I will never forget that it was John “Let The Eagle Soar” Ashcroft’s Justice Department that spent taxpayer dollars on covering up Lady Justice’s bosoms. Yet more and more these days, Ashcroft is also being indelibly identified as a man who stood by his principles against torture and warrantless spying in an administration that was scrambling for these and other perversions.

An article yesterday revealed that Ashcroft had made a list of five candidates to lead the Justice Department Office of Legal Counsel in 2003 - an office responsible for overseeing the legality of DoJ deeds - only to have the White House shoot down his candidates and insist on appointing a chief architect of pro-torture, pro-warrantless spying policy.

In an angry phone call hours after Ashcroft’s list reached the White House, President Bush’s chief of staff, Andrew H. Card Jr., quickly dismissed the candidates, all Republican lawyers with impeccable credentials, the sources said. He and White House counsel Alberto R. Gonzales insisted that Ashcroft promote John Yoo, a onetime OLC deputy who had worked closely with Gonzales and vice presidential adviser David S. Addington to draft memos supporting a controversial warrantless wiretapping plan and detainee questioning techniques.

Ashcroft’s response, despite ailing health and an uphill battle, was to dig in his heels. He fought hard for a compromise candidate, Jack Goldsmith by name. And it was Goldsmith who went on to help expose and undo a lot of the grim deeds of the Gonzales-Yoo policies.

This has brought an interesting distinction to light for me. This distinction is one that I anticipated to develop after the Bush administration, but considering how long and eventful the administration has been, I suppose it was crafted rapidly. It is the distinction that even among the cliquish Neo-Conservatives, as in practically any group, there are moral true believers and there are self-serving hypocrites.

John Ashcroft is, apparently, a man that does indeed walk the walk. He surely has a few skeletons in his closet, but by all indications he struggled to stick by the Constitution, even when the agenda of his cohorts was pulling hard in a dangerous new direction. He may have wanted to chip away at civil rights progress - there is no painting him as other than a staunch enemy to the ACLU, pro-choice movements and drug users - but apparently believed in his gut that there were certain lines America did not cross.

I would imagine in Ashcroft’s clean-cut, picket-fence America, they may have locked up the hippies, but they did not torture.

On one level, I’m happy to hear it. It’s nice when someone with dramatically opposing views turns out to have fought the kind of fight I’d want fought.

On the other, it strikes me as an eviscerating tragedy that because a fanatical social conservative doesn’t sink so low as to okay sexual assault as a means of interrogation, he stands out as an exceptional hero in an administration the greatest country in the world has lived under for eight of its most critical years.

Keith Olbermann presented Obama’s FISA vote choices in a positive light in his latest Special Comment:

Either option is fine by me, given that neither option sees a piece of legislation that is, in essence, retroactive legitimacy for law-breaking - so long as Obama becomes President, that is. But then, so much of the healing this nation needs depends on that.

The Supreme Court of the United States yesterday made a decision striking the DC handgun ban. As I have always wanted to own an AK-47 assault rifle, I support that decision.

I’ll clarify. In the assault rifle world, the M-16 is a prissy primadonna of a prom date, while the AK-47 is the kind of gal you marry. It is durable, sexy in a brutal kind of way, and holds cartridges as long as Hulk Hogan’s middle finger that can pulp bear flesh. And while I don’t buy for a minute that Rambo could have burst from concealment underwater firing the persnickety M60 machinegun, he might have extruded from unprocessed waste with an AK-47 and I’d believe it could still fire. What’s more, it’s an iconic weapon - the death dealing device that embodies the post-colonial, over-proliferating late-20th century; the gun of the mujahadeen, the Soviet, the African warlord.

As for why the Supreme Court ruling inspires me to believe I’ll some day own one of those homicidal fashion plates, is the basis of its holding - that it is not a collective right, but an individual right, to bear arms.

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense in the home.”

Hooray! And considering that the DC handgun ban was all about restricting one type of firearm, and thus was found Unconstitional based on this ruling, this ruling therefore opens the door for all firearms.

The decision goes on to pick away at the holding in the ruling opinion, in typically pusillanimous fashion, but I don’t buy it, as it goes contrary to the core of the holding. Scalia, writing the ruling opinion, specifically says that felons and the mentally ill won’t be able to get guns, and that concealed weapons don’t apply.

To that, I ask - and many ask with me - why not?

