Well, I'm off for vacation, so I probably won't be blogging much for the next few weeks. So much left to say about the gas "crisis" like how the taxpayers will have to bail out GM and Ford if prices keep going up and consumers react, meaning Detriot's big bet on SUV's will fail. But I'll be back.
Bill O'Reilly made the link to national security and called for the feds to consider taking over oil companies if they don't reform their evil ways of making money in a free market. He also went one further and said that the oil execs should be jailed for war profiteering. This is on top of his accusations of price gouging, and other nonsense. Sorry but I caught all these on his radio show so I can't link to anything. Bad reporting, I know, but this is a blog.
I don't know much about Bill so I can't discuss him in general. On this point though...One, how can you be "gouged" on a voluntary purchase? I can't be gouged on M&M's because I can choose not to buy them. Now, maybe, maybe I could be "gouged" on potable water after a disaster, but that's another discussion. Two, he also said the goverment was in league with oil companies because higher gas prices mean more revenue due to the gas tax. Except...gas taxes are mill levies, meaning they're static. If the tax is $.15 a gallon then it's $.15 on $1, and $.15 on $3. If anything, higher gas prices mean less consumption, and that leads to less revenue. Maybe that's while we'll see the government "save" us from this crisis. The good news is that as gas prices go up, the percentage of that price that's because of taxes goes down. Meaning that our already global low in gas tax as a percentage goes down even more. See, it's fun to play with math. Fianlly, "war profiteering?" How about Google, they're making a profit? Or any of the other of the 5000+ public companies that are making money. In fact the market has been on a bull run for years, and is now approaching "longest in history" status. Personally I think this shows just how strong and resiliant our country is. But "war profiteering" now he's accusing people of crimes...for making money...legally. Oh well, here we go...
Now $3 gas is a "matter of national security." Look I sympathise with Bush here. I really think he doesn't want to do anything on this (we may have different motives, but I think we agree on the end plan, let the market work this out), and he's right. But his speech, as reported here, is just off the mark, and makes matters worse. If not filling the strategic oil reserves makes people think something is happening fine, whatever. But if access to oil is an issue of "national security" then it actually makes more sense to fill the strategic oil reserves now. Keep oil on hand for the military. However, I don't see how $3 gas has anything at all to do with national security. Why add gas to the flame (thank you, thank you very much)? Making a national security issue out of a consumer good only adds more irrationality to the issue. I've argued in the past that its dumb for us to fund our enemies with oil profits, but that was the case at $1.50 gas, why is it an issue now? Personally, I think Bush was making a subtle distinction. Our use of oil is a matter of national security (and I largely agree), but that he also has a plan to bring down the cost of gas. However, in the same speech, I'm not sure the difference will matter to people. You'll hear more people now talk about $3 gas being a security issue than not.
I also liked this part, "and that is to encourage conservation..." But Cheney said in a speech in Toronto, that "conservation may be a sign of personal virtue, but it is not a sufficient basis for a sound, comprehensive energy policy". I personally don't care which side of the equation you fall on, "government mandated conservation" or "free markets will force conservation when the time is right" but stick to one. What's happening now is that all those folks that mocked conservation as market meddling, now want the government to do something when the market forces prices higher. Granted this isn't new. People have always wanted all the upside of market forces, but with a safety net to protect them from both the market and thier own choices when it starts to move against them. What's happening now with gas prices is exactly what pro-market, anti-government, anti-environmental, whatever you want to call them, said would happen. Gas prices would go higher as supplies went down, or world-wide consumption increased. We've had a great run of cheap gas, it may come back, it may not. But conservation is also an economic choice. At some point the two (virtue and cold hard economics) would connect, and maybe that's now. If you own an SUV that gets 10 miles to the gallon you can cut your gas expense in half or even a third by buying a car with better mpg. You conserve gas by making an economic decision. And/or the market develops an alternative fuel to bring prices down. In any case, America lessens its "addiction to oil". Where in that equation was the government? Markets work. But they go up and down.
If people truely believe that oil is a matter of national security then the Feds should do what they're supposed to do with these issues. Invest heavliy in our protection. Spend the money to develop alternatives. A "Manhattan Project" to get us off of our "addiction." (I don't think its a matter of national security, and wouldn't support it. The market is really working here on all fronts. My point here is that actions don't match words.)
But I just don't think with $3 gas China's going to invade. Let's not add to the insanity.
Apparantly all those folks Hastert's trying to protect aren't having to make hard choices after all. One in four cars sold in the first quarter had V8 engines, the same as it was last year. This news comes as gas price "conerns" are high enough to warrant special taxes and commissions. Granted it may be early in the cycle, but gas was above $2 a gallon for all of last year. If Hastert's "American families" really had to make "tough choices" wouldn't they be making them?
It turns out that high gas prices may be my fault. To all of our loyal readers, and drivers everywhere, "I'm sorry."
Transcript:
O’REILLY: Prices have doubled in the USA and continue to go up. What say you sir?
SNOW: Well, this is where you get to call me a pinhead again, Bill. You’re absolutely right, supplies are high. But a couple of different things going on.
