Tuesday, December 27, 2005

The NSA Program and the "I" word....

So now Barron's is calling for W.'s impeachment.

Interesting how Donlan does not even discuss the powers that Article II actually confers to the president. Nor does he discuss the SCOTUS decisions, which are legion, in the area of foreign intelligence which state that the power to conduct foreign intelligence is inherent, and, most importantly, does not require a warrant.

However, I find that the left is not concerned with the Constitution, in reality. As Eric Alterman no doubt knows, it's really about popularity and power. Because the left hates W. with such a passion, it must find any means to get someone in his administration arrested, indicted, convicted, of whatever offense is possible, regardless of the charge, so that, one day, it can be traced back to big bad W.

Fitzmas? How coy, how cute, how hopeful. How pathetic. How pathetic must one be to randomly wish upon others a criminal indictment or conviction simply because you are of the opposition party. How can one think along these lines and not feel like they are drifting towards fascism? Surely, if told about a hypothetical nation in which the opposition's main tactic against the majority was the indictment of officials, warranted or not, an American liberal would scoff and say it was uncivilized and tribal. How these people call themselves intellectuals is beyond me.

However, Volokh's site continues to rage a fantastic debate, with legal minds battling it out and many casualties and purple hearts awarded on both sides of the debate, I even got caught up in the fray.

This whole thing reminds me of an oral argument I once had on a speedy trial motion. In the state system, you normally do not have time to file a formal reply to a government brief. So you must anticipate their argument, bring in the case-law (3 copies, one for you, the judge, and the DA) and be ready to think on your feet.

So I'm a young rookie-looking lawyer, making my argument to the judge, I'm about to walk up and hand him a copy of the case I find to be on point in the matter, and he stops me. He says: "wait, before you come up here, what does that case say?" I say: "It stands for the proposition that the defense counsel must actively participate in an adjournment for it to be held excludable..." and the judge says: "well, I'm reading another case, People v. [Smith] right here, and it says that, unless the defense counsel affirmatively participates in the adjournment, it's not excludable, Ms. DA, do you have a copy of this case?" She says: "Yes, defense counsel just handed it to me...."

Ahhh that felt good!

So, alas, when in the discussion I consistently cited In Re Sealed Case, I hadn't even read the DOJ's letter to Congress on the matter. Well lo and behold, what case you think they cite???

Read for yourself.

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