Fitz Affidavit

No. 04-3138
in re: Grand Jury Subpoena. Judith Miller
Consolidated with 04-3139,04-3140

AUGUST 27,2004 AFFIDAVIT OF PATRICK J. FITZGERALD
PLACED IN PUBLIC FILE PURSUANT
TO OPINION RELEASED FEBRUARY 3,2006

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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
In re: Special Counsel Investigation : Case No. 04-MS-407 (D.D.C.)
: Case No. 04-MS-4W(D.D.C.)
:(Chief Judge Thomas F. Hogan)
(Grand Jury Subpoena to Judith Miller)
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PATRICK J. FITZGERALD, being duly sworn, deposes and says:

Introduction

1. I am the United Suites Attorney for the Northern District of Illinois, having been appointed by the President and confirmed by the Senate in October 2001. For purposes of the instant matter, I serve in the capacity as "Special Counsel," in that I have been delegated all the relevant powers vested in the Attorney General of the United Suites, including the power to issue subpoenas generally, to authorize subpoenas to the media and to appear in Court on behalf of the United States. I submit this affidavit in opposition to the Motions by (i)New York Times reporter Judith Miller REDACTED to quash grand jury subpoenas.

2. In this affidavit, I set forth below: the basis for my authority to conduct this investigation paragraph 5); the general subject matter of the investigation (paragraphs 6 through 8); general factual background on the investigation (paragraphs 9 through 16); the factual background giving rise to the subpoenas issued to Miller {paragraphs 18 through 48);
REDACTED the need for the reporters' testimony (paragraphs 81 through 83); the extent to which alternative remedies have been exhausted (paragraphs 84 through 88); and that the subpoenas were validly issued after a careful balancing of appropriate interests in free speech (paragraphs 89 through 100).

3. As discussed in greater detail below, reporter Miller has been subpoenaed because her testimony is essential to determining whether or not Lewis Libby, the Vice President’s Chief of Staff has committed crimes involving the improper disclosure of national defense information and perjury. Libby has admitted speaking to reporter Miller in July 2003 and discussing the purported employment of former Ambassador Joseph-Wilson's wife by the

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Central Intelligence Agency (“CIA”). However, Libby has testified under oath that he only advised Miller that other reporters were saying that Wilson's wife worked at the CIA and that Libby himself did not know if that were true. There is substantial reason to question Libby's account First, Libby testified that he merely relayed to Miller on My 12 or 13 what Libby had learned from Tim Russert on July 10. However, Russert has testified under oath that he did not discuss Wilson's wife with Libby on that date and indeed did not know then about Wilson's wife, thus, Russert could not have then imparted that information to Libby. Moreover, Libby has given accounts of conversation with two other reporters - REDACTED - and Matt Cooper of Time magazine - that are contradicted in many respects by the testimony of REDACTED and Cooper. And investigation to date has determined that Libby had spoken with as many as seven (7) different government officials about Wilson's wife employment prior to the date of the Russert conversation when he claimed to have heard the information from Russert as if it were new. One of those officials, Ari Fleischer, was told the information by Libby three days before the purported Russert conversation and advised by Libby that the information was "hush hush" The grand jury needs to hear the testimony of Miller before making any determination whether Libby should be charged. Libby has expressly waived any claim of confidentiality as to conversations With Miller regarding the subject matter of the
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Authority to Conduct Investigation
5. In this particular matter, Attorney General John Ashcroft has recused himself from participation and delegated his full authority to Deputy Attorney General James B. Comey as Acting Attorney General The Deputy Attorney General is not recused from this matter but has delegated all the power he has concerning this matter to the letters dated December 30, 2003, and February 6, 2004, copies of which are annexed as Exhibits A and B. The Deputy Attorney General has exercised his discretion not to participate in the conduct of the investigation so as to allow him to participate fully in efforts to coordinate-national security matters with other members of the administration.. Thus, as Special Counsel I serve as the

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functional equivalent of The Attorney General on this matter.

The General Subject Matter of the investigation

6. This investigation concerns the disclosure by government officials to the press in July 2003 of then classified information concerning the employment of Valerie Wilson Plame by the Central Intelligence Agency ("CIA"). In particular, the investigation seeks to determine: which administration officials disseminated information concerning Ms. Plame to members of the media in spring 2003, the motive for the dissemination, and whether any violations of law were committed in the process. While the initial reporting regarding Ms. Plame's employment was in a column by syndicated columnist Robert Novak,2 the investigation of unauthorized disclosures is not limited to disclosures to Novak.3 Moreover, the investigation seeks to determine whether any witnesses interviewed to date have made false statements, committed perjury in the grand jury or otherwise obstructed justice.

7. In particular, this affidavit is submitted ex parte to apprise the Court why it is necessary that reporter Judith Miller of the New York Times be compelled to testify in compliance with a validly authorized grand jury subpoena as to conversations she had with I. Lewis Libby, a/k/a "Scooter Libby." Mr. Libby has signed a written waiver of confidentiality concerning his conversations with the media and upon information and belief has also expressly
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FOOTNOTES
1 I have not been appointed pursuant to title 28, United States Code, Part 600, which is the provision allowing the Attorney General to appoint an attorney outside the Department of Justice to investigate and prosecute certain matters, m fact, In fact the authority delegated in this case is in many respects; broader than the authority conferred by the latter provision as I need not seek approvals prior to significant investigative or prosecutive steps.
2 Novak authored a Jury 14, 2003, Chicago Sun Times column revealing Plame's purported association with the CIA. (A copy of that column is annexed as Exhibit C.)
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In seeking to determine the sources for these disclosures, and the motives for the disclosures, the investigation also necessarily has sought to determine whether, as was reported in The Washington Post in September 2003, administration officials called a number of other members of the media in order to reveal information about Ms. Plame. The investigation has focused primarily on disclosures pre-dating July 14, 2003, the date of Novak’s column.
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released at least cue other reporter (Matt Copper from lane) from any agreement of confidentiality.
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This affidavit is submitted under seal because it concerns a grand jury matter and is filed ex parte because it describes in detail various sensitive aspects of the grand jury investigation.

The Background Facts:

9. The "leaks' under investigation must be viewed in the context of a controversy concerning the content of the State of the Union address delivered by President George W. Bush on January 28,2003. In that speech, President Bush stated: “The British government has learned that Saddam Hussein sought significant quantities of uranium from Africa." Those remarks, since referred to colloquially as the "16 words," were called into question by a series of articles in the spring of 2003, including several ultimately sourced in part to Ambassador Joseph Wilson. Wilson, a retired career State Department official who had been posted to a number of different African countries, had taken a trip to Niger at the request of the CIA in February 2002 to investigate allegations that yellowcake uranium had been sought or obtained by Iraq from Niger. (The CIA commissioned Wilson to take this trip after the CIA received inquiries from the Vice President about the allegation that uranium had been sought from Niger, but the Vice President himself did not request such a trip.) Wilson reported to the CIA that he doubted Iraq had obtained uranium from Niger recently, for a number of reasons. After the State of the Union speech, the International Atomic Energy Association revealed in March 2003 that documents apparently evidencing efforts to obtain yellowcake uranium from Niger were demonstrable forgeries. Thereafter, over the course of spring 2003, the "16 words" controversy attracted greater media attention. Wilson, who was not a government employee at the time of the trip and REDACTED spoke to several reporters, including Nicholas Kristof of the New York Times and Walter Pincus of the Washington Post, who wrote articles on May 6 and June 12 respectively concerning Wilson's trip to Niger, without naming Wilson. The articles called into question the accuracy of the "16 words." Those news stories generated significant conversation within and between the Office of the Vice President, the CIA, the State Department and the White House as to the circumstances under which Wilson's trip was undertaken.
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The Wilson Op Ed Piece

10. On July 6, 2003, Wilson authored an Op-Ed piece in the New York Times entitled “What I Did Not Find in Africa” and was interviewed for an article in the Washington Post about his trip. Both items appeared in the July 6 editions of the respective newspapers. Also on July 6, Wilson appeared as a guest on Meet the Press, hosted that day by Andrea Mitchell. Those media appearances by Wilson generated heightened media interest and increased frustration in the Office of the Vice President that the Vice President was being identified incorrectly sd the person sending Wilson on his trip. As a result of press inquiries at the White House the day following the articles and Wilson’s television appearance, White House Press Secretary Ari Fleischer stated at a July 7, 2003 press “gaggle” that the Vice President had not requested Wilson’s trip, had not been aware of it and had not been briefed on the results.
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11. Thereafter, the issue of how the “16 words” came to be in the State of the Union was a very prominent issue during the week of July 7 to July 12, while the President and several cabinet members were on a trip to Africa. The attention was increased in part by remarks by National Security Adviser Dr. Condoleeza Rice on Air Force One on July 10, 2003, which appeared to attribute blame for the “16 words” to the CIA. On Friday, July 11, 2003, CIA Director Tenet issued a written statement accepting responsibility for the inclusion of the “16 words” in the State of the Union address.

12. REDACTED
FOOTNOTES
4 As understood by various officials interviewed “on the record” comments are statements made for attribution to a government official by name. ”Background” comments are comments that are attributed to a generic description of the government official. “Deep background” comments can be reported as part of the story but not specifically attributed to a government official. “Off the record” comments cannot be reported in the story but can be used to inform the reporter’s understanding of the facts.
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The Novak Column

14. On. Monday, July i4, 2003, Robert Novak published his syndicated column revealing that Wilson's wife was an "agency operative on weapons of mass destruction." Novak also reported, "[t]wo senior administration officials told me his [Wilson's] wife suggested sending Wilson to Niger to investigate the Italian report.” A Time magazine piece authored by Mr. Cooper (as well as several coauthors) entitled “A War on Wilson?” appeared on the Internet later that week (July 17) which stated:

And some government officials have noted to Time in interviews (as well as to syndicated columnist Robert Novak) that Wilson's wife, Valerie Plame, is a CIA official who monitors the proliferation of weapons of mass destruction. These officials have suggested that she was involved in her husband's being dispatched Niger to investigate reports...

(Copy annexed "as Exhibit F.)

15. A Newsday article the following week quoted an intelligence official as confirming Valerie Flame's purported status' as a CIA employee. (Copy annexed as Exhibit D.)

16. The media published more information in the fall of 2003 confirming that Novak was not the only reporter contacted during the relevant period. The September 28, 2003, Washington Post reported that one unidentified source had advised that two top White House officials had contacted at least six reporters prior to the time that Novak published his July 14 story. (Copy annexed as Exhibit G.) The October l2 Washington Post story by Pincus and Allen revealed that a Washington Post reporter had been told about Wilson's wife's employment by an

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administration official on July 12, two days before Novak's column was published. (Exhibit E.) And Novak himself described the circumstances of his contact with his two administration sources in his October 1, 2003, Chicago Sun Times column. (Copy annexed as Exhibit H.)

The Instant Subpoenas

17. The instant subpoenas to New York Times reporter Miller concern conversations between I. Lewis Libby, a/k/a "Scooter Libby," and reporter Miller in July 2003 and related documents. Libby, a subject of this investigation who has testified twice before grand jury to date, is Assistant to the President, Chief of Staff to the Vice President, and Assistant to the Vice President for National Security Affairs.
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The Subpoena to Miller

Libby’s Account of the July 8 Meeting between Libby and Miller
18. Libby met with New York Times reporter Judith Miller on July 8,2003.
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Libby did not testify that Wilson's wife was discussed at the meeting - having repeatedly staked the position that he didn’t discuss Wilson's wife with any one prior to July 10, the date when he thought he learned about Wilson's wife for the first time from Tim Russert. As discussed elsewhere, however, there appears to have been no such conversation with Russert about Wilson's wife on Jury 10 and Libby was discussing Wilson's wife with others prior to Jury 10. Thus, it is plausible that Libby may have discussed with Miller Wilson's wife on July 8, given that he discussed Wilson's wife with Ari Fleischer on July 7 and he admits discussing Wilson's wife with Miller at feast on July 12.

