Will Someone Please Tell Me What Party Our President Is In?

I mean really. I understand the whole hatred of lawyers. You couldn't get into law school, only made it through undergrad because his father was who he was. Managed to avoid not being cashiered from the Air National Guard... because of who his father is. I get all that.

But can someone please explain this to me.

Now, I have a left lean when it comes to some things, so perhaps I am missing something. But as I understand it, Republicans are supposed to champion small government. That way, the freedom of the people are maximized. To that end, governmental bureaucracy is most bad and should only exist when it cannot be avoided.

Let me know when I am wrong about the basics. I really want to understand this.

So how does that philosophy, which I am told is at the heart of the Republican party, produce President Bush's latest policy: ending the protections found in the Endangered Species Act. Agree with the act, disagree with the act, thats not the issue. The issue is the way in which the Bush Administration seeks to achieve their end: by strengthening the bureaucracy. Apparently the plan is to use a loophole in the act to have the various agencies pass regulations.

The regulations will prevent agencies from considering whether projects are contributing to greenhouse gases and the effect of global warming on species. Sounds a little on the innocuous side right? Global warming is still being debated and maybe it is and maybe it is not junk science. However, under the current regulations, the various departments go run their assessments by Fish and Wildlife Service or the National Marine Fisheries Service.

Call me crazy, but based on their names ("Fish and Wildlife Service" and "National Marine Fisheries Service"), they seem to be two agencies which would seem to know something about the environment.

Under the new regulations, the various departments will no longer need to do this. because they Instead, apparently the various departments and agencies have developed a certain amount of expertise in evaluating the environmental impact of projects on the environment. While I trust the Department of Transportation to tell me if a planned project will be safe transport wise, how many of the people there spend their time actually investigating the effect of their projects on the environment? Or say the Department of Energy?

Then again, I guess its easier to get projects approved when science is taken out of the assessment all together.

But getting back to my point. The Bush Administration is not doing this through a law. Instead, they are doing this through a regulation. A regulation made by a faceless bureaucrat. A bureaucrat who will not face the voters. A bureaucrat who, in many cases, received his position because he is a party loyalist, not because he is qualified for the position.

If the Democrats had anyone in congress worth their salt, this would not be such a problem. It would mean a vote to change the law and then override the president's veto and science would be kept in the equation when making decisions regarding the environment. However, since Democrats in congress are all talk and no hat, I doubt that they will do anything of the sort.

As I was asking earlier, is this the action of a man committed to having government closer to the people, or closer to the Oval Office?

Shocker (Ho Hum)

So what would you do? You are the administrator of the EPA. There is just over a year left in a lame duck administration. You have the chance to grant a waiver which will provide the impetus to two industries to change how they do business to improve the environment. It will help with the particulates in the air which are linked to the increase in respiratory diseases in children and the population in general. However, you have pressure from the White House to deny it, most likely because a deal has been cut with the automobile and oil industries. Failure to deny it will probably be the end of your tenure (although it will be termed as a resignation for "family reasons"). Which choice would you make?

Well, we all know what the current head of the EPA chose to do. Not only is Stephen Johnson, Director of the EPA, against protecting the environment but apparently he is unwilling to put his job over his patronage. Now, I understand that he is appointed and serves at the pleasure of the President. Yes, he only got the job by being someone which either the President new or had him recommended for his loyalty to the President's part of the party.

However, its disturbing to find out that, as was reported today, that Johnson was in favor of granting in full California's request for a waiver under the Clean Air Act. However, he reversed himself and denied the request. Why did this happen? Apparently under document which were finally released by the EPA, the White House, "played a decisive role in the rejection of the California motor vehicle standards[.]"

Nice to see that keeping one's job got in the way of doing one's job.

And They Might Even Get Away With It...

As you may recall, I wrote a little about the EPA's inexplicable denial of California's request for a waiver under the Clean Air Act. This waiver would have allowed California to increase its air quality requirements. California has, as expected, filed suit against the EPA seeking to overturn the agency's decision.

In the interim, however, something may have changed. That something would be the concept of federal preemption.

Now, as every law student who has finished their first semester of Constitutional Law can tell you, federal preemption means that the laws of the United States (both the Constitution and those passed by Congress) are the supreme laws of the land. When state regulations come into conflict with Federal laws or regulations, the Federal rules prevail. Now, that is the simple version. The more complicated version of preemption is whether the Federal law actually meant to completely preempt the states from introducing additional legislation which would enhance the Federal law.

Tucked away within the new fuel standards, which the EPA is basing its refusal upon, is a provision which says that individual state attempts to regulate tailpipe emissions are an impediment to the Federal standards. Therefore, they are specifically pre-empted by the rule. Another instance of Federal preemption by rule-making.

Now, there has been an argument that preemption by rule, especially where the statute is silent on the issue, is improper. Not only may this be improper, but the agencies undertaking to preempt by rules are ill-equipped to to police the products or areas which they have essentially deprived states or individuals from having any jurisdiction to act.


The only problem with this argument, is that it seems to be losing one. Between the time that the EPA rejected California's application and today, the Supreme Court handed down the decision in the case of Riegel v. Medtronic.

