Okay, well, I can't say that Leon Panetta is a great choice to head CIA, because I don't know CIA. But I can say that everything I've heard about the pick makes me happy.
First, Panetta is widely agreed to be smart, capable, and respected across the aisle. As Bill Clinton's former chief of staff he understands what Presidents need from CIA, and he's universally agreed to be an effective manager, even though he has no experience within the intelligence community.
Second, Panetta is on record vigorously opposing the lawless policies of the Bush administration, and Obama picked him knowing that. Along with his nomination of Dawn Johnson to OLC, Obama is clearly signaling that, not only will he abandon these policies, but he intends to publicly repudiate them. That's why his administration can't include anyone inside the blast radius. Very, very good.
Third, the appointment pissed off both Diane Feinstein and Jay Rockefeller. I hope that Scott Horton is absolutely right about why Feinstein and Rockefeller were excluded:
"So why would the Obama team, which has been so careful and thoughtful in approaching the nominations process, have failed even to consult the two Democratic senators who have the most to say about intelligence? I don’t think this was accidental. I read something else into it. The bottom line is that Jay Rockefeller was an abject failure when it came to intelligence oversight. His term as ranking member and then chair of the Senate intelligence committee was one in which Congress generally, and the Senate in particular, failed to live up to their Constitutional mandate. The intelligence community was steered by the Bush Administration into a series of criminal escapades. Effective congressional oversight would have exposed these failings and brought them to heel. But the Rockefeller-Feinstein record was little short of disastrous. I’m delighted that the Obama team didn’t consult them."
Reportedly Obama and Biden have done what's necessary to assuage Feinstein, and she is said to favor legislation returning all agencies of the federal government to the rule of law. If only she and Rockefeller had acted like vertebrates over the last eight years I'd be impressed, but since I know they've signed off on everything, they're exactly the people that I want to be pissed off. Frankly, if they actually know what I think they know about the Bush administration's lawless policies, then they ought to be in very deep trouble. Instead of pissed off they ought to be very, very worried about how the disclosures will go -- and therefore very, very obsequious about what disclosures Pres. Obama might make. But being Democrats, however, Feinstein and Rockfeller have selected the election of one of their own as their motivation to finally bitch about something. Way to go, guys. Ugh.
Finally, it might actually be a good idea. Maybe the salty retired Admiral Dennis Blair will hold down the tough military professional role at DNI, and Panetta will be the intelligence community's capable CEO/COO. Taken together these appointments are better than they'd be apart.The real bottom line here, though, is that Obama is consistently appointing people who are on record as both condemning the Bush administration's lawless behavior and advocating the need to expose and repudiate it. That is change I can believe in.
Senate Democrats are throwing a hissy fit over Illinois Gov. Rod Blagojevich's appointment of Roland Burris to fill President-Elect Barack Obama's Senate seat. To some extent this is understandable. After all, Harry Reid said that the Senate wouldn't seat anyone the corrupt Blago appointed, then that darn Blago appointed someone anyway, so obviously this outrage must be opposed and all that. Well, fine, but why exactly is this an outrage?
Burris isn't an ideal candidate by any means, but he isn't remotely outrageous, as everyone who's outraged by his appointment will earnestly assure you. No, the problem isn't with Burris, say Senate Democrats, but with the process that resulted in his appointment. This sounds like a good point until you think about it, but let me suggest that the corrupt process that preceded Burris's appointment virtually assures that Blago's selection of Burris is as pure as can be.
Recall that Burris wasn't anywhere in the mix when Blago was shopping the seat, and his name is among the few that isn't somehow referenced in Patrick Fitzgerald's 77-page complaint. More importantly, Blago didn't appoint Burris until after he started crafting his criminal defense. The appointment has to be seen in the context of Blago's inevitable defense:
How can I be guilty of trying to sell the Senate seat when, in fact, I gave it away to a clean politician for nothing? All of that talk about quid pro quo was merely that -- talk. And obviously that talk amounted to nothing, because at the end of the day I appointed Sen. Exhibit A.
That this will obviously form part of Blago's defense compels the conclusion that his appointment of Burris is clean. It's intended as a get-out-of-jail-free card, at least on that count of Fitzgerald's complaint.
So, where does that leave the hissy fit? Burris isn't dirty, and neither is his appointment. Democrats could probably do better, and maybe they ultimately will, but in the meantime, with Republicans already threatening filibusters, why exactly would Harry Reid prefer to ring in the new Congress with one fewer Democrat than he might have? Bear in mind that he'll already be a man down because Republicans will fight tooth and nail to keep Al Franken out until Norm Coleman exhausts his rapidly dwindling options in Minnesota. This will reduce the Democratic caucus from 59 to 57, and Joe Lieberman is one of the 57.