Libby’s Account of the July 12 Telephone Call Between Libby and Miller

22 Libby testified that he spoke to Judith Miller on July 12 or Jury 13 about Wilson's wife by telephone from his home, believing that the call occurred on Jury 12. The call to Miller would have followed conversations described below with reporters Matt Cooper (Time magazine)
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Libby’s Claimed Basis for Knowledge About Wilson’s Wife

23. Libby testified in the grand jury that Tim Russert of NBC advised him by telephone on or about July 10 or July 11, 2003, that Wilson's wife worked for the CIA. Libby testified that he believed he was learning this information for the first tone from Russert. Libby further testified that he thereafter spoke to reporters REDACTED Matt Cooper of Time magazine and Judith Miller of the New York Times and discussed with them the fact that Wilson's wife worked at the CIA, relaying what he heard from Russert (and what Karl Rove also told him that Rove had learned from Robert Novak). Libby acknowledged that his own notes indicated that he had been advised by the Vice President in early June 2003 that Wilson's wife worked at the CIA. Libby maintained, however, that while he had learned that fact from the Vice President in June, he had forgotten about it by the time he spoke to Russert in early Jury. Further, according to Libby, he did not recall his conversion with the Vice President even when Russert allegedly told him about Wilson's wife's employment
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Because Libby’s account is substantially at odds with essentially every material witness questioned to date, Libby's account is set forth in detail below and compared with the accounts of other witnesses.

Libby’s Account Of His July 10 Conversation With Tim Russert

24. More specifically, Libby has testified that he spoke with Tim Russert on July 10 or 11, 2003, when Libby called to complain to Russert in Russert’s capacity as NBC Washington Bureau chief about what Libby perceived to be unfair coverage by Chris Matthews
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of MSNBC. (Matthews was reporting that the Vice President and/or his staff knew about Wilson's trip to Niger and thus, in Matthews' view, knowingly allowed the President to mislead the public in the State, of the Union.) During that conversation, Libby claims that Russert advised Libby that Wilson's wife worked at the. CIA and that "all" the reporters knew that information As noted above, Libby specifically recalls believing that he was learning that fact for the first time even though by his own admission Libby's notes show that he had been told this fact by the Vice President the month before. (Exhibit I at pages 84-87.) When confronted on whether he had discussed Wilson's wife with other government officials earlier that week-including White House press secretary Ari Fleischer, Director of Communications for the Vice President Cathie Martin and- others – Libby’s repeated refrain was mat he could not have discussed the matter earlier in the week because he specifically recalled that he learned about Wilson's wife from Russert that week as if it were new (Exhibit 156-60).

25. Libby explained in detail how he was certain he said nothing to confirm what Russert said was true and that in fact that he did not recall what he knew about Wilson and his wife at the tune of the conversation:

[Russert asked] "did you know that Wilson's wife works at the CIA?”
taken aback by that I remember being taken aback by it And I said -he may have said a little more but that was — he said that. And I said, no, I don't know what intentionally because I didn’t want him to take anything I was saying as in any way confirming what he said because at that point in time I did not recall that I had ever known and I though that this was something that he was telling me that I was first learning. And so I said, no, I don’t know that because I want to be very careful not to confirm it for him so that he didn’t take my statement as confirmation for him.

. . . [Libby then clarifies mat he had made clear that the Russert conversation had been off theme record]

So then he said - I said — he said, sorry — he, Mr. Russert said to me, did you know that Ambassador Wilson's wife, or his wife, works at the CIA? And I said, no, I don’t know that. And then he said, yeah — yes, all of the reporters know it. And I said again, I don't know that … I just wanted to be clear that I wasn't confirming anything for him on this. And you know, I was struck by what he was saying in that he thought it was important fact, but I didn't ask him any more about it because I didn't want to be digging in on him and then he moved on and finished the conversation...
(Exh. I at l43)
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Russert’s Account of His Conversation With Libby

26. Russert testified under oath that he had no recollection that he and Libby discussed Wilson's wife during that week. Russert recalled neither being advised by Libby that Wilson's wife worked at the CIA nor advising Libby of the same. Russert recalled that Libby did call to complain to him about Chris Matthews' - coverage. Russert recalled that when he first read Novak's column on July 14,2003, that he had a reaction of "wow" because reading the article was the first time he had heard of Wilson's wife's purported affiliation with the CIA. (Transcript of Russert Deposition annexed as Exhibit K). In addition, Russert had not heard any reporters talking about Wilson's wife working at the CIA before the Novak column appeared. Having not heard that Wilson's wife worked at the CIA, and not having heard, that any reporters were saying that prior to Novak's Jury 14 column, it thus appears impossible that Russert advised Libby on July 10 or 11 that "all" the reporters were saying Wilson's wife worked at the CIA. Indeed, Russert advised that had he known that Wilson's wife was purported to be a CIA employee prior to reading Novak's column, he would have taken steps to have NBC investigate that story, which he has no recollection of doing.

Other Information Inconsistent with Libby's Account

27. Moreover the record developed in the course of this investigation suggestions that as many as seven government officials discussed Wilson's wife's employment at the CIA with Libby prior to the date when Libby claims to have learned this information (for what he claims to have then believed was the first time) from Russert:
FOOTNOTES
(1) As indicated above, Libby now admits being told by the Vice President about Wilson's wife's employment in early June 2003;6 - -
(2) Undersecretary of State Marc Grossman recalls telling Libby in early June 2003 that “Joe Wilson's wife works for the CIA" and that "our people say that she was involved hi the organization of the-trip."
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(3)REDACTED a former member of the communications staff for the Office of Vice President, recalls advising Libby REDACTED in June or early July 2003 (at a time that appears to be prior to the date of the purported Russert conversation) that she had heard that Wilson'8 wife worked at the CIA.

(4) David Addington, Counsel for the Office of the Vice President, recalls being asked privately by Libby in the week of July 7 what kind of paperwork the CIA would maintain if an employee's spouse were sent on a trip by the CIA. Addington testified that from the context of the question he understood Libby to be discussing Wilson and Wilson's trip to Niger.

(5) A CIA employee assigned to provide daily intelligence briefs to the Vice President and Libby has handwritten notes indicating that Libby referred to "Joe Wilson" and "Valerie Wilson" by those names in conversation with the briefer on June 14, 2003 - a month before the Russert conversation.
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After a June 2003 article about Iraq and the uranium issues that caused concern to Edelman and Libby, Edelman asked Libby whether information about how the Wilson trip came about could be shared with the press to rebut allegations that the Vice president seat Wilson. Edelman testified that Libby responded by indicating that there would be 'complications" at the CIA in disclosing that information publicly. Ambassador Edelman indicated that he understand that he and Libby could not further discuss the matter because they were speaking on an open telephone line and Edelman understood that this might involve classified information

(7) Former White House press secretary Ari Fleischer, REDACTED
testified that he went to lunch with Libby on Monday, July7, 2003, and in a conversation Fleischer described as "weird," Libby told Fleischer that Wilson's wife worked at the CIA. Libby told Fleischer the information about Wilson's wife was "hush hush" or "on the QT." Thus, according to Fleischer, Libby imparted what Libby appeared to have considered sensitive information about Wilson's wife's employment three days prior to when he claims to have received it as "new" information during the Russert conversation.
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33. Libby testified that Cooper then asked why Wilson was claiming that the Vice President had sent him to Niger if the Vice President had not. Libby testified that he then explained to Cooper that Wilson might have heard something unofficial (and inaccurate) about the Vice President sending Wilson and “in that context” and "off the record” Libby told Cooper that "reporters are telling us” that Wilson's wife worked at the CIA "and I don't know if it's true." (Exh. I at 182-86.) : Libby testified several times that he told Cooper (and the other relevant reporters discussed below, including Miller) that he did not know if the information was
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true or even if Wilson had a wife.

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FOOTNOTE
9 "And when I talked to the reporters about it, I explicitly said this is true, I don't know the man, I don't know if he has a wife, but reporters are telling us that" (Exhibit J at 177)
"And you're certain as you sit here today that every reporter you told that Wilson's wife worked at the CIA, you sourced it back to other reporters?" A: “Yes”, sir... (Exhibit J at 181.)
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REDACTED Paragraph one of the subpoena requested documents concerning conversations between July 6 and July 13 between Judith Miller and a "government official with whom she met in Washington. D.C., on July 8,2003, concerning Valerie Plame... or concerning Iraqi efforts to obtain uranium."
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Libby’s Waiver of Confidentiality
47. To the extent that a "reporter's privilege" is claimed to exist under the law, Libby has waived its protections. Libby has executed a signed waiver which recites in pertinent part:

I have informed the Federal Bureau of Investigation of my recollection of any communications I have had with members of the media regarding the subject matters under investigation. I hereby waive any promise of confidentiality, express or implied, made to me by any member of the media in connection with any communications that I may have had with that member of the media regarding the subject matters under investigation, including any communications made "on background," "off the record," "not for attribution or in any other form I request any member of the media with whom I may have communicated to fully disclose all such communications to federal law enforcement authorities, in particular, I request that no member of the media assert any privilege or refuse to answer any questions from federal law enforcement authorities on my behalf or for my benefit in connection with the subject mattes under investigation.
(Ext. L)
48. Libby has also described his version of his conversations with reporter Miller under oath before the grand jury on two occasions. And, as discussed above, Libby has apparently provided express consent (through his lawyer) for Cooper to testify. Cooper testified at his deposition that he agreed to testify because he was convinced based upon his attorney's conversation with Libby's attorney that Libby voluntarily released Libby from any promise of confidentiality. Thus, to the extent that Judith Miller calls into question the voluntariness of Libby's waiver, she need look no further than to her own attorney {who represents Cooper as well) who, according to Cooper, has assessed that Libby's waiver of confidentiality has been voluntary.

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The Need for the Reporter’s Testimony

81. The testimony of reporter Miller is central to the resolution of the criminal investigation concerning Libby. Her testimony is essential to determining whether Libby is guilty of crimes, including perjury, false statements and the improper disclosure of national defense information. The grand jury needs to know when Libby advised Miller about Wilson's wife — during their private meeting outside the White House on July 8 or during the three minute telephone call cm July 12 - and whether Libby qualified his disclosure to Miller by REDACTED If Libby knowingly disclosed information about Plame's status with the CIA, Libby would appear to have violated Tine 18, United States Code, Section 793 if the information is "information respecting the national defense.” In order to establish a violation of Tide 50, United States Code, Section 421, it would be necessary to establish that Libby knew or believed that Plame was a person whose identity the CIA was making specific efforts to conceal and who had carried out covert work overseas within the last 5 years. To date, we have no direct evidence that Libby knew or believed that Wilson's wife was engaged in covert work.
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stating that he had heard it only from a reporter and did not know if it were true, Miller's testimony is essential to determining whether Libby fabricated his claim that he only told reporters what he claimed he had heard from Russert without a belief that the information he was passing on was either true or classified.
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Miller could shed light on the context in which any conversation about Wilson's wife took place.
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Exhaustion of Alternative Remedies

84. All reasonable alternatives to compelling the reporters' testimony have been explored. Indeed, the effort expended to date far exceeds what could ever be reasonably required. An experienced team of FBI agents has been working on the case since October 2003, led by Special Agent Jack Eckenrode then of the Inspection Division. At least six agents have been assigned to the case at any time and extensive forensic computer and telephone work is being done. Attorneys with the Criminal Division of the Department of Justice: a Deputy Assistant Attorney General; the Chief Deputy Chief and a Trial Attorney from the Counterespionage Section; and a Trial Attorney from the Public Integrity Section. All five attorneys are well versed in the facts and participating to varying degrees in interviews of witnesses, review of documents and examination of witnesses before the grand jury. From the United States Attorney's Office in Illinois, a number of senior attorneys have participated. Besides my own participation in the factual investigation, the First Assistant United States Attorney, the Chief of the Criminal Division, the Chief of Appeals and the Chief of Public Corruption have participated to varying degrees in the discussion of legal issues, including analyzing the relevant statutes, analyzing the First Amendment issues and determining the available means to obtain electronic evidence. An additional attorney from the appellate section has spent substantial time on legal research and briefing in recent months.
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85. The Department of Justice has been investigating this matter since about October 1, 2003, and my participation as Special Counsel began in late December 2003.
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88. In short, whatever the line should be drawn in requiring the government to exploit alternative remedies, we respectfully submit that any reasonable threshold that might be set has been far exceeded.