In Reigel, Riegel underwent a surgery which required the use of a catheter for his heart. Unfortunately, the catheter was defective and failed. What should have been a fairly routine procedure to treat an myocardial infarction required Riegel to be placed on life support and subjected to a second surgery, an emergency coronary bypass surgery. Among the causes of action alleged in their complaint, filed in U.S.D.C for the Northern District of New York, were claims based on New York state law. New York state law has a higher standard for medical devices.

Medtronic defended on the grounds that the Riegel's case was barred because of the Medical Device Amendments of 1976. Specifically, Medtronic argued that because the FDA had approved the design, there could be no causes of action for strict liability, breach of implied warranty, negligence in design, or negligence in manufacturing. The reasoning for this was that the FDA had already reviewed the product, put it through tests of its own and passed it in a form which the FDA's tests have shown will make the product safe and effective.

So how does this relate back to California's case against the EPA? Well, the first things that defending attorneys like to do is try and knock a case out without ever reaching the merits. Especially when on the merits, it looks like the EPA abused it discretion to grant or not grant a waiver to the State of California. A fair reading of a the Riegel decision could be extended to California's suit against the EPA.

The rationale, however, may break down because the factual situation is slightly different. The Clean Air Act, which is the law which establishes federal minimum for air quality, gives that job to the EPA. However, the EPA is relying on a regulation which has been promulgated by the National Highway Traffic Safety Administration. This is important because really waht the NHTSA deals with are cars, fuel efficiency, and attendant safety issues. Their own mission statement states, "Our Mission: Save lives, prevent injuries, reduce vehicle-related crashes." On the other hand, the EPA is supposed to be about environmental regulation.

The Riegel decision was premised, in part, on the fact that FDA is the agency which is ultimately supposed to be responsible for medical devices. They test them. They approve them. They have statutory authority for them to regulate. Completely unlike the situation that exists here. Right? Well, then we get into a conflict between the statutes. And depending on how the statutes are interpreted by the courts, they could come to the opinion that one takes precedence over the other or that both should be given equal reading because they are not mutually exclusive when it comes to this issue.

However, the Bush Administration, in its effort to fight torts has been pushing this agenda, so I would not be surprised to see the argument made that California is completely preempted by the NHTSA's regulation.

Then again, maybe I am just looking for problems where there are none to be had. Perhaps this will go as it should, just as it was predicted by the EPA's own in-house legal department.

If the EPA says that they didn't see this coming....

Then I'll have whatever they are smoking.

If you recall, a few weeks ago, the EPA in its infinite wisdom decided to go against nearly three decades of precedence and violate their discretion given to them by statute when they decided to reject California's application for a waiver under the Clean Air Act. I ranted a bit about the duplicitousness of the EPA's decision a few days ago.

My favorite part of the EPA's whole decision making process is the power point presentation that apparently was given by the EPA's legal department to the Agency's head. In it, they told him that if California is denied and sued, California would probably win. If California was granted the waiver, and the automakers sued the EPA, then the Agency would win.

It was announced today that California's Attorney General was filing suit against the EPA over its refusal to grant the waiver.

Correct Me If I Am Wrong..

But I thought that one of the hallmarks of Republican ideology was to have less government regulation at the national level so that the states had more autonomy to legislate for themselves within the national system. What usually gets referred to as the state laboratories or experiments or something along those lines. Its actually not a bad idea some of the time.

Apparently, when it comes to serving their corporate backers, ideology and values are not so important to the Republic Party of the current administration. Today, at about 6:30 p.m. EST, the EPA, headed by Stephen L. Johnson, decided to not grant a waiver to California.

Had the waiver been granted, California, and possibly other states, would have been able to set higher standards to decrease the amount of emissions. In all, the proposed California law would have mandated a 30 percent cut in tailpipe emissions by 2016.

Now, first it might be helpful to explain what this "waiver" is all about. The waiver California was seeking has to do with the Clean Air Act. The Clean Air Act, first signed into law in 1970 and amended as recently as 1990, sets standards to combat air pollution in the United States. While states may not legislate levels below the standards set in the Clean Air Act, they may create laws which exceed the standards of the law. In order to do so, they must first obtain a waiver from the EPA.

Since the Clean Air Act became law, nearly four decades ago, there have been 40 applications for waivers. Until today, none of had been rejected.

It should also be noted that California was not the only state that was seeking a waiver, it was simply the first in line. Also stating that they would seek waivers from the EPA were Connecticut, Maine, Maryland, Massachusetts, New Jersey, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont and Washington. Four more states, Arizona, Colorado, Florida and Utah, were preparing to adopt the same of similar standards as those in the California proposal. Furthermore, Iowa is considering adopting them as well.

In all, those states represent apparently 70 percent of new car sales. Going by the figures for the population of the U.S., if all the states were to adopt these standards (which seems likely given that only Iowa is still at the consideration phase), then it would represent 157.5 million people, or 52.6% of the population. All of these legislatures are responsible to their constituents, in some ways more so than the EPA is through Congressional oversight and Presidential administration control.

So what was the rationale for the EPA's decision? As the AP noted, "In explaining his decision, Johnson cited energy legislation approved by Congress and signed into law Wednesday by President Bush. The law requires automakers to achieve an industrywide average fuel efficiency for cars, SUVs and small trucks of 35 miles per gallon by 2020."

