August 30, 2006

NYTIMES TO WOMEN LAWYERS: YOU NEED TO GET AS SMART AS MEN

A few months ago, in a Horsefeathers piece about the foolishness of a NEW YORK TIMES article by Timothy O’Brien bemoaning an alleged paucity of women partners in “Big Law Firms”, I noted the irony that Mr. O’Brien, even while claiming that more feminization would benefit the “Big” firms, was suggesting that women would do better in such firms if they were more manly (that is, according to Mr. O’Brien, were more aggressive, more competitive, more ego-centric, more self-promoting, more grasping). Now the TIMES, in an article entitled “Women Suddenly Scarce Among Justices’ Clerks” (8/30/06) by Linda Greenhouse, reveals another manly attribute women should acquire in order to get ahead in the law: get smarter.

Ms. Greenhouse, the TIMES’ Supreme Court reporter, reports on a decline in number of women law clerks hired by Supreme Court Justices, pointing out that “women account for only 7 of the 37 law clerkships for the new term”, whereas “there were 16 women among the 43 law clerks hired by last term’s justices”. Although Ms. Greenhouse cannot resist implying a lurking discrimination somehow at work, the relevant non-speculative information in her article makes clear that unsuccessful women applicants for the new term’s clerkships simply did not have the “smarts” that the men did.

Thus, Justice Souter (certainly not one to discriminate), whose previous clerks were more than one-third women, did not hire any women for the new term because he “hired the top four applicants, who turned out to be men”. Justice Breyer, who did fill two of his four clerkships for the new term with women, nevertheless emphasized that he “choos[es] the best available candidates” and “makes no conscious effort” to hire women. And both Justices Souter and Breyer pointed out the likelihood that the drop in women law clerks reflected simply “a random variation in the applicant pool”.

The problem with women’s “smarts” is also evident from, as Ms. Greenhouse puts it, “the relative scarcity of female students among the top editors of the leading law schools’ law reviews – an important preclerkship credential”. Similarly, there is an “absence of women among the ‘feeder judges,’ the dozen or so federal appeals court judges who, year in and year out, offer a reliable pipeline to the Supreme Court for their own favored law clerks”.

Clearly, the smartest clerkship applicants for the new term – that is, the “top” or “best” ones – were predominantly men, to an even greater extent than in prior terms, and the new hires simply reflect that fact. If women want to change that dominance, they need to get as smart as the men.
---Arnold Roth

BY FORCE OF FANTASY: THE PLAME-WILSON FAIRY TALE

        Samuel Johnson, when confronted with Bishop Berkeley's theory of the non-existence of matter, kicked mightily at a stone from which his foot rebounded and said: "I refute it thus". More than 200 years later, the poet Richard Wilbur offered the perfect post-Modern reply when he wrote: "Kick at the rock Sam Johnson/Break your bones/But cloudy, cloudy is the stuff of stones."
        The Valerie Plame tale should be regarded for what it is-a post-modern fable, ideally expressive of the mode of thought current in media wordsmith graduates of our Ivy League liberal arts faculties. From the very beginning, the rocks of facts making up the story were secondary. It was, for the Bush haters on the left, a cloudy cloudy PoMo narrative, a moral fable about a brave man, Joe Wilson, fighting the evil Bush regime and forced to defend his woman from the scurrilous efforts to punish him by revealing her secret CIA identity. Who cared that the facts were otherwise, that Joe Wilson was a self promoting failed diplomat, and his wife, not only not undercover, but well known as a CIA employee by many in the Beltway elite. In fact, not a single fact of the story invented by the Bush haters turns out to have been true.
        Horsefeathers predicts that the 'Plame outed by Bush White House' fantasy, even if shaken by facts, will ultimately prevail among its adherents. The perfidy of Richard Armitage and Colin Powell,(see Fess Up, Mr. Armitage.) concealing the knowlege that would have rendered the months of grand jury investigation unnecessary, should qualify them for the Benedict Arnold award. It tied up the office of the Presidency for months in unnecessary legal procedures, cost the brilliant geopolitical strategist, Scooter Libby his job, and forced Karl Rove to worry about barely remembered events of absolutely no consequence. As the endless repetition of the fantasy became the media's nightly theme, the President's personal ratings declined, robbing him of the necessary charisma to be the war leader we needed. He became a duplicitous Nixon like figure willing to create and use an 'enemies' list. Leading the list was Joe (No Yellow cake in Nigeria) Wilson. The fantasy narrative will turn the facts into cloudy, cloudy stuff, because the liberal Bush haters need it. Facts are too threatening, unless wrapped in a narrative security blanket.
        Prediction: Armitage will be presented as a hero for his role in restraining the hell bent on war Bush administration. Even though he was the first to leak Valerie Plame's identity to the press, he will be hailed for his role in unleashing a special prosecutor to look into the 'illegal' activities of the administration. Scooter Libby will continue to be villainized as a Neo-Con who seized on the Plame leak to cast doubt on Joe Wilson and to smear his and her reputation. And on and on, because the fantasies of the left are infantile defenses they need to ward off their actual cowardice and submissiveness to our enemies. They don't rely on facts but on wishes. This is the real hidden truth of the left-liberal media and educational elite: they are moral and physical cowards, who unconsciously yearn to submit to a bin Laden or Zawahiri. They can pretend however, to be fiercely aggressive---vs. President Bush! They're like an adolescent boy who rages against his father's way of life, knowing full well he doesn't risk next year's tuition. These bold adolescents can safely say and imply the most awful things about the President. Just because the facts disprove their every claim, those facts are not as stubborn as the wishful fantasy that only Bush is to blame for our troubles in the world. Yes indeed, the hard rock of truth must yield to the cloudy, cloudy stuff of stones.

August 22, 2006

"MOTHER COURAGE" PRODUCED BY THE GANG THAT COULDN'T THINK STRAIGHT: THE PUBLIC THEATER

There must be a war on. Every time there’s a war on a gang of actors and producers get together and put on Brecht’s “Mother Courage and Her Children” because they think it is an anti-war play.

As I walked briskly down the path toward the Delacorte Theater at about 6:30 of a cool August weekday morning last week I noticed a line of sleep-ridden, bedraggled figures a quarter of a mile in length along the path. They could have been homeless derelicts, except that most of them were young and well furnished with air mattresses, laptops, I-pods, Blackberries, and text-messaging cell-phones. Half of them were still asleep, the other half were groggy and trying to organize themselves.

I was on my way to the Seniors’ Bench in front of the theater where, if I was lucky, I would be rewarded with two “free” tickets to the Public Theater’s production of “Mother Courage and Her Children” that evening. The production was in its fifth day of previews and not scheduled to “open” for three days. There is much theatrical buzz about this production because it features celebrity stars Streep and Kline, and celebrity writer Tony Kushner—author and prophet of the gay theatrical world since his epic six hour play “Angels in America.”

Oh, the ironies, the ironies! Piled one on top of the other like the apartments along Fifth Avenue and Central Park West looking down on the Delacorte Theater in Central Park. Who would have believed that in New York, one of the richest cities of the world, the center of capitalism in America, the center of capitalism in the world, where apartments sell for $1000 per square foot and more, where statistically every tenth person is a millionaire (at least in real estate values)—who would have believed that a play written by the poet of the proletariat, by an unrepentant communist till the day he died, the recipient of the Stalin Peace Prize, would be playing in a million dollar production in this jewel of a park.

The ironies seem positively Brechtian in their political cynicism and layered hypocrisies,
starting with Brecht himself. Born into the high bourgeoisie, his father a director of a paper factory, Brecht was pampered all his life by his parents and pretty little housemaids who encouraged his sexual development. He wore the finest hand-made clothes, smoked the best cigars as an adult, and as soon as he gave up his adolescent imposture of the tough, impoverished, bohemian poet, he lived comfortably by exploiting his mistresses and wives, and lived the last eight or nine years of his life like a prince, or rather a commissar, behind the Iron Curtain. He scorned the company of the working classes, never worked a day of his life as a laborer and was never poor. Perhaps Marieluise Fleisser, one of Brecht’s many, many mistress/collaborators said it most clearly: “In the final goal he wanted to help human beings. But in daily practice he was a despiser of humankind.”

The audience for that evening’s performance, about 1800 people, appeared not to be members of the proletariat either. As they lay or stood along the path waiting to be rewarded with a pair of free tickets, they appeared prosperous, well equipped with electronics, and to be members of the leisure class since it was a work day and the working classes were rushing to get to work on time. Even though the play was about the little guys of the world, the poor and the exploited, none of those were recognizable in that evening’s audience as it sprawled on the park grass.

If the proletariat was not present in the audience to hear this political wake-up call to the working classes of Germany and Europe in 1939, it was even more absent amongst the movers and shakers of this production, who were, according to the New York Times, Oskar Eustis, the artistic director of the Public Theater, George C. Wolfe, the play’s director, and Meryl Streep and Kevin Kline, millionaire film stars. Without the latter, it is doubtful that the play would have been mounted in this expensive venue. Ordinarily “Mother Courage,” almost never produced commercially because of its heavy-handed political message, is seen in sparse off-Broadway productions or university theaters where costs can be kept down.

This production has a cast of 25 actors, 7 musicians, 6 directors, 5 designers, and approximately 90 members of the production staff. How much must that cost for a New York City production with gunshots, explosions, actors falling off ramparts, theatrical rain and snow, among other spectacles. We’re talking in the hundreds of thousands, aren’t we? Cheaper than the Thirty Years War perhaps, but not by much.

Everyone is getting good money for all this—the six-figure bureaucrats who run the Public Theater, the actors, and the supplementary staff. So who’s paying?

Well, the producers, have no risk in this enterprise. Like good capitalists they have cleverly transferred the risk to the taxpayers of New York City, New York State, and the United States of America—at least in part. From the taxes paid by people like Joe Boski who lives in Astoria and cleans boilers and never heard of the Delacorte Theater, much less what’s playing there. And Shirley Strauss, a widow who works half-time as a nurse’s aid in Skaneateles, New York, and has never been to the theater in her life. And John Marks, who works at the Bangor Broom Factory making straw brooms for two dollars over the minimum wage and who shoots rabbits on Saturdays to put meat on the family table. Bertold Brecht? Who’s he? Each of these folks contributes a few dollars to the budget of “Mother Courage” at the Delacorte Theater without knowing it.

If Brecht knew what was going on here, what would he say?

“The rich are still busting my balls
only they’re stars now not queens,
and they need to get their political rocks off.

Who’s still riding on whose back?”