Different types of oil that are in supply. Oil refining costs have gone up a little bit. But let’s be real about this: 60 percent of the price of a gallon of gasoline right now is crude oil prices. Crude oil over $70 a gallon right now. That gets written into the price. Why is that per gallon crude oil price so high? Because people are jittery.
You’ve got a guy in Iran saying we’re going to build a nuclear weapon. You’ve got people complaining about Donald Rumsfeld and the Pentagon. There are jitters about the stability of the Middle East. Those subside and a number of people say this, analysts in the industry, the price goes down again.
Ok everyone, my bad. I've complained about Rumsfeld, and I'm concerned about stability in the Middle East. I don't know how I could be so reckless. Ok, here we go...Rumsfeld is a great guy doing a great job! The Middle East is also great, and I don't see any cause for worry. It's like a mini-America over there.
Now quick, run to the pumps, did the price of gas go down?
And I mean "caves" in the lightest sense. Any President would do the same. Still, I think his long held point that "gas prices are high because global demand is rising faster than global supply and that the problem cannot be solved overnight" is correct. That and its the company's right to charge whatever they want for their product. Something as crucial as gas should cost more than bottled water, but it doesn't. So now we're all set up to hear Congress set up public forums to trash some execs. This will cost the tax-payers money and solve nothing. Hooray, gas just got even more expensive!
In the same article, the Dems hope to use this gas "crisis" and turn it into election roses. Two things. One, the Dems have yet to show that they know how to capitalize on anything, and its optomistic to assume they've figured out how now. Two, with voting districts drawn as they are, even if on the gross level, Dems have more votes in Novemember, there still won't be much turnover. Most seats are just too safe to turn on the margins.
To quote Hastert, "Anyone who is trying to take advantage of this situation while American families are forced into making tough choices over whether to fill up their cars or severely cut back their budgets should be investigated and prosecuted,"
Ok, let's take a look at how bad this "tough chice" is and how "severe" the cuts must be. This is not at all scientific, but here goes. I don't remember hearing much griping about gas at $2 a gallon. If it's now $3, then that's $1 more per gallon in cost. Figure if your car has a 10 gallon tank, that's a whopping $10 more per fill-up, or less than a movie ticket. Ohhhh, the humanity. Yes, if you have a Ford Expedition with its 8 mpg city rating (which is actually less given EPA flaws) and 44 gallon tank its almost $50 dollars more per tank, and you're filling it up a lot, but that's the consumers choice. Sell the Excursion, take that money, buy a car with better mpg, make some money and save at the pump. Or not. I don't see why Congress has to protect the consumers abiliy to own whatever they want.
This is far from crisis. An electoral issue maybe, but not a real one.
It seems that the GOP is doing its best to close the gap on the "liberal" boogieman. Here Specter has the brilliant plan of "windfall" taxation on the oil companies. Brilliant move. Historically, a great strategy is to mimic the failures of those you defeat. "Hey, someones successful, lets punish them!" What the oil companies have found out is that they can charge more for their product, and they are. What is now happening is that OPEC has realized that they are undercharging for their product, so they are also adjusting their prices upwards. At some point the consumer will react and/or a substitute will evolve.
What is clear, is that maybe we can actually shrink goverment spending by cutting the billions in oil company subsidies that we currently spend to help these fledgeling, helpless businesses. Seriously, if there's one place to help the budget its in cutting the subsidies. Everyone wins. Spending goes down, corporate taxes do not go up, everyone gets what they want.
Other highlights from the article...
He laments industry consolodation. Proving his economic acumen he now realizes that decreasing competition leads to less price competition. On an intersting side note, breaking the companies up will become a topic of discussion. I'm generally against this type of action, but the barriers to entry are so high that its difficult for a normal free market solution to work. Meaning, if the oil companies keep prices high, new competition will likely not develop to take advantage of the high profit margins. However, substitution can still occur. So stay tuned.
Dem Levin plays a very weak "heads I win, tails you lose" card. He says it would be helpful if Bush called the oil execs in for a talk. Then says Bush would never do that. Then, and here's the kicker, says even if Bush did do what he says he wouldn't, it still wouldn't matter because Bush would chit-chat and not deliver any real message. See there's no way for Bush to win. If he calls them in as Levin wants and it works, it was Levins idea. If Bush calls them in and it doesn't work, it's because Bush went all gushy on them. If Bush doesn't call them in, then Bush is soft on his oil buddies. But it doesn't really matter because no one pays attention to Levin anyway.
This is a no brainer, if you accept public money you have to keep the gay students. If you don't want gay students, don't take public money. It's exacly the same with Rumsfeld v. FAIR, which was unanimous + 1 since I agreed too. My question here is will the Cumberland case also be unanimous if it hits the SCOTUS docket? My bet is no.
Finally, since I'm trying to lose all my friends, the Boy Scouts should have to allow homosexuals and athiests as members as they too get federal money. Again, if they don't want to allow these types, don't take the cash.
