusive control over the global public root, by Verisign and its institutional cut-outs? Or not?

While mulling that one over, How can a desirable outcome arise from a US victory in West Asia?

Giving questioning parents the boot

A study was released this week in which a few hundred pediatricians who regularly vaccinate in their offices were asked if they would refuse to treat patients whose parents would not, in part or in whole, follow the CDC's immunization schedule. Nearly 4 in 10 peds stated that they would in fact send non-vaccinating parents packing. Although after reading a couple of different reports of the study, I wasn't able to discern their motives completely. A couple said lack of shared goals or fear of liability. I was surprised to see, however, buried near the end of this Medpage Today article, this paragraph with a deeper explanation:

About 80% of those who would toss patients out said that a lack of shared goals would be an extremely important factor in the decision, and about 70% rated lack of trust as an equally important reason. About 13% of all respondents cited fear of litigation as a reason. Worries about decreased reimbursement apparently would drive the patient-termination decision in about 94% of cases of specific vaccine refusals, but only in 12% of cases where the shots were shunned totally.

I'm a bit confused over that statement, as I imagine just about anyone who read it would be. Decreased reimbursement by whom? The State? The pharmaceutical companies pushing the vaccines? The parents? Are we to believe that if a parent doesn't want their 2 day old infant to receive a vaccine to protect them in case they become an IV drug user or sexually incautious as a teen/adult, then they can't be trusted to pay their co-pays? What's particularly worrisome, to me, is that this the the overwhelming reason most peds would argue for punting patients, and yet it's really not clear what they're most concerned about, other than their bottom line.

We're fortunate to have an open-minded pediatrician who trusts us to make the best decisions for our kids. We approve some vaccines and eschew others without fear of getting a pink slip firing us as patients. Lucky us.

Vioxx Trial Update

So, how is the New Jersey Vioxx trial pitting plaintiff Mike Humeston against Merck going? The trial is still in plaintiff’s case in chief. So ar, we only have media reports of some of plaintiff’s evidence and none of the defense evidence. It would take a fool to make judgments about the case at this juncture and it would take a complete idiot to do so without having seen the witnesses, viewed the evidence, and watched the jury reactions. So here goes.

Merck's theory of the case as to the causation issue is two pronged. First, it notes that Humeston took Vioxx for only a short time (about 2 months) and that his use of the drug was only intermittent. Some research suggests that Vioxx increases the risk of heart attacks after 18 months of use but says nothing about short, intermittent use. Merck is claiming that Vioxx did not cause Humeston’s heart attack after so little use of the drug.

Secondly, Merck is claiming that Humeston had a number of other risk factors for heart attack and that those are more likely to have caused his infarction than Vioxx. Merck cites obesity, age, gender, stress, high blood pressure, sedentary lifestyle, clogged arteries, and other risk factors support of its position.

Plaintiff seems to have done a good job of attacking Merck’s causation theories.

Plaintiff began its attack on Merck’s theory by calling Dr. Dr. Benedict Lucchesi to the stand. Dr. Lucchesi is a professor of Pharmacology at the University of Michigan Medical School. He is one of the team that invented the pacemaker. He is an expert on the effects of drugs on the heart. He is also a revered figure at the Michigan Medical school:

Historian Henry Brooks Adams said, "A teacher affects eternity; he can never tell where his influence stops."

It’s a safe bet that Dr. Benedict Lucchesi’s influence, the product of more than 40 years as an educator, researcher and mentor in the Department of Pharmacology, will never stop, but instead live on and evolve through the hundreds of students who became physicians and scientists under his tutelage.

“There is probably not a medical student who doesn’t remember the Lucchesi lectures on cardiovascular pharmacology.”

“Dr. Lucchesi’s lectures inspired me to learn and teach myself.”

He’s “energetic, enthusiastic, stimulating, challenging.”

The accolades and praise go on…

Dr. Lucchesi is also a dangerous witness for Merck because he has had a long and friendly relationship with the company:

Lucchesi said Monday that he felt funny testifying against Merck after having a positive relationship with its scientists for years; the company even helped pay for training of some of his graduate students.

"Merck has been extremely good to me over the years," Lucchesi said.

