Two arguments down

Charles Foster Kane has done such an impressive job of picking apart one of Gregg Jackson’s spurious propositions that I’m inspired to take on another one. Like Kane, I’ll rely on columnist Thomas Sowell’s description of what’s in Jackson’s book, “Conservative Comebacks to Liberal Lies,” since Jackson himself won’t send me a copy.

According to Sowell, one of the “liberal lies” that Jackson exposes is the idea that “the Constitution of the United States provides for ‘separation of church and state.'” Sowell continues:

Among the historical facts [brought forth by Jackson] is that there is absolutely nothing in the Constitution about a “separation of church and state,” despite how often that phrase has been repeated in the media, in politics, and even in courts of law.

Over the years, liberal judges have twisted the First Amendment’s phrase about “free exercise of religion” to mean the opposite — that you are not free to exercise your religion if atheists or members of non-Christian religions say that they are offended.

Whatever the best social policy might be as regards Christmas displays or the use of vouchers in parochial schools, none of this is banned by the Constitution. Some judges, however, use the Constitution as a blank check, authorizing them to ban whatever they don’t like and call it Constitutional law.

Now, I think we’ve all known since the sixth grade that Jackson and Sowell are correct about the wording of the Constitution. Here is what the First Amendment actually says:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

But does it therefore follow that the “separation of church and state” is a myth foisted upon an unsuspecting public by liberals, the media and — well, you know, the liberal media? You will probably not be surprised to learn (although Jackson might be stunned) that the phrase and the concept go back to the Founders.

Because the Constitution is terse and at times cryptic, all good legal scholars — even conservatives — rely on contemporaneous source material to help them determine the meaning and context behind particular sections. (One might even say especially conservatives, since it is they who say they are most interested in sticking to the Framers’ original intent.)

The Federalist, of course, is the best-known example of this extra-constitutional source material: a series of essays written by Alexander Hamilton, James Madison and John Jay with the intent of persuading the state of New York to adopt the Constitution. The Federalist, however, was written before the Bill of Rights. Thus we must look elsewhere.

It turns out that Madison, sometimes called “the Father of the Constitution,” as well as the author of the First Amendment, is also the father of the separation of church and state. Here are a few quotes on the subject from our fourth president:

The civil Government, though bereft of everything like an associated hierarchy, possesses the requisite stability, and performs its functions with complete success, whilst the number, the industry, and the morality of the priesthood, and the devotion of the people, have been manifestly increased by the total separation of the church from the State (Letter to Robert Walsh, Mar. 2, 1819).

Strongly guarded as is the separation between religion and & Gov’t in the Constitution of the United States the danger of encroachment by Ecclesiastical Bodies, may be illustrated by precedents already furnished in their short history (Detached Memoranda, circa 1820).

Every new and successful example, therefore, of a perfect separation between the ecclesiastical and civil matters, is of importance; and I have no doubt that every new example will succeed, as every past one has done, in showing that religion and Government will both exist in greater purity the less they are mixed together” (Letter to Edward Livingston, July 10, 1822).

I must admit moreover that it may not be easy, in every possible case, to trace the line of separation between the rights of religion and the civil authority with such distinctness as to avoid collisions and doubts on unessential points. The tendency to a usurpation on one side or the other or to a corrupting coalition or alliance between them will be best guarded against by entire abstinence of the government from interference in any way whatever, beyond the necessity of preserving public order and protecting each sect against trespasses on its legal rights by others. (Letter Rev. Jasper Adams, Spring 1832).

To the Baptist Churches on Neal’s Greek on Black Creek, North Carolina I have received, fellow-citizens, your address, approving my objection to the Bill containing a grant of public land to the Baptist Church at Salem Meeting House, Mississippi Territory. Having always regarded the practical distinction between Religion and Civil Government as essential to the purity of both, and as guaranteed by the Constitution of the United States, I could not have otherwise discharged my duty on the occasion which presented itself (Letter to Baptist Churches in North Carolina, June 3, 1811).

Thomas Jefferson’s views are often dragged into the debate by those who oppose church-state separation, since Jefferson himself was no friend of the Constitution. Far better to rely on Madison, as strong a supporter of the Constitution as there was in the early days of the Republic, as well as the undisputed expert on the meaning of the First Amendment.

