Ex-NSA official Thomas Drake to plead guilty to misdemeanor 9JUN11

THIS is a victory for whistle blowers and the civil rights and civil liberties of all Americans, and more justification for the alleged actions of Bradley Manning. The American people have the right to know of corruption, mismanagement, and violations of our constitution of and by our government, the Obama administration is wasting time and taxpayer dollars by prosecuting honest, patriotic whistle blowers and should be prosecuting the government officials, military commanders and corporations guilty of breaking the law. 

By Ellen Nakashima

Former National Security Agency manager and accused leaker Thomas A. Drake onThursday accepted a plea deal from the government that drops all charges in the indictment, absolves him of mishandling classified information and calls for no prison time.
In exchange, Drake, who could have faced 35 years in prison if he had been convicted of violating the Espionage Act, will plead guilty to a misdemeanor of misusing a government computer to share information with a person unauthorized to receive it.
He will pay no fine, and the maximum probation time he can serve will be capped at one year.
The deal is a victory for Drake, 54, who was indicted in May 2010 for willful retention of “national defense” or classified information, obstruction of justice and making a false statement.
Drake plans to appear in U.S. District Court in Baltimore Friday morning before Judge Richard Bennett to formally enter the plea.
The government’s case against Drake had greatly weakened, and on Wednesday he twice refused to accept offers of a plea bargain, according to people following the case. The trail was set to begin Monday.
Drake turned down a deal to plead guilty to unauthorized retention of classified documents. It was a deal similar to the one accepted in 2005 plea by former national security adviser Samuel R. “Sandy” Berger after he removed and shredded classified material relating to the Clinton administration’s record on terrorism from the National Archives.
“Why should you plead to something you didn’t do?” said Bill Binney, a friend and former colleague who, with Drake, tried to raise concerns about what they saw NSA corruption and constitutional violations. “That’s the whole point. People of character don’t do that.”
Prosecutors informed U.S. District Judge Richard Bennett this week that they would withhold documents they had planned to introduce as evidence to keep from disclosing sensitive technology. Drake is charged with unlawfully retaining classified information at a time when he was in touch with a Baltimore Sun reporter who later chronicled mismanagement at the agency.
The government had used the 1917 Espionage Act, which has been criticized as vague and overbroad, to charge Drake, one of five such cases against alleged leakers under the Obama administration. Drake was not accused of spying, but the law’s provisions criminalize the unauthorized retention of classified material.
The government’s decision to withhold certain documents appeared to complicate prosecutors’ efforts to prove a violation of the act, suggesting that the government might have overreached in using an espionage law to target a suspected leaker.
“By withdrawing several of the exhibits, at least a couple of the counts against Drake will almost certainly need to be dismissed,” Steven Aftergood, a national security expert with the Federation of American Scientists who has followed the case closely since Drake was indicted last year, said before the plea agreement was reached. “It changes the whole dynamic of the prosecution and may even set the stage for settlement or dismissal.”
Aftergood added, “What’s striking is that the government now seems more eager to reach some kind of resolution... It seems like right now the prosecutors are doing more pleading than Mr. Drake is.”
Transparency activists and media experts warn that such prosecutions could stanch the flow of information the public needs to judge policy, and George W. Bush administration officials see the prosecutions as selective — ignoring high-level officials who release sensitive information to advance their personal or policy agendas.
Justice Department spokesman Laura Sweeney declined to comment on the case.
Drake was a senior executive at the NSA — a “senior change leader” — who professed an ambition to change the agency’s insular culture. He became disillusioned with the agency’s handling of major technology programs and concerned that the NSA was needlessly violating Americans’ privacy through a massive surveillance program adopted after the Sept. 11, 2001, terrorist attacks. He raised concerns with officials and the inspector general, and later with the reporter, before leaving the agency in 2008.
Leak prosecutions under the Espionage Act had been relatively rare until the Obama administration. Daniel Ellsberg, who gave the Pentagon Papers to a reporter, was the first leaker indicted under the law, but his case ended with a mistrial after government misconduct.
The Obama administration is presiding over five cases involving the act, including those against Pfc. Bradley Manning, a former Army intelligence analyst accused of passing State Department and military war data to the anti-secrecy Web site WikiLeaks; Stephen Kim, a former State Department analyst accused of leaking to a television reporter; and Jeffrey Sterling, a former CIA analyst accused of passing classified information to author and New York Times reporter James Risen.
“Obama is prosecuting whistleblowers who made the kinds of disclosures that he said he wants — contractors bilking the government of billions of dollars,” said Jesselyn Radack, a former Justice Department whistleblower and director of national security at the Government Accountability Project. “That’s what Drake did.”

Constitution Changes Pass In Egypt Referendum 20MAR11

THE results of Egypt's vote on changes to the constitution, the people exercising the freedom and democracy they brought to Egypt through their blood, sweat and tears. 

by NPR Staff and Wires

 Aris Messinis/AFP/Getty Images Mohammed Attiya, chief of Egypt's elections commission, announces the results of the referendum Sunday.

Egyptians voted overwhelmingly in favor of amendments to their constitution in the first free election held in their country in more than a half-century.
The changes eliminate restrictions on political rights and open the way for parliamentary and presidential elections within months.
Referendum Chairman Mohammed Attiya told a news conference Sunday that Egyptians voted more than 3-to-1 in favor of the amendments. He says about 41 percent of eligible voters turned out — fewer than expected. Many of those who did were casting ballots for the first time in their lives.
Few voting irregularities were reported during Saturday's referendum, in stark contrast to last November's parliamentary elections that were plagued by allegations of voter intimidation and ballot box stuffing.
Voters were asked in Saturday's referendum to vote on nine amendments to Egypt's 40-year-old constitution that proponents say will ease restrictions on political and civil rights. But opponents feel the whole constitution should be scrapped. They claim it's a holdover from ousted leader Hosni Mubarak's regime that places too much power in the hands of the president.
Opponents argued that the time frame was too quick for political parties to organize. Egypt's best organized political forces, the Muslim Brotherhood and members of the former ruling party, campaigned for passage.
The Brotherhood, which has strongly campaigned for the adoption of the changes, advocates the installment of an Islamic government in Egypt. The ambivalence of its position on what role women and minority Christians play under their hoped-for Islamic government — like whether they could run for president or be judges — worry large segments of society.
Egypt's military rulers plan to use the amended constitution as a road map to transferring power to a civilian government in the coming months.
Attiya said 41 percent of 45 million eligible voters cast ballots in Saturday's referendum. More than 14 million — 77.2 percent — voted in favor, with around 4 million — 22.8 percent — opposed.
The results are likely to open a frenzied campaign season, with liberal pro-democracy forces scrambling to put together political parties to contest the upcoming races.
The parliamentary and presidential elections are key because the next legislature and government are to lead the process of wider change, including likely drawing up a new constitution.
In an interview with the daily El-Shorouk, a top member of the Supreme Council of the Armed Forces said the council will issue "a constitutional declaration" right after the announcement of the final vote to lay down next steps, with approval leading to a timetable for parliament and presidential elections.
Saturday's vote was by far the freest since the military seized power in a 1952 coup, toppling the monarchy and ending decades of a multiparty system that functioned while Britain was Egypt's colonial master. Only men with military backgrounds have ruled Egypt since.
While Mubarak's overthrow has left Egyptians euphoric about their newfound freedoms, many are also worried about the social tensions and instability that could spiral in the wake of the autocratic leader's departure.
NPR's Soraya Sarhaddi Nelson contributed to this report, which includes material from The Associated Press.

