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Tilting at Windmills

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February 23, 2006
By: Kevin Drum

EXON-FLORIO....Did the committee that oversees foreign acquisitions of U.S. corporations break the law by not conducting a 45-day investigation of Dubai Port's proposed purchase of P&O? The law in question, called the Exon-Florio provision, requires a 30-day review followed, in some cases, by a more thorough 45-day investigation. For state-owned corporations, the investigation is required if the acquisition "could affect the national security of the U.S."

So what triggers this provision? Deputy Treasury Secretary Robert Kimmitt, who chairs the vetting committee, had this to say:

In a telephone interview on Wednesday, Mr. Kimmitt said that...on Jan. 17 the panel members unanimously approved the transfer. "None of them objected to the deal proceeding on national security grounds," he said.

....An objection from any member of the interagency committee would have started, as required by law, an additional 45-day review.

Is this right? The idea that the Dubai deal "could" affect national security seems pretty hard to argue with, but obviously somebody has to make that determination and Kimmitt is saying that, legally, it's the committee itself that does it. If they unanimously decide there are no national security issues, then the 45-day investigation isn't required.

Is that right? Any Exon-Florio experts out there who can weigh in?

Kevin Drum 10:39 AM Permalink | Trackbacks | Comments (79)

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Comments

Is the panel that unanimously approved the deal the same panel that might have never actually met, since Rummy or his subordinate was supposed to be on it and he said he wasn't aware of the deal until last weekend?

Posted by: SP on February 23, 2006 at 10:48 AM | PERMALINK

I believe our resident Manhattan lawyer Nathan was trying to tell us yesterday that the law in question does not exist and that it does not apply and no laws were broken.

And yet, something tells me, the poor lad is mistaken.

Posted by: Pale Rider on February 23, 2006 at 10:49 AM | PERMALINK

If anyone wants to sabotage our ports, they can find volunteers in the Longshoreman's union and any democrat party headquarters.

Posted by: Walter E. Wallis on February 23, 2006 at 10:56 AM | PERMALINK

Did the committee that oversees foreign acquisitions of U.S. corporations break the law by not conducting a 45-day investigation of Dubai Port's proposed purchase of P&O?

No, they broke the law by not conducting an investigation at all. The "45-day" thing is misleading and should be left off entirely.

The law in question, called the Exon-Florio provision, requires a 30-day review followed, in some cases, by a more thorough 45-day investigation.

Well, no. The law in question, 50 USC App. 2170, allows the President or the President's designee (by executive order, this is the CFIUS), to begin an investigation within 30 days of notification of proposed or pending mergers or takeovers of any entity involved in interstate commerce to assure that it will not affect national security, and requires such investigation if the merger or takeover that could result in any entity controlled by or acting on behalf of a foreign government that could affect the national security of the United States. Such an investigation must be complete within 45-days of being initiated, but it confuses the issue to refer to it as a "45-day investigation". It is simply an "investigation".

Is this right? The idea that the Dubai deal "could" affect national security seems pretty hard to argue with, but obviously somebody has to make that determination and Kimmitt is saying that, legally, it's the committee itself that does it. If they unanimously decide there are no national security issues, then the 45-day investigation isn't required.

Well, yes, the President has designated them to review mergers and decide for him whether an investigation is required (though in law, the responsibility is his but expressly delegable.) This is not, however, a discretionary authority to be applied at whim, but subject to the general obligation of the executive to faithfully execute the law. The internal executive review in even remotely questionable cases (note the "could" rather than "would" language in the law) can not be substituted for the substantive investigation, which must be reported to Congress, whichever way the decision goes, with explanation of the justification.

The entire principal of a government of laws rests on the executive faithfully implementing the laws passed by the legislative branch, not treating every determination laid out in law as a blank check of discretion. Of course, we've time and time again seen this executive fail to do that, most substantively, perhaps, in the determinations required under the AUMF conditionally allowing military force against Iraq. It is one of the fundamental problems of this Presidency, and a grave threat to the order of government if Congress doesn't do something to reel it in.

The explanation offered -- that the CFI was polled and no one thought it could affect the national security, so no investigation was done -- is sheer negligence of a legal duty pertaining to the national security.

Posted by: cmdicely on February 23, 2006 at 10:58 AM | PERMALINK

I think that's a 'nuclear option' type of legality. It is perfectly obvious that, as a matter of fact, the deal does impact national security -- for example, according to the Guardian there is language in the deal that requires DPW to cooperate with Homeland Security and to continue security programs. So if none of the committee members has raised an objection on that ground, they are flouting the law in the same manner that Senators claiming that the Senate Rules do not require a supermajority for cloture would be.

Posted by: LizardBreath on February 23, 2006 at 10:59 AM | PERMALINK

Here's our boy from yesterday:
---------------
There is no "mandatory 45-day investigation requirement" for the Committee on Foreign Investment in the United States. (I've had to deal on matters involving CFI oversight in the past.)

Posted by: Nathan on February 22, 2006 at 2:59 PM
---------------
The CFI unanimously approved the transaction..they are under no legal obligation conduct a further investigation.
Usually you have some legal basis for your claims...on this one you jumped the gun.

Posted by: Nathan on February 22, 2006 at 3:05 PM
---------------
RT and all the others:
The CFI (the ones who are supposed to do this) reviewed the transaction and unanimously approved. There is no 45 day requirement. Period.
Read Exon-Florio or at least the summary I posted above.

Learn some facts before you opine without knowledge.

