Out of the Race

We've heard too many times how the Islamofascists believe that if they die as martyrs they'll be greeted in heaven by 72 virgins.

What if it's the same 72 virgins for all the martyrs? Think of the implications!

Sen. Durbin and others who claim that the treatment of detainees at Gitmo is tantamount to torture need to read this, and then they can crawl into a very deep, dark hole and pull it in after them. Idiots!

Credit: Indepundit (aka Smash)

By declining to hear the appeals of two journalists who face prison for contempt of court arising from their refusal to disclose sources, the Supreme Court yesterday indefinitely tabled the issue of a federal evidentiary privilege for journalists. The journalists, Matthew Cooper of Time and Judith Miller of the NYT, now face up to 18 months in prison for refusing to comply with grand jury subpoenas. The MSM (a/k/a the "Exempt Media") is in a tizzy (dare I say "kerfuffle"?) over the decision, but I don't think it is as big a deal as they make it out to be.

First, some background. The two journalists were subpoenaed to testify before a grand jury investigating an alleged leak that disclosed the identity and status of Valerie Plame, a CIA operative, in violation of a Federal statute that makes it a crime to wilfully disclose the identity of an undercover CIA agent. Ms. Plame is the wife of Joseph Wilson, a former State Department official who wrote an opinion piece in the New York Times in which he said that he had been sent to Niger to investigate whether Saddam Hussein had tried to buy uranium there, and that his investigation led him to believe that no such attempt had been made. Not long after the NYT piece ran, columnist Robert Novak wrote that two "senior Administration officials" had told him Wilson was recommended for the assignment by his wife, Ms. Plame, who was a CIA expert on WMD. To the best of my memory, the MSM immediately erupted with stories and editorials about how a crime had been committed by the Bush Administration, demanding that a special prosecutor be appointed to look into the matter and making "cover-up" and "whitewash" noises. In due course, the grand jury investigation into the matter commenced, it came out that the alleged leaker(s) had peddled the story to several journalists, among them Cooper and Miller. The two were subpoenaed and refused to disclose the identity(ies) of the person(s) who had approached them, claiming journalist privilege deriving from the First Amendment.

The currently controlling Supreme Court case on the issue is Branzburg v. Hayes, decided in 1972. In that case the court refused to find a privilege applicable to a reporter who had written about drug trafficking and was subsequently called to testify. The court said that prosecuting a crime was a "compelling state interest" and that requiring the reporter to testify did not violate the First Amendment's protection of press freedom. Since Branzburg, many states have enacted statutes creating a journalistic privilege not to disclose sources, but Congress has never done so.

Boiled down to their essentials, the facts of the case are that a government official leaked information to several journalists, which leak might have been a crime per se. The journalists used the fact that the leak occured to criticize the administration and demanded that the government prosecute the leaker. The administration called the journalists' bluff and opened a grand jury investigation, and at least some of the journalists refused to identify the leaker.
So on the one hand the journalists were criticizing the administration for failure to go after the leaker, and on the other were refusing to identify the very same leaker. I.e., the source of the story was the alleged criminal!

I submit to you that these are lousy facts upon which to base a decision by the highest court in the land creating and defining the existence and scope of any journalistic privilege. Bill Dyer, a Texas trial lawyer who blogs under the pseudonym "Beldar" discusses why here and here.

The justices of the Supreme Court are not dummies, and I suspect the primary reason they rejected the appeal was the terrible factual basis of the case. Better to wait for cleaner facts before giving journalists the same privilege as a clergyman-confessor to keep a criminal's secrets.

UPDATE: For another view on this issue of journalistic privilege, go here.

UPDATE 2: Beldar comments again in response to William Safire's NYT opinion piece on the case.

Seems hard to believe that this could happen to a college student. No, wait ... given the level of education that some high school graduates have acquired, maybe it's not so hard to believe after all.

What's really mind-boggling is, she'd had prior personal experience with this kind of thing, but didn't make the connection.

See the left sidebar for a new thought, expressed today by Trader Bob at Opinipundit. I wish I'd said that.
Credit: Michelle Malkin

Today the Supreme Court decided in a 5-4 split that the City of New London, CT could condemn private property that was not blighted in order to sell the same to a private developer that plans to create a commercial center on it, resulting in higher tax revenues for the City. Kelo v. New London.