The problem with the Public Theater is that even though the taxpayer supports it he has no input into the kinds of plays that are produced, unlike the commercial theater where the audience members have something to say about the quality of what they see. Where the marketplace has no input the ideology of the bureaucrats determines what is financed and presented. And over the last thirty years that has turned out to be largely attuned to the sensibilities and politics of the left—gays, feminists, and black minorities. So the real beficiaries of this system are the denizens of Greenwich Village and the Upper West Side and not the “Public.”

There’s a bit of an East German Workers Paradise mentality once you fall within the orbit of the Public Theater. The ticket distribution system is a case in point. Once you become a waiter-in-line you are treated very strictly and lectured frequently about where you may or may not stand or sit or lie down; when you may go to the bathroom and for how long; what you may eat and where you may eat it. All these rules, you are told, is because they must treat everyone the same. Worker efficiency, competence, courtesy are devalued, and you, the person paying for all this, become the supplicant since they’ve set it up so that they hold all the cards.

The notion that the tickets are “free” is nonsense. In order to get them you have to spend many hours doing the work of waiting. Lines were part of life behind the Iron Curtain, because nothing worked efficiently. Now the Public Theater has managed to set the economics of entertainment back fifty years.

But perhaps the most interesting irony is the Public Theater’s misunderstanding of the play. The production is, from start to finish, meant to be an anti-war/anti-Bush statement. That is, no doubt, why important big-money stars like Streep and Kline were drawn to this project. And with Tony Kushner (a born-again pacifist/socialist) in the bargain to modernize the language what could be more fun?

There are plenty of anti-war clichés which the audience laps up because of the way the actor delivers the line: “To go by what the big shots say, they’re waging war for almighty God and in the name of everything good and lovely. But look closer, they ain’t so silly, they’re waging it for what they can get. Else little folk like me wouldn’t be in it at all.” But the main thrust of the play is about something quite different.

“Mother Courage” had its origins in 1939. after the Nazis invaded Poland from the west and Soviet Russia invaded Poland from the east—an arrangement made a few days earlier when the Hitler-Stalin non-aggresion pact was signed. This began the first phase of World War II—the so-called “Phoney War” during which nothing very much happened except the Nazis bided their time and prepared for their invasion of the west without having to worry about fighting a war on two fronts. It was during this time, while Brecht was on the lam from the Nazis and living in Sweden, that he wrote the play.

At that time, from the beginning of September 1939 until May 10, 1940, there was no war to speak of. The fighting in Poland was over after a few weeks and the invasion of France and the Low Countries had not begun. And no one really knew what a horrific war it would become, not even Brecht.

At that time he was bitterly resentful and preoccupied with those who played along with the Nazis and enabled them to achieve power in Germany—the war-profiteers—the rich and powerful industrialists in Germany and the Swedish steel-makers who sold much needed steel to Hitler. That is what the play is about. Therefore the warning in scene 8: “…in which case you shouldn’t forget the ancient saying that whoever sups with the devil needs a long spoon,” which may be taken as the moral of the play.

Mother Courage is an entrepreneurial war-profiteer. A “hyena.” The play is a Marxist trumpet blast at the capitalists: WAR IS MONGERED BY CAPITALISTS WHO PROFIT FROM ITS PURSUIT! AND US LITTLE PEOPLE ARE SUCKERED INTO IT BY BOURGOIS VALUES LIKE PATRIOTISM AND HONOR AND DUTY!

If Brecht had lived in the eighteenth or early nineteenth century he would have been a pamphleteer—not a playwright. That is what “Mother Courage” is—a political comic book with POW! and BAM! and with the simpleist of chronological plots; with bad guys and good guys you can identify by how they look and dress; with characters who are stereotypes: Yvette, the tough whore with heart of gold; the son who is dumb but honest; the mute daughter who is sweet natured, naïve, and dreams of being a mother. There are three main “characters” who have no character, not even any names, who are only mouth pieces for the contradictory thoughts of Mother Courage: the cook, the chaplain, and Mother Courage are all really one character—Bertold Brecht, who was probably the most entrepreneurial Communist that ever lived. He was always on the lookout for the main chance and for ways to exploit anyone he could—friends, lovers, collaborators.

The play is an anachronism. It looks backwards from 1939 to centuries of religious wars—like the Thirty Years War—monarchical wars in which kingly whims were motivators of war and so-called nobles fought each other over who owned what. This went on in Western Europe for fifteen hundred years, until the end of World War II. Since then the countries of Western Civilization have not participated in “Marxist” wars: wars of the powerful for personal profit or gain. They have been fought over ideology—whether wealth is to be distributed by a central authority (with all its injustices and unfairnesses) or by a more or less free market (with all its injustices and unfairnesses) since no system for distributing wealth is ever perfect.

Brecht’s atavistic view of war and capitalism is as dead as Communism is itself. (Even in The Peoples Republic of China capitalism is flourishing.) In Western Europe war is also dead, unthinkable since no country has enough of an army to make war on any other country. All the fighting in Western Europe (and soon Eastern Europe) occurs in Brussels among gabbling bureaucrats on a thousand different commissions.

The old motives for war are dead as well. Wherever there is a free and open press, with free mass media, and a free blogosphere; wherever there are freely elected governments with distributed power; wherever there is a more or less free marketplace with a system of wealth distribution which allows the redistribution of wealth through trans-generational effort and education—in such venues there can never be war in Brecht’s sense.

Brecht and the Gang that Couldn’t Think Straight are singing to the wrong choir. They should try North Korea, or any of the dictatorships of Central Africa, or Saudi Arabia, or the other Islamic dictatorships where Brechtian wars can still occur.

The performance that night? Oh, yes. It was much too long as it usually is because those who undertake to produce Brecht believe his words are more or less sacrosanct. They really believe that he wrote great masterpieces like Shakespeare and therefore his words must not be tampered with.

And poor Streep was clearly out of her depth. Too good-looking, bones too fine, manners too good. She should have worn a dirty wool seaman’s cap instead of a snappy officer’s cap. She tried mightily to be tough and earthy, straining too much at it. She miscast herself. Mother Courage should have been played by an ageing Ethel Merman—a little fatter and older than Merman was in Gypsy.

In any case the director and two of the main actors, Streep and Austin Pendleton who played the Chaplain, could not play the scenes the way Brecht would have wanted them played. Brecht’s theory of Epic Theater calls for a kind of acting which is the opposite of Stanislavskyian acting. Since Brecht believed that drama should be used primarily for propagandistic purposes rather than entertainment, he wanted the audience to be kept from being swept away in waves of emotion. He wanted them to be able to attend to the intellectual content of the messages he was sending. So he did not want the actors to be caught up in their characters the way Stanislavsky and the famous Actors Studio trained Marlon Brando and the others of that group.

Brecht said that there were two ways of playing Mother Courage: the way that it’s usually played, the sentimental way, as Streep played her that night. In this case Mother Courage is played as a hero—emotionally she feels she is the indomitable Mother Courage who triumphs over the adversity of losing her three children in an interminable war, and is able to go on in spite of her suffering and pain.

Helene Weigel, Brecht’s last wife, played Mother Courage in the 1949 East Berlin production, directed by the master himself. This production became the gold standard by which other productions and performances came to be judged over the years. About it Brecht wrote, “Weigel’s way of playing Mother Courage was hard and angry; that is, her Mother Courage was not angry; she herself, the actress, was angry. She played a merchant, a strong crafty woman who loses her children to the war one after another and still goes on believing in the profit to be derived from war….Mother Courage learns nothing from her misery…even at the end she does not understand. Few [who saw the play] realized that just this was the bitterest and most meaningful lesson of the play.” Try telling that to the Gang Who Couldn’t Think Straight.

Brecht went further. He wrote in 1954, a couple of years before he croaked (as he himself would have put it): “[Despite its success] I do not believe, and I did not believe at the time [1949], that the people of Berlin—or any other city where the play was shown—understood the play. They were all convinced that they had learned something from the war, what they failed to grasp was that, in the playwright’s view, Mother Courage was meant to have learned nothing from her war. They did not see what the playwright was driving at: that war teaches people nothing….The audiences of 1949 and the ensuing years did not see Mother Courage’s crimes, her participation, her desire to share in the profits of the war business; they saw only her failure, her sufferings. And that was their view of Hitler’s war in which they had participated: it had been a bad war and now they were suffering.”

And late that night Brecht’s ironic prophesy came true once more. Neither actors nor the audience understood the real meaning of the play. Streep played Mother Courage as the long-suffering indomitable hero as she felt she was in those final moments, left standing alone on the stage triumphantly. And the audience loved her. They stood, shouted, applauded, whooped as though she were Meryl Streep, Eleanor Roosevelt, Mother Teresa, and Joan of Arc rolled into one. It was a love fest. It could have been an East German Workers Collective but it was only the Upper West Side of Manhattan joining hands with celebrity to hate war and George W. Bush together.

And was it a trick of my imagination that I thought I saw a figure hovering over the trees of Central Park during the shouts and applause shaking his head and grinning cynically?

August 20, 2006

REVOLT OF THE CITIZENRY

        The great success of Western capitalism has produced a wordsmith class that is utterly removed from the harsher realities of human nature. This pampered governing and media elite shares a fantasy view of human nature as basically benign; aggression is only reactive, not innate. Multicultural egalitarianism is a religious faith, promoted by liberal arts faculties and not subject to refutation by mere facts. An article of faith is that all conflicts can be "resolved", and "worked through" so that force need never be used. Such politically correct ideas have real world consequences. If you believe, despite the centuries of bloody evidence, that Islam is a peaceful religion rather than a totalitarian ideology fomenting hatred of Jews and other 'infidels', you will try to remove the misunderstanding that provokes jihadis to become enraged. This requires endless self flagellating apologies and sensitivity to hurt feelings. It means that you dare not profile at airports, for fear of provoking young Muslim men to blow up airplanes.
        There are encouraging signs that not all 'infidels' are willing to swallow the prescribed politically correct pabulum. A revolt of the non-P.C. citizenry took place yesterday:

Mutiny as passengers refuse to fly until Asians are removed
Passengers refuse to allow holiday jet to take off until two Asian men are thrown off plane

"...British holidaymakers staged an unprecedented mutiny - refusing to allow their flight to take off until two men they feared were terrorists were forcibly removed.

The extraordinary scenes happened after some of the 150 passengers on a Malaga-Manchester flight overheard two men of Asian appearance apparently talking Arabic.

Passengers told cabin crew they feared for their safety and demanded police action. Some stormed off the Monarch Airlines Airbus A320 minutes before it was due to leave the Costa del Sol at 3am. Others waiting for Flight ZB 613 in the departure lounge refused to board it.