  Syrians Mass For Demos; Reporters Banned From City The coming days will be a test of the discontent that has unseated autocrats in other countries.

Middle East

Syrian Protesters: Government Forces Kill Dozens

The Syrian government has pledged to consider lifting some repressive laws to ease the crisis.

Conflict In Libya

NATO To Assume Charge Of Libyan No-Fly Zone

The United States is set to hand over control of the military mission in Libya.

Ahmed Ghailani, Gitmo detainee, acquitted of all but 1 charge in NY 17NOV10

JUSTICE has prevailed in America, and in a perversion that is so hypocritical to our Constitution may be used to deny others their civil rights. What a sad commentary on the "land of the free and the home of the brave"!
By Peter Finn
Washington Post Staff Writer
Wednesday, November 17, 2010; 7:04 PM


The first former Guantanamo Bay detainee to be tried in federal criminal court was found not guilty on Wednesday on all but one of the 285 counts he faced for his role in the 1998 East Africa embassy bombings.
The verdict will likely kill the already fading prospect of putting other Guantanamo detainees on trial in U.S. civilian courts.
After deliberating for five days, a jury of six men and six women found Ahmed Ghailani, 36, guilty of conspiracy to damage or destroy U.S. property, but acquitted him of all 276 counts of murder and attempted murder, as well as other conspiracy charges.
Ghailani, a native of Tanzania, was sent to New York for prosecution in June 2009 in what the Obama administration hoped would be the first case in a series of federal prosecutions of Guantanamo detainees, including Khalid Sheik Mohammed and four co-conspirators accused of organizing the Sept. 11, 2001, attacks.
That plan has run into fierce, cross-party opposition in Congress and New York. The failure to convict Ghailani on the most serious terrorism charges will bolster the arguments of those who say that the military prison at Guantanamo Bay should be kept open, both to host military commissions for some prisoners and hold others indefinitely under the laws of war.
Ghailani still could be sentenced to life in prison, and faces a minimum of 20 years, according to the Justice Department. But the verdict was a blow to administration officials who were quietly confident that Ghailani would be found guilty on all charges, despite the judge's ruling against the government on a key issue. Just last week, a senior administration official said a not guilty verdict would be a "disaster" for the administration's Guantanamo policy.

Bloomberg Launches Another Impassioned Defense Of Cordoba House 24AUG10

THANK you Mayor Bloomberg, for defending our religious freedom!
 
In a rousing address before a predominantly Muslim audience Tuesday night, New York City Mayor Michael Bloomberg reaffirmed his commitment to the controversial Islamic cultural center near the former site of the World Trade Center.
Bloomberg, who hosted the annual Ramadan Iftar dinner at his official Gracie Mansion residence, did not back away from his position as the most vocal and public defender of the so-called "Ground Zero mosque." If anything, he couched his defense of the project in even deeper moral and political terms, calling the Cordoba House a telling illustration of intrinsic American principles and a valuable tool in the war on terror.
From Bloomberg's prepared remarks:

But if we say that a mosque and community center should not be built near the perimeter of the World Trade Center site, we would compromise our commitment to fighting terror with freedom.

We would undercut the values and principles that so many heroes died protecting. We would feed the false impressions that some Americans have about Muslims. We would send a signal around the world that Muslim Americans may be equal in the eyes of the law, but separate in the eyes of their countrymen. And we would hand a valuable propaganda tool to terrorist recruiters, who spread the fallacy that America is at war with Islam.
Islam did not attack the World Trade Center -- Al-Qaeda did. To implicate all of Islam for the actions of a few who twisted a great religion is unfair and un-American. Today we are not at war with Islam -- we are at war with Al-Qaeda and other extremists who hate freedom. [snip]
The members of our military are men and women at arms -- battling for hearts and minds. And their greatest weapon in that fight is the strength of our American values, which have always inspired people around the world. But if we do not practice here at home what we preach abroad -- if we do not lead by example - we undermine our soldiers. We undermine our foreign policy objectives. And we undermine our national security.

While some of the cultural center's other early supporters have backed away from their defense of the project, Bloomberg has emerged as perhaps the least fickle of its supporters. And he's been hailed for that defense -- locally, nationally and among the commentariat -- even though a majority of the public opposes the Cordoba House's proposed location.
Addressing those calling for a compromise location for the center, Bloomberg offered the logical rejoinder. "The question will then become, how big should the 'no-mosque zone' around the World Trade Center be?" he remarked. "There is already a mosque four blocks away. Should it too, be moved?"
However the debate ends, of course, there will be hard feelings. Still, the Mayor ended his remarks with an appeal to the lessons of history.

I know that many in this room are disturbed and dispirited by the debate. But it is worth keeping some perspective on the matter. The first colonial settlers came to these shores seeking religious liberty and the founding fathers wrote a constitution that guaranteed it. They made sure that in this country the government would not be permitted to choose between religions or favor one over another.

Nonetheless, it was not so long ago that Jews and Catholics had to overcome stereotypes and build bridges to those who viewed them with suspicion and less than fully American.

What To Do With The Electoral College? 29JUL10 & NATIONAL POPULAR VOTE

THIS is an interesting read from NPRs Political Junkie, and if you click on the header you can go to the National Popular Vote website. I have added their poll on elections to this blog....vote if you want, and have added their website to My Favorite Sites list on this blog too. 
 
The Constitution may mandate it, but choosing a president through the Electoral College has always been a controversial topic, made even more so after the 2000 election.  That's when Al Gore, who received the most popular votes, was defeated in his bid for the presidency by George W. Bush who, by being awarded Florida's 25 electoral votes, won the required 270 E.V.s to get him to the White House; actually, he finished with 271.
The 12th Amendment to the Constitution outlines how we elect our president.
Bush is the fourth person to win the presidency without having taken the popular vote.  The others:  John Quincy Adams in 1824 (instead of Andrew Jackson), Rutherford B. Hayes in 1876 (instead of Samuel Tilden), and Benjamin Harrison in 1888 (instead of President Grover Cleveland).
In the case of Adams vs. Jackson, neither candidate won a majority of the Electoral College, and so the election was thrown into the House, which picked Adams.
Since 2000, efforts to abolish the Electoral College or at least change the system have picked up speed.  A group called National Popular Vote has been pushing state legislatures to pass bills that would award the states' electoral votes to the winner of the national popular vote — regardless of how that state voted.
Hawaii, Illinois, Maryland, New Jersey and Washington have already passed such legislation.  On Tuesday, a sixth state's legislature, Massachusetts, approved it and sent it to Gov. Deval Patrick (D) for his signature.
According to NPV, 30 state legislative chambers have already passed the bill (click here for list).
The law would only take effect if the total of the electoral votes of the states that passed the measure reached 270.
Many small states oppose this change.  If the name of the game was the most popular votes nationally, why would a candidate spend time in places like New Mexico, or Nevada, or Colorado — so-called "Purple States" that could go either way in November?  They wouldn't.
There have been other methods suggested as well.  Some want to see the winner determined by whoever wins the most congressional districts nationwide.  Others like the system used in Maine and Nebraska: two electoral votes to the statewide winner plus an e.v. to the winner of each congressional district.
What do you think?  What is the best way to elect a president?  Take our fake poll:

How should the election of a president be decided?

Winner of the national popular voteWinner of congressional districts nationwideMaine/Nebraska systemCurrent system / no change (Electoral College)OtherOther:

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Why National Flags Don’t Belong in Church 20JUL10 from SOJO

I agree with this post from SOJO, and feel except for a funeral there is no good reason to bring national symbols and armed military into a church sanctuary.  This is not to say the Church shouldn't honor and support members of the military and political community, it is just that Christianity teaches 'Blessed are the peacemakers'  and 'There is no authority but God' and so the symbols of secular political and military power do not belong in a church. 
 