Posted by: Nathan on February 22, 2006 at 3:13 PM
---------------
cmdicely:
you are correct that the Byrd Amendment requires an investigation beyond an initial review under certain circumstances. assuming that those circumstances exist here: it should be noted that the administration has stated that an additional review was conducted. that appears to satisfy the Byrd amendment.
Why? cause Exon-Florio doesn't state that the investigation MUST last 45 days. rather, it states that it must be completed WITHIN 45 days. big difference...I'll grant that some of the news stories have been sloppy on this.

Posted by: Nathan on February 22, 2006 at 3:31 PM
---------------
I challenge anyone here to provide me with one cite to Exon-Florio (including the Byrd Amendment) requiring a "45-day investigation period".

Put-up or shut the fuck up.
(hint: the statute requires that the investigation (which is only mandatory under certain circumstances -- and it is the CFI which determines whether a given transaction meets those circumstances) be completed no later than 45 days after commencement of the investigation....)

Posted by: Nathan on February 22, 2006 at 4:57 PM
---------------

I think it's pretty clear--Nathan is a successful attorney in New York City who has the facts and we simply do not possess his ability to explain the issue at hand.

However, he can probably drink poor Walter E Wallis under the table.

Posted by: Pale Rider on February 23, 2006 at 10:59 AM | PERMALINK

"Laws mean what we pay them to mean" - Dick Cheney

Seriously - what evidence is there that the Bush Administration thinks that there is a concept called "law" in the United States and they they are bound in their actions by that "law"? The obligatory Thomas More quote notwithstanding, W and Cheney have both said explicitly (and also through anonymous channels, e.g. the Suskind quote) that they will do exactly what they want and no one, not Congress or the courts, can stop them.

Cranky

Posted by: Cranky Observer on February 23, 2006 at 11:01 AM | PERMALINK

"If anyone wants to sabotage our ports, they can find volunteers in the Longshoreman's union and any democrat party headquarters."

wow, someone's got his panties in a bunch.

Posted by: EM on February 23, 2006 at 11:04 AM | PERMALINK

A comment in the other thread indicated that US Army ports were involved, as well. If true, this raises the outright prohibition in 50 USC App. 2170a on defense contracts which require access to any sensitive information at all from being transferred to entities controlled by foreign governments.

Posted by: cmdicely on February 23, 2006 at 11:05 AM | PERMALINK

In reading through the link that Kevin posted, noticed one thing odd: it refers only to the President's authority under Exon-Florio to block the takeover of a U.S. corporation. Which, of course, P&O is not. I assume that if Exon-Florio didn't apply at all, we'd have certainly heard that by now from Bush et al, but is anyone here familiar enough with the law to explain this apparent discrepancy?

Posted by: Glenn on February 23, 2006 at 11:05 AM | PERMALINK

Pale Rider:

Thanks for posting that...I was going to repost them. You'll note that the explanation I gave (see the last one especially) is precisely the same one that Kimmitt gave. nuff said.

cmdicely also muddies the waters a bit: Congress has the power to regulate commerce, not the President. Congress delegated its power to the CFI in Exon-Florio. If Congress disagrees with the CFI's assessment, it is up to Congress to act. Not the executive branch.

Posted by: Nathan on February 23, 2006 at 11:07 AM | PERMALINK

The Times today reports that "In September, the Government Accountability Office, an investigative arm of Congress, said the Treasury Department, as head of the interagency committee that reviews such deals, had used an overly narrow definition of national security threats because it wanted to encourage foreign investment."

So when it comes to kidnapping innocent people off the streets or spying on ordinary Americans' phone calls and library records we have to use the broadest possible definition of national security because 9/11 changed everything and there's nothing we shouldn't allow the president to do to us.

But when it comes to handing out fat contracts to foreign companies in order to line the Bush cronies' pockets, then we use an "overly narrow definition of national security threats."

OK, then. Just so we're clear on that.

Posted by: Stefan on February 23, 2006 at 11:09 AM | PERMALINK

Who actually voted?

Who actually voted at the 13 member unanimous vote?

President George W. Bush didn't know of the sale of six major U.S. port facilities to a Dubai company until after the deal was agreed to and federal approval was granted, his spokesman said. Treasury Secretary John Snow said he learned of it ``by reading it in the newspapers.'' Snow is the Chairman of the Committee. Likewise Rumsfeld who is also on the committee has said he didnt know about the deal until after it was approved.

Presumably they delegated their authority to underlings, but it appears to have been slopply done. Who actually voted at this meeting apparently on behalf of Snow and Rumsfeld and perhaps other members?

Posted by: Catch 22 on February 23, 2006 at 11:11 AM | PERMALINK

Via Atrios, here's Richard Perle on CBS last night explaining exactly how effective this panel was:

BORGER: Here's one explanation. The president and his senior staff couldn't brief Congress because they didn't know. That's because the panel that makes these calls, the Committee on Foreign Investments, is not run by the high-level Cabinet members listed on its Web site. Those guys usually rubber-stamp decisions made by staffers. Richard Perle is a Bush ally who sat on the panel during the Reagan years.

Mr. RICHARD PERLE (Former Assistant Secretary of Defense): The committee almost never met. And when it deliberated, which it did from time to time, it was usually at a pretty low bureaucratic level.

BORGER: So, is it a joke?

Mr. PERLE: I think it's a bit of a joke if we were serious about scrutinizing foreign ownership and foreign control, particularly since 9/11.

Posted by: Stefan on February 23, 2006 at 11:16 AM | PERMALINK

Catch 22 and CMDicely:

I should rephrase slightly...Exon-Florio does designate the president's designee as the body for review...in other words Congress essentially deputized the executive branch to execute a legislative function...the buck still stops with Congress.

Catch 22: the CFI reviews many, many transactions each year....yeah, the cabinet heads are hardly sitting in on these reviews...