The incident fuels the row over airport security following the arrest of more than 20 people allegedly planning the suicide-bombing of transatlantic jets from the UK to America. It comes amid growing demands for passenger-profiling and selective security checks.

It also raised fears that more travellers will take the law into their own hands - effectively conducting their own 'passenger profiles'..."

See the complete story here.

        The reporting does its laughable best to defend higher politically correct values from this deplorable assault by the unwashed masses, referring to "Asian men" in an effort to disguise their identities, and quoting a Tory official saying, "For those unfortunate two men to be victimised because of the colour of their skin is just nonsense."
        As he did so often, Churchill got it right when he said:

"The worst difficulties from which we suffer...come from within. They do not come from the cottages of the wage earners, they come from a peculiar type of brainy people always found in our country, who, if they add something to its culture, take much from its strength. Our difficulties come from the mood of unwarrantable self-abasement into which we have been cast by a powerful section of our own intellectuals.... Nothing can save England if she will not save herself. If we lose faith in ourselves, in our capacity to guide and govern,if we lose our will to live, then indeed our story is told."

August 18, 2006

ISRAEL'S FAILURE: THE SAME DIAGNOSIS APPLIES TO THE U.S.

        Yuval Steinitz (see below) has written a withering critique of Israel's approach to war. Where a Patton was needed, they got an incompetent Halutz and a bumbling Olmert. Horsefeathers discerns no American Pattons either. Hopefully, some will arise to replace those who seem to have spent more time at the Kennedy School, learning diplomacy, instead of the art of war. Steinitz, citing Victor Hanson's historical studies shows that the Western way of war has succeeded by its effectiveness at killing the enemy, by taking the ground battle to him using speed, surprise and flexibility. Patton is the archetypal Western battle commander. He made the essential point about the need for ground troops to be always on the offensive, colorfully but memorably. He also made clear that the emphasis must be on killing the enemy, not minimizing casualties.

"War is a bloody, killing business. You've got to spill their blood, or they will spill yours...I don't want to get any messages saying, 'I am holding my position.' We are not holding a Goddamned thing. Let the Germans do that. We are advancing constantly and we are not interested in holding onto anything, except the enemy's balls. We are going to twist his balls and kick the living shit out of him all of the time. Our basic plan of operation is to advance and to keep on advancing regardless of whether we have to go over, under, or through the enemy. We are going to go through him like crap through a goose; like shit through a tin horn!.."

        The Post-modern, Western way of war prides itself, not on victory, but on minimizing casualties. Israel strove so hard to limit civilian casualties (getting of course no credit from the world's Jew haters) that it neglected to defeat its enemies. Instead it expended much effort explaining why victory was unachievable. Recall this: our enemies killed 3000 American civilians in one day--and celebrated-- while we search for every opportunity to flagellate ourselves over the deaths of one enemy prisoner. Israel is at war for weeks and kills less than a thousand and diplomats cry halt. The most damaging fallout from Israel's delicate, politically correct prosecution of the war, is that the surrounding jackals, having drawn blood, will seek a second holocaust soon with renewed vigor.
        America is deeply infected with the same disease of political correctness. We too have forgotten how to wage war and too many of our Generals seem to have spent more time learning the arts of diplomacy than the art of war.

The war that was led astray
By Yuval Steinitz

Why was Israel prevented from trouncing a relatively minor terror organization, like Hezbollah, operating from the smallest, weakest nation in the region? How did we fail, not only to achieve our declared objectives, but in the far more vital effort of protecting the State of Israel from a missile and rocket attack for more than four weeks? Was this a specific failure of an inexperienced political leadership? Or perhaps the product of haughty, arrogant Israel Defense Force top brass, who closed its ears to criticism of exaggerated dependence on air power? Or perhaps, are these all symptoms of a far more serious disease: the culture of war we adopted since the first war in Lebanon in 1982...
See the rest here.

August 17, 2006

GUNTER GRASS: THE MIND OF THE MORALIST

        Many authors of fiction are not content to create their imaginary worlds for our entertainment. After all, they are 'artists', striving for higher truths. They like to pretend that they possess superior moral wisdom and understanding of the real world. Unlike most of us, their falsehoods, if skillfully and entertainingly rendered, can win them acclaim and sometimes Nobel Prizes. Doesn’t their creativity make them special?
        Well actually, no. The human mind is always 'creative' as it seeks to find solutions to the psychic conflicts that are part of human nature. Why should verbal creativity be valued above, say, the creativity of the guy in the parking lot at Yankee Stadium who found a way to shoehorn my car into a lot that looked full to bursting? And unlike most authors of novels, he was upfront about his motivation: money.
        Should verbal creativity be more highly prized than scientific or technological, or athletic, or just plain everyday problem solving creativity? Creativity is one universal functional aspect of the human mind. Its uses are limitless, for good or ill. A patient whose life is saved by a novel surgical procedure might value his surgeon’s creativity more than the deft verbal skills of a Gunter Grass. Moreover, non-wordsmiths are unlikely to claim moral superiority in the fashion of wordsmiths. That surgeon doesn't feel called upon to lecture his patient on the immorality of capitalism; he just enjoys its benefits and does his job using creativity when needed.
        These traits of self-righteousness, moral condescension and entitlement, flow from the exalted status of the writer of fiction. But who granted that status? Well, guess what, its the writers themselves! As Robert Nozick pointed out, wordsmith intellectuals have always valued their own work above all others, and wrote down this self flattery as ‘truth’. The benighted, less verbally talented citizenry is expected to show proper deference to the views of the “great” scribblers. Hence, when a leftist mountebank like Gunter Grass, rants about the evils of Amerika and happens to possess a Nobel prize for literature, we are supposed to nod seriously and think of him as a man who cares for all humanity.
        What a loathsome piece of work Mr. Grass turns out to be, an imposter who hid behind his self-created shield of moral righteousness ever since he was saved from death in World War II by the kindness of American soldiers. It makes you wonder how much valuable ink and paper might have been saved, had they taken no prisoners. Ever since his capture, Grass has yearned for “peace”, and has been thwarted by the forces of darkness in America. He has worked hard to equate the evil Bush empire with the Nazism he at one time, proudly served. It almost makes Horsefeathers yearn for the straightforwardness of another “great” writer, Gertrude Stein, when she said: "…Hitler ought to have the peace prize, because he is removing all the elements of contest and of struggle from Germany. By driving out the Jews and the democratic and Left element, he is driving out everything that conduces to activity. That means peace ... By suppressing Jews ... he was ending struggle in Germany" (New York Times Magazine, May 6, 1934.)

Here are the details about Grass from Wikipedia:

Disclosure of Waffen-SS Membership

On 11 August 2006, in an interview [1] about his forthcoming book While Skinning an Onion, Grass stated that he had been a member of the Waffen-SS. Before this interview, Grass was seen as someone who had been a typical member of the "Flakhelfer generation", one of those too young to see much fighting or to be involved with the Nazi regime in any way beyond its youth organizations.

After an unsuccessful attempt to volunteer for the U-Boat fleet at age 15, Grass was conscripted into the Reichsarbeitsdienst, and then called up for the Waffen-SS in 1944. He was trained as a tank gunner and fought with the 10th SS Panzer Division Frundsberg until its surrender to US forces at Marienbad. At that point of the war, youths could be conscripted into the Waffen-SS instead of the army; this was unrelated to membership of the SS proper. Grass said [2]:

"It happened as it did to many of my age. We were in the labour service and all at once, a year later, the call-up notice lay on the table. And only when I got to Dresden did I learn it was the Waffen-SS."

As Grass has for many decades been an outspoken left-leaning critic of Germany's treatment of its Nazi past, his statement caused a great stir in the press. Grass's biographer Michael Jürgs spoke of "the end of a moral institution" [3]. Lech Walesa has severely criticized Grass [4] for keeping silent about his membership for 60 years. Also, Joachim Fest, a German journalist and biographer of Adolf Hitler, told Der Spiegel:

"After 60 years, this confession comes a bit too late. I can't understand how someone who for decades set himself up as a moral authority, a rather smug one, could pull this off."[4]

Rolf Hochhuth said it was "disgusting" that this same Grass, "politically correctly", had publicly criticized Helmut Kohl and Ronald Reagan's visit to a military cemetery at Bitburg in 1985, because it also contained graves of Waffen-SS soldiers.

On August 14, 2006, the ruling party of Poland, the "Law and Justice" party, called on Grass to relinquish his honorary citizenship of Gdańsk. Jacek Kurski stated, "It is unacceptable for a city where the first blood was shed, where World War Two began, to have a Waffen-SS member as an honorary citizen." The mayor of Gdańsk, Paweł Adamowicz, said that he opposed submitting the affair to the municipal council because it was not for the council to judge history.[5]

On August 15, 2006, the online edition of German weekly "Der Spiegel" published three documents of US forces dating from 1946, verifying the membership of Günter Grass within the Waffen-SS.

August 15, 2006

DO NOT ALL CHARMS FLY? DEREK JETER'S TRANSIENT MOMENT

        Horsefeathers expects that when Sharia law arrives, baseball will be banned as a Godless infidel sport. After all, it is profoundly anti-utopian while at the same time quintessentially American in being open to anyone, regardless of social background. Talent rules, but the game will ultimately humble everyone. Paradise is transient. Mighty Casey always strikes out. I remember Joe DiMaggio, not just for his storied achievements, but for his limping, pain ridden body, struggling unsuccessfully to catch up with fly balls he formerly put away with ease and grace; Mickey Mantle unable to catch up with high hard ones, and whiffing; Casey Stengel going from hapless failure to astounding success and back to failure. In fact, failure is the norm, with occasional bursts of success. The law of averages rules and it is 55 years since Ted Williams hit over .400. The greatest successes inevitably foreshadow the next checked swing, and strike three. The game always ends, and today’s victor is tomorrow’s loser. And of course, every individual player faces the end- mortality, the slowed reflexes, the joint pains, the torn muscles, the signs of physical decay that most of their non-athletic peers can ignore or deny.
        Even the greatest moments in baseball are just that- transient moments. They’re over in a flash, a few seconds at most. They live only as memories, and are therefore more like the actual song of the Nightingale, than the Ode to a Nightingale. Sometimes they're not even recorded by those who were witnesses. One such moment, overlooked by local sportswriters, occurred during Monday night’s baseball game at Yankee Stadium between the Angels and the Yankees. It was a desultory, mid-summer game, with the teams tied at 2-2 in the bottom of the 7th. Momentum seemed to be going in the Angels' direction as they fought back from a 2-0 deficit. Derek Jeter, in his MVP season, had put the Yankees ahead with an early home run. Now he came up with a runner on first and no one out. Everyone in the stands anticipated a sacrifice bunt to move the lead runner into scoring position. So too, did the Angels. The third baseman was almost on top of home plate, challenging Jeter and reducing the ground he had available to lay the bunt down. The pitch came in, a fastball in on the hands, impossible not to pop up or foul back, but somehow, Jeter pulled his hands in, jackknifed his body away from the ball, and softly caught the blazing fastball on the barrel of his bat, deadening it. It dropped as if it had become an animate extension of Jeter's hands. He had taken the speed out of the pitch and the ball slowly rolled towards third base, hugging the foul line and dying in fair territory, as the third baseman, initially reacting as if it might roll foul, picked it up and threw—too late. This was the Platonic ideal of the bunt, the most perfect example this observer has witnessed. Soon the go ahead, winning run scored.
        After many years of observing baseball, Horsefeathers agrees with the Sabermetrics view that bunts are a bad bargain; outs are precious, and should not be given away deliberately. We tend to go with the numbers rather than the received, usually wrongheaded wisdom. However, Derek Jeter reminds us of the limits of quantitative analysis. Statistics would have argued against Jeter’s bunt, but creative genius prevailed. You cannot ‘unweave a rainbow’. John Keats has the last word in Lamia.