Despite those feelings, Lucchesi delivered a body blow to Merck theory of causation:

Intermittent use of Vioxx or even a day's use of the painkiller could be enough to cause a heart attack, a prominent heart and medication expert testified Monday on behalf of a man who is suing the maker of the drug, claiming it caused his heart attack.

Vioxx breaks down so slowly in the body that it takes about 85 hours to clear out of the blood, testified Dr. Benedict Lucchesi, a professor at the University of Michigan who helped develop the first pacemaker.

"Based on the science, there's every reason to believe that a single dose, multiple doses, whatever, can lead to an adverse event," such as a heart attack or stroke, Lucchesi said.

One saving grace for Merck in Lucchesi’s testimony is that the plaintiff’s lawyer did not ask him whether, in his opinion, Vioxx cause Humeston’s heart attack. The only reason that question was not asked is that Lucchesi would not have answered in manner pleasing to plaintiff. I have little doubt that Merck’s counsel will remind the jury of that fact in closing argument.

Plaintiff has also made some headway on the issue of other risk factors. Early in the case, Humeston was asked to stand before the jury to demonstrate that he is not obese. I suspect that demonstration will prove more effective than any medical testimony.

Nonetheless, there was substantial medical testimony on the issue of risk factors favorable to plaintiff:

The emergency room doctor who treated Frederick "Mike" Humeston for a heart attack the Idaho postal worker blames on Vioxx told a jury Monday that Humeston had large, healthy heart vessels.

Testifying via videotape, cardiologist Dr. Graham Wetherley said the 60-year-old man's heart attack was not severe enough to require any emergency procedures to clear his arteries.

"His coronary arteries were pretty clean," Wetherley testified in the second product liability trial against Vioxx maker Merck & Co.

Humeston’s cardiologist testified that plaintiff had few risk factors:

The cardiologist for a man who sued Merck & Co. Inc., blaming Vioxx for his 2001 heart attack, testified on Thursday that the withdrawn painkiller and not heart disease was likely responsible.

Dr. David Sim, an Idaho cardiologist who has treated plaintiff Frederick "Mike" Humeston since his heart attack, said he was able to eliminate many of the most common high risk factors for causing a heart attack.

"He had a paucity of risk factors for having an event," said Sim at the second Vioxx trial in testimony provided through video deposition.

Sim said Humeston was not a smoker, nor a diabetic; that he did not have high blood pressure or abnormally high cholesterol levels; that he was not obese and did not appear to have a family history of heart disease.

"It appears that there was very likely something else going on in his case that caused him to have this event," Sim said.

Asked if there were any potential medication-related reasons that might have caused the heart attack, Sim said: "The drug that was potentially relevant for Mr. Humeston was Vioxx."

Another cardiologist (this one a hired gun), Dr. Nicholas De Pace, supported the testimony of Drs. Lucchesi, Sim, and Wetherley:

Another cardiologist, Dr. Nicholas De Pace, who reviewed Humeston's medical history, later took the stand and concurred with Sim.

"He doesn't have any visible plaque of any significant degree," De Pace said.

Asked by Humeston's attorney Christopher Seeger whether he regarded Vioxx as risk for heart attack De Pace replied, "I would add Vioxx to that list as a risk factor and a trigger factor. Vioxx increases the risk of a heart attack above the baseline.

"You only have to take Vioxx for a short period of time," De Pace said. "It's a trigger."

As should be expected, all of those doctors have been favorable to plaintiff and seemed to have survived pretty well on cross. Before jumping to a strong conclusion, however, one should wait for Merck’s evidence. I remain convinced that the evidence of stress Merck extracted on cross from plaintiff’s personal physician is potentially very powerful and very negative for plaintiff. We shall see.

While we are reading tea leaves, I note that the Judge today denied Merck’s fifth motion for a mistrial. I am not attending the trial, watching the witnesses to assess credibility, watching he jury to assess their reaction, and I do not know what further evidence is in the wings. That makes me reluctant to predict how the trial might end. Merck’s lawyers are in position to know all of those things. Five times now they have sought a mistrial. There are only two explanations for those motions.