There are well reasoned comments about the case here, here and here, among many other sites. The comments come down in favor of both sides of the decision. It will generate dozens, if not hundreds, of law review articles and law school exam questions.

Although I am a lawyer, I do not consider myself a constitutional scholar. But speaking as an informed citizen, I have an uneasy feeling about where this case might lead. The Supreme Court is the only institution in the government that has a mandate to moderate excesses by the other branches. When it fails to do so (and in my view it has so failed in this case), I grow concerned that the Constitution, if it continues to be interpreted as it has been by the current Court, won't be worth the paper it's written on.

UPDATE: Scott Johnson at PowerLine Blog has an interesting post about the political importance of property rights as understood by the Founding Fathers.

Anyone who reads any of the milblogs, or even carefully reads the military reporting in the MSM (after getting past the emotionally loaded wording and editorializing disguised as news), understands that the good guys are winning in Iraq. Those who don't understand what's going on (and those who don't want to understand) are spinning the stories of offensive operations like Matador, Spear and Dagger as desperation on the part of the US and Iraqi military. They are trying to do in Iraq what they did in Vietnam -- make the United States give up by convincing the public that we are pouring blood and treasure down a rathole.

The Bush Administration is doing a lousy job of counteracting the naysayers -- they all sound like they're on the defensive all the time -- making excuses for doing the right thing. If we are to win this war on transnational Islamofascist terrorists, we must stay focused, and the Bushies aren't doing what it takes to remind the American people what's at stake.

Wretchard at Belmont Club has got it right:

What we are witnessing is a race between the force-generation capabilities of two sides. Materially speaking, the enemy is bound to lose. Al Qaeda is openly rushing every available fighter into Iraq. But millions of Iraqis Sunnis, Kurds and Shi'ites who have no intention of being resubjugated, fueled by the oil wealth of Iraq can be counted on to resist them, supported by the most deadly military force in the world. On the face of it the enemy cause would be lost. But in the matter of the will to win the outcome becomes more doubtful. Iraq has become the recruiting focus of a generation of Islamists and Leftists while the United States public has won itself enough temporary safety to forget the dangers of September 11. The enemy's hunger -- almost desperation for victory -- stands in symbolic contrast to the desire among many Americans to close Gitmo. The war in Iraq has bought American homeland security in the most unexpected of ways. The enemy has learned to refrain from awakening the US giant, the better to defeat him in his sleep.

Read the whole thing. Don't forget to read the comments!

With his remarks about US soldiers being equivalent to the Nazis who ran places like Auschwitz and Buchenwald, Sen. Durbin has obviously decided to mount a serious challenge to Sen. Boxer for the title of dimmest bulb in the Senate.

Credit: Little Green Footballs and The American Thinker.

Not Guilty on all 10 counts. Not surprised, although I wasn't following it closely, because all the cable newsies kept saying the defense was able to undermine every prosecution witness, and Jackson's ex-wife told the jury he (moon)walks on water. Reasonable doubt. End of story.

End of story! AMEN! AMEN! AMEN! Wish it could have come sooner!

What'll be the Next Big Story now that Michael's trial is over and after Natalee Holloway's disappearance is solved? Who knows ... but there'll be one because all the cable news channels have 1,440 minutes to fill each and every day. Odds are it won't be anything really meaningful ... maybe something about Lindsay Lohan and how and why she became so emaciated-looking.

UPDATE: One last comment -- a verdict of "not guilty" doesn't mean that Mr. Jackson did not commit the acts of which he was accused. Rather, it means that the prosecution did not meet its burden of proving that he did beyond a reasonable doubt. The law likes the word "reasonable." It sounds good, fair, etc. The problem is, nobody really knows what's "reasonable" until the jury renders its verdict.

First and foremost, I pray that Ms. Holloway is found safe and sound and that anyone who did her wrong is prosecuted and punished to the full extent of the law.

That said, is it just me, or is the MSM going out of its way to describe Ms. Holloway as a "teenager"? At the age of 18, she most certainly is a teenager, but one doesn't often hear the term applied to a person who's reached the legal age of majority. To me the word "teenager" connotes immaturity, poor impulse control, naivity and rebelliousness. In another context, I'm sure that Ms. Holloway would be described as a "woman," which connotes maturity, self-control, self-assuredness and a certain level of worldliness and circumspection.