When I first heard the announcement to rise for “the presentation of the colors,” I didn’t understand what that was. We were getting ready to begin a worship service for Christian journalists attending the annual meeting of the Associated Church Press, and we were anticipating the arrival of the speaker, retired Rear Adm. Barry Black, chaplain of the U.S. Senate.
I had previously seen color guards in secular settings, but had not heard that name for the display. And I had never seen a procession with the U.S. flag in church before. I certainly wasn’t expecting four uniformed members of the military, two with U.S. flags and two with rifles, to come in the door and process to the front of the church.
During the presentation of the guns and flags, one person walked out in protest. Others said afterward that, even though they stood during the presentation of the colors, the display made them uncomfortable or offended them. After I saw what the presentation involved, I sat down, closed my eyes, and prayed. I prayed for each person in the sanctuary, especially for the four members of the armed services, and for the United States. When I opened my eyes, the men and woman bearing flags and rifles were processing out of the church.
I sat because I didn’t want to participate in revering these national symbols — especially in a church sanctuary, where God alone is to be given glory and honor. The addition of rifles to the flags especially emphasized military might. Yet even without guns, to present a U.S. flag during worship — or to have it hanging in the sanctuary — shows devotion to country in a place dedicated to devotion to God. As Jesus said in a different context, no one can serve two masters.
In a nation where many gods vie for our allegiance, we should be clear about which one we serve. During Communion, often in the front of a sanctuary, we remember a Christ who allowed his body to be broken and blood to be shed rather than raise arms against his enemies. To exalt a national symbol in that same space is to challenge the lordship of Christ.
There’s nothing wrong with loving one’s country, in the sense of appreciating the good in its people and the beauty in its landscape. Yet rather than displaying a national flag in church, we show that love more appropriately when we feed the hungry, tend the sick, and care for creation.
Even using the U.S. flag as a symbol of the highest ideals of the United States muddies our theological and political declarations. Many citizens of this country — including, of course, many Christians — are in stark disagreement on what the flag means and what our nation’s highest ideals actually are.
Christians should be clear that to love a country is not the same as to honor its government or military, represented by the national flag. In Romans 13, Paul writes, “there is no authority except from God” — which doesn’t necessarily mean “authorities” always do God’s work in the world. (Jesus’ comment to Pontius Pilate in John 19 is related: “You would have no authority over me, unless it had been given you from above.”) Governments can be good or bad, or both, but they are not holy. The U.S. government, which through the Constitution allows more freedom of religious expression than do most governments, is still a human institution. We should not confuse what we are to render to Caesar with the complete reverence and submission we owe to God.
God alone is holy and deserves our undivided allegiance. When we gather as Christians, we join our voices in praise and lament with our brothers and sisters in every nation, under every kind of government. Let’s not confuse or forget whom we are worshiping when we come before our God.

Uniformed Cops on BP Payroll? Enter the ACLU 29JUN10 from Mother Jones

THANK GOD FOR THE ACLU (and I am proud I am a member)!!!!!! At least they are willing to take action to protect our civil rights from the neo-nazi greedy corporate pigs of bp and their leo (law enforcement officers) lackeys along the Gulf Coast. This is more proof bp and the leos they have bought in the Gulf Coast states are are a threat to the civil and human rights of the journalist covering the oil spill story as well as to all Americans just as the oil spill is a, environmental, economic and health threat to all of us. 

— By Mac McClelland

| Tue Jun. 29, 2010 3:03 AM PDT

Some updates on the incident I reported on last week, in which an off-duty Louisiana sheriff's deputy working for BP's private security detail harassed an environmental activist who was neither on BP's property nor breaking any laws. (Watch the video at the end of this post.)
First, some gratifying news: The ACLU has put Louisiana law enforcement on notice. In a letter (PDF) released yesterday, Marjorie Esman, executive director of the group's Louisiana chapter, reminded the sheriffs of the coastal parishes that "members of the public have the right under the First Amendment to the U.S. Constitution to film, record, photograph, and document anything they observe in a public place. No one—neither law enforcement nor a private corporation—has the legal right to interfere with public access to public places or the recording of activities that occur there. Nor may law enforcement officials cooperate with private companies in denying such access to the public."
Esman told me that the ACLU had discussed the matter due in large part to Mother Jones' reporting. She says it would consider filing a lawsuit if appropriate.
Louisiana police don't have any right to tell you you can't walk onto a public beach (even to, as Esman puts it, "roll around in sticky gunky tar that I'll never be able to get off—if I want to, that's my right"). However, they do have the right to mislead you about who they're really working for. In Louisiana, as in many places, it's legal for police officers to wear their uniforms regardless of whether they're acting in an official capacity or working for a private corporation. Which is why Andrew Wheelan, the environmentalist mentioned above, was unaware that the cop who pressured him to stop filming a BP building and later pulled him over so that a BP official could question him wasn't on duty at the time. The Terrebonne Parish Sheriff's Office told me that the deputy who pulled Wheelan over is just one of 40 in the parish who are working for BP on their own time. And the BP-police collusion goes beyond uniformed deputies moonlighting. In nearby Lafourche Parish, for example, the sheriff's office is filling 57 security positions a week for BP; the shifts are on the clock, and BP reimburses the sheriff's office for them.
There's been a lot of to-do about the federal government being officially in charge of all things oil-spill related, and Mother Jones ruffled some feathers by quoting a BP rep who said the company had a lot of sway over local sheriff's departments. But there you have it, plain as day: Down here, many cops do literally work for BP.
Seem like a conflict of interest, or even sort of scary? Perhaps. But, as Esman points out, it's perfectly legal. "BP doesn't have the right to just decide they're going to take over a public street," she says. "They do not have the authority to tell people they can't document what they see. But they do have the right to hire these deputies. There's nothing we can do about that."

Obama and Civil Liberties 16 MAI10 from MOJO

This is a great article from MOJO, and very disturbing because I expected better from Pres. Obama. I expected him to be a champion of our civil rights and protector of our liberties as granted by the constitution of our Republic. I did not envision him and his administration as being a threat to our freedom. What to do? Keep on keeping on and keep on fighting him while he attempts to deny and degrade our civil rights and pray we are successful, that is all we can do.

— White House photo/Pete Souza (Government Work)

I should have linked to this a couple of days ago, but better late than never. Here is Glenn Greenwald noting that recent anti-terrorist measures — some directly from President Obama and others not, but mostly with bipartisan support in Congress in either case — go well beyond what the Bush/Cheney administration ever proposed. Instead of merely targeting foreign nationals, these new proposal are aimed directly at American citizens:

A bipartisan group from Congress sponsors legislation to strip Americans of their citizenship based on Terrorism accusations. Barack Obama claims the right to assassinate Americans far from any battlefield and with no due process of any kind. The Obama administration begins covertly abandoning long-standing Miranda protections for American suspects by vastly expanding what had long been a very narrow "public safety" exception, and now Eric Holder explicitly advocates legislation to codify that erosion. John McCain and Joe Lieberman introduce legislation to bar all Terrorism suspects, including Americans arrested on U.S. soil, from being tried in civilian courts.
....There is, of course, no moral difference between subjecting citizens and non-citizens to abusive or tyrannical treatment. But as a practical matter, the dangers intensify when the denial of rights is aimed at a government's own population. The ultimate check on any government is its own citizenry; vesting political leaders with oppressive domestic authority uniquely empowers them to avoid accountability and deter dissent.