One, Merck is concerned that it may lose and are perfecting a record for a possible appeal. The second explanation is that Merck would prefer a “do over” and take its chances with the next jury and the next presentation. Neither are particularly encouraging thoughts from Merck’s point of view. Caution, however, is in order. In one of my trials, I could have moved for a mistrial with a guarantee that it would be granted (as a result of some pretty outrageous conduct). I chose not to make such a motion as my read on the jury was they were all aboard the train. I ended up with a verdict for only about 60% of what I hoped. Trying cases is just not an exact science.

A Man of Principle

If there is one image that George W. Bush likes to project it is that of a clear-eyed man of principle. He claims not to govern by polls. His political opponents, be they Anne Richards, Al Gore, or John Kerry are portrayed as wishy-washy politicians who put their finger into the wind to determine their positions. George Bush, according to Karl Rove, knows what he thinks, and takes principled positions regardless of the consequences. I have previously attempted to show that Mr. Bush is more of a flip flopper than he cares to admit. That does not mean he has no principles. He does, as the remainder of this post will show.

One issue on which Mr. Bush does the wishy-washy two-step is that of affirmative action. Take a peek at the following exchange from a 2000 Presidential debate and ask yourself which candidate knows what he believes and which is trying to fuzz the issue:

MEMBER OF AUDIENCE: Hi. How will your administration address diversity, inclusiveness, and what role will affirmative action play in your overall plan?

BUSH: I've had a record of bringing people from all walks of life into my administration, and my administration is better off for it in Texas. I'm going to find people that want to serve their country. But I want a diverse administration, I think it's important. I've worked hard in the State of Texas to make sure our institutions reflect the state with good, smart policy. Policy that rejects quotas. I don't like quotas. Quotas tend to pit one group of people against another. Quotas are bad for America. It's not the way America is all about. But policies that give people a helping hand so they can help themselves. For example, in our State of Texas I worked with the legislature, both Republicans and Democrats, to pass a law that said if you come in the top 10% of your high school class, you're automatically admitted to one of our higher institutions of learning, college. And as a result, our universities are now more diverse. It was a smart thing to do. What I called it, I labeled it affirmative access. I think the contracting business in government can help. Not with quotas, but help meet a goal of ownership of small businesses, for example. The contracts need to be smaller, the agencies need to be -- need to recruit and to work hard to find people to bid on the state contracts. I think we can do that in a way that represents what America is all about, which is equal opportunity and an opportunity for people to realize their potential. So to answer your question, I support, I guess the way to put it, is affirmative access. I'll have an administration that will make you proud. Thank you.

MODERATOR: Vice President Gore?

GORE: I believe in this goal and effort with all my heart. I believe that our future as a nation depends upon whether or not we can break down these barriers that have been used to pit group against group, and bring our people together. How do you do it? Well, you establish respect for differences. You don't ignore differences. It's all too easy for somebody in the majority in the population to say oh, we're just all the same, without an understanding of the different life experience that you've had, that others have had. Once you have that understanding and mutual respect, then we can transcend the differences and embrace the highest common denominator of the American spirit. I don't know what affirmative access means. I do know what affirmative action means. I know the governor is against it, and I know that I'm for it. I know what a hate crime statute pending at the national level is all about in the aftermath of James Byrd's death. I'm for that proposed law, the governor is against it. I know what it means to have a commitment to diversity. I am part of an administration that has the finest record on diversity. And incidentally, an excellent -- I mean, I think our success over the last eight years has not been in spite of diversity but because of it. Because we're able to draw on the wisdom and experience from different parts of the society that hadn't been tapped in the same way before. And incidentally, Mel Carnahan in Missouri had the finest record on diversity in any governor in the entire history of the State of Missouri. And I want to honor that among his other achievements here. Now, I just believe that what we have to do is enforce the civil rights laws. I'm against quotas. This is, with all due respect, Governor, that's a red herring. Affirmative action isn't quotas. I'm against quotas, they're illegal. They're against the American way. Affirmative action means that you take extra steps to acknowledge the history of discrimination and injustice and prejudice and bring all people into the American dream because it helps everybody, not just those who are directly benefitting.

MODERATOR: Governor, what is your -- are you opposed to affirmative action?

