Revenge of the Liberal Bureaucrats, by Hans A. von Spakovsky
A new report on Bush administration hiring practices at Justice.
The Weekly Standard, Jan 23, 2009
JUSTICE DEPARTMENT INSPECTOR GENERAL Glenn Fine, himself a political appointee in the Clinton administration, has released his report on the supposed "illegal" political hiring at the Civil Rights Division of George W. Bush's Department of Justice. [Full disclosure: I served four years as a career lawyer in CRD during the Bush era -- apparently to little notice since the report barely mentions me in passing.] Fine issued the report just days before Attorney General nominee Eric Holder's confirmation hearing. That timing seemed aimed at providing maximum political benefit to Fine's fellow Democrats.
The political left, which never seems to tire of attacking the Bush Justice Department as corrupt, greeted the report with glee. But a dispassionate read can produce only sadness -- sadness that an official report can be so thickly laced with bias, inaccuracies, gross exaggerations, and deliberate misrepresentations of both facts and the law. It is also sad that the biases of those producing the report prevented them from highlighting the blatant examples of ideologically-driven hiring that occurred at Justice when Eric Holder was the Deputy Attorney General.
The report unintentionally demonstrates that what really upset Washington's Liberal Establishment was its temporary loss of power at the CRD. Activist special interests had exercised exclusive control over the Civil Rights Division for decades -- especially with respect to its hiring practices. When that rein was briefly interrupted by outsiders determined to enforce the laws as they are written, the old regime found the situation intolerable.
The Bias of the Report's Authors
The New York Times identifies Fine and Marshall Jarrett, the head of the Office of Professional Responsibility (OPR), which helped prepare the report, as "two veteran Justice Department watchdogs." Yet the OPR lawyer Jarrett assigned to conduct the investigation, Tamara Kessler, is a liberal former Civil Rights Division lawyer who actually worked alongside many of the leading critics identified in the report. Equally incredible, one of the Inspector General's lawyers assigned to probe the hiring practices of former Deputy Assistant Attorney General Brad Schlozman, was none other than Mark Masling, also a former Civil Rights Division attorney and self-proclaimed "proud Democrat." In other words, there was never even any pretense of neutrality, distance, or objectivity. One would think that two "veterans" like Fine and Jarrett would recognize the importance of avoiding personal bias and the basic conflict of interest in having liberal former CRD career lawyers investigating the hiring of CRD career lawyers. Yet both overlooked or deliberately ignored this obvious impropriety.
The bias exhibited by Fine and Jarrett should not surprise. Consider their history in investigating (or, more accurately, ignoring) misconduct by career Civil Rights Division attorneys. Every lawyer knows, for example, that one of the worst things you can do professionally is to reveal the confidences of your client and the legal advice you have provided. Yet when liberal career lawyers leaked internal, privileged memoranda to the media and the Congress on cases like the Texas congressional redistricting and the Georgia voter ID law, Fine and Jarrett exhibited no interest whatsoever in scrutinizing these offenses. (The leakers, of course, complained bitterly about ideological hiring, which is perfectly legal.) The same was true when a particularly strident liberal attorney in the Division -- while still employed there -- contacted the target of an investigation and offered to represent that jurisdiction following his departure! That is an absolute violation of the professional code of conduct. When "watchdogs" repeatedly reveal a history of applying what seems to be a politically oriented one-way ratchet, one cannot expect fairness in their report.
The Skewed Report
The report issued by Fine and Jarrett reads more like a work of fantasy than a sober investigation. For example, the report claims that Schlozman hired only two "Democrats or liberals" during his tenure in the Civil Rights Division. This is utter nonsense. As at least a few media outlets grudgingly acknowledged, Schlozman provided the Inspector General Special Agent on the case a list of more than 25 individuals that he, Schlozman, knew were ideologically liberal or committed Democrats and who he had hired into line attorney or supervisory positions during his tenure in the Division.
Yet Fine and Jarrett rebuffed Schlozman's request that they include this information in the report. Instead, they opted to libel him, apparently to stir up Democratic hostility and thereby pursue their transparently political ends. The Schlozman list squarely rebuts the report's allegation of a political litmus test in hiring. The fact that such critical information was omitted demonstrates emphatically that Fine and Jarrett knowingly and deliberately misrepresented the facts to bolster their false and pre-determined findings.
The report also faults Schlozman for hiring 63 lawyers who were "Republican or conservative." As a threshold matter, the unstated (but quite clear) implication of this point is that conservative attorneys are somehow less qualified than liberal attorneys to work in the Civil Rights Division. I have no doubt that many of the Department's employees genuinely believe this. Perhaps this is why the Division has such a well-deserved reputation as a refuge of the radical left and why a virtual "No Vacancy" sign has historically been posted for any conservative who dared seek employment there.
Of course, in a Division known for its zealous enforcement of racial preferences and general hostility to law enforcement, it is unlikely that many conservatives even wanted to work in the Division prior to the Bush administration. So the fact that a significant number of conservatives came on board only after 2000 shouldn't be a shock to anyone.
When I was hired as a career lawyer in 2001 (two years before Schlozman even arrived), I was greeted with unrelenting hostility by the career staff once they discovered that I had a conservative philosophy and had been active as a volunteer in the Republican party. I was one of just two conservatives in the entire Voting Section, which had more than 80 lawyers and support staff. It was made crystal clear to me that the attorneys and staff considered anyone with a conservative ideology to be unqualified to work as a career civil servant, and they were absolutely furious that, despite their usual screening efforts, I had been hired.
This attitude was prevalent throughout the entire Division of almost 750 people. I mention this because, even if the claim about the 63 lawyers is correct and even if all such individuals remained today (which they clearly do not), it would mean that about 8 percent of the employees in Civil Rights today are conservatives. Yet even that 8 percent gives liberals such angst that trumped up inquiries are necessary.
It is hardly a secret that, until Ralph Boyd, the first Bush Assistant Attorney General for Civil Rights, changed the hiring procedures in 2001, the liberal career managers (many of whom have complained the loudest) made sure that no conservative applicants for career positions were hired. Searching for a conservative in the Civil Rights Division prior to 2001 was like Diogenes searching for an honest man in ancient Greece. The Inspector General and Office of Professional Responsibility were provided evidence of this discrimination during their investigation, but they were not interested in examining the hiring practices of the pre-Bush era. The one-way political ratchet once again.
It's a shame that Fine and Jarrett refused to look at the past. Few may know, for example, that on December 12, 2000, when Eric Holder was the Acting Attorney General and the Supreme Court issued its decision in Bush v. Gore, the Clinton political appointees realized that Democrats would lose control of the Justice Department. At that time, there were more than two dozen open career lawyer positions in the Civil Rights Division. In a federal government that usually takes months to fill career positions, the Clinton appointees (spearheaded by Acting Assistant Attorney General Bill Yeomans, now chief counsel to Sen. Ted Kennedy) filled all of those positions before Inauguration Day!
Every one of those hires was a liberal or a Democrat and, based on Yeomans emails, was sure to be "loyal." Based on what I saw when I arrived in the Division, this same hiring pattern had clearly been practiced during all eight years of the Clinton administration. Indeed, I cannot identify a single conservative who had been hired during the Clinton years. Neither Fine nor Jarrett ever expressed any interest in investigating this blatant "political" hiring either.
Naturally, Fine and Jarrett relied heavily on these same liberal partisans/career attorneys in preparing their deceptive report. It's not like these "witnesses" are beyond reproach. In fact, one of the primary attorneys cited in the report is a defendant in a federal discrimination lawsuit. Her reputation for verbally abusing her staff is legendary (or infamous) in the Division and her exploits have been chronicled on the blog, "Above the Law." One of the Appellate Section attorneys who figured prominently in the report -- a Clinton political appointee who burrowed into the career civil service and then claimed she was victimized by the Bush political appointees -- was promoted to a policymaking counsel position in the Division's new front office on the very first day of the Obama Administration. This is a slot normally reserved for political appointees. You just can't make this stuff up.
Admittedly there were some insensitive comments in some of the emails cited in the report and some inappropriate humor, too. But the report blows them out of proportion. Schlozman was too brash at times and could have chosen his words more wisely. But it is obvious to anyone who knows him -- and it should be transparent to rational individuals who do not know him -- that Schlozman was simply engaging in the type of e-mail humor and rhetorical banter that many in Washington (and much of the country for that matter) participate on a daily basis. The poor jokes don't establish that hiring improprieties occurred, and seem to be offered more to poison the well.
Flawed Legal Analysis
The report is also simply wrong in its legal analysis. It wrongly conflates political affiliation with ideology. It mistakenly claims that hiring on the basis of "ideology" is illegal under the Civil Service Reform Act (CSRA). There is absolutely no case law to support such an interpretation, nor would it make sense for there to be.
What is illegal under the CSRA is hiring on the basis of "political affiliation," which is not at all the same as ideology. In fact, the single appellate opinion cited in the report emphasizes that only political affiliation is an illegal consideration. Of the more than 200,000 emails the report claims were reviewed, investigators reference not a single one that showed that any individual was hired or fired for a career attorney position because of his or her political affiliation as a Republican or a Democrat. The only emails highlighted in the report are emails in which comments were made regarding individuals' ideologically liberal or conservative views of the law.
This is not to say that all ideologies are acceptable. The Inspector General or Office of Professional Responsibility would certainly not find any wrongdoing if the Civil Rights Division refused to hire an otherwise qualified lawyer who was an avowed racist (or who refused to follow the Brown v. Board of Education decision). It would be eminently appropriate to discriminate against such an individual -- based on his ideology -- because he could not be trusted to properly enforce the panoply of anti-discrimination statutes falling with the Division's bailiwick. Such consideration is not only legal, but it is often quite necessary in a Division where the opportunity to abuse the federal government's enforcement authority is so significant and where the historical evidence of such abuse is so acute.
Political ideology can also have significant consequences in litigation policy. When liberal career lawyers had free rein during the Clinton administration, the Division was penalized over $4.1 million in costs and attorneys' fees for pursuing frivolous, vexatious, and unwarranted litigation. That's $4.1 million of your taxpayer dollars. This figure is not the least bit surprising based on my experience. I found that many of the career lawyers in the Civil Rights Division gave grossly flawed legal positions in which they sought to expand the statutes within the Division's jurisdiction far beyond their lawful reach. Too many of these attorneys allowed their political views to permeate their legal judgment and to override their professionalism. The conduct of some may have been unintentional, but others were simply partisan advocates masquerading as career civil servants.
