January 09, 2007

PBS Takes on Anti-Semitism

Guest blogger Rita Kramer weighs in on public television and our Paper of Record

Monday night’s program on “Anti-Semitism in the 21st Century: The Resurgence,” broadcast by PBS, was strikingly effective in depicting the history of the world’s longest-running prejudice, its sources, forms, and uses in different cultures at different times.

Judy Woodruff’s calm and soothing voice introduced cartoons and drawings too lurid for words to do justice to them, making them even more effective than if they had been accompanied by a more passionate narrator. And in the end the program can be said to have done a good enough job of introducing to those not in the know the extent of Jew-hatred throughout the modern Muslim world.

Supporters and defenders of Israel and the Jewish people will find various shortcomings in the presentation. Frequent references are made to the Israeli occupation of the West Bank with only passing reference to how Israel came to occupy the land in question, to the wars waged against the tiny country by its many Arab neighbors, the conquest of the West Bank and Golan Heights in those wars, and the necessity to provide for the security of Israelis by keeping an implacable enemy from using them as convenient posts from which to launch rockets and worse. One could come away with the impression that “occupation” in this case was similar to Hitler’s unprovoked occupation of countries for conquest.

Similarly, there is no mention of how Arabs came to be called “Palestinians,” a term which used to refer to the Jews settling in their one-time homeland, reinvented by the Arabs themselves in the cause of claiming they had been dispossessed by the Jews from their own lands and ancestral homes. There is, of course, no such thing as a Palestinian people with its own history and culture apart from their brothers and sisters in what came to be delineated as Jordan in the game of invent-a-country played by the Western powers in the 20th century. And many of those Arabs living in Palestine until they fled because they were told to by their leaders or because of fear of what might happen to them or because they were forced out had only been there for a generation or two, attracted by the Israeli presence that had famously “made the desert bloom.” Irrigating the land to make growing crops possible was only one thing the Jews brought with them—there was medical care, jobs for the unskilled, and educational opportunities.

Not surprisingly, Rashid Khalidi, holder of the anonymously-endowed chair of Arab Studies at Columbia University’s troubled Department of Middle Eastern Studies and a fervent critic of Israel, downplays anti-Semitism as a distraction, a “useful” way for Jews to turn the world’s attention from what is really the core issue of the Israeli-Palestinian conflict: the occupation of “the territory of other people” and its concomitant oppression and dispossession.

And Tony Judt, the New York Review of Books’s in-house scolder of Israel, stated reassuringly that there was no state-sponsored anti-Semitism at this time. He has somehow missed recent speeches by such heads of state as Iran’s president Mahmoud Ahmadinejad and Pakistan’s president Pervez Musharraf.

There were sincere protestations by Arab journalists and students that the unending stream of depictions on Arab television of hideous Jewish plotters of world domination and killers of Arab children, the depiction of Jews in textbooks as apes and pigs, is not anti-Semitism. They have nothing against Jews, they say, only against Israel. Martin Luther King answered them in a speech he made at Harvard shortly before he died: “When people criticize Zionists, they mean Jews. You are talking anti-Semitism.”

Still, PBS also brought us the comments of Bernard Lewis and Natan Sharansky among others who brought another perspective to the issue at hand. And for that we must be grateful. Everyone with a point of view on the issue of the increase in anti-Semitism today will find something to criticize in this program, but many who haven’t given it much thought or who have held unexamined opinions, may be enlightened by the evidence of printed and filmed hate propaganda being spread all over the Muslim world by satellite and on the internet.

In the end there’s little to object to and much to be grateful for in public television’s treatment of anti-Semitism, lifting the veil hiding some pretty ugly stuff.

What is objectionable is the review of the program that appeared in the New York Times on Monday morning before the public had a chance to view it.[Click HERE] With typical Times reviewer snottiness, after summarizing the “history lesson,” Alessandra Stanley turns to the comments of the eminent Middle Eastern scholar Bernard Lewis. She finds it relevant to include information “the film does not mention” —ready?—“that Mr. [sic] Lewis is one of the leading scholars that Vice President Dick Cheney consulted to formulate the administration’s rationale for topping Saddam Hussein.” What relevance does this fact have to the issue at hand, anti-Semitism? It can only be intended, since the Times considers the war and those who planned it something close to evil, to discredit Professor Lewis’ remarks. And she reminds us that the Arab media “paint the war as a sinister conspiracy cooked up by Israel and its supporters in Washington,” finding it worth noting therefore that “the documentary makes very little mention of the American occupation of Iraq.” Huh? Why should it, since anti-Semitism isn’t exactly a burning issue in Iraq right now. Perhaps to turn our attention to the role Jews (or the neocons, or the Israel lobby) played in planning the war? The Times will stop at nothing to discredit anyone associated with the Bush administration.

