Saturday, December 31, 2005

Happy New Year!

Going to have some apple crisp courtesy of the GF and have some friends over for football.

In the meantime, enjoy the end of the world.

Thursday, December 29, 2005

Strength Training and Cycling... continued...

So I now have a laundry list of reading before I settle down on any workout schedules for the upcoming season. One issue I'll no doubt face is that I should have had a workout plan figured out about two months ago, and should be right in the middle of it now, but such is life. I'm a novice!!!

Anyhow, not only do I have cycling training books to read:

Lance Armstrong (of course)

Chris Carmichael (he has a foodie book too I think I'd like)

Joe Friel (the bible)

But I've also been led to some weight training books as well:

Cycling Specific

Training and the Anatomy

Encyclopedia of Bodybuilding


Brother Iron, Sister Steel

And even a mental focus, Iron Mind book.

Ok, so since I've just finished re-reading The Lord of the Rings, I think I can settle down with these several books to get the new year started, what you think?

The NSA Won't Go Away!!!!

My point throughout the whole NSA surveillance kerfuffle has been that, if the FISA is attempting to limit the President's Article II power to conduct warrantless surveillance (for the purpose of national security/foreign intelligence) such a restriction would be powerless and unconstitutional.
The analogous situation would be if Congress attempted to restrict the Supreme Court's ability to review issues relating to constitutional rights. Such a law would be void and stricken.

FISA has not been stricken, however, because the federal courts do not view the law to act in this manner. Rather, they view the law to allow the executive to simply attain warrants for their searches under varying circumstances.

The Federalist Society has had a debate on this recently.

Professor Kerr at Volokh's Conspiracy believes that Levy is correct and Rivkin is wrong.

Edit: I misread the article at first. However, I agree with Rivkin, mostly.

I quote Rivkin:
Because, in my view, the 2001 Congressional authorization to use force squarely buttresses and supports the President's use of Commander-in-Chief powers, the current situation involves the use of Presidential powers at the zenith. However, even if one assumes that Congress has done something to prevent the President from using warrantless electronic surveillance techniques to gather intelligence about Al Qaeda and affiliated entities, such an effort would trench upon the President's core constitutional authority and would, therefore, be null and void.

As I have stated, FISA is really an enhancement to the executive's power.

As far as your point about the PATRIOT Act is concerned, I read it to mean that, in your view, there is somehow some tension between my interpretation of the President's inherent constitutional power to gather battlefield intelligence and the Administration's relentless efforts to cause Congress to enact, shortly after September 11, the PATRIOT Act and its subsequent efforts to cause it to be reauthorized. However, in my view, the reverse is true; it is precisely because I construe the proper ambit of the President's Commander-in-Chief power quite modestly, limiting it to the collection of the battlefield intelligence (i.e., intelligence about the plans and dispositions of enemy belligerents), that the efforts by the President to bolster the legal framework for gathering domestic terrorism-related intelligence through the enactment of the PATRIOT Act make perfect sense. It is, of course, entirely proper to argue that, in the time of war, the President can rely on his inherent constitutional authority to gather all sorts of foreign intelligence, particularly as it bears upon possible
terrorist attacks on American soil. The primary reason the PATRIOT Act, or for that matter, FISA, are needed is to ensure that the information gathered by the Executive Branch can be properly introduced into evidence, in case a criminal prosecution is being sought.

I recall reading that the defense attorneys for some alleged Al Qaeda operatives plan to challenge the surveillance, so we shall soon see what the federal courts think of this particular issue.

Wednesday, December 28, 2005

Must Read....

Glenn Reynolds links to this Chicago Tribune article on whether or not Bush and Co. lied to the American people in order to get us to go to war with Iraq.

Congrats to ASU for pulling one out. ASU defeated Rutgers 45-40 last nite in Phoenix, at the Insight Bowl.
It's easy to imagine that this season would have been much different had ASU won against LSU in the first few weeks. I think the defense would have had more confidence, and we maybe could have held off USC in that super close game (we were beating them soundly until the second half!).

