Playing "gotcha" with the Grey Lady -- and yours truly

A few days ago, writer William Tate published an article on the American Thinker website asserting that the New York Times, which aggressively pursued the story of warrantless surveillance by the Bush Administration after 9/11, had defended a similar program, Echelon, under the Clinton administration. This, he claimed, showed a blatant double standard favoring a Democratic administration. This article was widely picked up in the conservative blogosphere, and even ended up as a column in the New York Post. After examining the article, I found it to be full of sloppy reasoning and sloppier facts. Now, Mr. Tate responds to my "fisking."

After being sent a link to Mr. Tate's new article, I was puzzled by its title: "NY Times Hypocrisy: The Empire Strikes Back." What empire? But the mystery was cleared up when I started reading. Mr. Tate, apparently, thinks -- or at least insinuates -- that my humble blogpost represents nothing less than a counterstrike by the Grey Lady herself. Why? Because, you see, I write a column for The Boston Globe, which is owned by the New York Times Company, and Mr. Tate detects a nefarious motive here. (One of his readers actually emailed me today asking if the Times paid me to write my blogpost.)

Well, I can offer Mr. Tate a scoop: my column is not only published by the Times-owned Boston Globe, it's also distributed by the New York Times syndicate. Which does not, by the way, stop me from repeatedly criticizing the Times on my blog (and in my column); in fact, the day after I fisked Mr. Tate's article, I took a whack at the Times for downplaying the news that, contrary to initial reports, the victims of Hurricane Katrina were not disproportionately black and poor. I have criticized the Times so often that it did not even occur to me, on the rare occasion when I defended it, that my Globe column could be seen as a conflict of interest.

Now, on to the substance.

I will leave it to the reader to decide whether Mr. Tate's elisions and truncated sentences are misleading, and limit myself to facts.

Let's begin at the end. Mr. Tate mocks my argument that the principal reason the New York Times gave far less coverage to the Echelon story in the 1990s than to the Bush domestic surveillance story today is that claims of domestic surveillance under Clinton were not backed by any proof:

That’s certainly an interesting reason for the Times not to have given Echelon the same scrutiny it’s given the current story: it’s hard to prove. They won’t admit what they’re doing. We’ll just drop it.

Did the the-dog-ate-my-homework excuse not work?

Allow me to clarify, then. In the 1990s, it's not simply that there was no proof that the NSA was engaging in illegal domestic surveillance; there weren't even any specific allegations that it was doing so. There were only assertions that it had the capability to spy on Americans' private communications, and speculations that it could be doing that -- all strenuously denied by NSA officials. There were no charges to investigate.

By contrast, the New York Times story about the eavesdropping program authorized by the Bush administration was based on fairly specific information about actual NSA operations of questionable legality, provided by about a dozen officials. The Bush Administration admitted this -- not, I suspect, because of a congenital inability to tell a lie, but because the Times had the goods -- and offered a dubious legal justification for the program.

Mr. Tate writes:

Ms. Young then concludes her defense of the Times’ coverage of Echelon by citing coverage–in the Washington Post, not the Times–in which Clinton era officials assured that all regulations regarding surveillance were being met. The Bush administration has also maintained that its surveillance is legal. Did the Times just drop that story?

Big difference. Clinton-era officials gave assurances that they were obeying the usual rules. The Bush administration admits that it changed the rules (to allow monitoring of international calls and emails originating in the United States without FISA warrants) but claims that the congressional resolution authorizing the President to use military force in the wake of 9/11 had somehow also authorized him to order such a change in surveillance policies. "We're playing by the rules" and "we've changed the rules, but we believe we had the right to do that" are two very different things.

Incidentally, I am not opposed to the NSA monitoring the cell phone conversations and emails of Americans who have a habit of chatting with Al Qaeda operatives. I think the NSA would be highly remiss if it did not monitor such contacts. But I am troubled and, frankly, disgusted by the fact that the Bush Administration never bothered to either obtain FISA warrants (which are routinely granted upon request) or to seek specific congressional authorization for warrantless surveillance if that was truly necessary. This mentality shows an arrogance of power that no American, regardless of party affiliation, should want to see in the White House. (And, God knows, I am not claiming that the Clinton Administration was innocent of this sin.)

Mr. Tate suggests that Patrick Poole's report on Echelon, referenced in the New York Times story that he believes was a whitewash of Echelon, documents abuses that the Times story disregarded:

ECHELON is also being used for purposes well outside its original mission. The regular discovery of domestic surveillance targeted at American civilians for reasons of ‘unpopular’ political affiliation or for no probable cause at all….

That line is, in fact, found in the report. The problem (for Tate) is that none of the specific instances Poole cites are from the Clinton era. Here's Poole's summary, from the introduction, of his section on domestic spying:

Since the close of World War II, the US intelligence agencies have developed a consistent record of trampling the rights and liberties of the American people. Even after the investigations into the domestic and political surveillance activities of the agencies that followed in the wake of the Watergate fiasco, the NSA continues to target the political activity of “unpopular” political groups and our duly elected representatives. One whistleblower charged in a 1988 Cleveland Plain Dealer interview that, while she was stationed at the Menwith Hill facility in the 1980s, she heard real-time intercepts of South Carolina Senator Strom Thurmond. A former Maryland Congressman, Michael Barnes, claimed in a 1995 Baltimore Sun article that under the Reagan Administration his phone calls were regularly intercepted, which he discovered only after reporters had been passed transcripts of his conversations by the White House. One of the most shocking revelations came to light after several GCHQ officials became concerned about the targeting of peaceful political groups and told the London Observer in 1992 that the ECHELON dictionaries targeted Amnesty International, Greenpeace, and even Christian ministries.

By the way, all these reports of pre-1992 spying, presumably under Reagan and Bush the Elder, got no resonance in the major media, supposedly so hell-bent on nailing Republicans.

Since I am revisiting Mr. Tate's article, I will point out another major flaw that I didn't notice until a commenter on my first post, Taylor Barnes, pointed it out.

Mr. Tate notes that the Times article also referenced a European Union report on Echelon, and says:

One of the revelations of that study was that the N.S.A. used partner countries’ intelligence agencies to routinely circumvent legal restrictions against domestic spying.

Here is the paragraph from the EU report that he cites in support of this claim:

“For example, [author Nicky] Hager has described how New Zealand officials were instructed to remove the names of identifiable UKUSA citizens or companies from their reports, inserting instead words such as ‘a Canadian citizen’ or ‘a US company’. British Comint [Communications intelligence] staff have described following similar procedures in respect of US citizens following the introduction of legislation to limit NSA’s domestic intelligence activities in 1978.”

However, the paragraph preceding this one makes clear that this is an example not of circumventing the laws, but of following them:

Dissemination is further restricted within the UKUSA organisation by national and international rules generally stipulating that the Sigint agencies of each nation may not normally collect or (if inadvertently collected) record or disseminate information about citizens of, or companies registered in, any other UKUSA nation. Citizens and companies are collectively known as "legal persons". The opposite procedure is followed if the person concerned has been targeted by their national Comint organisation.

In other words, the names were removed precisely in order to comply with 1978 legislation. Whether Mr. Tate is deliberately obfuscating or simply has no clue what he's talking about, I don't know.

In my blogpost, I noted that Mr. Tate was using the disclosures of retired Canadian intelligence agent Mike Frost on 60 Minutes to prove "under the Clinton administration, evidence existed ... that an invasive, extensive domestic eavesdropping program was aimed at every U.S. citizen" -- even though Frost (1) was Canadian, and (2) had not worked actively in intelligence since 1990.

Mr. Tate replies:

Ms. Young is correct in pointing out that, Mike Frost, a source used by the 60 Minutes story quoted in my article and whom I called merely “a former spy”, worked for Canadian intelligence. But if she considers that a major flaw, she has ignored a key element of my article. The European Union study of the Echelon program explained that the NSA and intelligence agencies in allied countries routinely circumvented restrictions against domestic surveillance by asking their sister agencies in the other countries to do the spying and provide them the analysis. Thus, a Canadian spy would be likely to listen in on a U.S. conversation and then provide details to the NSA.

The link Ms. Young included to cite that Mr. Frost retired in 1989 is an article from something called “Peace Researcher” which says “he hasn’t actively spied since about 1990.”

(In your words, Ms. Young, “Sometimes it helps to check the links before trumpeting a story.”) Even though I identified Frost as retired at the time of the 60 Minutes interview, the programs he described were still active–and were likely accelerated–during the Clinton administration, according to the EU study.

Actually, I myself noted (in an edit added to my post moments after it was made) that since Echelon was a collaboration between the intelligence agencies of several countries including Canada, it's possible that this alleged incident happened in the U.S. On the other point, I said that Frost retired in 1990, not 1989. (And what difference does it make anyway, since Clinton took office in 1992?)

