Dub? The Trickster Redux?

The Dickster (when he's not shooting quail-hunting cronies) and The Rumster long for the good old days. Like Neo-Nazis who long for a new Führer, these evil twins long for a return to the Imperial Presidency of RMN (The Trickster) before bad ol' Jimmy Carter put a clamp on untrammeled wiretaps. Dub wouldn't know a credible terrorist threat from My Pet Goat. Where's Barbara Jordan when we need her? Will Dub's Court appointees step up when the inevitable challenge to these unlawful wiretaps lands on their docket? If this is a (fair & balanced) impeachable offense, so be it.

[x Slate]
The Nixon Doctrine: If the commander in chief does it, it's not illegal.
By David Cole

President Bush's defense of his order authorizing the National Security Agency to spy on Americans without a warrant ultimately rests on a claim that Congress may not constitutionally limit the president's authority, as commander in chief, to select the "means and methods of engaging the enemy." This argument holds not only that the president has "inherent" power to collect "signals intelligence" on the enemy, but also that that his inherent power cannot be regulated or checked by Congress—even when it includes wiretapping Americans in the United States without a warrant.

This claim of uncheckable or "exclusive" constitutional authority amounts to nothing less than a modified version of President Nixon's infamous 1977 assertion that "when the president does it, that means that it is not illegal." President Bush has revived that discredited doctrine, with only a slight modification. His new formulation: If the commander in chief does it, it is not illegal. This unprecedented assertion cannot be squared with our constitutional structure, which relies upon checks and balances—even during wartime—or with Supreme Court precedent. Indeed, the Supreme Court rejected this precise claim when President Bush's lawyers made it in the Guantanamo detainees' case, Rasul v. Bush, in 2004. The administration, in short, is advancing a conception of presidential power that finds no support in constitutional precedent: the power to act above the law.

The president's argument, articulated in a 42-page single-spaced memorandum submitted to Congress, is that the commander in chief has inherent power to select the "means and methods of engaging the enemy." That power may not be restricted by Congress, the memo reasons. And since electronic surveillance related to al-Qaida falls within "engaging the enemy," the president cannot therefore be restricted in his decision to conduct such surveillance. Detention and interrogation are also "means and methods of engaging the enemy," so it would follow that any congressional effort to regulate these matters is also unconstitutional.

The argument is nothing if not bold. But accepting it would require overturning or ignoring the Supreme Court's decision in Rasul v. Bush. In arguing that case, the Bush administration made precisely the same contention it makes now. It maintained that interpreting the habeas corpus statute to extend to enemy combatants held at Guantanamo "would directly interfere with the Executive's conduct of the military campaign against al Qaeda and its supporters," and would therefore raise "grave constitutional problems." Rejecting this argument, the court ruled that Congress gave federal courts the power to hear these cases. Even Justice Antonin Scalia, who dissented, agreed that Congress could have extended habeas jurisdiction to the Guantanamo detainees. Thus, not one member of the Supreme Court accepted the president's commander-in-chief argument.

The Bush administration's defenders often protest that even if his NSA spying program does violate a criminal statute, the program is not necessarily illegal because a statute cannot override the Constitution. If the president could engage in foreign intelligence surveillance before Congress regulated that conduct through the Foreign Intelligence Surveillance Act, they argue, Congress cannot constitutionally limit his ability to do it thereafter. They point to the fact that before FISA, presidents routinely conducted foreign intelligence surveillance, that courts recognized the legitimacy of that authority, and that the Clinton administration itself asserted the president's inherent authority to conduct physical searches for foreign intelligence purposes before FISA regulated such searches.

But this argument reflects a fundamental misunderstanding of separation of powers doctrine. That doctrine holds that the president's power to act is directly affected by actions taken by Congress. As Justice Robert Jackson explained in his influential concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, a 1952 case invalidating President Truman's seizure of steel mills during the Korean War, under our system of checks and balances, Congress' actions are critical. When Congress has affirmed the president's authority or remained silent, the president's "inherent" powers to take initiative are fairly broad; but when Congress has passed a law expressly barring the president's actions, he may act in contravention of that statute only if Congress is disabled from acting upon the subject. Accordingly, what presidents did before FISA was enacted, or what President Clinton did before FISA applied to physical searches, does not determine what the president may do once FISA criminally prohibits electronic surveillance and physical searches without a warrant.