I shook my head in agreement -- as did many others I know -- when I read an email cited in the report where Schlozman lamented about certain Criminal Section prosecutors who were "big libs [who] would enforce certain of our statutes only with great reluctance." Schlozman was almost certainly referring to the fact that the Division had problems with career lawyers in its Criminal Section who resented the Division's dedication of substantial resources towards human trafficking cases over police misconduct cases, or who refused to pursue death penalty cases based on their personal opposition to capital punishment. The bottom line is this: lawyers are tasked with zealously representing their clients and pursuing cases -- within the limits of the law -- whether or not the lawyers like their clients or agree with their positions.
Too many of the liberal career staff simply refused to follow those precepts. When the Voting Section commenced its first case against black officials in Noxubee, Mississippi, for discriminating against white voters, some liberal career lawyers weren't just reluctant to work on the case, they refused to work -- despite evidence of blatant and intentional discrimination. In fact, the career section chief sought to suppress the lawsuit recommendation and would have been successful but for a diligent line attorney who advised the front office of the chief's duplicity. The Section won its discrimination case, but the line attorney was ostracized by other career lawyers.
During my time in the Division I saw more than one memorandum where liberal lawyers would leave out key facts, misrepresent applicable case law, and otherwise manipulate their legal opinions to match their political views -- all because they did not agree with the Division's priorities. For example, they did not believe in enforcing a section of the National Voter Registration Act that requires election officials to regularly clean up or "purge" their voter rolls of ineligible voters who have died or moved away. Six liberal career lawyers were so upset when the first NVRA enforcement case was filed, they tried to use my involvement in that litigation to block my nomination to the FEC. They just could not tolerate that we had dared to override their refusal to enforce this federal legal requirement.
It was those kinds of attitudes and those kinds of actions that no doubt led Brad Schlozman to seek to hire individuals who, regardless of their own personal politics, would actually enforce the law according to the policy determined by the administration. Why would he want left-wing ideologues who would try to stop or sabotage such enforcement efforts?
The painfully partisan IG report gives the liberal career lawyers who overwhelmingly populate the Civil Rights Division their revenge against the Bush administration. Now they can go back to running things the way they always have -- at the beck and call of the Democratic party and radical left-wing civil rights organizations.
And for all of the Inspector General's railings against so-called "political hiring," don't bother applying to the Civil Rights Division if you have anything in your background that indicates you are a conservative. You haven't got a chance of being hired by these guys.
Hans A. von Spakovsky is a visiting legal scholar at the Heritage Foundation and a former commissioner on the Federal Election Commission. He was also a career Counsel to the Assistant Attorney General for Civil Rights at the Department of Justice where he worked for all three of the assistant attorney generals who served in the Bush administration.
Thursday, January 22, 2009
Obama's Army of Lobbyists: A new twist on the permanent campaign
Obama's Army of Lobbyists, by Gary Andres
A new twist on the permanent campaign.
The Weekly Standard, Jan 22, 2009 @12:00:00 AM
President Barack Obama's presidential campaign set new standards for success in fundraising, voter mobilization, and Internet political savvy.
But this, of course, is old news.
What's less known is that he is creating one of the largest, most sophisticated lobbying organizations in history -- a new tool to help promote his agenda.
Most believe the transition from campaigning to governing ended on the West Front of the Capitol this week when the new president took the oath of office. Yet President Obama and his electoral architect, David Plouffe, expect to continue and build upon their mobilization efforts. The Bully Pulpit is about to get more crowded, as millions of grassroots voices join together to aid the new president by lobbying lawmakers.
In the months ahead, Obama's followers plan an unprecedented continuation of his electoral machine -- giving new meaning to the term "permanent campaign." Instead of moving his political apparatus into traditional structures, such as the Democratic National Committee or a White House Office of Political Affairs, Mr. Obama will transition many trusted operatives into a new organization hard to differentiate from the old presidential campaign.
Why ruin a good thing?
Last week Mr. Obama announced the formation of "Organizing for America" (insiders call it "Barack Obama 2.0") -- a way to harness the grassroots energy created by his candidacy and use that energy to support his legislative agenda. Plouffe recently told the Washington Post that the organization is something entirely new. And while not a "political campaign" in the traditional sense, they begin with 13 million email addresses, 4 million contributors, and 2 million active volunteers. Other published reports suggest the new entity could have an annual budget of $75 million or more. Not too shabby. Peter Wallsten wrote in the Los Angeles Times last week that it is " widely considered the country's most potent political machine."
Republican activists agree. "It's very impressive and very smart," a long-time Republican National Committee member told me. "It keeps your core constituency energized and informed; it helps with a governing agenda; and it creates a framework for the reelection campaign."
The idea of mobilizing public support for a presidential agenda is not new. Presidential scholar George Edwards writes in his book On Deaf Ears - The Limits of the Bully Pulpit that in 1976 pollster Pat Caddell wrote a memo to President-elect Carter arguing, " governing with public approval requires a continuing political campaign." Edwards also details how President Eisenhower's congressional liaison, Bryce Harlow, argued that opposing the president (due to his broad support) was unpopular and thus caused congressional opposition to melt.
But Barack Obama 2.0 is unprecedented in size and technological sophistication, and it differs structurally from anything tried before. "Normally both parties would use their national committees (DNC or RNC) to engage and mobilize activists to support the president's agenda after an election" the RNC member told me. Organizing it around a person, as opposed to a party, provides new flexibility. It burnishes Obama's post-partisan narrative and unshackles him from any negatives associated with the Democratic party brand among less partisan voters, independents and even Republicans.
Yet the strategy is not without risk. Wallsten also wrote, "The plan could prompt tensions with members of Congress, who are unlikely to welcome the idea of Obama's political network targeting them from within their own districts. Already, Democratic Party officials on the state level worry that it could become a competing political force that revolves around the president's ambitions while diminishing the needs of down-ballot Democrats."
Online media strategist Jon Henke believes the approach might also exacerbate the problems we already see with the "permanent campaign" mentality in American government. Henke told me this: "It is one thing for a politician to claim they are 'empowering' people. It is quite another to actually share policy-making power with them. If Obama genuinely modifies his policies based on their feedback, then he risks being captured by the most vocal, energetic fringe. If he does not genuinely listen and adjust, then he risks alienating the people who thought they'd been empowered."
President Obama faces institutional governing conditions ripe for success. Large majorities in the House and Senate and a solid electoral mandate all point in this direction. But public support for Obama is another key ingredient. And if past is prologue, permanent popularity is not guaranteed. Edwards quotes Lyndon Johnson as saying, "I keep hitting hard because I know this honeymoon won't last. Every day I lose a little more political capital."
But the new president's vision to build and sustain electoral capital earned last November includes a sardonic twist. Obama won in part by promising to end the power of lobbyists in Washington. So it's a little ironic that a candidate who prevailed by decrying the evils of the advocacy world hopes to bolster his presidency by deploying an army of his own lobbyists. And the president may quickly learn another Washington lesson: His legislative success may depend more on quiet negotiation, compromise, and building trust with Congress than mobilizing millions of noisy activists that try to arm-twist renegade lawmakers.
Gary Andres is vice chairman of research at Dutko Worldwide in Washington D.C. and is a regular contributor to THE WEEKLY STANDARD Online.
A new twist on the permanent campaign.
The Weekly Standard, Jan 22, 2009 @12:00:00 AM
President Barack Obama's presidential campaign set new standards for success in fundraising, voter mobilization, and Internet political savvy.
But this, of course, is old news.
What's less known is that he is creating one of the largest, most sophisticated lobbying organizations in history -- a new tool to help promote his agenda.
Most believe the transition from campaigning to governing ended on the West Front of the Capitol this week when the new president took the oath of office. Yet President Obama and his electoral architect, David Plouffe, expect to continue and build upon their mobilization efforts. The Bully Pulpit is about to get more crowded, as millions of grassroots voices join together to aid the new president by lobbying lawmakers.
In the months ahead, Obama's followers plan an unprecedented continuation of his electoral machine -- giving new meaning to the term "permanent campaign." Instead of moving his political apparatus into traditional structures, such as the Democratic National Committee or a White House Office of Political Affairs, Mr. Obama will transition many trusted operatives into a new organization hard to differentiate from the old presidential campaign.
Why ruin a good thing?
Last week Mr. Obama announced the formation of "Organizing for America" (insiders call it "Barack Obama 2.0") -- a way to harness the grassroots energy created by his candidacy and use that energy to support his legislative agenda. Plouffe recently told the Washington Post that the organization is something entirely new. And while not a "political campaign" in the traditional sense, they begin with 13 million email addresses, 4 million contributors, and 2 million active volunteers. Other published reports suggest the new entity could have an annual budget of $75 million or more. Not too shabby. Peter Wallsten wrote in the Los Angeles Times last week that it is " widely considered the country's most potent political machine."
Republican activists agree. "It's very impressive and very smart," a long-time Republican National Committee member told me. "It keeps your core constituency energized and informed; it helps with a governing agenda; and it creates a framework for the reelection campaign."
The idea of mobilizing public support for a presidential agenda is not new. Presidential scholar George Edwards writes in his book On Deaf Ears - The Limits of the Bully Pulpit that in 1976 pollster Pat Caddell wrote a memo to President-elect Carter arguing, " governing with public approval requires a continuing political campaign." Edwards also details how President Eisenhower's congressional liaison, Bryce Harlow, argued that opposing the president (due to his broad support) was unpopular and thus caused congressional opposition to melt.
But Barack Obama 2.0 is unprecedented in size and technological sophistication, and it differs structurally from anything tried before. "Normally both parties would use their national committees (DNC or RNC) to engage and mobilize activists to support the president's agenda after an election" the RNC member told me. Organizing it around a person, as opposed to a party, provides new flexibility. It burnishes Obama's post-partisan narrative and unshackles him from any negatives associated with the Democratic party brand among less partisan voters, independents and even Republicans.
Yet the strategy is not without risk. Wallsten also wrote, "The plan could prompt tensions with members of Congress, who are unlikely to welcome the idea of Obama's political network targeting them from within their own districts. Already, Democratic Party officials on the state level worry that it could become a competing political force that revolves around the president's ambitions while diminishing the needs of down-ballot Democrats."
Online media strategist Jon Henke believes the approach might also exacerbate the problems we already see with the "permanent campaign" mentality in American government. Henke told me this: "It is one thing for a politician to claim they are 'empowering' people. It is quite another to actually share policy-making power with them. If Obama genuinely modifies his policies based on their feedback, then he risks being captured by the most vocal, energetic fringe. If he does not genuinely listen and adjust, then he risks alienating the people who thought they'd been empowered."
President Obama faces institutional governing conditions ripe for success. Large majorities in the House and Senate and a solid electoral mandate all point in this direction. But public support for Obama is another key ingredient. And if past is prologue, permanent popularity is not guaranteed. Edwards quotes Lyndon Johnson as saying, "I keep hitting hard because I know this honeymoon won't last. Every day I lose a little more political capital."
