Will Baude asks why President Bush asked for Congress to pass the line-item veto in last night State of the Union address. He advances six semi-plausible explanations for why Bush would have done so.

Let me propose a seventh (and far simpler) explanation: Bush wants Congress to pass a constitutional amendment that provides for the line-item veto. Yes, it is relatively unlikely to happen, but then again I don’t see the Supreme Court flip-flopping on Clinton v. New York (or letting Congress get away with weaseling around it) as any more likely.

Thomas Smith inquires:

Why would FISA provide for warrantless surveillance during wartime for 15 days only after a declaration of war? This is a very strange provision, if you think about it. There is no reason to expect that the first 15 days of a war would be when warrantless surveillance would be most useful. Or is the idea that in the event of a sneak attack, you might need to begin eavesdropping immediately, but 15 days would give you long enough to line up your applications to the FISA court? If so, that is certainly an outstanding example of Congressional stupidity. It almost seems that the 15 day provision is there to show that the President’s Article II power to surveil during wartime has not been entirely eliminated; that is, the 15 day provision has a kind of place holder feeling to it, more certainly than making any kind of practical sense.

It seems to me that the obvious explanation for the 15-day rule is the same as the explanation for the time-limit in the War Powers Act: it gives Congress enough time to decide whether or not to extend the authority beyond the statutory minimum (just as the WPA gives Congress the time to decide whether or not to continue to delegate its power to conduct military operations to the president). Since Congress apparently did not decide to suspend the FISA warrant requirement beyond the 15-day limit (i.e. on or before September 26, 2001), it is reasonable to conclude that Congress wanted the FISA warrant requirements to be followed beyond that date.

As an aside, I’m amused by conservatives running around treating Article II’s penumbras and emanations like a giant Neccessary and Proper Clause. In re Neagle ain’t exactly a presidential blank check, unlike McCulloch, for good reason. By all means, we should have a debate over presidential surveillance powers, but Smith et al. seem to be suggesting the blank check approach—what my fellow political scientist Steven Taylor, no liberal, has been hammering on for weeks as being completely unacceptable and incompatible with our system of checks and balances. If Democrats have been guilty of simplistic arguments—and they have—so too have defenders of the administration’s approach like Smith, whose basic argument boils down to either “trust us” or vague handwaving in the direction of broad discretionary executive powers that are thoroughly inconsistent with judicial conservatives’ approaches to other parts of the constitution.

Update: There’s more FISA stuff from Orin Kerr.

Looks like Mo Fiorinia may need to write a Canadian version of Culture War? as a companion piece to the American second edition of the same…

My daily dose of humor was supplied by the original headline for this article, which was “Report cites evidence that US ‘outsources’ torture.” I had brief visions of lines of ex-CIA types outside unemployment offices.

In all seriousness, though, I wonder how much real indignation there is about such things. All societies—including our oh-so-enlightened European allies—have practiced torture (or Gitmo-style “I Can’t Believe It’s Not Torture”) since time immemorial, and while its use has generally been restricted to suspected scumbags in recent history, it still happens, wink-wink nudge-nudge denials, treaties, commitments, ad nauseum notwithstanding.

And, ironically, the incentives for torture may be higher in a democracy than a non-democracy. If the Spanish Popular Party government had waterboarded a few folks to gain enough intelligence to stop the Madrid train bombings (or at least to avoid erroneously attributing the attacks to the Basque separatists), they’d still be running the show. No dictatorship has ever been turned out of office because they couldn’t stop terrorist attacks.

In democracies, when it comes to questions of “us or them,” the constituency for “them” is George Galloway, Michael Moore, Robert Fisk, and a few other demented fools; not the makings of a broad coalition of voters, particularly when you have smoldering ruins as the backdrop of your campaign. Any rational government, left, center, or right, is going err on the side of “us.” And thus, sadly, those of us utopians who’d rather not see torture are probably going to be stuck with it.

I’m not going to waste a lot of space talking about the academic bias debate, but I did want to point vaguely in the direction of this post in which Quaker at Crescat Sententia discusses Steven Bainbridge’s post on disparate impact analysis as applied to ideology, and this one here (via Matthew Shugart), although I might be tempted to mock the latter (which, of course, is a parody) by analogy to the protestations of many an employer hauled into court for racial or gender discrimination on the basis of mere statistics, rather than any demonstration of the employer’s involvement in the causal process that led to the hiring differential.

I’d be curious what rival explanations my methods classes might come up with for this graph beyond “the obvious.” At least one structural feature of Congress leaps out at me as a possible explanation… can anyone identify it?

Why is it every time there’s a new Osama tape I think of Hari Seldon? Well, except for the “accurate predictions about the future” bit…

At some level, it’s a shame that I don’t have more stuff on Southern machine politics in my southern politics seminar. Memphis’ latter-day Crumps, the Fords, remain masters of the art form, which is well-typified in the current dispute over Ophelia Ford’s apparently fraudulent election to replace brother John (whose own shenanigans were a Signifying Nothing staple from back when Signifying Nothing was a pathetic little website called MemphisWatch nearly a decade ago).

