"I believe in God and Senator Dodd."

I read the opening lines of Calvin Trillin's op-ed -- written in June 2006, but featured on the NYT website this morning as an op-ed "classic":

MY excitement at the news that Senator Chris Dodd, Democrat of Connecticut, is considering a bid for president in 2008 is easy to explain: his name has enormous rhyming potential. We all have our own issues.

And it took me back to the 60s, when Dodd's dad was a Senator and Phil Ochs used the line I've put in my title in "Draft Dodger Rag," which you can listen to here or buy the album "I Ain't Marching Anymore." Lyrics here:

Oh, I'm just a typical American boy from a typical American town
I believe in God and Senator Dodd and a-keepin' old Castro down
And when it came my time to serve I knew "better dead than red"
But when I got to my old draft board, buddy, this is what I said....

The original "chicken hawk" song (I think).

But the subject is poetry and names. Trillin has made his career in part out of writing light verse with a high proportion of famous names:

Someone in my position tends to see Ross Perot and John McCain as two peas in a pod — blessedly iambic candidates with nearly unlimited rhyming possibilities. During my 16 years in the deadline poetry game, though, we've had nobody with a name like Ross Perot or John McCain in the White House. I've had to deal with presidents whose names are an affront to rhyme and meter. Given the rhyming difficulties of Bill Clinton's name, in fact, I believe future historians will think of him as the "orange" of American presidents.

I think of him as the banana of Presidents, but it's all a matter of how you look at things.

Just the other day, in this comments thread to that post about whether lawprofs should call students by their first names, we got to talking about the poetic limitations of some names. I said: "[T]here are no pop songs about 'Ann.' Actually, there are few pop songs with one-syllable names."

With this, Pogo proved me wrong and exposed my inadequate knowledge of the 1960s, to which I'll plead guilty, eschewing the defense that if you can remember, you weren't there.

I looked into your cool cool eyes
I felt so fine, I felt so fine
I floated in your swimming pools
I felt so weak, I felt so blue

If you want to rhyme, rhyme. If you don't, don't. ← inferred Stooge theory of poetry.

Back to Trillin, who despite his name, didn't sing his lyrics (as far as I know). Trillin's had trouble with the current administration:

At times George W. Bush has seemed interested in making my life easier. He must have known before the appointments were made, for instance, that Condoleezza Rice's name fits exactly into the meter of "The March of the Siamese Children" from "The King and I" ("Condoleezza Rice, who is cold as ice, is precise with her advice") and that Alberto Gonzales rhymes with "loyal über alles."

And he fretted over the names coming up in 2008:

In my more pessimistic contemplations of the 2008 campaign, I see myself telling some political operative that I've made my peace with the possibility that the Democrats, desperate for some charisma, could turn to Barack Obama — a man whose rhymes I long ago used up in trying to deal with Osama bin Laden.

"But Obama's not the only Illinois contender," the operative says. "There's also the governor."

"The governor?"

"The governor," he repeats. "Rod Blagojevich."

Okay, then. Let's see the poems. Roll out your "-itch" words, you bitch.

IN THE COMMENTS: JohnJEnright composes this:

He desired the joy
of being rich.

He devised a ploy,
but it hit a hitch.

Weep, Illinois,
for Blagojevich.

AND: More commenters are itching for frontpaging. First, bearbee:

Blagojevich
Chicago jock itch
Who tried to get rich
By auditioning off a niche
And ended in an FBI hitch
Now when will he turn and snitch

And Palladian (presumably sung to the tune of "The Munchkin Song"):

Blagojevich, you bitch,
Will scratch you where you itch
and name you to the Senate seat that Barry O did ditch.

But wait! Hold on!
There's just a little hitch!
A Senate seat is valuable! He's trying to get rich.

So here's the pitch!
Pay up you fucking bitch!
And just forget Pat Fitz and Lisa Madigan, that witch!

Blago-jevich!
Payola is his niche!
A suitcase full of unmarked bills, nobody's gonna snitch!

But who will stop
this monumental kitsch?
Corruption that would cause even Jack Abramoff to twitch!

Fitch? No, Fitz!
in a prosecutor blitz
will smash the Illinois machine to tiny little bits!

The Erwin Chemerinsky mystery.

LA Times columnist Dana Parsons says:

... I'm not going to pretend to have penetrated in the last 24 hours the mystery of why UC Irvine Chancellor Michael Drake tore up the contract Tuesday that he offered Duke University law professor Erwin Chemerinsky a month ago to become the first dean of UCI's law school.

But make no mistake: There is a mystery to be solved. And the answer goes far, far beyond Drake's statement Wednesday that he has "come to the very difficult conclusion that Professor Chemerinsky is not the right fit for the dean's position at UC Irvine at this time."