Congress plainly is not "disabled from acting" on the subject of wiretapping of Americans. It has legislated in this area for years, and its authority to do so stems directly from its authority over interstate and foreign commerce. Moreover, the Constitution gives Congress widespread authority to regulate the commander in chief's conduct of a war. Congress defines the scope of the war under its power to declare war; it decides whether there shall be an army and how much it should be funded; and it creates rules and regulations for the army. It has long subjected the commander in chief to the Uniform Code of Military Justice, enacted statutes regarding the governance of occupied territories, enacted a habeas corpus statute that governs enemy combatant detainees, and prohibited torture, among other things. On the administration's theory of an uncheckable commander in chief, all these laws would also be unconstitutional.

Each time the Supreme Court has confronted a presidential claim that the commander in chief can act contrary to statute, or cannot be checked by the other branches, it has rejected it. In addition to the Guantanamo and steel-seizure cases mentioned above, the court in Little v. Barreme, an 1804 decision, ruled unlawful a presidentially authorized seizure of a ship during the "Quasi War" with France. The court found Congress had authorized the seizure only of ships going to France, and therefore the president could not unilaterally order the seizure of a ship coming from France.

And in Hamdi v. Rumsfeld, the court expressly rejected the president's argument that courts may not inquire into the factual basis for the detention of a U.S. citizen as an enemy combatant. As Justice O'Connor wrote for the plurality, "Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake."

The fact that the Supreme Court has never found a commander-in-chief function that could not be regulated by Congress does not mean, of course, that there are no limits on Congress' power. If Congress sought to micromanage the war by assigning authority to lead the troops to someone outside the president's chain of command and subject to congressional removal, for example, its actions would likely be unconstitutional. But the notion that Congress cannot protect the privacy of Americans during wartime by requiring the president to obtain a warrant before spying on Americans is entirely unprecedented—unless, that is, you consider the bare assertions of Richard Nixon a precedent.

David Cole is a professor at Georgetown University Law Center and pro bono co-counsel in Center for Constitutional Rights v. Bush, which challenges the legality of the NSA program.

Copyright © 2006 Slate

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A Twofer Today

What a day! The Dickster shot a Dumbo hunting pal on a South Texas ranch. The boys were shootin' killer quail; quail are vicious predators after all. The poor victim was standing between The Dickster and a covey taking flight. My cousin wrote from AZ that it was too bad that Dub wasn't hunting with The Dickster. Birdshot isn't lethal to humans it seems. The victim is going to survive.

Instead, this blog goes for the more subtle takes on the Dumbos in "The Modern World" by Tom Tomorrow (click on the image to enlarge)¹ and John Judis' exposure of the Dumbo's war on science.² (It's not just Creationism,)

If this is (fair & balanced) anti-intellectualism, so be it.

1.

2.

THE GOVERNMENT'S JUNK SCIENCE: NOAA's Flood
by John B. Judis

On November 29, top officials at the National Oceanic and Atmospheric Administration (NOAA), which includes the National Weather Service, held a press conference in Washington, D.C., to sum up this year's disastrous hurricane season. The first question from a reporter was one the press had been asking since Hurricane Katrina reached land three months before: "I was wondering if one of you can talk about what extent, if any, global warming may have played in the storms this year?" Noaa's chief hurricane forecast scientist, Gerry Bell, stepped forward to answer. Bell denied that "greenhouse warming" had any effect on the hurricanes. The hurricanes, he insisted, were merely part of "the 20- to 30-year cycles that we've seen since 1950."

Aren't there recent reports, the reporter then asked, that "global warming may have been responsible for the intensity of the storms"? No, Bell said, the storms' intensity was "part of the multi-decadal signal that we see. It's not related to greenhouse warming." According to Bell, there was simply no conceivable connection between global warming and hurricanes. And Bell's denial of a link echoed the statements of other top noaa administrators and those posted on the organization's website. These statements by noaa officials were widely cited in columns and editorials debunking claims of a link between global warming and hurricanes.

