Thursday, July 19, 2007

The Big Apple Is Once Again Gripped With the 9/11 Jitters After Blast

At Least One Person Is Killed in Explosion of 83-Year-Old Steam Pipe That Wreaks Havoc in Midtown Manhattan; Blast Comes Amid Controversy Over Cuts in Federal Anti-Terror Funding to New York


Steam and smoke billow from Lexington Avenue in midtown Manhattan near the Art Deco-spired Chrysler Building after an underground steam pipe exploded Wednesday near Grand Central Station in New York. The blast, which swallowed a tow truck and left a 30-foot crater in the street, killed one person and injured at least 20 others and sent pedestrians fleeing from the area in scenes reminiscent of the September 11, 2001 terrorist attacks. (Photo: Daniel Modell/Reuters)

By Skeeter Sanders

As a native of New York City, this blogger, like billions of other people around the world, watched in utter horror on that awful day in September 2001 as the twin towers of the World Trade Center collapsed in heaps of dust on live television shortly after two hijacked jetliners smashed into them and exploded, killing over 3,000 people.

Ever since that horrible day, I instantly fear the worst whenever something catastrophic happens in my native city -- even though it's been more than 25 years since I left the "Big Apple." But that's nothing compared to how those who still call New York home feel.

That excruciating feeling struck again on Wednesday when news broke of an underground steam pipe explosion ripping through a Manhattan street near Grand Central Terminal, killing at least one person and injuring at least 20. The blast swallowed a tow truck as panicked pedestrians ran for cover amid a towering geyser of steam and flying rubble.

Was it al-Qaida striking the city again?

The timing of the explosion -- coming just a day after disclosure of a new National Intelligence Estimate that suggested that the Islamic extremist group was intent on attacking the United States -- could not help but to spark fears of another terrorist attack. And for a brief time, there was a panic on the streets of midtown Manhattan.

But Mayor Michael Bloomberg was swift in declaring that the blast wasn't terrorism, but rather "a failure of our infrastructure." The two-foot-diameter steam pipe was installed in 1924. The explosion was the largest of its kind in New York in 28 years.

Chaos Reigns At the Height of the Evening Commute

One person was pronounced dead at Bellevue Hospital from an apparent heart attack, Bloomberg said. About 30 people were injured, at least four seriously. Authorities could not immediately account for how the most seriously wounded victims were injured.

Widespread chaos erupted as Midtown residents and home-bound commuters heard the massive explosion at the intersection of 41st Street and Lexington Avenue — and feared for the worst. Thousands of jittery commuters evacuated the train terminal after workers yelled for people to get out of the building.

A geyser of steam and mud shot from the center of the explosion, generating an earthquake-like shock wave that was felt for a mile in all directions. The initial burst of steam rose higher than the nearby 77-story Chrysler Building, Manhattan's second-tallest skyscraper.

An Eerie Scene Reminiscent of 9/11 Disaster

In an eerie echo of the ash cloud generated by the collapse of the twin World Trade Center towers on 9/11, soot fell from the sky, covering both vehicles and pedestrians. Some pedestrians were soaked from rains of mud. The sky was blackened. And people wandered aimlessly, not knowing where to go.

A city bus was abandoned in the middle of Lexington Avenue, covered with grit. A woman who was bleeding profusely was being helped by police while a man lay on a stretcher in the street.

Debbie Tontodonato, an advertising agency manager, told The Associated Press she thought the rumble from the 6 p.m. explosion was thunder. "I looked out the window and I saw these huge chunks that I thought were hail," she said. "We panicked, I think everyone thought the worst. Thank God it wasn't. It was like a cattle drive going down the stairs, with everyone pushing. I almost fell down the stairs."

Heiko H. Thieme, an investment banker, had mud splattered on his face, pants and shoes. He said the explosion was like a volcano. "Everybody was a bit confused, everybody obviously thought of 9/11," Thieme told the AP.

"We ran down 43 floors thinking we were going to die," Megan Fletcher, who works for an Australian company in the Chrysler Building, told Reuters. "It looked like when the buildings collapsed on 9/11."

