Le·gal In·sur·rec·tion

News is breaking that Supreme Court Justice David Souter is retiring. There will be a fight over his replacement, for sure. And Arlen Specter switching may have given Republicans a trump card to block an unacceptable replacement.

Everyone, including me, has been blogging about how Specter defecting to the Democrats puts the Democrats close to a filibuster proof majority in the Senate, potentially allowing Obama to push through his agenda. And this seems true on most subjects.

But ironically, Specter's defection may give Republicans the ability to filibuster judicial nominees at the Judiciary Committee level, so the nominees never get out of committee.

Huh, you say. Here's the explanation, from Professor Michael Dorf of Cornell Law School at his excellent blog, Dorf on Law, written two days ago before Souter's retirement was in play:

Does Arlen Specter's defection from R to D strengthen the President's hand in Congress? Perhaps overall but not on judicial appointments because breaking (the equivalent of) a filibuster in the Senate Judiciary Committee requires the consent of at least one member of the minority. Before today, Specter was likely to be that one Republican. Now what?

The link in Dorf's post is to Congress Matters, which has the Senate Judiciary Committee rule:

IV. BRINGING A MATTER TO A VOTE

The Chairman shall entertain a non-debatable motion to bring a matter before the Committee to a vote. If there is objection to bring the matter to a vote without further debate, a roll call vote of the Committee shall be taken, and debate shall be terminated if the motion to bring the matter to a vote without further debate passes with ten votes in the affirmative, one of which must be cast by the minority.

Now this is interesting. Specter could allow a nominee out of committee if Specter was a member of the Republican minority, but as part of the majority, he's just another vote. Here are the other Republicans: Orrin Hatch, Chuck Grassley, Jon Kyl, Jeff Sessions, Lindsey Graham, John Cornyn, and Tom Coburn.

The weak link is Lindsey Graham, who was a member of the Gang of 14. If Graham says the course, the Republicans may not be able to stop runaway spending, military retrenchment, and an interrogation witch hunt. But Specter may have handed Republicans a gift.

And how fitting that Joe Biden arranged it all by convincing Specter to switch. Thanks, Joe. I'm sure your boss will appreciate your service as he ponders who he will nominate for the Supreme Court.

UPDATE: How likely is it that the Senate will change the rules of the Judiciary Committee mid-session? Rules are adopted at the start of a Congressional year, although they can be amended:

RULE XXVI [of the Standing Rules of the Senate]
COMMITTEE PROCEDURE
2. Each committee shall adopt rules (not inconsistent with the Rules of the Senate) governing the procedure of such committee. The rules of each committee shall be published in the Congressional Record not later than March 1 of the first year of each Congress, except that if any such committee is established on or after February 1 of a year, the rules of that committee during the year of establishment shall be published in the Congressional Record not later than sixty days after such establishment. Any amendment to the rules of a committee shall not take effect until the amendment is published in the Congressional Record.

I don't think it is likely that the Rules will be amended for a particular nomination. First, the rule requiring a minority vote only comes into play if Republicans decide to fight a nominee to the bitter end. Assuming Souter is replaced with a roughly equivalent moderate liberal, I don't see Republicans picking this fight. The existence of the rule itself should have a moderating effect on the choice made.

Second, changing the rules mid-session would itself be the cause of opposition to a candidate, and would taint any nomination before a vote of the full Senate. Remember, as of now the Democrats still do not have a filibuster-proof majority in the entire Senate, and even if Al Franken eventually gets seated, it would take only one of the handful of moderate Democrats to oppose a nominee for the filibuster to succeed. By forcing a nominee through committee by changing the rules, the administration would be increasing the likelihood of a problem.

Third, Harry Reid shot himself in the foot on rule changes by insisting that Roland Burris could not be seated without presenting the necessary Secretary of State certification. Reid's words about the sanctity of Senate Rules would come back to haunt him if the Senate changed the Judiciary Committee Rules just to force through a nomination.

UPDATE No. 2: See FoxNews story in which I am quoted extensively on this subject.

UPDATE No. 3: One of the commenters points out that the Senate could vote to discharge a nominee from the committee with 60 votes (the same as to defeat a filibuster). While this appears to be true, the committee minority-vote rule is an established committee rule, presumably negotiated prior to the start of this session. Invoking discharge would have the same effect as changing the committee rules in the middle of the session, so I think the same factors come into play. Why pass a committee rule requiring at least one member of the minority vote for the nominee, if you are not going to honor that rule by voting for discharge?

For more on this point of Senatorial deference to procedure, I recommend Lanny Davis' post earlier this year on the Gang of 14 compromise. The Judiciary Committee rule requiring a minority vote raises the stakes for any attempt to get around it, whether by rule change or discharge. Senators will have to decide whether the particular nominee at issue is "worth" tearing apart the committee rule, which means that nominees who may have been approved in the absence of the rule may not make it out of committee. It would be much easier for Democratic Senators to allow a nomination to die in committee (or more likely, be withdrawn like Harriet Miers) than to change the rules, so to speak, and force the vote to the floor of the Senate.

UPDATE No. 4: Harry Reid went back on his promise that Specter could keep his seniority. Can't wait to see how Specter reacts to that stab in the back. This should be very, very interesting. I wouldn't count on 60 just yet.

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I was critical of Senator Susan Collins of Maine for her support of Obama's stimulus plan. But Collins did not deserve to be charged with contributing to the possible swine flu pandemic, which is a charge leveled against her and spread throughout the internet and mainstream media.

The charge against Collins started with a post by John Nichols of The Nation titled "GOP Know-Nothings Fought Pandemic Preparedness." The central thesis of the post was that the U.S. was not prepared for a flu pandemic because Collins prevented needed funding as part of the stimulus plan. Collins and other Republicans, according to Nichols, put lives at risk to make a political point:

Even as Rove and his compatriots argued that a stimulus bill should include initiatives designed to shore-up and maintain any recovery, they consistently, and loudly, objected to spending money to address the potentially devastating economic impact of a major public health emergency....

So Rove, Collins and those who echoed their know-nothing appeals understood that they were wrong. But they bet that they would be able to score their political points without any consequences.

Now that fears of a pandemic have been raised, however, it is appropriate to ask whether individuals who are so manifestly irresponsible and partisan should be taken seriously....

Collins played politics with public health, and the economic recovery. That makes her about as bad a player as you will find in a town full of bad players.

Nichols' post spread like a wild fire through the nutroots and beyond, including in USA Today. Americans United for Change, a group which promotes liberal causes, included the accusations as a centerpiece of attacks on Republicans in general and Collins specifically:

Americans United for Change, which marshaled support for Obama's Congressional agenda, is blasting the moderate Maine Republican for opposing $800-plus million for pandemic planning that had been included in the stimulus two months ago.

Nichols' thesis was exposed as a lie the day it was issued, but Nichols did not issue a correction much less a retraction. No, he repeated the thesis is another post the following day:

When Collins ridiculed and attacked the inclusion of pandemic preparedness money in the stimulus bill, she was wrong -- wrong from a public health standpoint and wrong from an economic standpoint.

No amount of spin will change this reality. In fact, the lame defenses mustered by Collins' office compound the wrong, and feed the sense that the senator in more interested in playing politics than living up to her own claim -- made as she was seeking to strip the preparedness funds from the stimulus -- that "everybody in the room is concerned about a pandemic flu."

Nichols repeats his phony attack on Republicans and Collins again today in a post:

With public concerns and political pressures rising as the World Health Organization urges countries to prepare for a pandemic, it is unlikely that Maine Senator Susan Collins, the Republican who led the fight against allocating the preparedness money (cheered on by unthinking Democrats such as New York's Chuck Schumer), will object this time.