There's only one problem: Many respected climate scientists, including some who work for noaa, believe the organization's official line on the link between global warming and hurricanes is wrong. What's more, there is reason to believe that noaa knows as much. In the broader scientific community, there is grumbling that noaa's top officials have suppressed dissenting views on this subject--contributing to the Bush administration's attempt to downplay the danger of climate change. Says Don Kennedy, the editor-in-chief of Science, the journal of the American Association for the Advancement of Science, "There are a lot of scientists there who know it is nonsense, what they are putting up on their website, but they are being discouraged from talking to the press about it."



OAA's official position reflects what used to be the conventional wisdom on the relationship between global warming and hurricanes. Until recently, most empirical climate studies had focused on the frequency of hurricanes; and most researchers concluded that there wasn't a link to global warming--the frequency was connected to cyclical trends. But, in the last year, two important studies have suggested that there is an observable link between global warming and the growing intensity of hurricanes. In August, Kerry Emanuel of MIT, one of the nation's most respected climate scientists, published a study in Nature concluding that global warming may lead "to an upward trend in tropical cyclone destructive potential."

Emanuel was not arguing that global warming caused any particular hurricane, including Katrina. "It's statistically impossible to say this, just as it is impossible to say that a very warm day is a result of global warming," he explains. "All you can say is that the odds of having a day like that increase when you have global warming." In other words, global warming didn't necessarily cause Katrina, but it may be increasing the odds that hurricanes like Katrina will occur.

In September, Peter Webster, H.-R. Chang, and Judith Curry of Georgia Tech and G.J. Holland of the National Center for Atmospheric Research (ncar) published a study in Science that bolstered Emanuel's conclusions. They found "a thirty-year trend toward more frequent and intense hurricanes," which coincided with global warming. While they were careful not to draw final conclusions from the limited period they studied, what they found, the researchers wrote, "is not inconsistent with recent climate model simulations that a doubling of CO2 may increase the frequency of the most intense cyclones." One of the simulations the researchers cited was done by a noaa scientist. Thomas R. Knutson of noaa's Geophysical Fluid Dynamics Laboratory at Princeton and Robert E. Tuleya of Old Dominion University had shown that "if the frequency of tropical cyclones remains the same over the coming century, a greenhouse gas-induced warming may lead to a gradually increasing risk in the occurrence of highly destructive category-5 storms."

These findings have sparked an intense debate among climate scientists. In response to criticism, Emanuel has modified part of his theory without discarding the whole. According to Kennedy, forthcoming papers by Emanuel and by Kevin Trenberth of ncar could strengthen the case for a link between hurricanes and global warming. In the meantime, however, noaa, which has never before taken an official position on such a raging scientific controversy, is making pronouncements suggesting that there is no debate at all.

In making these statements, noaa officials have sometimes included carefully crafted caveats designed to deflect criticism from scientists who know about the controversy. But, because they don't acknowledge the debate explicitly, the general public is likely to miss the caveats' significance. Appearing before a subcommittee of the Senate Commerce Committee on September 20, for instance, Max Mayfield, the director of noaa's National Hurricane Center, said, "The increased activity since 1995 is due to natural fluctuations and cycles of hurricane activity, driven by the Atlantic Ocean itself along with the atmosphere above it and not enhanced substantially by global warming." Noaa officials also resort to clever ambiguities that elude the public. They deny, for instance, any link between global warming and hurricane "activity"--a term that glosses over the distinction between frequency and intensity. The November issue of noaa's online magazine declares that "noaa attributes recent increase in hurricane activity to naturally occurring multi-decadal climate variability" (italics added).

In settings where scientists are not likely to be listening, noaa officials have even dropped the hedged and ambiguous language. On August 30, Conrad Lautenbacher, the head of noaa, said in Weldon Spring, Missouri, "We have no direct link between the number of storms and intensity versus global temperature rise." The next month, when CBS's "Face the Nation" host Bob Schieffer asked Mayfield whether the hurricanes had "something to do with global warming," he replied unequivocally, "Bob, hurricanes, and especially major hurricanes, are cyclical." And, at the noaa press conference, Bell said simply of hurricane intensity: "It's not related to greenhouse warming."