"…Do not all charms fly
At the mere touch of cold philosophy?
There was an awful rainbow once in heaven:
We know her woof, her texture; she is given
In the dull catalogue of common things.
Philosophy will clip an Angel’s wings,
Conquer all mysteries by rule and line,
Empty the haunted air…

August 13, 2006

POLITICAL CORRECTNESS KILLS

Ari Shavit makes the diagnosis:

"...we must ask already now: What happened to us? What the hell happened to us?

A simple thing happened: We were drugged by political correctness. The political correctness that has come to dominate Israeli discourse and Israeli awareness in the past generation was totally divorced from the Israeli situation. It did not have the tools to deal with the reality of an existential conflict. It did not have the tools to deal with a reality of an inter-religious and inter-cultural conflict. That is why it focused entirely on the Palestinian issue. It made the baseless assumption that the occupation is the source of evil. It assumed that it is the occupation that is preventing peace and causing unrest and perpetuating the instability.

At the same time, political correctness assumed that Israeli strength is a given. That Israel is insanely strong. Therefore, political correctness disdained any attempt to build and maintain Israeli strength. The defense budget was cut, the values of volunteerism were mocked, the concepts of heroism and fortitude became despicable. Since the Israel Defense Forces was identified as an army of occupation - rather than as an army defending feminists and homo-lesbians from the fanaticism of the Middle East - they had reservations about it, they shook it off and became alienated from it. After all, in the spiritual world of political correctness, power and army have become dirty words..."
See the rest here.

Islamo-Nazism correctly understands that a second holocaust, the annihilation of Israel, will spell the end for the infidel West. The disease of political correctness is not confined to Israeli elites; its symptoms are raging in America, and Mahmoud Ahmadinejad has noticed.

JOHN BOLTON INTERVIEW

Don't miss this interview of John Bolton by Pamela of Atlas Shrugs. Her questions are the ones you won't hear asked by the Sunday TV pundits. In other words, the crucial ones. Thanks Pamela!
         We conclude that Israel's feckless political leaders, needing to be bailed out, leaned on the Bush administration to come up with the UN resolution, rather than the other way around. Bolton seems almost palpably disappointed by the "facts on the ground", although he puts the best possible face on it, emphasizing the US efforts to protect Israel. Without Bolton to hold the line against the world's anti-Israel terror appeasers, things could have been much worse.

August 12, 2006

LETTER FROM HAIFA

Professor Steven Plaut writes:

An Open Letter to Prime Minister Ehud Olmert

Dear Prime Minister Olmert:

I am writing this to you to beg that you NOT stop the katushas from
falling on me and my family in Haifa by means of the proposed ceasefire.


I and my family, including my children, live in Haifa, which has been
hit by hundreds of rockets, out of the 4000 missiles fired into Israel these past five weeks. The proposed ceasefire you evidently are considering agreeing to is an Israeli capitulation. We do not believe it will lead to the dismemberment of Hezbollah terrorism and arrest of terrorists. And, in particular, it would cease the hostilities without the immediate return of the two Israeli soldiers kidnapped by the Hezbollah terrorists.


Mr. Prime Minister, if I have to choose between the proposed ceasefire, which would leave the two kidnapped soldiers in Hezbollah captivity to become two new Ron Arads, disappearing forever into the bowels of the terror netherworld, or to continue being the recipient of hundreds more katyushas over coming weeks until the soldiers are released, then – Mister Prime Minister – I CHOOSE THE LATTER!


Do NOT stop the katyushas falling on me and my family by abandoning the soldiers to such a fate. Do not be concerned about me and my children – we will cope. Our upper lips are as stiff as they come. Like the British in the 40s, we will grin and bear the blitz that the Israeli Labor Party, led by Ehud Barak, is raining down upon us from Lebanon. So just let the blitz continue, only do NOT agree to any ceasefire capitulations!


Do NOT abandon the two soldiers on OUR account! In fact, if anything,
we demand other preconditions for a ceasefire not included in what the UN has brokered. Refraining from firing rockets at us is NOT ENOUGH!


We prefer to be targeted to kayushas to abandoning Ron Arad himself. Do not agree to a ceasefire unless he is turned over to us. Do not agree to a ceasefire until Nasrallah himself is turned over to Israel, or at least his head is. And should he be turned over, then you must summarily execute him at once and bury him in a pig skin. The Lebanese do not agree to those conditions? Fine – then let the katyushas on Haifa continue, the important thing being that the military operations against the Hezbollah continue!


We in Haifa deny you permission to trade our safety for a premature end to the fighting! If you choose the path of cowardice, like all your political predecessors in Israel did these past two decades, then do NOT say you are doing so on OUR behalf! You do so on your own and in your own name, not in ours. We choose more katyushas to capitulation and appeasement!


Israel has been given a choice between capitulations and more
katyushas; we choose the missiles!


Sincerely yours,
        On behalf of the Plaut Family and all Zionists in Haifa

THE PROSPECT OF BEING HANGED IN A FORTNIGHT CONCENTRATES THE MIND WONDERFULLY

Suddenly, the dithering Ehud Olmert's mind seems to have become concentrated by the possibility that Israel is about to lose a war. He finally seems to be noticing that words are insufficient. It's not clear that the IDF can accomplish significant goals before the UN imposed cease fire takes hold. There are suggestions though that the gloves are finally coming off.

"...In the last few hours, Hizballah’s command and control in the south is showing signs of distress after finding itself cut off from reinforcements and re-supply from the north by the rapid Israeli advances of the last four days.

DEBKAfile’s military sources update Israel military movements:

The Northern Division: From Wednesday, this division has been advancing north from Israel’s northernmost town of Metulla towards the plain of Nabatea, north of the Litani River, taking the town of Marjayun en route. Early Friday Aug. 11, when Israeli PM Ehud Olmert and defense minister Amir Peretz gave the go ahead for the expanded offensive, the division split in two. One headed north and entered the village of Blat east of the crook in the Litani River – a vantage point for artillery control of the Nabatean plain to the west, and Hasbaya to the east.

The second segment of the Northern Division has been positioned since Thursday on the southern bank of the Litani after capturing Qantara.

For the moment, this division is positioned on a number of hilltops along the river bank with fire control over parts of the Nabatea plain.

Saturday or Sunday morning, these troops should reach the Hardaleh bridge, one of the two linking central Lebanon to the south.

In this part of the front, Israeli troops are fighting Hizballa’s Sector No. 5.

Our military sources report that the Northern Division has encountered little Hizballah resistance in its push north. They are estimated to have gone to ground to await their moment to counter-attack. Local inhabitants in this area are friendly, some even point Israeli troops to possible Hizballah hideouts and arms caches.

Division 162: Since Wednesday, this division under the command of Brig.-Gen Guy Tsur, has been driving north along the eastern bank of Wadi Saluki in the Eastern Sector of South Lebanon up to the Central Sector. Saturday, this division fetched up at Froun village on a hilltop opposite the Litani and west of Taibe and Deir Mimas. This high point affords the division fire control of the Qeaqea bridge, the second most important one spanning the Litani.

The bridge was destroyed by an Israeli air strike at the outset of the war.

This division is fighting Hizballah’s Sectors 3 and 4.

DEBKAfile’s military sources report that the division commanded by Tsur is now following a westerly route along the Litani’s southern bank up to the Mediterranean coast and a place called Burj el Haoua, which is midway between Sidon and Tyre south of Beirut.

Once in position there, the IDF will be able:

1. To tighten the siege of Tyre from the north.

2. Be ready to cross the Litani and head north of the river if ordered to do so.

Division 91: Under the command of Brig. Gen Gal Hirsch, this division has also been in motion since Wednesday heading west to the Mediterranean coast from a point north of Bin Jubeil. The members of this division fought heavy battles at Ras Baida north of the Israeli town of Rosh Hanikra, and at the villages of Shmaa, Majdel Zun and Mansura south of Tyre. By Saturday morning, this division had managed to stabilize a line south of Tyre from a point north of Bin Jubeil up to Ras Baida, thereby completing the siege of Tyre from the south.

A fourth division operating mostly undercover with special operations units took control Friday and Saturday of sections of the dividing seam between Divisions 162 and 91. This gap covers the war arenas of Qana village, Jouiya and Maarake. This division has been entrusted with tightening the eastern section of the siege enclosing Tyre and preventing Hizballah harassing the flanks and rear of the two divisions.

Late last week, Hassan Nasrallah managed to rush several hundreds of fighters of his Bader Force to reinforce this arena.
See the rest here.

FOOLS AND MADMEN WELCOME 'PEACE IN OUR TIME'

The genocidal Nazi project didn't die with Hitler. It is the openly stated policy of Mahmoud Ahmadinejad and Hassan Nasrallah and their Jihadi followers. Similarly, the urge to submit to force, lives on in the weak willed, fantasy-ridden West. Blinded by dreams of peace, by the belief in 'resolutions' and 'diplomatic initiatives', pacifist fools in denial, and totalitarian regimes, collude to ignore the corrupt reality of the UN, and grant it authority to wrap its rescuing arms around Hezbollah.