Aside from war and occupation, governments have far more coercive power against their own citizens than they do against residents of other countries. There are natural limits to what the U.S. government can do, say, to Chinese or French nationals in their own countries. But within the United States itself, the only restrictions on state power are largely legal, and without those legal limitations the federal government has an almost unlimited ability to exercise its coercive authority over anyone it chooses to. This is why the distinction between citizens and non-citizens is so important.
I am, fundamentally, an admirer of Barack Obama. I like his temperament, I like his worldview, and I like his management style. As I've said before, he has a habit of disappointing me just a little bit on an almost routine basis, but most of the time that doesn't interfere with my basic admiration. The one exception has been his attitude toward civil liberties and terrorism. His early ban on torture was profoundly welcome, but aside from that he's mostly continued Bush-era policies with only minor changes and then added to them things that Bush and Cheney could only have dreamed of. In this one area, I feel betrayed.
For a couple of reasons it's funny that I feel this way. First, this is really nothing new. Democrats have been only marginally better than Republicans on these issues for years. The Clinton era was hardly a golden age of civil liberties, after all, and after 9/11 most of Bush's infingements on civil liberties were supported — sometimes publicly, sometimes merely implicitly — by plenty of Democrats. Obama was one of those Democrats while he was a senator, and he's still one of them now.
Second, unlike Glenn, I'm not a hardcore defender of civil liberties in every conceivable circumstance. Global terrorism really does blur the lines between traditional battlefields and domestic policing in ways that are tricky to resolve. Guantanamo and the broader issue of enemy combatants is, as I said several times while Bush was still in office, an excruciatingly difficult one. Even the operation of broad surveillance networks poses some genuinely complicated problems thanks to the technical architecture of modern communications systems.
But as difficult as a lot of these problems are generally, once the U.S. government starts targeting U.S. citizens without warrants or due process, we've crossed a bright line that's dangerously corrosive. That includes the warrantless wiretapping and non-appealable no-fly lists of the Bush administration, and it includes assassinating Americans and removing Miranda protections under the Obama administration. They're outrageous and dangerous transgressions no matter who's doing them, and Obama needs to take a long, deep breath and reconsider how he's handling these issues. In most things, Obama is famous for taking the long view and not letting day-to-day political considerations force his hand. He needs to start doing the same thing here.

Thurgood Marshall, Elena Kagan, and Our Constitution Today 10MAI10

Click the header to go to the article and more info.

Before President Obama even finished announcing Elena Kagan as his Supreme Court nominee, the Republican National Committee (RNC) was up with an attack memo questioning Kagan's commitment to our Constitution, asking, ominously, whether she "still views the Constitution 'as originally drafted and conceived' as 'defective'?" This time progressives should do more than play defense, we must turn the tables and win the fight over our Nation's charter.

In terms of Solicitor General Kagan's views on the Constitution, the RNC had to look long and hard to find something to attack. What they came up with, in dubious taste, is a tribute Kagan delivered on the death of Justice Thurgood Marshall, for whom Kagan clerked. Kagan writes poignantly of the great Justice, who argued Brown v. Board of Education, served, like Kagan, as U.S. Solicitor General, then became in 1967 the first African American to serve on the Supreme Court. She rightly calls Marshall "the most important -- and probably the greatest -- lawyer of the twentieth century." And she notes that Marshall, the great grandson of a slave, viewed the Constitution, which as originally drafted allowed slavery to flourish in the American south, as "defective," at least in that regard.

Kagan quotes a speech delivered by Justice Marshall on the Bicentennial of our Constitution that chronicles the arc of our constitutional progress. Marshall notes that it "took a bloody civil war before the Thirteenth Amendment could be adopted to abolish slavery." He hails the Fourteenth Amendment for "ensuring protection of life, liberty and property of all persons," but explains that it took almost a century for those rights to be meaningfully enforced in this country. He declares his intention to celebrate the bicentennial of the Constitution by recognizing that "several amendments, a civil war, and [a] momentous social transformation" were necessary to "attain the system of constitutional government, and its respect for the individual freedoms and human rights, we hold as fundamental today."

Not only is this history unimpeachable, it is hard to imagine anyone living Marshall's life seeing the Constitution differently. If Marshall's speech can be critiqued it is for this one reason: the great Justice seemed unable or unwilling, in this instance, to acknowledge the genius of our founders in many areas, while also critiquing their undeniable flaws such as the willingness to acquiesce to slavery. General Kagan clearly is able to see both the founders' genius and their flaws. In a powerful speech of her own delivered in 2007at West Point, then-Dean Kagan spoke to the cadets about the Constitution and the rule of law. Kagan explained that in a bold break from all prior world and military history, our 1787 founders demanded in Article VI of the U.S. Constitution that military officers and every other government official swear loyalty not to a General or a President, but to the Constitution. Kagan called fidelity to the Constitution and the rule of law "the foundation stone of our society," and she gave powerful examples of what fidelity to the Constitution and the law entails.

It is in this insistence that we revere both our founders as well as the generations of Americans who have fought tirelessly for passage of 27 Amendments that have helped create a "more perfect union" that Kagan and progressives have the chance to win the debate with conservatives and take back the Constitution. At the tea parties, in the attempts by states including Virginia to "nullify" health care, and in parts of the originalism jurisprudence of conservatives on the Roberts Court, there is strong sense of nostalgia for the unamended Constitution and the ideas of our founding, even when those ideas have been repudiated by subsequent constitutional history and overruled or limited by constitutional Amendments. The biggest difference between conservatives and liberals on the Supreme Court today is not the silly dispute about whether the Constitution is living or dead, it's about how much weight to accord the Amendments that have been ratified over the past 200 years. Conservatives tend to treat the Amendments -- particularly the post-Civil War 13th, 14th and 15th Amendments and the 19th Amendment, which secured political equality for women - as tinkering around the constitutional edges; liberals think these Amendments changed the entire fabric of the document.

Not only is this a powerful and accurate story, but polling done by The Mellman Group for Constitutional Accountability Center demonstrates that it is a winning story. Mellman tested the traditional progressive argument that constitutional principles must be applied in light of current circumstances against the conservative message that judges should "act according to the original meaning of the Constitution's text." The conservative message was favored by the American public by a margin of 54% to 42%. Then Mellman tested the conservative "original meaning" message against a progressive argument that judges must faithfully interpret the entire Constitution, "including all the Amendments passed over the last 200 years." This argument not only captures the most justifiable and important aspect of the idea of a "living" Constitution, but it also happens to crush the conservative "original meaning" argument 59% to 34%. This represents a 36% swing towards the progressive side of the argument simply because the idea of constitutional change is rooted in the amendment process.

The RNC's attack on Elena Kagan's views on the Constitution is thin and predictable. The progressive response needs to be fulsome and new.

Senator Lieberman's Latest Constititonal Buffoonery 6MAI10 UPDATE TO LIEBERMAN'S CITIZENSHIP REVOKING LAX POSTING BELOW

I am tired of right wing fanatics like Joe Lieberman of attacking the liberties and rights granted and guaranteed in our nation's Constitution. They are committing terrorism by their own definition by being "engaged in, or purposefully and materially support[ed], hostilities against the United States". They seek to destroy the Republic by their attacks on the document that is the foundation of what we are as a nation, and so are a real threat to the liberties and civil rights of all Americans. And Lieberman is so blinded by his fanaticism that he can not see that his own proposed law can be used against him!