This isn't an idle point, because a massive stimulus bill is supposed to be headed for Barack Obama's desk within a week or so after he's inaugurated, but neanderthal Southern Republicans (along with their Blue Dog pals in the Democratic caucus) are already affecting to be alarmed at the deficit spending that will require. This, of course, is preposterous -- these are the same losers who voted for every one of George Bush's tax cuts and every bill to fund the war in Iraq, so it's a little late to start worrying about the national debt that doubled for no reason under George Bush. But facts never impede sanctimonious hypocrites, and as I've notedbefore, ideological Southern conservatives are just dying to drive us off a cliff.
At some point it would be nice if the Democratic leadership would pull its collective head out of its collective ass and start governing. Thanks ever so much for that.
Yale law professor Jack Balkin raises an interesting wrinkle: perhaps the Senate could refuse to seat Roland Burris because he was appointed, and not elected. Balkin starts with Powell v. McCormack as I did, but he notes that the Senate could challenge Burris's qualifications under Article I, Section 3 of the Constitution, as well as Section 2 of the Seventeenth Amendment:
Instead, you might argue, Section Two of the Seventeenth Amendment modifies Article I, section 5. It states:
"When vacancies happen in the representation of any State in the Senate, the executive authority of such State shall issue writs of election to fill such vacancies: Provided, That the Legislature of any State may empower the Executive thereof to make temporary appointments until the people fill the vacancies by election as the Legislature may direct."
Thus, you might argue, the Senate must treat a person appropriately appointed by the executive authority of the state as duly elected for purposes of Article I, section 5.
But that is precisely is the basis of the Senate's refusal to seat Burris. In the Senate's view, Burris has not been properly appointed by the executive authority of the State of Illinois.
Why might the Senate conclude that Burris has not been properly appointed by Illinois' executive authority? Well, for starters, it looks like the Governor might be corrupt and was trying to sell the seat.
That's a pretty good analysis, but as Balkin notes, it's not foolproof. Most importantly, despite voluminous evidence that Blagojevich was trying to sell the Senate seat to someone, there is absolutely no reason to believe he sold it to Burris -- who apparently didn't get into the running until after Blago was indicted and whose name is mentioned nowhere in the 77-page complaint Patrick Fitzgerald filed against Blago. Based on what we currently know, there's no reason to doubt that Blago legally appointed Burris, notwithstanding the scandals swirling around both Blago and the Senate seat.
Nevertheless, Balkin also notes that, even though his argument isn't foolproof, it might be enough to induce the Supreme Curt to treat the controversy as a political question and refuse to review the Senate's refusal to seat Burris. (He doesn't say so, but perhaps a Court stung by entirely justified criticism of its decision in Bush v. Gore would be particularly disinclined to decide another disputed election.):
And if the Senate decides that Burris has received his appointment in suspicious circumstances, the question is whether the Supreme Court could overturn their judgment or whether it must defer to it. The answer to that question comes from none other than Powell v. McCormack: In that case the Court said that the Constitution provided a textually demonstrable commitment to judging the qualifications listed, but no others. However, the same constitutional text gives the Senate the authority to judge the elections and returns of its members. If the Senate determines that Burris has not been duly elected (or, under the Seventeenth Amendment, duly appointed), Powell might seem to suggest that courts should defer to that judgment under the political question doctrine.
That's the sort of savvy legal analysis that should cause all those interested in constitutional and other legal issues to check Balkinization regularly.
Thumbing his nose at . . . well, basically everyone, disgraced Illinois Gov. Rod Blagojevich has appointed 71-year-old former Illinois State Attorney General Roland Burris to fill President-Elect Barack Obama's former Senate seat By all accounts, Burris is a decent man who has had nothing to do with Blago's corrupt practices, but for whatever reason Burris is keen to accept Blago's tainted appointment -- perhaps as a caretaker, but perhaps as something more. Blago made this appointment despite the pledge of Senate Democrats that they won't seat anyone Blago appoints, including Burris. Meanwhile, at least one prominent Illinois Democrat is demanding that the Senate accept Burris, who would be the only African-American Senator after Barack Obama's departure.
The political issues proliferate like a fractal, but it's worth examining whether Senate Democrats could in fact refuse to seat Burris. The answer, I think, is probably not.
To answer this question we have to jump into the way-back machine and consider the case of former Rep. Adam Clayton Powell Jr. (D-NY), depicted here while listening to oral argument in the Supreme Court case that we now get to talk about.
A charismatic civil rights leader from Harlem, Powell accomplished a great deal, then fell into repeated scandals. Ultimately the House Democratic Caucus stripped him of his powerful chairmanship on the Education and Labor Committee, then the entire House voted to unseat him under Art. I, sec. 5, cl. 1 of the U.S. Constitution, which provides that "[e]ach House shall be the Judge of the Elections, Returns and Qualifications of its own Members". Powell sued to regain his seat, and inPowell v. McCormack the U.S. Supreme Court held that Powell was entitled to take his seat, despite the House's refusal to admit him.