Georgia has a great idea. Teach an actual bible class in High School, with "statewide guidelines and earmark public dollars" This is just a bad, bad idea. One, I think this version is un-constitutional, it goes much farther than allowing a bible study club to use a room after school. And two, how can anyone think its a good idea to allow teachers and state bureaucrats to determine how to teach religion to students? Third I can only imagine the pandora's box (quick nod to Greek religion, no... "mythology") that this move, if (when) the Supreme Court upholds it. Does every faith get a publicly funded bible class? What about sub-groups? Will there be a Babtist class and a Greek Orthodox class? What about the Wicans? With all the cuts being made to classes, art, music, PE, they're going to increase something that can and should be taught by parents and churches? Genius. Do you really want a union teacher teaching your child religion? Everyone loses here, everyone.
For all those who wish to bring church and state together, there just isn't a worse idea floating around today than this.
I was reading about this killer in Main, the guy who killed two people then himslef. First off, tragic. Tragic all around. It appears that the only link between the two victims is that were both listed on a sex offender registry. First, when it comes to sex offenders, I want to quote something an old friend of mine said a long time ago about someone else, but it applies here, "if I saw that guy walking down the street I'd shoot him with a shotgun and not think twice about it." I mean it, it would take 10 guys to pull me off of one, and I'm little. But there's this. One of the victims was apparantly on the list becasue at 19 he had sex with someone uder the legal age of consent. A problem yes, but is he in the same group as a 45 year old man crusing the play-ground with a "lost puppy" story? No. What he did was wrong, but I don't think he deserved to have to spend his life registering on lists, and, here, wind up murdered. The problem with mandatory sentencing, is that if an 18 year old senior has sex with his underage girlfriend at prom, he's on the list. It's also a quirk of law that if 16 is the legal age of consent, then a 50 year old man can have sex with her and not be on the list. Personally, in the second case I'm beating the hell out of the guy, probably with a baseball bat. Seriously, that's just plain sick. I don't know why but this has been coming up in the media lately, with the story of the baskeball player who went to jail for having "relations" with a minor, to Dr. Phil who had a story about a 45 year old and his 16 year old girlfriend (don't ask, Mrs. Blogger is a fan), and now this. When legislators judge from the assembly, it creates problems. I have to admit, I'm against capital punishment, but if true sex-offenders get killed, my day doesn't change. However, this list business is wrong. I don't have an answer, but I don't like this one. Extend jail time (I favor life without parole for rapists and child molesors-F@$k them, they got no role in society), extend parole, whatever, but allow for judges to determine individual cases, not politicians.
I will now douse myself with bleach.
Bush has never listened to his generals before, so it comes as no surprise that he's strongly endorsing Rummy, even with 6 retired generals, including 4 who served under Rummy in Iraq calling for him to step down + one Republican Senator.
All jokes aside, if 6 generals, knowing the negative impact on troop morale, citizen support, and positive impact of embolding the enemy, etc that coming out hard against the Secretary of Defense would have, still find it neccessary to go vocal on this, well, it makes me wonder how bad things have to be. If it were 6 extreme lefty dems, then I would tend to blow this off, but its not.
I also think it clearly shows that you can support the troops, want to succeed in Iraq, but still criticize the show. I believe Bush can fix this. But he will have to show the kind of courage and decisiveness he's lacked. Much like Linclon, he needs to make wholesale changes, promote quality, demote the incompetent, and get control of this. You can like someone and fire them. You can be a good friend and still do what's right for the nation. Lincoln took a beating when he changed generals in the middle of the Civil War, but it was the right move. Burns was getting clobbered, and Grant turned the war around.
I thought this site was fascinating. I don't know the group sponsoring the site, or the group gathering the data, but the maps are cool. I'm a sucker for maps. They're my USA Today Graphs.
Word, 'tweens: Go get your own pop culture. Spending your lunchtimes, girls, singing "We Are Family" while the boys ask each other again and again "Aren't you a little short for a stormtrooper?" Blogger, is this what we won the Manner Banner for?!
This is what Hamas calls "legitimate". Again, is there a clever strategy at foot or are these just brutal killers who seek to destroy what they hate?
How can anyone support another penny for the Hamas government? I suggest the palestinians put their begging bowl away.
Some quick thoughts on China and it's Peaceful Rise slogan. While I believe its mostly true from a US stand-point, I would be very concerned if I was Taiwan. Or differently, China is not a threat to harm the US, but it does want Taiwan back. If Stalin is right that Iran is bolstered in its actions by the US being distracted in Iraq, China must surely feel the same way. Given our inaction in N. Korea, and the fact that China tests US loyalty toward Taiwan regularly, including just today, I think a move coming. At some point China will correctly guess that the US will not go to war with China over Taiwan, period. A President, and the American people will not risk a major confrontation, possible nuclear, with China over Taiwan. Furthermore, the US cannot afford sanctions, and is also compounded by the fact that they own a lot of our debt, and buy it as it comes avliable. They will point out that Hong Kong is doing fine under Chinese control, so Taiwan shouldn't be any different, but just as Hong Kong is under Chinese control, it is neccessary for Taiwan as well. This will give enough cover to a US president to allow re-possession.