But the new president's vision to build and sustain electoral capital earned last November includes a sardonic twist. Obama won in part by promising to end the power of lobbyists in Washington. So it's a little ironic that a candidate who prevailed by decrying the evils of the advocacy world hopes to bolster his presidency by deploying an army of his own lobbyists. And the president may quickly learn another Washington lesson: His legislative success may depend more on quiet negotiation, compromise, and building trust with Congress than mobilizing millions of noisy activists that try to arm-twist renegade lawmakers.
Gary Andres is vice chairman of research at Dutko Worldwide in Washington D.C. and is a regular contributor to THE WEEKLY STANDARD Online.
Consistent With Chronicles, Antarctic Edition
Consistent With Chronicles, Antarctic Edition. By Roger Pielke, Jr
Prometheus, January 21st, 2009
Excerpts:
An new paper is out in Nature that argues that the Antarctic continent has been warming. In an AP news story, two of its authors (one is Michael Mann from the Real Climate blog) argue that this refutes the skeptics and is “consistent with” greenhouse warming:
“Contrarians have sometime grabbed on to this idea that the entire continent of Antarctica is cooling, so how could we be talking about global warming,” said study co-author Michael Mann, director of the Earth System Science Center at Penn State University. “Now we can say: no, it’s not true … It is not bucking the trend.”
The study does not point to man-made climate change as the cause of the Antarctic warming — doing so is a highly intricate scientific process — but a different and smaller study out late last year did make that connection.
“We can’t pin it down, but it certainly is consistent with the influence of greenhouse gases,” said NASA scientist Drew Shindell, another study co-author. Some of the effects also could be natural variability, he said.
Of course, not long ago we learned from Real Climate that a cooling Antarctica was “consistent with” greenhouse warming and thus the skeptics were wrong:
. . . we often hear people remarking that parts of Antarctica are getting colder, and indeed the ice pack in the Southern Ocean around Antarctica has actually been getting bigger. Doesn’t this contradict the calculations that greenhouse gases are warming the globe? Not at all, because a cold Antarctica is just what calculations predict… and have predicted for the past quarter century. . .
. . . computer models have improved by orders of magnitude, but they continue to show that Antarctica cannot be expected to warm up very significantly until long after the rest of the world’s climate is radically changed.
Bottom line: A cold Antarctica and Southern Ocean do not contradict our models of global warming. For a long time the models have predicted just that.
So a warming Antarctica and a cooling Antarctica are both “consistent with” model projections of global warming. [...]
Prometheus, January 21st, 2009
Excerpts:
An new paper is out in Nature that argues that the Antarctic continent has been warming. In an AP news story, two of its authors (one is Michael Mann from the Real Climate blog) argue that this refutes the skeptics and is “consistent with” greenhouse warming:
“Contrarians have sometime grabbed on to this idea that the entire continent of Antarctica is cooling, so how could we be talking about global warming,” said study co-author Michael Mann, director of the Earth System Science Center at Penn State University. “Now we can say: no, it’s not true … It is not bucking the trend.”
The study does not point to man-made climate change as the cause of the Antarctic warming — doing so is a highly intricate scientific process — but a different and smaller study out late last year did make that connection.
“We can’t pin it down, but it certainly is consistent with the influence of greenhouse gases,” said NASA scientist Drew Shindell, another study co-author. Some of the effects also could be natural variability, he said.
Of course, not long ago we learned from Real Climate that a cooling Antarctica was “consistent with” greenhouse warming and thus the skeptics were wrong:
. . . we often hear people remarking that parts of Antarctica are getting colder, and indeed the ice pack in the Southern Ocean around Antarctica has actually been getting bigger. Doesn’t this contradict the calculations that greenhouse gases are warming the globe? Not at all, because a cold Antarctica is just what calculations predict… and have predicted for the past quarter century. . .
. . . computer models have improved by orders of magnitude, but they continue to show that Antarctica cannot be expected to warm up very significantly until long after the rest of the world’s climate is radically changed.
Bottom line: A cold Antarctica and Southern Ocean do not contradict our models of global warming. For a long time the models have predicted just that.
So a warming Antarctica and a cooling Antarctica are both “consistent with” model projections of global warming. [...]
Media reactions the day after inauguration
Media reactions the day after inauguration:
1 Kids Around the World on ABC: Obama Means 'Peace' & 'Yes We Can!'
ABC's World News on Wednesday night used limited news time to feature a silly piece with soundbites from naive kids around the world sputtering beauty pageant-like simplicities about how President Barack Obama will bring "world peace" and inspires them to say "yes, we can!" Reporter Jim Sciutto touted how "we heard children around the world expressing hope and fascination with the new American President." Viewers heard a boy in Russia yearn for "peace, democracy and friendship" and a girl in the United Arab Emirates assert "he's interested in giving peace to the world and stopping wars," all before a boy from Indonesia promised: "He's going to change the world and make world peace." From Gaza, a kid hoped Obama will "prevent Israel from attacking us." From Pakistan, Sciutto relayed, "hope for an American President with a Muslim father." A boy then wished "he can make the citizens of the U.S. recognize that we, not all Muslims are terrorists and not all terrorists are Muslims." And what story on foreign reaction would be complete without input from France? A French girl: "I think that he may stop the war in Iraq. At least I hope he will."
2 ABC's GMA Touts Kids to Obama: Stop the Wars! Save the Earth!
Good Morning America on Wednesday featured video messages from young children to Barack Obama. GMA news anchor Chris Cuomo asserted that the kids, ranging in age from seven to 17, had "strong opinion[s]." Yet, every single one of these youths spouted the type of liberal propaganda usually reserved for people like Keith Olbermann and not one conservative voice was featured. One young boy sputtered: "Stop the wars. And because more people die. And it's just, they don't want to die. They just die. But they don't want to die." Another child, who couldn't have been older than seven, bizarrely informed: "All this time, I've been alive, I've been having white presidents. And I think now, it's, this is my chance to have a black president." One boy incorrectly wondered: "And how come people who earn millions of dollars pay less taxes than us middle-class people?" A regulation-minded girl pleaded: "I want you to make people stop littering because our Earth is dying." Of course, this pleased liberal weatherman Sam Champion, who sat next to Cuomo. After the segment, he approved: "You heard global warming and trees and recycling. That's great. That's great."
3 CBS's Harry Smith: Obama Inauguration a 'Sacred Event'
At the end of Wednesday's CBS Early Show, co-host Harry Smith reflected on Barack Obama's inauguration: "Politics, and patriotism, and the presidency. It is the place where the secular and the religious merge. And one of the sacraments of our national religion is the inauguration...So it was that as many as 2 million pilgrims made their way to Washington and the Mall to witness this most sacred event." Smith continued to use religious language throughout the report: "As the oath was recited, as the speech was delivered...emotions were laid bear. Tears were shed...An inauguration is a renewal of faith...A confirmation that the republic, and our belief in it, endures."
4 Lee Cowan: Obama Inaugural Like Being in a 'Political Cathedral'
On Monday's inauguration edition of the NBC Nightly News, well known Obama fan Lee Cowan made no effort to restrain his fawning over the new President, likening the experience of watching the Democrat's speech to being in a "political cathedral." After featuring clips of people viewing the address all over the country, Cowan cooed: "In the end, though, it really didn't matter where you were as long as you weren't alone." He added: "Just ordinary street corners like this one here in Chicago fell silent, almost becoming a political cathedral of sorts."
5 CNN's John Roberts Dubs Inaugural Crowds 'Barack-Sstock'
During a short segment on Wednesday's American Morning, CNN anchor John Roberts responded to the excited demeanor of the crowds attending President Barack Obama's inauguration by labeling the festivity "Barack-stock." Earlier in the segment, correspondent Carol Costello dubbed it "a gigantic love fest" after she stated there were no serious incidents or arrests involving the approximately 1.5 million people in attendance for the inauguration. The three-minute segment, which began 20 minutes into the 7 am Eastern hour of the CNN program, focused on the reactions of those in attendance on the National Mall for the swearing-in of President Obama. After giving her "gigantic love fest" label, Costello gave a gushing account about what it was like to be in the middle of the crowd there: "Suddenly, someone would just come up and hug you. It was just amazing. It was -- it was like you were standing in the middle of these strangers, and all of a sudden, you had a million friends around you. That's what it felt like yesterday."
6 George Stephanopoulos Recites Dem Talking Points on Economy
This Week host George Stephanopoulos appeared on Wednesday's Good Morning America to claim that the stock market's 330 point drop on Inauguration Day was not an indictment of Obama but indicated the need for a swift confirmation of Timothy Geithner as Treasury Secretary. Stephanopoulos, a former top Democratic aide, asserted: "The reason they want to get Geithner confirmed and in place so quickly, they want to have a complete overhaul of this financial rescue package within days." According to Stephanopoulos, Geithner, who faces questions for not paying $34,000 in taxes since 2001, has "run into a little bit of trouble" on the topic. GMA co-host Diane Sawyer prompted the ABC anchor to tout more Democratic spin when she asked, "But every president wants his first day to have a sentence, a headline. What is the sentence beneath the meetings [Obama is having on Wednesday]?" Stephanopoulos helpfully retorted, "Help is on the way, I think is the sentence."
7 Chris Matthews: 'Does Rush Limbaugh Hate This Country?'
On Wednesday's Hardball, Chris Matthews questioned Rush Limbaugh's patriotism, as the MSNBC host wondered how the radio talk show host could dare to oppose Barack Obama as he exclaimed to his viewers: "Does Rush Limbaugh hate this country?" Matthews jumped on a quote from Limbaugh saying of Obama: "I hope he fails," apparently not understanding the concept that Limbaugh opposes any and all who would promote liberal policies precisely because he believes they will be harmful to the country. Matthews slammed Limbaugh in the following tease before going to a commercial break: "Up next, does Rush Limbaugh hate this country? Wait till you hear what he said about the new president. He wants him to fail. What an amazing-, I've never heard anybody say they wanted a new president to fail. Usually you want the new president to succeed and then later on you argue the politics of what he or she does. But to want them to fail at the outset? What's that about?"
8 NBC's Roker Jabs Matthews and Olbermann for Obama Infatuation
During Tuesday's inauguration coverage on MSNBC, the Today show's Al Roker poked fun at co-anchors Chris Matthews and Keith Olbermann as the NBC weather man, on location at the inaugural parade site, appeared with the MSNBC duo and joked that Matthews "got that tingle down his leg" because Obama looks good without a shirt. Discussing the admiration that so many young people feel for Obama, Roker declared: "It doesn't hurt...that he's a good-looking guy!...This is a guy, this is a President who can take his shirt off, you know. I mean, if I take my shirt off, people are running and screaming. You know, that's, so I think it's just an exciting, exciting time. And I know that's why Chris got that tingle down his leg!" After Matthews tried to go along with Roker's jovial mood by quipping that "we tingle up the leg, okay? It is a big freakin' difference. And don't you forget about it, buddy," Olbermann set himself up to receive a jab as well, as he joked that "it's left to me to be the referee." Roker, presumably referring to Olbermann's penchant for delivering outlandish tirades on his Countdown show, shot back: "And what does that say, if Keith Olbermann is the referee, Keith Olbermann is the voice of reason?"