Anyway, a Ford chum sitting on the U.S. district court has now decided to grant (Ophelia) Ford’s request for a restraining order stopping the state legislature from refusing to seat her, pending a hearing next week, thereby vitiating the hopes of anyone wanting this mess resolved any time soon.

See Bob Krumm, Mike Hollihan, and Adam Groves for all the commentary and details you can shake a stick at. (þ: Instapundit)

The Mungowitz provides a potentially reliable and valid one-question quiz that classifies professors on the basis of ideology.

Prompted in part by this BBC story on Winston Churchill’s position on whether or not Gandhi should have been allowed to starve if he went on hunger strike, and the Gitmo hunger strikes, I am forced to ask about the strategic considerations behind going on a hunger strike. If a prisoner voluntarily refuses to be fed for some basis other than the food itself (i.e. I could see why a Muslim might refuse to eat pork or non-halal beef), why does their captor have an obligation to feed them? More importantly, why does anyone care?

While talk of impeachment over the evolving NSA wiretapping scandal (and satellite scandals, like the “let’s assume all our Muslim neighbors are harboring nukes” scandal) may be a bit premature, a bit more “bitch-slapping” seems perfectly in order; Steven Taylor explains.

Incidentally, if the Democrats in 2001 and 2002 had paid half the attention to protecting our civil liberties that they did trying to protect union workers in the Homeland Security reorganization, they’d probably have a lot more credibility as presidential critics today.

Colby Cosh, on the uneasy relationship between social conservatives and the exercise of judicial review:

Can’t social conservatives tell the difference between judicial activism that expands the power of the state—like adding newly-invented “protected grounds” to discrimination law—and judicial activism that inhibits it?

Nah. What they care about is that the power of the state be used for their own preferred ends.

Like all good social science, it generalizes to both sides of the 49th parallel.

The UK has decided to keep records of virtually all vehicle movements in the country and retain the data for at least two years.

Steven Taylor, who pointed out the story, notes a transatlantic difference in attitudes:

Certainly, this underscores a key difference between European and American sensibilities: we are currently having a major debate over whether the NSA should ever listen in on the domestic end of an international phone call with a suspected al Qaeda operative, and the British are to keep records of where everyone is driving.

Of course, the NSA surveillance (which, admittedly, I have serious qualms about—indeed, even the FISA warrant process seems suspect, even though there is serious selection bias that plagues simplistic analysis of its statistics) is almost certainly considered by Europeans, including Britons, as yet more evidence of Bushitlerism.

Julian Sanchez gets to the heart of my thoughts about the New York Times story on the NSA’s spying on Americans/terrorists (depending on who’s doing the framing):

[W]hy on earth did the Times, apparently at the Bush administration’s request, sit on this story for a full year? The supposed reason for the request is that the revelation would threaten national security by tipping off terrorists. But… about what? About the fact that the government is seeking to wiretap suspected terrorist[s]? To whom does this come as news? We all know law enforcement can get secret wiretap warrants through a FISA court; the only reason to expect terrorists to change their behavior now that they know wiretaps are happening without warrants is if we think they’ve somehow broached the secrecy of the FISA courts. That seems unlikely—at any rate, unlikely to have been known about and still persisted for several years. So what kind of plausible difference to our national security could it make if terror suspects who know they might be targeted for eavesdropping with a warrant learn they might be targeted without one?

Good question. Meanwhile, Jeff Goldstein and James Joyner call for frogmarching of the leak culprits, since just what we need is another fake beltway scandal as the counterpoint to the Plame nonsense.

Orin Kerr:

[F]our years after the Patriot Act was passed, a meeting of everyone who thinks of the Patriot Act as actual legislation could be held in my kitchen.

Murray Edelman couldn’t have said it better himself.

It turns out that the Memphis neighborhood known as “New Chicago” isn’t the only way in which the Bluff City resembles the Windy City: at least one man who died August 6th voted on September 15th in a special election that, by sheer happenstance, replaced disgraced former State Sen. John Ford with his sister Ophelia. Ms. Ford won the hotly contested race by 13 votes; the dead man’s participation raises the number of illegally-cast ballots discovered to 5 thus far.

I realize I’m not making the tenured-law-school-faculty big bucks these days, but some of Glenn Reynolds’ analysis deserves a second look:

More importantly, the persistence of the whole [uranium in Niger] issue demonstrates the colossal folly of the Bush Administration’s effort to take the United Nations seriously in 2002, something that—like Bush’s failure to fire a lot of people at the CIA following 9/11—has led to considerable grief and no discernible benefit.

