Category Archives: National Journal

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Opening Argument – Holding Telecoms Hostage: A Risky Game

by Stuart Taylor, Jr.

National Journal

Suppose that the next big terrorist attack on our country comes two weeks after a new Democratic president has taken office. Simultaneous suicide bombings devastate 20 schools and shopping malls around the country, killing 1,500 people. The intelligence agencies believe that at least 20 more trained jihadists, including American citizens, are in the United States planning follow-up attacks.

The president is told that the best hope of stopping a second wave of attacks is to immediately wiretap as many calls and e-mails as possible from and to every private citizen who has been to Pakistan or Afghanistan since 1999. These hundreds of domestic wiretaps, with neither warrants nor probable cause to suspect any individual of terrorist ties, might well violate the Foreign Intelligence Surveillance Act.

The president nonetheless asks the major telephone companies to place the taps for 30 days while the administration seeks congressional approval. He or she also assures the telecoms in writing that the new attorney general has advised that the Constitution empowers the president to temporarily override FISA during such an emergency — a controversial theory never tested in court.

Most Americans would want the telecoms to say yes without hesitation. But the telecoms would have reason to say no — or delay for a few dangerous days to consult their lawyers — if liberals and libertarians get their way in a battle currently raging in Congress.

The issue is whether to immunize these same telecoms retroactively, as President Bush and a bipartisan majority of the Senate Select Committee on Intelligence (including Chairman Jay Rockefeller IV) urge, from liability for having said yes to Bush’s warrantless surveillance program during the unprecedented national crisis precipitated by the 9/11 attacks.

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Opening Argument – Cheering Obama, With Doubts

by Stuart Taylor, Jr

National Journal

Hillary Rodham Clinton’s New Hampshire comeback was impressive. But I remain convinced that if Barack Obama can show he is tough enough and pragmatic enough to win the presidency and serve with distinction, it would be the best thing that could happen to America and the world.

The "if," of course, is a big one. New Hampshire showed that many Democrats see Clinton as a safer choice. This is understandable. Obama is relatively untested, making it especially hard to predict what he would do and how he would fare in the world’s most challenging job. The big questions, in my view, are these:

Does this 46-year-old first-term senator have the inner steel to vanquish the Clinton and Republican attack machines; to drive hard bargains with foreign leaders; and to hit foreign enemies and nuke-seeking jihadists with the right mix of diplomacy, threats, and force?

Would this passionate critic of the Iraq war pull out so fast as to plunge the place into bloody chaos that might be avoided by the policy that the originally pro-war Clinton or the still-hawkish John McCain would follow?

Would this strong liberal with a voting record somewhat to the left of Clinton’s be pragmatic enough for centrists like me? Would he resist pressure from his party’s ideologues and interest groups to push protectionism, isolationism, unduly statist remedies for our broken educational and health care systems, more laws enriching multimillionaire trial lawyers, and judicial nominees bent on governing from the bench?

Subject to the answers, here’s why Obama has more potential than any other candidate to be a transformative president.

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Opening Argument – Don’t Do a 5-4 This Time

by Stuart Taylor, Jr.

National Journal

Sometimes it is more important to avoid looking like a bunch of political partisans than it is to reach the most legally sound result.

That was true in the case of Bush v. Gore. The U.S. Supreme Court decision ending the 2000 election litigation and handing the presidency to George W. Bush was legally defensible. But the 5-4 conservative-liberal split — plus a sloppily written majority opinion — left many Americans believing that the justices were grinding partisan axes. It would have been wiser to punt the case to Congress, or to give the Florida Supreme Court one more shot at a recount while rebuking its apparent effort to rig the rules for Al Gore. (See NJ, 1/6/01, p. 8.)

Now comes what The Washington Post calls the Court’s "most politically divisive case since Bush v. Gore." On January 9, the justices will hear arguments on whether Indiana’s 2005 law requiring voters to show government-issued photo identifications at the polls is an unconstitutional burden on voting rights designed to hurt Democrats.