Anyone else notice what they were doing there? Instead of admitting that they were breaking with precedent, the EPA was changing the subject. The laws being adopted by the states had to do with emissions. The new federal law deals with fuel efficiency. The two are not the same.

Whats the real reason? In my opinion, I think you need to look at who stands to gain from all this. Perhaps... the auto industry. GMC has gone on record stating that they are opposed to the California style regulations and that refusing the waiver would "[remove] the disproportionate burden of complying with a patchwork of state-specific regulations that would divert our resources, automakers can concentrate on developing and implementing the advanced technologies in ways that will meet America's driving needs."

Of course, GMC has been fighting California's stringent air quality standards in the courts. And recently, their attempts failed when the U.S. District Court last week.

Again in my opinion, if you look at what auto industry is saying, is that they do not want to change. They want to be to continue do business the same way. Yes, I have read the arguments that imposing change in industries is a bad thing. However, this time, I do not believe that the argument works. The law, at least the California version, did not mandate how the reduction in emissions were to occur. It was just that the emissions had to go down. The automakers would have a clear deadline to come up with whatever way would work for them... just as long as they met the deadlines.

Now, its not all the auto industries fault. They are doing what corporations are supposed: trying to maximize their profits for their investors. However, the actions of the EPA in this case seem to be at odd with what the current administration has been instructing them to do: namely find a ways to reduce greenhouse gas emissions in the U.S.

And here I thought that the goal was to find a way to protect the environment (and by extension our health) without submitting to Kyoto. And by letting the states do this, we see what works and what does not. And its something that every other administration has permitted applicant states to obtain for more than thirty years.

Oh well, I must have been wrong.

It Took Way Too Long

For him to resign. Ignore the fact that he seems to be a sycophantic lackey of the President, this man lacked the moral integrity to stand up for his positions.

Mr. Gonzales was supposed to be the Attorney General of the United States. As such, he was the head of the Department of Justice, the man charged with overseeing the U.S. Attorneys around the country. Instead, he seemed to have spent his time trying to find ways to serve his master but avoid taking any blame for his action. Either he was in charge of everything at the Justice Department, i.e. the person with whom the buck stopped, or he had no control over his Department.

Say what you want about Janet Reno. At least when she did something similar, she did not try and duck it.

There is also talk about how this administration has politicized the Department of Justice. I am not sure that this is actually true, since every administration does this with the choices they make in their appointments. These appointments determine the way that policy is conducted and laws are enforced by the Department. Gonzales was no different than Meese, Ashcroft, Thornburgh, Barr or Reno in that regard. However, I do not recall any of them having such a need, hunger, to shroud the American Justice system in secrecy as Gonzales and Ashcroft have.
Hopefully, this time, the Bush Administration will install someone who can act as an Attorney General, and not a craven shyster.

Good riddance to bad rubbish. Cue music.

Funny, I Thought They Said Terrorist Trials Would Never Work..

And yet by my count, the Bush Administration has a winning record in prosecuting terrorists. The managed to get verdicts against Moussaui and Reid. And today Padilla was convicted in a trial held in the U.S. District Court.

For more than 2 years, the Bush Administration fought against the idea of according him his civil rights. They maintained that it would be too dangerous, that it he could be summarily designated an enemy combatant. That essentially, the President could determine which citizens of this country they thought should be tried and accorded their rights.

Whether or not he was innocent, the fact that he had a reasonably fair trial (since no trial is perfect) just goes to show what is right with the system. And what is wrong with Bush's perception of justice and the American system of justice.

At What Point Does the Bush Administration Realize He Is A Bozo?

I am serious.

If you believe him, he has no recollection of participating in the firing of 8 U.S. Attorneys. Of course, his aides remember that he did. So... either he has no control over the hiring and firing of his top subordinates or he just does not want to own to be doing it.

His handling of the firing has been so bad, that it has caused Republicans to agree with Democrats that he should go. I think I may now need to start using my toes to count the number of things that these two parties have agreed upon during Bush's terms of office.

Now we have Gonzales appointing U.S. Attorneys to districts he never intends the U.S. Attorney to work. What am I talking about? Apparently, after firing other U.S. Attorneys for not being in their territory enough (though some have said it was for other reasons), the U.S. Attorney for the district of Montana has apparently been exempted from this rule. The U.S. Attorney for the District of Montana is a gentleman by the name of William Mercer.

However, Mercer's primary job is not overseeing prosecutions of federal criminal charges or defending U.S. interests in civil action in his district. Apparently, it is serving as the Principal Associate Deputy Attorney General. Prior to that he was serving as the Assistant Attorney General for the Department’s Office of Legislative Affairs. This meant it was his job to shepherd legislation through the U.S. Congress.

Now, understandably, the U.S. District Chief Judge Donald W. Molloy wanted to know where the U.S. Attorney was. Our Attorney-General answered him that Mr. Mercer was in compliance with the law. The only thing was, he was going to be in compliance since the law was in the process of being changed. App

But that is neither here nor there really. What I find really interesting is that the Bush Administration, and Gonzalez in particular seems to say one things and do another. If the position of Attorney General is viewed as being so important that you have to have the right people there, then why do you not have the right people there? Is Gonzales saying that there is no one else who can kowtow and prosecute (since it appears that is what is called for to be a U.S. Attorney)?

Of course, since Gonzales is living up to his reputation as Bush's yes-man, what more could we have expected from him?

