Why should anyone join the CIA counterterrorism effort today?

Stratfor reports on "A Chilling Effect on U.S. Counterterrorism." Does President Obama really think that his promise not to prosecute those who conducted the interrogations corrects for the actions of Congressional Democrats to call for "truth commissions" and prosecution for "torture" of al Qaeda terrorists?

Stratfor argues that:

Politics and moral arguments aside, the end effect of the memos’ release is
that people who have put their lives on the line in U.S. counterterrorism
efforts are now uncertain of whether they should be making that sacrifice. Many
of these people are now questioning whether the administration that happens to
be in power at any given time will recognize the fact that they were carrying
out lawful orders under a previous administration. It is hard to retain officers
and attract quality recruits in this kind of environment. It has become safer to
work in programs other than counterterrorism.

The memos’ release will not have a catastrophic effect on U.S. counterterrorism efforts. Indeed, most of the information in the memos was leaked to the press years ago and has long been public knowledge. However, when the release of the memos is examined in a wider context, and combined with a few other dynamics, it appears that the U.S. counterterrorism community is quietly slipping back into an atmosphere of risk-aversion and malaise — an atmosphere not dissimilar to that described by the National Commission on Terrorist Attacks Upon the United States (also known as the 9/11 Commission) as a contributing factor to the intelligence failures that led to the 9/11 attacks.

Obama now says that he won't prosecute the CIA officer who questioned Khalid Sheikh Mohammed. What will he say tomorrow or what will his Justice Department do if Congressional Democrats continue to demand prosecutions?

Furthermore, what conduct by the CIA will the next administration find to be criminal that is approved by the present administration?

Perhaps the most telling evidence presented in the article is this:

Over the past few years, there has been a dramatic increase in the number of
CIA case officers who are choosing to carry personal liability insurance because
they do not trust the agency and the U.S. government to look out for their best
interests.

Even before the present Obama administration threat to prosecute CIA actions in the War on Terror, case officers lacked confidence in their own government to defend them.

Why will intelligent people risk their lives and careers in defending this country when a change in administration may mean their prosecution and imprisonment?

Apparently KSM was waterboarded 5 times rather than 183 times as previously reported.

Fox News reports that a lot of breathless reporting about Khalid Sheikh Mohammed being waterboarded 183 times are simply incorrect. Fox says that

A U.S. official with knowledge of the interrogation program told FOX News that
the much-cited figure represents the number of times water was poured onto
Mohammed's face -- not the number of times the CIA applied the
simulated-drowning technique on the terror suspect. According to a 2007 Red Cross report, he was subjected a total of "five sessions of ill-treatment."

Anyone who sees the 183 sessions as constituting torture needs to rethink their position.

Democrats' convenient memory and moral grandstanding.

It's amazing how convenient "The Politics of Liberal Amnesia" is. Democratic leadership, including Nancy Pelosi, were informed of the enhanced interrogation techniques and did not object to their use. Congress continued to fund the CIA in its conduct of interrogations. What did the Democrats think was the purpose of such information except to get their approval for such operations?

Furthermore, the Wall Street Journal article quotes Senator Bob Graham during a hearing in 2002:

"Unfortunately, we are not living in times in which lawyers can say no to
an operation just to play it safe," said Democrat Bob Graham, chairman of the
Senate Select Committee on Intelligence during the 2002 confirmation hearing of
Scott Muller to be the CIA's general counsel. "We need excellent, aggressive
lawyers who give sound, accurate legal advice, not lawyers who say no to an
otherwise legal opinion just because it is easier to put on the brakes."

Of course, that was then, this is now. Now that we seem safely beyond the dangers of new al Qaeda attacks, Democrats now want to prosecute the lawyers for being "excellent, aggressive lawyers who give sound, accurate legal advice" rather than simply saying "no to an otherwise legal opinion just because it is easier to put on the brakes." Funny, those Democrats.

Rather than seeing them as "excellent, aggressive lawyers," Democrats now characterize them as careerists willing to approve anything suggested by the President and Vice President in order to win future appointments to the bench or other career advancement.