Republicans defend the measure — the strictest of the more than 20 state laws tightening voter-ID requirements since 2000 — as a safeguard against voter fraud. Most Democratic voters also support strict voter-ID laws. But almost all Democratic politicians and legal experts want such laws struck down.

Lower-court judges have also divided along glaringly partisan lines. When a panel of the U.S. Court of Appeals for the 7th Circuit upheld the Indiana law, two Republican appointees out-voted Clinton-appointed Judge Terence Evans. Then the full 7th Circuit’s two other Democrats (plus one Republican) joined Evans in voting to rehear the panel’s decision while the five other Republicans backed the panel majority. Similarly, in 2005, the Michigan Supreme Court’s five Republicans upheld a new voter-ID law over dissents by the two Democrats.

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Opening Argument – Interrogation: Anti-Bush Overreaction

by Stuart Taylor, Jr.

National Journal

Imagine that U.S. forces capture Osama bin Laden or a high-level lieutenant in Pakistan next month and hand him over to the CIA, amid intelligence reports that a massive new Qaeda attack on America may be imminent.

Should it be illegal for CIA interrogators to try to scare the man into talking by yelling at him? By threatening to slap him? By pretending to be from Egypt’s brutal intelligence service? What about turning up the air conditioner to make him uncomfortably cold? Or denying him hot food until he talks, while giving him all the cold food he can eat?

These methods would all apparently be illegal under a rider that the House-Senate conference committee added to the annual intelligence authorization bill. It would bar the CIA from using any interrogation practice not authorized in the Army field manual’s rules for military interrogators. This would mean prohibiting almost all forms of coercive interrogation, including many potentially effective techniques that come nowhere near torture and are now clearly legal.

We’ve come a long way since September 2002, when Nancy Pelosi, then a House Intelligence Committee member and now the speaker, listened without a peep of protest while being briefed about the CIA’s use of waterboarding and other harsh interrogation methods on Qaeda leaders.

Now almost all Democrats (and some Republicans) denounce waterboarding as illegal torture. They are probably right — although you can bet that after the next 9/11 they will backtrack faster than you can say "unprincipled."

The mostly Democratic sponsors of the proposed legislation unpersuasively suggest that it is necessary to prevent torture. They also hide behind the fantasy that coercion never leads to good information. But there is substantial (if anecdotal) evidence that in some cases, at least, coercive interrogation methods far short of torture may well extract information that could save lives.

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Opening Argument – Honesty: Hillary’s Glass House

by Stuart Taylor, Jr.

National Journal

Hillary Rodham Clinton is supposed to be smart. But how smart is it for a woman with such a bad reputation for truthfulness and veracity to put those character traits at the center of the campaign?

The irony of her potshots at Barack Obama’s character has hardly gone unnoticed. Nor has the idiocy of her December 2 press release breathlessly revealing that "in kindergarten, Senator Obama wrote an essay titled ‘I Want to Become President.’ " (Emphasis added.) This, the Clinton release explained, gives the lie to Obama’s claim that he is "not running to fulfill some long-held plans" to become president. Hillary was not, it appears, joking.

At a campaign stop the same day, Clinton added: "I have been, for months, on the receiving end of rather consistent attacks. Well, now the fun part starts." Indeed.

I will not excavate Clinton’s own kindergarten confessions. Nor will I compare the honesty quotient of her campaign-trail spin with the dreadful drivel dutifully uttered by Obama and other candidates to pander to their fevered primary electorates.

Instead, let’s take a trip down memory lane — from the tawdriness of the 1992 presidential campaign through the mendacity of the ensuing years — to revisit a sampling of why so many of us came to think that Hillary’s first instinct when in an embarrassing spot is to lie.

Gennifer and Monica. Former lounge singer Gennifer Flowers surfaced in early 1992 with claims — corroborated by tapes of phone calls — that she had had a long affair with then-Arkansas Gov. Bill Clinton, who had arranged a state job for her. Bill Clinton told the media, falsely, that the woman’s "story is untrue."

