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December 27, 2005

Private Environmental Group Writes Law for Senator Chafee

Several years ago the Left and those carrying water for them created an uproar about energy company professionals advising Vice President Cheney's Energy Task force on the nation's energy policy. The critics said that these individuals couldn't possibly give objective advice - they're the problem, not the solution! Lawsuits were filed demanding the release of the Task Force minutes - suggestions were made that the oil companies were dictating federal policy. Democrats and environmentalists were furious that experts in energy production should be giving advice that could lead to a comprehensive energy plan for the United States, ignoring the fact that groups such as the Sierra Club were also consulted by the Task force. Eventually, recommendations came out, and an Energy Bill was proposed. Democrats and environmentalists then focused on defeating the measures in the Senate. They have been, to a large extent, successful - delaying any energy bill up until last year, over four years after the Task Force convened.

The Left's concern about industry participation in forming policy or law only extends to industries that they don't like. Take the environmental industry, for example. Currently, there is a debate in Congress over the Endangered Species Act (ESA). Critics of the Act say that it is outdated, too costly, and doesn't really accomplish anything. A small bird on the endangered species list might be able to stop a housing development slated for its only habitat, but if a family of endangered predatory birds enter that same area, guess what? Newly extinct small bird species, that's what! And man had nothing to do with it. But the environmental industry will fight to the death to prevent that housing development from being built. The environmental industry is itself now a very big business. Operating under a series of non-profits, environmentalists are one of the leading financiers of Democrats and the Left in the United States.

At the center of the current debate on the ESA is the critical habitat program, which restricts use in areas containing features deemed essential to saving an endangered species. Environmental groups have filed hundreds of very expensive lawsuits demanding habitat designation. Many of these designations happen after individuals and companies have invested significant amounts of money thinking that they will be able to use their land, be it for recreation or development. The result of the habitat designation is the loss of the use of their land. After designation of a particular habitat, there is no guarantee that the species that the habitat is designed to protect won't be exterminated by other outside forces - fire, flood, disease, predators, or failure to reproduce. Millions upon millions of species came into existence and became extinct long before man came around. Mother Nature operates under her own rules and in her own time. Man can have the best intentions in the world to save a species, or stop an earthquake, or prevent a flood, but if Mother Nature decides differently, there is little we can do to stop her.

According to an article by Eric Bontrager in the Wall Street Journal, the House of Representatives, under the leadership of Rep. Richard Pombo (R., Calif.), chairman of the House Resources Committee, has drafted and pushed through the House a bill "that would eliminate the critical habitat designation and adopt a new approach that involves landowners in planning ways to protect a listed species on their property and compensates them for any resulting economic loss". But the critical habitat designation is at the center of the religion of environmentalism and species protection. Hence the problem when the bill comes before the Senate.

Democrats and the Left screamed bloody murder when parties familiar with the big business of energy advised energy policy and lawmaking. But now the same thing is happening with one of their pet causes. A party at the center of the big business of environmentalism is advising the Senate on lawmaking - specifically the rewriting of the Endangered Species Act.

Senator Lincoln Chafee, a Republican in name only and a liberal and leftist at heart, along with Senator Hillary Clinton and four other Senators, has contracted a environmental non-profit, The Keystone Center, to craft the successor to the Endangered Species Act. While this organization is not as left leaning as the Sierra Club, it does toe the line as accepting man-made global warming, so you could say that The Keystone Center is as connected to the central tenets of the environmental business as an oil company is to the energy business. So an organization representing a significant source of donations to candidates that support their views has been handed the task of crafting policy and a Senate bill that could turn into law. Where's the outrage?

As to the future of the House legislation on the ESA, Keystone's ESA Working Group has already determined that "that the ESA is not protecting and conserving the habitat that listed species need to recover as effectively as it might", and:

"It was broadly agreed that any new proposals, in order to be successful, must accomplish three objectives: (a) do a better job biologically of protecting and conserving listed species; (b) reduce the concerns and uncertainties regulated communities face; and (3) lessen the transaction costs all interested groups incur as the ESA is implemented."

