top-down justifications

On the "Intro" to his first album - "Return to the 36 Chambers" - Ol' Dirty Bastard tells an audience about a girl he met for 10 minutes who ends up giving him gonorrhea. The story goes : "Yeah, I love the girl but I had to cut the bitch off / Yeah the bitch died / I killed the bitch / She suffered a long painful death / bitchy ass go bitch had to go."

Isn't everything in the presentation? Usually when people commit crimes or do other things they want to cover up their justifications and stipulations go from narrowest to broadest. Another way of repeating Ol' Dirty's story is picturing him telling the cops "Didn't know her anymore / I knew she had died / I killed her / funny, I actually tortured her / I did so with premeditation." Isn't that what we all have come to expect?

Ol' Dirty - also mindful of your civil liberties
God bless him, not so with George Bush's White House. I encourage everyone to flip through the 42-page white paper the Department of Justice released justifying his secret NSA wiretaps. The argument is in the first three pages. What I find amazing is that it goes from the broadest possible argument to the most specific, instead of the other way around. Here's the reasoning, straight from the memo, in the order it is presented (all quotes, my numbering):

1) The NSA activities are supported by the President’s well-recognized inherent constitutional authority as Commander in Chief and sole organ for the Nation in foreign affairs to conduct warrantless surveillance of enemy forces for intelligence purposes to detect and disrupt armed attacks on the United States.
2) Congress by statute has confirmed and supplemented the President’s recognized authority under Article II of the Constitution to conduct such warrantless surveillance to prevent further catastrophic attacks on the homeland.
3) The NSA activities are consistent with the preexisting statutory framework generally applicable to the interception of communications in the United States—the Foreign Intelligence Surveillance Act (“FISA”)...FISA also contemplates that Congress may authorize such surveillance by a statute other than FISA.
4) the constitutionality of FISA, as applied to that situation, would be called into very serious doubt. In fact, if this difficult constitutional question had to be addressed, FISA would be unconstitutional as applied to this narrow context.
5) Finally, the NSA activities fully comply with the requirements of the Fourth Amendment.

That's the order. To read it backwards we get: 5 - We didn't break the law. 4 - It's not even a real law. 3 - The law doesn't cover this. 2 - We were told we could break the law. 1 - It doesn't matter anyway, no law covers the President here. And that's the order you would expect, no? I'm loving that the initial assumption (as well as the loudest) is that the President can pick and choose laws to follow in these situations, and that the more diplomatic and reasonable assumption that the President was abiding by what he believed to be the *actual* law is thrown in at the end of the paper as an afterthought.

Do check it out. As Andrew Cohen wrote "The first time you read the 'White Paper,' you feel like it is describing a foreign country guided by an unfamiliar constitution." I felt like it was the legalese of a cowboy sheriff of an Old West town, someone who was not under the impression that the government is more than one man shooting bad guys in the town square with frontier justice. If there's any political philosophy which is based on the ideas of narrow interpretation of the Constitution, and of using the branches of government to check each other, they may not want to back up this cowboy anymore.

REST IN PEACE, NICE GUY EDDIE

Chris Penn: dead. I know, I know. It's hard to believe given how healthy he's been looking lately.

I love how in situations like these the media go out of their way to select a photo that makes it perfectly obvious that, despite no cause of death having yet been determined, this person clearly died of a drug overdose.

NOW IT MAKES SENSE. CONGRESS > BILL OF RIGHTS. GOT IT.

I'm a lot of things; one thing I am not is an expert on Constitutional law. That said, I know a thing or two. For instance, I know that the various branches of the federal government can't grant one another the power to violate parts of the Constitution. Most people considered this self-evident and relatively settled 200 years ago in a decision known as - try to stay with me here - "Marbury v. Madison," of which you may have heard.

Actual quote: "I'm mindful of your civil liberties, and so I had all kinds of lawyers review the process."

Although most people only faintly remember it (if at all) as "that case that led to the idea of judicial review," the issue at stake was, in essence, Congress giving the Judiciary one of its powers. According to the Judiciary Act of 1789 (I'm going somewhere with this, I swear) disputes over executive appointment of justices were to be resolved in the Supreme Court. Unfortunately, this thing called "Article I through III of the Constitution" clearly states that appointment is a purely executive power (subject to legislative consent). Hence, the Judiciary Act is unconstitutional and the Supreme Court struck it down. Amazing, I know.

Watching George W. Bush on his non-stop public relations campaign to not go down as the worst president in history (look out, Warren Harding!) I am little short of amazed at his "logic." Apparently (and please, Bush fans, correct me if I'm simply misunderstanding him) it's OK to commit espionage on U.S. citizens because he let Congress know he was doing it. Of course by "Congress" he means "Tom DeLay and Pat Roberts," but that's beside the point.

To recap, then, the argument holds that it is OK for the executive branch to unilaterally decide to disregard the 4th Amendment if Congress gives its implicit consent. Aside from the fact that all of Bush's speeches on the subject have been held in hostile battleground states like Kansas, Texas, and Mississippi, that rationale is officially the funniest thing I've heard all day. Because, really, if you're going to put forth an idea that half-assed you might as well stack the deck and do it to an audience of soldiers who just returned from Iraq (like he did today). Hey, if you're intent on governing by knee-jerk rather than the rule of law, you won't find a more reactionary audience than that.