Who got to Drake, who's been chancellor since mid-2005, and told him that Chemerinsky, a well-known constitutional scholar and acknowledged liberal commentator, isn't the guy for UCI?...

Did a deep-pocketed cadre of conservative donors put the heat on Drake to rescind the offer?

Or did the impetus for the Dump Chemerinsky movement originate with the UC system's Board of Regents, which would have to approve the contract?...

You may think I'm avoiding the obvious, but I'm not: Yes, I know conservative Orange County businessman Donald Bren has pledged $20 million to the new law school and will have his name on it....

Could be, but it's almost inconceivable to me that UCI would offer Chemerinsky -- or anyone -- the job without, if only as a courtesy, telling the man the school is named after....

With a mystery to be solved, the bad press for the nascent law school will rage on and on.

And there is another mystery. The school had a huge interest in an amicable separation with Chemerinsky. Could those who are acting for the school have failed to perceive that there would be devastating bad press? The school has trumpeted its ambitions to become a top tier school. I have to assume they tried to avoid an ugly public breakup. Unless they are shockingly incompetent, there must have been an attempt to reach an agreement with Chemerinsky to create a public appearance that would flatter both him and the new law school. They could have papered over the discord with a nice statement that Chemerinsky wished UCI well but had come to appreciate the depth of family's attachment to Duke and that UCI regretfully accepted that decision and remains convinced that he would have made a wonderful dean. So why did the nastiness boil over where we could see it?

I mean, look at the original press report, based on Chemerinsky's version of the events:

In a showdown over academic freedom, a prominent legal scholar said Wednesday that the University of California, Irvine's chancellor had succumbed to conservative political pressure in rescinding his contract to head the university's new law school, a charge the chancellor vehemently denied.

Erwin Chemerinsky, a well-known liberal expert on constitutional law, said he had signed a contract Sept. 4, only to be told Tuesday by Chancellor Michael V. Drake that he was voiding their deal because Chemerinsky was too liberal and the university had underestimated "conservatives out to get me."

Chemerinsky came away from the experience ready to attack. Why? Is it possible that Drake wanted this? Notice it's not the "conservatives" -- whoever they are -- who are saying political things about Chemerinsky. It's Drake, making assertions about unnamed individuals who are interfering with Drake's preferences. I feel sure that Chemerinsky would not misquote Drake. If there were nothing more from Drake, I would suspect that he and Chemerinsky were working together for a more independent UCI law school.

But:

Later Wednesday, however, Drake said there had been no outside pressure and that he had decided to reject Chemerinsky, now of Duke University and formerly of the University of Southern California, because he felt the law professor's commentaries were "polarizing" and would not serve the interests of California's first new public law school in 40 years....

Drake said he worried that the controversy had the potential to harm the university's reputation. "It was the most difficult decision of my career," he said in an emotional interview, his voice at times quivering.

He sounds quite pathetic.

Chemerinsky and Drake agreed the new dean's dismissal was motivated in part by an Aug. 16 opinion article in the Los Angeles Times, the same day the job offer was made. In it, Chemerinsky asserted that Attorney General Alberto Gonzales was "about to adopt an unnecessary and mean-spirited regulation that will make it harder for those on death row to have their cases reviewed in federal court."

But Drake and Chemerinsky split sharply on what role the article played in the decision to fire the incoming dean and whether academic freedom was at stake.

"Shouldn't we as academics be able to stand up for people on death row?" Chemerinsky said.

Drake said "we had talked to him in June about writing op-ed pieces and that he would have to focus on things like legal education in this new role, and then here comes another political piece. It wasn't the subject, it was its existence. What he said doesn't matter."

Another political piece! The procedures leading up to the imposition of the death penalty are a quintessential legal issue. "What he said doesn't matter." Who believes that?

Gonzales resigns!

NYT reports.

MORE:

Mr. Gonzales's resignation is the latest in a series of high-level departures that has reshaped the end of Mr. Bush's second term. Karl Rove, another of Mr. Bush's close circle of aides from Texas, stepped down two weeks ago.

The official said that the decision was Mr. Gonzales's and that the president accepted it grudgingly. At the same time, the official acknowledged that the turmoil over his tenure as Attorney General had made continuing difficult.

"The unfair treatment that he's been on the receiving end of has been a distraction for the department," the official said.

Gonzales "employed his signature brand of inartful dodging -- linguistic evasion, poorly executed."

"But I don't think he actually lied," says WaPo columnist Ruth Marcus.

"The disagreement that occurred and the reason for the visit to the hospital . . . was about other intelligence activities. It was not about the Terrorist Surveillance Program that the president announced to the American people."