The Subpoenas Are Issued Legitimately and Not For Purposes to Harass

89. It is important to bear in mind that the applicable regulations do not create any legally enforceable right in any person. (See Title 28 Code of Federal Regulations, Section 50.10, a copy of which is annexed as Exhibit 0, at paragraph (n)). Nonetheless, issuance of the subpoenas at issue was consistent with principles set forth in those regulations. First, the subpoenas are narrowly drafted after a careful balancing of the First Amendment interests. Indeed, as set forth in the next section, a number of reporters, and their toll records, are not being subpoenaed at this time. Most will likely never be subpoenaed.
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92. Subpoenas were issued to Matt Cooper and Time magazine, as well as Tim Russert and NBC. After motions to quash the subpoenas were denied, Russert and NBC agreed to a deposition. After Cooper and Time were held in contempt, but prior to appeal, they agreed to a deposition.
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94. In deciding whether to issue subpoenas to reporters, I have carefully weighed and balanced the competing interests of the First Amendment and the public interest in the dissemination of ideas and information and the countervailing interests in effective law enforcement and the fair administration of justice: namely determining whether a crime was committed and whether someone should be prosecuted for that crime. One key factor in deciding
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whether to issue a subpoena has been whether the "source" to be identified appears to have leaked to discredit the earlier source.(Wilson) as opposed to a leak who revealed information as a ”whistleblower" (e.g. the source for the September 28 Washington Post column). The First Amendment interests are clearly, different when the "source" being sought may have committed a crime in order to attack a person such as Wilson who, correctly or incorrectly, sought to expose what he perceived as misconduct by the White House. Indeed, failure to take effective steps to identify such sources might chill future whistleblowers such as Wilson, thus impairing "a reporter's responsibility to cover as broadly as possible controversial public issues." (28 CFR Section 50.10.) We have also not issued subpoenas to date where the reporter may have relevant information but it is not shown to be likely that the reporter does REDACTED or where the information is not essential to determining guilt or innocence of a crime reasonably likely to be charged
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96. The instant subpoenas were issued only after first making certain that any efforts at a negotiated resolution would be fruitless. Indeed, Special Counsel has engaged in fruitful negotiations with other members of the media.
97. There are reasonable grounds to believe based on information from non-media sources that a crime has occurred—both the improper disclosure of national defense information to the media and perjury before the grand jury and that the testimony of reporters Miller is essential to a successful investigation and may directly establish Libby's guilt or innocence, and REDACTED
The subpoenas are not issued to obtain peripheral, nonessential or speculative information.
98. There are no alternative non-media sources to provide accounts of what Libby told Miller - all others, including Libby, have been questioned extensively. redacted
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And the subpoenas are issued to verify published information and surrounding circumstances relating to the accuracy of the published information, information published in the Washington Post that "top White House officials" were contacting reporters prior to July 14,2003, and more specific information published in the Washington Post that one of its reporters was told about Wilson's wife on July 12, 2003. And the subpoenas are directed at material information regarding a limited subject matter. Miller's subpoena focuses on particular conversations with a single person (Libby) on given dates.
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99. Indeed, on the facts of this case, it is hard to imagine a stronger case: Libby claims mat he told Miller only what he heard "reporters are telling us." Thus, we are in the position of having identified the person who spoke to Miller and having obtained that person's consent to having Miller disclose the conversation. To deprive the grand jury of the ability to hear and assess Miller's account of what Libby told her is to ask the Special Counsel and the grand jury to make a decision on prosecution partly in the blind — where it is unknown whether the information will be inculpatory or exculpatory. The possible consequences of a mistake either the failure to charge what would otherwise be determined to involve a crime carried out to discredit a source who was a whistleblower or, worse, charging a confidential source in good faith with a crime where the claim of a "reporter's privilege'' deprived the of exculpatory information —— could do far more to undermine both First Amendment interests and the fair administration of justice than could enforcement of the subpoenas. Indeed, the testimony of reporter Cooper was distinctly different from what Libby testified REDACTED Given that Libby's account of conversations has been largely inconsistent with every other material witness to date REDACTED the only way to make an appropriate decision as to whether Libby committed a crime m his conversation with. Ms. Miller or in his sworn testimony describing the same is to question Miller.
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A True Hero

I was fortunate enough last week to encounter some troops returning for Christmas from Iraq in the Dallas-Ft. Worth airport. Texans were cheering them vociferously and giving them prizes and goodies. It was a stirring but eerily jarring moment, a brief reminder amidst our post-modern consumer existence that the war is still real and our terrorist enemies are still there, but fortunately our young heroes are likewise real.

Flares blogger Julian Biggs pointed me to this page of heroes.
They are, as he says, "the root source of all our freedoms and liberties". I fear there remain many areas of the country in which that is seriously believed to be the ACLU.

Among these heroes, 1st Lt. Neil Prakash towers so boldly that his story merits special showcasing.

During the action, Prakash spent several hours under fire as the lead vehicle, taking the brunt of the attack. When enemy fire disabled his tank’s turret, he maneuvered the entire vehicle in order to engage the enemy with the main weapon system and .50-caliber machine gun.

“Looking out of the hatch, I’m just spraying guys and they’re just falling,” said Prakash. “They would just drop – no blood, no nothing. We just keep rolling, getting shot at from everywhere.”

By battle’s end, Prakash's platoon was responsible for 25 confirmed destroyed enemy and an estimated 50 to 60 additional destroyed enemy fighters. Prakash was personally credited with the destruction of eight enemy strong-points, one enemy resupply vehicle, and multiple dismounted enemy fighters.

“He led the way,” said Alpha Company Commander Capt. Paul Fowler.

At this special time of year as we contemplate the big picture, however briefly, let us bestow a few minutes of thought on Lt. Prakash and his colleagues, special seldom seen heroes in whose debt we all stand, though we little know it most of the time.

Could spoil the entire afternoon ....

Hubble: Images of V838 Mon

(Update: definitely follow the link: this was originally an animated GIF showing the expanding plasma shell. I dunno why it doesn't work on Blogger.)

I have a proposition

In an effort to avoid more problems such as those posed by George Soros and Abramoff, how about the media donate air time to the campaigns?

There could be a money limit on outside money so that members of Congress [of both parties] do not feel the need to prostitute themselves to raise funds to run for office every couple of years.

This is getting out of hand and the media has not enough damage lately, maybe it is time they did something for their country, unless of course they bottom line is all they care about.

They did it again

I watched enough of the sad, hysterical, over the top and depressing coverage of the mine cave in in West Virginia to see the beginnings of a sequel to Katrina.

It had everything, bad information, upset relatives, idiot reporters blowing off about something they know jack about and of course the inevitable desire to lynch some guy looking like a deer in the headlights.

Hatfield=Brown.

This is coal country around here and has been for many years. The road I live on used to be called Iron Mountain Road because years ago they mined iron ore here.

I have known people who worked in mines and I have known people who had relatives who died in the mines. Even though most of the mining around here now is above ground, a coal miner is a coal miner and the work is dangerous and hard.

This is a tragedy and it seems like a combination of loud mouth reporters and cell phones and upset management helped make it worse...but you know what? I am tired of these people with their fancy equipment descending en masse on misfortune like a vulture on road kill and then after they make a bad situation worse they just look for some poor sap to blame it on.

Pathetic.

The answer is no

Jack Kelly posed and interesting question in his recent RealClearPolitics column: Can the Democrats not see they are plunging off a cliff?

He also refers to a recent Dick Morris column in the NY Post that might give part of the reason for the above answer.

Democrats are assuming all the anti war sentiment is from folks like Cindy Sheehan when in fact much of it is from conservative isolationists who just want the world to go away. And they are not concerned with Atta's civil liberties. Or foreign aid...or how the world sees us...or the approval of the United Nations. Like Garbo, they vant to be alone.

I think Morris is right.

A new slant

pixelfreak.com

Scan this

People as Commodity

The question of women from Asia and Eastern Europe being forced into servitude came up recently on this blog. I would not normally link to the LA Times, which has a deserved reputation for inaccuracy. In other words, this may be another urban legend. But the story fits with what is known about North Korea.

It also ties in with the demographic discussion going on in the threads below. When the First World has a shortfall in people, it "imports" more of them, via immigration. When the Second World (or Eastern Europe), has a people shortage, it also seeks to make up the shortfall from somewhere. In either case, the process is not always pretty.

Architecture and Morality

That's the name of a blog I came across recently. It appears, from the posts I have read, to be more concerned with urban planning than with what I understand as architecture. But perhaps the field has transcended mere building design and now encompasses the design of entire cities.

I know we have some architects in our readership, so maybe they would enjoy this. For everyone else, check out Complexity and Conservatism, on why designing whole communities is not really a conservative project, and The Rotting of America's Great Cities.

In the latter, blogger Curbosier quotes the former mayor of Houston to the effect that "the Great Society impulse itself is what most damaged many cities—by stressing welfare payments and income redistribution, ethnic grievance, and lax policies on issues like crime and homelessness, instead of the creation of a stronger economy."

This ties into the role of the destruction of communities in the overall decline of the West, taken up by Truepeers in the post below.

Is Mark Steyn a defeatist?

Most people reading this have strong stomachs, so let me lay it out as baldly as I can: Much of what we loosely call the western world will survive this century, and much of it will effectively disappear within our lifetimes, including many if not most western European countries.
...
What will Europe be like at the end of this process? Who knows? On the one hand, there’s something to be said for the notion that America will find an Islamified Europe more straightforward to deal with than Monsieur Chirac, Herr Schröder, and Co. On the other hand, given Europe’s track record, getting there could be very bloody. But either way this is the real battlefield. The al Qaeda nutters can never find enough suicidal pilots to fly enough planes into enough skyscrapers to topple America. But, unlike us, the Islamists think long-term, and, given their demographic advantage in Europe and the tone of the emerging Muslim lobby groups there, much of what they’re flying planes into buildings for they’re likely to wind up with just by waiting a few more years. The skyscrapers will be theirs; why knock ’em over? - Mark Steyn, writing in The New Criterion

I take my title from the racialist or traditionalist conservative, Lawrence Auster, with whose arguments I disagree on various levels. Auster thinks the west needs to wall itself off from Islam, while I think any such measures, if ever necessary as they might become, cannot be but short-term tactics. In the long run, the proven success of the western combination of free markets, democracy, and all the spiritual or intellectual precursors for western progress over the last five hundered years, must be made available to non-western peoples, allowing them either to assimilate to western culture and the demands of global markets, or to create viable hybrids between western and non-western traditions. Only if such exchange is allowed to flourish can we have any hope of mediating future global conflicts. Many think such ideas the foolhardy product of unrealistic and vain neocons. But I think the alternatives in our nuclear-tipped world are ultimately more unrealistic if survival is our basic goal.