Democrats now want to claim that the enhanced interrogation methods were not necessary to gain information from Khalid Sheik Mohammad and that any information obtained did not prevent attacks. The article provides these statements from CIA Director George Tenet:

"I believe none of these successes [in foiling terrorist plots] would have happened if we had had to treat KSM like a white-collar criminal -- read him his Miranda rights and get him a lawyer who surely would have insisted his client simply shut up. In his initial interrogation by CIA officers, KSM was defiant. 'I'll talk to you guys,' he said, 'after I get to New York and see my lawyer.' Apparently he thought he would be immediately shipped to the United States and indicted in the Southern District of New York. Had that happened, I am confident that we would have obtained none of the information he had in his head about imminent threats to the American people."

Mr. Tenet continues: "From our interrogation of KSM and other senior al Qaeda members . . . we learned many things -- not just tactical information leading to the next capture. For example, more than 20 plots had been put in motion by al Qaeda against U.S. infrastructure targets, including communications nodes, nuclear power plants, dams, bridges and tunnels."

The Democrats would now punish Bush and others for taking action other than treating KSM and others as though they were white-collar criminals arrested in an ordinary criminal investigation. Tenet's considered opinion is that the CIA would have obtained no information from him and that the planned subsequent terrorist operations would have occurred with an unknown number of casualties and damage to infrastructure.

From the safety and comfort of 2009 one may easily take the morally superior position that Bush and the CIA "tortured" KSM. Undoubtedly, he experienced discomfort and tremendous fright in some of the enhanced interrogations. Does that equate to torture under the law and in view of the extraordinary protections of medical oversight in all of the interrogations?

Furthermore, as to the lawyers who wrote the legal opinions, was the law so clear that they had to know that their opinions were clearly fallacious and that no reasonable lawyer would approve the proposed enhanced interrogation techniques as not constituting torture? In my view, one can reasonably argue that their opinions are mistaken. I do not think one can read the opinions and conclude that they knew their opinions to be erroneous and that they knowingly approved conduct that they knew to constitute torture.

Air Force One buzzes New York.

The New York Times reports that "Jet Flyover Frightens New Yorkers." Of course it did. How could anyone imagine otherwise?

A Boeing 747 and 2 fighter jets flying outside of normal flight paths would bring 9/11 immediately to mind for anyone in New York who saw it. Who could be so stupid as to think it would not?

All that said. As stupid as anyone is to have thought that New Yorkers would react otherwise, one must ask one other question.

What possible reason would lead anyone to send Air Force One to fly around New York? What in the world was the White House thinking to approve such conduct? Was anyone even thinking? Is President Obama so self absorbed that he can't see how incredibly stupid the idea was? Is no one able to say to him, "Don't be stupid"?

I'm sorry, but I see no possible justification for doing what the White House clearly ordered.

It's time to end the farce of the United Nations that generated Durban II.

Many international lawyers, professors, politicians and others continue to emphasize the importance and validity of international law in ordering relations among the nations of the world. Recent events clearly show the bankruptcy of international law and the lack of legitimacy of the United Nations and other international institutions.

The international community cannot deal with the outbreak of piracy near Somalia. The British navy and others refuse to capture pirates for fear that international law will require them to provide sanctuary and a life sinecure to the pirates.

The United States now plans to try the one pirate it captured. Undoubtedly, that will prove to all the extreme expense and difficulty in such prosecutions. A constitutional system designed for ordinary criminal prosecution of domestic crime does not fit well with piracy conducted half a world away.

The United Nations just sponsored a farce in Geneva where the clown prince of Iran spewed forth racist nonsense in a forum supposedly called to oppose racism. Of course, this flows easily from the UN's effort to outlaw free speech that "insults" religion sponsored by Islamic countries. Any objective view of reality would show that the parties most insulting other religions are Muslims and that the Qur'an itself constitutes the greatest source of insults of other religions.

Experts on international law continually call for prosecutions of Israelis and Americans for violations of international law and human rights while remaining silent as to conduct of Hamas, Hezbullah, al Qaeda and others.

Hamas launched thousands of rockets into southern Israel for several years; any of them could have easily landed in a kindergarten and killed dozens of innocent children. Silence greeted the conduct from the world community. When Israel finally acted to protect its people, the international law community suddenly found its voice.