BUSH: If affirmative action means quotas, I'm against it. If affirmative action means what I just described what I'm for, then I'm for it. You heard what I was for. The vice president keeps saying I'm against things. You heard what I was for, and that's what I support.

MODERATOR: What about -- Mr. Vice President, you heard what he said.

GORE: He said if affirmative action means quotas, he's against it. Affirmative action doesn't mean quotas. Are you for it without quotas?

BUSH: I may not be for your version, Mr. Vice President, but I'm for what I just described to the lady.

GORE: Are you for what the Supreme Court says is a constitutional way of having affirmative action?

MODERATOR: Let's go on to another --

GORE: I think that speaks for itself.

Mr. Bush is in a hard political position because his base is dead set against any form of affirmative action but Mr. Bush also wants to make inroads with minority voters. That progress is unlikely if he takes a hard position against affirmative action.

Those competing and conflicting concerns lead Mr. Bush to take positions with respect to affirmative action that are neither fish nor foul.

Ward Connelly, a prime opponent of affirmative action notes Mr. Bush’s reluctance to take a firm position:

On the issue of "affirmative action," which is symbolically the most important issue to the black establishment, Bush has triangulated with the skill of Bill Clinton. He has never expressed a position regarding Proposition 209 (California's seminal initiative to end "preferential treatment" based on race). He has supported "affirmative access," and maintained more than an arm's length distance between himself and those who promote an end to race preferences and other forms of government paternalism.

I will discuss Mr. Bush’s advocacy of “affirmative access” in more detail below, but for now please allow me to note Jacob Weisberg’s definition of it:

Affirmative Access: Meaning unclear; either affirmative action or eliminating affirmative action...

In order to straddle the issue without offending either his base or minorities, Mr. Bush pursues a dual strategy. First, to avoid offending minorities, he professes beliefs that lead many to favor affirmative action.

For instance, Mr. Bush professes to believe that racial discrimination is a cause of poverty. In his Katrina speech, President Bush said the following:

As all of us saw on television, there is also some deep, persistent poverty in this region as well. And that poverty has roots in a history of racial discrimination, which cut off generations from the opportunity of America. We have a duty to confront this poverty with bold action. So let us restore all that we have cherished from yesterday, and let us rise above the legacy of inequality.

Mr. Bush not only acknowledges that past discrimination has resulted in the poverty that we all saw in the wake of Karina, he is not a member of the Dinesh D’Souza position that racism is a thing of the past. Bush acknowledges that racism still exists. It is not much of a leap from those two facts to believe that currently existing racism results in an unfair playing field today. After all, if past racism has caused poverty and racism still exists, is it not logical to believe that the current racism, unaddressed, will result in the creation, or continuation, of poverty?

Mr. Bush also professes belief in the value of racial diversity. In the debate quoted above, Mr. Bush said “I going to find people that want to serve their country, but I want a diverse administration. I think it’s important.”

Mr. Bush talks about the value of diversity and he talks about it A LOT. The following snippets are from a single 2004 speech:

You believe there ought to be diversity on the editorial pages of America. I agree. You believe there ought to be diversity behind the managing editor's desk. I agree with that, too.

***
I believe that the benches ought to reflect, as best as possible, the diversity of our country. And I believe my administration ought to, too, and I've fulfilled that commitment. I've got people from all walks of life who advise me. My Cabinet is diverse. The people who walk into the Oval Office and say, Mr. President, you're not looking so good today, they're diverse…And I'm better off for it. I'm better off for listening from people from different walks of life.

***
When I was the governor of Texas, there was concerns (sic) that our big institutions were not -- big educational institutions were not diversified enough….

***

I have a responsibility to work for diversity, as well, in the administration. I've met the obligation. If you look at my administration, it's diverse….

***

We've got a diverse Cabinet. I've got a diverse administration. Hopefully, that sets an example for people when it comes to hiring, including news organizations….

***
and I think colleges need to work hard for diversity… I support colleges affirmatively taking action to get more minorities in their school…

***

I support diversity…

Not only does Mr. Bush support diversity in the abstract but if race neutral admissions criteria do not produce such diversity, Mr. Bush is in favor of policies that do result in diversity even if that includes using race as a factor. From the same speech:

If they don't work, to achieve an objective which is diversification, race ought to be a factor. I agree with that assessment. I think it's very important for all institutions to strive for diversity, and I believe there are ways to do so. … I support colleges affirmatively taking action to get more minorities in their school.