Nonetheless, Auster raises important questions about the propensity of supposedly conservative writers like Steyn seemingly giving up on Europe and all it means to our own North American culture.

Central to the present Steyn article is the recognition that the achilles heel of the heretofore successful western tradition (not that this infirmity is today by any means an exclusively western problem) is the present fertility decline, especially notable in Europe, a decline that does indeed put in question the future reproduction of western culture tout court. At the least, it portends a yet much hotter cultural war over the role of the welfare state and the family in western societies and their ability to maintain themselves in the face of the need for large-scale immigration to work for the child-poor westerners now accustomed to highly consuming lifestyles. And Europe has a very poor track record of assimilating or integrating immigrants, many of whom produce unemployed children who are, presumably, in need of further immigrants to do the work that allows the welfare dole to be paid. Not surprisingly, many immigrants and their children seem to have contempt for the very welfare state multiculturalism that western elites cling to as the solution to their inability to represent themselves as a working community one would want to join and defend.

In this situation, do we have a right to expect more from writers like Steyn, by way of specific ideas about how Europe can save itself from welfarism and economic and demographic decline? Is it good enough to write despairing articles saying it's time to write-off Europe? Do we not owe Europeans, not only recognition of their great problems, but also a spirit of willingness to help them save themselves, if they emerge from present crises willing to throw off the current elites and the insanity of the bureaucratic monoliths they are presently building? Finally, can we North Americans hope to maintain our culture without the trans-Atlantic ties that have always been integral to who we are?

The Impeachment Follies

I was no fan of Richard Nixon but I am beginning to think that the journalists who brought him down are potentially as dangerous as he was.

At least there are term limits for Presidents. The Media just goes on and on and on.

And while I did not think Clinton was a good man, I did think impeachment was over the top. A censure would have sufficed. But even the Republicans can fall prey to partisan revenge. Like I said, I am not defending Clinton...I just think Bush is paying the price for some of that rancor today.

The country is stuck in the impeachment cycle and given the fact that we do have an enemy that cycle could get a lot of Americans killed. This has gone on long enough.

The Anchoress has some interesting links on the subject of partisan madness and leaks. Just scroll down.

I especially found her post on Aj Strata's suggestion that the public bring a class action suit against the media to be very interesting.

All the meaning you're fit to receive

There’s much discussion today of this piece from today's business section of the NYT. (HT PJM)

I found this comment particularly revealing:

Jamie McIntyre, CNN's senior correspondent at the Pentagon, said the traditional skills of sifting through information and presenting it in context were especially vital now because there were so many other sources of information.
'With the Internet, with blogs, with text messages, with soldiers writing their own accounts from the front lines, so many people are trying to shape things into their own reality,' he said. 'I don't worry so much anymore about finding out every little detail five minutes before someone else. It's more important that we take that information and tell you what it means.'

Rather than go back (?) to providing just the facts, CNN’s aim, then, is to be the principle ‘shaper’ of those facts – the capo di tutti capi of ‘shapers.’ But why does CNN think it is qualified for that role? What makes McIntyre think his take on anything is more compelling or accurate than, say, that of Richard Fernandez, Scott Johnson, or Rick Ballard? In what way is he more qualified than them? If CNN wants to go down that road, fine. But they need to understand that their only strategic asset is a prime-mover advantage in a field where such an advantage is less and less important.

You are here.

JPL.NASA.GOV: Mars Exploration Rovers

See yourself? Wave.

Keep this in mind the next time you're worried about being five minutes late.

Is it just me?

Here we are starting a New Year and it seems it is the same old same old.

The libertarians are still complaining about government spending money..unless of course it is spending it on them or someone or something near and dear to them. Pork is in the eye of the beholder.

Politicians from Texas to Turtle Bay to Paris to Baghdad are still being accused of corruption.

McCain is still running for President. Considering the effect that McCain/Feingold had on money in politics I expect his antitorture Bill will back fire the same way. same old same old.

The liberals are still comparing Bush to every bad guy from Dracula to Hitler.

Hollywood is still making bad movies as if their audience was not steadily shrinking.

And in the Middle East the jihadis welcome the New Year the same way they do evey other holiday...they blow people up.

The NYT and WaPo are still acting as if someone voted for them and they have the right to make policy decisions.

And I am a year older. Damn the luck.

Now for resolutions.

Lose Weight. Like I said the same old same old.

U.S. Base in Germany Closes After 60 Years

U.S. Base in Germany Closes After 60 Years

I was at Rhein-Main the day of Reagan's inauguration; that is, the day the Iranian hostages were returned.

No word from Congressman Murtha's office on the delayed pullout of our troops in the German quagmire.

Justice Department opens probe into leak of NSA program

The inquiry focuses on disclosures to The New York Times about warrantless surveillance conducted by the National Security Agency since the Sept. 11 terrorist attacks, officials said.

The Times revealed the existence of the program two weeks ago in a front-page story that acknowledged the news had been withheld from publication for a year, partly at the request of the administration and partly because the newspaper wanted more time to confirm various aspects of the program.

White House spokesman Trent Duffy said Justice undertook the action on its own, and the president was informed of it on Friday.

"The leaking of classified information is a serious issue. The fact is that al-Qaida's playbook is not printed on Page One and when America's is, it has serious ramifications," Duffy told reporters in Crawford, Texas, where Bush was spending the holidays." — PJM News - U.S. Justice Department opens probe into leak of Bush's domestic spying (6813051/AP)

This should be very interesting. How quickly do you suppose the Times will be able to turn and say this threatens civil liberties, and stop talking about the plame investigation?

DURING INCESSANT RAIN IN NORTHERN CALIFORNIA, FOR THE NEW YEAR

FIELD

Campanula


The worked-over, obscure worries blur gold
In drying grass. Now that you’re back I’m jazzed.
From standing out in the electric field,
In your hand the cut wild flowers buzz.

We get to jump with poppies, as sex-crazed—
Such fluttering in warm wind, where the sun
Burns all the little lies I told away.
We’ve watched butterflies. Whose wing-edges burn

Frail in bright sunlight, frail... wearing away,
Like ancient wallpaper. Summer wears on,
Frayed at the edges.—Registering dismay
You turned your gorgeous face full on me. One

Was once a handsome swain, or city kid
Of average looks, perhaps. One wants to please
In some capacity, however bad.
I’m epidemiologist to bees.

But since I’ve failed to help them, the wild flowers—
Render their judgment, and, —I should be torn
To pieces by the coyotes, for hours
I haven’t put in, trying to heal the burn

My body’s made in what was once as pure
As arctic air—I mean that other world
We plunged into as kids, of chill water
We’d drink from swift, tea-colored creeks, unboiled,

To lie on sunwarm rock, a laughing noon
That agitates our quantum of the free
Happiness, showering photons, while the sun
Stands still a minute, where it’s supposed to be—

With nervous energy, surviving bees
Lay down their worry lines, find hanging bells
Chiming a kind of silence, a sweetness,
As from some lost city of golden cells.

Those who understand will understand

If you have ever had a severe back sprain, you can answer the following quiz with no problem. Which activity is most likely to result in the worst back pain of your life?

A. Skiing to outrace an avalanche
B. Lifting a car to save a baby
C. Kickboxing competition
D. Bending over to pick up a piece of Pringles™ you spit out while laughing at your own joke.

The Dilbert Blog

Housin' Bubble, or Blowin' Smoke

If you haven't heard, there's a housing bubble on. Speculators are driving up the price of housing, and when prices crash everyone will suffocate under the financial rubble. There are even blogs devoted to it.

So we're all doomed. Just thought I should let you know.

But wait! There's more...

Median home prices (the price of a home a reasonably prosperous family might buy) have historically closely tracked GDP per capita. That makes sense - as people make more, they spend more on housing.

So housing prices today are at historic highs relative to GDP per capita, right?



Well, not really. They're above the long run average, but about where they were in the late 70s and late 80s.

And with mortgage rates so low, they're quite affordable. In fact, the median home is as affordable as it has even been.

See, home prices are relatively insensitive to mortgage rates, which is why affordability and interest rates track each other so closely. But with rates at historic lows, people appear to be willing to spend a little more to buy a home now and lock in those rates.

But prices will drop, won't they?

Well, they've come down some already, and if mortgage rates rise precipitously, or the economy falls into recession, they might. Between April and September of 1990 prices dropped by 10%, and they didn't recover until the end of 1993. Would that be a disaster?

Now, there may be some markets that are frothy, and maybe high-end homes are going through the roof. But the median home, the one that median people like myself care most about, is well within reach, and looks like a pretty good investment right now - especially if you intend to stay for a while.

All we have to fear is fear itself

Fear, Complexity and Environmental Management in the 21st Century is the title of a November 6 speech given by author Michael Crichton on [among other things] linear thought and deliberate fear mongering. He begins with the "global disaster" Chernobyl and expounds upon a theme found in his book State of Fear. We are being fed opinion as if it were pure Science.

He makes note of the many times the so-called experts have been wrong about the end of the world.

People can say that Evangelicals preach the End Times but they have got nothing on the Media and certain members of the politicized grant driven community of Scientists.

via Roger L. Simon. I agree with Roger. Bravo.

Quote for Today

"Allow yourself to be curious about the world, and to find the mystery in the mundane." — Peter Boettke

The context is in a discussion of economics and the "economic way of thought", but the insight goes far beyond. We're in the time when the upstart monotheisms make a lot of their miracles — but what do we need for big miracles when we've got a universe that provides us with Abyssinian cats who love banana bread?

Humor?

A top government health official visiting a psychiatric ward asked the head of psychology: “How do you determine if a patient is cured?”

The psychologist said: “We take them to the bath which is filled with water, hand them a spoon and a cup and ask them to empty the bath.”

“I see,” said the official. “The cured person would, of course, choose the cup because it’s bigger and will empty the bath faster.”

“Actually no,” replied the psychologist. “A normal person would pull the plug out.”

My question: when are we bailing with the spoon instead of pulling the plug?

Update on the Danish Cartoons

Just a reminder that the cartoons about the prophet Muhammed published by the Danish newspaper Jyllands-Posten are still an issue in Europe. Brussels Journal brings us up to date on current happenings as all of Europe piles on.

I thought the cartoons were in poor taste, but the over wrought response is beginning to drive me to the other side. Demeaning cartoons and art about Christianity are not rare, so what the heck is special about Islam? If you can insult the one religion you can sure as heck insult the other. It is required, in fact, if you want to demean religion per se. So why hold back?

The Insurgents are Winning

"Removing Saddam begins the reconfiguration of the Middle East, a dangerous, expensive process, but one that will lay the foundation for true states where the consent of the governed creates legitimacy and where terrorists are prosecuted, not promoted." — Austin Bay

Offworld Speaks Truth to Power

I received this exchange in email between our very own Offworld and a man whom I shall name Simplicio (HT Galileo). This states the case so well I deemed it worthy of front page publication.

Simplicio:
I would like for someone to explain to me how Iraq is ground zero for the war on Terrorism. It seems to me that terrorism directed towards the US is simply the result of our mideast policies. If we want to avoid terrorism we have only to withdraw from the mideast. And thereby save the billions we are spending to set up our home defenses.

Offworld:
Blaming the victim is easy but it is wrong. When the victim blames his or herself, it only invites the continuation of violence.