We hear continual demands to prosecute George Bush and others in his administration for interrogating prisoners who had murdered thousands of Americans and planned to murder many thousands more. We now know that the interrogation techniques worked. The administration obtained information that it used to arrest al Qaeda operatives before they launched attacks on Los Angeles.

Far from indicating extensive torture as many would argue, the recently released legal opinions show an administration that limited enhanced interrogation to a few prisoners and attempted to protect those prisoners from abuse. Torturers simply do not concern themselves with the many issues agonized over in the memos.

The time has come to make radical changes in international legal structure. The United Nations and the traditional institutions of international law no longer have credibility. The United States and its allies have to rethink the entire system. That should begin with ending the playhouse on the Hudson before it generates a Durban III.

So where is the outrage from those always so outraged at imagined Israeli violations of international law?

'Haniyeh hid in hospital during Gaza op' according to the Jerusalem Post. Where are the so fastidious practitioners of international law who endlessly lecture the USA and Israel about their supposed violation of international law?

It appears that "Haniyeh, as well as other senior Hamas commanders, took over a ward of the hospital and set up a command center for the duration of the operation." That clearly violates international rules of war by using hospital facilities as a shield for military activities. Of course, that should surprise no one. Hamas used schools and mosques as ammo dumps and launch sites for their rockets.

In addition, field commanders took "advantage of the humanitarian corridor and cessation of action that the IDF instituted every day for several hours to enter the hospital and meet with senior Hamas officials to receive instructions." IDF stopped military operations to allow for humanitarian efforts and Hamas took advantage of it to coordinate efforts to kill Israelis.

There will be silence from the international law advocates. They're too busy preening and strutting their moral superiority at American "torture" of Al Qaeda terrorists and Israelis' efforts to defend themselves from Gazan terror attacks.

States with high unemployment have high income taxes and high unionization.

Jim Lindgren at the Volokh Conspiracy concludes that "High Unemployment States Have High Income Taxes or High Unionization or Both." So what is the solution that Obama offers for this country's economic problems? He gives the orthodox Democratic response to all policy questions - higher income taxes and higher unionization.

Of course, a fundamental part of the Democratic faith is that increased taxes do not affect behavior. Obama and Democrats believe that people will continue to work hard, invest their money and take entrepreneurial risk regardless of how high marginal tax rates are. Reality, experience and facts can not be allowed to interfere with that faith.

Please, Mr. Lindgren, don't expect mere facts to overcome the faith commitment of Obama and the Democrats. They plan to follow their faith regardless of the consequences to the country.

In case anyone doubts, the CIA confirms that waterboarding saved American lives.

This report seems to answer any question as to the efficacy of waterboarding. CIA Confirms: Waterboarding 9/11 Mastermind Led to Info that Aborted 9/11-Style Attack on Los Angeles.

In referring to Khalid Sheik Mohammed as KSM, the report says, "After he was subjected to the “waterboard” technique, KSM became cooperative, providing intelligence that led to the capture of key al Qaeda allies and, eventually, the closing down of an East Asian terrorist cell that had been tasked with carrying out the 9/11-style attack on Los Angeles."

If the attack had occurred, thousands of Americans may have been killed.

The American people have a right to know the facts in order to judge decisions of both the Bush and Obama administrations.

More transparency on the part of the Obama administration?

We now learn that the techniques recently banned by the Obama administration "yielded 'high value information'" according to a memo written by the present national security director, Dennis C. Blair. Of course, a condensed version of the memo deleted that conclusion when it was released to the press by the administration. Is this some of the transparency Obama promised during the campaign?

Blair wrote, “High value information came from interrogations in which those methods were used and provided a deeper understanding of the al Qa’ida organization that was attacking this country.”

“I like to think I would not have approved those methods in the past,” he wrote, “but I do not fault those who made the decisions at that time, and I will absolutely defend those who carried out the interrogations within the orders they were given.”

Both of these statements were deleted from the version released to the press. According to the Times report, "A spokeswoman for Admiral Blair said the lines were cut in the normal editing process of shortening an internal memo into a media statement emphasizing his concern that the public understand the context of the decisions made in the past and the fact that they followed legal orders."

Where "normal editing process of shortening an internal memo" means "deleting anything that would embarrass Obama" then the statement is correct. However, the American people need to know whether the enhanced interrogation techniques provided useful information or not.