As expected, Rush Limbaugh, Rich Lowry of National Review, The Washington Times, and other conservative voices have cited noaa to attack what Limbaugh has called "the global warming crowd." But noaa's and Mayfield's statements have also influenced mainstream commentators. Citing Mayfield, USA Today editorialized against "global warming activists" who were turning the "storms into spin." CNN correspondent Ann O'Neill counseled against attributing hurricanes becoming "bigger and meaner" to global warming. "Don't rush to blame it on global warming, experts warn," she wrote. And two of the experts she quoted were Mayfield and Chris Landsea, Mayfield's colleague at the National Hurricane Center. Citing Mayfield, a Chicago Tribune editorial issued a similar admonition against linking hurricanes with global warming.



ccording to The New York Times, officials at the National Aeronautic and Space Administration (nasa) have attempted to discourage its chief climate scientist, James Hansen, from speaking out on global warming. The same thing may be happening to scientists at noaa. Francesca Grifo, the head of the Scientific Integrity Program at the Union of Concerned Scientists, says a noaa scientist complained last year of "being what we now call Hansenized." Emanuel, who regularly talks with noaa scientists, says, "Scientists who don't toe the party line are being intimidated from talking to the press. I think it is a very sad situation. I know quite a few people who are frightened, but they beg me not to use their name."

The main instrument of suppression seems to be noaa's policy on contact with the press. Since June 2004, noaa, which is part of the Department of Commerce, has had a policy that its employees have to notify a public affairs officer if a member of the press contacts them for an interview. But the policy was often ignored. Then, on September 29, in the midst of growing public debate over hurricanes and global warming, public affairs official Jim Teet issued a memo requiring that "any request for an interview with a national media outlet/reporter must now receive prior approval by DOC [Department of Commerce]."

Noaa Public Affairs Director Jordan St. John insists that Teet's memo merely restated the existing policy, but, by requiring approval and not merely notification, Teet's order--first publicized by reporter Larisa Alexandrovna of "The Raw Story"--erected an entirely new hurdle in the face of noaa scientists who want to talk to the press. Noaa employees, speaking on background, described the policy to me as "strange" and "unfortunate."

Georgia Tech's Curry, who also serves as a noaa adviser on its Climate Working Group, thinks that what is happening at the organization is an "absolute disgrace." Curry knows of noaa scientists who disagree with noaa's position on hurricanes and global warming but are being told not to talk to the press. "They are being muzzled," she says. Curry also says that officials have been trying to prevent certain scientists at the National Climactic Data Center from even working on the problem of hurricanes and global warming. "You hear about Hansen, but nasa is not really that bad. Noaa is really, really bad," she says.

Perhaps the most telling indictment of noaa comes from Jerry Mahlman. Mahlman joined noaa in 1970, the year it was established, and served from 1984 to 2000 as the director of the Geophysical Fluid Dynamics Laboratory. Retired from noaa, he is now a senior research associate at ncar in Boulder, Colorado. Mahlman, who has continued contact with noaa scientists, says that dissenting scientists are being intimidated from talking to the press and that their papers are being withheld from publication. Mahlman tells me, "I know a lot of people who would love to talk to you, but they don't dare. They are worried about getting fired."

According to Mahlman, the architect of noaa's policy on global warming and hurricanes is its director, Lautenbacher, not underlings like Mayfield and Bell. Lautenbacher, a former naval officer with a Ph.D. in applied mathematics whom Bush nominated to head noaa in September 2001, has been an administration point man on global warming at international conferences, where he justifies the administration's rejection of the Kyoto treaty. At a U.N. climate conference in Milan in December 2003, Lautenbacher declared, "I do believe we need more scientific info before we commit to a process like Kyoto."

Lautenbacher's predecessors regularly voiced their opinions on scientific subjects, but they usually tried to steer clear of politics, and they didn't pretend to be presenting an official position on a scientific controversy. But, under Lautenbacher, noaa has been plunged into Bush administration politics. With the issue of hurricanes and global warming, the organization has entered the even murkier realm of scientific censorship. Noaa, which once exemplified the constructive relationship between science and government, has become an instrument of what author Chris Mooney calls "the Republican war on science." And, in this war, the public is the real casualty.

John B. Judis is a senior editor at TNR and a visiting scholar at the Carnegie Endowment for International Peace.

Copyright © 2006 The New Republic

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