In response to supposed legal restrictions on the interrogation of U.S. citrizen and suspected Times Square SUV bomber Faisal Shahzad, Senator Lieberman today proposed a bill that would strip American citizenship from anyone who has "provid[ed] material support or resources to a foreign terrorist organization" or "engaged in, or purposefully and materially support[ed], hostilities against the United States" or any of its allies.

Unfortunately for Senator Joe, the Supreme Court has made it crystal clear over the last four decades that the federal government simply has no power to take away U.S. citizenship. In Afroyim v. Rusk (1967), the State Department tried to strip citizenship from an American who'd voted in an Israeli election. The Court held that in the wake of the Fourteenth Amendment, Congress lacks "any general power, express or implied, to take away an American citizen's citizenship without his assent." Because the people are sovereign under our constitution, that document "defin[es] a citizenship which a citizen keeps unless he voluntarily relinquishes it." This idea that citizenship can only be voluntarily relinquished with the citizens' "assent" was reaffirmed in Vance v. Terrazas (1980), where the Supreme Court held that merely doing an act (there, naturalizing to Mexican citizenship) that the government claims is per se evidence of your intent to relinquish your U.S. citizenship is not enough. Even if the citizen "voluntarily" did the act (in Terrazas, he knew he was filling out Mexican citizenship forms and did it willingly), the burden remains on the government to prove that that act was done with the intent to renounce U.S. citizenship (rather than, say, to gain dual nationality). That's the law regardless of whether you are a birth citizen or naturalized (though fraud in the process of a naturalization application may be invoked to invalidate the naturalization).

Thus, most of the things people think might cause you to automatically lose citizenship - and which are listed on the State Department website as such, and in the federal statute books (8 U.S.C. § 1481) - do no such thing. There are cases where someone signed Israeli citizenship papers without reading them, so he didn't know that they said he was renouncing any other citizenship -- and the courts held he hadn't voluntarily renounced his U.S. citizenship. The State Department warns that serving as a policymaking official in a foreign government can cost you your citizenship, but Meir Kahane won his case where DOS said he'd renounced his citizenship by serving in the Israeli Knesset. If Lieberman's staff had done a bit of research on this, they'd notice that many of the things listed in 8 U.S.C. § 1481 actually don't operate to automatically strip citizenship, absent the dispositive element of "assent" to voluntarily give up your citizenship (e.g. serving in a foreign military, taking a foreign nation's oath of allegiance, etc.). Good thing, too - other statutory provisions provide for stripping citizenship for refusal to testify to Congress about one's subversive activities. (See 8 U.S.C. § 1451(a).) Like many Jim Crow laws enforcing segregation, these things sit on the books, unenforceable, because Congress refuses to clean up its own mess.

A series of draft-dodging cases in the wake of Afroyim also establish that citizenship stripping can't be done administratively - a court needs to confirm intent to give up US citizenship if assent is disputed. So it's a bit of a mystery why Lieberman thinks this will somehow help interrogate suspects immediately after capture.

Lost in this constitutional debate is the fact that no one can identify any defects in the handling of the Times Square bombing suspect sufficient to motivate any change in law (though Lieberman seems to think some quick (and illegal, as I've noted above) administrative citizenship stripping process (maybe by a Guantanamo-style Combatant Status Review Tribunal?) would have made it easier to interrogate the suspect). The suspect, Shahzad, was interrogated immediately (there is an "immediate public safety" exemption to the Miranda warning rule); then Mirandized (that is, told of his right to remain silent and of his right to request a lawyer); supposedly he provided valuable information throughout. Terrorism suspects in detention rarely have an incentive to spill accurate information once detained, and defense lawyers usually help mediate the process of acquiring accurate information from them through the plea bargain process. The ordinary, time-tested system seems to have been applied here, and seems to be working - so again, what's the problem?

All of this is putting to one side the problems with the notion of criminalizing something as broad and vague as "material support" itself. (Those interested in the details can click here.) Lower courts have six times held that the "material support" statute is unconstitutionally vague. Lieberman's bill would propose to strip citizenship for violating a law that federal courts have repeatedly held unconstitutionally vague. The Justices of the Supreme Court heard the government's appeal from those cases in Holder v. Humanitarian Law Project in February, and most commentators felt that at least seven justices were highly skeptical of the government claims as to the law's broad reach.

Moreover, the government argued to the Supreme Court that our HLP clients, members of domestic humanitarian groups who proposed to train rebel groups on the State Department's blacklists in non-violent conflict resolution -- pure speech seeking to turn groups away from violence and criminal activity -- would be guilty of providing "material support" if they did so, and thus could have their citizenship stripped under Lieberman's bill for doing so.

Finally, I would be remiss if I concluded without saying the following: as an occasionally-proud Yale Law School grad, I would like to apologize on behalf of my alma mater for producing Joe Lieberman. On the other hand, no one ever accused Yale of providing a black-letter legal education. And we were frequently encouraged to think outside the box. Maybe society did this to him.

--May 6, 2010

Horseshoes, Hand Grenades, and Habeas 6MAI10

Imagine you or someone you loved were accused of a crime and tried in state court. Our federal constitutional rights give us certain protections in these state trials, but imagine your trial was an unfair one. Imagine the state court did not uphold your constitutional rights, for whatever reason: maybe your trial judge faced a tough election and wanted to look tough on crime; maybe the judge was lazy; maybe he or she simply did not understand the law. And imagine you were then convicted in this unconstitutional trial and sent to prison, or worse, sentenced to death.

Traditionally, if the state court failed to correct the federal constitutional error, you could go to a federal court seeking "habeas corpus" review. If a federal judge agreed that the state court violated your constitutional rights, the federal judge could order the state to release you or provide a new trial. In a decision released Monday in Renico v. Lett concerning the constitutional right to be free from double jeopardy (that is, being prosecuted twice for the same offense) — the Supreme Court of the United States reaffirmed previous rulings that a federal court may not order habeas relief merely because the state court violated your constitutional rights. Buried in footnote three of its decision, the court said it would not decide if the petitioner's constitutional right to be free from double jeopardy had been violated, only that the question was a "close" one.

The court then stated that if a state court ruling is "close" enough on the Constitution — the state court had made a credible effort, even if they got it wrong — a federal judge's hands are tied. If it's close enough, the federal judge is powerless to correct the injustice.

In deciding Renico, the court was interpreting a 1996 statute known as the Anti-Terrorism Effective Death Penalty Act (AEDPA). Ridiculous as it sounds, AEDPA effectively requires that federal judges ignore constitutional violations in "close" cases. This mandate on "close" cases conflicts with the famous holding in Marbury v. Madison that "It is emphatically the province and duty of the [judicial branch] to say what the law is."

Because AEDPA effectively strips judges of the power to decide whether a person's rights were violated, many federal judges have suggested that AEDPA violates the constitutional requirement known as "separation of powers," and is therefore unconstitutional. The Renico decision, however, did not address AEDPA's constitutionality.

When I was growing up in Michigan, where horseshoes was a favorite game, if I failed to meet one of my responsibilities but came close, my parents or teachers might say, "Close only counts in horseshoes and hand grenades." With yesterday's decision, we can add "habeas corpus" to the list. Until the Supreme Court resolves the constitutionality of AEDPA or Congress repeals it, state courts may often get away with "close enough" when it comes to our constitutional rights.