Posted by: Nathan on February 23, 2006 at 11:16 AM | PERMALINK

A comment in the other thread indicated that US Army ports were involved

Yeah--the ones in Texas, which would handle the movement of the III US Corps, based out of Fort Hood.

The heavy hitting strike power of our military is the III Corps--it consists of 1st Cav, 4th ID, and the 3rd ACR out of Fort Carson. [Fort Carson based elements would be rail-shipped down to Corpus for transfer.]

When the 4th ID was en route to the Iraq War, they were famously delayed because Turkey would not allow them to pass through its territory and attack Iraq from the north.

The point is this: the movement of US military assets in a time of war is critical to our success in defending this country. A very good hypothetical would be, why would you trust a foreign power to control the ports in this country when it wouldn't take much to delay the shipment of our forces to a distant battlefield?

And why would we allow this when a delay might cost American lives?

The other reason why people might want to be thinking about this is because III US Corps has a dual mission--it also trains to leave Texas, transit the Chinese-affiliated Panama Canal, and move its assets to support the South Korean army should North Korea invade.

Now, before anyone says, hmmm, why can't they fly the tanks in the planes or use the port of San Diego, remember--we don't have nearly enough planes to fly heavy armored vehicles halfway across the world and there are Asian business interests who also want to take over the West Coast ports.

Now, if you wanted to stop the US from being able to project its force overseas, where would you start?

Hmmmm...

Posted by: Pale Rider on February 23, 2006 at 11:16 AM | PERMALINK

Nathan,

If you're proud of that, be my guest. I was trying to save you the trouble of starting another humiliating pissing match with people who are smarter.

Posted by: Pale Rider on February 23, 2006 at 11:18 AM | PERMALINK

Just curious, Kevin, but do you still think that the concerns about this deal are mere harmful xenophobia / political hay-making? Or have critics of Bush once again been correct in their assumption that the WPE is sure to have fucked up anything that he or his ideological fellow-travelers touch? To me, blatant, negligent contempt for the law is a problem when its the blatant negligence of the White House.

Posted by: Baldrick on February 23, 2006 at 11:18 AM | PERMALINK

The explanation offered -- that the CFI was polled and no one thought it could affect the national security, so no investigation was done -- is sheer negligence of a legal duty pertaining to the national security.
Posted by: cmdicely

Amen.

Posted by: CFShep on February 23, 2006 at 11:19 AM | PERMALINK

Stefan:

see above. exactly.

I'm not saying that the current system is a good one...like I said, Congress has eschewed its own authority and responsibility in this matter.
(on the other hand...it should be noted that the CFI apparently did meet and seek extra assurances and conditions in this transaction...so maybe it worked in this instance.)

my point all along is that the law appears to have been complied with. (cmdicely appears to confuse his own opinion (no matter how justified it may be) with a legal determination that only the CFI can make)....but then cmdicely also believes that he understands the law better than Fitzgerald and the FSI court of appeals.

Posted by: Nathan on February 23, 2006 at 11:21 AM | PERMALINK

You know, I'm starting to think that Jimmy Carter could actually be right here. After 20 years of consistent anti-Americanism, he might have slipped up on this.

I've been hanging on, waiting for the shoe to drop to indicate some reason why this shouldn't be done. I figured since Jimmy was in favor of it, there was something bad for the US somewhere. But there just doesn't appear to be anything.

Oh well, it had to happen sometime.

Posted by: conspiracy nut on February 23, 2006 at 11:22 AM | PERMALINK

Pale Rider: are you literate enough to note that the explanation that I gave is the same one that Kimmitt gave?

Posted by: Nathan on February 23, 2006 at 11:22 AM | PERMALINK

Nathan,

No. That's why I hire a mouthpiece to do my bidding.

Posted by: Pale Rider on February 23, 2006 at 11:29 AM | PERMALINK

Oops, already a new thread, sry, I should refesh the page more often. Reposting from the thread below, slightly altered:

I am not an expert on this, but I have the feeling that in the past international merger deals received a higher level of attention and communication by the administration. Imho the suspiciously streamlined process of approving DP World/P&O raises questions.
Via atrios, we learn that Gloria Borger from CBS summarized one possible explanation:

"The president and his senior staff couldn't brief Congress because they didn't know. That's because the panel that makes these calls, the Committee on Foreign Investments, is not run by the high-level Cabinet members listed on its Web site. Those guys usually rubber-stamp decisions made by staffers."

Richard Pearle answered:
"I think it's a bit of a joke if we were serious about scrutinizing foreign ownership and foreign control, particularly since 9/11."

Is it really a joke, isn't this administration concerned about the general issue, or is this misleading and,quite to the cotrary, the DP World deal is treated differently than other cases? Read this WaPO headline from january 2005 and make up your mind:
"U.S. May Scrutinize IBM's China Deal
Some See Risk of Industrial Espionage"
http://www.washingtonpost.com/wp-dyn/articles/A33869-2005Jan24.html

Posted by: Gray on February 23, 2006 at 11:31 AM | PERMALINK
I should rephrase slightly...Exon-Florio does designate the president's designee as the body for review...in other words Congress essentially deputized the executive branch to execute a legislative function...

No, making laws is a legislative function. Implementing those general laws to particular cases is (depending on context and type of application), an executive and/or judicial function. Its not the legislatures job, principally, to determine whether particular mergers impact national security any more than it principally their function to determine whether a particular person committed murder.

I'm not sure how you could get through high school civics without understanding that.

Posted by: cmdicely on February 23, 2006 at 11:34 AM | PERMALINK

Anything to keep the Mideast oil flowing - this isn't independence from Mideast oil - it's increased dependence on Mideast oil by giving lucrative contracts to the Mideast. There is no PEAK oil problem as long as the Mideast keeps doing business with the US for next two decades.