All that talk of racial discrimination causing poverty and the need for racial diversity might cause heartburn for certain members of Mr. Bush’s coalition. For those people, Mr. Bush relentlessly attacks quotas.

From the 2004 speech:

I think quotas are discriminatory by nature. They discriminate -- I think they discriminate on the bottom, and I know they discriminate on the top. And so I agreed with their assessment that a quota system was an unfair system for all.

***

I don't support quotas. I think quotas are wrong. I think quotas are wrong for people, and so do a lot of people.

From the 2000 debate:

I've worked hard in the State of Texas to make sure our institutions reflect the state with good, smart policy. Policy that rejects quotas. I don't like quotas. Quotas tend to pit one group of people against another. Quotas are bad for America…

***
I think the contracting business in government can help. Not with quotas,…

***
If affirmative action means quotas, I'm against it.

Mr. Bush’s firm opposition to quota systems is more than a bit disingenuous. Being against quotas is not really very helpful in determining where Mr. Bush stands on affirmative action. Quotas in higher education admissions were found unconstitutional in the Bakke decision. Bakke was decided in 1978. Thus, Mr. Bush’s opposition to quotas addresses an issue that has been settled for 27 years. It is as if a Democratic politician asked about his position on tax cuts answered that he opposed the 90% top marginal rates of the Eisenhower administration. It is, perhaps, true but it long ago ceased to be relevant.

Mr. Bush’s opposition to quotas combined with his support for diversity leads to some awkward moments. When the University of Michigan law school affirmative action case made its way to the Supreme Court, the administration was pressured to decide whether the Solicitor General would support or oppose the program. The administration dithered but, finally, the SG’s office filed a brief opposing the program. The basis for the opposition was that the Michigan law school affirmative action policy was, in fact, a quota system.

Before the Supreme Court ruling Mr. Bush said:

At their core, the Michigan policies amount to a quota system that unfairly rewards or penalizes prospective students based solely on their race.

After the Supreme Court upheld the law school admissions policy, Mr. Bush said:

I agreed with the Court in saying that we ought to reject quotas. I think quotas are discriminatory by nature. I think they discriminate on the bottom, and I know they discriminate on the top. And so I agreed with their assessment that a quota system was an unfair system for all.

According to Mr. Bush, the Michigan law school admissions policy was a bald faced quota system. Mr. Bush opposes quotas. The court upheld the policy. Mr. Bush agreed with the Court that quota systems should be rejected. I may not be the sharpest knife in the drawer but all of those things can not be true.

Mr. Bush’s efforts to appease both minorities and his base on the affirmative action issue cannot work unless he has an alternative to traditional AA programs. For Mr. Bush, that solution is “affirmative access.”

His Texas policy of affirmative access allows college admission to Texas Universities for the top 10% of each High School class. Mr. Bush describes it:

We can have affirmative programs that enhance people’s chance to access the middle class without quotas and without pitting race against race. We were the first state to put a rule in place that the top 10% of each high school class could go to a state university. I call it affirmative access.

It is hard to see how affirmative access improves upon the Michigan law school plan as approved by the Supreme Court. As I have previously noted, affirmative access is similar to affirmative action in some ways but also combines the worst of both affirmative action and quotas into one bad bundle. In particular:

- like affirmative action, affirmative access is designed (pdf) to promote racial diversity on campus;

- unlike affirmative action, the Texas statute implementing affirmative access specifically recognizes that unqualified students will be admitted;

- because Texas residential housing patterns are segregated, and becoming more so (pdf) , affirmatire access implements an actual quota for minority admissions;

- Affirmative access encourages students to stay in bad schools so as to gain admission to Texas Universities;

- Affirmative access admits less qualified students over more qualified students in order to promote racial diversity;

- Instead of counting standardized test scores for 12 of 150 points, as Michigan did, those scores count for nothing in Texas;

- Affirmative access, unlike affirmative action, depends on segregation to accomplish its objectives.