I guess the certitude that the U.S. wouldn’t have had the support of Britain, Spain, and Italy in launching the war in Iraq without the “effort to take the United Nations seriously” isn’t a “discernible benefit” in Glenn’s book. How soon he forgets the unbearably cheesy “Click Here to Thank Tony” ad that used to run on his sidebar!

The president’s poll numbers appear to be recovering as of late, and there are two major competing theories to explain the change. Charles Franklin appears to attribute the change to the new PR pushback from the White House, which we might term the Feaver-Gelpi thesis (see also Sunday’s NYT), while Glenn Reynolds says it’s the gas prices and the Mystery Pollster suggests good economic news in general.

It may be the most simplistic thesis, but I think the “pump price” explanation is probably the most plausible; unlike other information, gasoline prices are unavoidable information for most voters and not subject to partisan spin, unlike the presidential pushback on Iraq and news of the general economic recovery—both of which can be spun negatively in a way that falling gasoline prices really can’t. In a noise-filled informational environment, I suspect clear “pocketbook” signals like gasoline prices are much stronger cues for presidential support than the world of competing, ideologically-based claims over Iraq and interest rates.

Update: Al Qaeda appears to put some stock in the pump price explanation as well.

New British Tory leader David Cameron is calling for “compassionate conservatism” in the United Kingdom. If the American example is anything to judge by, that will include useless pandering to segments of the electorate who won’t support the political right anyway and a Nixonian commitment to reviving the New Deal’s economic policies.

Quaker at Crescat Sententia writes in commentary on this WaPo piece:

I honestly can’t think of a reason why the unanimous (!) staff recommendation would get overruled besides ideological opposition to the Voting Rights Act or a desire to see more Republicans in Congress. If anybody out there can think of better justifications, drop me a line; I’m all ears.

Perhaps the staff of the Civil Rights Division has been enforcing an interpretation of the Voting Rights Act that goes beyond the statutory requirements of Congress, and therefore has been making recommendations that do not enforce the VRA but implement something more stringent than the VRA. Thus, the political appointees at the agency felt an obligation to limit the review to the bounds of the statute, rather than the imagined law that the Civil Rights Division staff would like to see implemented. For example, the memo complains about partisan gerrymandering, yet partisan gerrymanders are not illegal under either the VRA or Supreme Court precedent (even if they probably ought to be).

After all, it is not beyond the realm of reason that young, bright attorneys might choose to join the Justice Department’s Civil Rights Division, and forego greater earning potential and prestige in the private sector, for ideological reasons.

Stories like this one make me thank God we didn’t get Hillarycare. On the stump, Canadian Conservative leader Stephen Harper made this, dare I say bold, promise to his countrymen:

[P]atients should not wait more than 10 months for non-urgent hip and knee replacements.

I suspect it’s pretty easy to say that when it’s not your bum hip or knee you’re hobbling around on for the best part of a year.

Of course, Canadians at least have, for now, the choice of private provision: they can come here for treatment and pay twice—once for the not-very-timely provision of services in Canada and once for the actual provision in the Land of the Gringos. In Democratic-wet-dream America, where’s our (and their) safety-valve going to be? Grenada?

Unless Mike Easley joins Mark Warner to start a conga line of southern Democratic governors tripping all over themselves to avoid the appearance of being the “heavy,” lest they provoke the MoveOn.org wing of the national party, North Carolina will conduct the 1000th execution since the reinstatement of capital punishment tonight.

On the other hand, we’re still behind Singapore in the number of drug mules awaiting imminent execution. Woo-hoo.

Stephen Moore adds more fuel to Stephen Bainbridge’s discomfiture with John McCain. I’m not exactly a huge McCain fan either, but given the likely contenders on both sides of the aisle I’m hard-pressed to pick a better nominee—or, for that matter, a better president.

While we can’t explore the counterfactual universe, I suspect ABC News wouldn’t have bothered with this story on CIA interrogation techniques if the White House weren’t stonewalling the McCain anti-torture amendment—putting aside whatever merits or demerits the McCain amendment may have. (þ:Orin Kerr)

One of my students in my American government class dug up this odd article from the Washington Post about a machine that allegedly turns sewage and garbage into clean water and electricity that was on display in Washington this week; the more interesting part may be the sideshow involving ex-mayor and current city councilman Marion Barry and a local pastor:

On Wednesday, the church’s pastor, [Rev. Willie F.] Wilson, confronted Barry about placing the machine in a parking lot used by the church.

The confrontation between Barry and Wilson devolved into a yelling match so heated that police intervened.

Wilson called Barry a liar and told him to watch his mouth, according to footage of the fracas captured by WRC-TV (Channel 4). In return, Barry called Wilson “power hungry” and threatened to have the church’s nonprofit status “investigated.”

If the inventors have some spare time, I’d think a similar device that ran on Barry’s hot air might be very promising.