The emphasis is mine, and it matters. We know, from Comey's account, that the dispute was intense. We don't know precisely what the disagreement was about -- and it makes sense that we don't know: This was a classified program, and all the officials, current and former, who have testified about it have been deliberately and appropriately vague....

[T]he calls by some Democrats for a special prosecutor to consider whether Gonzales committed perjury have more than a hint of maneuvering for political advantage. What else is to be gained by engaging in endless Clintonian debates about what the meaning of "program" is?

Orin Kerr agrees with Marcus. And both dislike Gonzales and think he should resign.

Monica Goodling testifies: "I may have gone too far in asking political questions..."

NYT reports:

Ms. Goodling said that in the course of her five years at the Justice Department, she interviewed hundreds of job applicants, most of them for positions subject to partisan political appointment. “But some were applicants for certain categories of career positions,” she went on, alluding to workers who are supposed to function free of naked political considerations.

“In every case, I tried to act in good faith, and for the purpose of ensuring that the department was staffed by well-qualified individuals who were supportive of the attorney general’s views, priorities and goals,” she said, before acknowledging that she might have gone too far in asking overtly political questions of some career applicants.

Google's display of thumbnail images in search results...

... is "fair use" and not a copyright violation:

"We conclude that the significantly transformative nature of Google's search engine, particularly in light of its public benefit, outweighs Google's superseding and commercial uses of the thumbnails in this case," Judge Sandra S. Ikuta wrote for the panel [in the Court of Appeals for the 9th Circuit]....

"We think this is a tremendous decision for the principle of fair use," said Art Brodsky, a spokesman for the Public Knowledge advocacy group. "It gives search engines and other useful services the ability to take advantage of computer technology in the search for and use of information."

And while we're celebrating copyright progress and at the risk of providing an opportunity for you to attack me for failing to denounce Alberto Gonzales for other things, let me use this occasion to denounce Alberto Gonzales for this legal excrescence.

In which I'm cured of a serious case of NPR-inspired unease.

Yesterday, I called the testimony of James Comey before the Senate Judiciary Committee "disturbing." Although I didn't link to it, I was influenced by this NPR report that I'd heard in my car. And I really must confess that I struggle on a daily basis with the powerful emotional tendrils that spiral out of NPR and twine around my brain cells!

So let's seek out some counterbalance today. Here's John Hinderaker's defense of the Bush administration. You simply must read the whole thing, because Hinderaker explains an elaborate time line and puts Comey's testimony in context in a way that is not susceptible to excerpting. Here's the conclusion:

[I]f you put the whole sequence together, it may well be that no actor in this admittedly lurid drama did anything wrong. Ashcroft and Comey apparently decided to go along with the conclusions of the Office of Legal Counsel and insist on changes in the program. Nothing wrong with that. Gonzales and Card may well not have known of Ashcroft's changed opinion, arrived at on the same day he went to the hospital--this is a key fact we don't know--and thought that Comey was trying to reverse his boss's judgment. So they went to see Ashcroft personally. Nothing wrong with that, as far as we know. Ashcroft set them straight; nothing wrong with that. (It's worth noting that Comey described Ashcroft's performance as a demonstration of physical and moral strength that was unprecedented in his experience.) President Bush then got into the act, learned the facts, and told Comey to do whatever he thought was right as acting Attorney General. Nothing wrong with that; on the contrary. The NSA program was revised to satisfy DOJ's concerns, and continued in effect, protecting Americans from terrorist attack, to the present time. Nothing wrong with that, to say the least.

I'm declaring myself cured of that NPR-inspired unease about all this. If you think Hinderaker is wrong in his interpretation, please explain.

"I thought I had just witnessed an effort to take advantage of a very sick man, who did not have the powers of the attorney general...."

Disturbing testimony before the Senate Judiciary Committee from James B. Comey:

Although Mr. Comey declined to say specifically what the business was that sent [Alberto] Gonzales to the bedside of [John] Ashcroft in George Washington Hospital, where he lay critically ill with pancreatitis, it was clear that the subject was the National Security Agency’s secret domestic surveillance program. The signature of Mr. Ashcroft or his surrogate was needed by the next day, March 11, in order to renew the program, which was still secret at that time....

“I was concerned that, given how ill I knew the attorney general was, that there might be an effort to ask him to overrule me when he was in no condition to do that,” Mr. Comey replied....

Mr. Gonzales and Mr. Card entered the room, with Mr. Gonzales carrying an envelope. “And then Mr. Gonzales began to discuss why they were there, to seek his approval for a matter,” Mr. Comey related.

“And Attorney General Ashcroft then stunned me,” Mr. Comey went on: He raised his head from the pillow, reiterated his objections to the program, then lay back down, pointing to Mr. Comey as the attorney general during his illness.