Note what I am not saying. I’m not saying that every single action taken by the courts in the name of “the separation of church and state” is proper. I think we need to be reasonable. Obviously every person’s idea of reasonable is different, but lines have to be drawn somewhere. Personally, crèches on public property and the phrase “under God” in the Pledge of Allegiance don’t bother me, but mandatory school prayer does, even if there’s an opt-out provision.

The point is that the concept has a long and noble history going back to the drafting of the Constitution. Gregg Jackson’s assertion that the Constitution does not provide for the separation of church and state is technically accurate — but manifestly untrue.


The Texas Railway Killer and me

It wasn’t until last night that I heard about the execution of Angel Maturino Resendiz, the so-called Texas Railway Killer, with whom I had a close psychic brush seven years ago. First he murdered a minister and his wife whom I’d gotten to know a bit. Then I spent one harrowing night thinking he was coming after me and family. (He wasn’t. But still.) You can read about it here and here.

It’s Muzzle time

My annual Fourth of July roundup of those who undermined free speech and civil liberties in New England is in the new Phoenix. Please have a look.

Best wishes to The Commish

ESPN’s Peter Gammons, a pioneering baseball writer for the Boston Globe, is recovering from surgery to treat a brain aneurysm.

More on that UN document

A news story in today’s New York Times mentions this item by retired American diplomat Victor Comras. It is the same item referenced by the Times editorial to which I linked last night.

Comras writes that “reports on US monitoring of SWIFT transactions have been out there for some time. The information was fairly well known by terrorism financing experts back in 2002.” And he quotes from a publicly available (though not this morning) report he wrote for the United Nations:

The settlement of international transactions is usually handled through correspondent banking relationships or large-value message and payment systems, such as the SWIFT, Fedwire or CHIPS systems in the United States of America. Such international clearance centres are critical to processing international banking transactions and are rich with payment information. The United States has begun to apply new monitoring techniques to spot and verify suspicious transactions. The Group recommends the adoption of similar mechanisms by other countries.

Now, there’s exposure and there’s exposure. I suppose you could argue that the terrorists don’t spend their time perusing the UN’s Web site (although I wouldn’t be surprised if they do), but that articles published on the front of the Times are likely to capture their attention. But we’re starting to slice the salami pretty thinly here.

A number of people have made the point that the terrorists already knew their finances were being tracked. Now we know that it’s been publicly known since at least December 2002 precisely how that tracking is taking place.

Cries of espionage and even treason are starting to look fairly ridiculous.

The White House and its defenders also give the game away by refusing to differentiate between the NSA no-warrant wiretapping program — obviously illegal, given that the Foreign Intelligence Surveillance Act requires warrants — and the SWIFT program, which appears to be on more solid legal ground.

By lumping them together, folks like U.S. Sen. Pat Roberts, R-Kan., make it clear that they’re only interested in scoring points against the media.

Update: More on Comras from today’s Boston Globe:

Victor D. Comras , a former US diplomat who oversaw efforts at the United Nations to improve international measures to combat terror financing, said it was common knowledge that worldwide financial transactions were being closely monitored for links to terrorists. “A lot of people were aware that this was going on,” said Comras, one of a half-dozen financial experts UN Secretary General Kofi Annan recruited for the task.

“Unless they were pretty dumb, they had to assume” their transactions were being monitored, Comras said of terrorist groups. “We have spent the last four years bragging how effective we have been in tracking terrorist financing.”

Read the whole thing. It’s starting to look like the Times’ best defense is that this is very old news.

Update II: By the way, I’m not saying this line of defense is something of which the media ought to be proud. Take it away, Jay:

The media is now faced with two unattractive scenarios: A.) Defend the articles as news — and face up to the consequence that outlets reported on what appears to be a lawful and effective program or B.) Admit the articles weren’t news — and face up to the consequence that the public now knows outlets didn’t do basic pre-publication research.

I’m not sure I agree, but at the moment I can’t say I disagree, either. How’s that for decisiveness?

Common sense and SWIFT

Because I’m still thinking my way through this, I’m intrigued when I see anything calm and reasonable on the SWIFT story. From Andrew Sullivan, conservative and pro-war:

If I were Bill Keller (fat chance, I know), I probably wouldn’t publish. On the other hand, publishing it does not, it seems to me, obviously render the program ineffective. And the Malkinesque charges of treason seem a little, er, excitable.