Thus, Mr. Bush, in order to avoid having to favor or oppose affirmative action, has advocated a policy that combines the worst all worlds.

All of the above is intended to prove that Mr. Bush’s supporters are correct when they argue that he is a man of principle. The only principle he cares about is political advantage. His position with regard to affirmative action is perfectly designed to promote that principle.

Nothing can come between us...

With the possible exception of "Tammy".

We've been hanging out at Cape Hatteras (post-Ophelia), with plans to head to Dwight and Deb's Friday (and drop in to Converge South this weekend to heckle Duncan.)

Seems like NOAA might want us to move up that visit by a few days.

(Image via Jeff Master's Tropical Weather blog>

Update:

If any of you are going to be in Greensboro this weekend for the conference and would like to get together with the Wampum people (or need a ride or anything else while in Greensboro), leave a comment or drop me a line. I'm at Dwight-wampum at triad dot rr dot dot com.

Dwight

October is Koufax Pledge Drive month

This year will be the fourth year in which Wampum (and Dwight's former home, PLA) are holding the Koufax Awards. While it's great to win the top prize in the awards, the best part of the event is the showcasing of hundreds of blogs, posts and commentors which are often overlooked, or too quickly forgotten in the lightning speed of cyberspace today. As the years have passed, the number of nominations have increased exponentially, with over a thousand nominees last year alone. Personally, while it means a lot more work, we here think this is a very good thing.

It does, however, impact the cost of holding the awards for our relatively modest blog and small "staff" (the cost of bananas for the Googling Monkeys alone is impressive.) This is the only time during the year we actually fundraise at Wampum, as the remainder of the time we're fully willing and able to cover costs for what we view as general babbling on our part.

This year, we're holding our fundraising drive earlier, for a number of reasons. One, we'd like to spread it out over a greater length of time, as not everyone is flush with cash at the same time of the month. Also, we don't want to compete with the holiday season, when wallets are already overstretched (even more so this year, with rising energy costs.) On our end, we'd like to plan for our added expenses up front, so we don't end up with unexpected disruptions like we did last year. Lastly, fundraising during the awards itself always has felt weird to us, as we fear that some might see an opportunity for vote buying by donations from nominees. By holding the drive in advance, we feel we can avoid any appearance of such conflict of interest, so to speak. If you want to rig the election, it will take a wicked large check to stand out in our easily distracted minds.

The awards have always meant to be fun and informative. This year, our plans are to hold them on my and Eric's end while joining in relief/reconstruction efforts along the Gulf Coast (where we had planned to spend December and January even before the disaster occurred). Our goal is to help to keep the pressure on, even if the media is engaged elsewhere with missing white women and the like.

While a few people have recommended we move to a more technical format such as the Wizbang Weblog Awards, with their limited, "committee" selected nominees and push-button (Freepable) voting, we believe that an open nomination and voting process, though cumbersome, is best in highlighting the great talent and diversity in the Lefty blogosphere.

If you're able (and we recognize a lot of people are strapped these days), we hope you'll consider dropping a few quid in the pot to support this year's awards. And remember, the nominating process opens in Mid-December, so start scanning your favorite blogs now for deserving posts, series and comments (yes, we've had a few already via email.)

via Paypal

Or, our Snail Mail Address is 211 Marginal Way, Box 311, Portland, ME 04103

I know a lot of people dislike Paypal, so I'll be investigating how to set up an Amazon account. Any other suggestions are welcome as well.

Ha! Figured it out. Here's the Amazon.com Donate button:

Well, that didn't work

How about Amazon Donate Page

Today's reading assignment is ...

Wagnon (formerly Richards) vs Prarie Band Potawatomie (PBP) (04-631), the NCAI amicus brief.

Oddly on-point when another sovereign (Venezuela) offers petroleum products to Tribes at below market prices. Can Kansas, or the US, tax the petroleum products delivered to Tribes via Kansas, or the United States, at their market value? Stay tuned.

I recommend the NCAI brief. Really. The only thing I see missing from it (pre-coffee reading) is that Kansas proposes to tax the sale of gasoline by Tribe to member Indians. What next? State income tax for reservation incomes? State housing tax for tribal housing?