Lieberman's Citizenship-Revoking Law Slammed As 'Draconian' 5MAI10

I think Joe Lieberman would have loved living in Nazi Germany (yes I know he is Jewish). He has become more fascist in his political views, so much so that I can see him licking the boots of Hitler and his cabal and the Gestapo and SS and turning in his fellow Jews and others declared enemies of the state until they finally came for him. That is what is so unfortunate about people like Lieberman, instead of actually standing up and defending the Constitution and our civil rights and liberties, Lieberman and his like are willing to throw that all away to protect what? And what makes him so sure his law couldn't be used against him? After all, his attack on the foundations of our Republic, our civil liberties and civil rights, is terrorism against thw American people.

Sen. Joseph Lieberman (I-Conn.) has yet to formally introduce legislation that would strip Americans involved in terrorism of their citizenship and already legal experts, including a former Bush administration official, are calling it "draconian."

The Connecticut Independent is planning to unveil on Thursday a proposal that will supposedly free up law enforcement in their efforts to try terrorist suspects, by giving the State Department the right to revoke the citizenship of those suspects who are American.

The substance of the proposal has yet to be unveiled, though it does have supporters in the House and Senate. But already a host of legal officials are raising red flags. For starters, the legislation would not, on its surface, solve the most immediate crisis for which it is seemingly designed. Lieberman is lamenting the fact that the Obama administration read the Miranda rights to Faisal Shahzad, the suspect in the attempted Times Square bombing. But even if Shahzad were deprived of his citizenship, his Miranda rights would still be read to him, so long as he was held in a criminal setting.

"Miranda applies if somebody's going to be charged with a crime, and that applies to somebody whether they're a citizen or not," said Anil Kalhan, a law professor at Drexel University.

Indeed, what Lieberman is attempting to do is to pave the way for terrorists with American citizenship to be thrown into military tribunals once they are captured. And it would give the State Department the power to make that determination.

"It sounds like a draconian solution," said John Bellinger a legal adviser to the United States Secretary of State during the Bush administration. "I assume the Senate has thought through the constitutional issues but I would want to see what the standards are for stripping someone of their citizenship and what opportunities they would have for notice and to challenge the decision... It certainly seems like a far-reaching step."

As Bellinger notes, the issue of revoking citizenship has been litigated to the highest levels of the justice system already. And as it stands now, the standard is set fairly high.
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In Afroyim v. Rusk (1967) the Supreme Court ruled that a United States citizen could not be deprived of his or her citizenship involuntarily. The burden of proof falls on the government to determine that the person intends to revoke his or her own citizenship. There are additional elements to the law. As Emily Berman of the Brennan Center notes, a naturalized citizen can have his or her citizenship revoked if it is proved that he or she obtained their citizenship through fraudulent means. There are also complexities with regards to Americans who have joined "the armed forces of a state engaged in hostilities against the United States," says Kalhan. And this, indeed, may be the subset of the law that Lieberman is hoping to expand (to include non-state terrorist organizations).

But these remain fairly well established elements of immigration law. And an expansion of power to the State Department, as Lieberman seems to be envisioning, will almost assuredly be challenged on constitutional grounds, these experts say.

"With respect to people who are born American citizens I believe this would be an unconstitutional statute," said Berman. "I don't think the Congress has the power to give the State Department that right."

There are non-legal questions surrounding Lieberman's proposal as well. For starters, what would distinguish a member of al Qaeda from a domestic terrorist? Could a homegrown terrorist like Timothy McVeigh be denied citizenship rights? How would the State Department define what constitutes ties to terrorism? And what happens if the person is wrongfully accused?

"The slippery slope is there but also there's great potential to apply that kind of rule in a very arbitrary and discriminatory way," said Kalhan.

Perhaps the issue proving most bothersome to the legal community, however, is the slight Lieberman's bill sends to America's criminal justice system, which has, statistically, proven far more effective at trying citizen and non-citizen terrorists than its military counterpart.

"There is an ongoing and often irrational debate about what do we do with people who are suspected terrorists who are captured in the United States," said Berman. "The thought that we should be doing anything different than what we always have done is remarkable. I don't think anyone has ever been able to contradict all the evidence that the criminal courts are perfectly capable of locking these people away quite effectively."

One Nation Under Beck from MOJO MAI/JUNI 2010 In which our reporter learns about the divine origins of the Constitution at a Tea Party seminar.

Brought to you by the freaks of Mormonism, which you can learn a lot about by reading 'Under The Banner Of Heaven'. So many are deceived by the Mormon's "focus on the family" but anyone with the energy to do some research will find out Mormonism is as perverse and warped as every other cult, and is as dangerous as extreme fundamentalist "Islam, Zionism, Christianity, Hinduism and Buddhism", all movements that corrupt the true teachings of these religions. Click the header for the story at Mother Jones.


In mid-February, the Washington metro area was still digging out from the season's record snowfall, but Elaine Salisbury was determined not to let that get in the way of her Constitution study seminar. More than 50 people had signed up for the event in Woodbridge, Virginia; the region is a hotbed of Tea Partiers and anti-immigration Minutemen, and Salisbury knew just the tone to strike in her email alert. "This week has reminded me of Valley Forge. George Washington's troops had been reduced to 2,500, a third of whom had no boots for the mid-night march to Trenton on December 25, 1776. They left blood in the snow as they marched on their burlap bound feet...While I don't want you to risk your lives to attend the seminar, I want you to remember what others have done to bring us the freedom that we will be celebrating and learning about this weekend."

The patriots heeded her words, arriving even before the public library opened at 10 a.m, some with babies and preteens in tow. Inside the windowless cinder-block community room, they were rewarded with a lively if unorthodox daylong romp through American history, delivered with a preacher's passion by a "missionary for liberty" named Rick Dalton.

Dalton is a volunteer from the National Center for Constitutional Studies (NCCS) who had come all the way from Mesa, Arizona, to lead the faithful to a new understanding of the nation's core principles—something he has been doing with increasing frequency since the Tea Party movement exploded last year. Many Tea Partiers believe the country's economic and political woes are a direct result of Washington abandoning the Constitution, which they believe calls for an extremely limited federal government that does not concern itself with matters like bank failures or health care reform. They've turned to the founding document with the fervor of evangelicals seeking inspiration from the sacred texts of the past. As their prophet, many have chosen the late W. Cleon Skousen, a right-wing Mormon and self-described onetime aide to J. Edgar Hoover who in 1981 published The 5000 Year Leap—a conservative primer on the Constitution that Glenn Beck regularly urges his followers to read. (Beck even wrote the foreword to the new, bestselling edition.) It's thanks to Skousen's newfound popularity that NCCS, a small and heretofore obscure nonprofit he founded in Malta, Idaho, has seen demand for its seminars triple.

In the Woodbridge library, Dalton, a cherubic-looking man with a shock of white hair who in his spare time rocks out as a guitar player, was dressed neatly in a blue vest and khakis. A former cop and graduate of George Wythe University—an unaccredited institution in Cedar City, Utah, founded by Oliver DeMille, a Skousen protégé—he teaches with NCCS president Earl Taylor at the Heritage Academy charter school in Mesa, where he hones his material on formerly homeschooled high schoolers. He punctuates his lessons with tales of his days at the police academy, Bible jokes, and stories about his immense guitar collection. And like any good evangelist, Dalton weeps.

He kicked off his lecture with a story about former Black Panther Eldridge Cleaver, who once showed up at a Skousen lecture in San Jose, California. Cleaver had been tied to a shootout with police and had spent years evading prosecution in Cuba, Algeria, and elsewhere before turning himself in and pleading guilty to an assault charge. Skousen, ex-FBI man that he was, was nervous to see Cleaver in the audience. But according to Dalton, the famous revolutionary—who upon surrendering had said, "I'd rather be in jail in America than free anywhere else"—was there to learn about liberty. Cleaver later became a lecturer for NCCS—then called the Freemen Institute—as well as a convert to Mormonism.