The importance of that question can be seen in this from the Times' report:

Several news accounts, including one in the New York Times last week, have
quoted former intelligence officials saying the harsh interrogation of Abu
Zubaydah, a Qaeda operative who was waterboarded 83 times, did not produce
information that foiled terror plots. The Bush administration has long argued
that harsh questioning of Qaeda operatives like Zubaydah helped prevent a
planned attack on Los Angeles and cited passages in the memos released last week
to bolster that conclusion.

Mr. Obama’s team has cast doubt on the effectiveness of the harsh interrogations, but in a visit to the C.I.A. this week, the president did not directly question that. Instead, he said, that any sacrifice from banning those tactics was worth it to uphold the nation’s belief in rule of law.

Even as the Obama team publicly "cast doubt on the effectiveness of the harsh interrogations," Blair was acknowledging their effectiveness in an internal communication within the CIA. No wonder Blair's comments were deleted.

The American people may reasonably accept Obama's decision if the tactics are ineffective, but question his judgment if they provide information that saves thousands of American lives. They have a right to that information.

Steve Forbes: Bag the Stimulus, Cut Taxes.

Steve Forbes speaks truth to power, “We should know by now that stimulus packages don’t work,” he tells CNBC. “It didn’t work in 2001. It doesn’t change tax rates, so it doesn’t change incentives.”

He recommends that we reduce the payroll tax and capital gains tax. “Those things work. We know that from experience. Simply spending more money, that’s one shot and then you’re back to where you were before.”

Of course, the Obama administration seems more interested in using the recession as an excuse to implement Democratic plans rather than finding the best way to speed recovery.

Green jobs - the new Subprime?

The Times warns us "Beware green jobs, the new sub-prime." As one would imagine, President Obama leads the way in trumpeting green jobs.

Of course, when they blow up in our faces, as subprime did, Obama and his friends will be the first to blame "the market" and "decontrol" for their fiasco, as they did their subprime disaster.

The Times reports that "the London borough of Camden commissioned a study to see whether it should introduce electric vehicles for some of its services, it found that 'EVs relying on the average UK mix of energy to charge them were responsible for significantly more particles of soot that lodge deeply in the lungs . . . than the average petrol-powered car.'"

Steven Chu, the Secretary of Energy

suggested that America might have to introduce some sort of “carbon-intensive”
tariff on Chinese goods. One of China’s envoys, Li Gao, immediately retorted
that such a carbon tariff would be a “disaster”, since it could lead to global
trade war.

Actually, Mr Li is right: and this is how an achingly fashionable and well-intentioned plan to create “millions of new green jobs” could instead end up making the global economy even sicker than it is already.

As with the subprime disaster, ideology is trumping economics. If the green jobs were viable, there would be no need for subsidies or tariffs to create or preserve them. These requirements show that the industries and jobs to be created are not viable.

Instead, Obama and his ideologues will destroy real jobs in the name of creating green jobs dependent on government largess for their existence and that will likely lead to trade wars that will destroy the global economy.

Why do so many intellectuals hate capitalism?

Why do so many hate capitalism? More narrowly, why do so many intellectuals hate capitalism? In a paper from 1998 published by the Cato Institute, Robert Nozick provides some excellent insight into the questions.

Nozick provides two major explanations. First, intellectuals do well in school and expect to win praise as they enter society, but find that capitalism does not reward them as well as they think they should be rewarded. They see people with far less intelligence than themselves making great income while they receive a modest professor's salary.

They also assume that intelligent, trained planners can better distribute the society's goods and services than allowing the chaos of the market determine that distribution. Surely, people like them could allocate scarce resources in ways that would raise the living standards of extremely poor by preventing undeserving people from getting too much money.

Why should some dumb jock get paid millions each year when a brilliant Marxist history professor gets paid a pittance? Social planners would take the excess income permitted by capitalism and distribute it properly to the history professors of the world.

Why does the Left in the West make common ground with Islamists who violently reject all of the Left's positions?

This article provides an excellent discussion of why leftists support Islamists. Leftists generally support equal rights for women and gays, free speech, tolerance and oppose religious extremism. Islamists hold opposite views on all of these issues. One would think that leftists would be leading the opposition to Islamists.