In principle, I would prefer that we not engage in these foreign adventures -- I would prefer that we trade with everyone and not make war. History leaves us with a complicated mess though and our past policies are only one little piece of the picture. Pulling out of the Middle East, in the sense of not defending our interests there, is quite unrealistic for the next twenty years at least and would require us to build a lot of nuclear power facilities. Also we can not leave Israel all on its own. If we cannot stick up for our allies, then our alliance means nothing. How do we wish to be perceived? This is not about how we feel about ourselves based on others' opinions but rather of strategic importance. Other nations and peoples will deal with us accordingly.

We should be no greater friend, and no worse enemy. We should be slow to fight but fearless once roused. We should be magnanimous in victory. We should be open and generous yet keenly aware and defensive of our interests. When we have failed in any of these respects as we did in Yalta and Vietnam, the effects have been disastrous for ourselves and for others. Above all, we should not be feckless and fickle as this will invite disorder, chaos and violence upon us and many other good people in the world.

Evil exists and will continue to operate whether we stay home or not.

Roggio

WaPo's hit piece on Bill Roggio's freelance reporting in the Anbar province of Iraq (especially offensive to Roggio's readers and sponsors) prompted this interesting analysis from (fellow-Brit) Francis Turner, blogging at The Shadow of the Olive Tree. He suggests that the WaPo is doing what any "large incumbent company does when it sees a threat on the radar screen from a start up" by deliberately spreading "fear uncertainty and doubt" about the competition: Spreading FUD

Spreading 'fear, uncertainty and doubt' about the blogosphere in general, of course, is one way the MSM seeks to retain control of the dialog.

Sacco and Vanzetti Were Guilty

Or so Upton Sinclair wrote in a letter. But that didn't stop him from writing Boston, a novelization of the affair that promoted their innocence. But wait, there is more:

Ideale Gambera, whose father was a Boston anarchist in the 1920s, said he could empathize with Sinclair's angst about revealing his doubts.

Gambera, 80, said there was a strict code of silence to protect the group and hide the nature of their activities. He said his father, Giovanni Gambera, a member of the Sacco-Vanzetti Defense Committee, told him before he died in 1982 that Sacco was one of the killers.

"They all lied," said Gambera, a retired English professor living in San Rafael. "They did it for the cause."

The hypocrisy of the Left seems endless. What good is served by lying? How can spreading untruth and damaging myths bring about a better world? The engineer in me rebels at the very thought. No good can come from ignoring what is real, only trouble and failed systems.

Photos from Cuba

Photos from Cuba have been posted on Argentinian Indymedia. They look like scenes from a post apocalypse SciFi movie, the cities decayed and falling apart. I kept thinking that this is how our cities might look if people disappeared and there was no maintenance for fifty years. No doubt the photos have been selected for their impact, but still. And they do look like other pictures I have seen posted. HT Harry's Place.

'nuf said

Click for full size.

Translation

Buddha in der Glorie

Rainer Maria Rilke

Mitte aller Mitten, Kern der Kerne,
Mandel, die sich einschließt und versüßt, -
dieses Alles bis an alle Sterne
ist dein Fruchtfleisch: Sei gegrüßt.

Sieh, du fühlst, wie nichts mehr an dir hängt;
im Unendlichen ist deine Schale,
und dort steht der starke Saft und drängt.
Und von außen hilft ihm ein Gestrahle,

denn ganz oben werden deine Sonnen
voll und glühend umgedreht.
Doch in dir ist schon begonnen,
was die Sonnen übersteht.

Buddha in Glory

Center of all centers, core of the core,
Almond that encloses and sweetens itself, --
one with the farthest stars,
your own sweet flesh: be known!

See! You feel, nothing hangs on you;
the Infinite is in your bowl,
the sweet juice flooding it.
Helped by a radiance from beyond,

overhead your full and glowing Suns
are overwhelmed.
Yes, in you, already begun, that
which outlasts the Stars.

Is Social Security Reform Dead?

IN August 2000 leading Democrats got together and produced the Hyde Park Declaration. Among other things the Democrats pledged to confront the fiscal problems that big entitlements will face in the future and to deal with the fact that their continued growth will bankrupt the programs. They also pledged to "honor our commitments to seniors". And they pledged to find a way to contain future costs acknowledging that Social Security and Medicare needed to be modified to reflect realities not envisioned when the programs were created.

Bill Clinton also stated that there should be greater emphasis on people creating their own wealth and their own retirement for the future. In fact the impending crisis in Social Security was one of the reasons given at the time for no new tax cuts.

Now these same Democrats claim there is no problem and so far have refused to offer any ideas for reform. Other than the usual raising taxes.

History did not begin when Bush took office and it will not end when he leaves office. The problems confronting the entitlement programs, once the baby boomers retire, could destroy the programs for future generations if not dealt with.

The question is, is government up to it? Or will we be like France? And once my generation retires and creates the largest voting block on Social Security in the nation's history...will it be too late?

Merry Christmas

Tapestry by Elizabeth Goodrick-Dillon

Have a happy and safe holiday.

Ten Over Par

Subtitle this item as 'The Strange Paths you can Follow on the Internet'. It starts with an item in the Australian, via Google News, entitled Dead as Dodo Find. Christmas is a slow news day, and so we're treated to the fact that a cache of some 700 bones has been found on Mauritius. These are a mixture of dodo and chicken bones and scientist believe they'll finally be able to reconstruct a full skeleton of a dodo bird from them.

The fact they don't have a complete skeleton, coupled with the mention in the article that the last stuffed dodo bird was destroyed in a fire in 1755, surprised me. There were thousands of the birds, and the 18th and 19th centuries were full of gentlemen naturalists classifying, stuffing, and mounting every exotic creature they could find. It must have been the speed of their extinction that kept the museum cases empty of samples of them.

Being a slow news day, I search the web for further dodo information. In our imagination dodo birds are exotic hulking creatures doomed by their very innocence. The Mauritius as a Garden of Eden, with lambs laid down next to wolfs, invaded and destroyed by blunberbuss toting Dutch sailors. That image is punctured by National Geographic's Extinct Dodo Related to Pigeons, DNA Shows. So the feathered things were nothing more than gigantic landbound pidgeons? Revealed as giant rats of the bird kingdom, some of the romantic pathos of their extinction drains away.

Continuing on, we find a suitably ridiculous end for our Christmas dodo research. Anyone for Tee shows the dodo is alive in the lexicon of golfers. Sadly, I've shot a dodo on more than one occasion myself. Will PETA ever forgive me?

The Insurgents Are Losing

There's a diner called Peggy Sue's about eight miles outside of Barstow, and as hard as Lt. Col. Kenneth Parks tries, he can never seem to pay his bill.

He orders a burger and a chocolate shake. But before he's finished, the waitress informs him the tab has been taken care of by yet another stranger who prefers to remain anonymous but who wants to do something for a soldier in uniform. — From Heckles to Halos - Los Angeles Times

Read it all.

You Are Beautiful

You Are Beautiful

An Exhausting, Exciting, Joyous Saturnalia

Or whatever newfangled holidays you might be celebrating. — Seneca

The Fiend

On the long haul back from a four-day trip to the Middle East highlighted by a surprise trip to Iraq, Cheney made it a priority to get his iPod a little juice — commandeering use of one of the few power outlets on the jet.

The power grab aboard his own plane frustrated reporters traveling with him who were trying to file stories and pushed curious journos to find out what tunes Cheney was eager to groove to. — NY Post

Connect the Dots!

The NSA surveillance program has been the hot topic since the Iraqi elections. And during that period Bush's approval rating has steadily climbed.

Rasmussen has him hitting 50 today!

Now another leak has made into in the news. US News and World Report has this headline:

Nuclear Monitoring of Muslims Done Without Search Warrants

In search of a terrorist nuclear bomb, the federal government since 9/11 has run a far-reaching, top secret program to monitor radiation levels at over a hundred Muslim sites in the Washington, D.C., area, including mosques, homes, businesses, and warehouses, plus similar sites in at least five other cities, U.S. News has learned.

Keep up the leaks, folks, and Bush will be at 100% approval by July!

Okay, shall we take bets on how long it takes for the Saudi funded Religious Police, er CAIR, to protest?

And when are we going to get some pushback from the government against all these leaks that affect national security? This one is especially egregious since now al Qaeda knows which cities we are NOT monitoring.

Whither the blogosphere?

A post on a prominent left-wing blog (HT: PJ Media) posits that the left-side of the blogosphere is growing faster than the right because it has a more permissive attitude towards allowing comments, and because it encourages development of "community
blogs." See here: Aristocratic Right Wing Blogosphere Stagnating

In other words, the theory goes, the right-side of the blogosphere is doomed by its oh-so predictable tendency towards an elitist, exclusive, top-down view of, and approach to, the world.

Given the distrust (noted here previously) that many prominent right-of-center bloggers (such as Hewitt, Reynolds, Malkin and the Powerline guys) have towards enabling comments; and given those bloggers’ obvious preference for a less-open forum, is there some truth to MyDD’s hypothesis? Or does the causality perhaps run in the other direction, such that consumers of right-of-center blogs prefer at least some of the blogs they read to be free of the acrimony associated with blogs, like this one, that are truly open? And just how open are left-of-center blogs anyway, given their reputation for quickly banning dissenting commenters?

Is the left-of-center blogosphere really growing faster? Do ‘lefties’ just have more time on their hands (in between WTO summits) to visit blogs and engage in comment threads? Is a right-of-center community blog such as Flares a contradiction-in-terms and doomed to failure? Or is it destined instead to conquer all and save the blogosphere (and the world) from the DU’s great leap forward?

"Compassion in Action"

When you see a Rastafarian-looking homeless advocate, you usually don't think Republican. Apparently, multi-millionaire retired attorney Milton Sidley never expected Ted Hayes to be a Republican, either. Sidley, you see, is the landlord for Dome Village, which currently pays Sidley $2,500 per month, plus property taxes, for the right to occupy the formerly blighted encampment site.

Unfortunately for the once-homeless who now live at Dome Village, the Los Angeles Times published an article earlier this month that mentioned Hayes's political leanings. Perhaps Milton Sidley--a partisan Democrat who contributed $4,000 to the John Kerry campaign in 2004--noticed the article: all of a sudden, the landlord has announced that Dome Village's rent will increase by over 630% when the lease comes up in late 2006. Each month, Dome Village will have to come up with $18,333 plus property taxes in order to stay afloat, or the residents will face homelessness once again.

According to a recent press release from Dome Village, when asked about the rent increase, Sidley replied, "This Democrat is tired of supporting Ted and his Dome Village."

— Read the whole thing.

Always Good for Some Perspective

Our newest blogroll member, Maggie's Farm, had this picture showing yesterday. I had forgotten about it. There are some things it's good to look at repeatedly over the years.

Playing against type

At this point, I suspect that the "NSA flap" is more or less over. I'll have some thoughts later — I hope; the day job is about to let me loose for a few days — about what we've learned, in particular about how things are different now than, say in 1972.

In the mean time, though, I think I ought to capture a few important links on the NSA story, so that anyone who has been following it here (in the off chance you haven't followed it anywhere else) will have them.

it's also interesting that several of them are places where the author is "playing against type":

• Pejman Yousefzadeh argues against the NSA program. His primary objection seems to be that he doesn't see the necessecity of a program that doesn't include the FISA court orders. I think he's mistaken in this; that will be another topic of my pending post.


• Bruce Fein agrees with Pejman in the Washington Times.



• On the other hand, Professor Cass Sunstein, a noted liberal law professor at Chicago, believes the President's program is at least plausibly legal.


• So does John Schmidt, Associate Attorney General from Clinton's administration.

Playing more to type, John Hinderocker presents his full analysis of the issue. His analysis very closely matches the official Department of Justice position(note PDF file), although Hinderocker objects to the DoJ 's position paper because it depends more on statute and less on the President's inherent Constitutional powers.