Dalton choked up as he recalled the Cleaver quote. Once recovered, he directed the group to recite part of the Declaration of Independence, whereupon he choked up again.

The rest of the lecture hewed closely to NCCS's Skousen-penned workbook, The Making of America (pdf)—several of the teenagers in attendance had clearly spent time memorizing it—which stresses God's role in the shaping of America. Not only were the founders seeking to create a Christian nation, according to Dalton, but the Constitution's principles stem from ideas handed down to Moses himself—making it de facto a divine work passed on to the founders by a divine people, their Anglo-Saxon ancestors. (Dalton maintained that the people who settled England and northern Europe may have descended from one of the lost tribes of Israel—a piece of historical poppycock that has long held traction in the white supremacist movement.)

Racially tinged material has gotten NCCS into trouble in the past. In 1986, the state of California's Constitution Bicentennial Commission—headed by a Skousen acolyte—approved the sale of the Making of America textbook as a fundraiser. In the book, Skousen quotes liberally from a 1934 essay by Fred Albert Shannon, who had a rosy view of slavery. (Sample passage: "If the pickaninnies ran naked, it was generally from choice, and when the white boys had to put on shoes and go away to school, they were likely to envy the freedom of their colored playmates.")

Dalton did make sure to condemn slavery during his lecture, though he skipped any discussion of the 13th (or 19th) Amendment and instead focused on the Constitution's free-market origins. As he told it, the founders' love of capitalism was motivated by the experience of the early Jamestown settlers, many of whom starved because they were "communists"—they relied on common stores to ensure that everyone got a fair share of supplies. This, Dalton explained, destroyed their incentive to work, and Jamestown would have perished, but for a new "HDIC—head dude in charge" who heeded the biblical imperative "By the sweat of thy brow shalt thou eat bread" and let people keep what they produced. He also credited Karl Marx with inventing the income tax (a feat more commonly attributed to the decidedly Tory William Pitt the Younger). Dalton argued that the Constitution limits federal purchases of land to forts, magazines and arsenals, dockyards, and "other needful buildings such as post offices." "What about national parks?" he asked. "Think of all that land that could be put on the rolls and generating taxes!"

During a break, as the group snacked on boxed lunches from Panera, I talked to Robert Jeffery, a lanky fellow who spent "20 years and four days" in the Navy and now works as a construction inspector. He showed me a worn copy of the Constitution and Declaration of Independence that he keeps in his pocket at all times. Flipping it open to the Second Amendment, he said, "This is where I usually keep my concealed- carry permit." (He'd left his gun at home for the day.) I asked why he and his friends were spending Saturday at the library when they could be out, say, shoveling snow. They had, they said, turned to the founding principles to understand where the country had gone off track. Ken Vaughn, the head of the Northern Virginia branch of the Beck-inspired 912 movement, explained that his interest had been sparked by Washington "bailing out firms that had no right to be bailed out. I think that made people wake up and look at our debt and think, 'Maybe we need to make changes.'"

Ann Hardt, an energetic, ruddy-faced woman in jeans and sneakers, came to the seminar with three of her six homeschooled kids, ages 18, 16, and 13. She uses the Making of America materials to teach them history and told me she'd been to two of the center's seminars before, one with the kids. "I'm very concerned with the future of my children," she explained, which was why she had gone to several Tea Party rallies as well. She'd learned about the seminars from Salisbury, who attends her Mormon church.

After a few more digressions about his charter-school students and their mastery of the Constitution, Dalton ended just as he had started. Fighting back tears, he implored the audience to remember: "More powerful than any invading army is an idea, and freedom is an idea whose time has come."

Senators Behaving Badly, filibuster history from MOJO 28APR10

A great article on the history of the filibuster and it's use today, with some interesting links. Click the header to go to the story.

Political scientist Greg Koger talks health care reform, filibuster history, and the problem with Schoolhouse Rock.

By Tim Murphy | Wed Apr. 28, 2010 1:00 AM PDT

Yesterday, for the second [1] time in as many days, Senate Republicans [2]—and one Democrat [3]—voted, 41-57, against invoking cloture on financial reform legislation [4], thereby blocking efforts to bring the bill to the floor for an up-or-down vote. In other words, they filibustered. Again.

While the latest Senate filibuster is unlikely to last [5], in recent years the world's greatest deliberative body has done a lot more deliberating than usual: 60-vote supermajorities have become standard operating procedure, and even some of the least controversial of President Obama's nominees have seen their confirmations stall for months [6] at the threat of a filibuster. With politically charged climate [7] and immigration legislation [8] on the horizon, such obstruction isn't likely to go away anytime soon.

So who's at fault? According to University of Miami political scientist Greg Koger, we have fact-finding trips and golf courses to blame—not Mitch McConnell. Mother Jones spoke with Koger last week about today's Senate, how to fix it, and his forthcoming book: Filibustering: A Political History of Obstruction in the House and Senate [9], out in June.

Mother Jones: Over the last year and a half, a lot of journalists have used the filibuster to argue that Washington is broken. As James Fallows at The Atlantic [10] put it, "One thing I've never heard in my time overseas is 'I wish we had a Senate like yours. [11]'" Are we seeing a new phenomenon?

Greg Koger: What makes the current Senate distinct is not the rules, it's the way that senators are behaving. On the Republican side, there's an extraordinary willingness to filibuster the type of legislation they would not have filibustered in the past, whether we're talking about stimulus bills or broad-ranging health care reform when everybody knows that the system's broken. And then honestly, I think the Democrats have not done a very good job of playing the legislative side of the political process.

MJ: So what could Democrats have been doing that they didn't do? What kind of procedural quirks could they have taken advantage of?

GK: Well, one main thing is actually just to do a better job of coupling their legislative strategy with a public relations strategy. On health care, they fell behind because they spent a lot of time arguing with each other in public, which slowed down the bill. And when they did have a proposal, they just sort of dumped these enormous bills out there and said, "OK, you want health care? Here it is," and then allowed the opponents of health care to define what the bills were and what the flaws were. And most of the other Democrats were then caught flat-footed by this blowback, and they were unprepared to explain the finer points of the legislation.

From a political point of view, it might have been helpful for the Democrats to find the way to break the bill into pieces and vote on it in sort of easy-to-understand digestible pieces. And the Democrats argued that the legislation had to move as one big piece because all the pieces fit together, and that makes sense as a legislative argument. But still, politically it would have been better to move it piece by piece, so that you have a conversation about the individual sectors of the bill and everybody would understand, "Ah yes, there is no 'Death Panels' subheading of the bill."

MJ: Besides breaking apart the bill and moving them in separate pieces, are there any sort of parliamentary tricks you came across in previous pieces of legislation that were conspicuously absent?

GK: Back on the political side of things, if the Democrats know Republicans are going to filibuster anything they put on the floor, then the strategy should be to put things on the floor which are embarrassing to filibuster. And they finally started figuring this out in 2010, when they had this blowup with Jim Bunning [12] blocking the unemployment-insurance extension. And the Democrats sort of fired up their public relations machinery and said, "Really? People have been unemployed for the better part of the year, and one person is going to keep that from going through the Senate?" Just the embarrassment factor forced the Republicans to cave.

MJ: Speaking of embarrassment, that's one of the problems that came up when I spoke with a pollster about Senate reform [13]: It's impossible to get a sizable percentage of the public to care about debates about Senate procedure. Have you found instances where the public will get really engaged and take sides?