What did anyone expect?

Here's the NYT on Alberto Gonzales's appearance before the House Judiciary Committee yesterday. A quick summary:

... he stuck to his past assertions ...

Democrats at the hearing of the House Judiciary Committee tried but failed to elicit greater clarity.... Mr. Gonzales offered little new information...

Mr. Gonzales repeated his assertion...

Several Democrats questioned Mr. Gonzales’s credibility.

Laugh about it, shout about it, when you've got to choose, every way you look at this you lose.

Ooh, I've still got the song "Mrs. Robinson" running through my head. It was playing on the radio as I drove off to work today. But now it's evening and I'm -- as Paul Simon wrote -- "going to the candidate's debate." Not going, really. Watching on TV. I said I'd "simulblog," but, truth be known, this is just a TiVo-blog, and I may just fast forward through some of the candidates. And I'm starting on delay. I don't want to deceive you, my friends. Let's start now.

FIRST ADDITION. Mike Gravel? The hell? I was trying to count up who the 8 were. I'd forgotten Dodd. Gravel... that's news to me. I didn't even know he was still alive!

We're told they will be limited to 60 second answers. Cool!

The first question is to Hillary Clinton. She's asked about Harry Reid's statement that the Iraq war is lost. Does she agree? She avoids answering, instead choosing to talk about how the Congress has voted to end the war and how "proud" she is of that. She refers to Reid as "Leader Reid." She sounds hoarse. It's entirely scripted. The 60 seconds expires, the question unanswered.

SECOND ADDITION. Biden is given the same question and he, like her, reels out a scripted, nonresponsive answer. Now Obama, in an indication that he's more of a serious candidate than Biden, is given a new question. He's quoted as saying the war in Iraq is "dumb" and asked to square that with the sacrifices of the troops. He expresses pride that he's always opposed the war. He talks about the importance of equipment. I'm struck by how quickly he speaks. He sounds different from the way he has sounded in his solo appearances.

Edwards is asked about his apology for voting for the war and a statement he made about the need for an honest leader who will admit mistakes: was he talking about Hillary? He says "no." So much for honesty! Edwards is fast off the mark with a lie. A lie about honesty. We need someone who will restore our trust, he says.

THIRD ADDITION. We go back to Clinton, because she was attacked (though Edwards tried to act like it wasn't an attack). She says she takes "responsibility" for her vote and that she would not have voted as she did if she knew what she knows now. The real question, she says -- correctly! -- is "what do we do now?" But then she runs Bush down for "stubbornly" refusing to accede to the "will of the American people," which makes me wish I could ask her whether she thinks the role of the President is to adopt the military strategy that the polls show the people preferring (which would be completely incompetent).

Kucinich says we shouldn't fund the war.

FOURTH ADDITION. Richardson is asked if he would fund the troops if he were in Congress. He says "no." The war is a "disaster." He would "withdraw all of our troops" by the end of the year. But he'd apply "intensive diplomacy" that would have the three religious factions working out their problems. He'd have a "security conference" that would include Iran and Syria. And he'd have other countries take over the reconstruction and security. Okaaaay. He's for magic. Great.

Chris Dodd talks fast. Gravel would "find another way." He'd "make it a felony to stay there," he says, sounding nutty.

FIFTH ADDITION. Obama is asked what "a mission complete status in Iraq" would mean. He avoids the question and sounds stressed and clipped in a way that is, again, different from the way he has sounded in his more controlled, individual appearances. He taps into some prepared tape loops about the "strain" on the military and sounds a little desperate. He's scowling. He says we're "one vote away, we are one signature away, or 16 votes away from ending this war." He avoids the question and consumes all his time. He really seems too green and unprepared for this.

Clinton is given time for "rebuttal"! But nothing was aimed at her. She must feel great. Everyone wants to know what she thinks, and Obama is not looking good. She doesn't answer the question either though. She repeats the idea that the President is intrasigent. Ho-hum.

SIXTH ADDITION. Obama is asked about a seemingly corrupt deal.

Edwards is asked about the haircuts. It was a mistake to pay for them out of campaign funds. He does a good job of saying that he lives a "blessed" life now, but "it's not where I come from." He tells a folksy anecdote about having to leave a restaurant when he was a child because his father couldn't afford the prices he saw on the menu. He's asked about hedge funds and how they could be "helping America." I don't think he answers.

Hillary is given a shot at the hedge fund question. She praises the market economy and the regulation of it. She segues into talk about New York and its manifold interests.

Richardson is asked about his statement that he's taking a long time to think about what to do about Gonzales "because he's Hispanic." "He came from nothing. I know the guy. Did it affect that he was Hispanic in what I said? Yeah, it did." People want "candor," not "blow-dried perfection."