Again, global politics is zero-sum. Other nations looking to rise, even peacefully, will test us, and when we're stretched thin, the tests will come faster. First there was N. Korea, now Iran, and my bet is China is coming. Part of me wonders how much China is controling these issues behind the scenes. The problem with answering the "are we stretched too thin" is that answering it with force only stretches us further. Re-raising the question, with more probablility of it being correct. If our actions are being manipulated so that others may grow we have to start changing the game. Arming Taiwan will firmly check China's ambitions in the region, place them under pressure, allow Taiwan to grow at China's expense, and get China to finally act on nuclear proliferation.
Here's the way I see the election shaping up.
Vote for the party that is self-destructing, or...
vote for the part that already has.
I don't know about you, but I can't wait to get into the booth.
To further the Stalin's discussion about what to do about Iran, maybe the answer is find someone to trust. This article questions the about the immediacy of an Iranian nuke. Its something worth considering. My main source of information comes from the White House, a White House that was wildly wrong on just about every accusation and time-table established for the Iraq war. Does it make sense to trust them again? When the stakes are this high, I would like to be able to know who to trust. I can't trust Bush, and I have no idea what agenda these analysts may have. This the immeasurable part of the damage this administration has caused. With all the terror alerts, talks of mushroom clouds if I vote democrat, how gays will destroy America, and any number of boogiemen they've created, I just don't jump when they scream "look-out" anymore.
As far as Iran, on the surface it's another blustering US hating middle-east leader spouting off about how tough they are and how they're not afraid of the US. Is this more talk? If they were developing nukes, why be so brazen about it? Why not wait until after the first test? Is this more about looking tough than being tough? Are they baiting us? Certainly Chalabi and Curveball knew how to get the US to do their bidding in Iraq, what if Iranian leadership is attempting the same? Maybe they feel the best way to quell the dissidents is to have the US bomb Iran, uniting the country with the Mullah's and against the west.
If you can manipulate he powerful, you don't have to be powerful.
The Bush/ Cheney regime that gave us gems like, "Mission Accomplished," "We will be greeted as liberators," and "The insurgency is in its last thoes," now gives us, "We have found the weapons of mass destruction."
The Washington Post article says the Pentagon knew two full days before Bush made that statement that it wasn't true. The good news is that they didn't keep this to themselves, they sent a report to Washington, the bad news is that it was ignored. Not only that, but the report was shelved while the administration continued to point to those trailers as evidence of WMD's, and as proof of justification for the war. There's a word for knowing something to be false but saying it anyway, I just can't think of it.
However, the White House is quick to respond. However, McClellans points bring up one biggie. McClellan said information for public reports from the CIA comes from many sources and takes time to vet." Which begs the question, if it "takes time to vet," and everyone knows this, why didn't the President give it time to vet? Why did he rush to make a statement? If someone give me information that takes time to vet, I don't go rushing to make a public pronoucement as strong as he did. That's just setting yourself up.
And some wonder why people are losing trust in W. If I had a friend that was repeatedly this wrong in business, I'm not so sure I'd invest in his next venture.
Yet another liberal has called the occupation of Iraq a mistake and calls for troop withdrawals.
“It was an enormous mistake for us to try to occupy that country after June of 2003. We have to pull back, and we have to recognize it.”
— Newt Gingrich at a speach at the University of South Dakota
Traitor!
The obvious outcome of the Iranian crisis was posted on this very Blog by this very Blogger some five months ago. Diplomacy only works when it is conducted between partners who both truly seek a compromised settlement. This has never been the case with Iran (or any other dictatorial regime). This is why diplomacy in these cases has always been a sad and pathetic farce. Now we are at the inevitable climax so what do we do now? Iran will have the bomb in a very short time. Is that result so unpleasant that extreme measures must be taken now? Or is it only an unpleasant result that we can manage effectively enough allowing us the luxury of merely tut-tutting our way through this along with the Russians and Chinese? I ask the gifted minds of Hyrdrablog to weigh in.
Bush's numbers hit a new low according to this poll, more numbers here. Yes, yes, Stalin, I know you don't believe polls. But I'm going to talk about this anyway, you can't stop me with your cynicism. A few things strike me about this poll, and what options Bush has. First, this low comes not after any particularly bad news. It seems to be a sign of gradual erosion which must be troubling to the White House. If he dipped on some event, the 3000th soldier dying in Iraq, for example, then that could be viewed as a dip, that would recover as the event passed. This is different. Also, the number of people who strongly disagree is more than twice the number of people who strongly agree, and greater than his net approval number. Its even more glaring if you look at the trends in "Strongly Approve" and "Strongly Dissaprove." At some point he falls off a cliff. Your seeing some of the fall out in the way his party is treating him, both on the ports deal, and in Specter calling for him to explain his roll in the leaks.