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Opening Argument – Ending Bush’s War on Due Process

by Stuart Taylor, Jr.

National Journal

Lakhdar Boumediene was abducted almost six years ago from his home in Bosnia and flown to Guantanamo. He may be a bad guy. Or he may not be. We have no idea. The reason is President Bush’s continuing war on due process, which has blighted the lives of some unknown number of innocent men while doing vast damage to America’s standing in the world.

Boumediene’s petition for release, and those of 62 other Guantanamo detainees, will come before the Supreme Court on December 5. Based on the Court’s previous war-on-terrorism decisions and its unusual alacrity in agreeing on June 29 to hear these detainees’ appeals, Bush seems likely to get his fourth drubbing from the justices since 2004.

Bush deserves to lose. But even the wisest Court decision could barely begin to fix the mess that Bush has made of detention policy. And a judicial over-reaction — along the lines urged by left-leaning human-rights groups — could tie the hands of Bush’s successors. No would-be successor has suggested a sensible alternative policy. And most in Congress punt to the courts (or to Bush) the little-discussed, quintessentially legislative question of what our policy on detaining suspected foreign combatants should be.

So here’s my hope for a three-step quick fix:

1. The justices should signal clearly during the December 5 argument that the due-process-be-damned Bush detention policy is doomed and that Bush’s bloated vision of his own powers will take a big hit if he simply awaits the decision, likely to come in June.

2. These signals will be the cue for Attorney General Michael Mukasey to persuade the president to head off a potentially disruptive defeat by going to Congress to craft a fair, fast, open administrative-detention process for sorting out dangerous detainees from nondangerous ones.

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Opening Argument – The Death Penalty: Slowly Fading?

by Stuart Taylor, Jr.

National Journal

When the Supreme Court voided all federal death-penalty laws in June 1972 — despite the Constitution’s clear intent to allow capital punishment — three justices explained that these laws had become "cruel and unusual punishment" because they violated "the evolving standards of decency that mark the progress of a maturing society."

But then, public opinion moved sharply in an unexpected direction. Support for the death penalty soared in the months after the 5-4 decision in Furman v. Georgia. It was 50 percent to 42 percent (an 8-point spread) in March 1972 and 57 percent to 32 percent (a 25-point spread) that November. It kept soaring for two decades, in close sync with crime rates, to a high of 78 percent to 17 percent in the early 1990s. (All numbers are from Gallup polls.)

"Furman, like other landmark cases, had the effect of calling its opponents to action," Stuart Banner wrote in 2002 in The Death Penalty: An American History. One result was the passage of new state death-penalty laws. The justices upheld some of them in 1976 and thereafter because they provided for special hearings to weigh mitigating against aggravating evidence and thus made the process of deciding who dies less capricious (at least in theory). And the number of death sentences pronounced each year by juries rose steadily, to a post-Furman high of 317 in 1996.

But although polls show that about 65 percent of the public still supports capital punishment in the abstract, the number of juries opting for death has plunged, from 317 in 1996 to 128 in 2005, the latest year for which complete data are available. Similarly, the number of executions has dropped from a modern high of 98 in 1999 to 53 in 2006.

At the same time, experts agree, many prosecutors have become more reluctant to seek the death sentence.

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Opening Argument – Academia’s Pervasive PC Rot

by Stuart Taylor, Jr.

National Journal

"A RACIST: A racist is one who is both privileged and socialized on the basis of race by a white supremacist (racist) system. ‘The term applies to all white people (i.e., people of European descent) living in the United States, regardless of class, gender, religion, culture, or sexuality. By this definition, people of color cannot be racists.’ " [emphasis added]

Such stuff has long been a staple of the totalitarian "diversity" obsessives who pollute — and often dominate — political discourse at almost all of our universities, from coast to coast. The University of Delaware recently got a step ahead of its peers by including the all-whites-are-racists dogma in training those who administered a systematic thought-reform program for incoming (and other) students.