Let Me See If I Have This Right

You agree to provide someone with the means to defend themself. And then when they are actually attacked, and some of their family is kidnapped in the course of the attack. While defending themselves, and trying to get their family members back, they use the means provided for the defense. And when all is said and done, do you then complain about what they did and punish them for doing it?

Apparently you do if you are the Bush Administration.

It seems that Israel, while trying to end rocket attacks on its northern cities (that would be places wehre people live and try and go about their business just like they do all across the U.S.), had the temerity to use weapons which the U.S. sold it. Weapons it sold to Israel to help her defend herself. Weaposn it used to attack positions used by Hezbollah to launch rocket attacks on Israel. Locations which supplied the men who kidnapped two IDF soldiers from Israeli territory.

Remind me, isn't it a center piece of the Bush doctrine to support democracies that fight against terrorism?

The Problem With Our Leadership (Pictorial Version)

And

Is This Worth 50 Million a Year?

Apparently our government pays around $50 million dollars a year to try and teach abstinence to the nation's youth. These programs have been so effective that the Bush Administration has decided to expand them.

That's right. Instead of just trying to keep teens from having sex, the government is trying to get the word out that people should abstain from sex until they are married, or at least 30.

I wonder when the Republicans are going to try and prevent drinking... again.

So I had this forwarded to me..

RESUME OF GEORGE BUSH

1600 Pennsylvania Avenue
Washington , DC 20520

EDUCATION AND EXPERIENCE:

LAW ENFORCEMENT
I was arrested in Kennebunkport, Maine, in 1976 for driving under the influence of alcohol. I pled guilty, paid a fine, and had my driver's license suspended for 30 days. My Texas driving record has been "lost" and is not available.

MILITARY
-- I joined the Texas Air National Guard and went AWOL. I refused to take a drug test or answer any questions about my drug use. By joining the Texas Air National Guard, I was able to avoid combat duty in Vietnam.

COLLEGE
-I graduated from Yale University with a low C average.

-I was a cheerleader.

PAST WORK EXPERIENCE
--I ran for U.S. Congress and lost.

--I began my career in the oil business in Midland, Texas, in 1975. I bought an oil company, but couldn't find any oil in Texas . The company went bankrupt shortly after I sold all my stock.
--I bought the Texas Rangers baseball team in a sweetheart deal that took land using taxpayer money.

--With the help of my father and our friends in the oil industry, including Enron CEO Ken Lay, I was elected governor of Texas.

ACCOMPLISHMENTS AS GOVERNOR OF TEXAS
--I changed Texas pollution laws to favor power and oil companies, making Texas the most polluted state in the Union.

--During my tenure, Houston replaced Los Angeles as the most smog-ridden city in America.

--I cut taxes and bankrupted the Texas treasury to the tune of billions in borrowed money.

--I set the record for the most executions by any governor in American history.

--With the help of my brother, the governor of Florida, and my father's appointments to the Supreme Court, I became President after losing by over 500,000 votes.

ACCOMPLISHMENTS AS PRESIDENT
--I am the first President in U.S. history to enter office with a criminal record. I

-- invaded and occupied two countries at a continuing cost of over one billion dollars per week.

--I spent the U.S. surplus and effectively bankrupted the U.S. Treasury. I shattered the record for the largest annual deficit in U.S. history.

--I set an economic record for most private bankruptcies filed in any 12-month period.

--I set the all-time record for most foreclosures in a 12-month period.

--I set the all-time record for the biggest drop in the history of the US stock market.

--In my first year in office, over 2 million Americans lost their jobs and that trend continues every month.

--I'm proud that the members of my cabinet are the richest of any administration in U.S. history. My "poorest millionaire," Condoleeza Rice, had a Chevron oil tanker named after her.

--I set the record for most campaign fund-raising trips by a U.S. President. I am the all-time U.S. and world record-holder for receiving the most corporate campaign donations.

--My largest lifetime campaign contributor, and one of my best friends, Kenneth Lay, presided over the largest corporate bankruptcy fraud in U.S. History, Enron.

--My political party used Enron private jets and corporate attorneys to assure my success with the U.S. Supreme Court during my election decision.

--I have protected my friends at Enron and Halliburton against investigation or prosecution. More time and money was spent investigating the Monica Lewinsky affair than has been spent investigating one of the biggest corporate rip-offs in history.

--I presided over the biggest energy crisis in U.S. history and refused to intervene when corruption involving the oil industry was revealed.

--I presided over the highest gasoline prices in U.S. history. I changed the U.S. policy to allow convicted criminals to be awarded government contracts.

--I appointed more convicted criminals to administration than any President in U.S. history.

--I created the Ministry of Homeland Security, the largest bureaucracy in the history of the United States government.
--I've broken more international treaties than any President in U.S. history.

--I am the first President in U.S. history to have the United Nations remove the U.S. from the Human Rights Commission.

--I withdrew the U.S. from the World Court of Law.

--I refused to allow inspectors access to U.S. "prisoners of war" detainees and thereby have refused to abide by the Geneva Convention.

--I am the first President in history to refuse United Nations election inspectors (during the 2002 U.S. election).

--I set the record for fewest numbers of press conferences of any President since the advent of television.

--I set the all-time record for most days on vacation in any one-year period.