ExxonMobil is wholly dependent or foreign oil for it's financial survivable since there is very little oil left in the US. We get most of it oil from foreign countries - but Bush insist we need independence from Mideast oil - so then why is Bush give this great deal to the Mideast?

This president never does anything but lie. ANWR was a lie about energy independence. We're not liberating ourselves from Mideast oil but making it harder for the Mideast oil to liberate itself from us or for us liberate ourselves from Mideast oil

Posted by: Cheryl on February 23, 2006 at 11:38 AM | PERMALINK

cmdicely: A comment in the other thread indicated that US Army ports were involved, as well.

Yeah, Frank Gaffney said it on CNN:

Yes, and when you think that this company will have the opportunity to in place personnel, it will have oversight of the cargo coming into these ports -- and by the way it's eight ports now including two that they will be operation for the United States Army. [Cite]

Posted by: Apollo 13 on February 23, 2006 at 11:38 AM | PERMALINK
(on the other hand...it should be noted that the CFI apparently did meet and seek extra assurances and conditions in this transaction...so maybe it worked in this instance.)

The if the CFI thought it necessary to insist on extra assurance, that is not merely prima facie but, I would argue, dispositive evidence that their determination of the deal as presented was that national security could be affected and, therefore, their obligation under the law was to conduct an investigation and make the required recommendation to the President who would then make a decision and report to Congress.

If the CFI, as you and some of the reports suggest, decided to impose additional conditions on a deal that could affect national security rather than fulfilling the requirements of the law, conducting an investigation, and ultimately having the executive branch report a determination to Congress then, well, they weren't merely negligent, as I have previously argued, but deliberate defiance of the law, exceeding the authority the President is allowed to delegate under Exon-Florio, and even the discretion granted to the Executive Branch as a whole by Exon-Florio, for the clear purpose of avoiding the deal coming to the viewof Congress until it was a fait accompli.

cmdicely appears to confuse his own opinion (no matter how justified it may be) with a legal determination that only the CFI can make)

Er, no. I think you fail to recognize the oversight role that an informed electorate is supposed to play in a democracy, and replace it with the deference to divinely ordained rule of unconstrained autocrats typical called for under monarchy.

But thanks for playing.

Posted by: cmdicely on February 23, 2006 at 11:44 AM | PERMALINK

cmdicely says: "Its not the legislatures job, principally, to determine whether particular mergers impact national security"

it is the legislature's job to determine WHO does in fact make such a determination. The CFI made such a determination. The legislature had, in fact, deputized its authority (which it was intrinsically...) and now squawks when it disagrees with the decision made by its deputee.

Gray, the difference with the IBM acquisition is that the deal was public news. in the instant matter...presumably the CFI received a referral from the companies involved (it is essentially some forms filled out by their law firms)...while port management deals normally aren't sexy enough to make the papers and thus arouse political scrutiny.

Posted by: Nathan on February 23, 2006 at 11:45 AM | PERMALINK

Btw, there has been a lot of talk recently about the rules for Senators and Congressmen on lobbyist benefits. What rules are there in place for the WH staff? There are at least four lobbyist companies working on behalf of the UAE. Did they pay any restaurant bills or travels for the staffers involved?

Posted by: Gray on February 23, 2006 at 11:46 AM | PERMALINK

Some applause for Mr. Dicely would be appropriate at this point...

Posted by: Pale Rider on February 23, 2006 at 11:46 AM | PERMALINK

"Some applause for Mr. Dicely would be appropriate at this point..."

Hmm, most of the time, he is a pain in the a**, but I have to admit, he made a convincing argument here. So, grudgingly: Bravo! Da capo!

Posted by: Gray on February 23, 2006 at 11:50 AM | PERMALINK

TKO to cmd

Posted by: CFShep on February 23, 2006 at 11:50 AM | PERMALINK

Okay, someone explain to me how a foreign government-controlled entity operating military ports and being "read in on" the security procedures of those ports can possibly not be considered one that "could affect national security"?


Posted by: cmdicely on February 23, 2006 at 11:51 AM | PERMALINK

...and guess who we'll soon find out actually participated in the committee proceedings? same as every other committee: incompetent political appointee cronies of the bushcriminal regime, awarded government jobs based not on their experience and capabilities for the job, but on their loyalty to the bushliar and their ability to raise money for the bushliar's campaigns.

Posted by: pluege on February 23, 2006 at 11:54 AM | PERMALINK
it is the legislature's job to determine WHO does in fact make such a determination. The CFI made such a determination. The legislature had, in fact, deputized its authority (which it was intrinsically...) and now squawks when it disagrees with the decision made by its deputee.

Given the obligation of the executive branch to faithfully execute the laws, I think its perfectly within the Congress' role to "squawk" -- or punish -- when it feels the executive has used the responsibilities Congress has given it to carry out the law in bad faith.

In fact, I'd go further and argue that its Congress' responsibility to object, at least, and impose consequences within its authority in extreme cases, when that occurs.


Posted by: cmdicely on February 23, 2006 at 11:55 AM | PERMALINK

"Er, no. I think you fail to recognize the oversight role that an informed electorate is supposed to play in a democracy, and replace it with the deference to divinely ordained rule of unconstrained autocrats typical called for under monarchy."

sigh. there is this thing called Congress that you apparently hadn't heard of. there are also these things called elections. apparently you haven't heard of them either. the fact that elected politicians (and those they deputize) do things that cmdicely (who speaks for the entire electorate) doesn't like, doesn't make them autocrats.

btw, a word to the wise, it is not exactly unusual for the CFI to seek additional assurances or conditions in order for it to countenance a deal. if this is illegal and outside of the CFI's purview (as determined by a 1-L who combines the legal acumen of Justice Friendly and Learned Hand)...then I would assume a court or Congress would have given the CFI the royal smackdown by now. you're a gunner aren't you?