There are several levels of problem with Nichols' thesis. At its core, Nichols' thesis misrepresented the level of preparedness. The Bush administration put the infrastructure and planning in place during 2005-2006 to handle a pandemic. There was no crisis in funding in February 2009 or now. The funding in the stimulus plan for pandemic preparedness had nothing to do with current preparedness.

But don't take my word for it. At his news conference on April 29, 2009, Barack Obama -- who has had very few good things to say about the Bush administration -- made the following statement regarding Bush administration preparations for a flu pandemic:

I do want to compliment Democrats and Republicans who worked diligently back in 2005 when the bird flu came up. I was part of a group of legislators who worked with the Bush administration to make sure that we had beefed up our infrastructure and our stockpiles of antiviral drugs, like Tamiflu.

And I think the Bush administration did a good job of creating the infrastructure so that we can respond. For example, we've got 50 million courses of anti-viral drugs in the event that they're needed.

So, the government is going to be doing everything that we can. We're coordinating closely with state and local officials. Secretary Napolitano at the Department of Homeland Security, newly installed Secretary Sebelius of Health and Human Services, our acting CDC director, they are all on the phone on a daily basis with all public health officials across the states to coordinate and make sure that there's timely reporting, that if -- as new cases come up, that we're able to track them effectively, that we're allocating resources so that they're in place.

I am not the only one calling Nichols out on his false accusations. The Morning Sentinel in Collins' home state of Maine issued this editorial titled "Collins didn't vote in favor of swine flu attack":

Columnist John Nichols just drips with irony when he magnanimously declares, "Did Rove, Collins and their compatriots want a pandemic? Of course not."

But thanks for asking the question, John.

Here's the problem with this line of attack: It's a cheap shot, and it's not the whole picture.

It presumes that all funding for fighting pandemics would come from the stimulus bill. That's not the case. While Collins helped nix the pandemic money in the stimulus, she had earlier joined a bipartisan group of senators in requesting $905 million for preparedness programs at the Department of Health and Human Services. That's on top of $7 billion appropriated since 2006 for such widespread health emergencies. An Associated Press report Tuesday quotes a White House spokesman as saying that current funding for anti-flu efforts was sufficient for now. And according to her office, Collins has voted in favor of billions of dollars in pandemic flu preparedness funding since 2005.

Nichols identified a problem which did not exist, blamed Susan Collins for that supposed problem, and thereby put responsibility on Collins for flu deaths. At first I thought Nichols merely was wrong. But with his repetition of his charges almost every day, it is clear that Nichols is the one playing politics with the flu pandemic. Nichols false attack on Collins now is a part of faux history via the internet nutroots as picked up by the mainstream media. A classic example of how falsehood becomes "truth."

At a minimum, Nichols and The Nation should issue a correction. But I'm sure that will not happen, because the last thing Nichols and The Nation are interested in is the truth.

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UPDATE: Alan Colmes e-mailed me to indicate he meant no offense, and said "C’mon Professor, we’re BOTH blowhards." Well, that may be going a bit too far, but thanks for the note. I take back what all those people said about him.

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I am still seething over the NY Times calling me seething, and now this from Alan Colmes:

The right-wing nut machine can’t say enough bad things about President Obama....Then, some blowhard named “Legal Insurrection” writes, “Relax, The Dems Will Screw Up.”

Colmes links to my cross-post at Hot Air's The Green Room, rather than the post at this blog. Here's what a blowhard I am; just the facts:

• "Hannity & Colmes" averaged 2.3 million total viewers and 505,000 A25-54 in the month of December 2008, Colmes' last month on the show. Since then, Hannity without Colmes hasn't lost any viewers. You brought a lot to the show, Alan.
• Here is what a liberal icon said about Colmes: "Robert F. Kennedy, Jr., compared Hannity & Colmes to a Harlem Globetrotters game, where Colmes' "whole job is to lose every argument.""
• Guess who called Colmes "the human straw man"? (Hint, it wasn't me)
• What do Alan Colmes and Al Franken have in common? (Hint, they both started as comedians.)
• Guess who interfered in the takeover of the U.S. Embassy in Iran by calling one of the captors, potentially putting our diplomats in danger? (Hint, it wasn't me)
• Guess who called Colmes "dopey liberal, chastened by his conservative master." (Hint, it wasn't me or a conservative.)
• This photo has it about right, big guy:
  

• Who feels the need to take cheap shots at a famous working mother by claiming she didn't give proper pre-natal care of her child? (Hint, not me.) And who then changed his website when he got called out on it? (Hint, not me again.)
• Somebody called Colmes "FOX's favorite liberal whipping boy." (Hint, it wasn't me.)
• And another the "hapless Alan Colmes" (Hint, not me again.)

You stay classy, Alan. And so will I.

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From YouTube, h/t you know who you are:

It would be very easy to fall into a depression over Arlen Specter switching political parties, giving Democrats a likely filibuster-proof Senate majority. The result will be that Obama will be able to push through much of his agenda without meaningful debate.

Not that I will miss Specter personally. Specter has become a caricature of the self-interested politician who hides his need for fame behind lofty talk of principles. More than anything, I feel sorry for Specter at a personal level, because we are watching someone going through his last hurrah. And the fact that he sold out the principles he spoke about just weeks ago regarding preserving the two-party system, demonstrates how pathetic Specter has become in his quest for a legacy. Unfortunately for Specter, his legacy will not be what he thinks it will be.

It would be easy to be depressed, until you read this snippet from history, as reported by the Politico:

The last time either party had such a wide Senate margin was during the first two years of Jimmy Carter’s term in 1977-1978, when Democrats under then-Majority Leader Robert Byrd held 61 seats.

What history shows us is that a liberal, blame-America-first Democratic President, urged on by a liberal, blame-America-first Democratic Congress, is a prescription for political self-destruction. Leave Democrats to their own devices, and they will screw themselves politically, just when they are at the height of power.

We already see this phenomenon in action:

• As to national security, Congressional Democrats are pushing for hearings and prosecutions of the authors of memos interpreting the federal anti-torture statute. These hearings will cause enormous damage to the country, reminiscent of the damage caused to intelligence agencies by the Church commission in the 1970s. We don't know when the risks to which we are exposed turn into an attack, but it will happen because, as the 9/11 commission noted, al-Qaeda is at war with us, regardless of whether we are at war with it.
• As to foreign affairs, China, Venezuela and Iran will rise in power and influence as Democrats fulfill their dream of returning the United States to its isolationist roots. The result will be that hundreds of millions of people who yearn to live in free societies will have to defer that hope for another generation or two.
• As to the national debt, in a year or two the nation will wake up to the fact that Democrats have mortgaged our future to the hilt, beyond what anyone could have comprehended a year ago. When the younger generations, currently smitten with the cool President, realize that they will pay this bill, there will be a backlash. And when they see mortgage rates and inflation put the good life out of their reach, the younger generation will embrace Reaganism as the cure for the Democratic disease.
• As to human rights, in the quest for revenge against the Bush administration under the guise of obtaining justice for three high-level al-Qaeda operatives who were waterboarded, we will ensure that al-Qaeda lives on to spread true torture throughout the world. The human rights and Democratic interest groups who are silent when al-Qaeda uses teenagers or pregnant women to blow up other teenagers and pregnant women are relegating tens of thousands of people to al-Qaeda terror, without so much as a second thought. For that, we will not earn the friendship the Democrats desire, but an ignoble page in history, along with Neville Chamberlain.
• As to government control of private industry, government control will see the final death of the American automobile industry. Those who fret that the federal government is converting its loans to voting equity on a preferential basis are missing the big picture. Government running the auto industry will be the end of the auto industry.
• As to health care, Americans will realize that nationalized health care will be no more successful than in Canada or Britain. Americans who are upset by waiting a couple of hours in a doctor's office will go berserk over waiting weeks or months for surgical procedures. And that fury will be more pronounced than in Canada or Britain, because we will have no traditional American health care system to fall back on.
• As to freedom of speech, the continued and obsessive use of the race card by Democrats and Hollywood elites will cause a simmering resentment which will boil over into retribution in the voting booth. The use of false accusations of racism as a political weapon to silence debate is the least understood, and by far the most corrosive, result of the 2008 election cycle.