The cease fire resolution passed unanimously by the Security (aargh!)Council actually guarantees more war--only bloodier. It will correctly be viewed as a victory by Iran, revealing the pusillanimity of the West, its reluctance to fight when, instead, its diplomats can pass UN resolutions. Therefore, Iran will vigorously press ahead with their goal of wiping out Israel, secure that after the mushroom cloud over Tel-Aviv they will likely face nothing more than an expression of disappointment by Kofi Annan. How many of our state department Arabists recall Neville Chamberlain's remarks when he returned from negotiating a peace agreement with Herr Hitler? So far, the best we seem able to do is thwart terrorist attacks and then act collectively like frightened schoolchildren. Are we still capable of rage against our enemies, of inducing fear in them, or has political correctness totally sapped our will to prevail?

The following is the wording of the statement that Neville Chamberlain waved when he stepped off the plane after the conference in Berlin had ended on 30 September, 1938.

"...We are resolved that the method of consultation shall be the method adopted to deal with any... questions that may concern our two countries, and we are determined to continue our efforts to remove possible sources of difference, and thus to contribute to assure the peace of Europe...My good friends this is the second time in our history that there has come back from Germany to Downing Street peace with honor. I believe it is peace in our time."

August 09, 2006

CHARACTER ASSASSINATION: NEW YORKER STYLE

Horsefeathers welcomes this important contribution by counselor, Arnold Roth. One of the defining attributes of the contemporary Liberal mind is its sanctimonious self-regard. Jane Mayer of the New Yorker is a perfect representative of the type. She is a living example of what Dr. Johnson referred to as "articulate ignorance". We would argue that Roth's extensive critique derives its importance, not just from its careful examination of Mayer's duplicities, but from the way it exposes an entire mind set, the mind of the Liberal.

THE NEW YORKER VS. DAVID ADDINGTON: DISHONEST, UNPROVED AND FRIVOLOUS. CASE DISMISSED.

Liberal hysteria has it that the Bush administration improperly seeks to expand presidential power and thereby to trash the Constitution. A Washington lawyer named David S. Addington, presently the successor to Scooter Libby as Vice-President Cheney’s chief of staff, has become a lightning rod for such hysteria. When Addington took over for Libby, the liberal press and lefty blogs were predictably filled with grumbling about his allegedly over-expansive views of presidential power, allegations that pretty uniformly were based on conclusory opinions of others (largely unnamed) as to Addington’s beliefs, rather than on any specific statements by Addison himself about the scope of such powers. A NEW YORK TIMES profile (11/2/05) did provide some real facts about Addington: he is regarded as “a kind of legend with the bureaucracy, a man of formidable intelligence, passionate, conservative views and a frequently eviscerating style toward those who openly disagree with him”, and Democrats “who have worked with him say that they do not regard him as particularly partisan; [one] says Mr. Addington is ‘tough, to be sure, but he’s also very direct, and I’ve found him to be very professional and very honest’”.

The liberal complaints about Addington, and the liberal frenzy about his alleged efforts to expand presidential power, peaked in an scurrilous article about him in the July 3 NEW YORKER, written by one Jane Mayer and entitled “The Hidden Power: The legal mind behind the White House’s war on terror”. Mayer’s basic position is that

"[Addington] doesn’t care about the Constitution . . . [H]e has played a central role in shaping the Administration’s legal strategy for the war on terror. Known as the New Paradigm, this strategy rests on a reading of the Constitution that few legal scholars share – namely, that the President, as Commander-in-Chief, has the authority to disregard virtually all previously known legal boundaries, if national security demands it. Under this framework, statutes prohibiting torture, secret detention and warrantless surveillance have been set aside . . . [T]he Administration’s legal positions were, to a remarkable degree, 'all Addington'".

A NEW YORK TIMES editorial (7/16/06) saw the article as a “chilling” look at the Administration’s alleged “effort to undermine the constitutional separation of powers”. A letter printed in the NEW YORKER (7/24/06) described the article as “excellent” and claimed Addington to be “a disgrace” as a lawyer. And lefty blogs were orgasmic.

The liberal enthusiasm for Mayer’s article was unsurprising, in that it clearly fueled already-existing liberal paranoia and told leftys exactly what they wanted to hear: bad Addington, bad Cheney, bad Bush, bad Administration, blah, blah. But for anyone not already convinced of Mayer’s conclusions, even a cursory reading reveals the article to be devoid of any probative and credible evidence to establish those conclusions. They are based, instead, on innuendo, gossip, rumor, unreliable hearsay and unsupported conclusory assertions, together with a gross misstatement of pertinent legal authority, and the article therefore amounts to nothing more than vicious character assassination. Accordingly, I say that the NEW YORK TIMES and the letter noted above got it just backwards, and that it is the Mayer article that is truly “disgraceful”, and it is Mayer’s journalistic technique for tarring Addington that is truly “chilling” and despicable.

Disclaimers. – My purpose here is not to argue about the propriety or usefulness of Administration efforts to fight the war on terror. I simply intend to demonstrate that (a) Mayer does not establish her premises that Addington “has played a central role” in those efforts and that his views are out of the constitutional mainstream, and (b) accordingly, her article is just another unwarranted liberal hatchet job.

I know that this piece is very long and maybe, to some, mind-numbing in detail. This is because I want to deal as completely as I can with enough of Mayer’s many assertions in her lengthy article (12 New Yorker pages and over 33 columns), and to avoid the kind of unsupported conclusory assertions in which she and her alleged sources indulge, so that you have a real basis for determining for yourself whether I am right or not.

I don’t know Addington, and don’t think I ever heard of him (if I did, it didn’t stick) until I read Mayer’s article. I don’t know whether he is a good or bad guy, or what are his views on the extent of presidential power, the treatment and trial of Guantanamo detainees, the NSA surveillance program, presidential signing statements or other liberal hot-button issues. What I do know is that you don’t get reliable answers from Mayer.

I also don’t know Mayer, and am unaware of having heard of her or read anything by or about her before her Addington article, although I now know that she has been described as “a long time Clinton loyalist”, has written extensive criticisms of the Administration, and co-authored a book attacking Supreme Court Justice Clarence Thomas. I did wonder about her journalistic morals as I read the flimsy “support” for her conclusions about Addington, and later found that her standards and ethics have been questioned before. For example, David Horowitz asserted in an article entitled “Lies of The New Yorker” that Mayer totally disregarded a long interview he had with her, and ignored documentary evidence, in writing “a politically motivated caricature” of himself in the 9/27/99 NEW YORKER, and characterized her reporting as “underhanded” because

"the reality [is] pretty much the opposite of the picture Mayer presents, [and] the facts are all in print, so that even if Mayer didn’t believe a word I said . . . she could have referred to the documentary record to check her opinions with evidence. Obviously this was not something that interested her".

Similarly, a note in JEWISH WORLD REVIEW noted that Mayer wrote a “slimeball piece” in the 11/20/00 New Yorker that was “an extraordinarily dishonest hit job on former New York Press columnist” John Ellis”, in that it “portrays him as a dilettante” and gives the “impression . . . that Ellis was hired by Fox News [as an election analyst] for mere access [to his cousin George Bush]”, but nowhere “mentioned Ellis’ impressive resume” or noted that “Ellis’ professionalism is respected within the political community, by people of both parties”. And Mayer’s book on Justice Thomas was described by a former special assistant to then-Chairman Thomas at the EEOC as “one of several grotesquely dishonest books on Justice Clarence Thomas”; was said in an article at REAL CLEAR POLITICS to be “riddled with factual errors”; and was characterized in the Horowitz article as a “diatribe” for which “an apology by her to Clarence Thomas was in order”. I don’t know anything about the underlying facts of those comments, and I guess Mayer would at least pretend to argue with them, and you can make up your own mind, but I would say, based on my analysis, that the words and phrases “underhanded”, “the reality [is] pretty much the opposite of the picture Mayer presents”, “evidence . . . was not something that interested her”, “slimeball piece”, “extraordinarily dishonest”, “grotesquely dishonest”, “riddled with factual errors” and “diatribe” could aptly describe her Addington article.

The Article. – Mayer’s article, which is accompanied by a full page cartoon of Cheney and Bush watching with delight as Addington shreds the Constitution, sees the Administration, with Addington as the guiding force, as having unconstitutionally attempted to expand presidential power in various ways, such as by using military commissions to try Guantanamo detainees, permitting warrantless electronic surveillance by the NSA, and undercutting congressional legislation by the use of signing statements. Mayer’s core criticism is about the military commissions, which, she alleges, “Addington was instrumental in creating”. Mayer suggests – wrongly, as it turns out – that military commissions are an aberration, having been used only a few times by President Franklin Roosevelt, and asserts – again wrongly – that Administration reliance on the 1942 Supreme Court decision in Ex parte Quirin that approved such use was inappropriate because Quirin is “arcane”, “out of date” and “one of the worst Supreme Court cases ever”. Mayer complains that the military commissions deprive suspected terrorists of rights available to defendants in criminal and military courts, because:

"The overarching intent of the New Paradigm, was to allow the Pentagon to bring terrorists to justice as swiftly as possible. Criminal courts and military courts, with their exacting standards of evidence and emphasis on protecting defendants’ rights, were deemed too cumbersome. Instead . . . [t]error suspects would be tried in a system of military commissions . . . devised by the executive branch",

and because:

"the [executive] order [setting up the military commissions] provided that “it is not practicable” to apply “the principles of law and the rules of evidence generally recognized in the trial of criminal cases in the United States district courts.” . . . The Department of Defense circulated internal memos suggesting that, in the commission system, defendants would have only limited rights of confront their accusers, see all the evidence against them, or to be present at their trials. There would be no right to remain silent, and hearsay evidence would be admissible, as would evidence obtained through physical coercion. Guilt did not have to be proved beyond a reasonable doubt".

Mayer has no information from Addington himself about his views and actions with respect to the military commissions or any other matter. As she notes, and apparently as is largely dictated by his extensive national-security work, Addington “is extremely private”, “does not speak to the press or allow photographs to be taken for news stories”, and “declined repeated requests to be interviewed for this article”. She also admittedly has no “public paper trail”, and likewise has no non-public “paper trail” (oh, where are those anti-Bush leakers when you need them?), that disclose any such views or actions.

Accordingly, Mayer is forced to rely on a hodge-podge of alleged statements by third-party sources to fabricate her construct of Addington as a man whose views and actions are blatantly and knowingly unconstitutional. She sums up her fabrication in Colin Powell’s alleged and (since Powell admittedly disavowed them) probably made-up words that “Addington . . . doesn’t care about the Constitution”.