Posted by: Nathan on February 23, 2006 at 11:56 AM | PERMALINK

Bzzzz...I'm a lawyer!....listen to me; did I mention I'm a lawyer?...bzzzz...Brokeback Mountain...bzzzz....during my stellar legal career....pay attention to me! Somebody!...bzzzzz....while I was practising law as a legal lawyer....bzzzz!

Posted by: Gnathan on February 23, 2006 at 11:59 AM | PERMALINK

pluege:

I highly doubt it. why? cause middle-level cabinet department officials are career employees, generally speaking. those positions aren't significant or well-paid enough to be patronage tools.

Posted by: Nathan on February 23, 2006 at 12:05 PM | PERMALINK

cmdicely:

ask the CFI.

do you know the specifics of the deal? no, you don't.

Posted by: Nathan on February 23, 2006 at 12:07 PM | PERMALINK
sigh. there is this thing called Congress that you apparently hadn't heard of. there are also these things called elections.

I've heard of those. You, however, seem to mistakenly believe democratic participation is limited to those -- this bizarre concept seems pervasive among our right wing trolls, though I suspect it will evaporate the first time the Republican party loses control of one of the political branches -- and ignore that active involvement, advocacy based on information about government actions, and excercise of the right to petition is part of democratic participation as well, and in fact essential to make elections at all meaningful.

btw, a word to the wise, it is not exactly unusual for the CFI to seek additional assurances or conditions in order for it to countenance a deal. if this is illegal and outside of the CFI's purview [...]...then I would assume a court or Congress would have given the CFI the royal smackdown by now.

I wouldn't assume that, at all. Congress has never been particularly strict about the executive exceeding its authority in areas of this kind (where the difference is largely one of who in the executive makes the decision -- the President vs. a designee -- and whether it must be reported to Congress) when it doesn't have a particular reason to object to the outcome, pretty much tending to operate on a "no harm, no foul" rule. That being said, the Executive undertakes a risk when it exceeds its authority that way that the Congress will, with every justification, react particularly furiously if the executive exceeds its authority to avoid notifying Congress in an area where Congress does disagree with the outcome, particularly if its an area that any idiot could have seen would at some point come to light, and would be politically volatile in the present environment.

An interesting debate could, perhaps, be had over whether it would be better for Congress to jealously guard its prerogatives against every executive encroachment even where the particular outcome isn't at issue, but whether or not they should, its pretty clear that they don't, so for you to make the assumption you do is naive if not disingenuous.

Posted by: cmdicely on February 23, 2006 at 12:09 PM | PERMALINK

I highly doubt it. why? cause middle-level cabinet department officials are career employees, generally speaking. those positions aren't significant or well-paid enough to be patronage tools.
Posted by: Nathan

I hesitate to raise this issue but wasn't there a huge outcry about career employees getting replaced in significant numbers by political appointees?

And as for the positions themselves aren't they only 'training wheels' (resume boosters) for lucrative lobbying jobs. Ask that nice young man who was doing public relations at NASA.

I recently read that the average for gov employees in DC is hovering the neighborhood of $68k.

Posted by: CFShep on February 23, 2006 at 12:17 PM | PERMALINK

I do have to ask: how DOES Rove do it? I know he has Fox and the anonymous source bit to help him out, but I just have to watch in admiration as Rove/McClellen pound "9/11, 9/11, 9/11, strong on terra, strong on terra" into every issue from September 12th to this day, and yet when faced with a real national security question (note that I didn't say 'problem', just 'question') they are able to spin the media around 180 degrees without a pause.

Hate the guys as I do, I have to admire them.

I see the trolls are back in operation today; were the talking points finally settled on? Have Rush's callers gotten the message yet?

Cranky

Posted by: Cranky Observer on February 23, 2006 at 12:23 PM | PERMALINK

Bzzzz...No, I'm the better lawyer!....you're just a student; did I mention I actually practice law for a living?....bzzzzz....Pay attention to me!...bzzzzz....Now listen!....bzzzzz....I'm always right....bzzzzz!

Posted by: Gnathan II on February 23, 2006 at 12:24 PM | PERMALINK

"I've heard of those. You, however, seem to mistakenly believe democratic participation is limited to those -- this bizarre concept"

well...it is in the Constitution. You might want to read the Federalist Papers as well. you may want a more participatory democracy...but it's certainly not legally mandated.

"An interesting debate could, perhaps, be had over whether it would be better for Congress to jealously guard its prerogatives against every executive encroachment even where the particular outcome isn't at issue, but whether or not they should, its pretty clear that they don't, so for you to make the assumption you do is naive if not disingenuous."

Since they didn't squawk over previous purported encroachments...it makes it more difficult for them to do so now (which I guess is your point). But the fact that there is precedent for prior similar, unchallenged actions by the CFI...makes it more difficult for you to assert that such actions must be illegal.

Posted by: Nathan on February 23, 2006 at 12:25 PM | PERMALINK


Thats bullshit. We all know that if the president says no laws were broken or if is for national security then that is the end of it. What country do you think you are living in ?

There is no law that applies to the executive in a time of war.

Posted by: Pablo on February 23, 2006 at 12:34 PM | PERMALINK
well...it is in the Constitution.

Strange, my Constitution includes a provision intended to protect other forms of participation -- particularly political advocacy in speech and writing, and petitioning the government -- and doesn't restrict participation to elections.