So I'm not depressed about the long-term future of the country, although the next few years will be tough politically. The Democrats will screw up big time, as they did during the Carter years, and the damage they cause will be generational. But the clean-up is worth looking forward to, even if the mess is not.

UPDATE: The Politico reports on the details of Specter's poll-driven decision. It is not pretty, and leaves Specter with a legacy of being one of the most straight-faced liars politics has ever seen -- and that is saying a lot. While Specter preached about principles and how the Republican party had left him, in fact Specter consulted pollsters to the last minute in a calculated effort to determine whether he could win re-election as a Democrat.

Even Specter's position on card-check (the legislation to deprive employees of a secret ballot) was driven by his hope of re-nomination by the Republican Party. Only when that effort failed did Specter decide:

Specter came to McConnell’s office in the Capitol on Monday afternoon and told him he was considering becoming a Democrat and that he had a very good reason to make the move: His internal polls made it clear he was unlikely to win a GOP primary next year. Further, Specter told McConnell on Monday, and again when he shared his decision with the leader in private Tuesday, there were not enough moderate voters in Pennsylvania to survive as an independent.

So, to win, he had to jump....

Specter thought coming out against the Employee Free Choice Act — organized labor’s signature legislation — may appease his home-state Republicans. He dealt what was thought at the time to be a deathblow to the measure on March 24. But after going home for spring recess earlier this month, he found out that it had won him little goodwill with Republicans and only aggravated relations with some of the union-friendly Democrats whose support he had been counting on to win in November.

A legacy of going back on your word and lying to the public; nice work.

UPDATE No. 2: I'll respond to the many comments in this update, in random order:

• I don't see a necessity of a "permanent majority." I think Democrats will try to obtain such a majority through illegal immigrant amnesty and give aways, but that will be concentrated in states the Democrats already win easily. It doesn't matter if the Democrats win California by a million votes or several million votes.
• I do have a concern about Democrats engaging in chicanery to win elections, but that already happens. ACORN and others are about as pervasive as can be achieved, and again, mostly effective in states Democrats win anyway, with the exception of Ohio. So Republicans should focus their efforts on preventing fraud in several key states, and not worry about Democratic voter fraud in states like California.
• Tax revenues will fall short, way short, and Obama will have to increase income taxes on people way below the 250k threshold. This will result naturally from the declining economy and from people deciding to take the weekend off rather than earn extra income to be taxed at high marginal rates (and other associated taxes, such as FICA, and loss of deductions). The electoral effect of raising taxes on the "middle class" will be the same as G.H.W. Bush's "read my lips."
• Yes, Republicans screwed up themselves. G.W. Bush was great on national security and taxes, but horrible on spending. And he was non-existent in defending his policies almost his entire second term, allowing MoveOn and Media Matters to define him.
• I'm not worried about academia. Can it get ANY worse than it now is? To the contrary, I believe that conservative academics are the next big wave (no, really, I mean it).
• The mainstream media is so corrupt that it presents a huge challenge, but the internet and alternatives are gaining ground. The major networks could get away with rigging their coverage because of Obama's "historic" candidacy, but that excuse is over.
• It will be hard to unring many of the bells, but not impossible. What choice is there, really, but to try?

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Reports indicate that the deal the United Auto Workers has struck with Chrysler will include majority Union ownership of the company, and a seat on the Board. This is the single best news the American auto industry has heard in decades.

I have been a harsh critic of auto unions, which have imposed uncompetitive cost structures and work rules on the American auto industry. When it was unions against management, the unions had every incentive to push for more and more until there was nothing left.

Union majority ownership of Chrysler hopefully will force the UAW to act in the company's best interests, even if against the short-term financial interest of union members. No more excuses. If Chrysler fails, it will be the failure of the UAW without question. If Chrysler succeeds (and I hope it does), it will be the success of the UAW.

It is unfortunate that we have come to this point, but better late than never.

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In what should go down in internet history as one of the most embarrassingly misleading posts, John Nichols of The Nation authored an article titled "GOP Know-Nothings Fought Pandemic Preparedness." The joke was on Nichols, because Nichols and the nutroots bloggers who ran with his piece were proven to be the know-nothings within hours, and then some.

The point of Nichols' post was that Republican Senator Susan Collins, supposedly acting at the instigation of Karl Rove, irresponsibly cut funding for pandemic prevention in the debate of the trillion dollar stimulus plan. The nutroots went nuts. A chance to blame Republicans for mass death:

• Crooks and Liars ran this post: "Swine Flu Is Bad Enough, Yet Republicans Always Manage to Make It Worse.
• Andrew Sullivan posted a reader's comment as follows: "[T]he flu pandemic has exposed Rove and Collins. They tried to score political points, and they were wrong."
• Ryan Powers at Think Progress ran this post: "In Attempt To Placate The Right Wing, Collins and Specter Endorsed Pandemic Flu Funding Cut.
• Matthew Yglesias ran a link a video of Collins with this comment: "Boy, it sure is great that Susan Collins made sure we didn’t waste any money on pandemic flu preparations in the Recovery Act. That’s moderation I can believe in!"
• A post at Mother Jones argued that "Conservatives didn't bring on the swine flu outbreak, any more than they caused Hurricane Katrina. But in both cases, they've made the federal government less equipped to respond to these disasters with possibly life-saving emergency services."

As I pointed out yesterday, this was all a lie. The Bush administration did extensive planning for a flu pandemic, and spent tons of money. The Collins objection to including non-stimulus spending in a stimulus bill was irrelevant to our pandemic preparedness.

Even the NY Times now acknowledges the Bush effort:

Other public health experts also endorsed the administration’s response to the outbreak that emerged from Mexico. They gave much of the credit to President Bush, whose administration did extensive planning for such an emergency. “We’re seeing a payoff of the original investment made in pandemic preparedness by the Bush administration,” said Jeffrey W. Levi, executive director of Trust for America’s Health....

Frances Fragos Townsend, who was assistant to President Bush for homeland security and counterterrorism, noted that the Department of Health and Human Services had devised a detailed plan for responding to the threat of pandemic flu in 2005 and 2006.

So will the lying nutroots apologize? Not on your life. Which is why these left-wing pundits cannot be trusted to make sound judgments as to matters of life and death, such as national security and health care policy. They pretend to be intellectual, but all they are is intellectually dishonest.

UPDATE: John Nichols is in a hole, yet he keeps digging:

No amount of spin will change this reality. In fact, the lame defenses mustered by Collins' office compound the wrong, and feed the sense that the senator in more interested in playing politics than living up to her own claim -- made as she was seeking to strip the preparedness funds from the stimulus -- that "everybody in the room is concerned about a pandemic flu."

