Morning Report 10/31/05
Some Treats, But More Tricks
Even while we unmask them, they insist on scaring us
The nightmares clearly haven't ended. Scooter Libby has fallen, and that humpty Karl Rove is about to fall and take an accidental dumpty. But the word on Halloween morning is that George W. Bush's handlers are nominating San Francisco federal judge Samuel Alito to the Supreme Court.
Alito's conservative stripes are equally evident in criminal law. Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says.
Some observers say that Alito cannot be easily pigeon-holed. In Saxe v. State College Area School District, Alito, writing for the panel, argued that the school does not have the right to punish students for vulgar language or harassment when it doesn't disrupt the school day. "Sam struck that down as a violation of free speech," [law prof Douglas] Kmiec says. "That's not a conservative outcome."
That may be, but they don't call this judge "Scalito" for nothing; he's said to be a clone of Dick Cheney's duck-hunting partner, Antonin "Nino" Scalia.
But now Cheney himself is in everybody's sights — he's the guy in the bright orange (see picture above). This pumpkin is now overripe. Time to carve it up.
On other metaphorical fronts, the best reporters are firing up their Wayback Machines to start sniffing around some old trails to stalk that rogue elephant of a vice president. Not all the way back to 1998, as I've done, but for now, just back to 2003.
It will be tough because Pat Fitzgerald won't take a leak himself — his power to hold it in is plain remarkable. But the Los Angeles Times's Ronald Brownstein makes a nice start this morning by trying to piece together exactly what happened aboard U.S. CEO Cheney's Air Force Two on or about July 12, 2003. In "Leak Case Prosecutor Raises Questions That Demand Answers," Brownstein writes:
Fitzgerald knows the identity of one of [Robert] Novak's sources, but he's not telling. In the indictment he describes Novak's source only as "a senior official in the White House," whom he designates, spy-novel style, as Official A.
Some news organizations reported over the weekend that the proverbial "sources close to the investigation" have identified Official A as Karl Rove, the deputy White House chief of staff.
Now there's a scary guy to think about on Halloween. And Fitzgerald hasn't even said boo about Rove — yet. Brownstein continues:
But the indictment, the sole official word in the case, states only that "on or about July 10 or July 11, 2003," Libby spoke with Official A, who informed him of "a conversation Official A had earlier that week with columnist Robert Novak in which [Joseph] Wilson's wife [Valerie Plame] was discussed as a CIA employee involved in Wilson's trip."
Then the paragraph, deadpan, adds a blockbuster revelation: "Libby was advised by Official A that Novak would be writing a story about Wilson's wife."
In other words, the same White House official who provided Novak with information about Plame told Libby not only about the conversation but also about the impending article.
I guess it's pretty clear that Bush himself wasn't in on the plotting, because you have to want to read to have actually participated in the decision-making.
But the issue is still abuse of presidential power. And what makes this situation — Plamegate, Iraq, Wampumgate, and all the assorted scandals — so scary is that it is all about the abuse of presidential power by a cabal of people who aren't even the president.
My colleague Nat Hentoff shrewdly tried to refocus everyone on the creeping and creepy issue of presidential supremacy in his most recent piece, "The Danger After Miers." The particular danger he referred to wasn't the next nominee, who turned out to be Sam Alito. No, it was this nutso, unconstitutional doctrine that Bush's handlers and others are pushing. Hentoff explained:
A basic criterion for Bush's next nominee will be his or her willingness to defer to the president's self-assumed authority, as commander in chief, to conduct the war on terrorism as he — along with Donald Rumsfeld and Dick Cheney — sees fit.
Integral, for example, to Bush's conviction that neither the Congress nor the courts can overrule his supreme authority as a wartime president are the "special powers" he has given the CIA, which has become a lawless independent unit of this government that continues to expand its secret powers in ways that I'll be detailing in future columns.
I know Hentoff will, but first he made this point:
This president is so fixated on his supremacy that he has pledged to veto the current defense appropriations bill if Congress passes John McCain's amendment that would clearly prohibit the degrading, inhumane, systemic treatment of "detainees" (prisoners) — including the unmistakable evidence of American use of torture, and not only by the CIA.
In decrying Bush's now failed nomination of Harriet Miers, the October 15 Financial Times (hardly a far-left newspaper) warned that her presence on the Court would "fundamentally alter the balance of power between the courts and the presidency on issues of war and terrorism."
It's frightening enough that, as I've pointed out, Roberts is the perfect chief justice for those who believe that corporate citizens should have more power than human ones. But Hentoff focuses on the degree of that power vested in what I would call an imperial, corporate presidency:
Before John Roberts was nominated, and then confirmed by the Senate, to be the new chief justice, he had demonstrated that he is stalwartly in support of the commander in chief's unlimited authority by ruling to that effect in Hamdan v. Rumsfeld, denying basic due process to imprisoned terrorism suspects in Guantánamo.
Had Harriet Miers been on the Court, John Roberts would have had two votes. Keep in mind, moreover, when considering the next nominee, that should there be anything approaching another 9/11 here, the Supreme Court will be ruling on domestic internment camps, as in the fearful days of World War II.
The seat that Miers was up for was held by Sandra Day O'Connor, another weak sister, in my opinion. But Hentoff makes a good point about O'Connor:
In Hamdi v. Rumsfeld (2004), rebuking the commander in chief for imprisoning an American citizen indefinitely — without charges or any other due process — Sandra Day O'Connor, writing for the Supreme Court, said to George W. Bush:
"We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of American citizens."
The new danger is that in the general applause over the return to Texas of the hapless Harriet Miers, the press and senators on both sides of the aisle will not be asking the next candidate sufficiently piercing questions on whether this, or any, president can cast aside the separation of powers in the name of a national security that changes the very nature of this nation.
The point I'm grafting onto what Hentoff said is that Cheney, as the most powerful vice president in U.S. history, is holding scary power over us — with Don Rumsfeld and others in the cabal that is using Bush as a mere front man.
This whole issue of presidential supremacy is even creepier when you realize that in the current administration, it's someone who's not even the president who's trying to consolidate that authority.
It's about time Fitzgerald and reporters are scaring de facto U.S. president Cheney a little bit. Or at least trying to rip his mask off.
Get the ICYMI: Today's Top Stories Newsletter
Catch up on the day's news and stay informed with our daily digest of the most popular news, music, food and arts stories in New York, delivered to your inbox.