Maybe the one you think exists doesn't feature this:

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.

Election imposes accountability, but participation is necessary to inform incumbent and prosective office-holders of the rules they will beheld accountable to. Without it, elections don't provide meaningful accountability, as representatives can hardly reflect the will of the people if all they know is whether or not they won an election.

You really don't get democracy at all, do you?

Posted by: cmdicely on February 23, 2006 at 12:42 PM | PERMALINK

Democracy is quaint and outdated.

Posted by: L'cureuil Gant on February 23, 2006 at 12:51 PM | PERMALINK

cmdicely:

the petition function refers to the judicial branch.

as for the exercise of speech...that has no bearing on what your elected representatives must do. you seem to have this idea that your elected representatives must respond to opinion polls and web posts made by cmdicely. They can certainly take that into consideration if they want, but they are under no Constitutional obligation to do so.

Posted by: Nathan on February 23, 2006 at 1:05 PM | PERMALINK

the petition function refers to the judicial branch

Boing boing boing!

Sorry, spring popped out of my head.

Mr. Adam Newton puts the whole thing in some very useful context...

By Adam Newton
Lawyer & contributing writer

"Congress shall make no law abridging the right of the people to petition the Government for a redress of grievances."
from the First Amendment

The petition clause concludes the First Amendments ringing enumeration of expressive rights and, in many ways, supports them all. Petition is the right to ask government at any level to right a wrong or correct a problem.

Although a petition is only as meaningful as its response, the petitioning right allows blocs of public interests to form, harnessing voting power in ways that effect change. The right to petition allows citizens to focus government attention on unresolved ills; provide information to elected leaders about unpopular policies; expose misconduct, waste, corruption, and incompetence; and vent popular frustrations without endangering the public order.

Yet the petition clause seems to strike most courts and legal commentators as obvious and uninteresting. Citizens and litigants invoke the First Amendment to secure Internet freedom, undisturbed worship, or a robust press, but petitioning rights dont seem to attract much notice. The right to complain is hardly something that starts wars or is it?

Some history
On July 4, 1776, the countrys Founders adopted a famous statement of principles and list of grievances, declaring that:

"In every state of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince, whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people."

King George IIIs crowning wrong, in the end, was his indifference: Those who revolted felt they had no other recourse. In building a new democracy, the Founders avoided the kings mistake by guaranteeing political receptiveness to public concerns.

The amendments that would become the Bill of Rights initially listed the rights of assembly and petition separately from free-speech protections. As the early House and Senate debated "the peoples right to instruct their Representatives," their deliberations echoed the momentous accommodation between King John and his barons at Runnymede more than 500 years earlier. In 1215, King John signed the Magna Carta, which recognized the right of the barons to petition the crown. From this contract grew the tradition allowing British subjects to submit their grievances to the kings council and, with the ascendancy of Parliament, to the House of Commons.

Posted by: Pale Rider on February 23, 2006 at 1:16 PM | PERMALINK

Nathan, I really think....

ZZZZZZZZZZZZZZZZZZZZZZZZZZZZZZ........

Posted by: Baldrick on February 23, 2006 at 1:23 PM | PERMALINK

the petition function refers to the judicial branch.

Er, no. That's flatly wrong. A 1-L should know that, for God's sake.

Speaking as a lawyer (two can play that game!) while most case law on the petition clause has tended to focus on the judicial branch, petitioning as a whole involves any legal means of encouraging or disapproving government action, whether directed to the judicial, executive or legislative branch (including lobbying, letter-writing, e-mail campaigns, testifying before tribunals, filing lawsuits, supporting referenda, collecting signatures for ballot initiatives, protesting, picketing, etc). All public expression of issues, complaints and interests designed to spur government action qualifies under the petition clause, even if the activities partake of other First Amendment freedoms.

See, e.g., McDonald v. Smith (1985) (Supreme Court ruled that the petition clause "was inspired by the same ideals of liberty and democracy that gave us the freedoms to speak, publish, and assemble...."); Thornhill v. Alabama, 310 U.S. 88 (1940) (orderly picketing protected by right of petition); United States v. Harriss, 347 U.S. 612 (1954) (Supreme Court upheld the authority of Congress to require certain lobbyists to register); Edwards v. South Carolina, 372 U.S. 229 (1963) (Supreme Court overturned the breach of the peace convictions of 180 black students who had peacefully marched to protest discrimination, holding that state law penalized the right of petition for a redress of grievances); Brown v. Louisiana, 383 U.S. 131 (1966) (Court reversed the convictions of five black individuals who participated in a peaceful sit-in at a local branch library to protest segregation, based on their right of petition and freedom of assembly), etc.

Posted by: Stefan on February 23, 2006 at 1:24 PM | PERMALINK

Stefan, Stefan:

for frick's sake...you know what I meant.
petitions that have LEGAL EFFECT are actions made in a court of law. political speech is of course protected by the First Amendment.

Posted by: Nathan on February 23, 2006 at 1:36 PM | PERMALINK

Finally. It is dawning on our Political Pussycat that something smells just a little ratten about this Dubai ports deal.

Posted by: Libby Sosume on February 23, 2006 at 1:45 PM | PERMALINK

Adding the obscure debate with the Constitution obscures CmDicely main point: Clearly the operating control of major US ports DOES affect national security. So if no CFI member said - heh, wait we must have a thorough investigation! that means that they weren't doing their job.

And wonderfully, the NY Times report verifies CMdicely's intuition: there was a secret deal involved in this contract. One that made sure that all the corporate interests of the investors were covered. How sweet.