Mayer’s alleged sources are multitudinous, suggesting her hope that ostensible verisimilitude can be achieved through mass, and include alleged “constitutional” scholars and experts, Addington’s childhood acquaintances, an Addington sister, the military attorney representing a Guantanamo detainee, and many disgruntled present and former government lawyers and employees. Some sources are named, but most are predictably anonymous, being identified only by such favored reportorial sobriquets as “prominent Washington figures”, “someone who knows”, a “former high-ranking Administration lawyer”, “Many constitutional experts”, “prominent constitutional scholars”, “colleagues”, a “former colleague”, a “former top [CIA] lawyer”, a “former military official”, a “former national security lawyer”, “other administration lawyers”, “other hard-line lawyers”, “another participant”, “yet another participant”, “many administration officials”, “multiple sources”, “administration lawyers”, a “senior Administration legal adviser”, “Government officials”, “members of the Administration”, “critics”, “other officials”, “sources familiar with the meeting”, “a former Administration official”, “several talented top lawyers”, “other reform minded government lawyers”, “those involved”, “top N.S.A. lawyers”, and “some constitutional scholars”.

Mayer’s assertions are unsupported and unsupportable. As Points A and B below demonstrate, Mayer is simply wrong, and deceitful, in asserting that the Administration’s use of the military commission, and its other actions, are out of the constitutional mainstream. As points C and D demonstrate, Mayer has simply failed to provide any reliable information as to Addington’s actual constitutional views and his actual role in Administration actions, with the result that her charges that he “doesn’t care about the Constitution”, and that those actions were “all Addington”, are unproven.

A. The Hamden Decisions, And Mayer’s Deceit, Demonstrate That Her Assertions About The Military Commissions Are Wrong. – Mayer’s basic premise is that the Administration’s positions on the military commissions and other matters are so far out of the mainstream of constitutional interpretation that those positions amount to a trashing of the Constitution (with, as caricatured in the cartoon accompanying her article, Addington as the chief trasher). Unfortunately for Mayer, and even if we assume for argument’s sake that Addington was the architect of those positions, the judicial decisions culminating in the recent Supreme Court decision in Hamdan v. Rumsfeld destroy her premise and, whatever they mean for the future of military commissions, demonstrate the shallowness and unreliability – indeed, the gross error – of Mayer’s basic constitutional and legal assumptions. Because the Hamdan decisions so clearly devastate her contentions, Mayer carefully and deceitfully avoids any mention of them, aside from noting the imminence of the Supreme Court decision when her article was published.

1. In Hamdan, a deeply split Supreme Court reversed a Court of Appeals decision, and ruled that Hamdan, a Guantanamo detainee, could not be tried by a military commission convened under the Administration plan. A District Court judge had originally upheld Hamdan’s challenge to his military commission, and ruled that he could not be tried by such commission. On appeal, with now-Chief Justice Roberts on the panel, the three-judge Court of Appeals for the D. C. Circuit unanimously reversed, and upheld the military commission as a proper tribunal to try Hamdan. The Supreme Court granted review, and in late June 2006, reversed the Court of Appeals, and ruled that Hamdan could not be tried by the commission, in a decision by Justice Stevens joined in part by four others (Justices Kennedy, Souter, Ginsburg and Breyer), and in part by only three others (Justices Souter, Ginsburg and Breyer). Three dissenters (Justices Scalia, Thomas and Alito) would have affirmed the Court of Appeals and ruled that Hamdan could be tried by the commission. Chief Justice Roberts did not participate, but his involvement at the Court of Appeals level makes clear that, had he participated, he would have joined the dissenters and made four Justices voting to uphold the commission.

It is unnecessary here to discuss the complexities of the Hamdan decisions, or to examine Justice Scalia’s contention that the Supreme Court majority has “made a [statutory] mess”. It is enough to note the following to demonstrate that the Hamdan decisions devastate Mayer’s article, and reveal her to be ignorant (as are most journalists) of the pertinent law, and deceitful in failing to reveal clearly material facts.

2. When Mayer’s article was published, the effective decision with respect to the military commissions was the three-judge Court of Appeals decision in Hamdan upholding the commissions. Giving credence to the accusations noted above that she often distorts and omits facts, and ignores evidence that doesn’t fit her story-line, Mayer never discusses, or even reveals, the existence of the Court of Appeals decision or the fact that – contrary to her assertions of Administration overreaching, unconstitutional action, disregard of previously known legal boundaries, and undue deprivation of detainees’ procedural rights – the decision held that the creation and use of military commissions were proper exercises of presidential power. Thus, the unrevealed truth is that, even assuming the unproven premise that Addington was totally responsible for the commissions and had forced them through over the objections of others, at the time of Mayer’s article the Court of Appeals had made clear that such commissions were not only not out of the constitutional and statutory mainstream, but were entirely legitimate presidential instruments.

The fact that Mayer noted the imminence of a Supreme Court decision in Hamdan does not excuse her failure to reveal the Court of Appeals decision and its validation of the military commissions. The pertinent question – particularly in light of her reliance on alleged extra-judicial sources that uniformly allege the military commissions to be improper – is not whether there was a Supreme Court decision in the offing, but rather whether an honest journalist could properly refrain from revealing the then-controlling legal authority that unanimously held the commissions to be legal, and showed her alleged sources to be wrong. While you can answer that question for yourself, my own answer is that Mayer was willfully deceitful in failing to disclose and discuss that authority. And her deceitful omission is all the more glaring in light of the fact that the Government had moved to dismiss the case in the Supreme Court on the ground that Detainee Treatment Act had deprived the Court of jurisdiction, and the motion (which the Court had deferred for decision until its decision on the merits, and which was ultimately denied by a 5-3 vote in the final Hamdan decision) was still pending when Mayer’s article was published, with the consequence that if granted (and Mayer could not know whether it would or would not be granted) the unrevealed Court of Appeals decision would have remained the controlling one.

Mayer’s willful failure to disclose the clearly relevant Court of Appeals decision necessarily raises other questions: what else did she omit? Did she fail to reveal statements by her alleged sources that were inconsistent with, or modified, the statements she attributes to them? Did she fail to reveal interviews she had, or documents she read, or knowledge she otherwise acquired, that contradicted her alleged sources or her own assertions? In other words, her undeniable omission – for the obvious reason that her story-line was flatly contradicted by the Court of Appeals decision – has the unavoidable consequence of calling into question everything else she says, and making one wonder what else has she omitted to tell us because it shows her premises to be false. [The situation that Mayer has created by her omission reminds me of the common jury instruction – and you can pretend here that you are a juror sitting in judgment on Mayer and her article -- that, if jurors find that a witness has lied, either by actual misstatement or by omission, with regard to any one matter, they may properly disregard the witness’s entire testimony.] And in fact, as shown hereafter, Mayer has omitted many other material facts that contradict her story-line and her alleged sources.

3. Mayer is not saved from the consequences of her omission by the fact that the Supreme Court in Hamdan reversed the Court of Appeals, for the following reason.

There are now 12 judges who have dealt with the Hamdan issues: one District Court judge, three Court of Appeals judges and eight Supreme Court Justices. Of those 12, six have upheld the use of the military commissions (the three Court of Appeals judges and three Supreme Court Justices), while six (the District Court judge and five Supreme Court Justices) have rejected their use. It is certainly true that the Supreme Court decision rejecting use of the commissions is now the controlling legal authority, and all lower court judges are bound to follow it. However, the fact that six judges upheld the commissions when they had the authority to do so, while six judges went the opposite way, demonstrates that the issues raised by the creation and use of military commissions are close and difficult ones, and means that it is just plain wrong to assert – as do Mayer and her alleged sources – that proponents of one side of the issues are outside of some constitutional and statutory mainstream. In other words, it is impossible to credit the claims of Mayer and her alleged sources that creation of the military commissions represented a far-out Constitution-trashing grab for presidential power, when six of the 12 judges who have considered the issues actually ruled that the commissions are entirely proper. The decisions of those six judges, who had the duty of deciding the issues fairly and objectively, are certainly far more compelling than the one-sided line-up of the pontificating
liberal “constitutional” experts, the self-interested defense attorney trying to score points for the client he represents, the disgruntled government lawyers and employees, and the many anonymous sources relied upon by Mayer.

4. Hamdan also demonstrates other errors of Mayer and her alleged sources. For example, it shows that Mayer is wrong in suggesting that military commissions are novel and have been rarely authorized or used. As Justice Stevens’ opinion points out, military commissions have long been used. They were “foreshadowed” by a tribunal convened by General Washington during the Revolutionary War, were “inaugurated” as such in 1847 during the Mexican War, were used during the Civil War and World War II, were authorized by the Article 15 of the Articles of War, and continue to be authorized by Article 21 of the Uniform Code of Military Justice.

Hamdan further makes clear the foolishness of the argument by Mayer and her alleged sources that the Administration improperly relied on Ex parte Quirin as precedent for the military commissions because, as they claim, Quirin is “arcane, “out of date” and “one of the worst Supreme Court cases ever”. Justice Stevens’ opinion makes clear, contrary those contentions, that the Administration’s reliance on Quirin “is both appropriate and unsurprising”, and that Quirin is still good law by citing it in his opinion over 25 times (Justice Kennedy’s concurring opinion also cited Quirin, Justice Thomas’ dissent cited it some 15 times, and Justice Alito’s dissent cited it twice).

B. Mayer Is Also Wrong, And Deceitful, About Other Administration Activities Of Which She Complains. – The Hamden decisions, and Mayer’s willful concealment of the Court of Appeals decision, do more than kill her contentions of gross constitutional overreaching with respect to the military commissions. Those decisions and that concealment also raise serious questions about Mayer’s other claims of such overreaching, and create the logical and circumstantial inference that all those other claims are just as wrong and deceptive as her claims about the military commissions.

For me, that inference would be enough to say that Mayer’s other claims cannot be credited. But one need not rely upon inference alone, because Mayer actually is as wrong and deceptive with respect to her other claims as she is about the military commissions. The following examples, involving use of presidential signing statements and warrantless surveillance, demonstrate her further errors and deceptions.

1. Mayer and her alleged sources assert that the presidential signing statements, by which the President explains his construction of a bill he is signing into law, and which he has allegedly “added to more than seven hundred and fifty laws” are something new and dangerous created by the Administration, with Addington as their “leading architect”. Accordingly, say Mayer and her sources, “constitutional scholars find [the statements] troubling”, the statements are “sneaky and subversive”, it is “frightening . . . that this Administration is always willing to push the conventions to the limit – and beyond”, and the statements are “unconstitutional as a strategy”.