Does the EU report say that the NSA used other countries' intelligence agencies for domestic political spying? Yes -- in 1967-1975. As I have already explained, the paragraph Mr. Tate cites to prove that Comint countries used sister intelligence agencies to circumvent rules against domestic spying in later years proves nothing of the sort. Nor could I find any assertion in the EU report that Echelon programs were "likely accelerated" during the Clinton administration. Perhaps Mr. Tate is referring to this statement:

Although precise details of US space-based Sigint satellites launched after 1990 remain obscure, it is apparent from observation of the relevant ground centres that collection systems have expanded rather than contracted.

But the report also says this:

Although UKUSA Comint agency staffs and budgets have shrunk following the end of the cold war, they have reaffirmed their requirements for access to all the world's communications.

(Emphasis added.)

Finally, Mr. Tate detects bias in the fact that a 1997 Insight magazine story claiming that the Clinton administration had authorized spying on Asian and Pacific leaders during a summit and sold the surveillance data to corporations that were major Democratic Party donors received no follow-up:

Exactly my point, Ms. Young. The story, apparently, wasn’t pursued by the Times or any mainstream outlet. Can you imagine the outcry at the Times if the Bush White House were accused of selling secret intelligence for campaign donations?

But the story also wasn't pursued by The Wall Street Journal, by Fox News (which was not as yet the powerhouse it is today but had been around for over a year), by any of the conservative magazines that exhaustively investigated Clinton campaign finance abuses, or by Republicans in Congress. If Lexis/Nexis is correct, it wasn't even reported in Insight's sister publication, The Washington Times. Let's face it, there was no shortage of people during the 1990s who had a strong interest in exposing Clinton scandals. If none of them judged it worthwhile to go after this story, this strongly suggests that there's no "there" there. Which, by the way, accurately sums up Mr. Tate's article as well.

A final word about why I decided to undertake the task of refuting Mr. Tate's article. I believe that there is, in fact, a liberal bias in the major media. The "new media," including the blogs, have performed a highly valuable service in dissecting, debunking, and acting as checks and balances to the so-called MSM. But there is also a lot of hysteria and paranoia about "the MSM." Such paranoia does no one any good, and neither does dishonesty.

Note: The first paragraph of this post was edited for clarity at 10:05 a.m., Wednesday, January 18.

The Saddam terror connection: Is there anything to it?

The January 16 issue of The Weekly Standard has a cover story by Standard editor Stephen F. Hayes called "Saddam's Terror Training Camps," arguing that documents found in Iraq are providing daily evidence of Saddam's involvement in sponsoring radical Islamic terrorism.

Hayes writes:

The former Iraqi regime of Saddam Hussein trained thousands of radical Islamic terrorists from the region at camps in Iraq over the four years immediately preceding the U.S. invasion, according to documents and photographs recovered by the U.S. military in postwar Iraq. The existence and character of these documents has been confirmed to The Weekly Standard by eleven U.S. government officials.

The secret training took place primarily at three camps--in Samarra, Ramadi, and Salman Pak--and was directed by elite Iraqi military units. Interviews by U.S. government interrogators with Iraqi regime officials and military leaders corroborate the documentary evidence. Many of the fighters were drawn from terrorist groups in northern Africa with close ties to al Qaeda, chief among them Algeria's GSPC and the Sudanese Islamic Army. Some 2,000 terrorists were trained at these Iraqi camps each year from 1999 to 2002, putting the total number at or above 8,000. Intelligence officials believe that some of these terrorists returned to Iraq and are responsible for attacks against Americans and Iraqis. According to three officials with knowledge of the intelligence on Iraqi training camps, White House and National Security Council officials were briefed on these findings in May 2005; senior Defense Department officials subsequently received the same briefing.

The photographs and documents on Iraqi training camps come from a collection of some 2 million "exploitable items" captured in postwar Iraq and Afghanistan. They include handwritten notes, typed documents, audiotapes, videotapes, compact discs, floppy discs, and computer hard drives. ...

The discovery of the information on jihadist training camps in Iraq would seem to have two major consequences: It exposes the flawed assumptions of the experts and U.S. intelligence officials who told us for years that a secularist like Saddam Hussein would never work with Islamic radicals, any more than such jihadists would work with an infidel like the Iraqi dictator. It also reminds us that valuable information remains buried in the mountain of documents recovered in Afghanistan and Iraq over the past four years.

Hayes, it should be noted, is not an unbiased observer. He is a major promoter of the "Saddam-Al Qaeda connection" theory, and has written a book on the subject. About that book, former FBI counterterrorism analyst Matthew Levitt, now a senior fellow at the Washington Institute for Near East Policy and adjunct professor at the Paul H. Nitze School of Advanced International Studies at Johns Hopkins University, had this to say:

Hayes skillfully weaves old information with new revelations, and dutifully presents caveats about the veracity and verifiability of both. Much of the material he presents has been confirmed but, in large part because of the book's heavy reliance on a collection of possibilities, public statements and other circumstantial evidence, Hayes raises more questions than he answers.

Those facts that are confirmed -- e.g., meetings between senior Iraqi and al Qaeda envoys and Hussein's connections to the Kurdish al Qaeda affiliate Ansar al-Islam -- are pieces of a puzzle. On their own, and even together, they fall short of the certitude that the book's title leads readers to expect. The most explosive and damning material remains unconfirmed. Connecting these dots, one finds a disturbing outline of the former Iraqi regime's links to terrorists, but the picture still reveals no smoking gun.

....

So even though "The Connection" points toward disturbing links between Iraq and al Qaeda, there was a far tighter connection between al Qaeda and, say, Sudan -- a point Hayes makes in the chapter on "A Home for Terror." Hayes offers several intriguing insights into possible links between Iraq and the Sept. 11 plot, though he also acknowledges "there is no proof that the Iraqi regime had any operational involvement in the September 11 attacks."

What evidence there is, Hayes notes, is "circumstantial and highly speculative." Instead, he points to the "unique threat" presented by the "potential collaboration" between Osama bin Laden and Hussein. "By the time the Iraq war began," he writes, "the evidence of Iraqi links to al Qaeda went well beyond a few dots. It was a veritable constellation." A constellation of suggestions, however, still is not a convincing argument. "The Connection" raises several important questions, but it left me unconvinced and still asking: Why now?

The information in the captured documents may well help fill the gaps that troubled Levitt. So the question is, is this important? I have never been very impressed with the argument that Saddam Hussein's secular regime could not have collaborated with radical Islamists; totalitarian regimes and movements of all stripes are rarely scrupulous about ideological purity in their allies. (Stalin had no qualms about exploiting religion for his purposes -- for instances, when he needed the Russian Orthodox Church to help whip up patriotic feeling during World War II -- and it's unlikely that Hussein would be any more principled.) Hayes makes a pretty good case that Saddam repeatedly presented himself as a "holy warrior" for Islam when the occasion called for it. And certainly, he and the Al Qaeda had a common enemy in the U.S.

I think Levitt's question still stands: assuming there was a Saddam/Al Qaeda connection, was it a proper casus belli? Why Iraq (and not, say, Sudan)? Nonetheless, it seems to me that the issue is worth exploring. Interesting, Hayes makes clear that the reasons it has languished don't just have to do with "the liberal media" but also with administration policies. A part of it was the exclusive, not to say obsessive, focus on the WMD issue:

Nearly three years after the U.S. invasion of Iraq, only 50,000 of these 2 million "exploitable items" have been thoroughly examined. That's 2.5 percent. ...

Most of the 50,000 translated documents relate directly to weapons of mass destruction programs and scientists, since David Kay and his Iraq Survey Group--who were among the first to analyze the finds--considered those items top priority. "At first, if it wasn't WMD, it wasn't translated. It wasn't exploited," says a former military intelligence officer who worked on the documents in Iraq.

"We had boxloads of Iraqi Intelligence records--their names, their jobs, all sorts of detailed information," says the former military intelligence officer. "In an insurgency, wouldn't that have been helpful?"

The other obstacle to the release of the documents is spin control and distrust of the media:

The main worry, says [Pentagon spokesman Larry] DiRita, is that the mainstream press might cherry-pick documents and mischaracterize their meaning. "There is always the concern that people would be chasing a lot of information good or bad, and when the Times or the Post splashes a headline about some sensational-sounding document that would seem to 'prove' that sanctions were working, or that Saddam was just a misunderstood patriot, or some other nonsense, we'd spend a lot of time chasing around after it."

Of course, this could make skewed news a self-fulfilling prophecy.

The release of the captured Iraqi documents should be expedited. It seems to me that this is one issue on which the "liberal" and "conservative" media -- and bloggers of all persuasions -- could agree.