What will Chafee's bill eventually look like in relationship to The Keystone Group's proposals? Will there be a quid pro quo with environmental groups regarding future donations to particular Senate (and Presidential) campaigns? Hard questions - you bet. But the same was asked of Vice President Cheney. Shouldn't we also ask them of Senators Chafee and Clinton?

A Belated Merry Christmas!

Merry Christmas everyone, and Happy Hanukkah to my Jewish friends! Been busy with family things the past few days. Christmas was nice, although different with Dad in the hospital. Every day he seems to be doing better - much more coherent now, but still suffering from the effects of the fentynal patch and the morphine. He's now classified as allergic to opiates, with a warning about any drug that could cause hallucinations or major confusion as a side effect. It's not really an allergy, just hypersensitivity, but classifying it as an allergy will stop any future doctor from trying to administer such drugs in any amount, however small, without serious consultation. Dad's been essentially out of it and unable to eat for a week, so our biggest thing right now is feeding him enough orally to prevent having to insert a feeding tube. Slowly but surely he's eating solid foods again. I'm heading down now to feed him lunch. With a little luck he'll soon be strong enough to feed himself.

Much to comment on - I'll try to start posting again on current events later today.

Also, my friend Dr. Cathleen London is on Fox News' Dayside again this afternoon between 1 and 2 talking about keeping the holiday weight off. Please tune in - she's fantastic (and obnoxiously smart and beautiful, too!)!

December 22, 2005

Eliot Spitzer - Just you're Average Bully and Punk

The second remarkable story about the self-appointed Messiah Elliot Spitzer in this morning's Wall Street Journal is a short piece by the former director of Goldman Sachs John C. Whitehead, who wrote an op-ed in the WSJ earlier this year after Spitzer publicly accused Maurice Greenberg of felony crimes before the AG had even charged him. Now we know that Greenburg, in fact, committed no crimes. The best that Spitzer could do was suggest that there might have been something awry with an estate settlement 37 years ago. That issue, of course, in addition to not being a criminal or civil allegation, has nothing to do with what Spitzer was 'investigating' Greenberg for earlier this year. So Spitzer came out and publicly slandered and libeled Mr. Greenberg, forcing him to resign from his position, without having any facts to back up his assertions. Mr Whitehead pointed out that it was wrong for Spitzer to do that - that in America persons are presumed innocent until proven guilty, and that Spitzer hadn't even charged Greenberg with a crime when Spitzer publicly stated as fact that Greenberg had committed crimes. That op-ed earned Whitehead a call from Spitzer. Judge for yourself, but this shows that Spitzer is, at the very least, a seriously disturbed individual:

December 22, 2005; Page A14

Last April, The Wall Street Journal published an op-ed piece by me titled "Mr. Spitzer Has Gone Too Far." In it I expressed my belief that in America, everyone -- including Hank Greenberg -- is innocent until proven guilty. "Something has gone seriously awry," I wrote, "when a state attorney general can go on television and charge one of America's best CEOs and most generous philanthropists with fraud before any charges have been brought, before the possible defendant has even had a chance to know what he personally is alleged to have done, and while the investigation is still under way."

Since there have been rumors in the media as to what happened next, I feel I must now set the record straight. After reading my op-ed piece, Mr. Spitzer tried to phone me. I was traveling in Texas but he reached me early in the afternoon. After asking me one or two questions about where I got my facts, he came right to the point. I was so shocked that I wrote it all down right away so I would be sure to remember it exactly as he said it. This is what he said:

"Mr. Whitehead, it's now a war between us and you've fired the first shot. I will be coming after you. You will pay the price. This is only the beginning and you will pay dearly for what you have done. You will wish you had never written that letter."

I tried to interrupt to say he was doing to me exactly what he'd been doing to others, but he wouldn't be interrupted. He went on in the same vein for several more sentences and then abruptly hung up. I was astounded. No one had ever talked to me like that before. It was a little scary.

It's up to others to make their own conclusions. I have only set out here what happened."

All Eliot Spitzer is is a commonplace bully and punk, with some serious psychological issues. The frightening thing is that he is also the Attorney General of the State of New York, and is running for Governor.

