Jane Hamsher at Firedoglake has an entry entitled “The Tin Political Ear of Evan Bayh” concerning Senator Feingold’s efforts to censure President Bush for authorizing warrantless wiretaps of American citizens in violation of the Foreign Intelligence Surveillance Act. Sounds simple enough, President Bush broke the law and Sen. Feingold thinks that he should at least be censured, particularly since the Republican dominated Senate Intelligence Committee has decided not to investigate the extent of the wiretapping program.

Bayh claims it is unclear whether FISA was broken by the President. My opinion is that if Bush is opposing Congressional investigation into the matter, the only option is to assume the worst and proceed accordingly.

The quote from Sen. Bayh:

Bayh told reporters that he does not support efforts by Sen. Russ Feingold, D-Wis. . . . to censure Bush for authorizing domestic eavesdropping. Bayh said it’s not clear whether the law requiring court approval before surveillance was broken, and he instead favors revisiting and possibly updating the law.

I think it is pretty clear. FISA requires a warrant to be obtained either before or within 72 hours. The Bush administration wiretapped American citizens without obtaining a warrant of any kind.

Ms. Hamsher inquires:

How exaclty does Bayh plan to be the big national security badass? By changing the law so that the President’s illegal actions are made legal? Wow you are one tough hombre, Evan.

For Sen. Bayh to be a good candidate, I think it will be necessary for him to become less cautious, less calculating, and less equivocating.

Update I came across and opinion that I thought was relevant to this post:

A poll by the non-partisan American Research Group found 46 percent of Americans support censuring Bush for authorizing wiretaps of Americans without obtaining court orders, as part of the administration’s efforts to fight terrorism.

But the pollster, Dick Bennett, said he does not expect the Democratic leadership to come out of the shadows until at least 60 percent of Americans support a censure.

Since the Sept. 11, 2001, terrorist attacks, “the basic problem of the Democratic leadership has been their lack of political courage,” Bennett said in a telephone interview from his offices in New Hampshire.

. . .

“I don’t know about you, but I have had it with the D.C. Democrats … with every calculating, equivocating, triangulating, straddling, hair-splitting (expletive deleted) up there,” columnist Molly Ivins wrote this week.

Liberal bloggers joined in chiding the Democrats for not rallying behind Feingold’s resolution, especially the 20 Democrats who voted to censure Bill Clinton over the Monica Lewinsky affair.

A little more on the poll. It found that 46% favor censure while 44% oppose it. 48% of likely voters are in favor while 43% are against. Only 57% of Republicans are opposed. 70% of Democrats are in favor and 26% opposed. Oddly, only 42% of independents favor censure, but 47% would favor impeachment.

This has nothing to do with Indiana politics, but because this is so stupid and these ideas tend to spread, I thought I’d mention this bit of legislation out of Missouri. (Lawgeekgurl has an inspired rant on the subject as well.)

The Missouri House of Representatives voted to ban state funding of contraceptives for low-income women and to prohibit state-funded programs referring those women to other programs.

Do you have a limited government budget? Would you prefer to keep abortions to a minimum? Then how much of a retard do you have to be to diminish the access of low-income women to birth control? Without birth control, one of two things is going to happen — the woman is going to have a child that needs government assistance or she is going to have an abortion.

Oh, I know, the repressive Puritanical prudes would like the no-account harlots to keep their legs together. But wishing doesn’t make it so, and ignoring human nature leads to bad government. It’s as if the good folks at Missouri Right to Life view pregnancy as God’s punishment to women for having sex and feel it is an affront to the Almighty to allow these sinning Jezebels to avoid his Righteous Punishment.

Anyway, watch for legislation like this to rear its ugly head in Indiana within the next session or two.

The Financial Times has a column by Edward Luce entitled “How they are all out Bushing Bush.” Mr. Luce notes that Bush was unable to get approval for the Dubai port deal which involved a simple transfer of ownership from one foreign company to another of a tiny fraction of America’s container terminal operations where that company would have no say over security or screening operations in America’s port. Meanwhile, Bush was able to get the Senate to back down on investigating his violation of the FISA law by conducting warrantless surveillance in the form of wiretaps on American citizens. How to reconcile the two?

[I]t is clear leaders of both parties lack the confidence to challenge the mood of xenophobia that exists outside Washington. Instead they are fuelling it.

In some respects the Democrats are now as guilty of stoking fears on national security as the Republicans. Their logic is impeccable. A majority of Americans believe there will be another large terrorist attack on American soil. Such is the depth of anxiety that one-fifth or more of Americans believe they will personally be victims of a future terrorist attack. This number has not budged in the last four and a half years.

