Motley Moose – Archive

The New York Times reports that the liaison of Chief Justice John Roberts, Judge John Bates, penned a letter to Senate Intelligence Committee chairwoman Dianne Feinstein:

In a letter made public on Tuesday, Judge John D. Bates urged Congress and President Obama to not alter Chief Justice John G. Roberts Jr.’s unilateral power to select which judges will sit on the court, or to create a public advocate with “independent authority to intervene at will” in the court’s cases to provide adversarial views to the Justice Department’s briefs.

Perhaps the most chilling aspect of the letter, beyond the clear desire to keep power in the hands of the chief justice, is the argument that the primary concern should be the ability of the court to function with ease rather than preserve rights and raise constitutional issues.  On the idea of a public advocate The Times notes:

Giving such an official freestanding ability to intervene at will, [Bates] wrote, even when the judges are not interested in hearing from him, could be disruptive to their work.

Chemical weapons are a terrible thing.  I disagree with the assertion that dead is dead.  They are a torturous method of killing innocent civilians.  They cause civilians to die a gruesome and slow death.  Those that survive are permanently disfigured.  With conventional weapons, yes, they leave the person dead, but they tend to be considerably quicker in bringing about that death.

In the modern era of warfare, militaries can effectively protect soldiers against their use.  That leaves them as nothing more than a weapon of civilian murder – a weapon that kills slowly and gruesomely.  A strong moral argument exists that when such weapons are used, the world has a responsibility to take those actions necessary to prevent their further use and punish the perpetrators.  This can include military action.

At the same time, war is war and we should not enter it without serious discussion (the exception being in response to a military attack; think Pearl Harbor and us declaring war on Japan the next day).  What happened with the Iraq war represented a severe failure of this process and we cannot afford a repeat of that hear.  We need to see the evidence put out there.  We need to have the discussion.  We need to enter this with our eyes open.  Remember, even limited strikes put our men and women in uniform in the line of danger and cost us money in a time when we really don’t have the money to spare – especially on another war.

Let me start out with words advanced by both Justice Robert Jackson (chief American prosecutor at Nuremberg) and Justice Arthur Goldberg (U.N. Ambassador during the Johnson Administration after leaving the Court):  The Constitution is not a suicide pact.

The premise of that statement is quite simple.  Despite what we might like to think, there is no such thing as an absolute right.  Rights end when they bring harm upon, and conflict with the rights of, others.  For example, if your religion calls for you to go out and assault one person every day you will not be able to claim freedom of religion as a defense in the subsequent criminal trial.  Instead, you will be convicted and, depending upon the severity and frequency, be sentenced to a term of incarceration.

This same premise holds true when it comes to national security and the responsibility of our government to keep American citizens safe.  To start with, it must be asked what is the primary purpose behind the government action in question?  Is it a standard criminal investigation with the ultimate of bringing a prosecution?  Is it an attempt to collect intelligence to thwart a terrorist attack directed at United States citizens or at American soldiers?

The distinction between the two might not seem particularly important, but it actually is of the utmost importance.  The former instance is exactly what the Fourth Amendment was designed to for to limit government power.  Much of our Bill of Rights is inspired by (and lifted from) the English Bill of Rights, acceptance of which was a condition of William and Mary taking the throne.  Another was the old English maxim that demonstrated the power of government to squelch dissent:

The greater the truth, the greater the libel.

The latter, especially because it comes to matters of national security, affords the government some degree of greater deference, although not absolute deference.

Last week there was report after report about a supposed bombshell with respect to NSA surveillance and data collection operations against Americans on American soil.  There is a major problem with those reports:  It seems much of that early reporting was wrong.  Bob Cesca at The Daily Banter summarizes it thusly:

To summarize, yes, the NSA routinely requests information from the tech giants. But the NSA doesn’t have “direct access” to servers nor is it randomly collecting information about you personally. Yet rending of garments and general apoplexy has ruled the day, complete with predictable invective about the president being “worse than Bush” and that anyone who reported on the new information debunking the initial report was and is an Obamabot apologist.

That, of course, is not really the end, but only the beginning.

Let us put aside for the moment that not only did most of you not have any qualms about such surveillance during the Bush Administration.  Let us also put aside that during those years you not only lacked any qualms, but also supported it and questioned anyone that disagreed with you over it.  Let us assume, for purposes of argument, that this is genuine concern rooted in privacy issues and not rooted in politics.