The Messianic Eliot Spitzer...

The more one looks at Eliot Spitzer, the more despicable he becomes. The Wall Street Journal has two editorials on the self-appointed Messiah Spitzer - the first is the story of how Spitzer, after he publicly accused former AIG Chairman Maurice Greenberg of crimes in April (forcing his resignation), waited until this Thanksgiving to announce that he wasn't pursuing any criminal charges. Nice of him, since Greenberg didn't commit any crimes in the first place. However, sensing that this would be an embarrassment for him considering what he had accused Greenberg of in the first place, Spitzer, in a classic Cover Your Ass move, just released a 26 page document that alleges that there might have been a problem with an estate settlement that Greenberg was involved in with a New York charity 37 years ago! That's all Spitzer could come up with! Note that this document isn't a criminal or civil charge, just the suggestion that something could be amiss. Spitzer's spending taxpayer money on writing these kinds of pejorative essays? Absolutely remarkable. Here's the story from today's Wall Street Journal:

"Spitzer's Turkey
December 22, 2005; Page A14

"The evidence is overwhelming that these were transactions created for the purpose of deceiving the market. We call that fraud. It is deceptive. It is wrong. It is illegal."

-- Eliot Spitzer on ABC's "This Week," April 10, 2005.

"New York Attorney General Eliot Spitzer has decided against pursuing possible criminal charges against former American International Group Inc. Chairman and Chief Executive Maurice R. "Hank" Greenberg in connection with the giant insurer's accounting scandal, a person familiar with the matter said."

-- Wall Street Journal, November 25, 2005, the day after Thanksgiving.

Whatever else one says about Eliot Spitzer, he understands the news cycle. His accusations against Maurice Greenberg came on national TV and included the word "criminal." But he waited until Thanksgiving to leak word that he'd abandoned any criminal filing, when few would be paying attention.

He also covered his remarkable turkey day retreat by leaking that he would have new information against Mr. Greenberg. Well, last week Mr. Spitzer finally revealed the details of this new accusation, and the appropriate word for it is indeed turkey. And cold turkey at that, since it involves a case going back to 1968.

The new accusations aren't even formal charges at all, civil or criminal -- which is not surprising given the statute of limitations problem. Instead, Mr. Spitzer alerted the media to his recent 26-page report advising a New York foundation to investigate whether Mr. Greenberg had defrauded that charity as part of an estate settlement that began merely 37 years ago. And by the way, these new accusations have nothing at all do with the original accounting allegations that Mr. Spitzer used to run Mr. Greenberg out of his CEO chair in March.

We rehearse the details of all this as an insight into Mr. Spitzer's sense of fairness and due process. The story focuses on Cornelius Vander Starr, the founder of what would become the AIG group of companies -- including C.V. Starr & Co. -- and of the Starr Foundation. He left his estate to the foundation when he died in 1968. And he named the directors of C.V. Starr -- men like Mr. Greenberg, whom he had known for years -- as the executors.

Because of a tax law that was new at the time, the executors had to sell Mr. Starr's personal shares of C.V. Starr & Co. back to that company (of which they were directors) -- which they did in 1969. C.V. Starr is a closely held company, so its shares are illiquid and must be valued. This involves a common procedure by which an adjusted "book value" is calculated based on real-estate holdings, changes in pension plans, commissions, etc. The formula used to establish a price for the estate transaction was the same formula that had been used in earlier sales of C.V. Starr stock and, for that matter, the same formula the company has used ever since.

Mr. Spitzer is nonetheless alleging that Mr. Greenberg and the other trustees defrauded the Starr Foundation by selling the C.V. Starr shares back to that company at a price that was too low. This accusation rests on the fact that nearly a year after the 1969 sale, at a time when the AIG companies were being restructured, an outside financial firm offered a complex and unrelated opinion that vaguely suggested C.V. Starr shares might be worth more than their adjusted "book value."

Never mind that the 1969 sale had closed before this opinion was rendered, or that it is only "book value" that mattered for the estate transaction. Even stranger is Mr. Spitzer's suggestion that the C.V. Starr directors had personally gained from this share sale, given they were largely barred from taking any value out of the company.