In reality, leftists act as apologists for terrorism and the Islamists. The article states that

Glazov concludes that the Left’s “romance with Islamism is just a logical
continuation of the long leftist tradition of worshipping America’s foes. . . .
The Left clearly continues to be inspired by its undying Marxist conviction that
capitalism is evil and that forces of revolution are rising to overthrow it —
and must be supported.” On that basis, militant Islamism is regarded as a
“valiant form of ‘resistance’ against American imperialism and
oppression.”

Hatred of capitalism and the USA trumps all of the other shibboleths of the left to justify making common ground with Islamists. This is the case even though the first action of Islamists if they ever won power would be to behead leftist leaders.

Finally, some sanity about the "torture" memos.

The Obama administration released 4 Office of Legal Council legal opinions regarding whether certain interrogation techniques constituted torture. They are located here.

Fox reports some reactions to the memos. Some of the Democrats' reaction to them are quite predictable, but one wonders if they bothered to read the memos. Jerrold Nadler (D-NY) makes his position abundantly clear:

"These memos make it abundantly clear that the Bush administration engaged
in torture. Because torture is illegal under American law -- as the U.S. is a
signatory to the Convention Against Torture -- we are legally required to
investigate and, when appropriate, to prosecute those responsible for these
crimes."

He wants Bush and his people prosecuted.

The ACLU concurs. "These memos provide yet more incontrovertible evidence that Bush administration officials at the highest level of government authorized and gave legal blessings to acts of torture that violate domestic and international law," ACLU Director Anthony Romero said in a statement.

One wonders how these people arrived at their conclusions. They give no real clue. David Rivkin, a constitutional lawyer, arrived at another conclusion:

"This data is analyzed in great detail to establish that the use of these
techniques does not inflict either physical or psychological damage," said
Rivkin, who served in the administrations of Ronald Reagan and George H.W. Bush.
"The conclusions (the) memos reach -- that the specific interrogation techniques
used by the CIA did not constitute torture -- are eminently
reasonable."

Having read 2 of the 4 memos, I was struck by the extraordinary care taken by the interrogators to prevent physical harm to the prisoners. Perhaps most telling of all, the US military used all of the techniques in training thousands of soldiers and air force personnel for years, including the most controversial waterboarding. None of them suffered physical or psychological damage from the experience.

Sleep deprivation might be uncomfortable for the individual and waterboarding may be terrifying, but neither causes physical or psychological damage. Any conclusion that they constitute torture seems very tortured itself.

Was the DHS report released early for political reasons?

According to AP, "DHS issued report on extremism despite concerns." The report indicates that

Civil liberties officials at the Homeland Security Department did not
agree with some of the language in a controversial report on right-wing
extremists, but the agency issued the report anyway.

Homeland Security spokeswoman Amy Kudwa said the report was issued before officials resolved problems raised by the agency's civil rights division. Kudwa would not specify what language raised the concerns.

This certainly raises the question as to whether the report was issued prematurely as an attack on the scheduled Tea Parties. Of course, DHS may release reports regularly without resolving all issues as to language. That may be standard procedure. I would suspect, however, that such issues are generally resolved through discussions and either revision of reports or acceptance by all parties of the report without modification.

The failure to reach such agreement in this case suggests that it was rushed out for some political reason. If so, that does not bode well for the Obama administration.

Hezbullah threatens a nuclear strike.

Hezbullah are now threatening a nuclear strike in some of their banners at demonstrations.

Surprise, the best people leave companies with government imposed salary limits.

"Exodus of Top Bankers Bad News for the Taxpayer." The report shows top people leaving Goldman Sachs and other companies that took government bailout funds because of the requirement to limit salaries. They are going to companies without such limitations.

Will the Obama administration and the Democrats in Congress learn from this? I doubt it.

From the reaction of Gerald Warner in the Telegraph, perhaps Obama should have stayed home rather than going to Europe.

Gerald Warner writes a column in the Telegraph that concludes that "President Barack Obama has recently completed the most successful foreign policy tour since Napoleon's retreat from Moscow. You name it, he blew it."