--After taking off the entire month of August, I presided over the worst security failure in U.S. history.

-- I garnered the most sympathy for the U.S. after the World Trade Center attacks and less than a year later made the U.S.the most hated country in the world, the largest failure of diplomacy in world history.
--I have set the all-time record for most people worldwide to simultaneously protest me in public venues (15 million people), shattering the record for protests against any person in the history of mankind.
--I am the first President in U.S. history to order an unprovoked, pre-emptive attack and the military occupation of a sovereign nation. I did so against the will of the United Nations, the majority of U.S. citizens, and the world community.

--I have cut health care benefits for war veterans and support a cut in duty benefits for active duty troops and their families-in-wartime.

--In my State of the Union Address, I lied about our reasons for attacking Iraq and then blamed the lies on our British friends.

--I am the first President in history to have a majority of Europeans (71%) view my presidency as the biggest threat to world peace and security.

--I am supporting development of a nuclear "Tactical Bunker Buster," a WMD.

--I have so far failed to fulfill my pledge to bring Osama Bin Laden [sic] to justice.

RECORDS AND REFERENCES
--All records of my tenure as governor of Texas are now in my father's library, sealed and unavailable for public view.

--All records of SEC investigations into my insider trading and my bankrupt companies are sealed in secrecy and unavailable for public view.

--All records or minutes from meetings that I, or my Vice-President, attended regarding public energy policy are sealed in secrecy and unavailable for public review.

--I am a member of the Republican Party.

PLEASE CONSIDER MY EXPERIENCE WHEN VOTING IN THE 2006 MID-TERM ELECTIONS.

PLEASE SEND THIS TO EVERY VOTER YOU KNOW.

Oddly enough, some of the things on this are distortions, some are probably untrue, and some are very true but are not the evil that you think that they are.

Now does this mean that I suddently support the Republican Party in general or the President? Nope.

For example, there is the business about the 2000 election and the Supreme Court. Personally, I think that the court reached the right decision, though probably not in the right way. The real problem, to me, was that Gore was only asking for a few disputed counties, thereby saying that the rest of the counties votes should not count as much as theirs.

Another example is the International Criminal Court (improperly identified as the World Court of Law). This is a relatively new international court which the U.S. has not ratified the treaty for and which the government (meaning the Senate leadership and the President) will not push for ratification. It should be noted that the previous administration, that of Bill Clinton, signed onto to the agreement. However, the Clinton administration did so only so that it would be part of the negotiations. Even though the treaty creating the court was completed during the Clinton administration, Clinton took the position that as drafted, the treaty would infringe too much upon U.S. sovereignty and would open the possibility of politically motivated prosecutions. Then, there are also the constitutional questions with regards to joining such a court.

Then there is my favorite charge against Bush: that he is the first president to order an unprovoked attack on someone. The American Indians were not angels, but simply stating that we never provoked them into attacking us, or vice versa, is to ingore history. As far back as the colonial days, there were Indian tribes we favored and those that we attacked. We have ordered Marines to land in Central America, South America, Korea (in the 19th Century), and a variety of other places. Those operations were not on the scale of the Iraqi campaign, but at the same time, they were often done under the rubric of taking up the white man's burden or protecting a trader (who often times turned out to be afoul of a local law). My favorite was our invasion of the Phillippines during the Spanish-American War. Instead of letting the local insurrectionists finish off the Spanish forces still on the islands, we landed Marines and soldiers and took the surrender of the Spanish and then forced the surrender of the Phillipino insurrectionists who wanted to establish their own, independent, country.

Was it wrong to invade Iraq? In my opinion, it was not. Then again, I probably would have supported most of the other small wars in this nation's history.

Finally there is the issue of allowing Red Cross representatives in to see Guantanamo Detainees. Now, while I do think that there needs to be some oversight in these cases, the people at Guantanamo are really not prisoners of war. The Third Geneva Convention identifies members of militia or volunteer corps as:

(1) Members of the armed forces of a Party to the conflict, as well as members of militias or volunteer corps forming part of such armed forces.

(2) Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:[
(a) that of being commanded by a person responsible for his subordinates;
(b) that of having a fixed distinctive sign recognizable at a distance;
(c) that of carrying arms openly;
(d) that of conducting their operations in accordance with the laws and customs of war.

(3) Members of regular armed forces who profess allegiance to a government or an authority not recognized by the Detaining Power.

(4) Persons who accompany the armed forces without actually being members thereof, such as civilian members of military aircraft crews, war correspondents, supply contractors, members of labour units or of services responsible for the welfare of the armed forces, provided that they have received authorization, from the armed forces which they accompany, who shall provide them for that purpose with an identity card similar to the annexed model.

(5) Members of crews, including masters, pilots and apprentices, of the merchant marine and the crews of civil aircraft of the Parties to the conflict, who do not benefit by more favourable treatment under any other provisions of international law.

(6) Inhabitants of a non-occupied territory, who on the approach of the enemy spontaneously take up arms to resist the invading forces, without having had time to form themselves into regular armed units, provided they carry arms openly and respect the laws and customs of war.

