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Wizbang Podcast #6

Here are today's topics:


  1. Listening to the bloggers, or not

  2. When is a Leaker a Whistle Blower and When is it a Partisan Hack?

  3. Legal basis for NSA intercepts


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Listening to the Bloggers, or not

All three potential candidates for the position of majority leader of the House, to replace Tom Delay, participated in conference calls with bloggers yesterday. Truth Laid Bear has pointers to the audio and transcripts of the sessions. I listened to the calls and found the most interesting one to be Ray Blunt, current Republican Whip, and the one who appears to be in the position of greatest power. This power comes by virtue of his current leadership position as Whip, which is traditionally the vote counter and cat-hearder-in-chief of the House Republicans. And he appears ready to use it. Listen to this clip from his conference call, which was by far the most restrictive and closely managed of the three.

Play clip

Did he just threaten us? When this leadership race is over, he wants to make sure no blogger "does anything that minimizes our ability to work together when this leadership race is over". So if we favor another candidate, that might minimize a blogger's chace to "work together". Hmm. Was that an offer we bloggers cannot refuse? It sounded like it to me. Let's go on.

play later clip.

So in that clip, he established a few important concepts.

  1. He is the guy who knows he has already won, because he knows how to count votes better than we do, so don't mess with him.
  2. He thinks he is talking to a hostile audience, even though all the carefully selected bloggers on the line were on mute until the moderator allowed them to speak, in the order the moderator chose.
  3. If by some miracle of error, he loses, he intends to work with the winner, if they are still breathing at that point.

Here's what Dale Franks of QandO blog had to say about the call:

I would rather lick fire ants off a stick than see Roy Blunt as Majority Leader. I'm not at the point of making a firm endorsement of either Reps. Shaddeg or Boehner, but the sun will set in a blazing red sky to the east of Casablanca before I'd want Roy Blunt as Majority leader.

The first troubling thing about the Blunt conference call was the way it was handled. In the other two calls, the conversation was unmoderated, and we all had chances to get our licks in. We asked candid questions and, for the most part, got equally candid answers. All of the bloggers who were there were part of the group organized by NZ Bear, and the Congressmen had no idea who was gonna be there when he got on the line.

The Blunt people put a stop to that. They required us to email David All, one of Rep. Blunt's staffers, for permission to attend the conference call. Then, Mr. All asked us to submit our questions in writing, and informed us that the call would be moderated. Also, once we were on the line, we had to hit "*1" to be recognized before we could ask a question; otherwise, we were muted.


Later, after the carefully chosen questions by the carefully chosen questioners were carefully handled by Blunt, John Hawkins, Right Wing News asked about Blunt maintaining his whip position while running for majority leader.

Play clip


Here's what QandO had to say about that. John:

asked, why Rep. Blunt wouldn't step down from his Republican conference leadership position, since some members might fear some retaliation from him if they publicly came out for Shadegg or Boehner. Rep. Blunt responded that he was shocked—shocked!—that anyone would think of him in that way, and besides, he had to stay in the job, keeping the wheels of the conference turning, and whatnot.

Frankly, after the thinly veiled threat he had just dropped on us, I was thinking that, if I was a Congressman, I'd be pretty careful about offending the vindictive SOB myself....he was trying to spin us. As far as I can tell, Rep. Blunt broke just about every rule for how to deal effectively with bloggers. I don't think he could've alienated me more effectively had he intentionally set out to do so.

I mean, has the guy ever even seen a blog? Have any of his staff?


The other candidates have received more support from the bloggers, and for the reason that Blunt seems more like the current, highly tainted, leaders. With the Democrats succeeding in painting the Republicans as the party of corruption, I think, as does the National Review, we need someone new. Here's Steve Spruiell on the Media Blog on National Review Online.

Blunt's op-ed in the Wall Street Journal today contained several punchlines — "Congress must continue to work to shrink the size of government" (continue?), "The Republican legislative agenda for the year is not one crafted in response to the day's headlines or the latest poll numbers" (ahem) — but none funnier than Blunt's vow to crack down on "shadowy 527 organizations" with "new requirements" that subject them to "to the same rules and regulations as others who attempt to influence the legislative and political process."

First, if Blunt means broadening the scope of the McCain-Feingold campaign-finance laws, then that's a strange way to win over conservatives. Second, if he is serious about cracking down on 527s, he should start with the Rely On Your Beliefs Fund, a 527 spin-off of his Leadership PAC, the Rely On Your Beliefs Committee. Between them, these Blunt committees paid $485,000 in consulting fees to a lobbying firm that was "fatally damaged" by its association with Jack Abramoff. Most of that amount — $280,000 — came from the 527.