More on Alito and the strip search case

In The Weekly Standard, William Tucker addresses one of the cases most frequently mentioned in civil libertarian critiques of Judge Samuel Alito: Doe v. Groody, a 2004 Third Circuit case in which he wrote a dissenting opinion asserting that a police strip search of a 10-year-old girl whose father was a suspected drug dealer was not illegal.

In his article, titled "The Smear That Failed," Tucker summarizes the case thus:

The incident occurred in a small coal town in Schuylkill County in 1998. Police obtained a warrant to search the home of Michael McGinley, a disbarred lawyer with a history of drug and assault arrests who was believed to be dealing in amphetamines. When four officers arrived at his door, they found his wife and daughter present. Having specifically requested permission to search "all occupants" of the house, they summoned a female officer, who took the mother and daughter to an upstairs bedroom and performed a whole body search, including a pat-down while they were in their underwear. (It was not a "strip-search," as usually reported.) Nothing was found on the women, but police did turn up marijuana and traces of methamphetamine in the house. McGinley was convicted for drug possession and served a probationary sentence.

He also sued the police for several million dollars for allegedly violating his wife and daughter's constitutional rights, in a case that would become known as Doe v. Groody. ... In a preliminary hearing, the judge ruled that the officers must stand trial because their conduct violated "clearly established" constitutional rights of the plaintiffs. The officers appealed to the federal Third Circuit.

As presented to the three-judge panel, the case revolved around the following issue. In applying for the search warrant, the two officers had filled in a box entitled "specific description of premises and/or persons to be searched." The language is taken from the Fourth Amendment and officers must be very careful in filling it out. Warrants are routinely thrown out by appeals-court judges who decide that the application did not adequately describe "the place to be searched, and the persons or things to be seized."

By the time the officers had finished describing the suspect's premises and listing his name, address, physical description, and Social Security number, they had no room left to include any further information. "As you can see, that box is filled," testified one officer in court. "You can't include everything. . . . It's impossible to fit everything we want in these little boxes they give us."

In order to continue their application, the officers attached an affidavit in which they added a request to search "all occupants" of the house. Fulfilling the Fourth Amendment's requirement that "no warrants shall issue, but upon probable cause," they stated that, in their experience, drug dealers, when faced with "impending apprehension," often gave evidence to other persons present in the hope that "said persons will not be subject to search when police arrive." The judge signed the warrant and its accompanying affidavit.

The Third Circuit majority decided, however, that the warrant and its accompanying affidavit could not be read as a single document. ... Because they said different things, they must be considered contradictory. "[T]he language of the warrant is inconsistent with the language of the affidavit, because the former does not grant what the latter sought--permission to search 'all occupants' of the house. That is not a discrepancy as to form; it is a difference as to scope. And it is a difference of significance."

Tucker believes that this is a tortured, legalistic distinction, and that Alito was right to disagree:

Alito's dissenting opinion cut through this tortured logic with a few clear-cut observations. Citing a 1965 opinion that warrants are "normally drafted by nonlawyers in the midst and haste of a criminal investigation," and should be read "in a commonsense and realistic fashion," he listed the fundamentals of the case:

* The warrant application clearly sought permission to search all occupants of the premises;

* The two officers, both of whom had extensive experience in drug raids, made a clear case that suspects often try to hide evidence on other people present;

* The affidavit was expressly incorporated into the warrant;

* Both warrant and affidavit were reviewed by the district attorney's office and signed by the judge.

"Under these circumstances," Alito concluded, "the 'commonsense and realistic' reading of the warrant is that it authorized a search of all occupants of the premises. . . . [T]he majority employs a technical and legalistic method of interpretation that is the antithesis of the 'commonsense and realistic' approach that is appropriate." His reasoning had no impact.

Having read Tucker's article as well as the actual Third Circuit ruling in the case (in which, by the way, the majority opinion was written by that noted bleeding-heart liberal, Michael Chertoff), I have to say that I'm still inclined to agree with Alito's critics on this one. (Which does not mean that I'm against his confirmation -- more on that later -- but simply that I think the criticism on this issue is well-grounded.)

I don't think the distinction between the search warrant and the affidavit was merely technical. Incidentlly, the judge did not sign both forms; he signed only the search warrant, which named only "John Doe" (i.e. McGinley) as the person to be searched. Alito wrote in his dissent:

... after the warrant and affidavit were reviewed by the District Attorney's office and presented to a magistrate, the magistrate carefully reviewed these documents and signed the warrant without alteration.

Also, the majority had some pretty strong arguments for why they believed the affidavit was not automatically incorporated into the warrant. Chertoff, writing for the majority, noted that on other points, the warrant specifically stated mentions that it incorporated information contained in the affidavit -- but not on the issue of whose search was authorized by the warrant. The majority opinion also casts doubt on whether the judge intended to green-light the search of all the occupants of the house. In fact, after the passage quoted by Tucker ("And it is a difference of significance"), the opinion goes on to say:

A state magistrate reviewing a search warrant affidavit might well draw the line at including unnamed "all occupants" in the affidavit because Pennsylvania law disfavors "all occupant" warrants. See Commonwealth v. Gilliam, 522 Pa. 138, 560 A.2d 140, 142 (Pa. 1989). Thus, the circumstances of this warrant are a far cry from those in the category of warrants which can be "clarified" by a separate affidavit.

The extent to which Alito is willing to bend over backwards to justify the actions of the police can be seen in this passage from his dissent:

The majority's mistaken approach is further exemplified by its suggestion that the affidavit does not actually state that, in the experience of the affiants, drug dealers "often hide drugs on family members and young children." Maj. Op. at 11. The pertinent paragraph of the affidavit states: This application seeks permission to search all occupants of the residence and their belongings to prevent the removal, concealment, or destruction of any evidence requested in this warrant. It is the experience of your coaffiants that drug dealers often attempt to do so when faced with impending apprehension and may give such evidence to persons who do not actually reside or own/rent the premises. This is done to prevent the discovery of said items in hopes that said persons will not be subject to search when police arrive.

The commonsense reading of this paragraph is that, in the experience of the affiants, drug dealers, when they are about to be arrested, often give contraband or incriminating evidence to other persons who are on the premises ("occupants") in the hope that these persons will not be searched. The majority notes that this passage does not literally state that narcotics dealers often hide drugs on family members and young children," but this is precisely the sort of technical, legalistic reading that is out of place in interpreting a search warrant or supporting affidavit.

But Alito does not mention a highly relevant line from the same affidavit which explains why the police officers were asking for an "all occupants" search warrant:

The search should also include all occupants of the residence as the information developed shows that Doe has frequent visitors that purchase methamphetamine. These persons may be on the premises at the time of the execution of the search warrant and many attempt to conceal controlled substances on their persons.

In other words, "all occupants" referred not to McGinley's wife and 10-year-old daughter, but to drug buyers who might be on the premises.

I agree with Bill Tucker -- whom, by the way, I have known for many years -- that in some instances, nitpicking over properly dotted i's and crossed t's in search warrants has led to travesties of justice, such as physical evidence against a murderer being thrown out because the search warrant was written on a form that was intended for drug searches only. Tucker deals with this issue at some length in his 1985 book Vigilante: The Backlash Against Crime in America. But this case was not about the exclusionary rule, i.e. the suppression of improperly obtained evidence; it was about the civil liability of the police for conducting an improper search. (Incidentally, I have long believed that the Fourth Amendment is far better enforced through police liability than evidence suppression.)

I believe Alito should (and will) be confirmed. As a Washington Post editorial says, while criticizing Alito's record on some specific issues:

A Supreme Court nomination isn't a forum to refight a presidential election. The president's choice is due deference -- the same deference that Democratic senators would expect a Republican Senate to accord the well-qualified nominee of a Democratic president.

And Judge Alito is superbly qualified. His record on the bench is that of a thoughtful conservative, not a raging ideologue. He pays careful attention to the record and doesn't reach for the political outcomes he desires. His colleagues of all stripes speak highly of him. His integrity, notwithstanding efforts to smear him, remains unimpeached.

... It's fair to guess that Judge Alito will favor a judiciary that exercises restraint and does not substitute its judgment for that of the political branches in areas of their competence. That's not all bad. The Supreme Court sports a great range of ideological diversity but less disagreement about the scope of proper judicial power. The institutional self-discipline and modesty that both Judge Alito and Chief Justice Roberts profess could do the court good if taken seriously and applied apolitically.

Supreme Court confirmations have never been free of politics, but neither has their history generally been one of party-line votes or of ideology as the determinative factor. To go down that road is to believe that there exists a Democratic law and a Republican law -- which is repugnant to the ideal of the rule of law. However one reasonably defines the "mainstream" of contemporary jurisprudence, Judge Alito's work lies within it. While we harbor some anxiety about the direction he may push the court, we would be more alarmed at the long-term implications of denying him a seat. No president should be denied the prerogative of putting a person as qualified as Judge Alito on the Supreme Court.