The problem is how to reverse this trend. In the past, the GOP found a new group to viciously attack to bolster numbers. Those who questioned Iraq, homosexuals, 75 year old lawyers, you get the picture. This seems to be the plan with illegal immigrants. But this group has some problems. One its not a small group like gays. The millions of legal hispanics are deeply connected to the illegal. They vote, they march, and they remember. They have the numbers to move elections, especially when the GOP/Dem balance is so close. Especially in Texas and Florida. Two, there's no easy constituency to back the attack. Religious groups are mostly in the lets not watch them suffer group, putting them at odds with House Republicans. Businesses want them, and hispanics are the fasted growing group in the country, and they further divide the religious base. Moderates don't care, and this concept of a wall is so distaseful that building it will destroy the GOP. This is the crux of the problem. Taking a harsh line on immigration appeals to the base that is largely the group that gives him his 38 percent rating. However, in order to improve that rating you have to reach out beyond that base, and ease the hard line against immigration, but doing so risks the base. If you fail, you lose the base, and your number goes down even more.
This immigration issue has wheels. A misstep here, or more accurately, more missteps here, and the GOP may lose the hispancs for years, while further consolodating the dem base. This may mean that this GOP nirvana over the last 8 years is a blip.
Since I'm an all powerful blogger and everything is my business, I'm weighing in on the Favre "Should I Stay or Should I Go Now" decision. Favre was one of my favorite players, no one looked like they enjoyed the game more, and he had the talent to hook you in as well. Going from that alone, I think he should call it a career. When the joy of the game is your hook, and you have to mull over this long if you want to play a final season, the answer is already clear, your heart just isn't in it. Green Bay is not a Superbowl contender. What's going to happen during that mid year 3 game losing streak? The media and the fans will pummel Favre, saying he should have retired, nailing him for lack of emotion, and he'll feel it. Granted there's always that storybook ending, where he leads a sub-par team deep into the playoffs, but I think that's a serious long-shot. Plus, as leader, he should exude optimism, not ambivilance.
That's my take. Retire, the fact that you have to think this hard is your answer.
Just to be clear, I don't think this Libby thing will hurt W. The dems just aren't able to capitalize on this type of information. It will hurt him with the libertarians, both of us, but that's about it.
But as I read this article two things come to mind. The White House's defense seems to be, Bush can't leak classified information because only he determines what that is. Sort of like Bush can't lie because if he says something its true. I love the Orwellian circularity of that. So when Bush says leaks are bad, and he doesn't like them, and he will find the leaker in the Plame investigation, well maybe he should call Charlie and O.J.
But my favorite is, "Because of the public debate that was going on and some of the wild accusations that were flying around at the time, we felt it was very much in the public interest that what information could be declassified be declassified, and that's exactly what we did." So in all the record amount of classified information this administration has created, the one, crucial, piece of information that would help eductate the american people, and cut through all the ambiguity as we prepared for war was a spy's name.
Just to recap, the President can decide when its ok to wirelessly tap all calls, even those that are solely domestic (this warrants its own entry), the right to ignore congressional mandates, is not bound by law, and can't disclose harmful secrets because only he can decide what's secret. Sort of sounds like W's not above the law because he is the law. Ahhh, this must be the democracy the founding fathers envisioned.
It looks like W may, just may, understand why his numbers are so bad. This administration has left conservatives behind on the one issue that everyone gets...government spending. Perhaps he has also tweaked a few civil libertarians with his Patriot Act and wire tapping (I'll allow the much more adept Mr. Blogger to address that), but that is not a constituency large enough to move poll numbers. Bush is down because conservatives are fed up. We could have elected John Kerry if we wanted dumb ideas with huge price tags. So maybe a light has gone on somewhere. Bush says he is going to uncap the veto pen if his spending cuts are not implemented. I so hope he means it. Because if he does and if sound bites of the shrill and unlikeable Nancy Pelozi calling the budget "immoral" are trumpeted by a proud media, the prodical base may just return...and bring some friends.
Come on, George. Make our day.
There is no doubt that W has been a big disappointment to conservatives who favor a smaller, less intrusive government. But on one issue he is dead on. Making the tax cuts permanent. We grew our way out of the last deficit and we'll grow our way out of this one as well. However, let me go on this meager record as saying that I'd prefer we spending cut our way out of the current deficit, but I don't see that happening under any administration.
Just anther example of how party not issue defines what happens in D.C. No GOP talk of First Amendment rights for a bill that the GOP President strongly supports. No talk of too much spending in politics by the Dems who appear to benefit most from this. The fact that both parties have switched places so soon after the McCain/Feingold bill because of who benefits only shows how brazen the hypocracy has become.
I believe SM called FISA an extremely limited tool. Maybe not. This WSJ aritcle shows otherwise. I highlighted some key points. I'm not saying this guy is a saint, nor that he's innocent. But reading this is chilling.
Volatile Formula
How Patriot Act
Helped Convict Man
In Baby-Food Ring
Mr. Jammal Faces 10 Years
After Terror-Probe Tapes
Are Used in Criminal Trial
A 14-Minute Rant Against U.S.
