Decius and I where lucky enough to be able to attend the last day of witness testimony for the Samuel Alito Confirmation Hearing. Thanks to Tim Ball and John Flym, we were able to acquire a pass to witness part of an important historic event.

As the story goes, Professor Flym was having a problem with his laptop causing him to be unable to file his statement in time to give testimony. Tim's boss told him to do anything necessary to solve his problem. In the process, due mostly to chance and good timing, "anything necessary" wound up involving Tom and I. We were not able to completely fix John's problem the first night, but we were able to get him in a position where he could get his work done. The next day we returned to completely fix the problem, and John gave us a witness pass he had.

Having watched what must amount to several solid months of C-SPAN, being on the other side of the cameras was interesting. The hearing room in the Hart building is like being in a pressure chamber, more so than any court I've been in. I can only imagine the stress felt by those testifying. Tim was busy the entire day, so Tom and I took shifts attending the hearings. I was present during Flym's testimony, as well as that of Ronald S. Sullivan Jr., Amanda Frost, Reginald M. Turner, Jr., Theodore M. Shaw, among others, and the closing of the hearings. Tom will probably chime in with his take on the hearings, but I remember him being very happy about being there for the testimony of Fred Grey, who defended Rosa Parks.

Later at Shmoocon, there was some humorous discussion about if the badge qualified as a ticket to the "Nerd SuperBowl" or the "Nerd World Series". At the time, I was strongly on the side of "Nerd SuperBowl", but lacking a well worded concise argument for why. Given some time to think about it, its clear that "Nerd SuperBowl" does fit best. The "Nerd World Series" would better fit a string of WTO and G8 summits, while the Security Council would be the "Nerd World Cup". Its good to be a nerd.

Anyway, joking aside, this was a really cool experience. Both Tom and I spend much time thinking about legal problems. It was a honor to be present in person for even the small portion of proceedings we were. On the linked page, I included a few pictures and screen captures from C-SPAN where I can be spotted. I was unable to find any screen shots where Tom was present. Since he knows where he was sitting and at what time, maybe he will have better luck.

Rattle and Decius at Alito Confirmation Hearing

There is a vigorous debate about the war in Iraq today, and we should not fear the debate. It's one of the great strengths of our democracy that we can discuss our differences openly and honestly -- even in times of war. Yet we must remember there is a difference between responsible and irresponsible debate -- and it's even more important to conduct this debate responsibly when American troops are risking their lives overseas.

The American people know the difference between responsible and irresponsible debate when they see it. They know the difference between honest critics who question the way the war is being prosecuted and partisan critics who claim that we acted in Iraq because of oil, or because of Israel, or because we misled the American people. And they know the difference between a loyal opposition that points out what is wrong, and defeatists who refuse to see that anything is right.

... So I ask all Americans to hold their elected leaders to account, and demand a debate that brings credit to our democracy -- not comfort to our adversaries.

In this comment Bush essentially accusses his war critics of Treason. I expect this from partisan commentators, but coming from the President its over the top. The Republican party has an army of partisan talk show hosts, television personalities, and editorial writers who spew reams of disingenuous bullshit on a daily basis. If Bush was really serious about cleaning up the nature of political rhetoric he would start in his own backyard. Furthermore, serious, constructive, and, in retrospect, correct criticisms of his Iraq policy coming from inside his administration have resulting in firings. The American people know that if you live in a glass house you shouldn't throw rocks.

Remarks by President Bush on the Global War on Terror

A couple who planted a severed finger in a bowl of Wendy's chili in a scheme to extort money from the fast-food chain were sentenced Wednesday to prison terms of nine years and more than 12 years.

Seems excessive for fraud.

The Volokh Conspiracy - Couple Sentenced to Prison In Wendy's Severed-Finger Case:

After signing the legislation into law with no ceremony at his Texas ranch, Mr. Bush issued an accompanying "signing statement" - the 8 p.m. e-mail message - that Democrats and some Republicans say asserted that he could ignore the law if he wished.

...Scholars say, Mr. Bush has greatly expanded the scope and character of the signing statement...

"The whole history of American government is one of trying to figure out what executive power actually is, so here is the president saying, 'Well, it's my job to tell you what that power is.'"

For President, Final Say on a Bill Sometimes Comes After the Signing - New York Times

I read Daily Kos only occasionally, so I just came across the post "A Little Bit of Monarchy" by Armando on the NSA surveillance program that includes some criticism of my long post last week. Armando's post is a week old, but the Daily Kos gets a jazillion readers, so I thought I would respond and explain Armando's misunderstanding. (Plus, I believe Charles Krauthammer may have had the same misunderstanding, so maybe it's a widespread misconception.)

Apparently, partisans across the spectrum have failed to understand Orin Kerr's analysis of the NSA surveillance program, so he has posted a clarification. I'm posting it here both because it seems to be a response to Krauthammer's nutball essay in the WaPo that I flamed, but also because who knows who else has missed this point (either accidentally or intentionally).

Here is my shortened but extended explanation:
No, the words legal and constitutional do not mean the same thing.
Yes, its possible for something to be illegal and constitutional at the same time.
If its illegal, its illegal, even if its constitutional. Its still illegal.
Doing something illegal is not quite as bad as doing something unconstitutional, but its still bad.
In this case there is an arguement that the law making the action illegal might be unconstitutional, but that arguement is very weak.
There is an arguement that the action might not be illegal, but that arguement is also weak.
Anyone who trumpets this analysis as a clear vindication of the President isn't paying attention.