You are wrong, just admit it. The Bush administration did an excellent job of preparing for a pandemic, and the stimulus bill funding has NOTHING to do with current preparedness. You singled out Susan Collins because you thought you had an easy target, a Republican who is unpopular in Republican circles because she supported the compromise stimulus bill. But the truth is more important to some of us than political posturing, and the truth is that you are WRONG.

Even the Obama administration and the NY Times know it. As so does Daily Kos (via Instapundit): "I mean some people have just gone off the deep end on this one." Nichols is one of these "some people." Run a retraction, and stop digging.

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Related Post: The Truth Is The First Victim Of Swine Flu

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Former Congressman Tom Tancredo was shouted down and bullied off the stage a couple of weeks ago at the University of North Carolina by protesters opposed to Tancredo's stand on illegal immigration. Tancredo espouses the apparently radical view that we should enforce immigration laws; in other words, he is for the rule of law. Some people don't like the rule of law when they don't like the law.

Add Providence College in Rhode Island to the hall of shame. Providence College officials have denied a student group's request to invite Tancredo to speak:

Student group Youth for Western Civilization asked PC officials if they could also host Tancredo, but the request was denied, said PC spokeswoman Pat Vieira.

"They are not an officially recognized group," Vieira said. "They asked very late in the semester when there was not enough time for the request to go through the usual channels."

Just as important, Vieira said, were Bishop Thomas J. Tobin's views on immigration and how immigrants -- whether here legally or illegally -- should be treated, which contrast sharply with Tancredo's.

"The Bishop of Providence ... is a member of the College's Board of Trustees," Vieira said in a written statement. "If a similar request to host a speaker on this topic is made in a future semester, the College will encourage and facilitate a format that allows for multiple points of view to be expressed."

The PC statement could not be more Politically Correct. Rather than allowing Tancredo to speak, PC will allow disfavored speech only if it is accompanied by an opposing viewpoint. This lends an air of fairness, but like the fairness doctrine for conservative talk radio, only applies when the speaker has a politically incorrect viewpoint.

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The Nation has run a post, "GOP Know-Nothings Fought Pandemic Preparedness," which seeks to blame the opponents of the Stimulus Plan for lack of preparedness for the swine flu outbreak. The post, like most big lies, has a kernel of truth, but twists reality for political purposes. And like most big lies, it is being spread throughout the left-wing blogosphere like, well, a pandemic.

It is true that some $900 million in "pandemic preparedness" funds were stripped from the Stimulus Bill at the request of Republican Susan Collins. Those funds were stripped not because Collins opposed pandemic preparation, but because the funds were not allocated to any specific preparation and were not economic "stimulus" which was the supposed purpose of the bill. Collins never came out against funding pandemic preparation. As with many parts of the Stimulus Plan, Obama merely announced a goal, then threw money at it.

But the lie is that there is a lack of preparedness as a result. That is a concept which is disproven by the fact that the government infrastructure is in place to deal with a potential pandemic. I have not heard a single Obama administration official complain that the administration does not have the resources available. And throwing money at the problem back in February would not have implemented any changes by now.

More important, the government under George Bush spent billions of dollars preparing for a pandemic:

The federal government on Thursday awarded more than $1 billion to five drug manufacturers developing technology for speedier mass production of vaccines in the event of a pandemic.

The funding comes from the $3.8 billion that Congress approved last year in the name of pandemic preparedness. The federal government says its goal is to be able to distribute a vaccine to every American within six months of a pandemic. Currently, flu vaccines are produced in specialized chicken eggs, but that technique does not allow for speedy mass vaccinations.

The Bush administration also implemented planning, which now is being used to deal with the potential problem:

To safeguard Americans against a pandemic that scientists generally agree is inevitable, federal, state and local officials are developing extensive plans encompassing needs such as hospital and mortuary capacity and production of antiviral medication and vaccines. Local health departments have begun identifying locations such as school gyms and community centers that could accommodate temporary hospitals -- space that might be needed for months.

This month, President Bush signed an executive order authorizing use of quarantines for avian flu cases.

This 2005 Congressional Budget Office study outlines the billions in funding sought by the Bush administration, and the seriousness with which the problem was treated (go to page 18 of the document for the budget details). The allocation of funding in the Stimulus Plan (which begins at page 144 of the original House bill) would have done nothing to move planning forward because lack of funding was not the issue. The problem was the difficulty of identifying the nature of the problem; indeed, almost all talk prior to a week ago was the threat of bird flu in Asia, not swine flu in Mexico.

A December 2006 Report, the National Strategy For Pandemic Influenza Implementation Plan, summarizes the seriousness of the planning effort. A January 2009 Report updates the extensive efforts of the federal government to coordinate and implement planning with the States.

So it is not true that Susan Collins and Republicans either caused the nascent swine flu pandemic or a lack of preparedness. And it also is not true that the Obama administration's funding request would have made any difference if approved. Once again, the truth is the first victim of politics.

UPDATE: The biggest problem facing the Obama administration appears to be of its own making, the failure to get appointees in place to deal with public health issues:

The Obama administration declared a “public health emergency” Sunday to confront the swine flu — but is heading into its first medical outbreak without a secretary of Health and Human Services or appointees in any of the department’s 19 key posts.

President Barack Obama has not yet chosen a surgeon general or the head of the Centers for Disease Control and Prevention. His choice to run the Food and Drug Administration awaits confirmation.

I can't wait to hear how they blame Bush for that one.

UPDATE No. 2: Michelle Malking reports: Schumer opposed flu pandemic funding in stimulus, too, you morons

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Republicans are not Obama's worst policy enemies. At least Obama knows that Republicans do not support Obama's agenda. Democrats who are fixated on getting revenge on the Bush administration are Obama's real problem, and are handing Republicans a policy gift by pushing hard for a congressional investigation and/or Justice Department prosecution of the authors of the Bush administration interrogation memos and those who relied on that legal advice.

Congressman Gerald Nadler has staked out the no-compromise position:

Nadler also dismissed the notion that the Obama Administration -- which at first seemed determined to move rapidly beyond alleged Bush Administration crimes -- could have controlled the torture story.

"I don't think it is controllable. I don't think it was ever controllable. The law is what the law is," he said. "You've got to follow where the facts lead. They may very well wind up with Dick Cheney. They may wind up with Rumsfeld."

Nadler is wrong. Obama could have controlled the story, if Obama had followed the advice of several former CIA Directors plus the advice of current CIA Director Leon Panetta (appointed by Obama) and not released the memos.

Previously, I have posted on Obama's naive folly in releasing the memos, the baseless use of analogies to Nazi Germany by critics of the interrogation policies, and the unwillingness of such persons to identify which city they would be willing sacrifice in the name of moral absoluteness.

But with the new rush of demands to get Cheney and Rumsfeld, and to impeach Judge Jay Bybee (one of the authors), it also is becoming clear that Obama is at risk of losing control of his party. A decision among the liberal elites has been made. Getting Bush administration officials is more important than Obama's agenda.

Obama recognizes that he cannot move closer to "one nation, one plan" nationalized health care and other holy grails if the nation is engaging in political self-flagellation in the form of hearings commanded by people, such as Nancy Pelosi, who approved of the tactics at issue. An any such hearings inevitably will turn toward Democratic complicity, fracturing the coalition Obama needs to push through controversial measures.

Obama also knows he cannot continue to open up to Cuba, Venezuela and Iran if the nation is consumed by arguments over whether Democrats are setting us up for another 9/11. National security is not, and never has been, a Democrat issue. Obama benefiting tremendously in the election from the fact that Iraq was off the political screen because of the success of the surge Obama had opposed.