The New York Times will publish an editorial tomorrow that contains this intriguing passage:

[A] United Nations group set up to monitor Al Qaeda and the Taliban after Sept. 11 recommended in 2002 that other countries should follow the United States’ lead in monitoring suspicious transactions handled by Swift. The report is public and available on the United Nations Web site.

I couldn’t find it. Has anyone got a link? A relevant excerpt?

The “T” word

A reader called my attention to Jules Crittenden’s latest in the Boston Herald, in which he accuses the New York Times of treason. Obviously I disagree. It will be interesting to see whether this is the Herald’s front page tomorrow.

But you know what? I think this is where we may be heading. No one is going to charge Arthur Sulzberger Jr. and Bill Keller with treason, but Attorney General Alberto Gonzales, U.S. Rep. Peter King and others are calling for an espionage case to be brought against the paper.

The Washington Post’s Howard Kurtz today writes on his blog: “Man, I have never seen this kind of Times-bashing before.”

I’m afraid we may just be getting started.

Action Jackson

Not long ago I let a right-wing radio host named Gregg Jackson trash me in several lengthy rants on Media Nation’s comments section. Jackson is pushing a book called “Conservative Comebacks to Liberal Lies,” and no doubt he was hoping to move some product at my expense. I’ve had worse done to me. I actually offered to read his book and take the time to research and write a point-by-point refutation.

Well, this is funny. I just found out that on June 16 he trashed me again, on his own blog — and I can’t leave a comment! Apparently it’s fine to come into my house and start screaming and yelling. But when I knocked on his door, I encountered this: “Sorry, the comment form is closed at this time.” I guess he was afraid of getting inundated, given that he actually got one person to reply to his attack on me. (That person disagreed with Jackson, by the way.)

As for my offer to review his book, here’s what he wrote: “Message to Dan. If you want to purchase my book you can do so by ordering it and paying for it. That’s how free market capitalism works my friend. You can pre-order on Amazon or B&N. Why would I give you a copy?”

Uh, message to Gregg. When someone offers to review your book, whether friend or foe, the proper response is to sprint to the post office and send it off post-haste. That’s how the conservative commentator Russ Smith got a copy of my book on dwarfism, “Little People,” a few years ago. Russ reviewed it for the Wall Street Journal and called it “extraordinary.” Gregg, I’m going to go out on a limb and predict that’s a damn sight better than you’re going to do.

By the way, Jackson ironically titles his post on me “How to Win A Debate With a Liberal” (sic on the capitalization). Well, here are two ways: (1) Don’t let him post a comment to your blog, and (2) don’t provide him with a review copy of your book even after he promises to read it and write about it.

Gregg, my offer still stands. But I will not buy it. Nothing personal. I don’t pay for books I write about. Neither does anyone else. Get a clue — and get a grip.

Targeting the Times

The Manhattan Institute’s Heather Mac Donald goes after the New York Times in a big way over the financial-tracking revelations. Writing for the Weekly Standard, she begins:

By now it’s undeniable: The New York Times is a national security threat. So drunk is it on its own power and so antagonistic to the Bush administration that it will expose every classified antiterror program it finds out about, no matter how legal the program, how carefully crafted to safeguard civil liberties, or how vital to protecting American lives.

I’ll give her this: To my layman’s eyes, she seems to make a pretty good case that the program is legal. Mac Donald continues:

The Supreme Court has squarely held that bank records are not constitutionally protected private information. The government may obtain them without seeking a warrant from a court, because the bank depositor has already revealed his transactions to his bank — or, in the case of the present program, to a whole slew of banks that participate in the complicated international wire transfers overseen by the Belgian clearinghouse known as the Society for Worldwide Interbank Financial Telecommunication, or Swift. To get specific information about individual terror suspects, intelligence agents prepare an administrative subpoena, which is issued after extensive internal agency review. The government does not monitor a terror suspect’s international wire transfers in real time; the records of his transactions are delivered weeks later. And Americans’ routine financial transactions, such as ATM withdrawals or domestic banking, lie completely outside of the Swift database.

This strikes me as fairly persuasive, and quite different from the NSA warrantless wiretapping program that the Times exposed last December. On the other hand, Mac Donald’s attack on the Times is so sweeping that I can’t imagine she’s all that troubled by the NSA program, either. So I don’t know.