9 Wash Post Emphasizes Critics In Obit of 'Media Elite' Co-Author
Tuesday's Washington Post obituary for Linda Lichter, co-author of the groundbreaking 1986 book documenting the liberal tilt of the mainstream media, The Media Elite, pettily devoted more paragraphs to critics assailing Lichter's work than explaining what she and her husband documented and its lasting importance -- affirming the old saying, "Never pick a fight with people who buy ink by the barrel." Reporter Adam Bernstein: "The book became widely cited but was harshly criticized by media leaders."
1 Kids Around the World on ABC: Obama Means 'Peace' & 'Yes We Can!'
ABC's World News on Wednesday night used limited news time to feature a silly piece with soundbites from naive kids around the world sputtering beauty pageant-like simplicities about how President Barack Obama will bring "world peace" and inspires them to say "yes, we can!" Reporter Jim Sciutto touted how "we heard children around the world expressing hope and fascination with the new American President." Viewers heard a boy in Russia yearn for "peace, democracy and friendship" and a girl in the United Arab Emirates assert "he's interested in giving peace to the world and stopping wars," all before a boy from Indonesia promised: "He's going to change the world and make world peace." From Gaza, a kid hoped Obama will "prevent Israel from attacking us." From Pakistan, Sciutto relayed, "hope for an American President with a Muslim father." A boy then wished "he can make the citizens of the U.S. recognize that we, not all Muslims are terrorists and not all terrorists are Muslims." And what story on foreign reaction would be complete without input from France? A French girl: "I think that he may stop the war in Iraq. At least I hope he will."
2 ABC's GMA Touts Kids to Obama: Stop the Wars! Save the Earth!
Good Morning America on Wednesday featured video messages from young children to Barack Obama. GMA news anchor Chris Cuomo asserted that the kids, ranging in age from seven to 17, had "strong opinion[s]." Yet, every single one of these youths spouted the type of liberal propaganda usually reserved for people like Keith Olbermann and not one conservative voice was featured. One young boy sputtered: "Stop the wars. And because more people die. And it's just, they don't want to die. They just die. But they don't want to die." Another child, who couldn't have been older than seven, bizarrely informed: "All this time, I've been alive, I've been having white presidents. And I think now, it's, this is my chance to have a black president." One boy incorrectly wondered: "And how come people who earn millions of dollars pay less taxes than us middle-class people?" A regulation-minded girl pleaded: "I want you to make people stop littering because our Earth is dying." Of course, this pleased liberal weatherman Sam Champion, who sat next to Cuomo. After the segment, he approved: "You heard global warming and trees and recycling. That's great. That's great."
3 CBS's Harry Smith: Obama Inauguration a 'Sacred Event'
At the end of Wednesday's CBS Early Show, co-host Harry Smith reflected on Barack Obama's inauguration: "Politics, and patriotism, and the presidency. It is the place where the secular and the religious merge. And one of the sacraments of our national religion is the inauguration...So it was that as many as 2 million pilgrims made their way to Washington and the Mall to witness this most sacred event." Smith continued to use religious language throughout the report: "As the oath was recited, as the speech was delivered...emotions were laid bear. Tears were shed...An inauguration is a renewal of faith...A confirmation that the republic, and our belief in it, endures."
4 Lee Cowan: Obama Inaugural Like Being in a 'Political Cathedral'
On Monday's inauguration edition of the NBC Nightly News, well known Obama fan Lee Cowan made no effort to restrain his fawning over the new President, likening the experience of watching the Democrat's speech to being in a "political cathedral." After featuring clips of people viewing the address all over the country, Cowan cooed: "In the end, though, it really didn't matter where you were as long as you weren't alone." He added: "Just ordinary street corners like this one here in Chicago fell silent, almost becoming a political cathedral of sorts."
5 CNN's John Roberts Dubs Inaugural Crowds 'Barack-Sstock'
During a short segment on Wednesday's American Morning, CNN anchor John Roberts responded to the excited demeanor of the crowds attending President Barack Obama's inauguration by labeling the festivity "Barack-stock." Earlier in the segment, correspondent Carol Costello dubbed it "a gigantic love fest" after she stated there were no serious incidents or arrests involving the approximately 1.5 million people in attendance for the inauguration. The three-minute segment, which began 20 minutes into the 7 am Eastern hour of the CNN program, focused on the reactions of those in attendance on the National Mall for the swearing-in of President Obama. After giving her "gigantic love fest" label, Costello gave a gushing account about what it was like to be in the middle of the crowd there: "Suddenly, someone would just come up and hug you. It was just amazing. It was -- it was like you were standing in the middle of these strangers, and all of a sudden, you had a million friends around you. That's what it felt like yesterday."
6 George Stephanopoulos Recites Dem Talking Points on Economy
This Week host George Stephanopoulos appeared on Wednesday's Good Morning America to claim that the stock market's 330 point drop on Inauguration Day was not an indictment of Obama but indicated the need for a swift confirmation of Timothy Geithner as Treasury Secretary. Stephanopoulos, a former top Democratic aide, asserted: "The reason they want to get Geithner confirmed and in place so quickly, they want to have a complete overhaul of this financial rescue package within days." According to Stephanopoulos, Geithner, who faces questions for not paying $34,000 in taxes since 2001, has "run into a little bit of trouble" on the topic. GMA co-host Diane Sawyer prompted the ABC anchor to tout more Democratic spin when she asked, "But every president wants his first day to have a sentence, a headline. What is the sentence beneath the meetings [Obama is having on Wednesday]?" Stephanopoulos helpfully retorted, "Help is on the way, I think is the sentence."
7 Chris Matthews: 'Does Rush Limbaugh Hate This Country?'
On Wednesday's Hardball, Chris Matthews questioned Rush Limbaugh's patriotism, as the MSNBC host wondered how the radio talk show host could dare to oppose Barack Obama as he exclaimed to his viewers: "Does Rush Limbaugh hate this country?" Matthews jumped on a quote from Limbaugh saying of Obama: "I hope he fails," apparently not understanding the concept that Limbaugh opposes any and all who would promote liberal policies precisely because he believes they will be harmful to the country. Matthews slammed Limbaugh in the following tease before going to a commercial break: "Up next, does Rush Limbaugh hate this country? Wait till you hear what he said about the new president. He wants him to fail. What an amazing-, I've never heard anybody say they wanted a new president to fail. Usually you want the new president to succeed and then later on you argue the politics of what he or she does. But to want them to fail at the outset? What's that about?"
8 NBC's Roker Jabs Matthews and Olbermann for Obama Infatuation
During Tuesday's inauguration coverage on MSNBC, the Today show's Al Roker poked fun at co-anchors Chris Matthews and Keith Olbermann as the NBC weather man, on location at the inaugural parade site, appeared with the MSNBC duo and joked that Matthews "got that tingle down his leg" because Obama looks good without a shirt. Discussing the admiration that so many young people feel for Obama, Roker declared: "It doesn't hurt...that he's a good-looking guy!...This is a guy, this is a President who can take his shirt off, you know. I mean, if I take my shirt off, people are running and screaming. You know, that's, so I think it's just an exciting, exciting time. And I know that's why Chris got that tingle down his leg!" After Matthews tried to go along with Roker's jovial mood by quipping that "we tingle up the leg, okay? It is a big freakin' difference. And don't you forget about it, buddy," Olbermann set himself up to receive a jab as well, as he joked that "it's left to me to be the referee." Roker, presumably referring to Olbermann's penchant for delivering outlandish tirades on his Countdown show, shot back: "And what does that say, if Keith Olbermann is the referee, Keith Olbermann is the voice of reason?"
9 Wash Post Emphasizes Critics In Obit of 'Media Elite' Co-Author
Tuesday's Washington Post obituary for Linda Lichter, co-author of the groundbreaking 1986 book documenting the liberal tilt of the mainstream media, The Media Elite, pettily devoted more paragraphs to critics assailing Lichter's work than explaining what she and her husband documented and its lasting importance -- affirming the old saying, "Never pick a fight with people who buy ink by the barrel." Reporter Adam Bernstein: "The book became widely cited but was harshly criticized by media leaders."
AP Article By Seth Borenstein Entitled “Study: Antarctica Joins Rest Of Globe In Warming”
Follow Up On Today’s AP Article By Seth Borenstein Entitled “Study: Antarctica Joins Rest Of Globe In Warming”, by Roger Pielke Sr
Climate Science, Jan 21, 2009
An AP article was released today which reports on a Nature paper on a finding of warming over much of Antarctica. I was asked by Seth Borenstein to comment on the paper (which he sent to me). I have been critical of his reporting in the past, but except for the title of the article (which as I understand is created by others), he presented a balanced summary of the study.
My reply to Seth is given below.
I have read the paper and have the following comments/questions
1. The use of the passive infrared brightness temperatures from the AVHRR (a polar orbiting satellite) means that only time samples of the surface temperature are obtained. The surface observations, in contrast, provide maximum and minimum temperatures which are used to construct the surface mean temperature trend. The correlation between the two data sets, therefore, requires assumptions on the temporal variation of the brightness temperature at locations removed from the surface in-situ observations. What uncertainty (quantitatively) resulted from their interpolation procedure?
2. Since the authors use data from 42 occupied stations and 65 AWSs sites, they should provide photographs of the locations (e.g. as provided in http://gallery.surfacestations.org/main.php?g2_itemId=20) in order to ascertain how well they are sited. This photographs presumably exist. Do any of the surface observing sites produce a possible bias because they are poorly sited at locations with significant local human microclimate modifications?
3. How do the authors reconcile the conclusions in their paper with the cooler than average long term sea surface temperature anomalies off of the coast of Antarctica? [see http://www.osdpd.noaa.gov/PSB/EPS/SST/data/anomnight.1.15.2009.gif]. These cool anomalies have been there for at least several years. This cool region is also undoubtedly related to the above average Antarctic sea ice areal coverage that has been monitored over recent years; see http://arctic.atmos.uiuc.edu/cryosphere/IMAGES/current.anom.south.jpg].
4. In Figure 2 of their paper, much of their analyzed warming took place prior to 1980. For East Antarctica, the trend is essentially flat since 1980. The use of a linear fit for the entire period of the record produces a larger trend than has been seen in more recent years.