Blast Came Just Hours After Flooding Caused By Heavy Rainstorm

Streets were closed in several blocks in all directions. Subway service in the area was suspended. Chris Olert, a spokesman for the city's power company, Consolidated Edison, said workers were still trying to determine what caused the explosion.

Con Ed CEO Kevin Burke said the site had been inspected earlier Wednesday after heavy rains flooded parts of the city, but crews found nothing at that time.

Rescue workers and others covered in soot and mud were being decontaminated at the scene by hazardous materials specialists. There were concerns about what was spewed into the air. Some of the pipes carrying steam through the city are wrapped in asbestos. "The big fear that we have is there may or may not have been asbestos release," Bloomberg told reporters in an impromptu press conference.

Officials wouldn't know test results until later, the mayor said, "but if there was a release it may have washed away with the water that came with the steam."

Controversy Over Cuts in Federal Anti-Terror $$$ to New York

Wednesday's explosion also comes against the backdrop of a controversy over over cuts made last year in federal funding to New York anti-terrorism programs -- and comments last week by Homeland Security Secretary Michael Chertoff that he had a "gut feeling" that a terrorist attack may be coming inside the U.S. sometime this summer.

Chertoff was pilloried by New York officials in 2006 when his agency cut the city's share of a program for high-threat locations by 40 percent. But Chertoff said Wednesday that 2007 will be New York's "biggest year ever" for anti-terror help from the federal government, announcing that New York's share of anti-terror funds was being increased to $134 million.

The figure, while eight percent higher than last year's allotment, is still significantly lower than the $207 million the city received in 2005. And Chertoff warned states and cities that the checks aren't "annuities or entitlements like Social Security" designed to pay in perpetuity.

"Secretary Chertoff said the preponderance of the threat is still in New York, yet we get 18 percent of the money," New York's Police Commissioner Ray Kelly said. "So, it just simply doesn't add up.

"If the preponderance [of the threat of new terrorist attacks] is here, the preponderance of the [anti-terrorism] money should be here," Kelly said.

New York's Biggest Steam Pipe Blast Since 1989

Millions of pounds of steam are pumped beneath New York City streets every hour, heating and cooling thousands of buildings, including the Empire State Building. The steam pipes are sometimes prone to rupture, however.

In 1989, a gigantic steam explosion ripped through a Brooklyn street, killing three people and sending mud and debris -- including asbestos -- several stories into the air. That blast prompted the city to issue a health alert for the asbestos.

The 1989 explosion was caused by a condition known as "water hammer," the result of condensation of water inside a steam pipe. The sudden mix of hot steam and cool water can cause pressure to skyrocket, bursting the pipe.

City on Edge Since 9/11

New York has been on a continuously heightened state of alert ever since the 9/11 attacks and any large scale emergency prompts a certain degree of panic among a jittery population. While the national terror threat alert has been at Code Yellow for months, New York has remained under Code Orange --the second-highest terror alert level.

A similar panic erupted last October when a small plane piloted by New York Yankees pitcher Cory Lidle crashed into a high-rise Manhattan apartment building, killing the 34-year-old Lidle and his flight instructor.

That crash immediately touched off fears of a repeat of the 9/11 attacks. The North American Aerospace Defense Command (NORAD) put fighter aircraft into the air over numerous U.S. cities as a precaution. Once it was certain the incident was not a terrorist attack, NORAD called its jets back.

And in October 2005, security in and around New York's subways was sharply increased after city officials said they were notified by federal authorities in Washington of a terrorist threat that for the first time specifically targeted the city's transit system.

Ironically, this latest nerve-jangling episode also comes on the 30th anniversary of the Big Apple's infamous "Summer From Hell," which saw New Yorkers sweltering in the city's worst-ever heat wave, terrorized by "Son of Sam" serial killer David Berkowitz and victimized by out-of-control looting during a city-wide, 24-hour power blackout.

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Volume II, Number 36
Copyright 2007, Skeeter Sanders. All rights reserved.