SEVENTH ADDITION. Gravel sounds wacky. He's wasting our time. Or worse. Everyone who dies in Iraq is "dying in vain." He's passionate and angry about that.

Clinton is asked about the unfavorable opinion people have of her. She says it's that she's stuck to what she believes. Among other things: universal health care. America is ready for that.

EIGHTH ADDITION: Sorry for the delay getting through this. Life beckons! Okay... now they're going to talk about abortion. Blah, blah, blah... complexity. They all support the right to privacy but also try to show respect to those who care about the right to life. A few candidates are asked who their favorite Supreme Court Justice is. The official answer seems to be: Ginsburg.

The Virginia Tech question: what should government do. This leads only to talk of gun control. They're asked if they've owned guns. Those who have are: Gravel, Richardson, Biden, Dodd, and -- hey! -- Kucinich.

NINTH ADDITION. A question about the Confederate flag in South Carolina. No answer of significance. A question about what mistakes they will admit to. I'm getting bored and burnt out. There's still another half hour to go. Maybe I'll come back to this tomorrow. But I've had all I can take for one night. (This is the problem with TiVo, of course. I stop it to write something, and before you know it, 90 minutes expands into 4 hours!)

"Like, I really -- what I want to do is experience the whole entertainment business because, I mean, I'm not just a musician, I'm an entertainer."

So says Sanjaya Malakar, a darling boy who deserves his own sitcom. Perhaps the story of a someone who wants to be a star, has a lot of heart, but isn't any good at all. (It worked for Lucy!)

Sanjaya was on Letterman last night, doing the Top Ten.



And look, here's Arianna Huffington gushing about sitting near Sanjaya on the plane to the White House Correspondents' Dinner:

[T]he woman across the aisle from me leaned over and asked if I was flying in for the dinner. I told her that I was and asked if she was too. "Yes," she said. "I'm Sanjaya's mom!" I glanced back, and there was the fallen-but-radiant Idol, seated next to a bodyguard hired to protect him from the mobs of well-wishers that now follow him wherever he goes (It was a good hire: Sanjaya's table was a hot destination throughout the Correspondents' dinner). Mrs. Malakar was a very charming woman. Our conversation ranged from the black-beaded dress she had bought for the occasion to her less than rosy assessment of the Bush administration. My mind flashed on how Simon Cowell might have assessed Alberto Gonzales' off-key testimony, and whether the AG would have won over Arlen Specter if he'd done his hair in a pony-hawk.

Eh, my mind just flashed on what a dull writer Arianna Huffington is. She's sitting with Sanjaya and mother and all she gives us is the insinuation that "Mrs. Malakar" agrees with Arianna's boring politics? It's an unsupported insinuation, of course, because who has a "rosy assessment of the Bush administration"? Probably not even Bush himself!

And, Arianna, not every woman latches on to her husband's name. You ought to know better than to call a woman by her child's last name with a "Mrs." in front of it! Just as my name isn't "Mrs. Cohen," Sanjaya's mother is not Mrs. Malakar, she's Jillian Recchi. (And Sanjaya is just as Italian as he is Indian.)

The federal "partial birth" abortion ban is upheld.

Scotusblog reports:

Dividing 5-4, the Supreme Court on Wednesday gave a sweeping -- and only barely qualified -- victory to the federal government and to other opponents of abortion, upholding the 2003 law that banned what are often called "partial-birth abortions." The majority insisted it was following its abortion precedents, so none of those was expressly overruled. The dissenters strenuously disputed that the ruling was faithful to those precedents.

Justice Anthony M. Kennedy wrote for the majority in the first-ever decision by the Court to uphold a total ban on a specific abortion procedure -- prompting the dissenters to argue that the Court was walking away from the defense of abortion rights that it had made since the original Roe v. Wade decision in 1973 recognized a constitutional right to end pregnancy medically. Roe v. Wade was not overturned by the new ruling, as some filings before the Court had urged.

More at the link. The case -- Gonzales v. Carhart -- is here. I'm about to be off-line for a while, so you will have to discuss this without me.

ADDED: Justice Thomas, joined only by Justice Scalia, concurs, in an opinion that's easy to read in full:

I join the Court’s opinion because it accurately applies current jurisprudence, including Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992) . I write separately to reiterate my view that the Court’s abortion jurisprudence, including Casey and Roe v. Wade, 410 U. S. 113 (1973) , has no basis in the Constitution. See Casey, supra, at 979 (Scalia, J., concurring in judgment in part and dissenting in part); Stenberg v. Carhart, 530 U. S. 914, 980–983 (2000) (Thomas, J., dissenting). I also note that whether the Act constitutes a permissible exercise of Congress’ power under the Commerce Clause is not before the Court. The parties did not raise or brief that issue; it is outside the question presented; and the lower courts did not address it. See Cutter v. Wilkinson, 544 U. S. 709 , n. 2 (2005) (Thomas, J., concurring).

