[font size=4]White House to preserve controversial
policy on NSA, Cyber Command leadership[/font]

The Obama administration has decided to preserve a controversial arrangement under which a single military official is permitted to direct both the National Security Agency and the military’s cyberwarfare command despite an external review panel’s recommendation against doing so, according to U.S. officials.

The decision by President Obama comes amid signs that the White House is not inclined to place significant new restraints on the NSA’s activities and favors maintaining an agency program that collects data on virtually all phone calls of Americans, although it is likely to impose additional privacy-protection measures.

Some officials, including top U.S. intelligence officials, had argued that the NSA and Cyber Command should be placed under separate leadership to ensure greater accountability and avoid an undue concentration of power.

“Following a thorough interagency review, the administration has decided that keeping the positions of NSA Director and Cyber Command commander together as one, dual-hatted position is the most effective approach to accomplishing both agencies’ missions,” White House spokeswoman Caitlin Hayden said in an e-mail to The Washington Post.

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I’m old enough to remember when Sen. McConnell insisted on up-or-down votes for judicial confirmations.

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I've seen a lot of weeping, wailing and gnashing of teeth in comments around the web today, mostly by conservatives but some by liberals as well, to the effect that in eliminating the filibuster of most presidential appointees, that somehow the "rights" of the minority party have been trampled upon. To that I say, balderdash! Rights, under the Constitution, attach to TWO entities: (1) to citizens as individuals, and (2) to states. The Constitution doesn't even contemplate the existence of political parties, let alone a system wholly dominated by only two, so to speak of any party or political faction as having "rights" is to speak nonsense.

(Actually, the framers did take care to protect one kind of minority right in structuring the legislature as they did. They were concerned about limiting the ability of more populous states to run rough-shod over the interests of less populous states, hence the arrangement of two Senators per state regardless of population. I would argue that they went way overboard in that direction, but I'll leave that for another post.)

Three things are clear. First, the Constitution vests in the presidency the power to fill federal judicial vacancies (and executive branch positions), giving to the Senate AS A WHOLE the role of advise and consent. Second, nowhere does the Constitution provide, nor can any reasonable case be made that it in anyway is intended to provide, for a situation in which a minority party in the Senate can prevent the Senate as a body from performing the role assigned to it by the Constitution. And third, while the Constitution permits each legislative chamber to set its own procedural rules, to suggest that in doing so, the framers intended to create a situation in which a Senate procedural rule (i.e., the filibuster) could be abused by a minority political party in such a way as to impede the Senate from exercising its Constitutionally-appointed role, is simply beyond absurd.

The ability to use a filibuster against executive branch appointees was something that began as a courtesy. Republicans, since President Obama took office in 2009, have employed it in a totally unprecedented way and an unprecedented number of times (roughly HALF OF ALL THE SENATE FILIBUSTERS THAT HAVE BEEN INVOKED IN THE NATION'S HISTORY HAVE OCCURRED SINCE PRESIDENT OBAMA TOOK OFFICE). In doing so, Republicans have abused the courtesy of the filibuster.

All of this has centered on the filling of three vacancies on the Second Circuit Court of Appeals for the District of Columbia, arguably the second-most important court in the country next to the Supreme Court. The court normally has a panel of 11 judges. Of the eight serving judges, four are liberal and four are conservative. It happened that three seats became vacant during this Presidency. The three nominees the President has put forth are, by any standard, moderate jurists. Republicans have raised no principled objection to any of them, nor is there any known scandal that should prevent their confirmation. This is ultimately about one thing: preventing the consequences that flow from the President having been re-electred.

Republicans have been accusing President Obama of attempting to "pack the court" with liberal judges. "Packing the court" is a phrase that has a particular history in this country. The phrase originates during the term of FDR, who faced a solidly conservative Supreme Court that was attempting to block him at every turn. FDR threatened to increase the number of justices on the court, filling the new seats with his own appointees, if the court continued to obstruct his agenda. (The court backed down under the threat.) It does NOT refer to a sitting President making the nominations he sees fit to fill vacancies that arise during his term.