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Monday, July 16, 2007

Once Again, Bush Thinks He Can Act Above the Law

President Ignores Court Rulings Against Nixon and Clinton That Executive Privilege Cannot Be Invoked Against Investigations of Possible Wrongdoing By Members of the Executive Branch


President Bush speaks to reporters at his first press conference Thursday in the newly-remodeled James Brady Press Briefing Room at the White House. But a confrontation between the White House and Congress over Bush's invocation of executive privilege in the growing U.S. attorney firings scandal may soon be fought out in the courts -- and could make Bush's future meetings with reporters as unpleasant as those of Richard Nixon when the Watergate scandal drove him out of office in 1974. (Photo: Jason Reed/Reuters)

By Skeeter Sanders

The philosopher George Santayana is famous for warning that "Those who fail to learn from history are condemned to repeat it." As a constitutional confrontation becomes more and more likely between the White House and the Congress over the firings of nine U.S. attorneys, it's pretty clear by now that President Bush has once again failed to heed Santayana's warning.

It's bad enough that Bush has boldly claimed an unbridled executive authority to spy on Americans without court warrants, despite a unanimous 1972 Supreme Court ruling to the contrary -- as this blogger has pointed out in this space again and again for more than 18 months.

Now Bush is claiming an unbridled executive privilege, despite a series of court rulings to the contrary dating all the way back to Thomas Jefferson's presidency!

In refusing, on the grounds of executive privilege, to allow former White House aide Harriet Miers to testify before the House Judiciary Committee investigating the U.S. attorney firings, Bush this time has stepped into a pool of legal quicksand from which he may be unable to free himself -- and which, if he's not careful, could destroy his presidency.

He has chosen to ignore court rulings against two of his predecessors -- Richard Nixon and, more recently, Bill Clinton -- that a president's claim of executive privilege cannot be invoked against investigations of possible wrongdoing by members of the executive branch.

U.S. Attorney Firings May Have Violated the Hatch Act

There are indeed mounting suspicions that members of the executive branch may have broken the law in dismissing those nine U.S. attorneys. It is a violation of the 1939 Hatch Act for executive branch officials to use promises of jobs, promotions, financial assistance, contracts, or any other benefits to coerce political support.

Legal experts have interpreted the Hatch Act to also bar the hiring and firing of civil servants for purely partisan political reasons that have nothing to do with their qualifications and/or their performance on the job (Ironically, the Hatch Act was passed by a Democratic-controlled Congress in an open rebellion against Democratic President Franklin D. Roosevelt over massive corruption in Roosevelt's Works Progress Administration).

While it's not unusual for a federal prosecutor to be fired for outright malfeasance -- President Ronald Reagan fired two prosecutors for misconduct in 1982 and 1984 -- almost no evidence has emerged that any of the nine U.S. attorneys fired last year failed to do their jobs properly.

Democrats (and a growing number of Republicans) on Capitol Hill have openly accused Attorney General Alberto Gonzalez of political partisanship in his handling of the firings and have demanded his resignation.

A court battle over Bush's claims of executive privilege grew more likely Friday when the House Judiciary Committee began the process toward citing Miers -- an unsuccessful nominee for the Supreme Court -- for contempt of Congress for failing to comply with a committee subpoena to testify about her role in the growing scandal over the dismissals.

Nixon and Clinton Found Out the Hard Way

That Bush is claiming broad executive privilege in refusing to allow executive branch testimony or the release of documents in the U.S. attorney firings in particular is a highly risky strategy that is not supported by past legal precedents.

No less an authority than the Supreme Court ruled unanimously in 1974 that Nixon's broad claims of absolute executive privilege "must yield to the demonstrated, specific need for evidence in a pending criminal trial" and ordered Nixon to turn over "forthwith" tape recordings of White House conversations needed for the trial of Nixon's highest aides in the Watergate scandal that ultimately forced his resignation.

And a U.S. District Court judge, citing the Supreme Court's ruling against Nixon, declared in 1998 that Clinton could not invoke executive privilege to block prosecutors from questioning his senior aides in the Monica Lewinsky sex scandal that led to Clinton's impeachment the following year (The Clinton White House, to its credit, declined to appeal the judge's order).

How can our current president be so arrogant about his power -- or be so blissfully ignorant of constitutional history?