Why, then, do the media refer to her so often as a teenager? Is it an effort to evoke an emotional response to the story? Is the usage even conscious?

In any event, by all accounts Ms. Holloway's character is much more in line with that of a "woman" than of a "teenager."

So the EU constitution was routed by Dutch voters two days after it was rejected in a respectable landslide by French voters. Why did they vote that way? Who knows, but I think Michael Totten is onto something. He says that the EU Constitution, which is the handiwork of a convention headed by former French President Valery Giscard d'Estaing, is too complex and that if the EU wants a constitution that European voters will ratify, then keep it simple. I couldn't agree more.

Having quickly skimmed over the draft European Constitution, available here in pdf format, a few things stand outfor me. First, unlike the United States Constitution, it creates a "top down" structure rather than a "bottom-up" one. The Union is supreme over each Member State, and the Member States and the citizens of the Union have only those rights and powers that the EuConst and European Government allow them to have. Individual rights are set out in Part II of the EuConst, which contains 54 articles.

Second, the European Parliament may contain as many as 736 members, each elected for a term of 5 years. The Parliament, together with the Council of Ministers, constitutes the legislative branch. The Council of Ministers is made up of Ministers of the Member States.

Third, the European Commission, whose 15 members constitute the executive, is made up of the Commission President and the Foreign Minsiter/VP and 13 other Commissioners selected by the Commission President-elect from lists of candidates submitted by the Member States and ratified by the Parliament. The criteria for selection are "competence, European commitment and 'guaranteed independence'". Commissioners serve for 5 year terms. The European Commission is supposed to be totally independent of the Member States.

Some thoughts and observations:

The top-down form of the proposed EU government indicates that European politics have not really progressed far from the idea of a monarchy. To an American, the notion that the government has plenary power and individuals have only those rights that the government wishes to confer on them is anathema. I have no idea what the European masses think about the proposed EuConst but I guess it's not much different from "the way things have always been." Those who chafed under such a system came to the US.

As wonderful as the many enumerated rights of individuals may be, I think enforcement of those rights will be a practical nightmare, if only because the rights of one person always create a corresponding restriction on other persons. In other words, creating rights is often a zero-sum game. Another issue is that rights not enumerated don't legally exist. There's no equivalent in the EuConst (at least none that I found) to the Tenth Amendment of the US Constitution.

A legislature of 736 will be unruly and it will be difficult to get much done, so the Commission and its President will be pretty much in charge, especially since the Commission is supposed to propose all legislation. How unruly? Look at the House of Representatives with 435 Members. I suspect that the complexity of relationships within such a body increases exponentially with the number of members, rather than linearly. The Parliament is the only institution in the EU Government that's directly elected, and it has the least power.

The real power offices, the Commission, are not directly answerable to the people. The President of the Commission will have much more power in a practical sense than the President of the US. He can dismiss any member of the Commission (Art. 26) and so has a lot of leverage in making the Commission adopt the President's agenda.

Bureaucrats will have a lot of power by virtue of their regulatory function. Again, the regulators are not directly answerable to the electorate. Again, I don't think this is a change in concept from the way things have always been, but it is a change in scale, and there is at least one additional layer of insulation between the regulators and those being regulated.

In short, as others have observed, the EuConst is an effort by a convention led by a Frenchman to create a French-style government for the whole of the EU, and the "qualified majority" provisions pretty much guarantee that nothing of substance will get done unless France and Germany are on board.

I think that the idea of a united Europe is wonderful, and probably a century or so late, but I wouldn't want to live under a government like the one created by the EuConst. If adopted, the EuConst will institutionalize all of Europe's problems and make it an order of magnitude more difficult to solve them. Let's face it, folks, the American Founders in 1789 set up a pretty good system for dealing with a bunch of states with wildly differing interests as well as many common ones. The problem for the Europeans is, it is philosophically impossible for them to adopt a constitution that resembles that of the United States, even though that's probably close to the model that would work best in the real world.

UPDATE: Stephen Green makes a lot of good points about a united Europe.