Having put Professor Lewis in his place and not having chosen to quote anything of substance said by defenders of the Israeli position, who does the Times critic give pride of place to as the last of the talking heads to be quoted before she wraps the story up—who but Professor Khalidi. The last words you will hear by any of the experts who appear on the program are his: “I think that the brouhaha about it is a systematic attempt to draw attention away from the roots of the conflict. There has been an oppressive occupation going on for 40 years, a people has been dispossessed.”

It’s a well worn Times trick—you interview people from various sides of a question but at the end you leave the reader with the one you want to impress on him. After that the narrator’s gentle summary is barely even heard.

This from a critic who can only describe a hate-inducing TV drama depicting Jewish villainy and Jewish crimes as “cockeyed.” How’s that for trivializing something both extremely ugly and clearly dangerous?

Why does one feel that the Grey Lady looks down her patrician nose at the Jews, just as she did sixty years ago when news of the Holocaust was buried in her inside pages?

September 16, 2006

"MOMMY, MOMMY, HE HURT OUR FEELINGS": THE NEW YORK TIMES DEFENDS ISLAMO-NAZIS FROM THE BIG BAD POPE

        Horsefeathers recently found himself discussing the nature of comedy with a professional comedy writer. We found ourselves listening to an exceedingly long toast at a wedding. He assured me that if it went on another 5 minutes it would start to seem funny. Sure enough, just as the toaster seemed to be mercifully winding down, he said "let me digress for a moment" and was back in full throttle, no end in sight, at which point I did indeed begin to giggle. There was something in his self absorption, his assumption that we would all enjoy his self infatuated sharing of each detailed memory of his relationship with the groom that was laughable. Or was our laughter partly a defense against our helpless anger at being forced to wait hungrily for our dinner? Ultimately it was the sheer self absorption, the foolishness of the man that became amusing. Today is the day when the New York Times assumed the status of that man and became a parody of itself. No Onion parody, not even the great Scrappleface, could match today's editorial endorsing the hurt feelings of Muslims, sympathizing with the likes of Grand Ayatollah Muhammad Fadlalah (see below) and blaming the Pope for their murderous anger. Appeasers, cowards, hypocrites, infants--sure they're all of those, but they're also just plain ridiculous.
Read it here.

August 30, 2006

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 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 is more grandiose that Nixon”, and the other (Wilentz from Princeton) that “this White House has assumed powers for itself that no previous Administration has done”. And Mayer quotes Fein, a so-called “Republican legal activist” who allegedly twice voted for Bush (a qualification like “he can’t be anti-Semitic because his best friend is a Jew”) as saying that the Administration has “staked out powers that are a universe beyond any other Administration . . . [A]ccording to [the President’s] view, he could kill someone in Lafayette Park if he wants! It’s got the sense of Louis XIV: ‘I am the state.’” Fein is also quoted as saying, despite the substantial contrary authority already noted, that “Addington’s signing statements are ‘unconstitutional as a strategy’”.

It is unclear, except for the last Fein quote, whether these sources are actually referring to Addington, or whether they were talking about the Administration generally, with any tie to Addington being supplied by Mayer as part of her fabrication of an alleged Addington persona. In any event, these sources speak in overwrought generalities that tell us nothing about Addington’s constitutional views. For example, for Schlesinger and Epstein to state their opinions that Bush is “more grandiose” and Administration lawyers are “nuts” gives us no information about the relevant issues, namely, what did Addington say or write that would inform us of his constitutional views or tell us what role he played in Administration actions. Furthermore, neither Mayer nor any these sources, even the two she ipse dixit denominates as constitutional “experts”, tell us their own specific constitutional views, such as, for example, their views of the precise extent of presidential powers provided by the Constitution. Accordingly, with no showing of Addington’s constitutional views, and no showing of these sources’ views (other than that the Administration is “grandiose” and “nuts”), we have, just as with the Powell/Wilkerson generalities, no basis for concluding that Mayer’s “experts” have any better or more accurate understanding of the pertinent constitutional provisions than does Addington.