My conclusion: I still think the various arguments in favor of the legality of the NSA program are very strong, but there are respectable legal authorities on both said. What's more, the authorities are coming to unexpected conclusions on both sides. More to the point, however, is that when you hear someone say the program was "obviously illegal", or that Bush "knew he was breaking the law", you can be confident that the conclusion is being driven by desire or ideology or simple political experdiency.

Some other comments of potential interest:

• Cliff van Zandt


• Hugh Hewitt


• Jeff Goldstein

Behaving like an overgrown schoolboy

At NRO, Claudia Rosset tells us about The Blow-Up - Annan insults and distracts. You gotta love Rosset. Kofi, on the other hand...

So You Think Bush is Scary?

You have no idea.

Bush has supposedly authorized thirty or so warrantless wiretaps against al Qaeda correspondents. [Is that what we should call NYT reporters? --ed.]

Meanwhile Britain continues with its plans to watch every single car in realtime travelling along its motorways. Your British car spies on you and quietly sends a notice of all of your speeding to the authorities. No muss no fuss. You receive the ticket in the mail. Persistent surveillance on every car in Britain. The German government is launching a sophisticated satellite (TerraSAR-X) whose primary purpose is to check speeds on the autobahns. Watches all the cars. In realtime. Works day and night, through clouds.

Ah, but what about our friends right here at home? Log in here to see what Google knows about you. If you're like me, it remembers all sorts of things about you that you forgot already yourself. Think Google can't pinpoint you? A quick perusal of the results should convince you otherwise. We're all spewing digital information right and left these days and every credit card company, your operating system provider, your record company, your search engines, every retail store you shop at, are spying on you and collecting the information. Analyzing it. Tracking it long after you've forgotten about it. Oh, and don't forget that your cell phone company is tracking your location all the time.

Think this is all innocuous? Nowadays we hear almost daily of another breakin occurring in which all the data on students or customers is released to...? Nobody knows. It could be a teenager, it could be the Russian Mafia (said to be heavily involved in such cases), it could be al Qaeda, it could be the Chinese government. And what about all the breakins we didn't hear about? Ever heard of key-logging progrsms? They're set up on public machines to snatch your username and password when you log into a secure site. They're on the increase. Think you're safe? I have it on good authority that a local public library right here in Colorado has installed them. Has yours? Or, since lots of folks don't insist on encryption when they log in (do you??), passwords can be pulled right off the Internet by any number of free programs. Or how about clothes or shoes that phone home and allow you to be tracked all the time? Has your DNA been forcibly collected yet? Works in Canada, Germany, and the UK. Are third parties collecting it surreptitiously? Nobody knows.

Privacy has gone the way of the Dodo. We're all digitally naked, it's pretty disturbing, and it's getting worse. Those who fear Big Brother Bush are missing the real issue here. The elephant in this particular living room is that we're surrounded by Big Brothers of all sorts, many of whom do not have our best interests at heart and are not subject to Constitutional restraints at all, but the consequences are potentially so horrific and the situation is so new that the mind simply balks. Far better to fret the known and controllable mouse than the really scary mammoth whose name must not be uttered.

Important information for men seeking to attract a mate

According to this, men who dance well are more attractive to women. This is bad news for those of you who, like me, present a very real and potentially lethal danger to others when we're on the floor, for whom "cutting a rug" is likely to be perceived by others as "stomping a toe", "throwing an elbow", or, in the worse case, "simple assault".

The takeaway for all of you (and you know who you are) is this: DON'T DANCE! Not only will it quite possibly land you in jail (which you knew already), there is now scientific proof that it will cost you any chance you might have had with any women who happen to be in the room, even the ones you don't physically harm.

We now return to our regularly scheduled blogging.

Webbery

Who are your Google neighbors?

http://www.touchgraph.com/TGGoogleBrowser.html

Are We No Longer Alone?

It's hard to say what this means. Allegedly, a robot in Japan, shown here, has become "self-aware". This means that it can see itself in a mirror and recognize itself. Could it be the first non-organic sentient life? Interesting, if not definitive.

'Plame Platoon' is AWOL on new leaks

IT SEEMS like only yesterday that every high-minded politician, pundit and professional activist was in high dudgeon about the threat posed to national security by the revelation that Valerie Plame was a spook. For daring to reveal a CIA operative's name — in wartime, no less! — they wanted someone frog-marched out of the White House in handcuffs, preferably headed for the gallows.

Since then there have been some considerably more serious security breaches. Major media organs have broken news about secret prisons run by the CIA, the interrogation techniques employed therein, and the use of "renditions" to capture suspects, right down to the tail numbers of covert CIA aircraft. They have also reported on a secret National Security Agency program to monitor calls and e-mails from people in the U.S. to suspected terrorists abroad, and about the Pentagon's Counterintelligence Field Activity designed to protect military bases worldwide. — Max Boot — Los Angeles Times

The Siege of Vienna (II, III, or IV)

I can't carry a tune in a bucket and barely know where the major composers fit on historic timelines, but I like Mozart just fine, thanks. Here's a guy (Norman Lebrecht) who claims Too much Mozart makes you sick.

The Belmont Club: The tightrope

Pajamas Media has a roundup of blog discussions, pro and con, on the subject of whether the President had the authority to conduct wiretaps, one end of which involves a US person, without a court order. However the legal arguments play out, a slightly different question already has a definite answer: the President does not, apparently, have the reliable ability to conduct surveillance of the enemy without the fact being revealed in the New York Times.—
The Belmont Club: The tightrope

Wretchard mentions the Medal of Honor citation of CAPT John P Cromwell. Useful reading. Especially for the Times' sources.

Are they really that stupid?

The usual suspects [Democratic leadership and their compadres in the media] seem bound and determined to make an issue of the fact that the President of the United States actually lived up to the oath he took to protect and defend the Constitution.

As John at Powerline notes even Carter and Clinton were authorized to use warrantless surveillance for the purpose of gathering foreign intelligence. But the D behind their name stood for Democrat and not dictator and those silly rules that must be applied to conservatives like George Bush simply do not apply the bearers of the civil liberties torch.

No, their new motto, is Terrorists Have Rights Too.

The terrorists we are talking about here are folks like Zacarius Moussaoui who is awaiting trial right now.

He might have been apprehended sooner and his computer files with information relating to the September 11 attacks might have been investigated if law enforcement had been able to get a FISA warrant. It seems they tried and failed.

Dots were not connected. Remember the dots that everyone from Moore to Gore was ranting about? Well it seems we know now that if the Democrats have their way the next Moussaoui will not be caught in time either and the dots will go right on being unconnected, floating about in their own insulated little civil liberties haven.

Given a choice do most Americans want the President to do everything in his power to protect the public safety or do they want a bunch of hate mongering politicians and partisan media personalities to put us all at risk just to put the screws to George W. Bush?

Are they really stupid enough to believe that most Americans think they are big and bad and brave for trashing Bush and pandering to AlQaida? It seems so. In fact 62% of the people in this country want to see the Patriot Act renewed and there is Harry Reid bragging that he killed it.

Dumb as a bucket of rocks.

Are they out of their minds?

In Moral Relativism and Enabling Evil ShrinkWrapped takes us on a disturbing ride around the slum that is moral relativism. In addition to linking to previous posts on the topic (read 'em!) SW points to an article on Variety.com, Express route to controversy in Atlanta which tells us:

Around the holidays, the biggest challenge for many theater companies is convincing audiences to care about yet another staging of "A Christmas Carol." This season in Atlanta, however, Actor's Express wants to stir up buzz about a less familiar property -- namely, a pedophile musical.

The Express has already started pushing "Love Jerry," a new tuner written and composed by Megan Gogerty that follows the tortured story of Jerry, who develops a sexual relationship with his nephew while trying to stay friends with the boy's father.

A delicate, often heart-wrenching piece of theater, the show, which preems Jan. 22 at the Express, never descends to shock-value tactics as it explores volatile terrain, and its lilting country songs give the characters emotionally vulnerable texture. Should it manage to attract a crowd, "Love Jerry" could very well leave them cheering.

If only audiences weren't such prudes, the tale, set to music and song, of a pedophile might leave 'em cheering.

But how do you convince anyone to come sing along with a child abuser?

Beats me. I'm even more baffled trying to understand why Mark Blankenship feels some need to ask the question.

It's a double-edged question: Not only can untested musicals be notoriously hard to launch, especially when the writer is an unknown, but pedophilia (not to mention incest to boot) has proven anathema to ticket buyers.

Gee, whooda thunk it? Shrinkwrapped goes on to give us a psychoanalysts view of the underlying questions by which some seem to believe there is some justification for this level of human degradation. I'll give a knucklehead's view of what is at work here: their basket is packed two sandwiches short for a picnic, they are embarked on an elevator that does not go to the top, and the light is on but nobody's home. These idiots have, at best, one oar in the water.

Your Own, Personal, Weather Station

Have you ever watched the news and seen the weather in Indianapolis or Denver, knowing perfectly well that your own town is too far away for the official weather station to be very useful? Wouldn't it be wonderful to have fine-grained knowledge of the weather in each little area? Have you ever wished the official weather station were right in your own neighborhood? Now it is! Brought to you through the magic of Google Maps and its A(pplications)P(rogramming)I(nterface). (Type your Zip Code in the box.)

I had no idea there were these little micro weather stations all over the place. Amazing.

Extra! Extra!

Drudge has been flagging the latest NY Times scoop on the shocking abuses of power committed by ChimpyMcHalliburtonBushitler for a few hours, so naturally I have been waiting with bated breath for this breaking news.

Well the article is now up here .... hey, wait a minute -- I thought Drudge said it was in the NY Times, not the WaPo.

Must have been a bad keystroke...

Ahh, yes, here's the NY Times scoop. Front page, NY Times, byline Eric Lichtblau!

...Whoops, I must have entered the wrong date!?

Finally, here's what I was looking for all along. Eric Lichtblau's article. 2005! Wait... closer... but it's from July.

How can I find this NY Times scoop that Drudge is headlining?

I know!

Following on to the NSA leak

This may not be as coherent a post as the last one on the NSA case — which is kind of frightening in itself. But there's been a lot of discussion and I want to capture everything in one place again, plus we've accumulated over 400 comments on the previous post, so I want to close it off for performance reasons.

Operational Reasons for Avoiding the FISA Process

On this topic, I'll note that I've got about 20 years of experience in computer security, DoD classified stuff, and in particular, spent a number of years doing operational intelligence collection and analysis systems. So, absent soemone with a current clearance and active knowledge of this operation, I think I'm fairly well informed.

And, of course, anyone who actually has real operational knowledge shouldn't be talking about it anyway. (But more on that later.)

One of the questions that has been raised is "why do they need to act so quickly"? So, let's just discuss that for a minute.

Let's say, for purposes of illustration, that a known or suspected al Qaeda member, Alice, is captured in Pakistan. ("Alice", in this case, might be Khalid Sheikh Mohammed for a concrete example.) At the time of capture, Alice has a laptop computer with a number of phone numbers, email addresses, and possibly some IP addresses either stored in user files, or in some logging data. One of these phone number is a "disposable" cell phone belonging to Ben in the USA. Ben is a legal permanent resident of the US and therefore might otherwise be considered a "US person."

It is the nature of this kind of network that once a node is known to be compromised, all connections to that node are dropped. Ben would put the cell phone in the trash or give it to a rape crisis center or whatever. So the various intelligence agencies --- this lies somewhere in both the domain of CIA and NSA --- know there is a very small time, in the order of hours, to exploit this intelligence before it goes stale. They need to intercept communications. (It might even be as simple as holding the phone up to Alice's mouth when a call comes in.)