The Volokh Conspiracy - No Monarchy Here:

Administration critics, political and media, charge that by ordering surveillance on communications of suspected al Qaeda agents in the United States, the president clearly violated the law... It takes a superior mix of partisanship, animus and ignorance to say that.

George Washington University law professor Orin Kerr finds "pretty decent arguments" on both sides, but his own conclusion is that Bush's actions were "probably constitutional."

!?@$#$!!??? Orin Kerr's exact words were "it seems that the program was probably constitutional but probably violated the federal law known as the Foreign Intelligence Surveillance Act." What mix of partisanship, animus, and ignorance does it take to deliberately misrepresent that in an oped peice? Of course Krauthammer goes on to discuss FISA, but his position is that the law doesn't have force and Presidents obey it at their whim. He seems to think this conclusions is obvious and you'd have to be crazy to disagree, in spite of the extremely tenuous ground Kerr put that arguement on in the legal analysis Krauthammer references!

Impeachment Nonsense

Luttig, who is on the short list of Republican SCOTUS hopefulls, writes an opinion denying the Administration's request to vacate his court's decision that the Administration can seize US Citizens on US soil and hold them indefinately without trial. He wants the SCOTUS to review this decision and resolve the matter of enemy combatants because he feels that the government's decision to drop the matter hurts their credibility if they attempt to do this again in the future. I'd take the opposite tact. I think SCOTUS won't uphold this 4th circuit opinion, and that the government will forever loose the ability to make the argument they are making if this case is actually heard by SCOTUS. I think they wanted this vacated so they could leave open the possibility of doing this in the future. I don't understand how you could possibly see this differently...

Because we believe that the transfer of Padilla and the withdrawal of our opinion at the government’s request while the Supreme Court is reviewing this court’s decision of September 9 would compound what is, in the absence of explanation, at least an appearance that the government may be attempting to avoid consideration of our decision by the Supreme Court...

...For, as the government surely must understand, although the various facts it has asserted are not necessarily inconsistent or without basis, its actions have left not only the impression that Padilla may have been held for these years, even if justifiably, by mistake...

These impressions have been left, we fear, at what may ultimately prove to be substantial cost to the government’s credibility before the courts, to whom it will one day need to argue again in support of a principle of assertedly like importance and necessity to the one that it seems to abandon today.

The Volokh Conspiracy - Luttig to DOJ -- Not So Fast on Padilla:

Mike the Usurper wrote:

Gonzales said that while FISA prohibits eavesdropping without court approval, it makes an exception where Congress "otherwise authorizes." That authorization, he said, was implicit in the authorization for the use of military force in Afghanistan following the Sept. 11 attacks.

If someone would like to explain how NSA doing wiretaps is use of military force, this argument would have a better chance of floating.

The argument is that military actions involve communications intercepts, and so this is just as much the use of force as, say, capturing POW's and transporting them to Cuba, which the administration successfully argued was covered by the AUMF. Congress clearly authorized the President to intercept battlefield communications in Afghanistan. Congress clearly understood that some Al'Q people where in the USA and some might be US citizens....

But, there are problems. The opinion on whether the AUMF covered long term detention of combatants was not unanimous by any means. Conservative lawyers have argued that these intercepts might not be covered. Furthermore, perhaps without considering the implications of this, the Administration had Congress modify the FISA rules in the Patriot Act. This clearly sends a signal that Congress intended those rules to be in effect. Clearly the FISA court has been used for some intercepts. Its really not clear where the Administration determined the line was. (The troubling thing is that the likely answer to that question is that stuff the FISA court would approve got sent to FISA and the other stuff didn't.) It seems difficult to me to accept that domestic civil liberties were lifted by the AUMF without explicit mention from Congress. This is the point Scalia raised in the Hamdi trial that I found resonated with me. Its a big damn assumption.

Frankly, the line is anything but clear. I do not think the Administration should be taking a hard line with Congress about what Congress did or did not authorize. They've also argued that these intercepts are Constitutional regardless of FISA, which is a big line in the sand as it essentially argues that Congress did not have the right to establish FISA in the first place. This is a radical legal position that is very vulnerable. If I were the President I'd have addressed this in a more conservative way, explaining that my lawyers agreed that this was OK due to the AUMF and allowing that the matter will be reconsidered with broader Congressional outreach.

Declaring war on Congress, while simultaneously exclaiming that the dialog itself threatens national security, has the paradoxical effect of raising the profile of the issue, requiring Congress to react, and making you look like you're trying to cover up a crime by shaming people for discussing it openly. This doesn't seem like a shrewd reaction, and it leaves Congress with little choice but to drop the matt... [ Read More (0.2k in body) ]

RE: Bush Defends Eavesdropping Program

Gas prices shot up, consumer confidence fell;
Americans feared we were on a fast track to…well…
Wait--- we need a distraction--- something divisive and wily;
A fabrication straight from the mouth of O’Reilly
We can pretend that Christmas is under attack
Hold a vote to save it--- then pat ourselves on the back;

Dingell’s HOLIDAY Jingle for O’Reilly and House GOP (12-14-05)

Cryptic inside the beltway gossip.

ABC News: The Note: Rooting Interest