Everybody wants “strict constructionists” and not “liberal judges who legislate from the bench,” right? That’s certainly the kind of judge you’ve preened about being. So let me introduce you to the strict construction, Justice Scalia:

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

And here is your ruling again:

“The Second Amendment protects an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense in the home.”

Plain as day - it says nothing about, “except for the blind,” or “except for felons,” or “except when its kept in the trunk of your car.”

The holding held, as strict constructionism does, that you’re not allowed to add anything to the law. Meaning, no exceptions as to whether an individual has a criminal record, or is insane, or doesn’t need a coaxial anti-aircraft machinegun for home defense. No exceptions based on statistics that say inner cities like Washington, DC are being decimated by gang violence often involved handguns, or complaints from the police. That was the basis of the ban - a specific solution for a specific problem - but that’s not what the strict construction of the Constitution is about: It’s about general liberties that protect us from those specific solutions.

Perhaps the Court would have a platform to stand on in regulating based on criminal record or deadliness of weapon if it had ruled that militias had anything to do with it. After all, that would be about collective security; protecting the state at the individual’s expense. But they ruled just the opposite. For interests of “collective security,” see the DC handgun ban, now going down in flames.

Some may call this “reductio ad absurdum” - the old Latin phrase about how some logical arguments lead to ridiculous ends if followed through completely, and thus refute the basis of the argument. I, and the Supreme Court, call it a Constitutional liberty of the United States.

They may think the cat is not out of the bag - that they can exercise some ridiculous double-standard in cases like the Assault Weapon Ban, waiting periods and possession by felons. In truth, considering the pernicious, self-interested behavior of many of their rulings - which determine the logical meaning of the Constitution but hit traditionally powerless citizens with restrictions all the same - I wouldn’t put it past them. But this much is certain: The Supremes are going to be a busy bunch in the future, as organizations like the NRA are going to use this simple holding to challenge all manner of gun laws.

The Constitution is at last being taken at its word; the law is at last on their side. And my only worry now when it comes to the queenly AK is how much shipping and handling from Liberia is going to cost me.

Even after the ink was dry on his contract, Professor Erwin Chemerinsky’s offer to serve as dean for UC Irvine’s law school was withdrawn; a tragic loss to the reactionary suppression of speech by those who claim to love this country’s values more than their opponents. This is a miserable situation, not only because it is a matter of a person’s political opinions being so despised by a community as to inspire breach of professional obligation and silencing. It is particularly miserable given that Professor Chemerinsky embodies, for me and for many, the impassioned scholar who valued freedom of opinion above any personal cause.

Chemerinsky claims that UC-Irvine Chancellor Michael Drake, despite Drake’s public assertions, told him that pressure from conservative members of the board of regents led to the withdrawal of the position. I believe Erwin. I believe him because he has absolutely no fear of the truth, but that it might be compromised. For instance, later in a conversation with Larry Mantle on Air Talk, Chemerinsky did all he could to quash rumors or speculation as to which of the regents might have been involved, as he did not know.

That is the kind of exact, fair and empirical mind that fostered in me such appreciation of Erwin Chemerinsky when I had the pleasure of taking his Constitutional Law course as a political science student at USC. He was already notable - one could even say “notorious” - to me given his ardent activism for left wing causes of all stripe. Yet from the first class, Chemerinsky made it clear that the value of learning was not in the accumulation of knowledge but in the criticism of it. There were no safe opinions in his class; every position on matters like abortion, speech or gun control would be tested relentlessly. For me, this was the very soul of understanding - that we have to never found our beliefs on what is comfortable, but on what is right; have to accept a position, flaws and all, and prove its strength by fighting hard for it or abandon it and grow to embrace a better way.

His class was a pure ecosystem of intellectual Darwinism, and I will always enshrine it - as both an icon of good education and as a model of what to hold my own standards of belief to. As we were in USC, and many socially liberal attitudes were the typical fare, the Professor and I often ended up arguing against the rest of the class for the sake of conservative positions. But it was not the “Lear Jet Liberals” of USC that were to fatally influence Chemerinsky’s fate in this recent case - it was a different breed of millionaires: Orange County’s millionaires, the very embodiment of the chauvanistic thugs who claim to be the only pure champions of America but fume about “treason” the moment their lily-white illusion about this country is tarnished by an uncomfortable truth.