Now, assume they feel they need FISA authorization before they can do so. How likely is it that FISA authorization can be obtained in a sufficiently short time? Operationally, you need to be able to act in minutes, not hours, to exploit this intelligence; we have the former DIRNSA's statement that this has led to collecting intelligence they wouldn't otherwise have had.

Aside: As an intelligence guy, by the way, this disclosure does bother me quite a bit. What it's done it put on notice everyone from whom intelligence is currently being collected that we're doing the collection. They probably stopped. As the president said in his press conference today, we've had that experience before, with the bin Laden satphone intercepts. Which, by the way, were blown by Orrin Hatch, so he's picked an example out of his own party. It's also notified al Qaeda et al that in the future, they have a much shorter window before a captured channel could be exploited; they will probably change their procedures as a result. At least I sure as hell would. Personally, I'd think the Attorney General should be thinking about prosecution under 18 USC 793, not 50 USC 1801 et seq. But not prosecuting the Administration.

Legal Arguments

Legally, and now recall I'm not a lawyer, just a logician, but I note that §1801(a) defines who a "foreign power" is, and §1801(b) defines who an agent of a foreign power is. As I understand it, once you're defined to be an "agent of a foreign power" you no longer enjoy all the protections of a "US person." Since 1801(b) specifically includes people engaged in or supporting international terrorism, seems there would be an argument that the Attorney General could authorize surveillance and intercept on that basis using the procedures in §1802 et seq.

Now, this analysis seems to pretty much depend on whether or not a person engaged in international terrorism loses some of the protections of being a "US person". It seems to me from the standpoint of logic that if you're excluded from the class of "US persons" in §1801(a-b), then you lose the protections accorded a "US person" in §1802.

Annoyingly, however, §1802 also says you can only conduct warrantless searches on people defined under §1801(a)(1-3), which leaves out the "terrorism" parts. On the other hand, it may be that al Qaeda is a "foreign power" under §1801(a)(1-3), which would appear to make someone who is an "agent" of al Qaeda fit the definition of someone who is an agent of a foreign power. Then §1801(e) comes in and makes this "foreign intelligence information." So, if I were a lawyer, I think I might very well want to argue that it all adds up to suggest that the "US person" restriction doesn't apply, at least as far s collection goes.

It would also appear that, from that USA v bin Laden decision, the District Court specifically appears to give some strength to that argument, but then excludes evidence collected under such an exception from the trial. This seems, to my untutored legal mind, to make good sense --- and operationally, it's fine with me, because I don't want to try these people, I want to track down their superiors and cells and kill them. We can try the survivors; this is a war.

But, it also appears that this has been a question before --- the events in USA v bin Laden happened in 1997. US Signals intelligence Directive 18 lays out the procedure and seems to very closely match what was described in Bush's statement. (See sections 4 and 5.) This directive dates from 1993. It's been widely reported that there was a program called ECHELON that did collect intelligence throughout the 90's. And I've seen it reported that the Carter administration made a similar executive order in 1979.

So, again, I am not a lawyer --- but it seems like there's some precedent here.

Now, if we look a little more closely at §1802, I'll note that the title of the section is "Electronic surveillance authorization without court order." The whole section lays out the circumstances under which intelligence intercepts can be performed without a court order.

The fact that this section exists makes it clear the law does contemplate the possibility of doing intercepts without a court order (warrant). What's more, the code lays out two different procedures under which it can be done: first, under §1805, you can do it and apply later (within 72 hours, see §1805(f)); or, second, according to §1802, if you're not concerned with "US persons" under §1801 then you can collect without a warrant, and all you must do is file with the FISA court, under seal, a notice that you've done so, plus inform the Congress.

We know that the Attorney General certified this as needed; we know the Congress has been briefed; the actual certification would be classified, but I just don't see any reason to think the certification hasn't been filed.

Practically, it appears we've got a situation in which (a) the Administration received competent legal advice that it was permissible; (b) they followed the procedures laid out in the statute and USSID 18; and (c) that it is something that has been done in previous administrations, and if we have to be partisan about it, by administrations of both parties.

Given all of these things, I suspect that there's at the very least a pretty strong "good faith" issue here, ie, that the Administration could in all good faith believe it to have been legal.

Other People's Arguments

James Robbins more or less repeats my arguments about 1801, 1802, and so on.

I argued below that I thought the President, in his radio address, was more or less following that same argument. I still think so, but today in his press conference, he laid out an argument based on presidental powers under the Constitution; so did the AG. Hugh Hewitt lays that out. I usually find Hewitt a little too polemical, but he is an attorney, and his argument seems to match the one the AG used.

Byron York makes some pragmatic arguments.

Orin Kerr did a long post on it at Volokh; he addresses the §1801 issue, and argues:

So as I read the statutes, Congress was trying to give an exception for monitoring foreign governments (a1, a2, a3) but not terrorist groups (a4, a5, a6), so long as no citizens or lawful permanent resident aliens were being monitored. There are interesting questions of how that might have applied to Al Qaeda in Afghanistan, but I don't think we need to reach them. It's my understanding that the program monitored both citizens and non-citizens, so I don't see how the exception is applicable.

But then, when I look at this "USA v bin Laden" case, the District Court says

"this Court adopts the foreign intelligence exception to the warrent requirement for searches targeting foreign powers (or their agents.)"

It goes on to say:

The Court is also persuaded that al Qaeda was properly considered a foreign power. In reaching this conclusion, the Court relies on the definitions of "foreign power" and "agent of a foreign power" which were incorporated by Congress in FISA See 50 USC 1801(a)-(b).

They then go on to say that the collection of intercepts under the "USA v bin Laden" case was unlawful, but specifically because the Government didn't get the authorization of the President or AG. It follows logically that if they had the President's authorization, the possibility exists at least that it would have been lawful. (I think if I were playing an advocate I'd argue that more strongly, but I don't think it follows by syllogism.)

In any case, it seems to me that the District Court doesn't agree with Prof. Kerr. One of the attornies that hang around here might weigh in on this.

---

Updates:

• A former Air Force intelligence officer, Emily Francona, says:

  Whether the President acted under proper executive authority will undoubtedly be determined during hearings of the Senate Judiciary Committee. But he did follow requirements for legal review of his orders by consulting with the NSA Legal Counsel and the U.S. Attorney General.
  
  He also followed congressional oversight requirements by notifying the appropriate congressional committees in a timely manner. And it is customary for more sensitive activities to be briefed only to a limited number of senior oversight committee members to avoid leaks of classified national security information. Our current system of checks & balances does not require congressional oversight committees to approve intelligence activities in advance, only that they be notified of significant activities in a timely manner.
  
  Perhaps the most improtant aspect of this debate is whether we, the people, are comfortable with executive powers being invoked in certain circumstances to protect the nation: I would argue that under certain national security related circumstances it is necessary to trust the President of the U.S. to do the right thing - we elected him to conduct the people's business to the best of his ability.



• Interestingly enough, 50 USC 1811 broadens the President's powers after a declaration of war. But we're not at war, you say?
  
  Well, Joe Biden disagrees:
  

  M: (Inaudible) Talbot(?). Senator, thank you for this broad gauged approach to the problems we face. My question is this, do you foresee the need or the expectation of a Congressional declaration of war, which the Constitution calls for, and if so, against whom? (Scattered Laughter)
  
  JB: The answer is yes, and we did it. I happen to be a professor of Constitutional law. I'm the guy that drafted the Use of Force proposal that we passed. It was in conflict between the President and the House. I was the guy who finally drafted what we did pass. Under the Constitution, there is simply no distinction ... Louis Fisher(?) and others can tell you, there is no distinction between a formal declaration of war, and an authorization of use of force. There is none for Constitutional purposes. None whatsoever. And we defined in that Use of Force Act that we passed, what ... against whom we were moving, and what authority was granted to the President.



• Interesting quote:

  "The Department of Justice believes, and the case law supports, that the president has inherent authority to conduct warrantless physical searches for foreign intelligence purposes," Deputy Attorney General Jamie Gorelick testified before the Senate Intelligence Committee on July 14, 1994, "and that the President may, as has been done, delegate this authority to the Attorney General."
  
  "It is important to understand," Gorelick continued, "that the rules and methodology for criminal searches are inconsistent with the collection of foreign intelligence and would unduly frustrate the president in carrying out his foreign intelligence responsibilities."

  (See Byron York today.)


• Via The American Thinker today, I learn of this executive order authorizing the Attorney General to conduct warrantless searches for foreign intelligence information under 50 USC 1801 et seq. Who was the executive? Jimmy Carter.

Some pointers

Jim Miller On Politics has a pair of items that are of some interest to Yargbians.

First is a post on the Barret Report which contains several links to various articles about it. New to Yargbians, perhaps, are the Townhall.com articles,
The public needs to see the Barrett report (by Emmett Tyrell) and
Publish the Barrett report now (by Tony Snow) and a CNN.com op-ed Novak: Protecting the IRS.

Second is a link to a UCLA study, Media Bias Is Real, Finds UCLA Political Scientist. But you knew that.

"Pakistanis now hold a more favorable opinion of the U.S. than at any time since 9/11"

Long a stronghold for Islamic extremists and the world's second-most populous Muslim nation, Pakistanis now hold a more favorable opinion of the U.S. than at any time since 9/11, while support for al Qaeda in its home base has dropped to its lowest level since then.

"Our friends the Pakistanis" — Opinion Journal

Wealth, Capital, and Nations

Some 230 years after Adam Smith published An Inquiry Into the Nature and Causes of the Wealth of Nations, the World Bank has published Where is the Wealth of Nations? Measuring Capital for the 21st Century (via Reason Online via Instapundit).

The World Bank's report is 200+ pages which, from an initial scan, seems quite interesting. One of the interesting items is the attempt define "capital". Reason Online summarizes:

The World Bank study begins by defining natural capital as the sum of nonrenewable resources (including oil, natural gas, coal, and mineral resources), cropland, pastureland, forested areas, and protected areas. Produced capital is what many of us think of when we think of capital. It is the sum of machinery, equipment, and structures (including infrastructure) and urban land. The Bank then identifies intangible capital as the difference between total wealth and all produced and natural capital. Intangible capital encompasses raw labor; human capital, which includes the sum of the knowledge, skills, and know-how possessed by population; as well as the level of trust in a society and the quality of its formal and informal social institutions.

I'm no economist and I've only scanned the introductory sections of the report but Reason's summary seems an accurate reflection.

The United States ranks fourth among the 120 countries for which the report makes "estimates of the contribution of natural, produced, and intangible capital to the aggregate wealth."

The top ten nations, ranked by capital per capita (data are apparently as of 2000), are:

Nation/Population (millions)/Wealth

Switzerland/7.2/$648,241

Denmark/5.3/$575,138

Sweden/8.9/$513,424

United States/282.2/$512,612
Germany/82.2/$496,447

Japan/126.9/$493,241

Austria/8.0/$493,080

Norway/4.5/$473,708

France/58.9/$468,024

Belgium-Luxembourg/10.7/$451,714

Other nations over the $400,000 mark are the Netherlands (15.9, $421,389), Finland (5.2, $419,346), and the UK (58.9, $408, 753). The "$300K" nations are: Australia, Canada, Ireland, and Italy. "$200K" nations are Greece, Israel, New Zealand, Portugal, Singapore, and Spain. Once we get past the "Big 23" or so the wealth numbers drop rather drastically. (Notably missing from the table in Appendix 2 are some OPEC type nations such as Suadia Arabia, Kuwait, the UEA, and Oman.)