However, supporting Alito for the Supreme Court does not preclude being critical of some of his views, particularly in the area of state power vs. individual rights.

Responding to Jonathan Turley at Powerline, Paul Mirengoff writes:

Alito may not be the judge you want to get if you found yourself in the company of drug dealers during a raid and want to sue the police for not making sufficiently fine distinctions about how you should have been treated. But he has written hundreds of opinions and voted in thousands of cases. If this is the best Turley can do to show that Alito's a threat to liberty, then Turley shouldn't be troubled.

Well, I don't know about the rest of Alito's record, but I, for one, am troubled by the tone of the first sentence of this paragraph. It reflects the attitude, unfortunately all too common among law-and-order conservatives, that abuses of police power are nothing to worry about if they're directed at bad people (like the ones who might find themselves in the company of drug dealers during a raid). But it's worth remembering that, given the well-known excesses of the War on Drugs, none of us -- not even affluent middle-class Republicans -- are safe from being closer than we'd like to a drug raid. And even self-interest aside, there is that small matter of the principle of limited government. Here's hoping that Alito will do a better job of upholding that principle on the Supreme Court than he did in Doe v. Groody.

And another "oops"

While bloggers on the right tout a shockingly shoddy story about alleged bias in the New York Times' reporting on domestic surveillance under Bush and under Clinton, the left-wing blogosphere goes equally batty over an even shoddier report claiming that Bush authorized warrantless domestic surveillance before 9/11 (thus supposedly undercutting his claim that this measure was undertaken in response to a national security emergency.

And the evidence?

The article, by Jason Leopold, opens with this:

The National Security Agency advised President Bush in early 2001 that it had been eavesdropping on Americans during the course of its work monitoring suspected terrorists and foreigners believed to have ties to terrorist groups, according to a declassified document.

The NSA's vast data-mining activities began shortly after Bush was sworn in as president and the document contradicts his assertion that the 9/11 attacks prompted him to take the unprecedented step of signing a secret executive order authorizing the NSA to monitor a select number of American citizens thought to have ties to terrorist groups.

In its "Transition 2001" report, the NSA said that the ever-changing world of global communication means that "American communication and targeted adversary communication will coexist."

"Make no mistake, NSA can and will perform its missions consistent with the Fourth Amendment and all applicable laws," the document says.

However, it adds that "senior leadership must understand that the NSA's mission will demand a 'powerful, permanent presence' on global telecommunications networks that host both 'protected' communications of Americans and the communications of adversaries the agency wants to target."

A minor problem: the "Transition 2001" report is dated December 2000. That is, it predates Bush's inauguration. What's more, the cover page notes that it is based on a manual dated February 24, 1998. In other words, this is a report on the NSA's surveillance capabilities (as opposed to actual surveillance) before Bush took office.

The article, posted at a site with the ironic name truthout.org, goes on to say:

What had long been understood to be protocol in the event that the NSA spied on average Americans was that the agency would black out the identities of those individuals or immediately destroy the information.

But according to people who worked at the NSA as encryption specialists during this time, that's not what happened. On orders from Defense Department officials and President Bush, the agency kept a running list of the names of Americans in its system and made it readily available to a number of senior officials in the Bush administration, these sources said, which in essence meant the NSA was conducting a covert domestic surveillance operation in violation of the law.

So now, after a red herring of a declassified document that has no bearing on anything that happened at the NSA under Bush, we get anonymous sources claiming that Bush and DOD officials ordered the NSA to list of the names of Americans in its system. In addition to the sources being anonymous, there is no reference to the time frame of these orders.

The next "source" is James Risen, author of the new book State of War: The Secret History of the C.I.A. and the Bush Administration and one of the two New York Times reporters who exposed Bush's surveillance program last December. According to the article:

James Risen, author of the book State of War and credited with first breaking the story about the NSA's domestic surveillance operations, said President Bush personally authorized a change in the agency's long-standing policies shortly after he was sworn in in 2001.

Risen said this where? Link? Citation?

"The president personally and directly authorized new operations, like the NSA's domestic surveillance program, that almost certainly would never have been approved under normal circumstances and that raised serious legal or political questions," Risen wrote in the book. "Because of the fevered climate created throughout the government by the president and his senior advisers, Bush sent signals of what he wanted done, without explicit presidential orders" and "the most ambitious got the message."

This seems clearly a reference to Bush authorizing new operations post-9/11, since Risen is talking about other-than-normal circumstances and a "fevered climate." In any case, the coverage of Risen's book says nothing about any evidence that Bush authorized warrantless domestic surveillance prior to 9/11, which surely would have been an explosive revelation.

So far, Leopold's only link to the pre-9/11 period is "Transitions 2001," which, as we saw, has nothing to do with Bush. At the very end of the article, there is another reference:

According to the online magazine Slate, an unnamed official in the telecom industry said NSA's "efforts to obtain call details go back to early 2001, predating the 9/11 attacks and the president's now celebrated secret executive order. The source reports that the NSA approached U.S. carriers and asked for their cooperation in a 'data-mining' operation, which might eventually cull 'millions' of individual calls and e-mails."

The Slate.com article, not linked at truthout.org, really does exist, though it attributes the claim to a former telecom executive ("who asked not to be identified so as not to out his former company"). How credible this claim is is anybody's guess. Incidentally, another recent Slate article argues that NSA snooping excesses predate Bush.

To his credit, at least one blogger who initially jumped on the truthout.org bandwagon -- John Cole's liberal co-blogger Tim F. -- then posted an update:

Or, maybe, never mind. I’ve looked through the document and found less meat than was advertised. We’ll see whether James Risen’s quote comes from proper context.

If it’s bogus, that’ll teach me to run with info from a dodgy site. I’ll update when we know more.

Kudos to Tim for the correction. But it's always a good idea to check out the links first, and run with the info later.

Update: Tim F. runs a definitive retraction, based on this debunking by emptywheel at the Daily Kos. Intellectual honesty prevails over partisan politics: it's something we should see more often, in the blogosphere and in the professional media alike.

More on Katrina, race, and the media

In my recent post, "Everything You Knew About Hurricane Katrina Was Wrong," I wrote that the New York Times (along with several other major papers) gave no coverage to the newly released data showing that the victims of Hurricane Katrina in New Orleans were not disproportionately black or poor, contrary to initial reports and conventional wisdom.

As it turns out, I was wrong, though not by much.

On December 18, 2005, the Times ran a front-page, 3000-word-long story titled, "Louisiana's Deadly Storm Took Strong as Well as the Helpless," which profiled a number of victims and gave fairly detailed accounts of how they died. Buried within the story, in the ninth paragraph, was this information:

State officials have released the names of only 512 victims -- fewer than half the estimated deaths in the state -- and have provided just a skeletal demographic breakdown, showing that most were 65 or older, about half were black and about half were female.

The charts on Page 46, where the article concluded, also showed the racial breakdown of known victims.

In his January 9 column on Katrina myths and facts, John Leo erroneously says that the Times' December 18 analysis "omitted the racial breakdown from the state report." It did not, but its inclusion was easy to miss. The Times article certainly did not stress the fact that the newly released statistics on Katrina deaths contradicted received wisdom (as did Knight-Ridder and The Los Angeles Times); it did not even put the percentage of blacks among Katrina victims in the context of the racial demographics of New Orleans. Instead, it mentioned the statistics in passing. Ironically, on another point, the Times article did specifically note that newly available information contradicted earlier notions about those who died in the hurricane:

Of those who failed to heed evacuation orders, many were offered a ride or could have driven themselves out of danger -- a finding that contrasts with earlier reports that victims were trapped by a lack of transportation.

Yet surely the notion that race (along with income) was a major factor in deciding who lived and who died in the hurricane and its aftermath was far more widely touted, and far more damaging, than the notion that Katrina victims were trapped by lack of transportation.

So, on this one, the Times pretty much lives up (or down) to the "politically correct media" stereotype.

The Washington Post, as far as I can tell, has performed even worse. At the height of Katrina, it ran articles that played up the race card (including one headlined, "To Me, It Just Seems Like Black People Are Marked"). So far, I have not been able to find a single article in its database that even mentions the new reports on the demographics of Katrina's toll.

Playing "gotcha" with the Grey Lady

A much-blogged article at the American Thinker website accuses The New York Times, and the mainstream media in general, of blatant hypocrisy and political bias in its approach to domestic spying.

The article by William Tate, headlined, "Under Clinton, NY Times called surveillance 'a necessity,'" says:

The controversy following revelations that U.S. intelligence agencies have monitored suspected terrorist related communications since 9/11 reflects a severe case of selective amnesia by the New York Times and other media opponents of President Bush. They certainly didn’t show the same outrage when a much more invasive and indiscriminate domestic surveillance program came to light during the Clinton administration in the 1990’s. At that time, the Times called the surveillance “a necessity.”