In terms of the significance of their paper, it overstates what they have obtained from their analysis. In the abstract they write, for example,
“West Antarctic warming exceeds 0.1C per decade over the past 50 years”.
However, even a cursory view of Figure 2 shows that since the late 1990s, the region has been cooling in their analysis in this region. The paper would be more balanced if they presented this result, even if they cannot explain why.
Please let me know if you would like more feedback. Thank you reaching out to include a broader perspective on these papers in your articles.
Regards
Roger
Climate Science, Jan 21, 2009
An AP article was released today which reports on a Nature paper on a finding of warming over much of Antarctica. I was asked by Seth Borenstein to comment on the paper (which he sent to me). I have been critical of his reporting in the past, but except for the title of the article (which as I understand is created by others), he presented a balanced summary of the study.
My reply to Seth is given below.
I have read the paper and have the following comments/questions
1. The use of the passive infrared brightness temperatures from the AVHRR (a polar orbiting satellite) means that only time samples of the surface temperature are obtained. The surface observations, in contrast, provide maximum and minimum temperatures which are used to construct the surface mean temperature trend. The correlation between the two data sets, therefore, requires assumptions on the temporal variation of the brightness temperature at locations removed from the surface in-situ observations. What uncertainty (quantitatively) resulted from their interpolation procedure?
2. Since the authors use data from 42 occupied stations and 65 AWSs sites, they should provide photographs of the locations (e.g. as provided in http://gallery.surfacestations.org/main.php?g2_itemId=20) in order to ascertain how well they are sited. This photographs presumably exist. Do any of the surface observing sites produce a possible bias because they are poorly sited at locations with significant local human microclimate modifications?
3. How do the authors reconcile the conclusions in their paper with the cooler than average long term sea surface temperature anomalies off of the coast of Antarctica? [see http://www.osdpd.noaa.gov/PSB/EPS/SST/data/anomnight.1.15.2009.gif]. These cool anomalies have been there for at least several years. This cool region is also undoubtedly related to the above average Antarctic sea ice areal coverage that has been monitored over recent years; see http://arctic.atmos.uiuc.edu/cryosphere/IMAGES/current.anom.south.jpg].
4. In Figure 2 of their paper, much of their analyzed warming took place prior to 1980. For East Antarctica, the trend is essentially flat since 1980. The use of a linear fit for the entire period of the record produces a larger trend than has been seen in more recent years.
In terms of the significance of their paper, it overstates what they have obtained from their analysis. In the abstract they write, for example,
“West Antarctic warming exceeds 0.1C per decade over the past 50 years”.
However, even a cursory view of Figure 2 shows that since the late 1990s, the region has been cooling in their analysis in this region. The paper would be more balanced if they presented this result, even if they cannot explain why.
Please let me know if you would like more feedback. Thank you reaching out to include a broader perspective on these papers in your articles.
Regards
Roger
Considerations on Herring v. United States and the exclusionary rule
"Majesty" or truth?, by Bill Otis
PowerLine Blog, January 21, 2009 at 10:09 PM
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."
The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.
Some observations:
1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).
PowerLine Blog, January 21, 2009 at 10:09 PM
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free. The majority pointed out that in the cases that gave rise to the Fourth Amendment exclusionary rule (Weeks v. US, decided in 1914; and Mapp v. Ohio, decided in 1961 and extending the rule to the states) involved intentional and gross police misconduct, quite unlike what went on in the case at hand. It would be another matter, said the majority, if the police had been shown to be reckless in maintaining a warrant-tracking system, or had a history of making knowingly false entries to lay the groundwork for future arrests. But that was not this case. The overall rule, as announced by the majority, was that in order to justify its application, the exclusionary rule would have to efficacious in deterring misconduct, and that the benefits of deterrence must outweigh its costs. The foremost of these is that it may let guilty and dangerous defendants go free, something that "offends basic concepts of the criminal justice system."
The dissent saw it differently. While acknowledging that such emminent jurists as Judge Friendly and Justice Cardozo had considerable doubts about the exclusionary rule (including Cardozo's famous observation that it means the criminal should "go free because the constable has blundered," which to its credit the dissent was honest enough to quote), the dissenters said that they preferred a more "majestic" view of the rule. Under this version, the rationale of the rule would go beyond deterring the police. Instead, the rule would be employed to insure that the courts would not themselves become helpless instruments of unconstitutional behavior and a showplace for its fruits.
Some observations:
1. This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
2. One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
3. The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
One thing to notice about this is that is bespeaks a visceral distrust of the police that would seem less out of place in 1969, but that with 40 years of advancing professionalism must now be viewed as quaint. One other thing to notice is that the dissenters (i.e., the Court's reliable liberals) seem to view deterrence as a sure thing when applied to POLICE conduct (including the conduct in this case, which both courts below found to be negligent at worst, and thus not a particularly promising object for a punitive rule), but a dicey proposition at best when discussing punishment for convicted street criminals, who by definition must have been acting intentionally (mens rea and all that).
TNYT on Geithner: Barring any new disclosures, we heard nothing disqualifying
For Treasury Secretary. TNYT Editorial
Timothy Geithner’s tax problems took up much of his confirmation hearing. Barring any new disclosures, we heard nothing disqualifying
TNYT, Jan 22, 2009
If ever there was a moment when the Senate should have used the confirmation process to delve into the big issues confronting the nation, it was at Wednesday’s hearing for Treasury Secretary-designate Timothy Geithner.
Unfortunately, Mr. Geithner’s self-inflicted tax problems made that hard. But even after the nominee admitted that his failure to pay tens of thousands of dollars in federal taxes had been “careless” but “unintentional” (he has since paid back taxes, plus interest) members of the Finance Committee were not terribly sharp in their questions about how Mr. Geithner will help President Obama face down the country’s desperate financial problems.
We were not impressed with Mr. Geithner’s excuses for his tax problems, but barring any new damaging disclosures, we heard nothing disqualifying. He is clearly an intelligent man and Mr. Obama is entitled to pick his own team.
Wall Street is also comfortable with the choice. That is an endorsement that cuts both ways — but one that could advance the cause of renewed regulation if Mr. Obama lives up to his promises and is a strong champion for regulatory reform.
We still don’t have a clear picture of Mr. Geithner’s role — as president of the Federal Reserve Bank of New York for the past five years — in the decisions to bail out Bear Stearns, the American International Group and Citigroup, or the decision to let Lehman Brothers go under.
The Finance Committee is expected to approve his nomination Thursday, but before the full Senate votes, we hope that we will hear more from Mr. Geithner and the president on their plans for unraveling the nation’s desperate financial mess.
At the hearing, Mr. Geithner was unchallenged when he said that the disastrous collapse of Lehman Brothers last September occurred because the government had no legal authority to intervene. That narrative surfaced weeks after the collapse and contradicts explanations given at the time.
It is certainly not the type of open, transparent, and fully accountable explanation that the new president is promising.
At the hearing, Mr. Geithner did give a good general outline of the administration’s plan to right the nation’s financial system, saying Mr. Obama would lay out, “we hope in the next few weeks,” a comprehensive plan to get the banks lending again, to address the foreclosure crisis and to directly address the lack of credit to small businesses and consumers.
Like most nominees, Mr. Geithner gave vague answers when asked more detailed questions. He promised new financial regulation, but also referred often to a new regulatory “framework.” It remains to be seen if the goal is to put in place robust new rules or — as the Bush team proposed last year — just rearrange agencies.
The entire Obama economic team earned their stripes — for good and more often ill — during the deregulatory and self-regulatory efforts of the 1990s and this decade. The nation needs more and better information and reassurance, about what they have learned from that past and how they will lead the nation in the vastly different direction that Mr. Obama has promised.
Timothy Geithner’s tax problems took up much of his confirmation hearing. Barring any new disclosures, we heard nothing disqualifying
TNYT, Jan 22, 2009
If ever there was a moment when the Senate should have used the confirmation process to delve into the big issues confronting the nation, it was at Wednesday’s hearing for Treasury Secretary-designate Timothy Geithner.
Unfortunately, Mr. Geithner’s self-inflicted tax problems made that hard. But even after the nominee admitted that his failure to pay tens of thousands of dollars in federal taxes had been “careless” but “unintentional” (he has since paid back taxes, plus interest) members of the Finance Committee were not terribly sharp in their questions about how Mr. Geithner will help President Obama face down the country’s desperate financial problems.
We were not impressed with Mr. Geithner’s excuses for his tax problems, but barring any new damaging disclosures, we heard nothing disqualifying. He is clearly an intelligent man and Mr. Obama is entitled to pick his own team.
Wall Street is also comfortable with the choice. That is an endorsement that cuts both ways — but one that could advance the cause of renewed regulation if Mr. Obama lives up to his promises and is a strong champion for regulatory reform.
We still don’t have a clear picture of Mr. Geithner’s role — as president of the Federal Reserve Bank of New York for the past five years — in the decisions to bail out Bear Stearns, the American International Group and Citigroup, or the decision to let Lehman Brothers go under.
The Finance Committee is expected to approve his nomination Thursday, but before the full Senate votes, we hope that we will hear more from Mr. Geithner and the president on their plans for unraveling the nation’s desperate financial mess.
At the hearing, Mr. Geithner was unchallenged when he said that the disastrous collapse of Lehman Brothers last September occurred because the government had no legal authority to intervene. That narrative surfaced weeks after the collapse and contradicts explanations given at the time.
It is certainly not the type of open, transparent, and fully accountable explanation that the new president is promising.
At the hearing, Mr. Geithner did give a good general outline of the administration’s plan to right the nation’s financial system, saying Mr. Obama would lay out, “we hope in the next few weeks,” a comprehensive plan to get the banks lending again, to address the foreclosure crisis and to directly address the lack of credit to small businesses and consumers.
Like most nominees, Mr. Geithner gave vague answers when asked more detailed questions. He promised new financial regulation, but also referred often to a new regulatory “framework.” It remains to be seen if the goal is to put in place robust new rules or — as the Bush team proposed last year — just rearrange agencies.
The entire Obama economic team earned their stripes — for good and more often ill — during the deregulatory and self-regulatory efforts of the 1990s and this decade. The nation needs more and better information and reassurance, about what they have learned from that past and how they will lead the nation in the vastly different direction that Mr. Obama has promised.
Redefining France’s Role in Afghanistan: Need for better Strategy
Redefining France’s Role in Afghanistan: Need for better Strategy, by Guillem Monsonis
IDSA, Jan 22, 2009
In a recent poll for the newspaper Le Parisien, 55 per cent of the French public expressed their disagreement with the presence of the French military in Afghanistan. A number of political and strategic mistakes contributed to this difficult situation being faced by Sarkozy’s government regarding the war in Afghanistan. The situation is also exacerbated by the fact that 10 soldiers of the 8th RPIMA lost their lives in the Uzbin sector in late August after a brilliantly orchestrated ambush by elements of Gulbuddin Hekmatyar’s Hezb-e-Islami which shocked the country.