Moreover, these sources’ assertions are so clearly wrong as to be frivolous. Take the accusations that the Administration would overturn “two centuries of jurisprudence” (Horton), and has assumed “powers . . . that no previous Administration has done” (Wilentz) and “powers that are a universe beyond any other Administration” (Fein). We know, for example, as shown above, that presidential signing statements have been used by many presidents and judicially approved for almost 200 years, and these sources’ accusations of breaking with “two centuries” of past practice and assumption of never-before-exercised “powers” are obviously incorrect with respect to the Administration’s current use of such signing statements. We likewise know, as also shown above, that military commissions trace their origins back more than 200 years to the Revolutionary War, and have long been used by various administrations and statutorily and judicially sanctioned, and such accusations are similarly incorrect with respect to the Administration’s current use of the commissions. And, as we know, the accusations are simply inapplicable to electronic surveillance, which is a technical innovation so recent that it was unavailable to practically every prior administration; in any event, any suggestion that such use not in accord with judicial authority, or is the improper exercise of an unwarranted power, is simply not in accord with the judicial and other authorities, also noted above, establishing the legality and propriety of such use.

Consider also other nonsense asserted by these sources. For example, Fein’s assertion that the President is “another Louis XIV”, and holds the view that “he could kill someone in Lafayette Park if he wants!”, is so deranged, so downright stupid and so clearly a reflection of a virulent anti-Bush bias that it discredits everything Fein says. [By the way, isn’t Fein mixed up, and wasn’t it Vince Foster’s death in Lafayette Park, ostensibly a suicide, that was widely-speculated to have been engineered by the Clinton (not Bush) administration in which Foster worked?] Similarly, Epstein’s assertion that Administration lawyers seem “to be saying that the courts can’t stop them, and neither can Congress” is patent foolishness from a partisan liberal. Not only has there been plenty of Court review of Administration actions and programs, but there has also been plenty of Congressional activity (often unwarranted) with respect thereto. For example, the Administration’s plan for the military commissions has been the subject of extensive Court review (the Hamdan decisions), and the Administration is preparing to submit proposed legislation to Congress with respect thereto. See White House Bill Proposes System To Try Detainees, THE NEW YORK TIMES (7/26/06); compare Goldsmith & Posner, A Better Way on Detainees, THE WASHINGTON POST (8/4/06). For another example, the Administration is cooperating with Congress with respect to legislation that would permit judicial review of the wireless surveillance program. See Specter, Surveillance We Can Live With, THE WASHINGTON POST (7/24/06), p. A19.

So we have a couple a constitutional “experts”, a couple of historians and a dope worried about being killed in Lafayette Park, whose ridiculous complaints about Administration activities are contrary to fact and law, and whose conclusory and erroneous opinions tell us nothing about Addington’s actual constitutional views or his actual role in such activities. My guess is that here, as elsewhere, Mayer didn’t tell us everything these sources told her, but for once I commend her for not doing so, because I am sure it would be just more of the same liberal clap-trap she already attributes to them.

3. Another of Mayer’s worthless sources is Major Dan Mori, the “uniformed lawyer who has been assigned to defend . . . one of the [Guantanamo] suspects”. According to Mori, the military commissions are “a political stunt” conceived of by an Administration that “didn’t know anything about military law or the laws of war”, that has “a vested interest in conviction” and that was “inept, incompetent, and improper”. Here again, this source tells us nothing about what Addington said or did, nothing about Addington’s constitutional views, and nothing about Addington’s role with respect to the military commissions or any other matter. Indeed, he doesn’t even mention Addington.

Moreover, Mori is not credible. He is the appointed defense attorney for a Guantanamo detainee facing trial before a military commission, and he predictably says things that would support a claim on behalf of his client that the commission is improper (if he had been appointed to prosecute the detainee, he would be saying just the opposite). I personally believe that Mori’s comments are baloney (I suspect he does too), but if I represented his client I would say the same things he did. Mori clearly has an axe to grind, and no credence can be given to his self-serving assertions.