1974: Nixon Must Turn Over Watergate Tapes

Then-Chief Justice Warren Burger delivered the historic Supreme Court judgment, a 31-page opinion that drew heavily on both the great cases of the high court's past, as well as the pro-prosecution edicts of a court then dominated by Nixon appointees.

The justices concluded that the judiciary must have the last word in an orderly constitutional system, even though its view of the Constitution is "at variance with the construction given the document by another [executive] branch."

Dismissing warnings by then-White House counsel James St. Clair that it was in "an impeachment thicket," the court handed down its 8-to-0 ruling -- with Justice William Rhenquist disqualifying himself -- on May 1, 1974, just hours before the House Judiciary Committee was scheduled to open debate on proposed articles of impeachment against Nixon.

The decision had profound implications for the impeachment proceedings. Although the justices said they were not concerned with "congressional demands for information," the ruling weakened the White House legal argument against Judiciary Committee subpoenas.

As it turned out, when the White House finally turned over the tapes to Watergate prosecutor Leon Jaworski, the infamous "smoking gun" tape -- revealing Nixon's order to cover up the break-in at the Democratic Party's national headquarters in Washington's Watergate office complex -- was ultimately made public, dooming Nixon's presidency.

His impeachment made virtually a fait accompli by disclosure of the incriminating tape, Nixon resigned on August 8, 1974.

1998: Clinton Must Turn Over Documents in Lewinsky Scandal

In a ruling issued under seal on May 1, 1998, U.S. District Court Judge Norma Holloway Johnson concluded that independent counsel Kenneth Starr's need to collect evidence in his obstruction-of-justice probe in the Monica Lewinsky scandal outweighed Clinton's interest in preserving the confidentiality of White House discussions.

Clinton had invoked both executive privilege and attorney-client privilege to prevent Starr from asking then-deputy White House counsel Bruce Lindsey, communications adviser Sidney Blumenthal and other top White House aides about conversations regarding the Lewinsky case. Johnson dismissed Clinton's attorney-client privilege claim on the grounds that Clinton could not use government-paid White House lawyers to aid his defense in a criminal probe.

Starr was investigating whether Clinton had lied under oath about having an improper sexual relationship with Lewinsky -- a former White House intern -- and had asked her to do so as well. Judge Johnson sided with Starr by ordering Lewinsky's attorneys to comply with a subpoena and by rejecting Lewinsky's claim of a binding immunity agreement with prosecutors.

Johnson also relied heavily on an earlier ruling by the Eighth U.S. Circuit Court of Appeals in St. Louis that invalidated a separate claim of attorney-client privilege by the Clinton White House in Starr's initial probe of Whitewater, an ill-fated land deal involving Clinton and his wife, Hillary, while he was governor of Arkansas in the 1980s.

That case involved Starr's efforts to subpoena notes taken by White House lawyers during discussions with the then-first lady in 1995 and 1996 about the land deal. The appeals court denounced as "a gross misuse of public assets" the use of White House lawyers for the Clintons' defense in the Whitewater probe.

The Supreme Court subsequently refused to hear a White House request to hear an appeal of the Whitewater ruling, apparently prompting Clinton to decide not to appeal Johnson's ruling in the Lewinsky case (The Clintons were eventually cleared of any wrongdoing in the Whitewater deal).

President Clinton agreed to testify before the grand jury called by Starr -- but only after negotiating the terms under which he would appear.

Incredibly, Documents in 'Friendly Fire' Death of Pat Tillman Also at Issue

The Bush White House added fuel to the confrontational atmosphere Thursday by also refusing to comply with congressional requests for documents about not only the decision to replace the prosecutors last year, but also -- incredibly -- the death of former NFL player Pat Tillman in 2004.

Tillman, who abandoned his NFL career to enlist in the Army following the September 11, 2001 terrorist attacks, was killed by so-called "friendly fire" -- shot to death by fellow American soldiers -- while on patrol in Afghanistan.

White House counsel Fred Fielding flatly declared "off-limits" certain papers relating to discussions of Tillman's death, asserting that to turn them over to Congress would "implicate executive branch confidentiality interests."