Mr. Spitzer is also implying that there was something fraudulent about the dual role played by the executor-directors. Yet Mr. Starr had appointed them with full knowledge of their dual roles. We'd also note that, in a recent New York Court of Appeals case, Mr. Spitzer's office was informed by the court that fiduciaries with dual roles aren't even obliged to disclose such conflicts, much less recuse themselves.

In any case, every relevant authority at the time knew these details and signed off on the estate settlement in 1979. That included the IRS, which agreed to the share valuation, and the New York State Surrogate's Court, which had overseen the estate transactions. It also included the office of the New York attorney general, which was a party to the proceedings, knew of the executors' dual role, and had actively reviewed the financial data before approving it.

The allegations are so dated and dubious that they raise the question of why Mr. Spitzer would bother to exhume them. One speculation is that Mr. Spitzer is using the opportunity to ally himself with AIG now that Mr. Greenberg has decamped to C.V. Starr and is competing with AIG for business. AIG would only benefit if C.V. Starr is tied up in litigation over its ownership, and Mr. Spitzer has certainly shown he is capable of such vindictiveness. (See John Whitehead's account nearby of the AG's amazing reaction to his op-ed in these pages.)

Mr. Greenberg can defend himself and is now pointedly doing so. But the question the rest of us should ask is whether Mr. Spitzer's habit of publicly smearing individuals while bringing no charges in court is appropriate behavior by any prosecutor, much less one running to be New York's Governor. If John Ashcroft had behaved in this fashion as Attorney General, Mr. Spitzer's media idolators would have demanded his impeachment."

Tony Dungy's Son Passes Away...

I just heard that Tony Dungy, the coach of the Indianapolis Colts, received the worst news that any parent can ever receive. His son, aged 18, was found dead in bed this morning. I cannot imagine the pain that Dungy and his family are going through now. And it being the Christmas season only makes it worse. Dungy's truly a class act, and a great coach. Please pray for him and his family.

December 21, 2005

The Downside of the NSA Wiretap Program...

I'm referring to the part authorized by President Bush in which a court order is not needed, of course. I made the following case to a friend last night (a Democrat police officer friend, by the way, who supports what Bush has done): Let's say an Al Quaeda member in Germany has my phone number on his cell phone, for some reason (perhaps he called it by mistake - my number is very similar to the Legal Seafood's local delivery number). The NSA taps my phone to find out what I'm up to and why the terrorist called me. Within a few days, they find out that I lead a rather boring life - no connections to terrorists. They conclude that the terrorist probably dialed my number accidentally. So the NSA takes me off the list and erases all of my conversations. What damage has been done? Answer - none. Has my "privacy" been invaded? Answer - no, they can't use anything they learned against me, and they now are certain that I'm not a terrorist.

On the contrary, I'm very happy that they're doing everything in their power to follow up on terrorist leads in a quick and efficient manner. And please note that this incident is the worst that can happen. The best case scenario is that they actually stop a terrorist plot.

Democrats Fillibuster Defense Bill...

The Democrats, along with Republican Senator Lincoln Chafee, just filibustered the 2006 Defense Authorization Act, which also had attached to it Katrina Relief, Home Heating Assistance for the Elderly, and ANWAR. Here's a section of today's's Political Diary (posted before the vote) which discusses the issue of adding ANWAR to the bill:

"In Defense of ANWR

The Senate is preparing for an energy showdown, in particular whether to finally get the country's resource production back on track by allowing drilling in the Arctic National Wildlife Refuge. All eyes are now centered on two Senate Republicans, Alaska's Ted Stevens and Majority Leader Bill Frist. The former is the architect of a new strategy for pushing ANWR through Congress; the latter has the job of making it happen.