France is involved in the Afghan theatre in both the US led Enduring Freedom operation and NATO’s International Security Assistance Force (ISAF) since 2002. Their main mission has been to secure and monitor the Kabul region and to train the Afghan National Army (ANA). However, very little is known about the missions performed by the Special Forces between 2003 and 2007 in the eastern region close to the Pakistan border. The French Navy led the operation Heracles with the Charles de Gaulle nuclear aircraft carrier battle group in which Super Etendard Modernises (SEM) aircraft performed strikes, intelligence gathering and show of force in support of the US troops on the ground.
Islamist strategists perfectly understand what the Achilles’ heel of democratic societies is and use a deadly efficient strategy using all the available non-conventional assets, especially the media, in their asymmetric war against western hi-tech armies. The pictures published by the weekly magazine Paris Match showing the Taliban holding several belongings of the killed French troops gave a severe blow to the already weak French popular support to the war. Recent wars in Iraq and Afghanistan have demonstrated that Western public opinion is now extremely reluctant to pay the price of blood for their government’s wars. The sequel to the idealistic theory of ‘zero dead war’, which was popularized during the Gulf War (1991) and NATO’s campaign in Kosovo (1999), seems to have survived in post-modern European countries’ perception of war. The sacrosanct ‘right to life’ promoted in developed democratic countries is hardly compatible with long term asymmetric wars against well trained and motivated fighters. In this respect, democracies suffer a relative disadvantage when fighting against fundamentalist militants or authoritarian regimes. In a recent interview, the French Chief of the Defense Staff, General Jean Louis Gergolin, complained that “war has deserted our minds". This apathy towards war is doubled by a negative perception of defence expenditures which is seen as a big waste of public money. But as the famous French writer Pierre Corneille wrote, to win without risk is to triumph without glory: France has to accept that the price for defeating international terrorism and stabilizing Afghanistan will be high, and will need a strong involvement on the ground. How should the French government solve the dilemma of rallying public opinion which is ‘proud of its army but worried for its children’?
Better communication may be the key. Hervé Morin, the controversial French Minister of Defence, refused to use the word ‘war’ to qualify Afghanistan’s operations during a debate in the National Assembly. The French government seems to be exactly reproducing the same mistakes made at the height of the storm in Algeria 40 years ago when the word ‘war’ was replaced by ‘events’. Therefore, Government’s communication on the role of Armed Forces used to emphasise mostly on their humanitarian and developmental duties. The concept of the ‘reconstruction of Afghanistan’ is often used to explain to the general public what the French troops are doing there. This overemphasis on non-combatant activities hides the ground realities the troops are facing in their everyday missions. It was predictable that with the decision to deploy troops in the eastern part of Afghanistan (before this, France was mostly operating in the Kabul region), the exposure of the troops to militant attacks would increase. The government must clearly explain the reasons for the war effort and insist on its long term benefits, as most of the French just don’t see any relation between France’s homeland security and the operations being conducted in Afghanistan, despite Sarkozy’s recent efforts to link both aspects. Explaining that the calm witnessed for a few years in France may not last, as demonstrated by the recent attempt by the terrorists to place an explosive device in a store in Paris, it needs to be emphasized that the success of the war may be crucial in securing the country and therefore it should be a priority.
In order to achieve this objective, France needs to face another harsh reality: the sustained reduction in French military capabilities. Means simply do not match ambitions. The recent publication of the White Book (Livre Blanc) on defence and national security generated a stormy debate on French military capabilities and objectives. The reduction of 54,000 positions in the armed forces and the resizing of the expeditionary force strength (from 50,000 to 30,000 troops) have been heavily criticized. The lack of intelligence gathering capabilities, especially helicopters and UAVs, is especially problematic in Afghan operations. Without the support of those means, the rigid and predictable convoys of APCs are especially vulnerable to heavily armed attacks by guerrillas with a good knowledge of the terrain. The lack of such capabilities was recently raised by the armed forces who complained about the poor political support Sarkozy has displayed towards the French military establishment. The White Book on defence tries to overcome those gaps and suggest the acquisition of a strong UAV and satellite force by doubling the expenditure in the space military sector.
While facing an economic slowdown generated by the global economic crisis, France would also need more aerial assets to support land forces. But Paris only deployed 3 multi-role fighter/bombers Rafale F2, 3 Mirage 2000D bombers and aerial tankers. If the deployment of the 4+ generation Rafale was good news in May 2007 (it can carry 6 GBU-12 bombs versus 2 for the Mirage 2000D), the latest French fighters need to be assisted by the Mirage for targeting because they are not suited with a Damocles laser targeting pod. This capability will be acquired in 2012, with the new standard F3. There is also a lack of transport helicopters deployed in the theatre of operations, and Paris is planning to deploy 3 additional helicopters (1 EC-725 Caracal, 2 Gazelles SA-342 and probably some Tiger combat helicopters). This capability gap contributed, along with poor co-ordination between the different units on the ground, to the disastrous patrol mission in Uzbin, where no reinforcements were available for more than one hour.
For France, the stakes are high. It is not only about defeating the nebula of international terrorism; it is also a question of international status. As a permanent member of the UN Security Council, France faces strong pressure from several European Members of Parliament who want to replace the French seat by a European one. Paris has to show its capability to deal with international issues like a great power and justify its political primacy in Europe. While France is close to reintegrating with NATO’s integrated command structure, its achievements in the Afghan theatre and the means Paris is able to mobilize will be a strong determinant of its future capacity for influence inside the alliance structures and will also determine the promotion of a still embryonic European defence. The results of this policy will not only be crucial for France’s Grandeur, but will also be indicative of the future role for middle sized powers in the post-cold war international system.
Guillem Monsonis, Researcher at the French Institute of Geopolitics, is currently a Visiting Fellow at the Institute for Defence Studies and Analyses, New Delhi.
IDSA, Jan 22, 2009
In a recent poll for the newspaper Le Parisien, 55 per cent of the French public expressed their disagreement with the presence of the French military in Afghanistan. A number of political and strategic mistakes contributed to this difficult situation being faced by Sarkozy’s government regarding the war in Afghanistan. The situation is also exacerbated by the fact that 10 soldiers of the 8th RPIMA lost their lives in the Uzbin sector in late August after a brilliantly orchestrated ambush by elements of Gulbuddin Hekmatyar’s Hezb-e-Islami which shocked the country.
France is involved in the Afghan theatre in both the US led Enduring Freedom operation and NATO’s International Security Assistance Force (ISAF) since 2002. Their main mission has been to secure and monitor the Kabul region and to train the Afghan National Army (ANA). However, very little is known about the missions performed by the Special Forces between 2003 and 2007 in the eastern region close to the Pakistan border. The French Navy led the operation Heracles with the Charles de Gaulle nuclear aircraft carrier battle group in which Super Etendard Modernises (SEM) aircraft performed strikes, intelligence gathering and show of force in support of the US troops on the ground.
Islamist strategists perfectly understand what the Achilles’ heel of democratic societies is and use a deadly efficient strategy using all the available non-conventional assets, especially the media, in their asymmetric war against western hi-tech armies. The pictures published by the weekly magazine Paris Match showing the Taliban holding several belongings of the killed French troops gave a severe blow to the already weak French popular support to the war. Recent wars in Iraq and Afghanistan have demonstrated that Western public opinion is now extremely reluctant to pay the price of blood for their government’s wars. The sequel to the idealistic theory of ‘zero dead war’, which was popularized during the Gulf War (1991) and NATO’s campaign in Kosovo (1999), seems to have survived in post-modern European countries’ perception of war. The sacrosanct ‘right to life’ promoted in developed democratic countries is hardly compatible with long term asymmetric wars against well trained and motivated fighters. In this respect, democracies suffer a relative disadvantage when fighting against fundamentalist militants or authoritarian regimes. In a recent interview, the French Chief of the Defense Staff, General Jean Louis Gergolin, complained that “war has deserted our minds". This apathy towards war is doubled by a negative perception of defence expenditures which is seen as a big waste of public money. But as the famous French writer Pierre Corneille wrote, to win without risk is to triumph without glory: France has to accept that the price for defeating international terrorism and stabilizing Afghanistan will be high, and will need a strong involvement on the ground. How should the French government solve the dilemma of rallying public opinion which is ‘proud of its army but worried for its children’?
Better communication may be the key. Hervé Morin, the controversial French Minister of Defence, refused to use the word ‘war’ to qualify Afghanistan’s operations during a debate in the National Assembly. The French government seems to be exactly reproducing the same mistakes made at the height of the storm in Algeria 40 years ago when the word ‘war’ was replaced by ‘events’. Therefore, Government’s communication on the role of Armed Forces used to emphasise mostly on their humanitarian and developmental duties. The concept of the ‘reconstruction of Afghanistan’ is often used to explain to the general public what the French troops are doing there. This overemphasis on non-combatant activities hides the ground realities the troops are facing in their everyday missions. It was predictable that with the decision to deploy troops in the eastern part of Afghanistan (before this, France was mostly operating in the Kabul region), the exposure of the troops to militant attacks would increase. The government must clearly explain the reasons for the war effort and insist on its long term benefits, as most of the French just don’t see any relation between France’s homeland security and the operations being conducted in Afghanistan, despite Sarkozy’s recent efforts to link both aspects. Explaining that the calm witnessed for a few years in France may not last, as demonstrated by the recent attempt by the terrorists to place an explosive device in a store in Paris, it needs to be emphasized that the success of the war may be crucial in securing the country and therefore it should be a priority.
In order to achieve this objective, France needs to face another harsh reality: the sustained reduction in French military capabilities. Means simply do not match ambitions. The recent publication of the White Book (Livre Blanc) on defence and national security generated a stormy debate on French military capabilities and objectives. The reduction of 54,000 positions in the armed forces and the resizing of the expeditionary force strength (from 50,000 to 30,000 troops) have been heavily criticized. The lack of intelligence gathering capabilities, especially helicopters and UAVs, is especially problematic in Afghan operations. Without the support of those means, the rigid and predictable convoys of APCs are especially vulnerable to heavily armed attacks by guerrillas with a good knowledge of the terrain. The lack of such capabilities was recently raised by the armed forces who complained about the poor political support Sarkozy has displayed towards the French military establishment. The White Book on defence tries to overcome those gaps and suggest the acquisition of a strong UAV and satellite force by doubling the expenditure in the space military sector.