It does seem that one of Mac Donald’s fellow-travelers on the right, the blogger Captain Ed, undermines her case against the Times at least in part by writing:

The continuing arrogance of Keller and his two reporters has damaged our national security, and in this case on a ridiculously laughable story that tells us absolutely nothing we didn’t already know in concept. They keep pretending to offer news to their readers, but instead all they do is blow our national-security programs for profit.

This is quite an odd assertion, is it not? On the one hand, the idea that this is news is “ridiculously laughable.” On the other, the Times “has damaged our national security.” Well, which is it? (Via “Today’s Blogs” on Slate, which also linked to Media Nation’s item on Times executive editor Bill Keller’s open letter.)

It seems to me that there are several crucial differences between the wiretapping and financial-tracking programs — and perhaps chief in importance is the fact that the financial program depends on subpoenas issued to SWIFT. That would appear to give this a patina of legality that’s utterly lacking from the wiretapping saga.

President Bush, naturally, is calling the Times’ behavior “disgraceful,” which is the same word he used to describe its revelation of the wiretapping program — a program that, on the face of it, violates the Foreign Intelligence Surveillance Act, which requires warrants.

Of more interest are the comments of Senate minority leader Harry Reid, who, unlike the president, demonstrates an ability to distinguish between the two programs. A Reid spokesman tells the Times that Reid believes the SWIFT program “does not appear to be based on the same shaky and discredited legal analysis the vice president and his allies invoked to underpin the NSA domestic spying program.”

Meanwhile, U.S. Rep. Peter King, R-N.Y., wants to prosecute the Times, and U.S. Rep. Ed Markey, D-Mass., wants to investigate the White House.

All is murk.

Keller on the SWIFT story

There is much good in New York Times executive editor Bill Keller’s letter to readers explaining why the Times decided to publish details of the anti-terrorism program that tracks financial transactions. More than anything, the mere fact that he believes journalists must explain themselves to the public shows the how deeply the notion of transparency has taken root.

Still, three aspects of his letter strike me as odd. I’ll take them one at a time.

1. Consider how Keller begins his second paragraph:

Some of the incoming mail quotes the angry words of conservative bloggers and TV or radio pundits who say that drawing attention to the government’s anti-terror measures is unpatriotic and dangerous. (I could ask, if that’s the case, why they are drawing so much attention to the story themselves by yelling about it on the airwaves and the Internet.) [My emphasis.]

Did Keller let anyone edit this? It was the Times and other news organizations that revealed the existence and the details of this program — not angry bloggers and pundits. For Keller to try to toss the blame back into the laps of his critics suggests that he himself was pretty angry when he sat down to write. Unseemly.

2. Later on, Keller pulls an old trope out of his hat:

Our default position — our job — is to publish information if we are convinced it is fair and accurate, and our biggest failures have generally been when we failed to dig deep enough or to report fully enough. After The Times played down its advance knowledge of the Bay of Pigs invasion, President Kennedy reportedly said he wished we had published what we knew and perhaps prevented a fiasco. [My emphasis.]

This is accurate but not true. On the eve of the Bay of Pigs invasion, the Times published a front-page story, above the fold, reporting that U.S.-trained Cuban exiles were prepared to invade their homeland at any time. Two details were omitted, neither of which the Times’ editors could be sure about: the role of the CIA and the date of the invasion. (Of course, if the date had been published, the White House simply would have changed it.)

At first Kennedy was furious. But some time later, after the invasion had ended in disaster, he did indeed voice his now-famous regret that the Times hadn’t published all it knew, thus creating a media myth that has endured to this day. Keller, of all people, should know that.

3. Finally, Keller writes:

It’s worth mentioning that the reporters and editors responsible for this story live in two places — New York and the Washington area — that are tragically established targets for terrorist violence. The question of preventing terror is not abstract to us.

Huh? It seems here that he’s trying to say we shouldn’t question his motives because, if there’s a terrorist attack, Times people might be among the victims. Well, gee. So would a lot of other folks.

Sorry to nitpick. I actually find Keller’s argument for publishing fairly compelling. He’s especially persuasive in making the point that SWIFT, the international consortium that administers the data, will continue to cooperate as long as the operation is legal (and shouldn’t if it isn’t), and that the terrorists have long been on notice that we are doing everything we can to track their finances.

But it would have been that much stronger without the self-pitying touches and the ahistorical take on the Bay of Pigs.