Mr. Stevens recently managed to include ANWR drilling in the defense appropriations bill. The drilling provision had originally been in the broader budget reconciliation package -- that is until 25 House Republicans, most from Northeast states, said they'd withhold their vote. Including ANWR in the defense legislation in theory makes the vote harder, as it will require overcoming a 60-vote filibuster rather than the 51 votes necessary to pass the budget package. But Mr. Stevens is no dope, and this time he may have boxed in his drilling opponents. Few want to go on record as having voted against money for the troops. Moreover, the defense bill contains Hurricane Katrina relief money that many Senators are eager to see released. The House overwhelmingly approved its version of the legislation earlier this week.

Such political hardball has sent environmental groups around the bend. At least 14 radical green groups, including Friends of the Earth, the Sierra Club, and the Natural Resources Defense Council, fired off an apoplectic mass email calling the defense insertion a "cheap trick," a "cynical, politically motivated scheme" and a "national disgrace." (Tell us what you really think.) Missing from the missive was any mention of sky-high oil and gas prices that are only set to worsen unless the U.S. starts responding to its own energy needs.

Liberal Democrats, meanwhile, are working overtime to kill the drilling addition. Minority Leader Harry Reid has denounced the new ANWR provision as a breach of Senate rules, on the grounds that it was not part of the original defense spending bill. This is pretty rich, given Senator Reid is on record having supported just such a late addition in the past, this one having to do with a 1996 recommendation from then-Vice President Al Gore's commission on aviation security. Meanwhile, Massachusetts Senator John Kerry is threatening to filibuster anything that touches on Arctic drilling.

Thus the focus on Mr. Frist, who is being urged by drilling supporters to hold Congress in session as long as it takes to get cloture on the defense bill and enact ANWR. The calculation is that even the most die-hard drilling opponents will be reluctant to miss out on Christmas vacation. Mr. Stevens underlined that point, noting "We're going to face up to ANWR either now or Christmas Day or New Year's Eve or sometime -- however long we stay in." With any luck, Mr. Frist is just as determined to hold the Senate in place. Republicans have been trying to open ANWR and do something about America's failing energy supply for years now. This may be the best shot they'll have for some time to come."

Time for hardball. Let's see if Frist really has grown back his spine...

Clinton's Justice Department's View on Wiretaps...

First we find that none other than Jaime Gorelick, the Clinton Assistant AG responsible for the "Wall of Separation" between domestic and foreign intelligence, forcefully argued for Clinton's right to wiretap without court order. Now we have another Clinton Assistant AG, John Schmidt, writing in the Chicago Times the same thing. An excerpt:

"President Bush's post- Sept. 11, 2001, authorization to the National Security Agency to carry out electronic surveillance into private phone calls and e-mails is consistent with court decisions and with the positions of the Justice Department under prior presidents.

The president authorized the NSA program in response to the 9/11 terrorist attacks on America. An identifiable group, Al Qaeda, was responsible and believed to be planning future attacks in the United States. Electronic surveillance of communications to or from those who might plausibly be members of or in contact with Al Qaeda was probably the only means of obtaining information about what its members were planning next. No one except the president and the few officials with access to the NSA program can know how valuable such surveillance has been in protecting the nation.

In the Supreme Court's 1972 Keith decision holding that the president does not have inherent authority to order wiretapping without warrants to combat domestic threats, the court said explicitly that it was not questioning the president's authority to take such action in response to threats from abroad.

Four federal courts of appeal subsequently faced the issue squarely and held that the president has inherent authority to authorize wiretapping for foreign intelligence purposes without judicial warrant.

In the most recent judicial statement on the issue, the Foreign Intelligence Surveillance Court of Review, composed of three federal appellate court judges, said in 2002 that "All the ... courts to have decided the issue held that the president did have inherent authority to conduct warrantless searches to obtain foreign intelligence ... We take for granted that the president does have that authority.""

And It Continued With Clinton...

On February 9th 1995, President Bill Clinton signed Executive Order 12949 authorizing Foreign Intelligence physical searches (including wiretapping) without warrants on United States Soil:


       By the authority vested in me as President by the Constitution
and the laws of the United States, including sections 302 and 303 of the
Foreign Intelligence Surveillance Act of 1978 ("Act") (50 U.S.C.  1801,
et seq.), as amended by Public Law 103- 359, and in order to provide for
the authorization of physical searches for foreign intelligence purposes
as set forth in the Act, it is hereby ordered as follows:

       Section 1.  Pursuant to section 302(a)(1) of the Act, the
Attorney General is authorized to approve physical searches, without a
court order, to acquire foreign intelligence information for periods of
up to one year, if the Attorney General makes the certifications
required by that section.