That would be a pretty striking example of bias, indeed. The problem is that Tate's article is a tangle of distortions and contradictions.

The surveillance he's is talking about is the Echelon electronic monitoring program that came to light in 1999:

Tellingly, the existence of the program was confirmed not by the New York Times or the Washington Post or by any other American media outlet – these were the Clinton years, after all, and the American media generally treats Democrat administrations far more gently than Republican administrations – but by an Australian government official in a statement made to an Australian television news show.

Of course, this presumes that American media outlets were aware of the program and did not disclose it, but never mind.

The Times actually defended the existence of Echelon when it reported on the program following the Australians’ revelations.

“Few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists….”

And the Times article quoted an N.S.A. official in assuring readers

“...that all Agency activities are conducted in accordance with the highest constitutional, legal and ethical standards.”

Of course, that was on May 27, 1999 and Bill Clinton, not George W. Bush, was president.

"The Times defended" seems to imply an editorial stance. But in fact, the article Tate links ran in the science and technology section, hardly a place where people would look for defense or criticism of administration policies. And that's not all. See how that first quotation ends in an ellipsis? Well, here's the full sentence:

While few dispute the necessity of a system like Echelon to apprehend foreign spies, drug traffickers and terrorists, many are concerned that the system could be abused to collect economic and political information.

Reads rather differently, doesn't it? Actually, there should have been an ellipsis at the start of Tate's quotation as well, because he snips off the word "while" -- which would have given away the fact that the statement about the "necessity" of monitoring spies, drug traffickers and terrorists is balanced by a counterpoint.

Tate does, to be fair, eventually get to the second half of that sentence:

Even so, the article did admit that

“...many are concerned that the system could be abused to collect economic and political information.”

The wording here clearly implies that the article on the whole is a defense of the program, with a reluctant admission that it is open to abuses. (I'm reminded of articles in the old-time Soviet press which used to gleefully note that "even the bourgeois press was forced to admit" such-and-such.) But actually, most of the Times article focuses precisely on worries that the Echelon program could be abused -- as one might glean from its title, "Lawmakers Raise Questions About International Spy Network."

Despite the Times’ reluctance to emphasize those concerns, one of the sources used in that same article, Patrick Poole, a lecturer in government and economics at Bannock Burn College in Franklin, Tenn., had already concluded in a study cited by the Times story that the program had been abused in both ways.

“ECHELON is also being used for purposes well outside its original mission. The regular discovery of domestic surveillance targeted at American civilians for reasons of ‘unpopular’ political affiliation or for no probable cause at all… What was once designed to target a select list of communist countries and terrorist states is now indiscriminately directed against virtually every citizen in the world,” Poole concluded.

The Times article also referenced a European Union report on Echelon. The report was conducted after E.U. members became concerned that their citizens’ rights may have been violated. One of the revelations of that study was that the N.S.A. used partner countries’ intelligence agencies to routinely circumvent legal restrictions against domestic spying.

This is where Tate gets a tad confused. The Times is reluctant to emphasize concerns about Echelon's abuses, yet it quotes two different reports that emphasize exactly such concerns? Tate also neglects to mention that Poole's position is identical to the Times' alleged defense of Echelon:

"The recent revelations about China's spying activities in the U.S. demonstrates that there is a clear need for electronic monitoring capabilities," said Patrick Poole, a lecturer in government and economics at Bannock Burn College in Franklin, Tenn., who compiled a report on Echelon for the Free Congress Foundation. "But those capabilities can be abused for political or economic purposes so we need to ensure that there is some sort of legislative control over these systems."

It gets better. Tate writes:

In the February, 2000 60 Minutes story, former spy Mike Frost made clear that Echelon monitored practically every conversation – no matter how seemingly innocent – during the Clinton years.

“A lady had been to a school play the night before, and her son was in the school play and she thought he did a-a lousy job. Next morning, she was talking on the telephone to her friend, and she said to her friend something like this, ‘Oh, Danny really bombed last night,’ just like that. The computer spit that conversation out. The analyst that was looking at it was not too sure about what the conversation w-was referring to, so erring on the side of caution, he listed that lady and her phone number in the database as a possible terrorist.”

“This is not urban legend you’re talking about. This actually happened?” Kroft asked.

“Factual. Absolutely fact. No legend here.”

During the Clinton years? That's a good one. Mike Frost, you see, is Canadian, and he was discussing his work for the CSE, the Canadian equivalent of the NSA. (Edited to add: Since Echelon was a collaboration between the intelligence agencies of several countries under the aegis of the NSA, and included the CSE, it's possible that this alleged incident happened in the U.S. However, considering that Frost retired in 1990, it's pretty certain that he wasn't talking about the Clinton years.)

Undaunted, Tate sums up:

So, during the Clinton Administration, evidence existed (all of the information used in this article was available at the time) that:

-an invasive, extensive domestic eavesdropping program was aimed at every U.S. citizen;

-intelligence agencies were using allies to circumvent constitutional restrictions;

(Actually, the European Union report that is presumably Tate's source for the latter assertion says that this was done "between 1967 and 1975" and also "following the introduction of legislation to limit NSA's domestic intelligence activities in 1978"; it says nothing about the Clinton era specifically.)

-and the administration was selling at least some secret intelligence for political donations.

(That refers to a report in Insight magazine, based on anonymous intelligence sources -- and not confirmed or pursued anywhere else, as far as I can tell -- that intelligence officials bugged a 1993 conference of Asian and Pacific leaders hosted by the Clinton Administration and that the surveillance data were then sold to corporate Democratic Party donors for use against their competitors.)

Says Tate:

These revelations were met by the New York Times and others in the mainstream media by the sound of one hand clapping. Now, reports that the Bush Administration approved electronic eavesdropping, strictly limited to international communications, of a relative handful of suspected terrorists have created a media frenzy in the Times and elsewhere.

The Times has historically been referred to as “the Grey Lady.” That grey is beginning to look just plain grimy, and many of us can no longer consider her a lady.

Tate's indictment of the pro-Clinton liberal media is somewhat odd in view of the fact that his piece relies heavily on a story aired by that well-known bastion of conservatism, CBS News' 60 Minutes. In fact, the revelations about Echelon were followed by a good deal of criticism in the mainstream media. A December 5, 1999 story in the Times' Week in Review section, by James Risen, bore the sarcastic title, "Don't Read This; If You Do, They May Have to Kill You." Another fairly critical article, by Elizabeth Becker, ran on February 23, 2000 (among other things, it quoted vigorous Echelon critic Bob Barr, then Republican Congressman from Georgia). A July 16, 2000 article titled "Cloak, Dagger, Echelon" opened with the words:

What else but the shadow of Big Brother could provoke equal anger from the American Civil Liberties Union, thousands of Internet enthusiasts and the French government?

Meanwhile, The Washington Post weighed in on November 13, 1999, with a long article titled, "Critics Questioning NSA Reading Habits; Politicians Ask if Agency Sweeps In Private Data," followed the next day by a nearly 2,000-word essay in Outlook, "Loud and Clear; The most secret of secret agencies operates under outdated laws." And The New Yorker published an investigative report on Echelon by Seymour Hersch.

There was also a major difference between the Echelon story and the Bush surveillance story. While it's quite possible that intelligence services under Clinton were abused for domestic spying and surveillance, no one was ever able to prove it. Many of the reports at the time emphasized Echelon's elusiveness. On February 24, 2000, the Times reported:

Representative Bob Barr, Republican of Georgia, who called for the hearings into the project, conceded that he was uncertain what Echelon actually does. "The charges are serious that the government indiscriminately scoops up millions upon millions of conversations daily over the Internet and the telephone," he said in an interview. "But the first question I have is what is being collected on Echelon and how is it being used. I don't know."

And according to the November 13, 1999 Washington Post story:

Without confirming or denying Echelon's existence, senior U.S. officials familiar with the NSA's operations deny that the agency violates the civil rights of U.S. citizens. They say the NSA strictly adheres to the 1978 Foreign Intelligence Surveillance Act (FISA), which resulted from the Church committee's revelations.

FISA prohibits the NSA from deliberately eavesdropping on Americans either in the United States or overseas, unless the agency can establish probable cause to believe that they are agents of a foreign government committing espionage or other crimes.

....

Unlike foreign operations, all domestic NSA surveillance requires prior court approval. But even in such cases, the law calls for "minimization procedures"--such as deleting the names of third parties--to limit the infringement on privacy.

....