By JOHN D. MCKINNON
April 4, 2006; Page A1
Three months before the Sept. 11, 2001, attacks, police in Tempe, Ariz., began investigating information from Wal-Mart Stores Inc. suggesting that a local grocery wholesaler named Samih Jammal was part of an organized ring stealing baby formula from Wal-Mart stores and trucks.
The investigation proceeded uneventfully until shortly after 9/11 when it was turned over to a joint local and federal terrorism task force. Phoenix police, in a written report later provided to Mr. Jammal as part of his prosecution, said they had "confirmed" that he "had significant connections to terrorist organizations, including al Qaeda." At some point after that -- prosecutors won't say precisely when -- authorities got a warrant to tap Mr. Jammal's phone and bug his office.
It wasn't an ordinary warrant, the sort routinely authorized by judges in response to applications from police and prosecutors who want to eavesdrop to catch crooks. It was a national-security warrant authorized by the 1978 Foreign Intelligence Surveillance Act, giving authorities much more leeway, and giving wiretap targets fewer rights.
Mr. Jammal, a 36-year-old U.S. citizen born in Lebanon, was never charged with any offense related to terrorism. Yet evidence collected in the FISA eavesdropping played a role in his conviction last April on federal charges focused on fencing stolen baby formula, for which he was sentenced to 10 years in prison.
His case sits on the fine line between the government's responsibility to go all-out to prevent terrorism and its duty to protect the constitutional rights of American citizens accused of crimes. It's a line that has blurred considerably since 9/11 and the 2001 passage of the Patriot Act. It allows authorities to use FISA wiretaps authorized by special courts not only to gather foreign intelligence but to investigate domestic crimes.
Mr. Jammal is appealing, contending that FISA evidence used against him was illegally obtained and crippled his defense. He says the charges against him were trumped up by a government determined to show progress in the war against terror. "It's baby formula of mass destruction here," he said at one pretrial hearing.
With an ordinary warrant for electronic surveillance, authorities must show probable cause that the target committed a crime and limit eavesdropping to conversations about crimes. They must also eventually notify those who were bugged (even if they aren't accused of a crime) and must give defendants complete access to the warrant application, court orders and any actual recordings.
To get a FISA warrant, in contrast, authorities need to persuade a federal judge that there is probable cause that the target is an agent of a foreign power such as a terrorist organization. For U.S. citizens, prosecutors also must show that some crime might be involved. Armed with such a warrant, authorities can eavesdrop on any conversation, regardless of whether it involves a crime. They can withhold from defendants the basis for issuing the warrant, hindering legal challenges to the FISA evidence. And they can restrict defendants' access to the classified transcripts and tapes, which makes it harder for the defense to parry the government's charges or mount its own case.
The FISA warrant in the Jammal case distinguishes it from the controversial warrantless wiretaps that President Bush authorized the National Security Agency to conduct in pursuit of terrorism.
Constitutional Question
Even with warrants, critics fear defendants' rights to a fair trial will be eroded, as authorities use intelligence-gathering techniques to pursue criminal cases. "If evidence is procured by methods that wouldn't stand up to the Fourth Amendment, the courts are going to have to stop it," said Rep. Jerrold Nadler of New York, top Democrat on the House Judiciary subcommittee on the Constitution. Cases like Mr. Jammal's "should be challenged in court," he said. "That kind of thing shouldn't happen."
Andrew McCarthy, who prosecuted Sheik Omar Abdel Rahman on terror charges in New York, says the old dividing wall between foreign intelligence operations and domestic criminal investigations doesn't make sense in the fight against terrorism. "They usually commit an array of garden-variety crime in the course of trying to conduct terrorism operations," [Thus everything is fair game-Ed] says Mr. McCarthy, now a senior fellow at the Foundation for the Defense of Democracies, a Washington-based group that studies national security issues. That means investigating crimes and gathering intelligence through plea bargains and other techniques can be an important tool.
Paul Charlton, the U.S. attorney for Arizona whose office brought the case against Mr. Jammal, says in an interview that existing procedures properly balance the rights of defendants with the government's need to maintain secrecy to protect national security. He notes that, as in all FISA cases, a federal judge approved the initial application for the Jammal warrant privately. Prosecutors were "scrupulous" about avoiding suggestions at trial that Mr. Jammal was linked to terrorism, he adds, trying to ensure he got a fair trial.
Prior to passage of the Patriot Act, court interpretations required that the "primary" purpose of a FISA warrant had to be gathering foreign intelligence. The Patriot Act, passed in October 2001, broadened the rules so that intelligence gathering need only be a "significant" purpose of wiretapping. Evidence obtained under FISA warrants has been used in a handful of cases involving charges not directly related to terrorism, including at least one immigration proceeding.
Mr. Jammal's case shows how much the legal environment changes when FISA wiretaps enter the picture in criminal cases. His first two court-appointed lawyers stepped down in part because the secret tapes required them to get security clearance. Even with such clearance, however, they wouldn't be able to discuss the tapes with their client. His third lawyer, who did get clearance, was able to review only translated summaries, not transcripts, of selected wiretapped conversations. At trial, the government played the jury a recording made under the FISA warrant that proved damaging to Mr. Jammal: a rambling 14-minute diatribe in which he rails against the U.S. government in Arabic, and talks about fleeing to Lebanon if officials came after him for unpaid taxes.