Notes to Progressive Oilmen

Via themarigoldtrail, a blog by an Ohkay Owingeh (San Juan Pueblo) Indian, I learned that Venezuelan President Hugo Chavez said last weekend that he was going to open the taps on subsidized heating oil for poor folks in the United States. I followed up with a letter to the contact given in the ICT coverage, expecting nothing, but knowing that heating oil was about $2 a gallon in the 2004/2005 heating season, and the residential oil distribution truck we saw in Portland early September (first of the season) had a $2.54 per gallon (summer) price, and no matter what conception of "Indian" applies, Federal Recognized, State Recognized, or Recognition Indifferent, that heating oil is wicked expensive, and wicked necessary.

To my surprise, there has been an exchange of notes today towards the end of a real program, and what I know about home heating oil would fit comfortably on a microdot, leaving a lot of room left over. That said, I've spent part of the day (when I wasn't watching a pod of five dolphins dork about a few wave sets out from where a troop of five monkeys were also dorking about) putting together data about ME/NH/VT/MA (non-casino) Tribes and heating oil and multi-tribal co-operative and ... and I'm far from done, but Sunday turned out to be a data delivery deadline.

More below.

By: Estanislao Oziewicz - The Globe and Mail

When Venezuelan President Hugo Chavez said on the weekend that he was going to open the taps on subsidized heating oil for poor folks in the United States, many assumed it was a drive-by comment aimed at raising the ire of his frequent critics in Washington.

But, as it turns out, Mr. Chavez is a man of his word.

Officials at Citgo Petroleum Corp. -- the Houston-based company that is wholly owned by Venezuela's state-owned energy company -- say they are scrambling to put the fine points on Mr. Chavez's promise to supply some of the poorest neighbourhoods in the United States with cheap heating oil this winter.

"The idea is to work with communities in need, with schools, and we'll have to work through not-for-profit organizations that will serve as intermediaries," public affairs manager Fernando Garay said.

"The very specific details, we don't have yet."

The Venezuelan leader's program is scheduled to begin next month in the Mexican-American community in Chicago, followed by the South Bronx, and then Boston.

Analysts say that Mr. Chavez's bold use of a state-owned company in a foreign country to so openly pursue his ideological aims is highly unusual.

"It's the first time I've heard that a foreign leader is basically giving away his country's natural resources," said Nikolas Kozloff, a senior research fellow at the Washington-based Council on Hemispheric Affairs.

Bradford University scholar Julia Buxton, who has written extensively on Venezuela, including The Failure of Political Reform in Venezuela, said Mr. Chavez's action is "quite unprecedented but consistent with the influence the oil has in the world economy.

"When Mr. Chavez first came to power nearly seven years ago, oil was at $9 a barrel and it's now above $60. That's given him huge fiscal leverage."

That is clearly not lost on Mr. Chavez's foes in the U.S. administration. Only days before Mr. Chavez took his message directly to Americans after speaking at the United Nations, Secretary of State Condoleezza Rice complained -- hypocritically, in the eyes of many Venezuelans -- that oil was "warping" international politics.

"It gives certain power and leverage to certain countries and not to others," she said in a meeting with The New York Times editorial board. "We're experiencing it with Venezuela, for instance, where the oil profits are being put to use across the region to, you know, push forward Chavez's particular view of the world."

One thing that sticks sharply in Washington's craw is Mr. Chavez's close collaboration with Cuban leader Fidel Castro.

Venezuela is the fifth-largest oil exporter in the world and the fourth-largest supplier of oil to the United States after Canada, Mexico and Saudi Arabia. Last year, PDVSA accounted for nearly 12 per cent of U.S. imports. Citgo has eight petroleum refineries in the United States as well as nearly 14,000 gas stations.

Ms. Buxton said that Mr. Chavez's U.S. foray was borne of pragmatism and ideology.

"He's been deeply, deeply frustrated by coverage in the U.S. media and the attitude of the U.S. government, and he's trying to counter a very Republican-directed vendetta," she said, a vendetta that included a call by U.S. evangelist Pat Robertson for his assassination.

"He clearly needed to build constructive alliances with more liberal sections of American society and open a way to insulate himself against his Washington enemies."