"I can say categorically that NSA is as careful as any civil libertarian would want it to be in adhering to the rules," said Stewart A. Baker, the NSA's former general counsel, now a private communications lawyer in Washington. "There is an ingrained discipline about that, right down to the lowest levels of the agency."

Indeed, the NSA's troubles in Congress began this spring when Rep. Porter J. Goss (R-Fla.), chairman of the House Permanent Select Committee on Intelligence, asked the agency for internal documents about its compliance with FISA because he thought NSA lawyers were too cautious in approving new surveillance programs.

When the agency declined his request on grounds of attorney-client privilege, Goss erupted, saying the committee had never been stonewalled in such fashion. Barr immediately joined the dispute from the opposite flank, suggesting that the NSA had refused Goss's request because it was violating Americans' privacy by indiscriminately vacuuming up communications.

Again, there may well have been Clinton-era violations of the ban on domestic surveillance without special authorization. The situation today, however, is markedly different. The Bush administration has openly admitted and defended conducting surveillance of communications between people in the United States and people abroad in circumvention of FISA warrants, on the grounds that it was supposedly given such authority by Congress when it authorized the use of force in response to the September 11 attacks.

It's true that liberals who accuse Bush of ushering in a police state forget that it was the Clinton administration that first pushed for a rather dramatic expansion of surveillance and other government powers in order to combat the threat of terrorism. (Conservatives are prone to forget it as well.) But that's a far cry from the blatant double standard Tate claims to have detected. So the bloggers might want to hold off on the gloating about hypocrisy and media bias; all that's exposed here is a very shoddy attempt at an exposé. Sometimes it helps to check the links before trumpeting a story.

More: See Taylor Barnes's post in the comments for more analysis of the "American Thinker" piece. Among other things, Barnes points out that the alleged bugging of the Asian and Pacific leaders' summit had nothing to with Echelon or with surveillane of Americans.

Meanwhile, Solomon at the Solomonia blog, who linked to the "American Thinker" story, replies to this post.

According to Solomon:

While Cathy Young does a good job in showing that the Tate piece is at least a bit sloppy and a tad unfair to the Gray Lady, I think that the overall point remains -- MSM reaction and interest to similar revelations in previous administrations has been far more muted compared to the obsessive focus we're witnessing today. As part of her proof of media interest in the story, Young puts her Lexus/Nexus skills to work to list some of the major publications where Echelon revelations and concerns appeared, but frankly, this comes off more as a case of "lying with statistics" (not to imply that Young is lying, but you take the point...) than as reflecting the true degree of media interest in the case. Do you remember anything about this story from years back? I don't, not that I probably would have been overly concerned then, either, but I do not recall anything like the scandal du jour treatment current events are generating. ...

While less was known about the details of Echelon at the time, that does not explain, given what was known and the concerns that were voiced (and reported on), why answers were not demanded and more pressure placed if they really believed the issue was an important one -- we've seen the MSM's ability to do this when they deem an issue important enough. Clinton Administration silence was met with movement on to the next issue, while Bush Administration candor has lead to scare and scandal-mongering. The fact that the New York Times piece in question appears in the Science and Technology section and was not bumped to the front page demonstrates how much attention the editors thought the Civil Liberties concerns voiced in the article were worth -- not much. We don't have to speculate where in the paper such revelations printed today would appear.

Let me clarify the major difference between the two stories.

Under Clinton, it's not simply that there was no proof that the NSA was engaging in illegal domestic surveillance; there weren't even any specific allegations that it was doing so. There were only assertions that it had the capability to spy on Americans' private communications, and speculations that it could be doing that -- all strenuously denied by NSA officials. There were no charges to investigate.

By contrast, the New York Times story about the eavesdropping program authorized by the Bush administration was based on fairly specific information about actual NSA operations of questionable legality, provided by about a dozen officials. I'm not sure there was any candor on the part of the Bush administration, considering that the White House asked the Times to squelch the story; I assume that the Times simply had enough information that the White House was in no position to deny or stonewall.

And by the way, I certainly did hear about Echelon. No, the story wasn't nearly as "big" as the NSA snooping story today, but again, there wasn't much to the story. And while the article discussed in "The American Thinker" ran in the Science and Technology section, the Times did (as I mentioned) run other stories on the subject in the news section and in Sunday's "Week in Review."

Not to be snarky, but assertions that the American Thinker story may be factually sloppy but still basically on the mark as far as the big picture goes strike me as amusingly close to that infamous New York Times headline: "Memos on Bush Are Fake but Accurate, Typist Says."

And speaking of the Supreme Court...

Yesterday's New York Times recounts a disturbing case now before the Supreme Court. Paul G. House, a Tennessee man who is on death row for the rape and murder of a neighbor, Carolyn Muncey, is appealing his conviction on the grounds of new DNA evidence. While the evidence does not conclusively exonerate him, it negates a key piece of the prosecution's case at his 1986 trial.

Chemical analysis presented at the trial suggested that Mr. House's semen was found on Ms. Muncey's clothing, while DNA testing later showed it to be her husband's. ... The defense theory was that the husband, Hubert Muncey, was the killer. The new legal team that represented Mr. House in his habeas corpus petition produced witnesses who testified that they had heard Mr. Muncey make a drunken confession, but the federal district court discounted the evidence in rejecting the petition in 1997.

And who would be against a retrial in such a case? The state of Tennessee, for one. And Justice Antonin Scalia.

Addressing Mr. House's lawyer on Wednesday, Justice Scalia said he agreed that the case now looks "much closer" than it must have appeared to the jury in 1986. But that was not the issue, he continued. "Once the case has been tried, we have a much different task," Justice Scalia said, namely to determine "whether any reasonable jury could have found guilt."

Only if the answer was no could a federal court proceed to hear a petition for a writ of habeas corpus and consider whether constitutional errors that had not previously been identified had occurred at the trial. The Supreme Court's leading precedent on this question, a case from 1995 called Schlup v. Delo, refers to this hurdle as a "gateway" through which an inmate must pass. It is, Justice Scalia said, "a very heavy burden" for the defense to meet.

Mr. House's lawyer, Stephen M. Kissinger, replied, "It is a high burden, and we don't shrink from it."

...

Mr. Kissinger, an assistant federal defender from Knoxville, Tenn., challenged Justice Scalia's description of the gateway. "It comes down to the 'could' and 'would' distinction," he said. "We don't deny that there is evidence that 'could' support conviction, but that's not the test. What 'would' a reasonable juror conclude? Proof of innocence does not have to be absolute."

So the difference between a man's life and death hinges on the difference between "could" and "would." It sounds like something out of a very black comedy satirizing the courts.

I don't object to the death penalty on principle; however, I think that the possibility of executing an innocent person poses an extremely serious challenge to the capital punishment. If we are going to maintain this institution, we should at least take every step humanly possible to ensure that we are certain beyond any reasonable doubt of the guilt of the condemned. Here, the new evidence clearly could have (and, in all probability, would have) made a major difference in the trial -- even if it's possible that the jurors would have still come to the same conclusion.

This shouldn't be a conservative-vs.-liberal issue. If conservatives are still the champions of limited government, surely they should be concerned with limiting the government's ability to take a man's life without every conceivable safeguard.

According to the Times, it is likely that at least five justices will back House and he will get a new trial. It should have been 9-0.

Update: My friend Eugene Volokh writes:

But wouldn't the same argument operate as to life imprisonment? Perhaps it's not quite as wrong to keep someone locked up for life (or even 30 years) if there's strong evidence that he's innocent as to execute him then, but it still seems pretty wrong.

Also, I take it that Justice Scalia's response in either case is that "wrong" doesn't mean "unconstitutional." States are free to provide post-conviction review of newly discovered claims of actual innocence; some do this through special procedures, and others through clemecy decisions by the governor. But there's no constitutional requirement of this extra procedure, once a fair trial has taken place.

I agree on the first point, of course; it would be a monstrous injustice to continue to hold someone in prison, without a new trial, despite this kind of potentially exculpatory evidence. One big difference, though, is that at least if the person remains in prison, the fight for his release can continue. Execution is irreversible.

As for the second point: perhaps I'm being non-lawyerly here, but to me, the notion that the courts should allow an execution of a clearly innocent person to proceed as long as there were no procedural violations at the trial shocks the conscience as well as common sense. (It's the other extreme from the idea that the perpetrator of a heinous crime should go free on a procedural technicality.) I realize that appellate judges are not supposed to be triers of fact. But the Fifth Amendment to the Constitution says that no one can "be deprived of life, liberty, or property, without due process of law"; and it seems to me that denying a new trial after the discovery of significant new evidence is a flagrant violation of "due process."