Mayer blatantly misstates when she asserts that the President has “added [signing statements] to more than seven hundred and fifty laws ”, because – as she certainly knows – the President “hasn’t signed anywhere near 750 laws”. The ABA’s Agenda, WALL STREET JOURNAL (7/31/06). Moreover, she omits to state that – as she also surely knows – presidential signing statements, far from being a novel creation of Addington and the present Administration, have a long, long history of use by many presidents:

"Signing statements have a long history. President Monroe signed a bill mandating a reduction in the size of the armed forces but used a signing statement to eschew a congressional attempt to dictate the method for selecting officers . . . Presidents Grant and Carter used the statements to rebuff congressional attempts to force them to close certain consulates and embassies . . . Use of the statements has been increasing ever since the 1980s. President Reagan issued 71 constitutional challenges in his eight years. President George H.W. Bush issued 146 in his four years, and President Clinton issued 105 in his two terms". Bar None, NEW YORK SUN (7/26/06), p. 10.

In addition to those presidents identified by the NEW YORK SUN, signing statements were also used by Presidents Jackson, Tyler, Theodore Roosevelt, Wilson, Franklin Roosevelt, Truman, Eisenhower, Nixon, Ford, Kennedy and Lyndon Johnson.

Mayer also fails to note that Walter Dellinger, head of the Office of Legal Counsel in the Clinton administration, wrote a well-known and often-cited 1993 memorandum pointing out that presidential signing statements are clearly constitutional. Mayer certainly knew about Dellinger and his memorandum – if she didn’t, we can add incompetence to her faults. It is also highly likely, if not a certainty, that Mayer interviewed Dellinger and read his memorandum in preparing her article. And given her penchant for leaving out material that undercuts or disproves her story-line, I think it a legitimate inference that, just as she grossly overstates the number of the President’s signing statements, and just as she fails to tell us that many presidents have used such statements, she also did not reveal her Dellinger interview and his memorandum because they too demonstrate the total speciousness of her claims, and those of her alleged sources, that the use of signing statements by this Administration is unprecedented and unconstitutional.

Mayer does tell us that “the American Bar Association [has] voted to investigate whether President Bush had exceeded his constitutional authority” by using the signing statements, and after publication of her article the ABA investigative panel issued a report criticizing the Administration’s signing statements as unconstitutional. Of course, Mayer does not reveal that the ABA [disclosure: I am an ABA member] is an organization now well-known to have been largely captured by liberal activists, and that its investigating panel was unfairly stacked with activists opposed to the Administration’s views. As pointed out in the WALL STREET JOURNAL article cited above, it was simply make-believe for the ABA to pretend that the panel was made “fair” by inclusion of three “conservatives”, because “all three are known critics of the Bush Administration’s interpretation of executive power, and two of them [including Mayer’s alleged source Bruce Fein] . . . have been consistently vocal about it”, and because “the ABA excluded [from the panel] such Democrats as Walter Dellinger”.

Dellinger himself (who is cited at least 12 times in the panel report) and professors from Duke Law School (Curtis Bradley), University of Chicago Law School (Eric Posner) and Harvard Law School (Lawrence Tribe) have been quick to point out that the report, which has not been adopted by the full ABA, is plainly wrong. Dellinger points out that

"the [ABA panel] . . . erroneously interprets the Constitution as forbidding the president . . . to declare, while signing a bill into law, that the bill has an unconstitutional provision that he will not enforce . . . Until the panel issued its report, I had thought the matter was settled. Every modern president has agreed that there are circumstances in which the president may appropriately decline to enforce a statute he deems unconstitutional. There is, moreover, significant judicial approval of the practice . . . A president’s ability to decline to enforce unconstitutional laws is an important safeguard of both separation of powers and individual liberty . . . When a bill with a thousand provisions includes one that is unconstitutional, the Constitution does not force the president to choose between two starkly unpalatable options: veto the entire bill or enforce an unconstitutional provision. A signing statement that announces the president’s intention to disregard the invalid provision offers a valuable, and lawful, alternative . . . It is . . . a mistake . . . [to deny] to this and future presidents the essential authority, in appropriate and limited circumstances, to decline to execute unconstitutional laws. A president is right to use signing statements to explain how he intends to faithfully execute the law and uphold the Constitution." Dellinger, A Slip Of The Pen, THE NEW YORK TIMES (7/31/06), p. A17.

And, according to Bradley and Posner,

"That [the ABA panel’s] conclusion is false is well known to constitutional law scholars . . . For decades presidents have used signing statements to express constitutional objections to specific provisions in bills that bear their signatures . . . The type of argument made in the signing statements has changed little over the years. The constitutional arguments made in President Bush's signing statements are similar – indeed, often almost identical in wording – to those made in Bill Clinton's statements . . . The signing statement does not nullify part of a bill; provisions rejected by the president remain enforceable in court.". Bradley & Posner, Signing statements: It’s a president’s right, THE BOSTON GLOBE (8/3/06)

And see Tribe, ‘Signing statements’ are a phantom target, THE BOSTON GLOBE (8/9/06) (“The final report of the [ABA panel] . . . barks up a constitutionally barren tree . . . [S]igning statements . . . are informative and constitutionally unobjectionable”); see also Whelan, Shut Up, They Explained – The ABA’s latest anti-Bush strike, THE WEEKLY STANDARD (8/7/06) (“[The ABA has been c]aptured for the past two decades by the left . . . [The ABA] stacked [the panel] with fervent opponents of President Bush, including three Republicans who had already criticized President Bush’s use of signing statements . . . [The panel’s report] is wrong and unworkable . . . [and] is, at every level a shoddy piece of work – poorly reasoned, sloppily written, and displaying a pervasive misunderstanding of how the American constitutional scheme does, and should, work . . . It is a sorry testament to the state of legal academia today that prominent academics on the [panel] . . . would sign off on such a report”).

There is no doubt, I believe, that Dellinger, Bradley, Posner and Tribe (and Addington, assuming he believes them to be proper) are correct about the constitutionality of signing statements, and that the ABA panel and Mayer’s “constitutional” experts are wrong – so wrong that it is they, and not Addington or the Administration, who would “trash” the Constitution. But even if we assume for argument that the panel’s report somehow has merit, the substantial historical, judicial and scholarly support for the constitutional propriety of the statements is so strong that no one could legitimately say that their use by the Administration is out of the constitutional mainstream or a “trashing” of the Constitution. Accordingly, Mayer’s deceptive complaints about such use are little more than utter nonsense.

2. The other example involves Mayer’s assertions that the Administration improperly engaged in warrantless electronic surveillance. According to Mayer and her alleged sources, Addington and Cheney said that “the President . . . had the authority to override the FISA statutes and not seek warrants” for such surveillance and “pushed the N.S.A. to engage in [warrantless wiretapping] that the agency thought [was] illegal”; “prominent constitutional scholars . . . claim that the N.S.A. surveillance program ‘appears on its face to violate existing law’”; “Bush had made no effort to amend the FISA law . . . [and] simply ignored it”; and “this is so sinister . . . [because Administration members] don’t care if the wiretapping is legal or not”.

But, here again, Mayer does not reveal that there is substantial judicial and other support for the conclusions that FISA does not apply to the Administration’s warrantless surveillance program, and that, contrary to the distorted picture she would paint, the President has clear constitutional and legal authority to proceed with the program. Those authorities, which are too extensive to adequately set forth here, are detailed in, for example, a commentary On The Legality Of The NSA Electronic Intercept Program. The authorities are also partially, and somewhat grudgingly, summarized in an article by Senator Arlen Specter (certainly no friend of the Administration on the surveillance issue), as follows:

"The president has insisted that he was acting lawfully within his constitutional responsibilities . . . [T]hree federal appeals court decisions suggest the president may be right . . . The president’s constitutional power either exists or does not exist, no matter what any statute may say. If the appellate court precedents cited above are correct, FISA is not the exclusive procedure. If the president’s assertion of inherent executive authority meets the Fourth Amendment’s ‘reasonableness’ test, it provides an alternative legal basis for surveillance, however FISA may purport to limit presidential power”. Specter, Surveillance We Can Live With, THE WASHINGTON POST (7/24/06), p. A19.

So here again, with respect to the Administration’s surveillance program, we have Mayer and her alleged sources asserting their totally one-sided, partisan contentions that the program is unlawful and unconstitutional, without revealing the substantial judicial and other authority to the contrary. And the existence of that substantial authority necessarily means that the Administration program is not out of the constitutional mainstream, and that once more Mayer’s complaints cannot be taken seriously.

* * *

The foregoing Points A and B have assumed that, as Mayer asserts, Addington “played a central role in shaping the Administration’s legal strategy” and “the Administration’s legal positions were . . . ‘all Addington’”. As the following Points C and D show, however, Mayer’s article contains no reliable information whatsoever from which one can determine Addington’s constitutional views or his role in Administration actions.

C. Mayer’s Conclusions Are Flawed Because They Are Not Based On Any Relevant Or Probative Statements Of Addington Himself. – It is elementary that if you want to establish a person’s views, opinions and beliefs, or his reasons for actions, or his intentions for future actions, you would look to his own statements, both oral and written, as to those views, opinions, beliefs, reasons and intentions. Similarly, if you want to establish what he said in a meeting or conversation or wrote in a document as to those matters, you would look to the actual statements he made at the meeting or in the document. To put this common-sense point in a legal context, testimony that the person made such statements, by a witness who actually heard the statements, might technically fit the definition of hearsay, but the testimony could be admissible as an exception to the hearsay rule in that the statements are admissions by the person or show the person’s state of mind.

Accordingly, if one wanted to establish Addington’s interpretation of the Constitution, or his view of presidential powers thereunder, or how he shaped “Administration legal strategy for the war on terror”, or how he was “instrumental in creating” the military commissions and other Administration programs, you would need to know what he said and wrote about such interpretation, what he said or wrote about such views, what he said or wrote in shaping such strategy, and what he said or wrote with respect to such creation. A fundamental flaw of Mayer’s article is that, despite the multiplicity of her alleged sources and their alleged many contacts with Addington, the article does not contain a single relevant statement – oral or written – by Addington with respect to those matters.

The Mayer article contains only the five following instances in which Addington seems clearly alleged to have spoken the specific words attributed to him:

1. As a teen-ager, Addington “told” a friend that “he hoped to live in Washington himself when he grew up”.

2. Addington attended a Special Forces demonstration and later “said” that “This is how real covert operations are done”.

3. Addington “told” his high-school friend that “he and Cheney were merging the Vice-President’s office with the President’s into a single ‘Executive Office” instead of having ‘two different camps’”, and that “Cheney saw the Vice-President as the executive and implementer of the President”.

4. At a meeting a few days after September 11, where “even the most extraordinary proposals” were allegedly considered, Addington would “say, ‘No, that’s not right.’”, and “whenever [one participant allegedly] cautioned against executive-branch overreaching”, Addington “would respond” that “There you go again, giving away the President’s power”.