Now, for the most part, the people held at Guantanamo do not fall into any of the categories listed above which would get them the protections under the Geneva Conventions. Because they were captured while, allegedly, taking part in hostilities against the United States, they have forfeit their protections by operating in the way that they do. Essentially, they are outlaws. (Which, I sometimes think is a concept worth having again)

But as for the rest of the stuff in the resume... I just wonder why it is that we keep electing him. Unlike some presidents he seems not to be able to tell when something should be kept secret and when it should be open to public debate (i.e. his Texas documents or the meetings of the Cheney enegery committee).

He has also introduced a meaness into the office. To him any dissent is wrong and un-patriotic. He does not attempt to engage in debate, just in demagougery.

And then there is his relationship with the truth. At least when Clinton was in office, he was only lying about who he was shtupping.

Even knowing all this, and admit it, this information was out there, how have we continued to keep these people in office? In my opinion one reason: the Democrats have failed to provide a compelling vision of what their policies would be. Its 2006 and we still faced with candidates running on the platform of "I'm not with George W. Bush".

Oh well.

Some Very Good Points

Now, I do not agree with everything that Mr. Olbermann said, but I agree with the basic thrust of the editorial. And I love the way he said it.

Sign of the Apocolypse?

If you have ever watched Bill Maher you may have detected that perhaps he is not a supporter of President Bush or any of his policies. However, today he posted the following over at Arianna Huffington's blog:

And I hope this doesn't ruin your birthday, but I have to say, watching George Bush talk about Israel the last week has reminded me of a feeling that I hadn't felt in so long I forgot what it felt like: the feeling of pride when your president says what you want your president to say, especially in a matter that chokes you up a bit. I surrender my credentials as Bush exposer - from the very beginning - to no man, but on Israel, I love it that a U.S. president doesn't pretend Arab-Israeli conflict is an even-steven proposition. Lots of ethnic peoples, probably most, have at one time or another lost some territory; nobody's ever completely happy with their borders; people move and get moved, which is why the 20th century saw the movement of tens if not hundreds of millions of refugees in countries around the world. There was no entity of Arabs called "Palestine" before Israel made the desert bloom. If those 600,000 original Palestinian refugees had been handled with maturity by their Arab brethren, who had nothing but space to put them, they could have moved on -- the way Germans, Czechs, Poles, Chinese and everybody else has, including, of course, the Jews.
But I digress. I really wanted to say that, for all those who accuse the likes of myself and the birthday girl of being unpatriotic, or hating America first, the feeling I've had watching Israel defend herself and a US president defend Israel (a country that is held to a standard for "restraint" that no other country ever is asked to meet, but that's another story) just reminds me how wrong that is. I LOVE being on the side of my president, and mouthing "You go, boy" when he gets it right. He just, outside of this, almost never does.

I think this might be a sign that the end is pretty well-nigh. On the other hand, I agree with his sentiments. (Hat-tip to Israellycool.)

Diplomatic Language

So by now I am sure that most people have heard what President Bush said during a coversation with Prime Minister Tony Blair about the situation in the Middle East. If not, below is the video. Some people have been outraged that he would act like this.




My fiancee was horrified by this. Not by the language but by the way he acted towards Blair, i.e. talking over him and talking with his mouth full. And she is the Republican.

Personally, I do not have a problem with the language. It was a conversation that was not really meant for public consumption. Furthermore, its probably the most coherent policy that Bush has been able to articulate since he was back at Yale.

This is bad on so many different levels

Apparently the President has decided that the best way to protect the United States is to send the National Guard to the border with Mexico. Because, really, so much of our ills are caused by people he apparently described as those "who want to work in our economy".

Imagine that. People wanting to work. People who want to do jobs that no native born American typically wants to do.

So the administration's idea of immigration reform, since it was unable to convince the rest of the country, is to deploy National Guardsman from the border states of California, Texas, Arizona, and New Mexico.

Of course, there are some who think this is a good idea. The AP notes, "Alabama Gov. Bob Riley, a Republican, strongly supported the plan. He said, "If we'd done this years ago, we'd have put a stop to illegal immigration." He also is not the govenor of a state that will be responsible for supplying the troops.

The Bush Administration insists that this does not represent a militarization of the border. However, the National Guardsmen who are to be deployed will apparently be armed and allowed to fire under a set of specified rules of engagement. While on the one hand, the plan seems to be that the Guardsman will not take part in patrolling, which leads to the question of what are the Guardsman going to be doing, on the other hand they are being kept under state control. The important thing about state control is that it gets around the problem of Posse Comitatus, which prohibits U.S. military units from participating in law enforcement unless authorized. This begs the question, what are they going to do? The speech asking for the National Guard's deployment is here. In it, he states taht they will be in purely support positions (analyzing intelligence, building roads, training and etc.)

Yet, if the problem is bodies doing the actual patrolling, how is this going to make anything better? To me, this just does not make sense.(Of course, if someone will correct I welcome it).

However, there is something else to think about in this situation. How will this be viewed in Mexico. If we as a nation are serious about dealing with this issue, then we need to be on good terms with our neighbor. A presidential election is in the offing in Mexico and if anti-Americanism puts an antagonist in office, then it will be that much harder to do more to deal with the problem of illegal immigration.

Essentially my problem with this is that this reeks of an election year policy decision. Absent finding Bin Ladin or al-Zarqawi, targeting illegals from Mexico and places south is Willie Horton issue for the Republican Party.