Scalia's proposed standard seems to be that if there is any reasonable possibility that the jury would have found the defendant guilty even with the new evidence, the conviction should stand. I would not go so far as to say that a reversal is warranted if there is the slightest chance that the new evidence would have resulted in an acquittal. But a "preponderance of the evidence" standard seems reasonable in such a situation, and in this case -- if the Times report is accurate -- it seems more likely than not that the new DNA evidence would have altered the outcome of the trial. (The claim that House's semen was found on the victim's clothing provided not only physical evidence against him but also the motive, since the prosecution argued that House killed Muncey in the course of a sexual assault.)

Finally, what troubles me about Scalia's position (again, as outlined in the article) is that, aside from the issue of constitutionality, he does not seem particularly bothered by the wrongness of executing House. It was the same thing that troubled me about Scalia's dissent in Lawrence: unlike Clarence Thomas, he did not simply believe that anti-sodomy laws were constitutionally permissible, but clearly didn't see anything particularly wrong with such laws.

I am reminded of Scalia's 2002 speech in which he observed that opposition to the death penalty is correlated with the growth of secularism:

I attribute that to the fact that, for the believing Christian, death is no big deal. Intentionally killing an innocent person is a big deal: it is a grave sin, which causes one to lose his soul. But losing this life, in exchange for the next? The Christian attitude is reflected in the words Robert Bolt’s play has Thomas More saying to the headsman: “Friend, be not afraid of your office. You send me to God.” ... For the nonbeliever, on the other hand, to deprive a man of his life is to end his existence. What a horrible act!

Does Scalia, perhaps, believe that for the believing Christian, it is "no big deal" to send an innocent person to his death (as long as it's not done "intentionally"), because God will fix it all by rewarding the sufferer in the next life? If so, that's a rather scary interpretation of the role of religion in public life.

Judge Alito: Abortion, alumni, and authority

So, the Samuel Alito confirmation hearings are wrapping up, and so far we've learned mostly that Alito may or may not overturn Roe v. Wade, and that he may or may not have been a member of the controversial Concerned Alumni of Princeton. At least the fixation on abortion did not completely crowd out questions about Judge Alito's views on the question of executive powers.

Unfortunately, in the current political environment, any pointed questions on the subject coming from inevitably look partisan (and, coming from Republicans, would look disloyal). But in fact, while I'm sure that Alito is a highly qualified jurist and an intelligent and decent man, I think that concerns about his attitudes toward individual rights, civil liberties and state power are justified. George Washington University law professor Jonathan Turley, no one's idea of a liberal Democrat, thinks so too. (Edit: Corrected link) Here's what Turley has to say in a USA Today op-ed:

Despite my agreement with Alito on many issues, I believe that he would be a dangerous addition to the court in already dangerous times for our constitutional system. Alito's cases reveal an almost reflexive vote in favor of government, a preference based not on some overriding principle but an overriding party.

In my years as an academic and a litigator, I have rarely seen the equal of Alito's bias in favor of the government. To put it bluntly, when it comes to reviewing government abuse, Samuel Alito is an empty robe.

Turley adds that Alito's view on the subject have been "repeatedly rejected not only by his appellate colleagues but also by the U.S. Supreme Court." Many of the appellate judge who have rebuked Alito for his reluctance to curb government powers are conservatives -- including current Homeland Security chief Michael Chertoff, who in one opinion wrote that Alito would "transform the judicial officer into little more than the cliché 'rubber stamp.' "

Turley concludes:

An independent judiciary means little if our judges are not independently minded. In criminal, immigration and other cases, Alito is one of the government's most predictable votes on the federal bench. Though his supporters have attempted to portray this as merely a principle of judicial deference, it is a raw form of judicial bias.

The Alito vote might prove to be the single most important decision on the future of our constitutional system for decades to come. While I generally defer to presidents in their choices for the court, Samuel Alito is the wrong nominee at the wrong time for this country.

Is Turley overreacting? Maybe. Or maybe not. Either way, it's too bad that such questions are very unlikely to get serious and thoughtful consideration from either side. In any case, the concerns he raises are far more substantial and serious than this babble from Kate Michelman, formerly of NARAL Pro-Choice America, in The Boston Globe. Michelman asserts that Alito is stuck in a Pleasantville-like fantasy world of happy housewives and authoritative husbands. And we know this how? Because he backed the legality of spousal notification for abortion, something supported by about 70% of Americans?

Astonishingly, Michelman writes:

He sought to uphold abortion restrictions that would have treated a grown married woman no differently from a child, forcing her to notify her husband in all circumstances, including abuse and rape, before obtaining an abortion.

This is (to put it politely) untrue. As summarized by the Supreme Court in Planned Parenthood v. Casey, the Pennsylvania statute that Alito voted to uphold

provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her.

Michelman also writes that Alito "seems not to have believed women and minorities deserved equal access to his own educational institution, Princeton University." That's a reference to Alito's much-disputed involvement with Concerned Alumni of Princeton, which sparked a major squabble at the Senate Judiciary Committee hearings.

Ted Kennedy's bombshell -- the supposedly incriminating CAP records -- turned out to be a dud when it was revealed that none of the papers contained any mention of Alito. There is still the fact that he mentioned his CAP membership (along with the Federalist Society) in the letter applying for a high-level job in the Reagan Justice Department years after his graduation. Some commenters here and here suggest that he made it up in order to bolster his credentials as a true conservative.

Let's make one thing clear: CAP is not being unfairly maligned. It was not a mainstream conservative group but a radical reactionary one, with a strong streak of bigotry. (Some Alito defenders, such as Human Events'Terry Jeffrey in a CNN appearance, have tried to suggest that the group was tarred as racist simply it opposed preferential treatment in university admissions; but in fact, CAP opposed merit-based admissions and wanted quotas favoring males.) The real issue, of course, is whether Alito knew that.

Law professor Eric Muller, who personally knows and likes Samuel Alito, poses this question at IsThatLegal.org: how likely is it that a Princeton alumnus would not have known much about the group's doings? From my own experience, I can say that I was very aware of some flaps that occurred at my alma mater, Rutgers University, after my graduation, and barely aware of others. Perhaps Alito vaguely heard about the group being accused of racism and sexism but chalked it off to political correctness. If he did mention a non-existent membership in a conservative group (not on a résumé but in an application letter) to impress a prospective employer, it does not reflect well on his character, but I would be inclined to see it as a venial sin. It certainly doesn't make him a bigot; there is no evidence of bigotry in his career or his life, and trying to imply that he was one was a low blow that misfired badly for the Democrats.

More: Over at The Reality-Based Community, Mark Kleiman writes:

Alito, as a thirty-something lawyer bucking for a job with the Reagan Administration, boasted about his CAP membership as a way of displaying his paleo credentials to what was an extremely paleo ruling clique. ... Both Alito's eagerness to flash his credentials as a bigot in 1985 and his modified, limited veracity about the topic today are perfectly legitimate issues in considering him for the Supreme Bench.

First of all, the "boasting" consists of a single line in this letter (scroll down to page 16):

I am a member of the Federalist Society for Law and Public Policy and a regular participant at its luncheon meetings and a member of the Concerned Alumni of Princeton University, a conservative alumni group.

The letter, about 500 words long, was intended to prove Alito's bona fides as a conservative. Flashing his credentials as a bigot? Please. That presumes that not only Alito but the intended readers of his letter in the Reagan DOJ were extensively familiar with CAP's activities. In fact, CAP was clearly so little-known that Alito felt the need to identify it (unlike the Federalist Society) as "a conservative alumni group."

More: At Reason.com, Jeff Taylor writes:

A Justice Alito on the Court may force the body politic to confront this new reality, where abortion does not play a central role on the socio-political scene. The left will have failed to stop a nominee that, in their construction, threatens to reverse one of the singular civil rights advancements of 20th century America. Moreover, the American public did not pay much attention to their failure.

But the right will creep closer to its long-sought 5-4 court certain—absolutely certain—to revisit and overturn Roe. Except that Alito may never vote that way. Both sides may have to live with the alternative: An armistice in the battle over Roe.

Floods, dams, and environmentalists

The latest Weekly Standard has an interesting article (subscriber only) by John Berlau of the Competitive Enterprise Institute pointing out that, while everyone loves levees in the aftermath of Hurricane Katrina, "for years now, the left has been deeply ambivalent about the most logical and time-tested mitigator against the threat of city-wide and regional floods: dams."

Berlau has some affection for the old-style liberalism of Franklin D. Roosevelt, at least for its "no-nonsense views on dealing with nature":

At the 1935 dedication of Hoover Dam, FDR hailed the taming of a "turbulent, dangerous river" and the "completion of the greatest dam in the world." He proudly noted that the dam on the Colorado River was "altering the geography of a whole region," calling what had existed before "cactus-covered waste" and "an unpeopled, forbidding desert." ... About the river he said bluntly that "the Colorado added little of value to the region this dam serves." In the spring, he said, farmers "awaited with dread the coming of a flood, and at the end of nearly every summer they feared a shortage of water that would destroy their crops."