On the weekend, Mr. Chavez, of mixed African and native Indian ancestry, toured the heavily black and Latino-populated Bronx and was treated like a rock star.

Ms. Buxton said Mr. Chavez's pledge to help poor Americans may have been ad hoc but follows a recent pattern to provide subsidized oil to 13 Caribbean countries -- including Cuba, in exchange for the long-term loan of about 20,000 Cuban health workers.

"He does have an interest in providing oil to the poorest in the Americas, including North America," she said.

However, Ms. Buxton said Mr. Chavez faces growing concern in Venezuela, where almost half the country's 25 million people live below the poverty line, about whether his international petro-social diplomacy is sustainable and about its long-term ramifications.

Original source / relevant link:
The Globe and Mail

In the roundest of terms, each Indian household needs 200 gallons of heating oil per month, for the peak heating season, and another 200 gallons for the months before and after, or 1,000 gallons per season.

Again, in the roundest of terms, there are 2,000 Indian households in Maine that will probably require oil. This number could be doubled if those who live in public housing or who rent in multi-unit structures are also taken into account -- their heating bill is included in the rent.

We cross our fingers.

Tragedy on Lake George

Its peak leaf peeper season in the Abenaki Alps.
Today's tragedy on Lake George occured when the Mohican passed too close to the Ethan Allen, a glass enclosed tour boat, swamping it. The Ethen Allen then capsized and sank, resulting in the deaths of 19 of the 47 seniors who were its passengers.

It was just five weeks ago that we were pointing both boats out to Gracie, and MB was sharing memories of childhood summers spent on Lake George.

ICANN in, and not in, the news (II)

Some hysterical retard at has cried "China, Syria, and Irannnnnn" as the outcome of the WSIS meeting in Geneva on the 29th, a preliminary for the Tunis WSIS summit in November, because the EU votes switched from the USG's favorite position, endorsing the USG's control of the IANA root, via the dead hand of ICANN, to the Non-Alligned Movement's position, for affirmative policy, citing, err, the digital divide.

I couldn't make out if s/he was working for the USG via some K Street laundry, humping the "freedom museum vs axis of weevils" mantra for the moron market, or working for VGRS from some cubie in Reston, wrapping com/net/org in the Stars and Bars. The talking points are the same.

For some intelligence on the subject, other than my own of course, try Paul Vixie's blog Flamming Mountainside, implemented in zen of blogging blosxom.

Not "in the news", there was another exchange of letters between Vint Cerf and I on the subject of characters strings other than those of the form: [::0x2d,0x30-0x39,0x41-0x5a,0x61-0x7a::]0x2e[::0x41-0x5a,0x61-0x7a::]\0 in dns labels (aka "domain names").

For the octal-challenged, that's hypthen, zero-to-nine, and a-to-z and A-to-Z (with the obvious caveat that a-to-z and A-to-Z are case-folded and amount to the same thing, with dot as a lable seperator, and some unstated rules about how to use these characters to form valid labels.

Vint's term for these is "IDNs", which after five years working on the problem space, I'm quite sure I no longer know what is ment colloquially by that term.

Also not "in the news", the ICANN board (which Vint Chairs) voted "for the good of the internet" to transfer the sponsorship of the .iq delegation from people John Ashcroft personally put in jail to the catch of the day inside the Green Zone. The irony is that the former .iq operator was located in Texas, before going to the pokey for an export regulatory offense of a highly interesting nature, and the current .iq operator, if they manage to get out alive when the Green Zone is liberated and/or leveled, may end up in Texas as well.

The process story is that never, in the years since Jon used iso3166 to delegate responsibility for zones other than the .arpa, .mil, .edu, .int set of subzones, has a redelegation been considered on some theory of "merits", even zones that were obviously mismanaged (and having the zone managers and their machines locked up and powered down, respectively, is fairly obvious mismanagement). The only redels that took place under IANA rules were consentual ones.

So now a 501(c)(3) in Marina del Ray is in the business of determining which claim to operate a ccTLD has the greater merit, and claims by men with guns are inherently claims with merit. That is such an improvement over delegations-between-consenting-geeks. NOT.