Mr Bush has consistently received a much higher public trust rating on the war on terror than the Democrats. Without this – and without the constant manipulation of yellow and orange terror alert warnings at key moments in the political narrative – Mr Bush would almost certainly have lost the presidential race to John Kerry in 2004.

Mr Bush’s numbers are now in freefall, with some polls showing a majority no longer trusts him on this pivotal issue. In other words, the Democrats have found an effective way of neutralising their most persistent electoral liability: they are out-Bushing Mr Bush.

It is easy to see why key Democrats, including Hillary Clinton, have adopted this strategy. It is easy also to see why their Republican counterparts are following suit. As Peter King, the Republican representative for New York, said last week: “We are not going to allow the Democrats get to the right of us on this issue.” This left Mr Bush holding the candle for the left, as it were. It is to be hoped that this was a uniquely unusual moment. But we should not bank on it. The Democrats are hungry for victory.

Update: As luck would have it, the Indy Star has an editorial on the spiked port deal this morning. They blame the death of the deal on hysteria and xenophobia. They neglected to mention whether the Bush administration has been promoting a culture of hysteria and xenophobia over the past 4.5 years. Sow the wind, reap the whirlwind.

The Evansville Courier Press has an article on inmates in the Vanderburgh County Jail who are mentally ill but cannot get a bed in a mental hospital because of cuts in funding. They reference a series in the South Bend Tribune which I missed.

In any case, this seems like a fairly simple proposition. Either we pay up front for treatment for the mentally ill or we pay for incarceration later when, due to their mental illness, they inevitably run afoul of
the law. Our jails become the mental health providers of last resort. It’s a poorly thought out system that is inhumane and, even worse from a purely fiscal perspective, inefficient.

I suspect it’s a matter of power and who pays the bills. Counties pick up the tab for the local jails. I believe the state and federal government tend to pay for mental hospitals. So, when the state and federal government hit a budget crunch, they close the hospitals and pass the problem down to the counties. The counties don’t have the choice of closing the jails, and taxpayers end up paying more or receiving fewer or lousier county services.

A very interesting deconstruction of a MyDD poll that tries to flesh out the psychology of the American voters. There is far too much in there for me to summarize. But, it divides the electorate into 7 groups:

                                            Percent

Blue Core                           13%
Urban Blue                         17
Progressives                      11
Heartland Blue                   12
Heartland Red                    8
Trusting Boomers               6
Red Core                            33

It then analyzes how the various groups respond to various campaign themes. Well worth a read.

Rep. Sodrel’s court stripping bill is not yet available through Thomas, but someone was kind enough to forward me a copy. (While I’m thinking of it, I want to once again recommend the site Plogress. It’s a site that has a script that scours Thomas for information on legislative action by the Congress.)

Rep. Sodrel’s bill strips federal courts of jurisdiction to remedy Constitutional violations committed by state governments through government speech.  The most relevant portion states as follows:

No court created by Act of Congress shall have any
jurisdiction, and the Supreme Court shall have no appellate jurisdiction, to hear or decide any question pertaining to the interpretation or the validity, under the Constitution, of the content of speech of any member of a State legislative body or any individual invited by a State legislative body to speak before that body, when such speech occurs during the legislative session of that body.

This legislation is pretty obviously seeking to take advantage of a possible interpretation of Art. 3, Sec. 2 of the U.S. Constitution. That provision says:

The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority;–to all cases affecting ambassadors, other public ministers and consuls;–to all cases of admiralty and maritime jurisdiction;–to controversies to which the United States shall be a party;–to controversies between two or more states;–between a state and citizens of another state;–between citizens of different states;–between citizens of the same state claiming lands under grants of different states, and between a state, or the citizens thereof, and foreign states, citizens or subjects.

In all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be party, the Supreme Court shall have original jurisdiction. In all the other cases before mentioned, the Supreme Court shall have appellate jurisdiction, both as to law and fact, with such exceptions, and under such regulations as the Congress shall make.

Lately it seems that certain members of Congress have been eager to file bills that remove one issue or another from federal court jurisdiction. I don’t know what the jurisprudence on this issue is, but I have serious doubts as to whether Congress has the power to entirely deprive the federal judiciary of jurisdiction over government violations of the U.S. Constitution. In this case, it’s a relatively minor squabble over the Establishment Clause. But, in principal, if we follow Rep. Sodrel’s logic, there is nothing preventing Congress from prohibiting the courts from hearing cases alleging violations of the Thirteenth Amendment prohibiting slavery. With no access to the courts, a person could be enslaved and there would be no way for the person to enforce the person’s right to be free from involuntary servitude under the Thirteenth Amendment. If we open Rep. Sodrel’s can of worms, Congress would have the power to repeal any provision of the Constitution by a simple majority vote of the Congress.