President Obama has made clear that members of Congress have been briefed on this issue.  Therefore, if you are truly concerned, and you truly believe that the public had a right to know what was happening, there is a simple solution that was available to you the moment you found out.  What is that solution?

Read everything you know about the surveillance programs into the Congressional Record.

This could be done through an actual speech on the floor of the House or the Senate.  This could be done through a speech in committee.  This could be done by moving to insert the full text of what you have into the Congressional Record.  There are all sorts of ways to do this and with its insertion it would enter the public domain.

Now you’re probably thinking that you could get in serious amounts of trouble, and go to prison for a long time, for what is effectively leaking highly classified information.  You couldn’t be more wrong.  See, that Constitution you claim to hold so dear, and you claim you know pretty much inside and out, protects you pretty much absolutely if you had chosen to go this route.  I direct your attention to Article I, Section 6, Clause 1:

Senators and Representatives…  for any speech or debate in either House, they shall not be questioned in any other place.

This is a grant of congressional immunity for your speeches in Congress and your insertions into the Congressional Record.  In fact, this is how Sen. Mike Gravel (D-Alaska) helped ensure that the Pentagon Papers would enter the public domain.  A subsequent case held that this protection also extends to congressional aides for conduct for which a representative or senator would be immune from prosecution.

So, there you have it Republicans.  If you were so concerned about this matter, and you truly believed that the public had the right to know, rather than just as part of an attempt to create a scandal, there was a way open for you to raise your concerns and inform the public.  This way was created in the Constitution and is now nearly 226 years old.  Furthermore, it has been used before.  With all the constitutional scholars you claim to have, I’m surprised you never thought of this before.

Crossposted from the Forward on Climate blogathon at Daily Kos. There is a schedule of diaries and info about the blogathon at the end of the DK diary.

This week, we’ve had an impressive crop of diaries about the Keystone XL project — an pipeline that hooks us more deeply into one of the more damaging fossil fuel extractions we’ve ever seen. Selling oil from the tar sands promises to make Canada a player in the fossil fuel game…

Margaret Atwood, a Canadian, who recently observed that Canadians with The Tar Sands are Hobbits with The Ring. All of the riches in the world belong to he who holds that power. What Canada decides to do with the tar sands will affect energy policy for most of the next century.

With that against all of us — we who want to slow the rate we are pulling carbon out of the ground and putting it into the sky — there are few things we can control directly about Canada’s decision to mine the tar sands. What we can do is address the horse apples. Slowing the process enough could grind it to a halt. Slowing the process will have an impact.

For today’s horse apple, let’s have a few words about what happens when we try to regulate novel energy technology.

While I have made quite clear my passionate support for the democratic revolutions throughout the Arab World, and my firm belief that UN Security Council Resolution is vital to protect the people of Libya from a ruthless armed dictator, let me just be clear that I will not support any Neo-Con takeover of the international mission.

There are already signs of this happening in the UK; with the military Chiefs at odds with the Prime Minister on the UN mandate over targeted assassinations and regime change. Add to this the optics of Tomahawk missiles and Pentagon briefings, and we have uncanny and worrisome echoes of the Iraq War, which finally – almost fatally –  hi-jacked UN principles of humanitarian intervention for Neo-colonialist Neo-conservative ends. The abiding message of the multinational force assembled  should be….

To allow the Libyan people their rights of self determination.

There’s a reason Jon Stewart is the most trusted name in news. It’s not just because he rips on Republicans on a regular basis; rather, it’s because he points out failings and inconsistencies in both parties and amongst people all along the political spectrum. While I was disappointed that he didn’t stick it properly to John Yoo a couple of nights ago, he has done some stellar interviews that should make any halfway objective pundit or broadcaster proud. But despite his willingness to take down hypocrites and liars in both parties, it does often seem that his scathing satire more frequently targets Republicans — but not without reason.

As surely as facts have a liberal bias, hypocrisy has a conservative one. Let me be clear: This is not to say that Democrats (and truly, politicians in general) cannot be hypocrites. But when it comes to flagrant, vile, in-your-face, hysterical, mind-boggling hypocrisy, the Grand Old Party takes the cake. You know, the kind of hypocrisy that makes your head ache and pound near to the point of imminent explosion and your blood pressure skyrocket so quickly you get dizzy spells that rival those brought on by a strong, expensive dose of…