Putting al-Qaeda and other threats back on the table is not what Obama wants. Obama needs large majorities in both houses of Congress, since he will lose some moderate Democrats on certain issues. Spending the next 18 months talking about national security, and 9/11, is the last thing Obama wants as a run up to the mid-term elections. Democratic plans to weaken national security through politicized hearings may be the one thing that can garner Republicans significant gains in 2010.

Obama won the Democrat nomination because he convinced enough people to put Obama ahead of the traditional party power structure in the form of the Clintons. It will be interesting to see if Obama can perform that trick a second time, by convincing Democrats, the mainstream media, and the left-wing blogosphere not to sacrifice Obama's agenda over three al-Qaeda mass-murderers.

From a narrow, self-centered point of view, allowing Democrats to sidetrack Obama's agenda would be an accomplishment Republicans could only hope for. But since the price will be diminished national security, Republicans cannot in good conscience acquiesce in the Democrats' plans. As interesting as it would be to call Nancy Pelosi as a witness, the country comes first. If the hearings and investigations proceed over Republican objections, Republicans will have no choice but to expose Democratic hyperventilating hypocrisy for what it is, but Republicans should not wish too hard for the opportunity.

Will Democrats pull back and put Obama's agenda before their desire to get even with George Bush? Don't hold your breath.

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From The Telegraph via Powerline (emphasis mine):

If al-Qaeda, the Taliban and the rest of the Looney Tunes brigade want to kick America to death, they had better move in quickly and grab a piece of the action before Barack Obama finishes the job himself. Never in the history of the United States has a president worked so actively against the interests of his own people - not even Jimmy Carter.

Obama's problem is that he does not know who the enemy is. To him, the enemy does not squat in caves in Waziristan, clutching automatic weapons and reciting the more militant verses from the Koran: instead, it sits around at tea parties in Kentucky quoting from the US Constitution. Obama is not at war with terrorists, but with his Republican fellow citizens. He has never abandoned the campaign trail.

That is why he opened Pandora's Box by publishing the Justice Department's legal opinions on waterboarding and other hardline interrogation techniques. He cynically subordinated the national interest to his partisan desire to embarrass the Republicans. Then he had to rush to Langley, Virginia to try to reassure a demoralised CIA that had just discovered the President of the United States was an even more formidable foe than al-Qaeda. ...

So, next time a senior al-Qaeda hood is captured, all the CIA can do is ask him nicely if he would care to reveal when a major population centre is due to be hit by a terror spectacular, or which American city is about to be irradiated by a dirty bomb. Your view of this situation will be dictated by one simple criterion: whether or not you watched the people jumping from the twin towers....

President Pantywaist's recent world tour, cosying up to all the bad guys, excited the ambitions of America's enemies. Here, they realised, is a sucker they can really take to the cleaners. His only enemies are fellow Americans. Which prompts the question: why does President Pantywaist hate America so badly?

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Bill Roggio, who runs a great website, The Long War Journal, has been reporting for months on the steady increase in the power of the Pakistani Taliban, who are approaching the capital of Islamabad. What is most frightening is that the Taliban also are approaching Pakistani nuclear weapons storage areas:

The Taliban takeover of Haripur would put the Taliban on the doorstep of Islamabad and would also put two major nuclear facilities at risk.

Haripur borders the Margala Hills, a region in the Islamabad Capital Territory. Haripur also borders the Punjab districts of Attock and Rawalpindi.

Attock hosts two major nuclear facilities in Pakistan: the Wah Cantonment Ordnance Complex and the Kamra (Minhas) Airbase. The Wah Cantonment Ordnance Complex host three sites where nuclear weapons and components are stored and assembled and aircraft and missiles are modified for use in nuclear attacks. The nearby Kamra Airbase is thought to host attack aircraft capable of delivering nuclear weapons.

Rawalpindi is the "garrison" city for Pakistan's military. The city hosts the headquarters of the Army and Air Force, and several nuclear weapons research facilities are also located there.

As pointed out at Hot Air, it may be Time to start freaking out about Pakistan. Nuclear weapons or materials in the hands of Islamic fundamentalists such as the Taliban, with close ties to al-Qaeda, is everyone's nightmare. We need Obama to succeed in this coming crisis.

What will we do if nuclear weapons or materials come into the hands of al-Qaeda's allies? How will we know that those weapons or materials will not be turned over to al-Qaeda for use against us or our allies?

In such a scenario, I hope Obama has the courage to do whatever it takes to prevent al-Qaeda from obtaining or using nuclear weapons or material, regardless of what other countries think of us, theory, or future truth commissions.

UPDATE: The Washington Post reports that the Taliban have pulled back from the outskirts of Islamabad. I'll believe it when Bill Roggio confirms it. Even a temporary pull-back does not remove the danger of nuclear weapons in a failing state.

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A letter from NY Attorney General Andrew Cuomo to (h/t Instapundit via Sec Law Prof Blog) reveals that then Secretary of the Treasury Henry Paulson intervened to prevent Bank of America from backing out of its deal to buy Merrill Lynch when BofA learned of enormous previously undisclosed loses.

Paulson threatened to use his TARP powers to remove the BofA executives and board if they invoked contractual provisions allowing BofA to terminate the transaction because the losses constituted a materially adverse event. Paulson also forced BofA to conceal the extent of losses from the public.

Paulson's threats were made at the request of Chairman of the Federal Reserve, Ben Bernanke, who was concerned with systemic failure if BofA did not acquire Merrill Lynch, and Merrill Lynch failed

Subsequent to the transaction, BofA has suffered tremendous losses due to the Merrill Lynch purchase:

Gaping losses at the brokerage firm forced Bank of America to seek a second financial lifeline from Washington last week, leaving Mr. Lewis’s bank, the nation’s largest, facing an uncertain future.

Mr. Lewis, who had pressed ahead with the acquisition at the urging of federal regulators, is now fighting to right his troubled empire and safeguard his job.

The tension between the two men had been building since mid-December, when the implications of Merrill’s latest losses — $15.3 billion during the fourth quarter alone — began to sink in.

UPDATE: The Commissioner called my attention to this story earlier today, with the question of whether the securities laws were violated. Since Cuomo had not yet released the letter, I held off. This is a very interesting question, because the action was taken at the insistence of the Federal Reserve and Secretary of Treasury under special TARP powers. I wish I had an easy answer to this, but this is a unique twist. BofA executives may have breached their fiduciary duty to the corporation and shareholders, and may have failed to disclose material facts in violation of the securities laws. Normally, this would give rise to liability, but again, these circumstances are so unusual that it will take some time to sort this through.

Certainly, BofA shareholders should be furious. The stock has been hit dramatically as a result of the Merrill Lynch purchase, and shareholders have suffered.

UPDATE No. 2: Some are claiming that Paulson and Bernanke committed "securities fraud." Let's not throw around words too loosely. Regulators generally have absolute immunity from civil suit for actions taken within the scope of their regulatory function. There are criminal securities statutes, but again, it is hard to see how a regulator could be in violation of such statutes merely because one may disagree with the actions taken, provided the actions were not for personal monetary or other gain. This is a truly unusual circumstance, and I am not sufficiently familiar with the TARP legislation (and neither are the Congressmen who voted for it!) to delineate what additional protections if might afford not only regulators, but regulated entities acting at the direction of regulators. There may be other criminal laws implicated, for example, if false testimony was given or false documents filed with the federal government.

UPDATE No. 3: The Washington Post now is reporting the story. Looks to me like Paulson is throwing BofA Chairman Ken Lewis under the bus:

Yesterday, spokespeople for Paulson and Bernanke said both men denied telling Lewis what to disclose to shareholders. "It has long been the Fed's view that questions of this nature are best addressed by individual institutions and their legal counsel," said Michelle A. Smith, a Fed spokeswoman.