The case against Mr. Jammal began in June 2001 when Wal-Mart investigators, frustrated by a rash of baby-formula thefts, gave Tempe police detective Tom O'Brien information about a recent attempted theft in Midland, Texas. For reasons that aren't clear, that led to a police stakeout outside Mr. Jammal's business, located in a warehouse complex in the Phoenix suburb of Tempe. Checks of license plates revealed people with shoplifting records showing up to do business with Mr. Jammal.
Sent to U.S. for College
Mr. Jammal grew up in Lebanon and Kuwait. His father owned fruit and vegetable export firms, a farm, a small phone company and a school, according to Mr. Jammal. The family was prosperous enough to send Mr. Jammal to the U.S. in 1988 to study at West Virginia's Marshall University, named after the nation's first chief justice, John Marshall. Wiry and athletic, Mr. Jammal played for a while on the school's soccer team. The family businesses suffered in the early 1990s, and Mr. Jammal began working odd jobs to put himself through school, according to Mr. Jammal's wife, Gretchen, who grew up in Ohio and whom he met while attending Marshall. After college, Mr. Jammal gravitated toward the business of selling baby-formula on the advice of a friend, and moved to Arizona starting in 1994 to live near a cousin and savor the warmer weather.
Mr. Jammal joined a number of other entrepreneurs -- some of Middle Eastern origin -- who were buying up large quantities of formula at big chain stores, which often sold it as a loss leader. The brokers then sold to wholesalers who, in turn, resold to smaller retailers, who often served low-income families participating in federal food-aid programs. None of this is illegal, although some manufacturers raised concerns about the practice. Taking baby formula out of the original packages and repackaging for resale can be a crime, however. In 1998, Mr. Jammal pleaded guilty to a single charge of improper repackaging of baby formula. He got three years' probation and a $1,000 fine.
Big retailers and formula manufacturers sought to choke off the gray market in baby formula -- for instance, by limiting the amount of formula that could be purchased off-the-shelf at one time. Still, Mr. Jammal's business, Jamal Trading Co., thrived. He says he took advantage of loss leaders at big-box stores and also distributed cereals, juices, diapers and other grocery items. He opened several small retail stores in Arizona. In May 2003, unaware that he had been secretly indicted, he moved his family into a $550,000 suburban home in Mesa, Ariz., where he kept a dozen sheep and goats.
Meanwhile, federal authorities say they got interested in Mr. Jammal in October 2001 when they happened to overhear him on a Drug Enforcement Agency wiretap of Osamah Yacoub, an immigrant from Jerusalem who was living in Houston. The two were talking about the baby-formula business, Mr. Charlton, the U.S. attorney said. Mr. Yacoub later pleaded guilty to a charge related to methamphetamine trafficking and cooperated with the government in its prosecution of Mr. Jammal.
Around the same time, according to a Phoenix police affidavit, a confidential informant told authorities that Mr. Jammal was trying to "facilitate the release of a non-U.S. citizen who was in federal custody" -- Malek Seif -- and smuggle him to Mexico. Mr. Seif later pleaded guilty to falsifying immigration and Social Security records. Through one of his appeal lawyers, Mr. Jammal said the story is not true. "Someone made it up," said the lawyer, Scott MacPherson.
A 9/11 Hijacker at Mosque
Federal authorities won't say exactly what led to Mr. Jammal's case being turned over to the terrorism task force. Mr. Jammal suspects one factor was that he and Mr. Seif attended a Tempe mosque where one of the 9/11 hijackers worshipped briefly -- Hani Hanjour, a Saudi Arabian who was aboard the American Airlines jet that crashed into the Pentagon. Mr. Jammal, who says he has no sympathies with terrorism, says he expressed skepticism about Mr. Hanjour's culpability when Federal Bureau of Investigation agents came to the mosque shortly after 9/11.
Beginning in December 2001, authorities devised a sting aimed at Mr. Jammal and his associates. Mead Johnson, a unit of Bristol-Myers Squibb Co. and maker of the Enfamil brand, gave police posing as middlemen baby formula to sell to Jamal Trading Co., representing it as stolen. Mr. Jammal didn't buy formula directly in the sting, and typically insisted that associates get signed statements attesting that any formula they bought wasn't stolen.
But police did sell 1,400 cases from the back of a Wal-Mart truck to Mr. Jammal's partner in several businesses, an Egyptian-born businessman named Tamer Swailem, in May 2002. Testifying against Mr. Jammal, Mr. Swailem said he expressed misgivings to Mr. Jammal about buying the formula in a cellphone conversation. "It didn't feel right....[but] finally we decided just to go ahead and have him [the agent] sign the paper," Mr. Swailem said. Mr. Jammal, who didn't testify at this trial, says in an interview that he told Mr. Swailem to "get the hell out" if he believed the formula in the truck was stolen.