The quoted language appears in an August 2007 "diversity facilitation training" program for resident assistants. The RAs were, in turn, assigned to use far-left propaganda such as this in what university documents called the mandatory "treatment" of freshmen and the rest of the 7,000 students in university residence halls.

University President Patrick Harker suspended this particular program two days after an October 30 expose spurred media reports and horrified parents and other citizens. But history suggests that it may well be back in some less obvious form before long. And it provides the latest glimpse into the political correctness rot that infects our universities and a great many secondary schools.

This and dozens of other cases suggest to me that the cancerous spread of ideologically eccentric, intellectually shoddy, phony-diversity-obsessed fanaticism among university faculties and administrators is far, far worse and more inexorable than most alumni, parents, and trustees suspect.

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Opening Argument – Mukasey and the Slippery Pols

by Stuart Taylor, Jr.

National Journal

The surge of Democratic opposition to President Bush’s nomination of former Judge Michael Mukasey to be attorney general says a lot about certain Democrats, especially after the initial bipartisan applause for a superbly qualified man who has clearly repudiated Bush’s previous claims of near-dictatorial powers.

It is especially telling that the main congressional objection to Mukasey has been his unwillingness to declare illegal an interrogation technique that Congress itself has assiduously and repeatedly declined to declare illegal.

The technique, called "waterboarding," involves simulated drowning. Congress could seek to explicitly ban it, along with other highly coercive techniques. It has not done so, because it does not want to take the blame for any future terrorist attacks that might have been prevented by highly coercive interrogation.

The attacks on Mukasey are an exquisite example of Congress’s penchant for avoiding accountability by leaving the law unclear and then trashing the executive for whichever interpretation it adopts whenever something goes wrong.

Some factual context:

• Our government has not used waterboarding since 2005, according to news reports, and seems unlikely to use it again soon, if ever.

• Before suspending the practice in 2005, the CIA reportedly waterboarded three (and perhaps only three) people, all of them Qaeda terrorists deemed highly likely to have potentially lifesaving information.

• The Bush Justice Department has repeatedly found at least some forms of waterboarding to be legal under the narrow but vague 1994 and 2005 laws defining, respectively, the crime of "torture," and "cruel, inhuman, or degrading" treatment.

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Opening Argument – When Punitive Damages Make No Sense

by Stuart Taylor, Jr.

National Journal

Two controversies shed light on some of the idiocies of our lawsuit culture, and on the anti-corporate populist delusions and political influence-peddling that help explain why the law is so often an ass. The first involves a $2.5 billion award of punitive damages against ExxonMobil, $484 million of which would go to the plaintiffs’ attorneys. The second involves countless billions of dollars in "privacy" claims against telecommunications companies for helping the government seek to prevent terrorist attacks through arguably illegal wiretaps.

The Supreme Court is poised to decide whether to hear an ExxonMobil subsidiary’s petition for relief from the $2.5 billion punitive award that a federal Appeals Court approved in one of the cases arising out of the catastrophic oil spill after the tanker Exxon Valdez hit a reef off the coast of Alaska 18 years ago.

That would be $2.5 billion on top of the $3.4 billion that the company has already paid to clean up the environmental damage, to compensate all injured fishermen and other parties, and to pay fines and settle claims with Alaska and the U.S. government.

The legal explanation for why Exxon should not pay a dime in punitive damages, let alone $2.5 billion, is complicated. But the fundamental folly underlying this and many other huge awards is pretty simple, in my opinion:

This punitive award would not punish any human being who had anything to do with the oil spill. (The ship’s captain has already been assessed $5,000 in punitive damages.) It would enrich only lawyers and Alaskans who have already been fully compensated for losses caused by the oil spill. And it would deter no future corporate misconduct, prevent no accidents, and serve no public interest of any kind, in any way.

This sort of award is, in other words, pure waste. And ultimately such awards come out of your pockets and mine.