The Supreme Court's decision turned on the distinction between "exclusion" and "expulsion". The House could "exclude" Powell, the Court held, only if he failed to meet the basic Constitutional requirements under Art. I, sec. 2, cl. 3, which provides that "[n]o Person shall be a Representative who shall not have attained to the age of twenty five Years, and been seven Years a Citizen of the United States, and who shall not, when elected, be an Inhabitant of that State in which he shall be chosen." Powell undoubtedly met those qualifications, so he couldn't be "excluded" from his seat. But he might be "expelled" under Art. I, sec. 5, cl. 2, which provides that each House may, "with the Concurrence of two thirds, expel a Member." The House vote to stiff Powell had ultimately reached two-thirds, but since the votes had often fallen below the two-thirds threshold in what the Court concluded was an ambiguous process that never clearly amounted to either "exclusion" or "expulsion", Powell kept his seat.
Here it seems apparent that Burris meets the basic Constitutional requirements of a Senator, so he couldn't be "excluded". He could at least theoretically be "expelled", though, but only by a two-thirds vote of the Senate. Could Harry Reid really get two-thirds of the entire Senate to kick Burris out? On what grounds? (After all, Burris has done nothing wrong.) Will it really come to that? Well, it beats me, but subsequent events will almost certainly create fodder for additional discursive posts like this one.
Below I noted Dick Cheney's all-too-plausible claim that the Democratic Congressional leadership signed off on the administration's illegal warrantless surveillance of Americans. Spencer Ackerman suggests that this is all the more reason to launch an independent investigation:
Cheney might not be acting in good faith, but he's nevertheless pointing to something barometrically significant. In Washington, the phrase "bipartisan" is supposed to cash out to something like "legal" or "wise" or "no longer controversial" or "kosher." The Germans probably have a word that's a more acceptable translation. In any event, that's self-evidently foolish: lots of people can make mistakes and lots of people can make venal decisions, and it's not a function of belonging to one political party or the other. Cheney doesn't get off the hook if Nancy Pelosi is on it with him. Naturally, what I imagine Cheney's doing is warning the Democrats off creating an independent commission into the abuses of the administration, lest it go after them too, but that's all the more reason one should be created.
That's exactly right, and if I didn't want him investigating the Bush administration's torture policies, this would be a perfect job for Patrick Fitzgerald.
In Chris Wallace's interview with Dick Cheney on Sunday, Cheney asserted (as he has before) that the Congressional Democratic leadership was fully briefed on and enthusiastically approved of the administration's illegal warrantless surveillance of Americans:
WALLACE: Let's drill down into some of the specific measures that you pushed — first of all, the warrantless surveillance on a massive scale, without telling the appropriate court, without seeking legislation from Congress.
Why not, in the aftermath of 9/11 and the spirit of national unity, get approval, support, bring in the other branches of government?
CHENEY: Well, let me tell you a story about the terror surveillance program. We did brief the Congress. And we brought in...
WALLACE: Well, you briefed a few members.
CHENEY: We brought in the chairman and the ranking member, House and Senate, and briefed them a number of times up until — this was — be from late '01 up until '04 when there was additional controversy concerning the program.
At that point, we brought in what I describe as the big nine — not only the intel people but also the speaker, the majority and minority leaders of the House and Senate, and brought them into the situation room in the basement of the White House.
I presided over the meeting. We briefed them on the program, and what we'd achieved, and how it worked, and asked them, "Should we continue the program?" They were unanimous, Republican and Democrat alike. All agreed — absolutely essential to continue the program.
I then said, "Do we need to come to the Congress and get additional legislative authorization to continue what we're doing?" They said,"Absolutely not. Don't do it, because it will reveal to the enemy how it is we're reading their mail."
Cheney is hardly a trustworthy source, but Harry Reid, Jay Rockefeller, Nancy Pelosi, and Jane Harman have all been pretty spineless. (This is among the reasons why Congress has such low job approval numbers.) Like Glenn Greenwald, I think the Democratic leadership has some 'splainin' to do:
Unsurprisingly, Pelosi, Harman and Rockefeller all voted last July to legalize warrantless eavesdropping and to immunize telecoms from liability, thereby ensuring an end to the ongoing investigations into these programs. And though he ultimately cast a meaningless vote against final passage, it was Reid's decisions as Majority Leader which played an instrumental role in ensuring passage of that bill.
One would think that these Democratic leaders would, on their own, want to respond to Cheney's claims about them and deny the truth of those claims. After all, Cheney's statement is nothing less than an accusation that they not only enthusiastically approved, but actively insisted upon the continuation and ongoing secrecy, of a blatantly illegal domestic spying program (one that several of them would, once it was made public, pretend to protest). As Armando says, "The Democratic members who participated in this meeting have two choices in my mind - refute Cheney's statements or admit their complicity in the illegal activity perpetrated by the Bush Administration."