I note that this does not state that Roe v. Wade should be overturned, only that it was wrongly decided. The question of stare decisis is a separate one. It is also interesting that Thomas thinks perhaps the Commerce Clause might not support the congressional regulation of abortion. Under current doctrine, it seems rather obvious that Congress has this power. Providing abortions is a commercial activity, and, taken in the aggregate, it has a substantial effect on interstate commerce. But Thomas has not supported that doctrine.

MORE: The reason Thomas brings up the Commerce Clause, you should understand, is, I think, that he supports overruling Roe v. Wade and relies on the idea that the issue of abortion will, in that event, devolve to the states. But if Congress can regulate abortion, the federalism-based assurances we keep hearing are meaningless -- unless somehow you have a way to believe that Congress would resist this ripe political opportunity.

"In half a century, I have not seen a president so isolated from his own party in Congress..."

".. not Jimmy Carter, not even Richard Nixon as he faced impeachment." Says Robert Novak.

[N]ot many Republican lawmakers would speak up for Gonzales even if they were sure Bush would stick with him. He is the least popular Cabinet member on Capitol Hill, even more disliked than Rumsfeld was. The word most often used by Republicans to describe the management of the Justice Department under Gonzales is "incompetent."...

The saving grace that some Republicans find in the dispute over U.S. attorneys is that, at least temporarily, it draws attention away from debate over an unpopular war. But the overriding feeling in the Republican cloakroom is that the Justice Department and the White House could not have been more inept in dealing with the president's unquestioned right to appoint -- and replace -- federal prosecutors.

The I-word (incompetence) is also used by Republicans in describing the Bush administration generally. Several of them I talked to cited a trifecta of incompetence: the Walter Reed hospital scandal, the FBI's misuse of the USA Patriot Act and the U.S. attorneys firing fiasco. "We always have claimed that we were the party of better management," one House leader told me. "How can we claim that anymore?"

Painful.

Loading Guantanamo onto the U.S. Attorneys story, increasing pressure on Gonzales.

Secretary of Defense Gates wanted to move the Guantanamo detainees to the United States, and Condoleezza Rice agreed with him, according to this NYT article, which connects this story to the ongoing controversy over firing several U.S. Attorneys. The link between the two stories is Alberto Gonzales:

Mr. Gates’s arguments were rejected after Attorney General Alberto R. Gonzales and some other government lawyers expressed strong objections to moving detainees to the United States, a stance that was backed by the office of Vice President Dick Cheney, administration officials said....

[O]ne senior administration official who favors the closing of the facility said the battle might be renewed.

“Let’s see what happens to Gonzales,” that official said, referring to speculation that Mr. Gonzales will be forced to step down, or at least is significantly weakened, because of the political uproar over the dismissal of United States attorneys. “I suspect this one isn’t over yet.”

Details of the internal discussions on Guantánamo were described by senior officials from three departments or agencies of the executive branch, including officials who support moving rapidly to close Guantánamo and those who do not. One official made it clear that he was willing to discuss the internal deliberations in part because of Mr. Gonzales’s current political weakness. The senior officials discussed the issue on ground rules of anonymity because it entailed confidential conversations.

So someone has made the decision to ramp up the pressure on Gonzales by leaking these private deliberations. Someone sees an opportunity to take down Gonzales and is going for it.

Here's the reason not to move the detainees to the United States:

Some administration lawyers are deeply reluctant to move terrorism suspects to American soil because it could increase their constitutional and statutory rights — and invite an explosion of civil litigation. Guantánamo was chosen because it was an American military facility but not on American soil.

I wonder why this isn't persuasive to Gates and Rice. But since this wasn't a public debate, everyone who participated in it is disserved. One person has decided to leak on his terms, with his slant on the subject.

About that U.S. Attorneys matter.

I think David Brooks -- TimesSelect link -- has about the right take on it:

When you look at the prosecutors who were fired by the Bush administration, you see some who were fired for proper political reasons and some who were fired for improper ones. Carol Lam seems to have been properly let go because she did not share the president’s priorities on illegal immigration cases. David Iglesias seems to have been improperly let go because he offended some members of the president’s party.

But what’s striking in reading through the Justice Department e-mail messages is that senior people in that agency seem never to have thought about the proper role of politics in their decision-making. They reacted like chickens with their heads cut off when this scandal broke because they could not articulate the differences between a proper political firing and an improper one.