Representatives Henry Waxman (D-California), chairman of the House Committee on Oversight and Government Reform, and Thomas Davis III (R-Virginia), the committee's ranking Republican, objected vehemently to the refusal Thursday in letters to the White House and the Defense Department.

They insisted that the more than 10,000 pages of documents that the White House already turned over to the committee did not include communications between senior White House officials and top military officers shortly after Tillman was killed.

The circumstances of Tillman's death became highly controversial. The military at first said that Tillman was killed in a fierce firefight with Taliban insurgents, despite clear evidence that he had been shot by his fellow soldiers at close range. More than a month later, the Pentagon publicly acknowledged that Tillman's death was caused by "friendly fire."

Executive Privilege: Claim Started With George Washington

The notion of executive privilege dates all the way back to the nation's first president, George Washington.

In 1796, Washington refused to comply with a request by the House of Representatives for documents relating to negotiations between the United States and Britain that led to the Jay Treaty of 1794 -- better known as the Treaty of London -- that formally ended hostilities between the young U.S. and its former mother country.

Citing Article I of the Constitution that gives the Senate the sole authority to ratify treaties reached between the United States and other countries, Washington argued that the House had no legitimate claim to the material and instead turned the documents over to the Senate.

Jefferson Claimed Executive Privilege in Aaron Burr Trial -- and Lost

President Thomas Jefferson invoked executive privilege during the 1807 treason trial of Aaron Burr. Burr asked the trial court to issue a subpoena to compel Jefferson to provide his private letters concerning Burr, which the court did. Jefferson appealed the subpoena directly to the Supreme Court.

Chief Justice John Marshall, writing for the court, ruled that the Sixth Amendment of the Constitution, which allows for such orders for criminal defendants to guarantee them a fair trial, did not provide any exception for the president and rejected Jefferson's claim that disclosure of his letters would imperil public safety. Jefferson complied with the high court's order.

Eisenhower Rejected McCarthy's Subpoenas

During the Army-McCarthy hearings in 1954, President Dwight Eisenhower invoked executive privilege in refusing to turn over to Senator Joseph McCarthy's committee investigating alleged communist infiltration of the U.S. Army the notes of Eisenhower's meetings with top Army officers, claiming that "matters of national security might be breached if administration officials were forced to testify under oath."

However, what could have been a major confrontation between the Eisenhower White House and the Congress was averted when the Senate voted 67-22 later that year to censure McCarthy for abusing his authority and for resorting to unscrupulous tactics in his zealous pursuit of alleged communist infiltration of the government and the private sector.

Passage of the censure motion effectively reduced McCarthy to a lame duck, as he chose not to seek re-election in 1956. He died the following year.

Executive Privilege a 'Constitutional Minefield'

Legal experts and those who have worked in past administrations say that Bush's claims of executive privilege may not be broader than those asserted by his predecessors. But Bush is basing his claim on assertions made by past presidents, including Eisenhower, that were never fully tested in the courts, they said.

"They [Bush officials] could argue that their claims are no different from ones that President Clinton made, but there are also those who would argue that Clinton took the principle of executive privilege too far," Mark Rozell, a law professor at George Mason University in Virginia, told The Washington Post.

Cass Sunstein, a law professor and constitutional scholar at the University of Chicago, said that the doctrine of executive privilege is "a constitutional minefield," citing the 1974 Supreme Court ruling in the Nixon case. While the justices found that executive privilege is generally valid, "it could be trumped by weighty and legitimate competing interests."

For his part, Starr -- now a private attorney and a visiting professor at the George Mason University law school -- was quite blunt. Declaring that "absolutely no one is above the law," Starr insisted that in investigations of criminal wrongdoing, executive privilege "must give way" and evidence "must be turned over" to prosecutors if it is relevant to the investigation.

With accusations of possible wrongdoing swirling around the Bush White House in the U.S. attorney dismissals -- as well as in the still-unfolding controversy over the outing of Valerie Plame -- the battle between the White House and the Congress over executive privilege could very well be one in which the Supreme Court will have no choice but to act as referee.

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Volume II, Number 35
Copyright 2007, Skeeter Sanders. All rights reserved.


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