Anyhow, their offense looks solid for next year (minus Hagan), I hope coach can get some help on defense to match our QB's arms.

Go Devils!

gHacks is all about the good stuff

gHacks has been posting some good sites for extensions and goodies lately. Today he's giving us cool wallpapers without ads.

Answers Lead to More Questions!!!

Recently I started discussing my resistance training options with the specific goal of gaining strength in my legs with a focus on cycling, particularly for the upcoming season.

I started with a book my wonderful girlfriend gave me, by David Morris. But looking at his program, it seemed so simple, so focused, that I had to question its validity. Also, I see that there are multiple competing theories by cycling trainers as to the proper resistance program.

Alas, I posted on my new favorite forums,, and received answers that only leave more questions.

I guess the only way to really resolve them is to check out Armstrong, Carmichael and Friel's books to see what I may be able to craft myself.

In the meantime, I'll continue with Morris' limited program, as it is a good base, and allows me extra time to do cardio, which I need to slim down. . .

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.


The Wall Street Journal's Jeffrey Hart does a fantastic job of discussing the pillars of a conservative mind, and explores their contemporary applications here.

Monday, December 26, 2005

"Illegal Wiretapping"

Much has been discussed regarding the legality of wiretapping and screening foreign communications from the United States vis a vis FISA.

However, noone seems to be discussing the actual harm involved in such wiretaps, which any federal court would immediately seek to discover. Also, most assume that FISA has not been litigated in analogous circumstances, in which the courts have stated that the president has the inherent responsiblity to conduct foreign intelligence, and, in that vein, has the inherent authority to conduct warrantless searches.

Although Truong suggested the line it drew was a constitutional minimum that would apply to a FISA surveillance, see id. at 914 n. 4, it had no occasion to consider the application of the statute carefully. The Truong court, as did all the other courts to have decided the issue, held that the President did have inherent authority to conduct warrantless searches to obtain foreign intelligence information. It was incumbent upon the court, therefore, to determine the boundaries of that constitutional authority in the case before it. We take for granted that the President does have that authority and, assuming that is so, FISA could not encroach on the President's constitutional power. The question before us is the reverse, does FISA amplify the President's power by providing a mechanism that at least approaches a classic warrant and which therefore supports the government's contention that FISA searches are constitutionally reasonable.

Although the plurality opinion in Zweibon v. Mitchell, 516 F.2d 594, 633-51 (D.C.Cir.1975) (en banc), cert. denied, 425 U.S. 944, 96 S.Ct. 1684, 1685, 48 L.Ed.2d 187 (1976), suggested the contrary in dicta, it did not decide the issue.

The district court in the Truong case had excluded evidence obtained from electronic surveillance after the government's investigation-the court found-had converted from one conducted for foreign intelligence reasons to one conducted primarily as a criminal investigation. (The defendants were convicted based in part on surveillance evidence gathered before that point.) The district judge had focused on the date that the Criminal Division had taken a central role in the investigation. The court of appeals endorsed that approach stating:

We think that the district court adopted the proper test, because once surveillance becomes primarily a criminal investigation, the courts are entirely competent*743 to make the usual probable cause determination, and because, importantly, individual privacy interests come to the fore and government foreign policy concerns recede when the government is primarily attempting to form the basis of a criminal prosecution.

In Re: Sealed Case, 310 F.3d 717 (2002).

It seems clear to me, if these wiretaps/surveillance are being used to locate, destroy and intercept foreign terrorist cells, there can be no fourth amendment violations. The moment, however, that this information is used against a citizen in a criminal proceeding, the Fourth Amendment should apply. Most of the discussions, however, seem to presume a criminal proceeding. Without one, I can't imagine who the aggrieved party is, or what expectation of privacy is being asserted.