Moreover, they had no coherent sense of honor. Alberto Gonzales apparently never communicated a code of conduct to guide them as they wrestled with various political pressures. That’s a grievous failure of leadership.

The bad behavior has not stopped there. The Democrats, apparently out of legislative ideas after only 11 weeks in the majority, have gone into full scandal mode, professing to be shocked because politics played a role in prosecutorial priorities. They and those on their media food chain have made wild accusations far in advance of the evidence, producing enough cacophonous demagoguery to make rational discussion nearly impossible.

I'm sick of all of them.

"Good lawyers representing the detainees is the best way to ensure that justice is done in these cases."

So said Attorney General Alberto Gonzales. This came after the deputy assistant secretary of defense for detainee affairs, Charles D. Stimson, was wrongheaded and stupid enough to say:

"I think the news story that you’re really going to start seeing in the next couple of weeks is this: As a result of a FOIA request through a major news organization, somebody asked, ‘Who are the lawyers around this country representing detainees down there?’ and you know what, it’s shocking." The F.O.I.A. reference was to a Freedom of Information Act request submitted by Monica Crowley, a conservative syndicated talk show host, asking for the names of all the lawyers and law firms representing Guantánamo detainees in federal court cases.

Mr. Stimson, who is himself a lawyer, then went on to name more than a dozen of the firms listed on the 14-page report provided to Ms. Crowley, describing them as “the major law firms in this country.” He said, “I think, quite honestly, when corporate C.E.O.’s see that those firms are representing the very terrorists who hit their bottom line back in 2001, those C.E.O.’s are going to make those law firms choose between representing terrorists or representing reputable firms, and I think that is going to have major play in the next few weeks. And we want to watch that play out.”

Gonzales is obviously right, and I would like to know how Stimson could even entertain the notion that it might be acceptable to say what he did.

UPDATE: Stimson apologizes.

ANOTHER UPDATE: Stimson resigns (2/2/07).

"The president has exceeded his constitutional authority by intruding into the independent powers of the judiciary."

The Texas Court of Criminal Appeals brushes off President Bush and the International Court of Justice in The Hague.

In 2004, the International Court of Justice in The Hague ruled that 51 Mexicans on death row in the United States were entitled to “review and reconsideration” of their claims that their rights under the Vienna Convention on Consular Relations had been violated.

The convention requires that arrested foreigners be told of their right to speak with consular officials. If asked, local officials must contact the appropriate consulate. Both actions, the convention says, must be taken “without delay.”

The international court added that American courts performing the required review and reconsideration could not rely on a doctrine known as procedural default to decline to hear arguments not raised at trial. That is at odds with recent death penalty jurisprudence in the United States and with state and federal laws that limit what kinds of arguments may be made if they are not raised early on.

When the question of whether the international tribunal’s ruling must be followed reached the United States Supreme Court last year, President Bush issued a memorandum to Attorney General Alberto R. Gonzales directing state courts to abide by the decision of the tribunal.

"You cannot say that it is unimportant and something you forgot."

Says Richard A. Sauber (lawyer for Time's Matthew Cooper), explaining the relationship between the new revelations (that Scooter Libby took part in authorized disclosures to controvert war critic Joe Wilson) and Libby's defense to perjury (that he forgot who said what about Wilson's wife Valerie Plame).

Meanwhile, Libby's lawyer, William Jeffress, says the special prosecutor's revelation "is a complete sidelight" to the charge against his client, that "It's got nothing to do with Wilson's wife."

Fitzgerald's filing was meant specifically to undermine Libby's claim that the issue of the CIA's employment of Plame was of "peripheral" interest to Libby at the time. He said in the filing that leaks regarding Plame were meant to embarrass Wilson by suggesting his wife had organized a CIA-sponsored trip by Wilson to probe Iraq's alleged purchase of nuclear material -- in short, to suggest his trip resulted from nepotism.

Fitzgerald argued, in essence, that the White House effort to rebut Wilson's criticism was so intense, and so preoccupying, that Libby could not have forgotten what he said about Plame. Fitzgerald also noted that Plame's employment was specifically raised as a relevant matter by Cheney, who had directed Libby to disclose information from the NIE.

Even if the two subjects have something to do with each other, the question is how much weight this evidence has. How do you prove someone is lying when they say they forgot? One way is to prove this is the sort of thing you could not have forgotten because of its connection with something else you were paying intensely close attention to.

Quite aside from the prosecution of Scooter Libby are the charges that President Bush was hypocritical for declassifying information to support the war when he has been critical of the unauthorized leaking of information:

[T]he report that the president was himself approving a leak may do serious political damage, said [historian Rick] Shenkman, who has a blog on presidential politics. "It does give the public such a powerful example of hypocrisy that I think it might linger for a while," he said.