Warner points to Obama's failure to get results on the two goals of his trip. Obama wanted to get global funding and coordination of a massive new stimulus package and the deployment of European combat troops to Afghanistan. European leaders listened politely and said "no" to both. They agreed to send non-combatant troops, but no combat troops.

Warner points to contradiction of Obama's loud rhetoric with his actions in the North Korean launch of its rocket. "President Pantywaist is hopping mad and he has a strategy to cut Kim down to size: he is going to slice $1.4bn off America's missile defence programme, presumably on the calculation that Kim would feel it unsporting to hit a sitting duck, so that will spoil his fun."

Warner quotes Obama: "'Rules must be binding,' declared Obama, referring to the fact that Kim had just breached UN Resolutions 1695 and 1718. 'Violations must be punished.' (Sounds ominous.)" Immediately after such rhetoric, Obama announced reduction in spending on missile defense that would offer protection from the North Korean missiles.

His final paragraph will undoubtedly draw complaints of racism to divert attention from the real issue. Warner says,

Watch out, France and Co, there is a new surrender monkey on the block and, over
the next four years, he will spectacularly sell out the interests of the West
with every kind of liberal-delusionist initiative on nuclear disarmament and
sitting down to negotiate with any power freak who wants to buy time to get a
good ICBM fix on San Francisco, or wherever. If you thought the world was a tad
unsafe with Dubya around, just wait until President Pantywaist gets into his
stride.

Of course, France has been referred to as "cheese eating surrender monkeys" or just "surrender monkeys" for some time. Unfortunately, his point seems only too well taken that Obama will follow the usual liberal policies that have led to failure in the past. He seems to be working hard to make Jimmy Carter look like a great president.

Is the Obama administration completely insane?

AP reports that Obama is looking at climate engineering. It says that "The president's new science adviser said Wednesday that global warming is so dire, the Obama administration is discussing radical technologies to cool Earth's air."

Do they know about the bunnies in Australia? Do they ever think about unintended consequences?

Climate engineering scares me far more than any supposed global warming. Admittedly, I am more than a little skeptical that humans are the cause of any global warming. The evidence seems to indicate that the sun was causing any global warming and that the earth is now in a cooling phase.

Playing games with "climate engineering" when we know so little about climate strikes me as extremely dangerous.

The critical importance of failure.

Don Boudreaux at Cafe Hayek says that government has to recognize the importance of allowing businesses to fail at times. The US government seems to think that no major company can be allowed to fail or go into bankruptcy.

Boudreaux quotes from a paper by Pete Leeson that discusses one of the functions of profit and loss:

Profits and losses do for producers what traffic signals do for drivers. They tell them when to “go,” “slow down” and “stop” their productive activities. By communicating which resource combinations consumers value most and which they don't, profits and losses direct “economic traffic,” informing producers how to produce.

If government continues to subsidize companies to prevent them from failing, it allows businesses to continue to employ assets in a less than efficient manner. Allowing for failure permits the redeployment of assets into more productive and efficient business.

It also increases the danger of moral hazard as more people assume that government will bail them out from bad deals. It also provides arguments for government to take increasing control of business, operations and pay scales. If government is going to have to bail out companies for bad mistakes, it has the right to dictate salary structure, risk management, and any decisions to move operations offshore.

Two economics professors say that the toxic assets are correctly valued by the market.

Business Insider reports "The government's official view that toxic assets are incorrectly priced due to illiquidity "fire sales" is wrong, a new study by Harvard and Princeton finance professors suggests." Harvard's Joshua Coval and Erik Stafford and Princeton's Jakub Jurek conclude "that the low prices of toxic assets actually reflect the fundamentals, rather than being driven by an illiquidity discount."

This suggests that many of the financial institutions may be insolvent rather than illiquid as the government has been indicating. This means that "the government cannot save the banks by improving liquidity or changing mark to market rules because the problem isn't illiquidity or accounting. The problem is that highly leveraged financial firms own assets that are worth far less than they thought they would be, and the firms are insolvent as a result."

Attorney General lacks confidence in his opinion that the bill giving voting representation to DC is constitutional.