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Britain has solved the problem of burning coal without emitting "greenhouse gases." According to The Independent, cutting edge technology called Carbon Capture and Sequestration (CCS) will be fitted on every new coal burning power plant:

CCS, which takes power stations' carbon dioxide waste gas, liquefies it and stores it permanently deep underground, instead of letting it escape into the atmosphere where it helps drive global warming, would henceforth be a requisite for any new British coal-fired power plant ....

CCS is the foundation of Britain's new "green" energy policy, according to the article, and represents "the technological 'fix' on which the world's chances of fighting climate change may come to depend."

What could possibly go wrong with liquifying carbon dioxide gas and storing it underground? We dont' know, because the technology is unproven and has never been used:

As the technology is in its infancy and still unproven, new generating stations would have to be built from scratch with demonstration plants attempting to capture emissions from about 300 megawatts of capacity, or about a quarter of a typical big plant's output. But after 2020, as long as the technology had been proven, CCS would have to be retro-fitted to all new stations to cover the whole of their emissions ....

So Britain's cure for its energy problem is to rely on technology which hasn't been developed, much less proven, and will not be available even for testing for over a decade.

It's a good thing we are not so foolish. We could never bank our energy future on unproven "green" technologies like CCS:

"The state of Michigan supports this effort to demonstrate the long-term capability of carbon capture and sequestration technology and will assist the city of Holland in its effort to gain approval and federal funding for this important initiative," the governor said in a letter to Mayor McGeehan.

In the proposed project the Holland BPW, in partnership with Praxair, is asking for a U.S. Department of Energy grant to help fund a commercial scale research and development project to determine the feasibility of capturing carbon created from state-of-the-art clean coal generation and depositing the carbon deep into the underground....

"The governor's support and commitment to bring this project to Holland and Michigan is crucial to the project's success, "said Loren Howard, general manager of the Holland BPW. "If funded and constructed, this project could be a cornerstone for a clean energy future for Michigan and all of the United States."

No, we're not so stupid. We fully investigate technology before we invest. After all, it's about the future of our children and grandchildren:

The technology is called "carbon capture and sequestration" and it has been proposed by "clean coal" advocates as a possible solution to global warming that would allow coal plants to continue to operate.

However, the technology is unproven and there have been no commercially viable applications. The technology is expensive and it may have unintended consequences, both when injecting carbon into the ground and with greater concentrations of other emissions being released into the air. Beyond that, while it addresses emissions, it does not deal with other environmental problems or pollution associated with coal power.

And even if state and local officials were so stupid, surely our Congress would not waste precious taxpayer dollars on such folly:

Rep. Rick Boucher (D-Va.), one of the House’s biggest coal supporters, on Tuesday reintroduced a bill that would invest billions of dollars in the development of carbon-capture-and-sequestration (CCS) technology for fossil-fuel power plants.

Like a similar measure Boucher introduced last year, the “Carbon Capture and Storage Early Deployment Act” would create a $1 billion annual fund for CCS development, drawn from a fee paid by utilities that burn coal, natural gas, and oil. The utilities would likely pass those fees on to consumers; the bill’s sponsors estimate that the cost for an average residential consumer would be $10 to $12 per year.

And even if our Congress were so stupid, surely President Obama, former Editor-in-Chief of The Harvard Law Review, would not rest his energy plans on mere hope:

Obama has repeatedly pledged support for “clean” coal and storage of carbon-dioxide emissions. He backs a cap-and-trade system that would put limits on carbon-dioxide emissions and allow utilities and other producers to trade carbon allowances, or credits, similar to the system that has helped reduce sulfur-dioxide emissions that cause acid rain....

Obama’s program would provide an incentive for injecting CO2 into existing oil fields for “enhanced oil recovery.” He has promised to develop a database for the purpose of matching carbon-dioxide sources to oil fields. His campaign literature calls for government-private partnerships in five “first-of-a-kind commercial-scale coal-fired plants with carbon capture and sequestration.”

And if we did make CCS a foundation of our energy future, we certainly would not do it in such a way as to impede energy projects which are "shovel ready":

Tenaska Vice President Greg Kunkel finds uncertainty troubling when it comes to possible new laws and regulations that could affect a $3.5 billion "clean coal" plant proposed near Sweetwater....

The plant will use low-sulfur coal from Wyoming to generate 600 megawatts of electricity, losing perhaps 200 megawatts in the process of capturing carbon dioxide....

Tenaska, like other similar energy endeavors, needs funding in some form - a carbon tax, Department of Energy programs, a cap and trade system, a tax incentive package - to make it financially viable and cover the costs of investing in carbon capture and sequestration.

Oh yeah, this should work just fine.

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Ezra Klein got a promotion. He's moving from The American Prospect to The Washington Post. He is receiving Obama-like kudos:

This is a great move by the Post, and a risk. Ezra is among the cream of the crop of the new phase of journalism -- a mixture of reporting, analysis, opinion, and expertise, told in modular sequence and with granular detail.

Mixed with this praise is a cheap shot from Matthew Yglesias aimed at people who disagree with him:

"My very good friend Ezra Klein has been hired by The Washington Post to do a blog for their website .... So first off, congratulations to everyone—good for Ezra, great hire for the Post, etc. ....That said, to be perfectly honest I do have some concerns about this. After all, one thing all decent progressive blogs do is point out semi-regularly that the Washington Post opinion section is a pretty rotten operation. You have liars like Charles Krauthammer and George Will penning regular columns, alongside less-egregious but still pretty pernicious stuff like David Ignatius’ apologia for war crimes and so forth."

(Which cheap shot has been refuted by a relatively neutral observer.)

But Ezra Klein has some unfinished business before he heads to the big time. While he obviously is a skilled blogger and analyst, even if I disagree with him frequently, he has never apologized for smearing fellow blogger Ann Althouse as an anti-Semite because a very small number of comments on one of her posts about Klein allegedly were anti-Semitic. See my post, Ezra Klein Smears Ann Althouse. That accusation was both untrue and beneath Klein.

Clearing the air on that outrageous accusation would be an honorable way for Klein to start his new career. And it would set a good example for some of the people praising Klein's stardom.

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By trickling out bits and pieces of top secret memoranda regarding interrogation of al-Qaeda terrorists, Barack Obama thought he would have the best of all worlds. Obama believed that exposing the dark side of the war on terror would ingratiate us with the world. At the same time, Obama thought pulling back the curtain slightly would quench those who thirst for details.

Obama was sincere, but hopelessly naive, and now the forces he has unleashed but cannot control threaten to destroy his presidency in its infancy.

As to the rest of the world, Obama proceeded from a fundamental misunderstanding of Islamic fundamentalists. Osama bin Laden and others in al-Qaeda hated us long before there was coercive interrogation. Throughout the 1990s, long before the George W. Bush administration, al-Qaeda launched numerous attacks against us at home and abroad, killing hundreds. The timid response of the Clinton administration only encouraged more outrageous attacks, culminating in 9/11.

Obama's professorial desire to test a theory, that apologizing for Bush would help solve the terrorism problem, puts the cart before the horse. We had terrorism before, not because of, the Bush administration. Obama's actions are a sign of profound weakness which encourages further attacks, and when those attacks come, the foundation of Obama's presidency will be gone. The Bush administration prevented further attacks through aggressive defense, and the American people will not tolerate another attack resulting from weakness and naive professorial theories.