While facing an economic slowdown generated by the global economic crisis, France would also need more aerial assets to support land forces. But Paris only deployed 3 multi-role fighter/bombers Rafale F2, 3 Mirage 2000D bombers and aerial tankers. If the deployment of the 4+ generation Rafale was good news in May 2007 (it can carry 6 GBU-12 bombs versus 2 for the Mirage 2000D), the latest French fighters need to be assisted by the Mirage for targeting because they are not suited with a Damocles laser targeting pod. This capability will be acquired in 2012, with the new standard F3. There is also a lack of transport helicopters deployed in the theatre of operations, and Paris is planning to deploy 3 additional helicopters (1 EC-725 Caracal, 2 Gazelles SA-342 and probably some Tiger combat helicopters). This capability gap contributed, along with poor co-ordination between the different units on the ground, to the disastrous patrol mission in Uzbin, where no reinforcements were available for more than one hour.
For France, the stakes are high. It is not only about defeating the nebula of international terrorism; it is also a question of international status. As a permanent member of the UN Security Council, France faces strong pressure from several European Members of Parliament who want to replace the French seat by a European one. Paris has to show its capability to deal with international issues like a great power and justify its political primacy in Europe. While France is close to reintegrating with NATO’s integrated command structure, its achievements in the Afghan theatre and the means Paris is able to mobilize will be a strong determinant of its future capacity for influence inside the alliance structures and will also determine the promotion of a still embryonic European defence. The results of this policy will not only be crucial for France’s Grandeur, but will also be indicative of the future role for middle sized powers in the post-cold war international system.
Guillem Monsonis, Researcher at the French Institute of Geopolitics, is currently a Visiting Fellow at the Institute for Defence Studies and Analyses, New Delhi.
WaPo: Mr. Obama is right to move cautiously in closing Guantanamo - and can use a version of existing military commissions
Justice and Security. Washington Post Editorial
Mr. Obama is right to move cautiously in closing Guantanamo.
Washington Post, Thursday, January 22, 2009; page A16
IN PUTTING a halt to legal proceedings at the U.S. Naval Base in Guantanamo, Cuba, while his administration reportedly prepares an executive order to close the detention facility, President Obama has moved one step closer to ending the discredited practices for handling foreign detainees that have blemished the United States' reputation worldwide.
Yet Mr. Obama shows appropriate prudence in taking things slowly -- at least for now. Proceedings in the military commission trials will be on hold until May 20, giving Mr. Obama and his advisers some four months to decide whether to revamp or discard the commissions. The executive order, which reportedly would set a one-year deadline for closing the Guantanamo detention facility, gives the administration time to review the cases of those detainees deemed too dangerous to be released and to decide how and where -- and in some cases, whether -- these detainees should be tried. It gives the administration time to fully explore the possibility of allowing some detainees into this country while negotiating with allies about taking others.
But Mr. Obama must be mindful not to delay too much. Through no fault of his own, he has inherited a system in which many detainees have been held for years without a meaningful review of their cases. They have been denied the opportunity to scrutinize the evidence against them or to gather and present information that could exonerate them. Some have been abused or tortured. Relying on a deeply flawed and unjust legal process such as the one in place at Guantanamo is untenable -- but so would be continuing to hold detainees under no process at all.
Mr. Obama should order trials in federal court when possible. For those for whom traditional prosecutions would not be feasible, he should ensure robust due process, whether in courts-martial or a version of existing military commissions. If there are dangerous detainees who cannot be tried -- a possibility that Mr. Obama has acknowledged -- the president should consider creation of a specialized court, akin to the Foreign Intelligence Surveillance Court, in which such detainees would be guaranteed periodic review of their detentions by a federal judge empowered to order their release.
It is gratifying to see the new president take seriously his promise to reverse the damage done to the country and to some innocents as a result of the abuses at Guantanamo. But the process of unraveling Guantanamo will be delicate and difficult. Mr. Obama is right to proceed cautiously to achieve the goals of protecting the rights of detainees while protecting the safety of the country.
Mr. Obama is right to move cautiously in closing Guantanamo.
Washington Post, Thursday, January 22, 2009; page A16
IN PUTTING a halt to legal proceedings at the U.S. Naval Base in Guantanamo, Cuba, while his administration reportedly prepares an executive order to close the detention facility, President Obama has moved one step closer to ending the discredited practices for handling foreign detainees that have blemished the United States' reputation worldwide.
Yet Mr. Obama shows appropriate prudence in taking things slowly -- at least for now. Proceedings in the military commission trials will be on hold until May 20, giving Mr. Obama and his advisers some four months to decide whether to revamp or discard the commissions. The executive order, which reportedly would set a one-year deadline for closing the Guantanamo detention facility, gives the administration time to review the cases of those detainees deemed too dangerous to be released and to decide how and where -- and in some cases, whether -- these detainees should be tried. It gives the administration time to fully explore the possibility of allowing some detainees into this country while negotiating with allies about taking others.
But Mr. Obama must be mindful not to delay too much. Through no fault of his own, he has inherited a system in which many detainees have been held for years without a meaningful review of their cases. They have been denied the opportunity to scrutinize the evidence against them or to gather and present information that could exonerate them. Some have been abused or tortured. Relying on a deeply flawed and unjust legal process such as the one in place at Guantanamo is untenable -- but so would be continuing to hold detainees under no process at all.
Mr. Obama should order trials in federal court when possible. For those for whom traditional prosecutions would not be feasible, he should ensure robust due process, whether in courts-martial or a version of existing military commissions. If there are dangerous detainees who cannot be tried -- a possibility that Mr. Obama has acknowledged -- the president should consider creation of a specialized court, akin to the Foreign Intelligence Surveillance Court, in which such detainees would be guaranteed periodic review of their detentions by a federal judge empowered to order their release.
It is gratifying to see the new president take seriously his promise to reverse the damage done to the country and to some innocents as a result of the abuses at Guantanamo. But the process of unraveling Guantanamo will be delicate and difficult. Mr. Obama is right to proceed cautiously to achieve the goals of protecting the rights of detainees while protecting the safety of the country.
Media treatment of the inauguration
Media treatment of the inauguration:
1 ABC: 'National Pride' Made Cold Feel Warmer While Seagulls 'Awed'
Offering the most hyperbolic take of the night on the crowds who attended President Obama's inauguration, on World News ABC's Bill Weir delighted in wondering "can national pride make a freezing day feel warmer?" He decided it can indeed since "never have so many people shivered so long with such joy" while "from above, even the seagulls must have been awed by the blanket of humanity." Weir was certainly awed. Meanwhile, over on the NBC Nightly News, anchor Brian Williams must have been as awed as those seagulls since he contended he could "feel" the masses watching from around the nation: "While it was unfolding today here in Washington, you could feel the millions around the country who were watching it all."
2 Mitchell: Cell Cameras 'Seemed Like Stars Shining Back' at Obama
NBC's Andrea Mitchell encapsulated the veneration for Barack Obama and what his inauguration means to the media elite as she began a Tuesday NBC Nightly News story about her day watching the festivities: "It may take days or years to really absorb the significance of what happened to America today, even for those of us who were lucky enough to have a very close up front view." Showing a clip of the new President saying "I, Barack Hussein Obama, do solemnly swear," Mitchell proudly trumpeted: "His very name opening doors, as did his speech, to the rest of the world." And while most saw a sea of people waving flags, Mitchell saw something more meaningful for Obama, though it reflected more about her: "The mass flickering of cell phone cameras on the mall seemed like stars shining back at him."
3 NBC News Panel 'Emotional' and Cries Over Obama's Inauguration
The truly historic moment of the first African-American to be sworn-in as President cannot, nor should not, go without some comment but to the degree NBC News' anchors and reporters were willing to share their personal feelings, on air, about the moment was a bit remarkable for purported objective journalists. During NBC News' live coverage on Tuesday of Barack Obama's Inauguration, Meredith Vieira observed: "I think the hardest thing is, is not getting emotional because it is such an emotional morning, you just want to, you want to laugh, you want to cry," and later claimed she was "blissful." NBC Nightly News anchor Brian Williams admitted, repeatedly, that their panel, which included Tom Brokaw and Lester Holt broke down: "Lester and I were remarking that 'No Drama Obama,' kept it together, none of the rest of us did."
4. On Nightline, Obama's Ascension = 'America the Beautiful'
Nightline's slug for its Tuesday night story about President Obama's inauguration: "America the Beautiful." With that iconic song title on screen over images of Barack Obama being sworn in as President, President Obama and Michelle Obama walking during the parade and views of the crowd, at the top of the program ABC's Terry Moran plugged a segment: "America the Beautiful: The nation and the world pause to witness an extraordinary milestone as nearly two million people come together to hail the new chief and celebrate an era of change."
5 Tom Brokaw Cheers Obama Inauguration Like 'Velvet Revolution'
Reflecting on the mood of the crowd at Barack Obama's inauguration, NBC's Tom Brokaw likened it to when he was present for the fall of the communist regime in Czechoslovakia. During NBC's live coverage of Obama's swearing-in on Tuesday, Brokaw declared, "It reminds me of the Velvet Revolution," and while Brokaw noted "a communist regime," was not being overthrown he pointed out: "An unpopular President is leaving and people have been waiting for this moment."
6 Tom Brokaw Compares Dick Cheney in Wheelchair to Dr. Strangelove
As Dick Cheney was literally rolled out of office, in a wheelchair due to a packing accident, Tom Brokaw had one final kick out the door for the Vice President as he compared him to "Dr. Strangelove," the mad scientist title character from the film of the same name. During NBC News' live coverage of Tuesday's inaugural ceremonies Brokaw made the following observation of Cheney as he was being ushered towards Barack Obama's swearing-in ceremony at about 11:32am EST: "It's unfortunate for Vice President Cheney to have had this accident obviously, because there will be those who don't like him, who will be writing tomorrow that he had a Dr. Strangelove appearance as he appeared today in his wheelchair."
7 MSNBC: Bush Family Like Romanovs, Obama 'Oratorical Mt. Rushmore'
During Tuesday morning's inaugural coverage on MSNBC, Chris Matthews twice compared the Bush family to the Romanovs as he contended that the Bushes are now likely to go into hiding because of President Bush's unpopularity: "It's going to be like the Romanovs, too, and I mean that. There's a sense here that they are fallen from grace, that they're not popular, that the whole family will now go into retreat." Even liberal Washington Post columnist Eugene Robinson had to call him out on the exaggeration as it sounds like he says in the background that "it didn't happen exactly like the Romanovs," referring to the overthrow and execution of the Russian royal family after the Bolshevik communists seized power in 1917. A few minutes earlier, claiming "this isn't a partisan statement," Matthews raised the possibility that Obama could give such a good speech that he would join the "oratorical Mount Rushmore"
8 ABC's Gibson on Al Gore: 'Had He Gotten a Second Term...'
Less than an hour before Barack Obama took the oath of office, ABC News anchor Charles Gibson spotted former Vice President Al Gore arriving at the inauguration, and Gibson fantasized about how this could have been Gore's last day in office, not George W. Bush's. "Had he gotten a second term," Gibson began before correcting himself, "had he been elected President in the first place in the year 2000, and then gotten a second term -- he would be there as the outgoing President of the United States."