I think a discussion as to the radiation searches is highly superfluous:

Thus, we conclude that “[n]one of the interests which form the basis for the need for protection of a residence, namely the intimacy, personal autonomy and privacy associated with a home, are threatened by [FLIR] thermal imagery.” Id. at 1059; see Myers, 46 F.3d at 670 (determining that the thermal surveillance of a home was constitutional, the Seventh Circuit concluded that “[a] thermal imaging scan does not intrude in any way into the privacy and sanctity of a home”). Robinson has failed to establish an objective or reasonable expectation of privacy in the heat emitted from his house resulting from the unlawful marijuana cultivation inside, even if he had met the subjective component of the Katz test. Significantly, we are unconvinced that society ever would accept use of the Fourth Amendment to shield unlawful activity within one's home when there are noninvasive methods of detecting such criminal activity through legitimate byproducts, such as the heat at issue in this case.

U.S. v. Robinson, 62 F.3d 1325 (11th Cir. 1995).

Of course, the larger issue is that the president is damned if he did, damned if he didn't. Had the president not done so, but was shown to have had information that would have led him to want to do so, and we were attacked again, hell would have no fury like that scorn.

Such are the Hobbesian choices of a President.

More on Cycling Resistance Training

As I've discussed before, there are competing theories on what to do in the winter to gain strength while your bike gathers dust in the closet -- unless, of course, you live in a warm climate -- so I've been trying to find some links to help.

The Morris book I linked below led me to draft this schedule:

10-20 mins cardio (to warmup, loosen muscles)

10 mins stretching

Free squats
Stiff legged dead lifts
Inclined dumbbell press (chest)
Inclined leg press (machine)
Lat pulldowns
Hammy curls

(as an aside, he also does recommend and list some ab/mid section workouts that I intend to do on the easy/off cardio days)

basically, you do this particular workout 2-4 times a week, with varying degrees of resistance, depending on your max, and with varying degrees of volume, depending on the resistance, for about 8 weeks total, then you get into a very serious cycling training program focused on what races you want to compete in.

However, I've also found this nifty schedule and discussion on

I've also developed a wonderful full body resistance workout with my friends. It seems I must now make a hybrid workout schedule to accomodate my own goals. Perhaps I will adapt the upper body workout of my full body schedule into the off/easy days of the cycling workout schedule, and combine the leg workouts of the two schedules above for the on/hard days of the cycling workout. What a task!

Wish me luck.

Federal Prisons.....

If you've never been to a prison to visit an inmate, you're truly missing out on one of life's great joys: dealing with the Bureau of Prisons staff.

So today my father and I go to a local federal prison to meet with a couple of potential clients and discuss their matters. We leave very early, he picks me up at my door at 7:20 so that we can definitely visit the two inmates before they perform what the prisons call "the count".

The Count: In all prisons, there are a certain amount of prisoners per floor or zone. One of the easiest ways for the Bureau to make sure all the prisoners are in their appropriate cell is to perform a floor or zone "count". That is, the guards assigned to each zone or floor literally walk by each cell and count each prisoner and perform a tally. Each zone or floor has a certain number of prisoners, and, thus, each guard should tally a certain number. Sounds easy right???

Ok, well, for some reason, the Bureau has to perform this task twice a day. A reasonable, sane human might want to perform these at say, noon and five p.m. That way, as a lawyer, I could come in at around 9 a.m., visit as many clients as I need -- or one, but spend a good three hours with them -- and then leave for lunch or go about my business. Likewise I could go to court in the morning, have lunch, meet my clients in the afternoon and head home at five. I'm crazy for suggesting this, right??!?!?

Well apparently I am, because the counts occur at 10:30 a.m., and 3:30 p.m. Now, what this really means is, you have to be with your client before 9:30 and 2:30 respectively, because if you're not, they say: "count is coming, we can't pull him, come back at noon." Come back at noon????? In three frickin hours? It took me forty five minutes to drive here! I'm here before the count!!! What's the frickin deal!!!?!?!?!

Anyhow, none of these arguments or questions phase a Bureau of Prisons employee, they really should work for David Spade's company, because they can say "no" without flinching, to a nun.

