Monthly Archives: February 2004

Into the Valley of the Weird

Posted on February 12, 2004 by Michael Froomkin

Talking Points memo links to an AP story with this amazing graph about the White House's release of a GW Bush dental record, vintage 1973, which it says places him at Dannelly Air National Guard Base in Alabama at least on the day he went in for free treatment:

“The White House obtained the dental record, along with other medical records it did not release, from the Air Reserve Personnel Center in Denver, Colo., McClellan said. The record was accompanied by a statement from Dr. Richard J. Tubb, the president's current physician, who stated that he read Bush's records, which covered a period from 1968 to 1973, and concurred with the doctors' assertion that Bush was “fit” for service. “The records reflect no disqualifying medical information,” Tubb said.

OK. Let's take this slowly.

  1. Bush promises on TV to release everything.
  2. They try to take it back.
  3. They release a clean and whole version of the “torn document”.
  4. The press gets feral.
  5. Which brings us up to today: the modified limited hangout stage of ineffective damage control.
  6. Next we will get vicious speculation and more vicious jokes about what medical condition Bush is hiding which is both embarrassing enough to be worth the flack yet not so serious that a physician would say it didn't “disqualify” him from…what exactly? Not flying?
  7. The final step in these dramas is either the White House caves, or they manage to deflect attention to an opponent's “gaffe,” or — Look! An international crisis!

The mind boggles at what could be on these medical records which is worth the grief that is going to flow to 1600 Pennsylvania Ave in the next few days. Low IQ scores? Plastic surgery? Detox? Syphilis? Gonorrhea? (I'm not alleging any of this—just trying to imagine what would be worth the effort to cover up.)

Meanwhile, this looks like a job for Jay Leno.

Posted in Politics: US: GW Bush Scandals | 3 Comments

NYT Agrees: Long Primary Favors Democrats

Posted on February 12, 2004 by Michael Froomkin

You read it here first…

A hotly contested Democratic primary season that stretches to the wire — even to a brokered convention — could be either the best or the worst thing for the Democrats. It’s the best thing if a bunch of plausible and photogenic candidates suck up all the media’s time and attention bashing Bush; Bush’s negatives are already rising fast, and they’ll keep on going up as Democrats have the limelight and use it against him. Once a nominee is selected, the press attention will shift elsewhere for a while, and he’ll bounce back.

Seems the NYT agrees with me now:

Political Memo: For Kerry, More to Gain in Leading Than Winning: Conventional wisdom might hold that now is the time for Democrats to rally around Mr. Kerry, and thousands are. Yet so long as Mr. Kerry faces even nominal intramural opposition, President Bush's advisers worry that they will have a harder time getting equal attention for their political message, and Mr. Kerry's rivals seem to keep undercutting each other, not him.

…

So the prospect of continued combat with Mr. Edwards and former Gov. Howard Dean of Vermont — while potentially annoying and distracting in terms of time, money and message — may be far from Mr. Kerry's worst nightmare. “Hopefully, we can do this every Tuesday,” one senior Kerry adviser said with a chuckle on Wednesday.

Posted in Politics: US | Comments Off on NYT Agrees: Long Primary Favors Democrats

GAO Slams CAPPS II–Hot Potato Now in White House

Posted on February 12, 2004 by Michael Froomkin

Ed Hasbrouck has all the goods on the leak of the GAO's CAPPS II report. It's so negative about the program that the head of the agency implementing CAPPS II, the plan to systematically violate the Constitutional rights of every American who flies on a commercial aircraft in the name of security, resigned in advance of its publication.

Publication of the report creates an interesting political dilemma for the administration due to a legal quirk. When Congress appropriated money for CAPPS II in the Department of Homeland Security Appropriations Act of 2004, it stipulated that the money could only be spent if the GAO report found that CAPPS II met eight tests. According to the leak, the GAO says CAPPS II flunked seven out of eight.

The Supreme Court decided in Bowsher v. Synar that the GAO is part of the legislative branch, not the executive,1 and therefore Presidents and their legal advisors consistently maintain that the GAO can have no role in executing the laws. That conclusion follows naturally from the earlier Chadha decision, which held that the only way in which the legislative branch may affect the legal rights duties or responsibilities of persons outside the legislative branch is by legislation—passage in both houses (bicameralism) followed by presentment of the act to the President (presentment) for signature or veto (which can then be overridden).2

In light of these very clear precedents, the White House announced at the time GW Bush signed the Department of Homeland Security Appropriations Act of 2004 that it would treat the report as advisory only. This is a reasonable legal position, and probably the one a court would adopt, although one could also argue that the favorable report requirement can't be severed from the appropriation and that therefore the unconstitutionality of the one implies the invalidity of the other.

Given the White House's view, backed by precedent, that it need not be bound by the GAO's report, will it press ahead with CAPPS II? And if it does, will Congress intervene?

[spelling corrected…]

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Posted in Civil Liberties | 6 Comments

Grey Hair Dept.

Posted on February 11, 2004 by Michael Froomkin

I am reading a student paper that refers to a “traditional web page”.

Posted in Internet | 1 Comment

Scalia Doesn’t Duck Recusal–He Shoots It Down

Posted on February 11, 2004 by Michael Froomkin

If it looks like a duck, and quacks like a duck…

Scalia Defends Hunting Trip With Cheney: Supreme Court Justice Antonin Scalia strongly indicated he will ignore calls to recuse himself from a court case involving his friend and hunting partner, Vice President Dick Cheney.

Scalia told a gathering at Amherst College on Tuesday night there was nothing improper about his accompanying Cheney to Louisiana last month to hunt ducks. The trip came three weeks after the Supreme Court agreed to hear the Bush administration's appeal in a case involving private meetings of Cheney's energy task force.

“It did not involve a lawsuit against Dick Cheney as a private individual,” Scalia said in response to a question from the audience of about 600 people. “This was a government issue. It's acceptable practice to socialize with executive branch officials when there are not personal claims against them. That's all I'm going to say for now. Quack, quack.”

…yup, it's a duck.

Posted in Law: Ethics | Comments Off on Scalia Doesn’t Duck Recusal–He Shoots It Down

A Thoughtful Take on Site Finder

Posted on February 11, 2004 by Michael Froomkin

People wanting a thoughtful look at the law and policy issues swirling around VeriSign's Site Finder need look no further than Jonathan Weinberg's Site Finder and Internet Governance. I say this even though the conclusion makes me quite uncomfortable.

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Posted in Internet, Readings | 2 Comments