What this argument illustrates that if one starts with an absurd assumption or an absurd premise, it's pretty easy to then string together a nice sounding string of logic. But it doesn't make the conclusion any less absurd.

This case is a nice illustration of that. So is the warrantless spying case. So are John Yoo's arguments of "unitary" executive power. Or the US official claim that the UN had already authorized an invasion of Iraq.

In each case that absurd premise is what drives the conclusion. All the intermediate logic steps are then just fluff.

Posted by: Samuel Knight on February 23, 2006 at 1:51 PM | PERMALINK
I see the trolls are back in operation today; were the talking points finally settled on? Have Rush's callers gotten the message yet?

I still find them quite muted, which, as I maintain, demonstrates the salience of this issue. Oh, and the fact that David Brooks wrote about it today.

Posted by: SavageView on February 23, 2006 at 2:44 PM | PERMALINK

Shorter Samuel Knight: GIGO

Though, admittedly, his defense of logic is more elegant.

Posted by: CFShep on February 23, 2006 at 2:45 PM | PERMALINK

As usual, the issue of exporting work to foreign companies seems to be danced around. Basically, America is itself losing the capability to run its own ports. The Navy retains some capabilities in this area...but is woefully unprepared to take over the task, should major hostilities breakout. The National Security review should involve a review of the danger to our national security in the event that a major shipping company ends up incapable or even a hostile nation during a time of war. Are we working to make sure that hostilities never breakout that we would need our ports under good control quickly? Or, are we just selling off America's power to the lowest bidder? Let's ask the Cavaler Leader...

Posted by: parrot on February 23, 2006 at 3:16 PM | PERMALINK

It's sad, but if Congress and the Courts don't slap Bush down over the NSA spying, then he apparently can do whatever he (and his unitary administration) wants in this post-9/11 age.

Dictatorin' is on the move.

Posted by: MarkH on February 23, 2006 at 3:18 PM | PERMALINK

Re Nathan the Manhattan lawyer -- on the Internet, noone knows you're a dog.

Posted by: txobserver on February 23, 2006 at 4:02 PM | PERMALINK

Do the Emirates have money or what? An 8-page supplement falls out of USAToday today,

Our World The United Arab Emirates The Inspiration of the Middle East

Posted by: cld on February 23, 2006 at 4:07 PM | PERMALINK
the petition function refers to the judicial branch.

No, the petition function does not refer, exclusively, to the judicial branch. As others have explained quite well.

as for the exercise of speech...that has no bearing on what your elected representatives must do.

Nor have I suggested it does. I stated that it was an essential part of the mechanism of democratic accountability because it provides notice, wherein election provides ordinary enforcement.

Posted by: cmdicely on February 23, 2006 at 4:14 PM | PERMALINK

You know, watching this whole debate unfold, I'm still pretty stumped on where I stand. This is not like NSA wiretapping, which is a clear slippery slope to executive overreach. This is an example of SOP in the shipping world, and it reflects more on our whacked-out balance of trade than anything else.

Yes, Dubai has a mixed record with terrorism and allowing its port to be used as a staging ground, most scarily for AQ Khan. But these shipping executives are the *last thing* from Salafi fanatics, and a huge portion of our Persian Gulf force is stationed in Dubai. It's hard to believe that if the military trusts port administration in Dubai to keep out the kind of mongos who blew a hole in the Cole, that there'd be a legitimate reason to become suspicious enough to quash the deal for that reason alone.

The real issue is our woefully inadequate port security -- which almost everyone acknowledges has little to do with who owns the ports per se. If this focues public and Gongressional attention on that, then this whole flap would have served a valuable purpose.

And if cmdicely wins the argument with Nathan over legal oversight (I'm not competent to judge), then it's also a good thing to watch Congress flex its muscle over the Executive just on principle.

Politically, it's tone deaf and a veto would hurt Bush. A veto override would, of course, would be pure gold :)

Bob

Posted by: rmck1 on February 23, 2006 at 4:17 PM | PERMALINK

ack, apologies for egregious typos and screwed syntax.

Posted by: rmck1 on February 23, 2006 at 4:20 PM | PERMALINK

for frick's sake...you know what I meant.
petitions that have LEGAL EFFECT are actions made in a court of law. political speech is of course protected by the First Amendment.

That may be what you meant, but it's not what you wrote. Cmdicely was discussing the First Amendment's "petition of grievances" clause and you responded with "the petition function refers to the judicial branch." First of all, no, it doesn't exclusively, and second, it was quite clear that cmdicely was referring to the right of petition in the broadest sense, not merely in the sense that you now claim you were referring to.

Posted by: Stefan on February 23, 2006 at 4:21 PM | PERMALINK

Re Nathan the Manhattan lawyer -- on the Internet, noone knows you're a dog.

Er, well, in Nathan's case the evidence is fairly compelling.

Stefan's a lawyer? That's not my mental picture. I don't like it when my little Internet friends don't perfectly match my mental pictures.

Just kidding, Stef. I didn't know that, actually, but it's not surprising, and your low-key attitude shows up Nathan's self-aggrandizing playground boasts in sharper contrast.

Posted by: shortstop on February 23, 2006 at 4:22 PM | PERMALINK

Stefan's a lawyer? That's not my mental picture. I don't like it when my little Internet friends don't perfectly match my mental pictures.

Yep, I am. Or, as I prefer to call it, a "law-talkin' guy." That leaves me curious, though, as to what exactly your mental picture of me was....

Posted by: Stefan on February 23, 2006 at 4:40 PM | PERMALINK

your low-key attitude

If my girlfriend ever reads that there are people who think I have a "low-key attitude" she'll laugh herself silly....