I think this is literally the scariest things I have read today

Among the sites I read is the Wall Street Journal's Opinionjournal.com. I do not agree with everything they say, but they get a number of good articles over there that lay out, rather clearly and effectively, what the conservative take on a given issue or topic.

With all the kerfufluffle going on about the NSA terrorist suveillance program, today they have an editorial piece from Alberto Gonzales, the new Attorney General and the former White House counsel who apparently authored the opinion in favor of the program.

Mr. Gonzales' position is that the surveillance program is authorized by the Congressional Authorization for Use of Military Force ("AUMF"). The AUMF granted the president the ability to use military force against the terrorists wherever they may be. He then states that the NSA is a component of the United States' military force. He then references a portion of the FISA, which states that persons are prohibited from engaging in electronic surveillance, "in electronic surveillance under color of law except as authorized by statute." Since Congress passed the AUMF, there is a statue authorizing the the NSA to legally circumvent FISA.

That, of course, is not the scary part. And Mr. Gonzales makes the statement that the program was only for international wiretapping.

In my opinion, the scary part comes in the next paragraph. Mr. Gonzales writes,

Lastly, the terrorist surveillance program fully complies with the Fourth
Amendment, which prohibits unreasonable searches and seizures. Like sobriety
checkpoints or border searches, this program involves "special needs" beyond
routine law enforcement, an exception to the warrant requirement upheld by the
Supreme Court as consistent with the Fourth Amendment.

So according to the Attorney General of the United States, wiretapping is the 21st Cenury equivalent of a sobriety checkpoint. Which leads me to wonder how much he has read on the legality of sobriety checkpoints since Texas is listed as a state which specifically prohibits their use. I am not sure what he means by a "border searches". However, if he means passing through customs, where the 4th Amendment does not apply, then he seems to be moving towards just ignoring the 4th Amendment altogether.
Now, I am sure that he does not really intend this. Just as much as the DOJ staffer who wrote this for him does not wish, presumably, to see the 4th Amendment dissappear under the color of fighting terrorism. However, how much does the Attorney General's statement hold up?
The Supreme Court case which decided the legality of sobriety checkpoints is Michigan Dept. of State Police v. Sitz, 496 U.S. 444 (1990). There the Supreme Court weighed the balance between the need of the state versus the intrusion into the individual's privacy. The Sitz court found that the state had significant need to eradicate the problem of drunk driving because of the harms which it cause. In a similar way today, no one can rationally dispute the government's need to eradicate violent terrorists who have demonstrated the ability to cause death and destruction.
The court went on to examine the intrusion of the search and seizure (the checkpoint stop), found that there was a slight intrusion. The average stop lasted 25 seconds during which time the majority of the people stopped (126) were asked 2 questions before going on their way. Only if they met certain criteria were drivers pulled out of their cars and subjected to a field sobriety test.

Of course, according to Mr. Gonzales, this is the equivalent to wiretapping. The Supreme Court, on the other hand has had something different to say about that. In fact, the Government did try to state that wiretapping (in domestic criminal cases) should not require a warrant. The government's lawyers at the time urged for the creation of an exception to the Fourth Amendment, in the same where there are exceptions to the warrant requirement for Terry stops and seizures due to hot pursuit or searches based on consent. Justice Stewart, writing the opinion in Katz v. Unitd States, 389 U.S. 347 (1967) , flatly rejected this proposal. Saying allowing the government to bypass the warrant requirement would leave the determination of whether the search would violate the Fourth Amendment solely in the hands of the police. See 389 U.S. at 355.
Now, admittedly, Katz is a case concerining a purely domestic crime. However, a few years later, the Supreme Court in United States v. United States District court found that even where the governement is using the wiretaps to prevent the overthrow of the U.S. government by violence, a warrant is still required. Justice Powell, writing the opinion, stated, "These Fourth Amendment freedoms cannot properly be guaranteed if domestic security surveillances may be conducted solely within the discretion of the Executive Branch." 407 U.S. 297, 316 - 17. Justice Powell went on to note that,

We recognize, as we have before, the constitutional basis of the President's domestic security role, but we think it must be exercised in a manner compatible with the Fourth Amendment. In this case we hold that this requires an appropriate prior warrant procedure.

Justice Douglas, writing in his concurrence, went even further. He stated,

The Warrant Clause has stood as a barrier against intrusions by officialdom into the privacies of life. But if that barrier were lowered now to permit suspected subversives' most intimate conversations to be pillaged then why could not their
abodes or mail be secretly searched by the same authority? To defeat so terrifying a claim of inherent power we need only stand by the enduring values served by the Fourth Amendment. As we stated last Term in Coolidge v. New Hampshire, 403 U.S. 443, 455 : "In times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law [407 U.S. 297, 333] and the values that it represents may appear unrealistic or 'extravagant' to some. But the values were those of the authors of our fundamental constitutional concepts. In times not altogether unlike our own they won . . . a right of personal security against arbitrary intrusions . . . . If times have changed, reducing everyman's scope to do as he pleases in an urban and industrial world, the changes have made the values served by the Fourth Amendment more, not less, important." We have as much or more to fear from the erosion of our sense of privacy and independence by the omnipresent electronic ear of the Government as we do from the likelihood that fomenters of domestic upheaval will modify our form of governing. 14 [407 U.S. 297, 334]