5. In 2002, Addington was allegedly told that “potentially innocent people had been locked up in Guantanamo and would be indefinitely” and that “This is a violation of basic notions of American fairness”. He “respond[ed]” that “These are ‘enemy combatants.’ Please use that term. They’ve all been through a screening process. We don’t have anything to talk about”.

It needs no analysis beyond a mere reading of those five alleged statements to demonstrate that they are totally irrelevant, in that they tell nothing about Addington’s actual understanding and interpretation of the Constitution, his actual views of the extent of presidential power, or his actual role in any of the matters complained of by Mayer and her alleged sources. Even Addington’s alleged statement in instance 4 that “There you go again, giving away the President’s power” has no probative value, because there is no way of knowing the specific content of the alleged “cautions” and the specific alleged instances of “executive-branch overreaching”, to which he was responding. Similarly, Addington’s alleged statement in instance 5 doesn’t prove anything beyond Addington’s understanding that all the Guantanamo detainees had “all” been screened and found to be “enemy combatants”.

The Mayer article contains the following two additional alleged instances in which it is unclear whether Addington actually spoke the words set forth:

6. Addington and Cheney “told” top N.S.A. lawyers that “the President, as Commander-in-Chief, had the authority to override the FISA statutes and not seek warrants from the special court”.

7. In discussions about reforming the original rules for the military commissions, Addington “insisted . . . on maintaining the admissibility of statements obtained through coercion or even torture”, “argued that officials in charge of the military commissions should be given maximum flexibility to decide whether to include such evidence”, “said the rules were good, right from the start”, and “accused officials [advocating reform] of ‘giving away the President’s prerogatives.’”

In instance 6, we can’t tell that Addington (rather than Cheney) actually said the words alleged, but even assuming that he did, it shows nothing more that an understanding of presidential authority consistent with the substantial judicial and other authority noted above and recognizing that authority. Instance 7, even assuming that the words “insisted”, “argued” and “accused” could be deemed to be the equivalent of “said”, tells us nothing about Addington’s views or role, beyond an alleged opinion of the kind of evidence that ought to be admissible in military commissions, the propriety of which at the time of Mayer’s article had been established by the Court of Appeals decision in Hamdan. Ironically, instance 7 has a negative probative effect for Mayer and her sources, in that, as Mayer concedes, “Addington lost this internal battle” for the continued admissibility of “coerced testimony”, a result totally inconsistent with Mayer’s alleged picture of Addington as a hard driving, bullying, ruthless ideologue who was “an unopposable force” and always got his way.

There are two other instances, as follows, of alleged statements by Addington, but they are particularly suspect because Mayer’s alleged sources did not hear Addington make the statements, but allegedly heard about them from others than Addington:

8. Laurence Wilkerson, a former aide to Colin Powell, said “We had heard that, behind our backs, [Addington] was saying that Powell was ‘soft, but easy to get around.’”

9. A purported former colleague of one Waxman (a “young lawyer who headed the Pentagon’s office of detainee affairs”) said Waxman told him that Addington “accused Waxman of wanting to fight the war on terror his own way, rather than the President’s way”.

Even assuming that instances 8 and 9 could somehow be deemed credible, and assuming that Addington said the words attributed to him, they still tell us nothing about his constitutional views or his role in Administration activities, and are irrelevant. But it is also to be emphasized that they are inadmissible hearsay of the grossest kind, and should be disregarded. I know that reporters and journalists not bound by evidentiary rules applicable in civil and criminal trials, such as the hearsay rule, although I do call attention to the anomaly of Mayer’s expressing outrage at the idea of “hearsay evidence” being admissible at military commission trials of terrorists, but nevertheless employing such hearsay in her attempted character assassination of a public servant active in the war against such terrorists. [Similarly incongruous is Mayer’s expressions of alarm that at such trials terrorist “rights to confront their accusers” might be curtailed, while at the same time attacking Addington through the accusations of a huge array of unconfrontable anonymous accusers.] However, when you realize that Mayer has deliberately concealed so many facts that contradict her false story-line, and that she relies on such unreliable hearsay and irrelevant allegations for support of that story-line, you see again that her article is nothing more than an unjustified political hatchet job.

* * *

Having no relevant statements of Addington himself that establish his constitutional views or his role in Administration actions, Mayer falls back on what is standard material for deceitful journalists: innuendo, gossip, rumor, more unreliable hearsay and unsupported conclusory assertions. Space considerations keep me from dealing with all of her flimsy assertions, but the following examples are illustrative.

D. Mayer’s Conclusions Are Flawed Because They Are Not Based On Any Reliable Or Probative Evidence About Addington. – The following examples demonstrate the unreliability of Mayer’s assertions, and the flimsiness of her case against Addington.

1. Mayer’s opening anecdote is a striking signal that she has no real evidence about Addington’s constitutional views or about his role in Administration actions. According to Mayer, Colin Powell and “prominent Washington figures” were in a skybox at a December Redskins-Cowboys football game, when Powell spoke of the recent NEW YORK TIMES report of secret warrantless NSA surveillance. According to “someone who knows Powell”, says Mayer, Powell stated that “It’s Addington . . . He doesn’t care about the Constitution”. The anecdote sounds on its face like something good for Mayer’s case, but when you stop to think about it you realize that it is more negative than positive for her, for many reasons.

First, notice that Mayer’s alleged source is “someone who knows Powell”, not one of the “prominent Washington figures” in the “skybox” who allegedly heard the statement. So we have an unnamed alleged source, who at best was told by someone else (unknown and unacknowledged) that Powell had said something about Addington at a football game, but who more likely heard the “story” third or fourth or fifth hand down a chain of untrustworthy gossip and innuendo by unknown gossipers. Here again, and either way, we have Mayer relying upon the grossest kind of unreliable and worthless hearsay. Second, Mayer uses the statement attributed to Powell even though she was admittedly told in no uncertain terms that Powell “does not recall making the statement”. She obviously felt she needed to include the disavowed-statement because Powell is a well-known and generally well-respected former Administration member, and she clearly calculated that any critical view he could be said to have expressed about Administration policy and about an Administration figure like Addington would resonate among her lefty admirers. But in doing so, she actually undercuts Powell’s own credibility, because her use of his admittedly-disavowed statement necessarily means that she treated her unidentified gossip-monger’s alleged tale that Powell made the statement as more credible that Powell’s disavowal of the statement.

Third, Mayer astoundingly asserts that it makes no difference that Powell disavowed the statement (if it makes no difference, why did she use it, let alone lead-off with it), because his former aide Wilkerson “confirms that he and Powell shared this opinion of Addington”. Of course, it is hard to give any weight to an assertion that Powell/Wilkerson held an opinion of Addington allegedly expressed in a statement that Powell refuses to acknowledge. More significantly, and even aside from the fact that Wilkerson’s purported statement of Powell’s opinion is more of Mayer’s unreliable and worthless hearsay, the Powell/Wilkerson opinions of Addington’s constitutional views are simply irrelevant, because the material issue here is not what Wilkerson and Powell thought about those views, but rather what were Addington’s actual constitutional views – and, as made clear above, Mayer supplies no evidence whatsoever with respect thereto. Fourth, why should we accept Mayer’s implicit assumption that Powell/Wilkerson have better, or more informed, or more knowledgeable, or more reliable, or more accurate views of the Constitution, and its division of presidential, congressional and judicial powers, than does Addington? Just as she gives us no evidence of Addington’s views on those matter, Mayer supplies no evidence of the Powell/Wilkerson views, with the consequence that we have no basis for comparing their views with Addington’s or for determining whether Powell/Wilkerson have any basis for, or even know what they are talking about, or (to use a phrase attributed to one of Mayer’s sources) just “[don’t] know shit”, when they allegedly assert that Addington “doesn’t care about the Constitution”.

Fifth, Mayer unwittingly demonstrates that Powell/Wilkerson have a consuming prejudice against Addington, and that their assertions about him are nothing more than a biased attack on a person they regard as a political and bureaucratic enemy. Mayer tells us that, according to Wilkerson, Addington “left [Powell] out of key deliberations about the treatment of detainees”; Powell/Wilkerson “had heard that, behind our backs, [Addington] was saying that Powell was ‘soft, but easy to get around’”; Powell “was not consulted” by Addington about issuance of the executive order setting up the military commissions; Addington “did not show drafts of the order to Powell”; Powell/Wilkerson were left in the dark because Addington “had secretly usurped the process”; and “the decision [to issue the executive order] stunned Powell”. Mayer also says that Wilkerson had “sparred with [Addington]” and disliked him because “He’s utterly ruthless”. While the accuracy of those assertions is not clear, it is certain that Wilkerson – by using such emotionally-loaded accusations as “left out”, “behind our backs”, “not consulted”, “did not show drafts”, “usurped”, “stunned” and “ruthless” – is talking about bureaucratic battles that Powell/Wilkerson lost to Addington and that made them furious with Addington. Mayer having provided no evidence of any rational justification for the Powell/Wilkerson assertion that Addington “did not care about the Constitution”, the only logical explanation is that their assertion was nothing more than a ridiculous exaggeration churned up by their anger and bias toward Addington for, as it were, mugging them in the bureaucratic infighting for which Addington, according to Mayer, has a “talent”. Indeed, even if we assume that Powell actually made the statement attributed to him at the football game, his subsequent refusal to “recall” it creates the strong inference that, upon more mature reflection, he recognized it to be an ill-considered knee-jerk expression of anger and bias that he ought not to have publicly revealed or articulated. Sixth, in considering the alleged Powell/Wilkerson statement, it is important to keep in mind that Mayer is a deceitful reporter who willfully omits material matter contradicting her premises. We therefore cannot assume that she is not – I personally would say that on her record we have to assume that she is – concealing other information that undercuts her tale about the alleged Powell/Wilkerson statement.

As presaged by her opening anecdote, Mayer relies on other alleged opinions of Addington’s constitutional views that are as worthless, and as surely biased, as the Powell/Addington assertions. For example, says Mayer, “Many constitutional experts . . . question [Addington’s] interpretation of the [Constitution], especially his views on Presidential power”. She names only two of her “many” experts, one (Horton from Columbia Law School) who allegedly says that Addington “had attempted to ‘overturn two centuries of jurisprudence defining the limits of the executive branch”, and the other (“libertarian” law professor Epstein from Chicago) that “The Administration’s lawyers are nuts” because “their talk of the inherent power of the Presidency seems to be saying the courts can’t stop them, and neither can Congress”. Mayer also quotes two “liberal” historians, one (Arthur Schlesinger, Jr.) who says that “Bush i