Scott McClellan, the president's spokesman, disputed the charge of a double standard on leaks. "There is a difference between declassifying information in the national interest and the unauthorized disclosure" of national security information, Mr. McClellan said Friday. Of the National Intelligence Estimate on Iraq, part of which Mr. Libby shared with Judith Miller, then a Times reporter, Mr. McClellan said, "There was nothing in there that would compromise national security."

Mr. McClellan's tone contrasted sharply with that of administration officials after the N.S.A. story broke in December. Mr. Bush told a news conference at the time: "My personal opinion is it was a shameful act for someone to disclose this very important program in a time of war. The fact that we're discussing this program is helping the enemy."

Others picked up the theme, including Attorney General Alberto R. Gonzales and Porter J. Goss, the C.I.A. director. On Feb. 2, Mr. Goss told a Senate committee, "It is my hope that we will witness a grand jury investigation with reporters present being asked to reveal who is leaking this information."

I hope people will be able to keep these stories straight, but they are complicated and likely to merge, which is, of course, what Bush's critics want.

Just[ices] say yes to hallucinogenic tea.

The Supreme Court is back from a long break today, with Samuel Alito on the bench for the first time. There's a new opinion, in the hallucinogenic tea case:

Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church's religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

I'll read the case and have more later. Here is my earlier post on the oral argument in the case:

A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

Today's opinion is unanimous (with, Alito, of course, not participating). It's written by the new Chief Justice, so I'm especially interested in reading it. I so devoutly hope to find his opinions sublimely crisp.

UPDATE: I’ve read the case, which is called Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. The government said it has a compelling interest in the uniform application of the federal law, but Roberts slapped that down:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”…

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.

There was also an argument that the government has a compelling interest in complying with the international Convention on Psychotropic Substances, which, the Court held, did in fact cover hoasca. But the government failed to present any evidence of what detriment would occur if this small group were given an exemption.

The Court tweaks the government for relying so heavily on interests represented by the Controlled Substances Act:

Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated the compelling interest test as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

I must say that I find this case quite amusing! Congress catered to religious interest groups by passing RFRA and thereby disagreeing with the way the Smith Court had read exemptions out of the Constitution's Free Exercise Clause. The Court had tried to constrain the judicial role, but Congress then forced that role on the courts with a statute. And now the Court is taking the statute seriously. They are deferring to Congress by accepting the old activist role of making case-by-case accommodations. How deliciously ironic.

What Gonzales will say about the surveillance program.

Today, Attorney General Gonzales will testify before the Senate Judiciary Committee about the Bush administration's surveillance program. He's got a column in the WSJ this morning, which presumably reflects what he will say:

The president, as commander in chief, has asserted his authority to use sophisticated military drones to search for Osama bin Laden, to deploy our armed forces in combat zones, and to kill or capture al Qaeda operatives around the world. No one would dispute that the [The Authorization for Use of Military Force] supports the president in each of these actions.

It is, therefore, inconceivable that the AUMF does not also support the president's efforts to intercept the communications of our enemies. Any future al Qaeda attacks on the homeland are likely to be carried out, like Sept. 11, by operatives hiding among us. The NSA terrorist surveillance program is a military operation designed to detect them quickly. Efforts to identify the terrorists and their plans expeditiously while ensuring faithful adherence to the Constitution and our existing laws is precisely what America expects from the president....

The AUMF is broad in scope, and understandably so; Congress could not have catalogued every possible aspect of military force it was endorsing. That's why the Supreme Court ruled in Hamdi v. Rumsfeld that the detention of enemy combatants--a fundamental incident of war-- was lawful, even though detention is not mentioned in the AUMF. The same argument holds true for the terrorist surveillance program. Nor was the president's authorization of the terrorist surveillance program in violation of the Foreign Intelligence Surveillance Act. FISA bars persons from intentionally "engag[ing] . . . in electronic surveillance under color of law except as authorized by statute." The AUMF provides this statutory authorization for the terrorist surveillance program as an exception to FISA.

Lastly, the terrorist surveillance program fully complies with the Fourth Amendment, which prohibits unreasonable searches and seizures. Like sobriety checkpoints or border searches, this program involves "special needs" beyond routine law enforcement, an exception to the warrant requirement upheld by the Supreme Court as consistent with the Fourth Amendment.

We already know this is the argument. We also know the argument of those who oppose the program. What will be interesting today will be to see how well Gonzales will be able to defend the program under hard questioning and how far the Senators will be willing to go when they know that part of the answer, explicit or insinuated, will inevitably be that if they oppose the program they do not care enough about national security.