Ultimately, who fills the post of Dean is entirely the decision of UCI. One can only take so much umbrage with them declining Chemerinsky, even though it was particularly inept and offensive to offer the position past the point of contract before withdrawing it. All the same, it could not have happened to a worthier candidate. As conservative law professor Viet Dinh of Georgetown said:

“I disagree with Erwin on so many things, but with all the many panels and discussions I’ve had with him, I’ve never found him to be any other thing than a straight-up academic,” Dinh said. “I think he is one of the great scholars of our days.”

And he is great, not only because he has a first rate mind filled with an archive of knowledge. The difference between a good professor and a great professor always comes down to those that don’t suppress criticism but demand it. These are the people who truly seek to understand how our world works.

He would have been transformative for a community run by people who work very hard to escape that understanding.

The power to legally spy on most of the other nations of the world’s electronic communications is now within the US intelligence community’s grasp.

The President wanted to expand the surveillance powers to include those communications after the FISA court ruled he couldn’t. The Democrats produced a bill to comply, but that included an oversight of the program. This didn’t float - the President said he’d veto it, and so support in the House dried right up. Then a bill largely developed by the White House was presented, has passed the Senate, and will reach the House just as soon as possible.

These measures do address a major opportunity our intelligence community was missing - namely, that a lot of the emails and other electronic traffic in the world rout through US-based providers, and so warrantless scanning those servers would be a gold mine. Not being able to was like extending our 4th Amendment protection to the world at large.

The element of oversight - some kind of legal provision to ensure that the Executive is being as trustworthy as it says - might have had a place in all this. Fortunately for any who don’t think that oversight’s due, or even allowable, the Democrats were the defenders of that measure, and have toppled over with their usual puling aplomb:

Senate Democrats reluctantly voted for a plan largely crafted by the White House after Mr. Bush promised to veto a stricter proposal that would have required a court review to begin within 10 days.

The Senate bill gives Mr. Bush the expanded eavesdropping authority for six months. The temporary powers give Congress time to hammer out a more comprehensive plan instead of rushing approval for a permanent bill in the waning hours before lawmakers begin their monthlong break.

…In the House, Democrats lost an effort to push a proposal that called for stricter court oversight of the way the government would ensure its spying would not target Americans.

I don’t even really oppose the expansion of FISA powers. I do object to having to search this story out, then having to search for the details of the compromises and details of the bill’s powers. I do object to matters of Constitutional protections being almost an afterthought to the louder rows over such crucial legislation as the SCHIP program and cigar tax.

And though I often feel glad that the Democrats are so toothless, venal and flaccid, it is nevertheless a bit shameful to see them taking a kind of “whatever you want” attitude when it comes to oversight of the compromise of Constitutional civil liberties.

In all the smoke and crossfire over the issue of the subpoenaing of the White House, a critical element to the matter is again in risk of being obscured - that it is Congress’ Constitutional right, one of its avowed checks and balances, to apply the insuperable legal powers of subpoena to its investigations.

Some people might not know this. Yet more might assume that Orrin Hatch, who spoke just this morning on this issue, was correct in what he said. Senator Hatch addressed a sentiment that, no doubt, many in the ranks of the Right find sympathy with, when he said on Face The Nation:

“There comes a point where the White House to say, ‘Hey look there are certain confidential things in the White House that we’re not going to share with Congress just like there are certain confidential things in Congress that we’re not going to share with the White House,’”

But in fact, such a point is not legal, nor necessarily ethical. Hatch may as well have been saying, “There comes a point when an employer just needs to realize the competitive realities of the labor market and hire illegal workers” or “there comes a point when you just need to realize 0.1 blood-alcohol levels really aren’t that much of an impairment, and drive home with those two beers in you.” The logic of these statements may be inspired by some factual basis, but they are wrong in that they are advocating illegal activity. They are ignoring the reality of the law. And the reality of the law is that while the Executive does not have the Constitutional ability to rigorously investigate the Legislature, the Legislature does have the power to investigate the Executive.

The reason why is because our country was founded not out of a respect for tyrants, but out of the belief that absolute power could and should be compromised to ensure the health of the democratic body. The Executive has many powers over defense. It can defend with the military, defend with secrets, even defend with summary abolition of most judiciary ruling, as the response to Mr. Libby’s sentence proves. What it cannot do is what Senator Hatch is suggesting. It cannot do this because we Americans do not tolerate a crown that cannot be tipped by the people’s representatives.