Now I believe that, probably, wiretaps of international calls and communications from known Al Qaeda sources has resulted in intelligence that has probably saved lives. However, if the government has been going beyound merely the international calls, then it has stepped over the line. This is not to say that the government should re-erect the wall between foreign intelligence and domestic intelligence/criminal prevention. It was wrong then, it would be wrong now. What I am saying is that, since it is constitutional for the president to order international surveillance, which may include international telephone calls where one party is in the U.S. (see In re: Sealed Case No. 02-001,) and , then use that to get the warrant. There is a 72 hour window in which to obtain one under the way the law stands now. Furthermore, the court in In re: Sealed Case held that in many respects the traditional probable cause factors required for a wiretap warrant under FISA are lower than they would be for a simple criminal activity. (Although it does require a couple of things that a criminal wiretape warrant would not. The Sealed Case court noted that there was a requirement that the person survailled be believed to be an agent of a foreign power, that there be a nexus between the target and the communication, etc.)
What then is the government afraid of?
So why is Mr. Gonzales' article so scary? Because it shows he is willing to justify the ends by whatever means. In an open ended conflict like this, where essentially the opposition has no state or legal entity, that kind of thinking can eliminate the freedoms which we seek to protect and export to other nations.
Anyways, this is my opinion alone. And I will now probably have someone listening into my phone calls.

Hidden in the shuffle

I'm actually surprised that yesterday was the first time I heard about it. Over at the Torts Prof blog, run by Professor Childs of the Western New England School of Law, there was a short piece about tort reform by executive fiat.

Apparently in 2003, President Bush signed Executive Order 13303 (This order has since been expanded and modified by E.O 13315, 13350 and one signed on November 29, 2004.). These orders deal with claims against the Iraq Development Fund, the Iraqi oil industry, and anything arising from the sale or marketing of Iraqi oil. Essentially, with four strokes of the pen, President Bush has eliminated tort liability for entities working in Iraq, making them effectively immune from civil tort claims. Anthony Sebrok and Claire Kelly have a really well written analysis of this decision by the Bush administration.

Essentially, this is one step beyond what the FDA is trying to do with its new labeling regulations for perscription medicines. Instead of merely limiting the injured's recourse, they are eliminating it entirely.

Who am I supposed to trust?

One of the stories I follow pretty regularly is the NSA eavesdropping/domestic spying program authorized by President Bush after 9/11. The more I read, the more confused I get.

Now I understand, and encourage, the gathering of foreign intelligence to protect the US. The question that no one seems to be answering (and if I have missed that answer let me know) is if they were monitoring purely domestic telephone conversations (and other forms of communication) between U.S. citizens who are supporters of terrorist organizations.

I will be the first to tell you, I do not have any experience with FISA. It just seems that if they are monitoring domestic communications, then there needs to be a warrant (Yes, I understand that they say its communications between targets in other countries and agents in the US, but anyone can say anything at this point since there is a lack of information). The breakdown, at least in my mind, hinges on how we are going to define who is a foreign agent.

When FISA was initially enacted, the drafters were not contemplating terror groups. These groups are essenitally nationless actors, at least in respect to the ones we are dealing with during this current incarnation of the "War on Terror". These groups receive support from a variety of sources, including some foreign governments and private benefactors both in the US and abroad. Although they, in some cases, receive subsidies from foreign governments, I am not sure one could successfully argue that they are agents of those governments. The goals of the terror groups and the governments may coincide but the terror groups are not controlled by the government. Its a bit like, at least in my mind, an alliance and not integrated group. (Again, if someone would like to correct me, go ahead and show me the mistake I have made.)

Robert Turner, a constitutional scholar, argues, that there is inherent authority in the Constitution for the president to authorization the type of activities which the NSA has apparently conducted during times of war. He states, that according to precendent, joint resolutions of Congress are constitutionally indistinguishable from a formal declaration of war. However, it seems like this is something that was not contemplated by the framers. It would seem that terror groups are not nations in the sense that the Constitution would recognize war could be declared against. They seem to be closer to pirates and other outlaws that existed contemporaneously. No declaration of war was needed to take action against piracy. However, I am sure that Mr. Turner would disagree with me since he cites the resolutions passed by Congress to support Jefferson's campagin against the Barbary States. In turn, I am not sure that the analogy works since in that case, the pirates were effectively the navies of the Barbary States and worked at their direction.

Since modern terror groups seem to be nationless, though made up of people from various nations, how do you redefine a foreign agent and not include legitimate political groups who are not practicing or supporting violence. If you make it too narrow, you lose some of legitimate targets of surveillance. If you make it too broad, you include groups which want to achieve change via legal means. If you do not definte it, you make it too arbitrary.

At least for me, my fear of the third route has to do with the way the Bush Administration has treated dissent, of any type. Furthermore, it has to do with some of the choices that the President made in filling out his cabinet, especially when it came to appointing John Ashcroft as Attorney General. This was a man who seemed more concern about the state of dress of statutes at the Department of Justice building than civil rights.

Which is why when I read the following, I do not have great faith in whether corners were unreasonably cut in listening in on conversations. According to an article in Newsday, General Michael Hayden, deputy director of the NSA, stated, "The lawfulness of the actual authorization was reviewed by lawyers at the Department of Justice and the White House and was approved by the attorney general[.]" The Attorney General was of course: John Ashcroft.