John McGinnis talks about Attorney General Eric Holder's "End Run Around the Rule of Law." The article concerns the constitutionality of giving a voting Representative to the District of Columbia. McGinnis sets the issue out very clearly:

It is the long standing practice of the Department of Justice to provide
constitutional analysis of any bill that may be presented to the President so
that the President can fulfill his constitutional duty of signing only bills
that are constitutional. As a result, the Office of Legal Counsel had previous
occasion to conclude that this giving voting representation to the District is
unconstitutional. According to uncontradicted news reports, the Obama
administration’s OLC affirmed the same conclusion.

If the Attorney General believed that this opinion was wrong, he could overrule it. Attorneys General previously have themselves rendered legal opinions. An opinion would provide a measure of accountability because General Holder would have to sign his name to a legal document that purported to show how to get around the Constitution’s clear requirement. Indeed, the Obama administration has argued that increasing the transparency of the legal process within the executive branch will increase respect for the rule of law. What better testament to that transparency than to allow us to compare the reasoning of the Attorney General with that of his own
legal counsel?

Instead, the Attorney General asked the office of Solicitor General at a time when there was no confirmed Solicitor General whether that office would be willing to defend the statute, if passed. The Solicitor General’s office has a long history of defending legislation if there is any credible basis for doing so. But it never opines on the constitutionality of pending legislation, because the question for the President in signing a bill is not whether the legislation might be defended by some argument in Court but whether the legislation is constitutional, not whether some Court might uphold it, but whether the President should give it his own unique constitutional
imprimatur.

If Holder truly believes the statute to be constitutional, he should set out his legal analysis for the world to see. Instead, he hid behind an opinion of the Solicitor General's office that didn't even respond to the correct question. Holder asked the Solicitor's office if it would defend the legislation. The real question is the constitutionality of the statute, not whether there is a colorable argument for constitutionality, the usual standard for defending legislation.

This suggests that Holder lacks confidence in his own position.

A politicized Justice Department.

Edward Whelan says, "Look Who's Politicizing Justice Now" in the Washington Post. Whelan writes

In the course of its usual task of reviewing pending legislation to
identify constitutional problems, OLC determined that the D.C. voting rights
bill, which would give the District of Columbia a voting member in the House of
Representatives, is unconstitutional. The acting head of OLC, David Barron -- a
liberal Harvard law professor appointed by Holder -- signed an opinion setting
forth OLC's conclusion. That conclusion is no surprise, as it has been the
Department of Justice's consistent position, under presidents of both parties,
at least as far back as Attorney General Robert F. Kennedy in 1963 and as
recently as two years ago.

The OLC followed consistent prior findings of the Justice Department that the proposal to give the District of Columbia a voting member in the House is unconstitutional.

The Attorney General overruled that decision. The Attorney General certainly has that authority the Office of Legal Counsel only acts pursuant to delegation of authority from the Attorney General. However, Whelan contends that there is a right way and a wrong way for the Attorney General to overrule the OLC.

Attorney General Eric Holder took the wrong course. "The right way would have been for Holder to conduct a full and careful formal review of the legal question. If that review yielded the conclusion that Holder's position was in fact the best reading of the law -- an extremely unlikely conclusion, in my judgment -- then Holder would sign a written opinion to that effect."

Instead, Holder simply asked the Deputy Solicitor General if his office could defend the statute in court. Since the test of such defense is simply whether a colorable argument exists that can be made without embarrassment, he got the response he wanted. Of course, the Solicitor's office could defend the statute in court.

That was not the proper question to provide a basis for overturning the considered judgment of the OLC that the statute was unconstitutional.

What or who started the Great Depression?

Greg Mankiw provides the conclusion from a paper by ULCA economist Lee Ohanian title "What - or Who - Started the Great Depression?" It has some interesting ideas that challenge conventional wisdom about the depression.

Everyone knows that the depression resulted from Herbert Hoover's do nothing approach. Ohanian concludes that:

... the Depression is the consequence of government programs and policies,
including those of Hoover, that increased labor’s ability to raise wages above
their competitive levels. The Depression would have been much less severe in the
absence of Hoover’s program. Similarly, given Hoover’s program, the Depression
would have been much less severe if monetary policy had responded to keep the
price level from falling, which raised real wages.

He contends that the "defining characteristic of the Great Depression is a substantial and chronic excess supply of labor, with employment well below normal, and real wages in key industrial sectors well above normal."