       Sec. 2.  Pursuant to section 302(b) of the Act, the Attorney
General is authorized to approve applications to the Foreign
Intelligence Surveillance Court under section 303 of the Act to obtain
orders for physical searches for the purpose of collecting foreign
intelligence information.

       Sec. 3.  Pursuant to section 303(a)(7) of the Act, the following
officials, each of whom is employed in the area of national security or
defense, is designated to make the certifications required by section
303(a)(7) of the Act in support of applications to conduct physical

       (a) Secretary of State;

       (b) Secretary of Defense;

       (c) Director of Central Intelligence;

       (d) Director of the Federal Bureau of

       (e) Deputy Secretary of State;

       (f) Deputy Secretary of Defense; and

       (g) Deputy Director of Central Intelligence.

       None of the above officials, nor anyone officially acting in that
capacity, may exercise the authority to make the above certifications,
unless that official has been appointed by the President, by and with
the advice and consent of the Senate.

                         WILLIAM J. CLINTON

      February 9, 1995.

It All Started With Carter...

On the 23 of May 1979, President Jimmy Carter signed Executive Order 12139 specifically authorizing  electronic surveillance for foreign intelligence purposes without a court order:

" By the authority vested in me as President by Sections 102 and
   104 of the Foreign Intelligence Surveillance Act of 1978 (50 U.S.C.
   1802 and 1804), in order to provide as set forth in that Act (this
   chapter) for the authorization of electronic surveillance for
   foreign intelligence purposes, it is hereby ordered as follows:

     1-101. Pursuant to Section 102(a)(1) of the Foreign Intelligence
   Surveillance Act of 1978 (50 U.S.C. 1802(a)), the Attorney General
   is authorized to approve electronic surveillance to acquire foreign
   intelligence information without a court order, but only if the
   Attorney General makes the certifications required by that Section.

     1-102. Pursuant to Section 102(b) of the Foreign Intelligence Act
   of 1978 (50 U.S.C. 1802(b)), the Attorney General is authorized to
   approve applications to the court having jurisdiction under Section
   103 of that Act (50 U.S.C. 1803) to obtain orders for electronic
   surveillance for the purpose of obtaining foreign intelligence

     1-103. Pursuant to Section 104(a)(7) of the Foreign Intelligence
   Surveillance Act of 1978 (50 U.S.C. 1804(a)(7)), the following
   officials, each of whom is employed in the area of national
   security or defense, is designated to make the certifications
   required by Section 104(a)(7) of the Act in support of applications
   to conduct electronic surveillance:

       (a) Secretary of State.

       (b) Secretary of Defense.

       (c) Director of Central Intelligence.

       (d) Director of the Federal Bureau of Investigation.

       (e) Deputy Secretary of State.

       (f) Deputy Secretary of Defense.

       (g) Deputy Director of Central Intelligence.

   None of the above officials, nor anyone officially acting in that
   capacity, may exercise the authority to make the above
   certifications, unless that official has been appointed by the
   President with the advice and consent of the Senate.

     1-104. Section 2-202 of Executive Order No. 12036 (set out under
   section 401 of this title) is amended by inserting the following at
   the end of that section: ''Any electronic surveillance, as defined
   in the Foreign Intelligence Surveillance Act of 1978, shall be
   conducted in accordance with that Act as well as this Order.''.

     1-105. Section 2-203 of Executive Order No. 12036 (set out under
   section 401 of this title) is amended by inserting the following at
   the end of that section: ''Any monitoring which constitutes
   electronic surveillance as defined in the Foreign Intelligence
   Surveillance Act of 1978 shall be conducted in accordance with that
   Act as well as this Order.''.                         

                                                              Jimmy Carter."

This authority has never been effectively challenged or rescinded - in fact there have been numerous court rulings upholding this!