So today, we get in at 8:30. We rock! We have all our paperwork ready, no knives (this time, oops), we're all set. 8:30! So obviously we get right in to see our first client right? How about 9:15 to see the first client. What was the delay? I don't know. Noone knows. Perhaps it was that 25 minute cigarette break the guard took at 8:40. Anyhow, we do our job, we discuss the matter, we handle our bizness.
We go to see the other client, we have 45 minutes t'il count!!! We rock!!!

Ok so the next scene is actually my father and I at a Dunkin Donuts having coffee waiting to drive back to the prison at 11:30 a.m. to make sure we're the first people in after the morning count.

The end of the story is thus: We saw the second client for 20 minutes. We left at 1:15 p.m.

I love prison.

Wittle guy Posted by Picasa

Cycling and the Winter

So here's the dilemma, my beautiful girlfriend has got me hooked on roadcycling over the last summer. I truly love the sport, and having quit smoking recently, it's the perfect outlet for all the pent up energy that comes along with quitting; not to mention it helps to fight the enormous weight gain issue.

When the weather's nice, it's the greatest sport in the world, when it's dark at 4:30, 35 degrees before you count the wind, and slushy, it's for mountainbiker's only, and I am not one of those people!!!!! (not that there's anything wrong with that).

So, what to do? Luckily, in New York, we've had an indian summer, and today, the day after christmas, it's 50 degrees (although raining). But should the weather drop down to average winter temperatures anytime soon, there will be no riding without serious warming gear, and even with that, when you do over 40 minutes in such weather, your butt cheeks tend to freeze. It's not comfortable.

So the girlfriend bought me a fantastic book, by David Morris, Performance Cycling,
which I find quite helpful, but I now have found out that, of course, there are inumerable amounts of competing winter training theories out there. While Morris' book has what appears to be a very focused workout schedule, I've also consulted some of my friends who work out regularly with resistance, and now have several competing programs to consider. The goal is to gain strength to become more competitive for the upcoming season. It's only my first real year training to compete in roadraces.

The other dilemma is whether to consult a cycling trainer or not. But of course that's very expensive, and surely will entail laboratory tests that are extremely expensive. Sigh...

Must find answers soon......

Network of College Conservatives "Liberal Academia's Final Exam"

This site would be a lot cooler if it didn't look like a parody thought up by the folks at "The Daily Show".

Read more at www.conservativesoncamp...

It has to be the bracelets...

testing Posted by Picasa

Christmas Goodies

The day after and I'm looking at my loot, pretty light year. Sigh, there really does come an age where the ratio of what you get to what you give is completely reversed.

Anyhow, the girlfriend came through: she searched high and low and got me original print, hard copy editions of all three volumes of J.F.C. Fuller's A Military History of the Western World.
She bought it from a bookstore that specializes in old and rare books. They told her it wasn't necessarilly "rare", but that it was indeed "scarce". It's a fantastic set of books and it's putting me to sleep every night (in a great way).

I highly recommend all of his works, particularlyThe Generalship of Alexander the Great.
His prose is magnificent and his method is exemplary of any historian. He wrote until his death at the age of 89.

Alas, it is now time to visit clients in prison. Good morning!

Sunday, December 25, 2005

Let me start with something simple....

I always fear, after having studied socialist movements and their kin, that in their hearts, leftists are a few steps away from wanting or promoting total dictatorships.

Despite their rumblings about Bush and his administration being a gestappo, most leftists would rather censor other viewpoints than confront them with substance.

Aaron Freeman apparently believes that there are certain peoples in this world who do not deserve democracy. And I'm supposed to worry about Bush and Co. being in charge???

But at least he's down with "self-determination."

Admittedly he must be stabbing at satire, but in all honesty, my truth/humor scale just slides to one side.

Merry Christmas, Happy Hannukah!

So simple, a lawyer could use it. More postings to come soon!

testing the blockquote function:

"We will win this war. It's a test of wills, and let there be no doubt that is what it is," he said. Rumsfeld told the troops that "generations before you have persevered and prevailed, and they too were engaged in a test of wills."


testing the link-to function.


Testing the add image function:


This is a test blog; the first!