By contrast, the modern environmentalist left is represented by veteran journalist Jacques Leslie, author of the recently published book, In Deep Water: The Epic Struggle over Dams, Displaced People, and the Environment, who criticizes the "Rooseveltian vision, arising out of the New Deal, built into the Hoover Dam and the Tennessee Valley Authority, enthralled with its seeming capacity to foster prosperity by subjugating nature." In Berlau's words,

to Leslie, damming the Colorado River was a damn shame, and he pushes for returning it "to its virgin state: tempestuous, fickle, and in some stretches astonishing." He acknowledges that if you took away the dams and the hydroelectric power they provide, you would also "take away modern Los Angeles, San Diego, and Phoenix" as well as the nearby former desert outpost known as Las Vegas. But in exchange for this major subtraction from civilization as we know it, Americans would be able to marvel at a "free-flowing river" and "an unparalleled depository of marine life."

This change in vision has also had practical consequences:

Support for dam removal and opposition to new dams have become a staple among modern environmentalists, giving rise to organizations whose only agenda is to stop dams. American Rivers, for example, brags about how many dams have been decommissioned and has as its slogan "Rivers Unplugged." The Berkeley-based International Rivers Network does similar work in Third World countries, where dams are even more crucial for power and flood control. This sea change on dams illustrates a larger shift of the left concerning technology and the nature of man.

Berlau also notes that "one of the main obstacles, before Katrina, to building and fortifying levees, as well as creating more innovative flood barriers, was put up by environmentalists":

In 1977, the group Save Our Wetlands successfully sued the Army Corps of Engineers to halt the construction of large floodgates intended to prevent Gulf of Mexico storms from overwhelming Lake Pontchartrain and flooding New Orleans. The gates, the environmentalists said, would have hurt wetlands and marine life, although the Corps had already done an environmental assessment to the satisfaction of environmental regulators. Many experts believe the gates could have greatly reduced the impact of Katrina. "It probably would have given [the people of New Orleans] a better shot," says Daniel Canfield, a renowned professor of aquatic sciences at the University of Florida.

Then, in the 1990s, the Army Corps of Engineers tried to upgrade 303 miles of levees along the Mississippi River, telling the Baton Rouge Advocate in 1996 that a levee "failure could wreak catastrophic consequences on Louisiana and Mississippi." But the anti-dam American Rivers, along with eco-groups such as the Sierra Club and state chapters of the National Wildlife Federation, sued, alleging harm to "bottomland hardwood wetlands." This resulted in the Corps doing another environmental impact study and holding off some work for two years.

The Corps compromised with the anti-dam activists in other ways. As Ron Utt notes in a Heritage Foundation study, the Corps began spending hundreds of millions of dollars on environmentally correct projects like "aquatic ecosystems" instead of flood control. The distraction from the Corps's mission continued from the Clinton to the Bush administration and is something Bush can legitimately be blamed for.

Interestingly, Berlau's model is Western Europe -- which, as he notes, is "usually a favorite reference point for liberal activists and the media," and which in this case is not exactly a model of "progressive" attitudes (unless we mean "progressive" in the old-fashioned sense of being dedicated to human welfare).

After a North Sea storm in 1953, the Netherlands, half of which is below sea level, set out to dam every last major body of water. The last of these were ultramodern dams built in the 1980s. In the United States, The Weekly Standard was virtually alone in suggesting that Lake Pontchartrain could be dammed along Dutch lines. (See James R. Stoner Jr., "Love in the Ruins," September 26, 2005.) London, which sits below the high tide of the Atlantic waterways, has also had severe problems with the flooding of the Thames River. So, in the '80s, gates were built that can rise as high as five stories. The Dutch and the British are sensitive to the environment, but only to a point. They try to regulate water levels to accommodate the native fish. But neither country is undertaking massive projects to restore swamps or, in the eco parlance, "wetlands."

The environmentalist crusade against dams is curious for other reasons. The same activists who campaign for hydrogen-powered cars, for example, rail against the hydroelectricity produced by dams. As environmental journalist Gregg Easterbrook pointed out in his 1995 book A Moment on the Earth, a dam "burns no fossil fuel and emits no greenhouse gases, smog or toxic or solid wastes." Take away dams, and folks will have to rely on other energy sources such as coal ...

Quoting Canfield, Berlau asserts that "the anti-dam movement is not mainly about science, but rather philosophy, or even theology" -- the ideal of nature in a pristine state.

Having looked at some passages from Deep Waters, and at the feature on it and the interview with Leslie at Salon.com, I'm not sure Berlau's representation of the book is entirely fair. I don't think he's actually calling for the Colorado river dams to be dismantled, and he acknowledges the benefits of the dams in the 20th Century (even crediting the Hoover dam and the power it produced as a factor in winning World War II). He believes that the big dams will outlive their usefulness some day, but places this date500 to 1,000 years into the future. His discussion of the dam's negative consequences stresses soil damage and erosion, not just the value of a "free-flowing river," and he notes that the depletion of groundwater in China due to damming may bring China's agricultural successes to "a grinding halt." In the Salon interview, at least, Leslie does not seem to lack regard for human well-being: While he says that we will need to reduce our energy consumption eventually, he says that this may be done in "relatively painless" ways and emphasizes new technologies. At the end of the interview he says:

The needs that call a dam into being may be so big as to be hard to ignore. It's hard to say that people of developing nations should be deprived of water, particularly when one in five people on the planet lack enough for their basic needs. But I think if we applied the standards of the World Commission on Dams -- if we examined every cheaper alternative and priced dams according to their true value -- we would build far fewer of them. And I'm willing to live with that standard. Building dams willy-nilly on every river is insanity.

However, Leslie does regard the preservation of indigenous tribal cultures as a worthy end in itself (even if those cultures are characterized by oppressiveness and brutal sexism?), and he does suggest that the "aesthetic value of a flowing river" may be a good reason to take down the dam that ensures San Francisco's water supply. So maybe he's more of a zealot than his moderate presentation lets on. And, when he talks about the logic of market-based water pricing, not all of his ideas seem to be well thought out. For instance, he says:

I'm certainly no economist, but there's no question that a pricing system that took into account the true cost of constructing a dam and of having to dismantle it years later, as well as the many environmental impacts, would have a good effect. ... I think the only way people are going to value water the way they should is to have to pay a substantial amount for it. We would need to subsidize the poor so that they're not paying the full price for water, but there's no question in my mind that farmers have got to start paying fairly for irrigation.

Yet charging farmers more for irrigation is inevitably going to affect food prices -- hurting the poor the most, of course.

My correspondent Mark B., a frequent poster on this blog who has a background in the geosciences (and is very critical of radical environmentalism, to the point of believing that the Clinton administration leaned too far in that direction), has this to say:

I think that [Berlau] greatly overstates the ability of dams to prevent a Katrina-type catastrophe, but I do think he has a point about the anti-dam mania. [Leslie] definitely has a valid point as well -- there was a dam-building frenzy from the 1920's through the 50's in this country, and a lot of poorly-thought-out dam projects were constructed. The early Colorado River dams, built at the turn of the 20th Century, were fairly small and on the whole beneficial; the Hoover Dam project, on the other hand, represented the 30's fascination with heavy industry and concrete (witness Stalin's 5-Year Plans). Glen Canyon Dam was the turning point - there was no real need to dam that part of the Colorado, save to provide Los Angeles with cheap power, and the sedimentation rates in Lake Powell are appalling. The end of the dam binge came with the collapse of the extremely poorly-designed and -constructed Teton Dam in 1972 -- after that, it became virtually impossible to permit a new dam project, and in fact a major movement to remove dams took root.

At this point, I'm one who believes that the pendulum has swung too far the other way. I don't favor extravagant new dam projects, but I think that small dams are still very valuable in local flood control, and there's no question that hydropower is the cleanest, cheapest energy source we have.

What do I (with my admittedly modest background of a single course in environmental biology I took at Rutgers University to fulfil a science requirement) think about all this? There seems to be strong evidence that many dams have caused environmental damage that poses hazards to human beings, not just to some quasi-religious idea of Nature's Temple. To that extent, surely, caution is in order. I also wonder if this has to be an either/or question: plow full speed ahead with Rooseveltian hubris or bow humbly before nature's magnificence. Surely, for instance, modern technology can find some ways to mitigate the environmental degradation associated with big dams; surely, when building new dams, we can and should take into account lessons from the past. Surely it's not a question of either damming up every river or standing in the way of every dam yelling "Stop!"

Finally, it's interesting to ponder the ironies of this debate. Free-market champions admire grandiose, quasi-socialist, big-government construction projects. Progressives put esthetics over the livelihood of the poor. What a tangled web.