At home, Obama's hope that Bush haters would be satisfied with a little disclosure was equally naive. Obama's decision reflects the fact that he never really practiced law. Any litigator with even modest experience would understand that by giving up information you don't have to give up, and by waiving privileges you are entitled to assert, you merely encourage further demands. Open the door slightly, and you may not be able to close it.

Obama also never ran an organization, so he has no understanding of managing people. As skilled and aggressive a politician as Obama is, Obama's experience is in promoting Obama. Managing turf wars in an organization takes skills which transcend the power of hope. With the possible exception of academia, nowhere are turf wars more petty and vicious than in government.

And that is what is happening on Capital Hill, where Democrats still bitter over the 2000 election have stuck their foot in the door Obama now is trying to close, and they are seeking to push the door wide open for their own purposes.

Despite the lofty rhetoric from Patrick Leahy and others, this is all about retribution for the 2000 election. Democrats have been attacking the Bush administration since he took office, before there was 9/11 or harsh interrogation. And it is very personal for those on Capital Hill who hold grudges. And chief among the grudge-holders is Leahy, who was furious as early as November 2001, that the Bush administration did not consult Leahy about its plans for captured al-Qaeda operatives:

Sen. Leahy, a Vermont Democrat, said the tribunals are just one of a series of unilateral acts the Bush administration has taken without consulting Congress. "I don't know why all of this has to be done by fiat at the White House," he said yesterday on NBC's "Meet the Press." "Why not trust the normal process of government?" The tribunal policy, along with such others as allowing government agents to listen to conversations between terrorism suspects and their attorneys, doesn't get any support from me -- no support whatsoever," Mr. Leahy said.

The bitterness and fighting between Leahy and the Bush administration continued unabated for 8 years. It was not surprising that Leahy was the recipient of Dick Cheney's famous suggestion as to what Leahy should do to himself. This is a highly personal fight, and Obama has stepped into it. Leahy will run over Obama to get to Cheney, if he has to.

The demands for hearings and prosecutions also are part of a power fight between the legislative and executive branches. In November 2001, Leahy even found Republican legislative support for preserving the legislative branch's turf, albeit not in Leahy's aggressive style:

On Friday [November 16, 2001], Sen. Orrin Hatch of Utah, the ranking Republican on the Judiciary Committee and a conservative, joined Sen. Patrick Leahy of Vermont, the Committee's chairman and a liberal, to sign a curt letter to the attorney general to "suggest" that after Thanksgiving he pencil in "several hours" to chat with legislators.

"The Department of Justice has taken a number of actions since the terrorist attacks of Sept. 11," the letter said. "We request that you appear before the committee during the week after Thanksgiving."

The request was a virtual subpoena. Twice in recent weeks, Ashcroft has snubbed invitations to appear before the senators. House members report similar experiences.

"Concern has been rising for some time on both sides of the aisle and both sides of the Capitol," said David Carle, a spokesman for Leahy. "The concern is over the almost complete lack of consultation with congressional leaders or congressional committees as the attorney general has taken one unilateral action after another in the name of the war on terrorism," Carle said.

There is no ego as large as a Congressional ego. Combine that with a history of bitterness of the 2000 election and personal animosity, and you have the makings of a vendetta by congressional hearing. If not interrogation, then it would be something else.

Obama did not create the profound desire for retribution, but he has unleashed it. And it will consume his presidency. This will be a fight unlike anything any of us have seen in our lifetimes, because it involves the nation's most emotional moment since Pearl Harbor. The legal battle lines already are being drawn, fund raising plans drawn, and lawyering up is about to begin. And both sides relish the prospect of a battle.

Obama should not underestimate the destructive power of Congress. Barely three months into his term, Obama's ability to control the agenda is on the cusp. The inimitable Democratic penchant for self-destructive behavior will not be satisfied until Bush has been bashed, even if the ultimate victims are our national security and Obama's legacy.

Welcome to the real world, Professor Obama.

UPDATE: Via Gateway Pundit, note that Republican Pete Hoekstra is calling for any congressional hearings to include an investigation of the damage to national security from the release of the memos. While we're at it, how about including an investigation of the damage done from leaks of classified information reported in the NY Times and Washington Post, as David Frum points out in a very interesting piece on the Jane Harman "leak" issue. (h/t Instapundit):

Two months after Franklin’s sentencing, another leak of classified information hit the newspapers. On Dec. 16, 2005, The New York Times reported the existence of a vast, unknown National Security Agency program to intercept foreign electronic communications.

Unlike the Franklin leak, which was intended to jolt an unwilling bureaucracy into action to defend the country, the Times leak was intended (by the leakers) to sabotage a program integral to that defense. The leak lethally compromised a vital intelligence-collection effort. In terms of its direct and immediate usefulness to America’s enemies, the Times story may count as the worst betrayal of vital national information in a generation.

Needless to say, nobody has ever been prosecuted for that or for any of the other leaks that did actual damage to American security since 9/11, such as The Washington Post leak that revealed the locations of prisons in which high-value al Qaida detainees were being held.

UPDATE No. 2: Proof that great minds think alike. This editorial today in the Wall Street Journal (which I did not see prior to my post, which was prepared last night)(h/t Memeorandum):

Mr. Obama may think he can soar above all of this, but he'll soon learn otherwise. The Beltway's political energy will focus more on the spectacle of revenge, and less on his agenda. The CIA will have its reputation smeared, and its agents second-guessing themselves. And if there is another terror attack against Americans, Mr. Obama will have set himself up for the argument that his campaign against the Bush policies is partly to blame.

Above all, the exercise will only embitter Republicans, including the moderates and national-security hawks Mr. Obama may need in the next four years. As patriotic officials who acted in good faith are indicted, smeared, impeached from judgeships or stripped of their academic tenure, the partisan anger and backlash will grow. And speaking of which, when will the GOP Members of Congress begin to denounce this partisan scapegoating? Senior Republicans like Mitch McConnell, Richard Lugar, John McCain, Orrin Hatch, Pat Roberts and Arlen Specter have hardly been profiles in courage.

Mr. Obama is more popular than his policies, due in part to his personal charm and his seeming goodwill. By indulging his party's desire to criminalize policy advice, he has unleashed furies that will haunt his Presidency.

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Whether waterboarding should have been used on 9/11 mastermind Kalhid Sheikh Mohammed and two other top al-Qaeda operatives is a legitimate issue. Jay Bybee and others gave legal opinions with which many people disagree, but I have yet to see anyone present a convincing argument that Bybee actually was so clearly wrong in his application of a specific U.S. criminal statute to a stipulated set of facts that his conduct was either unethical or criminal.

Nonetheless, I understand and appreciate the point made by critics who argue that the U.S. never should employ an interrogation method which even "might" constitute torture under U.S. and international law. This is a value judgment, not a moral absolute, unless these critics are willing to sacrifice a U.S. city for this value.

What is not acceptable to me, however, is the increasing use of analogies to Nazi Germany. Here are some examples:

• The Torture Memos: Berlin, 1937 Version
• Nazi-Lite: the John Yoo Torture Memo
• Bush’s torturers follow where the Nazis led
• "The Bush Administration used the same type of euphemism that the Gestapo used to label what was effectively torture..."
• The Nuremberg Principle
• "The presence of the doctors at the torture black sites recalls nothing so much as the doctors and scientists at the Nazi concentration camps of WWII."
• "If just saying sorry will suffice, the Nazis could have gotten away with murder."
• "I would be interested in seeing an actual count of how many times that defense was used during the Nazi trials at Nuremberg."
• Dick Cheney - Proud Nazi
• "The torture memos are filled to the brim with great stuff, things that would make any good Nazi very proud."