Posted by: Stefan on February 23, 2006 at 5:06 PM | PERMALINK

If my girlfriend ever reads that there are people who think I have a "low-key attitude" she'll laugh herself silly....

I'm exactly the opposite as to how I come across on this blog--people who I deal with on a daily basis describe me as very relaxed and low key. I guess what causes me to launch vicious attacks and set trolls on fire and then laugh hysterically as they burn to a screaming, bloody crisp is the notion that, while I was in uniform, I couldn't do much politically to express my frustration with what has been going on in the world.

Posted by: Pale Rider on February 23, 2006 at 5:36 PM | PERMALINK

Stefan, I meant that you were low key about your professional life. Which is a good thing. Too much self-proclaimed, unique, irreplaceable, unimpeachable expertise on this blog lately, IMO.

PR, you know you're still in uniform. It's just that now Mrs. PR makes you wear the French sommelier uniform, the Starship Trooper uniform, the c. 1965 commercial pilot's uniform....

But you said you like that.

Posted by: shortstop on February 23, 2006 at 7:22 PM | PERMALINK

"I may be a lawyer, but at heart I am just a humble cave man. As a matter of fact, your technology, these small devices through which you speak, these flat panels which display far off images, they scare me."

"However, I do know this, that this group of people you call "Republicans," they have appeared to sell what you refer to as "homeland security" to the very people, how do you pronounce it, "A - rab ter-ror-rists."

Posted by: hank on February 23, 2006 at 7:28 PM | PERMALINK

Who are the committe members? Would a reading give us interesting clues?
PS - reminder that UAE is also getting control over *military* port operations in Corpus Christi and Beaumont, TX! - you don't hear much about it. I hope Kevin will mention it now that I e-mailed him regarding this!
One link from a "liberal" outfit that's opposed, another link from a
"conservative" writer who's opposed:

http://thinkprogress.org/2006/02/20/uae-military-equipment/
http://www.renewamerica.us/columns/gaffney/060220

Posted by: Neil' on February 23, 2006 at 8:22 PM | PERMALINK

Cheney,

What is it with you guys and violence against women? Today we had Cut 'N Run Jay telling us he wanted to take on Cindy Sheehan and here you are--wonderful example of a man that you are--joking about taking a shot at shortstop.

You both typify the new Republican Party--you don't dare go up against anyone who can kick your ass so you go after women.

Well, the womenfolk around here can certainly take care of themselves against the likes of you. That's for damn sure.

Posted by: Pale Rider on February 23, 2006 at 10:13 PM | PERMALINK

The LAWYER is the one who gets shot ; )

Right.

So that makes you quite the law and order man, doesn't it?

There's nothing funny about someone getting shot. I made a conscious decision not to join in on the whole 'Shotgun Cheney' discussions because I'm from a hunting and fishing state and I just don't really see the humor in a 78 year-old man getting shot by his drunken friend and then having to live with over a hundred pellets in his body.

I dunno...something about knowing people who have been injured/killed/disabled in hunting accidents.

But keep joking about shooting people, Cheney. You're probably too much of a hamfisted idiot to know how to handle a gun.

Posted by: Pale Rider on February 23, 2006 at 10:48 PM | PERMALINK

Isn't Snow going to be making about $32,000,000 from this merger?
Options Agreement. Notice they fully vest if CSX changes ownership.
Carlyle Group purchases CSX. The Carlyle Group is bush_senior

Posted by: Grindel on February 24, 2006 at 8:51 AM | PERMALINK

Perhaps disregard for the law as well?:

Our cmdicely thinks that part of the ports deal may be illegal: "There is an outright prohibition in 50 USC App. 2170a on defense contracts which require access to any sensitive information at all from being transferred to entities controlled by foreign governments." But Dubai Ports World, which is under direct control of UAE and not a private company in our sense of the term, will get access to US Army port operations at Texan ports of Beaumont and Corpus Christi through 2010, which they would acquire from British company P&O if this Dubai-ous deal goes through. See 2/20 edition of the British paper Lloyd's List:
~~~
[P&O] has just renewed a contract with the United States Surface Deployment and Distribution Command to provide stevedoring[loading and unloading] of military equipment at the Texan ports of Beaumont and Corpus Christi through 2010.
~~~
P&O is being bought by United Arab Emirates company Dubai World Ports. One link from a "liberal" outfit that's opposed, another link from a "conservative" writer who's opposed:

http://thinkprogress.org/2006/02/20/uae-military-equipment/
http://www.renewamerica.us/columns/gaffney/060220

The one place I could get reference to this law via Google:

http://www.softinfusion.com/gpoaccess/Bill_103-s1337es.htm

Posted by: Neil' on February 24, 2006 at 8:53 AM | PERMALINK

My irony meter is reading "Tilt'.

First of all, no, it doesn't exclusively, and second, it was quite clear that cmdicely was referring to the right of petition in the broadest sense, not merely in the sense that you now claim you were referring to.
Posted by: Stefan

Exactly.

In fact lobbyists of all degrees of shadiness justify their activities by citing the right of petition. They argue that any attempt whatsoever to rein their activities in in form or degree deprives them of their Constitutional rights.

Ugh.

Posted by: CFShep on February 24, 2006 at 9:07 AM | PERMALINK

to whom this may concern, i have read every thing i can get too, on net of this deal with dubi,i think! its time for corps of this world to stop the intake' before its just 3 or 4 left > then just 2 ? wonder where they will take from then ? thereself ? haha . sad facts of reality . the rich get richer. the rest are left in the wash. cee you again' hugh.

Posted by: hugh bellamy on February 25, 2006 at 5:14 AM | PERMALINK




 

 

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