In March 2003, Mr. Jammal was indicted secretly. Although the government refuses to say when it tapped Mr. Jammal's phones and bugged his office under the FISA warrant, summaries of about 20 conversations introduced in criminal proceedings against Mr. Jammal date from May and June 2003.
Clifford Fishman, a Catholic University law professor who has studied wiretap laws, says using FISA-authorized wiretaps to bolster an already pending criminal case "would be a clear misuse of the law." A spokeswoman for Mr. Charlton, the prosecutor, said that the "basis for the FISA intercept was unrelated to [Mr. Jammal's] involvement in organized retail theft," adding that it was conducted by a separate investigative team. She said officials can't reveal reasons for seeking the FISA warrant.
Mr. Jammal was arrested in July 2003, and charged with eight felony counts including interstate transportation of stolen property. The government now says that of the 27 defendants in the case, 22 were arrested; 18 pleaded guilty and four of them so far have been deported, while others are pending deportation; and four others including Mr. Jammal were convicted at trial.
Federal prosecutors used declassified conversations recorded under the FISA warrants to argue successfully that he should be jailed awaiting trial. They said his expressed interest in running for the Lebanese parliament proved that he had no strong ties to the U.S.
As Mr. Jammal's trial approached, the FISA-authorized wiretaps also posed difficulties for his court-appointed lawyer, Michael Reeves. The government insisted that Mr. Reeves obtain security clearance to examine classified evidence in the case and agree not to talk about the evidence with anyone, even his client. Mr. Reeves's doubts deepened when he got a look at the security-clearance application. Under penalty of perjury, it asked detailed information "like 'Have you ever missed a mortgage payment?' " Mr. Reeves recalls. "It made me nervous."
Ashcroft Weighed In
While Mr. Reeves pondered the matter, he asked the court to order the government either to reveal the basis for issuing the FISA warrant so he could challenge its legality or bar the evidence altogether. The government countered with an affidavit from then-Attorney General John Ashcroft who said telling defense lawyers why the FISA warrant was issued "would harm the national security." [And that was that-Ed]The federal trial judge, Frederick J. Martone, sided with the government.
Judge Martone allowed Mr. Reeves to withdraw and appointed Michael Smith of Mesa to take his place. But he, too, eventually pulled out, arguing that serving as an effective advocate for Mr. Jammal meant sharing the FISA evidence with his client -- something that would expose Mr. Smith to prosecution.
In October 2004, Judge Martone named Robert Kavanagh, a former Phoenix police officer, to represent Mr. Jammal. Mr. Jammal says Mr. Kavanagh inherited from the previous lawyers only a few CD's -- apparently a small portion of the surveillance videos that were made outside his client's warehouse -- plus a largely inaudible tape recording of one of the FISA conversations. With time running out and no more delays possible before the trial, Mr. Kavanagh, who had obtained a security clearance, reviewed classified summaries of some wiretapped conversations, prepared by FBI translators and agents. But he says he was unable to review many conversations.
The government was free to offer any declassified FISA-obtained evidence in its case against Mr. Jammal, and the defense also could use that material. Federal rules require prosecutors to turn over any evidence that might help the defense. Government lawyers didn't go through all the tapes, many of which recorded conversations in Arabic, but "reviewed all translated summaries of the FISA intercepts and found no exculpatory evidence," the U.S. attorney says.
At one point during the trial, Judge Martone questioned how the government could fulfill its obligation to turn over material favorable to the defense. "There isn't any lawyer who's making this judgment," the judge complained during one conference with lawyers, a transcript shows. But he allowed the government to use FISA-gathered evidence anyhow.
Seeking Help From Tapes
Mr. Jammal insists a review of the voluminous, classified FISA evidence would show that he warned would-be sellers that he would not accept stolen property [But we'll never know-Ed]. He also says that the tapes could have helped undercut the testimony of former associates who agreed to plea bargains and testified against him. Mr. Charlton, the U.S. attorney, counters that seven witnesses testified to Mr. Jammal's guilt. The government introduced evidence, for example, that Mr. Jammal was told by an associate that at least one supplier was stealing. Prosecutors also argued that Mr. Jammal should have known from the prices he was paying that he was buying stolen goods.
Over defense objections, the prosecution played for the jury a conversation recorded under the FISA warrant -- Mr. Jammal's 14-minute rant from June 26, 2003, about his sense that the government was after him, even though he didn't know he'd already been indicted [The Feds get to pick and choose evidence now-Ed].
"I'm trying to establish a business in Lebanon, because I know 80% to 90% that the day will come when the American government is going to come and ask me for taxes," he said, according to a translation presented in court. "OK, that's why, when that day comes, I'll tell them, 'F- you!' Then take everything, I'll pick up everything and go to Lebanon."
Jurors took six hours to convict Mr. Jammal and other defendants on most of the charges. A few days before his sentencing hearing in October, Mr. Jammal fired off a 43-page letter to civil-rights groups, hoping to generate interest in his appeal, and copied Judge Martone. "I fail to see how my conversation concerning the baby formula business could qualify as 'foreign intelligence,' " he wrote.
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