Why are the Nazi analogies being used? Because it is effective at demonizing your opponent through gross hyperbole. Thus, Israelis who attempt to stop suicide bombers from blowing up restaurants or Hamas from firing rockets at Israeli cities, routinely are labeled Nazis by the Iranian Mullahs, leftist academics, and a bevy of third-world dictators. It is the power to define others so that there is no real debate. Which is why the memos have been labeled the "torture memos" which begs the question from the start.

Let us not forget why some Nazi judges and prosecutors were tried and convicted of war crimes. It was not because they misapplied a statute, or gave a faulty legal opinion. It was not, as reflected in the opening statement of then Brigadier General Telford Taylor, because the conduct of the defendants was a "dishonor to their profession" or "violat[ed] constitutional guaranties or withholding due process of law." Rather, the Nazi judiciary was an integral part of the premeditated extermination of entire peoples (Jews and Gypsies, for example) and groups (homosexuals, for example):

The defendants and their colleagues distorted, perverted, and finally accomplished the complete overthrow of justice and law in Germany. They made the system of courts an integral part of dictatorship. They established and operated special tribunals obedient only to the political dictates of the Hitler regime.

They abolished all semblance of judicial independence. They brow-beat, bullied, and denied fundamental rights to those who came before the courts. The "trials" they conducted became horrible farces, with vestigial remnants of legal procedure which only served to mock the hapless victims....

In summary, the defendants are charged with judicial murder and other atrocities which they committed by destroying law an[d] justice in Germany, and by then utilizing the emptied forms of legal process for persecution, enslavement, and extermination [on] a vast scale."

And scale matters. A pickpocket and Bernie Madoff are both thieves, but hardly comparable. Someone who kills once in the heat of anger, and a serial killer who methodically plans his crimes, are both killers, but hardly comparable. It is the false logic of extrapolation, which takes a limited number of extraordinary events and argues as if the events were the norm.

By making false comparisons through extrapolation we cheapen the horror of crimes committed on a vast scale. Stretching those comparisons to involve people who likely committed no crime, makes the cheapening all the worse.

And intent matters. The Nazi judges intended to destroy civil society. The authors of the interrogation memos, and those who relied on their advice, were hoping to preserve civil society from attack by suicidal fanatics who, even during interrogation, bragged that more attacks were on the way.

Were the authors of the memos influenced by this context? We delude ourselves if we think legal analysis is completely divorced from the world in which it takes place; certainly the analysis being applied with hindsight by critics is influenced by politics and hatred of Bush dating back to the 2000 election. The practice of "extraordinary rendition" started under the Clinton administration, but there is no call to put members of Bill Clinton's Justice Department on trial.

Upholding the Constitution is not a suicide pact, and neither is protecting civil society. As former Supreme Court Justice Robert H. Jackson wrote:

This Court has gone far toward accepting the doctrine that civil liberty means the removal of all restraints from these crowds and that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.

We can have an honest debate over what we are willing to do, or not do, to protect ourselves against al-Qaeda, but not if one side continually invokes Nazi Germany. That is not a debate.

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I don't think Jay Bybee (or Alberto Gonzales or John Yoo or Stephen Bradbury) are criminals. At worst, they expressed legal opinions on interrogation of terrorism suspects which a court may someday declare to be wrong. Bybee's being wrong, if indeed he was, contributed to the use of waterboarding against three top-level al-Qaeda terrorists, and appears to have saved many (perhaps hundreds) of lives.

I don't believe Jamie Gorelick is a criminal. At worst, she expressed a legal opinion when she worked in the Justice Department regarding the need for law enforcement agencies and intelligence agencies to maintain a wall preventing the sharing of information, which opinion turned out to be wrong. [added: Gorelick's advice was to put in place guidelines to prevent information sharing which "go beyond what is legally required."] "Gorelick's being wrong, if indeed she was, contributed to the inability of the United States to detect and stop the 9/11 attacks which resulted in the deaths of thousands.

Please don't tell me that there was a difference in intent of the legal opinions. Bybee, it is clear from his memo, carefully reviewed the law and the facts. Indeed, it is his intensive review of the facts which has led some to argue that his memo constituted the banality of evil. This is what it has come to; a carefully reasoned and factually grounded legal opinion becomes criminal because people who appear to be willing to sacrifice our cities, if necessary to prevent waterboarding, now have the ability to sway the levers of government power.

It makes no logical difference that Bybee could have foreseen that the result of his incorrect legal advice would be the commission of a crime. Gorelick could have foreseen that the consequences of her incorrect legal advice would permit the commission of a crime (just read her memo linked above, and you will see that the warning signs of pending terrorist plots were clear). [added: If Bybee could be charged with conspiracy to violate the statute, then Gorelick could be charged with obstruction of justice.] While there may be differing levels of culpability, both results were foreseeable.

Of course, neither should in fact be charged with a crime merely for expressing a legal opinion:

Though the president has said that CIA agents will not be charged for following legal guidelines for interrogations, some Democrats have pushed him to support prosecution of the lawyers who drafted the legal ground for such interrogations. Obama said Tuesday that he will defer to Holder on those potential charges.

But if Holder goes down that road, it will be unprecedented, legal analysts said.

"It would really be a very, very difficult case to make," said Bruce Fein, a constitutional lawyer and former official in the Justice Department's Office of Legal Policy.

Not impossible, though. Fein said the prosecutor in the case would have to prove that the Bush attorneys essentially fabricated the legal justification in their memos.

"You would have to show that the legal arguments were just totally concocted," he said. "It's a very, very narrow path."

I realize that consistency is a rare commodity. If we are to be consistent as to criminal sanctions for legal opinions which turn out to be wrong, then Gorelick should be in the dock next to Bybee. But that would mean we were consistently wrong.

[h/t to Doug Ross for the Gorelick legal opinion link, and a reader for the quoted article link]

UPDATE: Sister Toldjah: CONFIRMED: Interrogation techniques DID aid in our fight against Al Qaeda

UPDATE No. 2: In anticipation of the inevitable invocation of the Nuremberg trial of Nazi "lawyers" (actually, judges and prosecutors) please read the full breadth of those cases (here and here). There were no prosecutions because a lawyer tried to apply a vague law to a stipulated set of facts. Just proves Godwin's law ("as an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one") is alive and well when it comes to the interrogation memos. Added: I knew it. Here we go: The Torture Memos: Berlin, 1937 Version. What fools. Three cases of waterboarding to save lives apparently compares to the use of the Nazi judiciary to help perpetrate and justify the killing of millions.

UPDATE No. 3: Did a HuffPo blogger mimic my post Which City Would You Sacrifice? Or do brilliant minds think alike? You be the judge.

UPDATE No. 4: A reader has called my attention to this post regarding Eric Holder's failure to take action on the information sharing "wall."

UPDATE No. 5: This from someone who opposes the use of waterboarding even knowing what we know now:

But what if it [an attack on L.A.] hadn't been foiled? Suppose the CIA had been denied permission to use brutal interrogation tactics, and Al Qaeda had consequently gone on to murder thousands of additional victims in California. What kind of conversation would we be having once it became known that the refusal to subject KSM to waterboarding had come at so steep a price? How many of those now blasting the Bush administration for allowing torture would be blasting it instead for not preventing a second bloodbath?

None of this is meant as a defense of torture, which I oppose as adamantly as ever. But even those of us who were against the Bush interrogation policy should be able to acknowledge the good faith of those who disagreed and the exigency in which they
found themselves. To say nothing of the lives their decisions may have saved.

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