If Blunt is serious about getting support from House conservatives, he needs to drop the comedy and write a serious proposal for restoring the values of limited government and fiscal responsibility to the GOP. This isn't it.


We shall see if power wins, or the desire to move away from Delay is strong enough to defeat the incumbent.

When is a Leaker a Whistle Blower and When is it a Partisan Hack?


PowerLine Blog noticed the way the New York Times reported on a leak was different when the leaker supported the Republican position:

The Times Can't Define a "Whistleblower," But It Knows One When It Sees One

The New York Times reports on David Barrett's investigation into alleged misdeeds by Clinton cabinet officer Henry Cisneros. Barrett's report will be made public tomorrow, but in the meantime someone leaked it to the Times. The Times' angle on the story is that Barrett's eleven-year investigation exemplifies what went wrong with the independent counsel statute, "an important post-Watergate law." (So important that it has been repealed, to pretty much everyone's relief.)

What most struck me about the Times story was how they characterized the person who leaked Barrett's report to them, thereby enabling them to beat most of their competitors to the story:

A copy of the report was obtained by The New York Times from someone sympathetic to the Barrett investigation who wanted his criticism of the Clinton administration to be known.

Isn't that delightful? This particular leaker was no whistle-blower and no patriot; just a partisan with an axe to grind. But after the Times has printed dozens (hundreds, probably) of stories critical of the Bush administration based on leaks by Democratic bureaucrats, we're still waiting for the paper to write: "A copy of the report was obtained by The New York Times from someone sympathetic to the Democrats' position who wanted his criticism of the Bush administration to be known." The day that explanation appears, Beelzebub will be sending out for mittens and a fur coat.


I'm not expecting that any time soon either.

Legal basis for NSA intercepts


Another leak the other day was a Justice Department memo giving the legal basis for the NSA intercepts. Orin Kerr at the Volokh Conspiracy had this to say after reading the memo.

The Justice Department has published a 42-page defense of the NSA's domestic surveillance program. The new document is basically an appellate brief filed in the Court of Public Opinion. It expands on arguments made in cursory form in the prior DOJ letter to Capitol Hill, and tries to make the case that the surveillance program is legal. In this post, I want to start by just summarizing the DOJ argument. I hope to respond to specific parts of the argument, but it's not something to roll off quickly: the 42-page brief is chocked full of legal citations, including many authorities I have never read, and it's going to take some time before we can unpack the argument carefully and see whether it measures up.

Here is the administration's argument in a nutshell:

First, the President has inherent constitutional authority to order foreign intelligence surveillance monitoring. The President's core job is to protect the country against foreign attack. The 9/11 attacks made this interest particularly strong: Al Qaeda is a clandestine enemy, and we need to gather intelligence to stop them. The Authorization to Use Military Force further emphasized this power: it brought foreign intelligence surveillance from Steel Seizures Category II to a Steel Seizures Category I, in which the President's authority is at a maximum. The AUMF confirms and bolsters the President's authority; under the test announced in Justice O'Connor's concurrence in Hamdi, foreign intelligence surveillance is a classic "fundamental incident of war" that the AUMF authorizes. The combination of the President's Commander-in-Chief power and Congress's explicit authoritization in the AUMF gives the President full authority to conduct this monitoring.

Further, the monitoring doesn't violate FISA and also complies with the Fourth Amendment. FISA itself is on fragile constitutional ground, and in any event the AUMF is a "statute" that authorizes the monitoring. Further, the so-called exclusivity provision of the wiretap act, 18 U.S.C. 2511(2)(f), doesn't trump this commonsense result. The legislative history of the section was focused on the notion of Congressional authorization, which the AUMF provided, and a contrary reading would create serious constitutional questions. The canon of constitutional avoidance requires construing the statutes to allow this sort of surveillance: the constitutionality of a statutory prohibition on such monitoring presents very difficult questions, as the NSA activities lie at the core of the Commander in Chief power. There are few guideposts here, and courts should construe the statute in a way to avoid having to reach these difficult constitutional questions. FISA is unconstitutional to the extent it directly interferes with the President's constitutional duty, and it would be prudent to construe the statute in a way that avoids these constitutional questions.

Finally, the monitoring program fits within the Fourth Amendment "special needs" exception. The rule here is reasonableness, which requires a balancing of governmental and privacy interests. The program is reasonable: the government's interest in thwarting a future attack is overwhelming, and the monitoring itself has been tailored and subject to considerable internal review.

Anyway, that's the basic argument. I hope to post some analysis of it soon.

Don't expect the people who think Bush is the reincarnation of J. Edgar Hoover to accept any of these arguments. This is going to get interesting, with hearings and witnesses and everything, over the next few months. Stay tuned, Podcatchers.

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