Only half of the top ten "wealthy" nations exceed 10 millions in population. With the exception of Japan and the US, no nations with 100+ millions population break the $100,000 per capita wealth number. Brazil comes closest (170.1, $86,922) with Mexico next among very large (population-wise) nations (98, $61,872). If I clickety-clacked my calculator correctly the total population of the top-ten, minus the US, is 312.6 millions. The total population of the top-ten is 594.8 millions.

The US and Indonesia are the only nations with more than 200 million population which break $10,000/capita (Indonesia; 206.2, $13,869).

I have no particular point here other than that, in terms of population, the US is the world's third largest nation. No other nation on earth brings so much wealth to so many people.

Progress more meaningful than democracy in the Middle East

Today is the launch day for the Falcon 1.

http://www.spacex.com/

This guy took his dot com fortune and put about $100M into this. Now anyone can put up a satellite for ~$6M -- an order of magnitude cheaper than ever before. What a cool dude. He did exactly what I would do with that kind of money. When I sell my company I am either going to work for one of the new generation of space businesses or start my own.

Maybe we can finally slip the surly bonds and evolve to our rightful place in the universe.

I'm tired of it

I'm tired of arguing with Lefties. Their Bush hatred and defeatism does not, never has, and never will represent the majority in this country.

So why even bother. There is no need. I have better things to do with my life.

Think of the ordinary Americans going about their lives who don't pay much attention to anything. They just assume our government is protecting us and is keeping an eye on terrorists in this country. Common Sense.

And, look, that's exactly what Bush is doing! Great!

But, wait, some people think Bush should be 'in trouble' for doing so? WTF? Are they nuts?

Well, yes. And ordinary Americans agree they're nuts and that this is all politics.

You see I don't have to argue with the crazies and the civil libertarian purists at all because the majority of the American people just roll their eyes and give a dismissive shake of their hand in response to the silliness anyway.

They don't need me to do anything.

And how stupid are we if we think we can rationally argue with BDS sufferers as delusional as some of these people are? Here's a couple quotes from comments I found elsewhere today about the NSA thang. Many posted anonymously. I'm just cuttin' and pastin':

It's been going on for years. Too bad Dubya's gotten so out-of-control he thinks he can make his own rules up. Remember guys; Absolute Power currupts absolutely and Dubya is consumed by it. His impeachment should be a big hoot if it happens. We'll see who sings like a Canary and who screams like a banshee when all is said and done.

and

I mean, the guy basically came on the airwaves and announced, "Yes, I broke the law. Yes, I violated the Constitution. I will break the law again. And what the hell, exactly, are YOU going to do about it?"

and

Never forget that the Bush administration thought America's security would be at risk if Kerry were elected. They wanted this warrantless eavesdropping authority because no judge would ever issue a warrant for the people they wanted to monitor, like George Soros, Michael Moore, Jimmy Carter, John McCain, Move-On, and the Democratic National Committee.

Yes, these people have a right to their opinion and a right to voice it. That doesn't mean they have a right to our undivided attention. They don't have a right to consume our mental energies or our time.

When you're sitting on a park bench and someone sits next to you who starts mumbling crazy things do you engage them in conversation? Or do you move to another bench? Or do you engage in a conversation with a friend and completely ignore them?

There are some members of the opposition who are worth engaging, I'm not saying all are not. But it's the crazy ones who come out in droves when they feel an issue has come up where they think they can bash Bush and his supporters. Then they leave the cellars of DU or KOS and wander the pavements of the Blogosphere looking for Cafe's on the Right side of the street where they down a bottle of cheap wine and start ranting.

The issue goes away, and so do they.

Except if they are not ignored, then they may stick around until Last Call.

I find it interesting over at JustOneMinute. There are a lot of regulars from both sides who post over there. But there are some 'crazies' who are mostly silent. Unless a new article from the Times comes out, or one of their favorite bloggers posts something like 'Boy, Rove is in trouble now!' then they come swarming in and dump little pieces of you-know-what all over the comments.

Their little worldviews have gotten a boost, or so they think, and they suddenly get some courage. They can't argue, they can only assert, and if they're ignored they go away again.

Until the next Times article gives them another fix and here they are again.

I'm going to try my best to ignore them all. And if that's somehow politically incorrect, then find me a law that says I can't move to a different park bench.

I'm just sick and tired of the Bush hate.

Karl Zinsmeister --- Dawn over Baghdad

What I basically saw was that the massive middle in Iraq - in other words, the Shiite majority - is much more moderate than anyone was giving them credit for. Many times when there a dreadful impasse, a sticking point or a scandal that would break, there would be predictions that the Shiites were going to desert us or go on a rampage and that we were going to have a true popular revolt on our hands. Every time this was predicted it failed to happen.

The most recent example is Muqtada Sadr. Sadr is a splinter figure with real followers - several thousand of them - but he is by no means a popular figure in Iraq. He’s kind of an Al Sharpton-type figure in Iraq, in the sense that he is real and does need to be listened to and taken seriously. But is he anybody who could become a leader of all of Iraq or all of the US? Of course not.

I don’t mean to make a comparison that is too direct, because obviously Sadr is a violent figure and Sharpton is not. But I’m just trying to give an analogy that Sadr is not someone who could ever become a real broadly accepted leader in Iraq, and a lot of the press reports gave the impression that he could and that he was really leading the masses against us. That’s not the case.

(How many times have we heard that?)

The actual story is very much more different than that. Two things have gone into those continuing blackouts. The first is that when Saddam was in power, he blatantly hogged all the electricity for his capital city. 57% of the electricity generated in Iraq used to go to Baghdad. When the Coalition came in they said, "that’s not fair. All Iraqis deserve to have access to power, they deserve to share the use that’s available in the country equally." So they redistributed it on a fair, per-capita basis.

As a result, Baghdad only gets 28% of the electricity right now.That means a lot of previously privileged neighborhoods in Baghdad are now in a less privileged position. You could present that as bad news, and be in a factual sense accurate, but you’re ignoring the fact that millions of other Iraqis in other parts of Iraq are in a much better position than they’ve ever been. So it’s not like the media story is wrong, it’s just incomplete and misleading in its totality. [That one sounds familiar too, somehow....--ed.]

The other aspect of the electricity story that’s interesting is the generation has actually has been increased and now exceeds what it was when the war started. So you say, "well why isn’t there enough?" The reason there isn’t enough electricity is because there’s a consumer boom going on in Iraq! There is an explosion of cell phones and washing machines and televisions. Something like a third of the country now has satellite TV, which is higher than in America.

There are all kinds of electronics being imported and bought by Iraqis who are beginning to have some kind of economic success. That is a very good thing. However, one of its side effects is that you have a sharply growing demand for electricity, which means that even with supply up, there is not enough to meet a growing demand.

Again, I will grant you there is a downside to this consumer explosion, but is it really sensible and accurate to talk about the downside without mentioning the very positive elements that are involved in creating that downside? I don’t think so. I blame the media for that, I don’t blame the Bush administration. That’s just crappy reporting. I don’t think there’s anything to be said about it other than that it’s something the media ought to be ashamed of.

Read it all. Now. We'll wait.

RealClear Politics - Commentary

"We must get on good terms with the Americans... we have no alternative."

"We now believe we must get on good terms with the Americans," Hemaiym said. "As Arab Sunnis, we believe that within this hot area of Iraq, facing challenges from neighboring nations who want to swallow us, especially the Iranians, we feel we have no alternative."

PJM News - Sunnis say they want to work with US (6710814/UPI)

A Good Point

If, at the end of September 2001 you had said that both Iraq and Afghanistan would have elected new democratic national governments by the end of 2005, I would have said you were a bit too optimistic.

Murdoc Online

Bush lied, people dyed.

Steyn: Iraq vote leaves Dems looking like the losers

Well, that old Iraqi quagmire just keeps getting worse and worse, if only for the Democratic Party. What was the straw they were clutching at back in January? Oh, yeah, sure, gazillions of Kurds and Shiites might have gone to the polls, but where were the Sunni? As some of us said at the time, the Sunni'll come out tomorrow. And so they did. On Thursday, they voted in record numbers, leaving Howard Dean and Nancy Pelosi and the rest of the Democrats frantically scrambling for another disaffected Iraqi minority group they could use as proof that the whole crazy neocon war-for-oil scam was a bust.

(Extra points for "the Sunni'll come out tomorrow.")

The Democratic Party have contrived to get themselves into a situation where bad news from Iraq is good for them and good news from Iraq is bad for them. And as there's a lot more good news than bad these days, that puts them, politically, in a tough spot -- even with a fawning media that, faced with Kerry and Murtha talking what in any objective sense is drivel, decline to call for the men with white coats but instead nod solemnly and wonder whether Bush is living "in a bubble." &hellips;

It's not just that Iraq is going better than expected, but that it's a huge success that's being very deftly managed: The timeframe imposed on the democratic process turns out to have worked very well -- the transfer of sovereignty, the vote on a constitutional assembly, the ratification of the constitution, the vote for a legislature -- and, with the benefit of hindsight, it now looks like an ingeniously constructed way to bring the various parties on board in the right order: first the Kurds, then the Shia, now the Sunni. That doesn't leave many folks over on the other side except Zarqawi and Dean. What do the two have in common? They're both foreigners, neither of whom have the slightest interest in the Iraqi people.…

Bush lied, people dyed. Their fingers. That's what this is about: Millions of Kurds, Shia and Sunnis beaming as they emerge from polling stations and hold up their purple fingers after the freest, fairest election ever held in the Arab world. "Liberal" in the American sense is a dirty word because it's come to stand for a shriveled parochial obsolescent irrelevance, of which ''Good Night, and Good Luck,'' Clooney's dreary little retread of the McCarthy years, is merely the latest example. (Clooney says he wants more journalists to "speak truth to power," which is why I'm insulting his movie.)

Believe it or not, I haven't excerpted all the good parts.

One Way Trip to the Torture Chamber

Believe it or not I heard those words on the lead up to the Colts football game.

The announcer said in a disarmingly chipper voice to tune into 60 Minutes and hear about the secret CIA plane...was it a one way trip to the torture chamber?

My feller laughed. It was that silly.

And it struck me that we are getting to the place where media is absurd, surreal, banal, take your pick.

60 Minutes will do a fake but accurate story on a secret mission about torture.

Of course, it is not secret, there is no torture chamber and 60 Minutes is more about entertainment than news.

When I was younger I never missed 60 Minutes or Face the Nation. However, speaking of torture, I would consider sitting through either one of them to be just that today. And so I shake my head with disgust, my man friend laughs at the sheer stupidity of the tune in to torture lead in and it dawns on me:

Who watches this stuff? Most people I know are more concerned with detention of terrorists turning into R&R for terrorists than they are with a mass murderer suffering sleep deprivation..so who are they doing these socalled news stories for?

I have a step grandson who is going to be 4 year in February. This is the first Christmas he has really got into. His safety is my concern.

I have to admit I am more concerned about the fact that media uses classified information to sell books and advertising than I am with the delicate sensibilities of a terrorist who would gladly put a bomb in one of the toys I bought my little man for Christmas.

I bet that is true for a lot of other people as well.

Good News from Afghanistan

KABUL - Afghanistan’s first parliament after nearly three decades of brutal occupation, war and harsh Taleban rule is due to convene on Monday in the final step of a transition to democracy launched four years ago.


US Vice President Dick Cheney will head the guest list at what officials have promised will be a “glorious” opening ceremony in the newly renovated parliament building that was ruined in the 1992-1996 civil war.

Read the whole thing.


Although the New York Times and friends want badly to maintain the fiction that everything is going to hell under the Bush administration, there are still at lot of good things happening. We should not allow ourselves to be sidetracked by the latest phoney scandal.