9 Matthews Gushes About How MSNBC 'Has Opened Its Heart to Change'
MSNBC's Chris Matthews, in his latest heart-palpitation over the new era of Barack Obama, marveled about how the crowds apparently reacted to his network's presence at the inauguration: "This is the network that has opened its heart to change -- to change and its possibilities. Let's be honest about it. These -- these people watch this network out here." His co-anchor, Keith Olbermann, jokingly seconded his observation: "He's Chris Matthews and he approved that message." Matthews then made an indirect slam at Obama's detractors: "We're not crotchety about change -- stuffy."
10 Matthews Criticizes Anti-Bush Booing, Olbermann Not So Much
During Tuesday morning's inaugural coverage on MSNBC, when spectators were heard booing President Bush as he was introduced, Chris Matthews seemed to become uncomfortable and criticized the protest as "bad form," remarking, "Don't do that. Don't boo, don't boo, don't boo." But minutes later, when protesters could be heard singing "Hey, hey, goodbye," co-anchor Keith Olbermann seemed to suggest that he was only bothered by the behavior because it distracted attention from Michelle Obama's introduction. Olbermann: "Far be it for me to have been critical of anyone critical of this President, obviously, but, unfortunately, during that demonstration, something of the introduction of Mrs. Obama was lost because people were singing the, they still are, the 'Hey, hey,' song from various sporting events over the year, towards the 43rd President."
11 ABC Enthuses 'New Face' of Obama; 'Driven by an Audacity to Hope'
Good Morning America kicked off its inauguration coverage on Tuesday with an anonymous announcer enthusiastically repeating the talking points of Barack Obama. During a 7am tease, this voice trumpeted: "Barack Obama sworn in as the 44th President of the United States. A new face from a new generation. Driven by an audacity to hope." The male announcer continued his introduction of the ABC show: "The nation's capital, filled to capacity. A journey of millions, fueled by hope and the shared dreams of a renewed America...And a call to overcome challenges not seen in generations." While discussing the throng of visitors descending on Washington D.C. a few minutes later, GMA host Diane Sawyer announced, "We saw a silent pilgrimage proceeding through this city."
12 CNN's Verjee: Obama Inauguration Like Muslim Pilgrimage to Mecca
CNN correspondent Zain Verjee, in a report posted on CNN.com on January 17, likened the expected large crowds for the inauguration of Barack Obama to the Hajj, the annual Muslim pilgrimage to Mecca: "The coming political pilgrimage to Washington is similar to another grand event in both size and preparation -- the Hajj, the most important religious pilgrimage in the Muslim world."
1 ABC: 'National Pride' Made Cold Feel Warmer While Seagulls 'Awed'
Offering the most hyperbolic take of the night on the crowds who attended President Obama's inauguration, on World News ABC's Bill Weir delighted in wondering "can national pride make a freezing day feel warmer?" He decided it can indeed since "never have so many people shivered so long with such joy" while "from above, even the seagulls must have been awed by the blanket of humanity." Weir was certainly awed. Meanwhile, over on the NBC Nightly News, anchor Brian Williams must have been as awed as those seagulls since he contended he could "feel" the masses watching from around the nation: "While it was unfolding today here in Washington, you could feel the millions around the country who were watching it all."
2 Mitchell: Cell Cameras 'Seemed Like Stars Shining Back' at Obama
NBC's Andrea Mitchell encapsulated the veneration for Barack Obama and what his inauguration means to the media elite as she began a Tuesday NBC Nightly News story about her day watching the festivities: "It may take days or years to really absorb the significance of what happened to America today, even for those of us who were lucky enough to have a very close up front view." Showing a clip of the new President saying "I, Barack Hussein Obama, do solemnly swear," Mitchell proudly trumpeted: "His very name opening doors, as did his speech, to the rest of the world." And while most saw a sea of people waving flags, Mitchell saw something more meaningful for Obama, though it reflected more about her: "The mass flickering of cell phone cameras on the mall seemed like stars shining back at him."
3 NBC News Panel 'Emotional' and Cries Over Obama's Inauguration
The truly historic moment of the first African-American to be sworn-in as President cannot, nor should not, go without some comment but to the degree NBC News' anchors and reporters were willing to share their personal feelings, on air, about the moment was a bit remarkable for purported objective journalists. During NBC News' live coverage on Tuesday of Barack Obama's Inauguration, Meredith Vieira observed: "I think the hardest thing is, is not getting emotional because it is such an emotional morning, you just want to, you want to laugh, you want to cry," and later claimed she was "blissful." NBC Nightly News anchor Brian Williams admitted, repeatedly, that their panel, which included Tom Brokaw and Lester Holt broke down: "Lester and I were remarking that 'No Drama Obama,' kept it together, none of the rest of us did."
4. On Nightline, Obama's Ascension = 'America the Beautiful'
Nightline's slug for its Tuesday night story about President Obama's inauguration: "America the Beautiful." With that iconic song title on screen over images of Barack Obama being sworn in as President, President Obama and Michelle Obama walking during the parade and views of the crowd, at the top of the program ABC's Terry Moran plugged a segment: "America the Beautiful: The nation and the world pause to witness an extraordinary milestone as nearly two million people come together to hail the new chief and celebrate an era of change."
5 Tom Brokaw Cheers Obama Inauguration Like 'Velvet Revolution'
Reflecting on the mood of the crowd at Barack Obama's inauguration, NBC's Tom Brokaw likened it to when he was present for the fall of the communist regime in Czechoslovakia. During NBC's live coverage of Obama's swearing-in on Tuesday, Brokaw declared, "It reminds me of the Velvet Revolution," and while Brokaw noted "a communist regime," was not being overthrown he pointed out: "An unpopular President is leaving and people have been waiting for this moment."
6 Tom Brokaw Compares Dick Cheney in Wheelchair to Dr. Strangelove
As Dick Cheney was literally rolled out of office, in a wheelchair due to a packing accident, Tom Brokaw had one final kick out the door for the Vice President as he compared him to "Dr. Strangelove," the mad scientist title character from the film of the same name. During NBC News' live coverage of Tuesday's inaugural ceremonies Brokaw made the following observation of Cheney as he was being ushered towards Barack Obama's swearing-in ceremony at about 11:32am EST: "It's unfortunate for Vice President Cheney to have had this accident obviously, because there will be those who don't like him, who will be writing tomorrow that he had a Dr. Strangelove appearance as he appeared today in his wheelchair."
7 MSNBC: Bush Family Like Romanovs, Obama 'Oratorical Mt. Rushmore'
During Tuesday morning's inaugural coverage on MSNBC, Chris Matthews twice compared the Bush family to the Romanovs as he contended that the Bushes are now likely to go into hiding because of President Bush's unpopularity: "It's going to be like the Romanovs, too, and I mean that. There's a sense here that they are fallen from grace, that they're not popular, that the whole family will now go into retreat." Even liberal Washington Post columnist Eugene Robinson had to call him out on the exaggeration as it sounds like he says in the background that "it didn't happen exactly like the Romanovs," referring to the overthrow and execution of the Russian royal family after the Bolshevik communists seized power in 1917. A few minutes earlier, claiming "this isn't a partisan statement," Matthews raised the possibility that Obama could give such a good speech that he would join the "oratorical Mount Rushmore"
8 ABC's Gibson on Al Gore: 'Had He Gotten a Second Term...'
Less than an hour before Barack Obama took the oath of office, ABC News anchor Charles Gibson spotted former Vice President Al Gore arriving at the inauguration, and Gibson fantasized about how this could have been Gore's last day in office, not George W. Bush's. "Had he gotten a second term," Gibson began before correcting himself, "had he been elected President in the first place in the year 2000, and then gotten a second term -- he would be there as the outgoing President of the United States."
9 Matthews Gushes About How MSNBC 'Has Opened Its Heart to Change'
MSNBC's Chris Matthews, in his latest heart-palpitation over the new era of Barack Obama, marveled about how the crowds apparently reacted to his network's presence at the inauguration: "This is the network that has opened its heart to change -- to change and its possibilities. Let's be honest about it. These -- these people watch this network out here." His co-anchor, Keith Olbermann, jokingly seconded his observation: "He's Chris Matthews and he approved that message." Matthews then made an indirect slam at Obama's detractors: "We're not crotchety about change -- stuffy."
10 Matthews Criticizes Anti-Bush Booing, Olbermann Not So Much
During Tuesday morning's inaugural coverage on MSNBC, when spectators were heard booing President Bush as he was introduced, Chris Matthews seemed to become uncomfortable and criticized the protest as "bad form," remarking, "Don't do that. Don't boo, don't boo, don't boo." But minutes later, when protesters could be heard singing "Hey, hey, goodbye," co-anchor Keith Olbermann seemed to suggest that he was only bothered by the behavior because it distracted attention from Michelle Obama's introduction. Olbermann: "Far be it for me to have been critical of anyone critical of this President, obviously, but, unfortunately, during that demonstration, something of the introduction of Mrs. Obama was lost because people were singing the, they still are, the 'Hey, hey,' song from various sporting events over the year, towards the 43rd President."
11 ABC Enthuses 'New Face' of Obama; 'Driven by an Audacity to Hope'
Good Morning America kicked off its inauguration coverage on Tuesday with an anonymous announcer enthusiastically repeating the talking points of Barack Obama. During a 7am tease, this voice trumpeted: "Barack Obama sworn in as the 44th President of the United States. A new face from a new generation. Driven by an audacity to hope." The male announcer continued his introduction of the ABC show: "The nation's capital, filled to capacity. A journey of millions, fueled by hope and the shared dreams of a renewed America...And a call to overcome challenges not seen in generations." While discussing the throng of visitors descending on Washington D.C. a few minutes later, GMA host Diane Sawyer announced, "We saw a silent pilgrimage proceeding through this city."
12 CNN's Verjee: Obama Inauguration Like Muslim Pilgrimage to Mecca
CNN correspondent Zain Verjee, in a report posted on CNN.com on January 17, likened the expected large crowds for the inauguration of Barack Obama to the Hajj, the annual Muslim pilgrimage to Mecca: "The coming political pilgrimage to Washington is similar to another grand event in both size and preparation -- the Hajj, the most important religious pilgrimage in the Muslim world."
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