Sadly, in the echo chamber of the media, Hatch’s statement may not be so effectively refuted. One can hope. If not, a related legal evasion that only increases secrecy unduly might continue to go unnoticed and unanswered.

On Friday, the 6th U.S. Circuit Court of Appeals dismissed a lawsuit by the ACLU to sue against the “Warrantless Wiretapping” or “Domestic Spying” program. Their reason? That the ACLU could not bring evidence against the program, because that evidence is secret.

I’ll put it even more plainly, because that kind of legal twisting makes the logic ligament of the brain twitch.

We can’t sue against a secret programs used against us, because they’re secret.

I would hope even advocates of the program would be wondering, “Well, what recourse do the American people have to challenge such Executive power?”

The short answer? The Constitution.

The long answer? The legislative ability to investigate these matters. The reason why the Constitution gives Congress this last level of a check against an authoritarian Executive and a compliant Judiciary is because Congress can review such secret material without compromising the material by exposing it directly to the public.

So regardless of where you stand on warrantless wiretapping or the investigation of the White House, make no mistake as to the origins, intent and power of Congress’ investigation. It was created to make sure the “Catch-22″ of that ACLU case does not happen - not with popular programs, not with unpopular, never. It is the censurous hand - sometimes petty and fickle, as with Clinton; sometimes correct but firm, as with Jefferson - that extends from that most important sentence beginning, “We the People…”

The old saying “sin boldly” comes to mind when reflecting on Bush’s pardon yesterday of I. Lewis “Scooter” Libby. And I assure you that it’s as a moderate, objective observer when I muse whether or not Bush will ever do something significant without doing it in a half-assed, somewhat inept way - besides reinstituting the disastrous global gag rule.

Bush did not entirely pardon Libby. Libby still will not be practicing law, he’ll still suffer a steep fine, he’ll still be on probation. In essence, he’s still punished. The crime he committed - to the extent he committed any more crime than a flak jacket, guarding Karl Rove and his ilk from the blowback of a bungled bit of retaliatory nastiness against Joe Wilson - is still on his record. And I am left wondering, “why?”

Why pardon the guy at all if you don’t believe he shouldn’t be punished? Why punish him just a little bit? Bush says it is because he found the “punishment excessive”. Is he trying to sound fair minded? Trying to paint this as other than protecting one’s own?

If so, whose benefit is he doing that for? Democrats? I doubt they will be convinced. Is he doing it for his Republican base, who likely agrees that Libby’s sentence was just an opportunistic axe-job? If so, why? The only precedent he sets is that he won’t totally protect his friends and do the proper thing. Just kinda.

What the hell kind of impression is that to make? You don’t sacrifice the lamb. You just stab it a little.

Who is appeased in that equation? Not the deity waiting for the sacrifice. Not the lamb’s owner. For sure not the damn lamb.

That Bush erased the 30-month prison sentence from Libby’s record because it was excessive does not make him look fair minded. It makes him look either insufficient or tyrannical. Which, in turn, makes him look simply inept. And that is a precedent he has been consistently achieving throughout his administration.

And when this is how he treats his die-hard supporters, I cannot imagine that is an observation many will disagree with for long.

When slicing the spin from the meat of the matter, it’s important to bear in mind that sometimes outrage against a group is called for. When seeking the truth, one has to guard against the convenient but false notion that it always lies in the center. And always when we criticize the extreme rhetoric of both sides and their mercenary exploitation of its ferment, we best remember that the cause we champion is not to sustain moderation but to destroy ignorance.

It’s in light of all this that we recognize another elephant in the rooms of the White House and call foul against the extraordinary secrecy of this administration.

Already I can hear the hackles rising. For a long time, defenders of the White House - itself included - have attributed attacks against its procedures as partisan rancor, at best. Some of that’s valid. Most critical of these inaccurate accusations would be the blanket term that the White House “lied” to get us into war - a misperception that actually covers up some very important flaws in how the Executive’s intelligence and policy-making appartus functions. But in the case of the Bush administration being phenomenally and harmfully secret, their accusers, not their defenders, are the champions of truth and tolerance.