4. Mayer refers to alleged sources who purport to describe conversations or meetings with Addington. However, except for the few irrelevant instances already noted, these sources do not tell us anything that Addington actually said, but instead tell us their alleged summary interpretation of Addington’s alleged participation (I think these summary interpretations are often Mayer’s, but I am going to assume here that they were made by the alleged source). One Berry said he “talked to [Addington] . . . a little” about the need to be “aggressive” in trying to “prevent . . . another [9/11] attack” and “Addington felt this keenly”. One Shifrin said that at a meeting a few days after 9/11, Addington “was particularly strident, . . . doctrinaire and ideological”, “didn’t recognize the wisdom of the other lawyers” and “was always right”, “knew [all] the answers”, “left [Shrifin] with the impression that Addington ‘doesn’t believe there should be co-equal branches’”, and “Addington’s manner in meetings was ‘very insistent and very loud’”. Anonymous “[g]overnment officials who have worked closely with Addington” said “he insists that legal flexibility is necessary”, and “he does not believe that the legal positions taken by the Bush Administration . . . have damaged the country’s international reputation”. A “senior Administration legal adviser” said “[Addington’s] a very smart guy, but he gives no credibility to those who say these policies are hurting us around the world”, “[h]is feeling is that there are no costs”, “[h]e thinks most [people who are whining] would be against us no matter what”, and it is “Addington’s view” that “critics of the Administration’s aggressive legal policies are just political enemies of the President”. A “former Administration official” said that, at the meeting identified in instance 5 above of the actual statements attributed to Addington, “Addington was the ‘dominant voice [and it] was a non-debate in his view”; it was “clear that Addington had been informed early that there were problems at Guantanamo; and there “wasn’t a lack of knowledge or understanding”. Shrifin says, with respect to the meeting identified at instance 6 above, a meeting he did not even attend, that he “doubted that the N.S.A. lawyers were expert enough in Article II of the Constitution . . . to argue back” to Cheney and Addington.

Such statements are, as the emphasized portions make clear, nothing more than each alleged source’s own conclusory characterization or opinion of what he wants us to believe was the thrust of what Addington said. Those characterizations and opinions give no clue as to what Addington actually said or what statements he was responding to, and that failure means that we have no way to determine, for example, whether the source’s characterization or opinion is correct or incorrect, whether it is objective or biased, whether it is truthful or untruthful, whether it accurately reflects everything Addington said or not, whether it accurately reflects the context of what he said or not, whether it is misleading or not, and whether another observer (such as a juror or the reader of a magazine article) would make the same characterization or form the same opinion. The statements would not be admissible in a court and, because they are so unreliable and of no probative value, they are also worthless here and in any other context.

Take, for example, Shifrin’s alleged conclusory observations that Addington was “strident . . . doctrinaire and ideological”, and “insistent” and “loud”– can you tell therefrom what Addington actually said, so as to get a feel for his constitutional views? Or Shifrin’s conclusory observations that Addington was “always right”, “knew [all] the answers”, and “didn’t recognize the wisdom of other lawyers” (I personally am with Addington on that last one) –do they tell you anything Addington actually said, or what were his views as to any of the matters complained of by Mayer? Or Shifrin’s conclusory observations that Addington “insists” on legal flexibility and “does not believe” our international reputation has been damaged – can you figure out therefrom what Addington actually said, or what were his views on those matters?

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JOE LIEBERMAN, ANTI-SEMITISM AND THE NEW YORK (JIHADI) TIMES

        Adam Nagourney of the New York (Jihadi) Times, offers his "analysis" of the Lieberman loss to Corliss (oops!) Thomas Lamont in the Connecticut primary. It's the usual tired tut-tutting about why the pacifist appeasers are gaining strength in the Democratic party, though they're never identified as such; rather they're new blood, "winds of change", breathing life into the party. However, in all the "on the one hand, on the other hand" analysis no mention is made of the elephant in the room---Jew hatred.
        This was the fuel for the anti-Lieberman campaign, never once mentioned by Nagourney. Lieberman, a practising Jew, became the target of vicious anti-semitism emanating from the liberals whom he had served so faithfully over the years. Why? Because he preferred fighting our enemies rather than attacking President Bush. And Bush, in the fevered fantasies of the left, is a captive of the neocon (Jewish) cabal, in league with "likudniks" in Israel, bent on world domination. Did it ever occur to Nagourney to wonder about why Mr. Lamont "...gave his victory speech with the Rev. Al Sharpton and the Rev. Jesse Jackson at his side..."? This tag team of vicious Jew haters shared the celebration for a reason, but Adam Nagourney delicately omits it from his assessment. Will Lieberman's fellow Jews in the Democratic party omit it from theirs?

July 16, 2006

THE ASSOCIATED PRESS AT WORK: HUMANIZING SAVAGES

Trust the AP to throw into the middle of an account of Israel's efforts to defeat the Islamo-fascist savages, a literary moment designed to bring tears of admiration to the eyes of readers. The "fluttering dusty pages" is what really got to me. How cruel can Israel be?

"...Furniture pieces, blankets, mattresses, clothes and soft toys were scattered on the streets. A copy of the Quran, Islam's holy book, lay in the street with its dusty pages fluttering until it was reverently lifted and kissed by a Hezbollah gunman..."

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