I think there is a more likely interpretation of the Constitutional provision that says “In all the other cases before mentioned, the Supreme
Court shall have appellate jurisdiction, both as to law and fact, with
such exceptions, and under such regulations as the Congress shall make.” I think this authorizes Congress to legislate original jurisdiction for the Supreme Court on those other kinds of cases even though the Constitutional default setting is for the Supreme Court to have appellate jurisdiction. The exceptions the Congress is allowed to create are to the appellate nature of the jurisdiciton, not to the jurisdiction itself. I think this view of the provision his supported by Alexander Hamilton’s Federalist Number 81 where he says, in part:

We have seen that the original jurisdiction of the Supreme Court would
be confined to two classes of causes, and those of a nature rarely to
occur. In all other cases of federal cognizance, the original
jurisdiction would appertain to the inferior tribunals; and the Supreme
Court would have nothing more than an appellate jurisdiction, “with
such EXCEPTIONS and under such REGULATIONS as the Congress shall make.”

Hamilton is focused on the issue of whether the Supreme Court’s jurisdiction will be appellate or original, not whether it would be deprived of jurisdiction altogether.

Aside from technical legal issues of the law, there is a deeply practical reason why court stripping bills such as Rep. Sodrel’s should never be contemplated. A nation governed by laws depends on citizens perceiving those laws as legitimate in order to function. Access to the courts and review of those laws by an independent judiciary confers legitimacy on the law, regardless of whether a citizen believes the particular law to be misguided. The citizen, therefore, obeys the law even if he or she disagrees with it because he or she regards it as legitimate. Because our laws are, by and large, perceived by the citizenry as legitimate, it takes a relatively small amount of force to enforce the law. Remove the perception of legitimacy, and it becomes much more difficult to govern your citizens. 

Turning back to the issue of Christian prayer offered by the Indiana government as official business of the Indiana House of Representatives.  For years, we had a workable system in the Indiana General Assembly. The House opened its sessions with prayers. The prayers were probably in technical violation of the Constitution in that they were sectarian and not ecumenical, but nobody got too worked up about it. For the most part, those leading the prayers were respectful of those who did not share their views and they focused more on the uplifting qualities of prayer and less on their devotion to a particular deity. In short, the majority was polite to the minority.

But this year, those leading the prayer were less respectful of others and, finally, we had the spectacle of a revival-style, clapping and dancing rendition of the song “Just a Little Walk with Jesus” in which the sensibilities of those who do not worship Jesus and even those who choose not to worship Jesus in that fashion were ignored. In short, the majority forgot its manners.

That escalation of the prayer led to escalation on the other side in the form of a lawsuit. Now we have further escalation in the form of legislation that would chip away at the underpinnings of the rule of law. And for what? For lack of common courtesy. We are not being well served on this issue by our legislators at either the state or the federal level.

At the same time Republican Senate Intelligence Committee chairman Pat Roberts appears set to run away from his responsibility to investigate President Bush’s secret warrantless wiretaps on American citizens, a federal judge has ordered the Bush administration to cough up documents on the program to the Electronic Privacy Information Center. EPIC appears to have some good resources available on Bush’s domestic surveillance.

I believe Media Matters is an accurate site, but it certainly has a bias (deservedly so, imho) against Fox News. With that in mind, put this in the “interesting if true” category:

Fox News’ Special Report with Brit Hume showed an edited video clip of Rev. Joseph Lowery’s remarks at Coretta Scott King’s funeral, during which he mentioned the failure to find weapons of mass destruction in Iraq. Lowery’s remarks were greeted with 23 seconds of applause and a standing ovation, but the clip Fox News aired presented nine seconds of applause and little hint of the standing ovation without noting that the clip had been doctored. After seeing the clip, Roll Call’s Morton Kondracke concluded that the audience “wasn’t exactly uproarious in its response” to Lowery.

That’s pretty low even for the folks at Faux News. Editing the footage, then airing commentary that is based on a perception created by the editing? Not cool.

Hunter over at Daily Kos offers up another epic installment. This time, he takes aim at John Gibson and the nimrods at Faux News and their credulous reaction to bin Laden’s latest.

My favorite passage:

And so Gibson shows the last refuge of an armchair patriot, a man whose love for his actual country extends no further than his own arms, his own pockets, his lapel pin, and the sound of his own voice. I hardly need such urgent, bulbous threats as Gibson’s to see where the terrorists can gain their moment of advantage; I can merely turn on cable television, and see the pronouncements of the Fox News foppery, humping the so-called War on Terror with the jiggling gracelessness of a dog wooing a well-worn couch, and know that the ultraconservatives of all involved countries are the ones who have spent the most spittle on these fights, to the least service.