The most recent scandal is that the White House and Vice President Dick Cheney have been called on to cough up some documents pertaining to the domestic surveillance program, steadily refused, and then had to be subpoenaed. This time, the White House could not mask their ill behavior under a label of “partisanship”. The Judiciary Committee’s vote was 13-3, hardly down party lines, and included the three senior Republicans. This isn’t a case of Agnew’s “nattering nabobs of negativism” or an opportunistic Democratic Congress looking to throw scraps of their fallen enemy to the jackals. This is a real matter of keeping our democracy healthy.

President Thomas Jefferson allegedly called information “the currency of democracy”. He declared the free exchange of it to be essential to ensuring a healthy democratic body. And in the past, the freedom of information has been a heavy burden for an Executive tasked with balancing not only stewardship of that healthy democratic body but its national security interests as well.

How to keep the whole of the public as informed as possible while still keeping their enemies ignorant of the methods you use to protect them?

Presidents have sometimes claimed “Executive Privilege” in order to circumvent this. That’s the notion - and not a law, not a right, but a notion - that the Executive can and should do some things secretly from other branches in the interests of national security.

Sometimes, the investigation itself is so absurd as to enter the realm of the farcical and truly cruel. Clinton was absurd when he invoked “Executive Privilege” to keep his aides from having to testify about Lewinsky. Then again, it was absurd that they would be testifying for Lewinsky in the first place. Perhaps we should, in the era where spin and slander hold sovereign power over the wisdom and works of a politician, introduce the notion of “calling bullshit on it”.

In the case of today’s subpoena and the scandal surrounding, the White House cannot continue to act on such a notion. Gonzales called the dispute “competing institutional interests”. If he’s talking about a competition between the Constitutionally-ordained institution of the Legislature acting as the people’s representatives in overseeing the President’s activities and the new institution this White House has of covering up its shady dealings, he is right. If he is trying to minimize the importance of this issue, he is sorely wrong.

The matters the people’s representatives find the Bush administration closeted about are far more serious than oral sex and stained dresses. First it was an attempt to determine what Vice President Cheney’s energy task force - which included an understandable but possibly somewhat biased volume of oil and energy industry lobbyists - talked about. The GAO was after the documents surrounding that meeting, Cheney refused, threats of legal action were exchanged and, for the first time in his Presidency, Bush called on executive privilege “in substance”.

Then it was the 9/11 Commission. Again legal action had to be threatened to get the Executive to talk to the committee. And even then, the restrictions on what could be said and the accountability for saying it was strained nearly beyond belief.

Now at last we have the domestic surveillance program. A summary of this controversy - the President claims the ability to listen in on the communications of American citizens not only without a warrant, but without any oversight of the special court, FISA, that was set up to allow him to do so in the case of emergencies. Again, this is not a partisan issue - senior members of Bush’s administration who would proudly count themselves among the far right wing, such as then-Attorney General Ashcroft, vehemently objected to this program’s attitude and implementation.

Ashcroft’s replacement, Alberto Gonzales, was a champion of the program - as he had been on such issues as how torture laws don’t really apply either - and now has done little to nothing to provide forthright testimony to the Judiciary Committee. The Committee now has subpoena and, in this last hour, Bush has flatly refused.

So is this a molehill being made into a mountain? Let’s mine its core components.

The issues at stake: Energy industry talking about setting the energy policy of the country. Reforming the security response of the Executive. Constitutional rights are possibly violated by turning what Nixon did in a spasm of paranoia into a policy.

The question: Does the Judiciary Committee, at least privately, have the power not just in fact - they do - but in ideal democratic function to oversee such matters?

The White House’s consistent answer: No.

Molehill?: No.

This is a big issue. Our government was set up so that at least some elected representatives of the people could oversee these critical matters and now, in defiance of our Constitution, the Executive refuses, time and again, to all them to. It’s impeding government’s ability to function properly when that kind of attitude prevails. That’s the real threat to National Security.

It occludes our ability to see and therefore understand the methods and motives of those in power. Without understanding, we cannot act properly and without acting we make ourselves no better than the subjects of a monarch. No offense, United Kingdom - the whole “subject” thing is kind of debatable in your case anyway, right?

In order to maintain this clear perspective, we have to realize that not all scandals are spin. Some are as outrageous - or more so - than they seem.

…………

Fun postscript. Jefferson was the first President who invoked Executive Privilege in order to hide information on the basis of National Security, and had to be subpoenaed.

Not all scandals are spin, but it seems spin gets us all in the end.