Economic theory would suggest that in a condition of excess labor supply, real wages would fall below normal rather than rising above normal. He concludes that the higher than expected wages resulted from "President Hoover’s program that offered industrial firms protection from unions in return for paying high wages."

Mankiw suggests that this should make everyone think of the macroeconomic effects of card check now before Congress. It was certainly my reaction as I read Ohanian's conclusion. In our present economic situation, increased unionization through card check seems to be the last thing this country needs.

FBI scientists' reports support Blackwater guards' position that they were ambushed by insurgents.

Matt Appuzo with AP reports, "No forensic match for ammo in Blackwater shooting." The AP report continues

FBI scientists were unable to match bullets from a deadly 2007 Baghdad
shooting to guns carried by Blackwater Worldwide security guards, according to
laboratory reports that leave open the possibility that insurgents also fired in
the crowded intersection.

Five Blackwater guards face manslaughter and weapons charges for their role in the shooting, which left 17 Iraqis dead and inflamed anti-U.S. sentiment abroad. Prosecutors say the contractors launched an unprovoked attack on civilians with machine guns and grenade launchers. The guards maintain their convoy was ambushed by insurgents.

The FBI lab reports, obtained by The Associated Press from someone not involved in the criminal case, allow for both possibilities.

It appears that the evidence supports the Blackwater guards' story and refutes the prosecution's case. This raises two questions. Why is the prosecution continuing? Why did this information not come out during the campaign?

Attorney General Holder overrules Justice Department lawyers' opinion that DC voting rights bill is unconstitutional.

The Washington Post reports

Justice Department lawyers concluded in an unpublished opinion earlier this year
that the historic D.C. voting rights bill pending in Congress is
unconstitutional, according to sources briefed on the issue. But Attorney
General Eric H. Holder Jr., who supports the measure, ordered up a second
opinion from other lawyers in his department and determined that the legislation
would pass muster.

One can easily imagine the outcry if a Republican Attorney General had taken such an action against the advice of a Justice Department lawyers.

The story describes conflict within the departments in Justice:

In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified
that a similar bill would not withstand legal attack.

Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.

Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration's position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. Typically, legal scholars said, the solicitor general is asked whether the office can plausibly defend a law in court, rather than to opine directly on the legality of a piece of legislation. The office was asked for the opinion several weeks ago, before the Senate confirmed Elena Kagan as the new solicitor general.

The Office of Legal Counsel found the proposal to be unconstitutional, just it had under President Bush. Holder then asked the Solicitor General's Office for an opinion. They opined that they could defend the position in court.

These are radically different questions. A lawyer may recommend that a proposal is unconstitutional and should not be enacted but can be defended in court if it is enacted. The first represents their advice as a lawyer as to whether the action should be taken. That latter only requires that a good faith argument of constitutionality exists. The lawyer may readily agree that the court should rule against the position advocated, but still think that a good faith argument for the position exists.

If the Post accurately describes the Solicitor General's Office's opinion - "that they could defend the legislation if it were challenged after its enactment," General Holder should not have overruled the opinion of the Office of Legal Counsel. Doing so constitutes a gross politicization of the office of Attorney General.

The Post article includes this comment: "M. Edward Whelan III, who was a deputy at OLC during the Bush administration, said when informed of the matter that Holder's decision to override the office's conclusions amounted to a 'blatant abuse' of the office's purpose."

Clearly, the Attorney General has the authority to take the action he took. If the OLC indicates that the proposal is constitutional, he has some plausible argument to support his decision. If, however, it only says that an argument exists to offer to the courts, as indicated by the Post, he has no real support for his position, except his own unsupported opinion that is contradicted by his own lawyers.

Where does Senator Stevens go to get back his reputation?

Justice Dept. Seeks to Void Stevens' Conviction. This is absolutely disgusting. We have been told for many months that Senator Ted Stevens took bribes and was a criminal deserving of time in prison. As a result, he lost his Senate seat and was convicted of taking bribes.

Now we find out that he was convicted because of prosecutorial misconduct. This raises serious doubts as to the entire narrative. Of course, now the election is over. Senator Stevens is disgraced. How does the former senator win back his reputation?