GK: Actually, I believe the pollsters are correct. Most people don't care very much about procedure. I will say that in the mid-20th century, the battle over the Senate cloture rule was so closely identified with civil rights that people did ask lots of questions about procedure. So in 1952, there was this Southern senator, Sparkman, running as a vice president on Adlai Stevenson's ticket, and it was news—not front page news, but it was news—when he was asked how he would rule as vice president on whether or not the Senate was a standing body. So under the right circumstances, people can learn about the implications of the rules and care a little bit. But for the most part I don't think they'd really get involved.

I think to the extent that procedure gets tied to some broader phenomenon, then it can be powerful. So once people understand the Republicans are able to block legislation when they stand together, then it's credible to say, in the 2010 cycle, Republicans are the party of "No" and they are a hindrance on not just the president's agenda, but just sort of effective government.

MJ: When you were going through the research was there anyone who really stood out as the King of Filibuster?

GK: I developed a real fondness for Huey Long. The thing is, he's only a senator from, what, 1932 to 1935? But he was just a…he was just a lot of fun. He had a bone to pick with Roosevelt and the Democratic leaders, and so he would just come to the floor and filibuster a lot. And when he did, he was very colorful.

MJ: How did the founders come down on this? Did they have any idea that 200 years later, Huey Long was going to be reading out of his cookbook?

GK: Well, the important point just to dispel any rumors out there, is that the right to filibuster is not written into the Constitution, and it's not as if the founders wanted filibustering to happen. They didn't advocate it. So that's the first point. The second point, though, is that as they were writing key provisions of the Constitution, they sort of anticipated that the rights they were putting into the Constitution could be used to filibuster. Things like what the quorum threshold is, how many people it takes to call for a vote, those are in there for different reasons; there are sort of good-government reasons to have those provisions in there. It's just that at the same time they could be abused. And they knew it.

MJ: So what's your explanation for the rise of obstructionism in the Senate? Is this all Mitch McConnell's fault?

GK: [laughs] No, no, it definitely precedes Mitch McConnell. The underlying story is that the ways that senators filibuster have changed dramatically. There used to be these wars of attrition where it was a contest to see which sides of the debate could last longer. And then we switched; the senators then switched to just seeing who had enough, the people wanting to do something, had enough votes to shut off debate. And underlying that was that the time of senators became much more valuable to them. They had lots of other things they could be doing. The senate had a lot more business to try to deal with, and when you put that together we spend a week, a month, trying to have one of these long debates. It just wasn't worth it to them anymore.

MJ: So you're saying they just had so much more to do?

GK: Yeah, well, part of that is what the individual senators could also be doing with their time. Especially, airplanes meant that senators could be flying across the country or flying over to Europe to find facts or visit their constituents...

MJ: Or play golf with Jack Abramoff.

GK: Or play golf in Scotland with their favorite lobbyist. And compared to that, sitting in the Senate all night listening to somebody else talk was a very unproductive use of their time.

MJ: What specifically could they do to correct the balance?

GK: Well, one of my favorite ideas—and I can't take full credit for this, because it was proposed by Gregory Robinson and another guy from Binghamton in a Roll Call article [14]—but the idea is, you switch the burden on cloture voting so that debate gets shut off unless 41 people vote against cloture. And in particular you might also reduce the amount of time between filing cloture and holding a vote.

MJ: So instead of requiring that Robert Byrd be there for 60 votes, you just get to 41 and if you oppose it, you have to show up.

GK: Yeah. So if 41 Republicans want to block, say, financial reform, they can, but they have to be in DC seven days a week, 24 hours a day, in case there's a cloture petition. Whereas, you know, if you want the bill to come up for a vote, then you can go to your fundraisers, go back to your state, sit in committee, go to your office. The people who want something to happen wouldn't have the onus on them to make something happen.

One of the broader points in my book is showing that previous attempts to reform the Senate cloture rule have not reduced obstruction. After the rule was first adopted in 1917, there was more filibustering. After the threshold for filibustering was reduced to its current level in 1975, there was an increase in filibustering. So changing the rules doesn't necessarily mean you get less filibustering.

MJ: Along those lines, are there unintended consequences that come to mind if you were to just eliminate the filibuster outright (other than the obvious fact your party won't always be in power)?

GK: Yes. Well, two main points. One is that if you eliminate the filibuster entirely, the Senate will become a lot like the House. And that's not really a good thing. In the House, the majority party is able to push through legislation that it wants. And part of the reason it can do that is that the incentives provided by a combination of House party leaders, the president, and interest groups can buy off marginal members or undecided members to get things through.

The other thing is that the House operates with a bare minimum of debate. So even if you really liked, say, the health care bill and the financial reform bill that passed the House, as small-d democrats it's got to make us a little bit nervous that they passed, after a few hours of debate, and with a bare minimum of amendments—I think the Republicans got one amendment when the health care bill passed, which of course was defeated on a party-line vote. And that occurs because the majority party is able to dictate the terms of debate. In the Senate, typically the majority party has to bargain with the minority party, and what you get is a longer conversation and a lot more amendments. Some of those amendments might improve the legislation. Some of them are just opportunities for minority party members to make their point, so that their constituents feel represented.

MJ: Now that you've spent so much time researching Senate procedure and the various ways in which bills really don't become laws, do you find it more difficult to watch something like Schoolhouse Rock [15]?

GK: [laughs]. Yes. Actually my adviser, Barbara Sinclair, she wrote the book about this. About how, she didn't phrase it this way, but it's about how Schoolhouse Rock doesn't make sense [16] any more. The filibuster is one way in which the legislative process is fundamentally different. But also just more broadly, Congress seems to really struggle to get anything done, increasingly, and so when things do get done, they often get done in these really weird ways. Everything gets bundled, all the appropriations bills get bundled together in one big bill and get passed really fast, tied to an increase in the debt limit or a congressional continuing spending resolution that has to pass that day. Or you get these omnibus bills at the end of a Congress, where other bills get passed just because there's one line that says, oh by the way, HR 22 is also passed.

Aside from the filibuster, Congress just seems to have a difficult time with the basic task of legislating in a normal way. And doing its job, which is passing legislation and appropriations bills and re-authorization bills in a timely manner.

And in that sense, the critics like Fallows have a really good point. Congress is not right now a healthy institution. But the filibuster is just a part of that dysfunction.

MJ: So you sort of attribute the increase of the filibuster to issues of time. What do you attribute the overall general dysfunction to?

GK: That is a good question. I want to answer, but part of the problem is the answer is well outside of my research. I've studied the filibuster. My impression is that the way to answer that question is to look at two things: What's driving the polarization of legislators so that Republicans feel that the consequences for agreeing with the Democrats would be extraordinary, and Democrats don't feel that when they're in the minority, many of them don't feel that they can safely agree with Republicans. And the other thing is I think, too, I would also identify campaign finance as a possible source [17] of stalemate. I'm sure your readers are familiar with that argument.
Source URL: http://motherjones.com/politics/2010/04/greg-koger

Links:
[1] http://motherjones.com/mojo/2010/04/gop-blocks-finance-debate-again
[2] http://motherjones.com/mojo/2010/04/senate-gop-blocks-finance-vote
[3] http://motherjones.com/mojo/2010/04/ben-nelson-opposes-finance-debate
[4] http://motherjones.com/politics/2010/04/financial-reform-senate-five-fights-watch-debate-mcconnell-gop-democrats-controversy-capital-risk-retention
[5] http://tpmdc.talkingpointsmemo.com/2010/04/financial-reform-teeter-on-the-edge-as-gop-prepares-to-cave.php?ref=fpa
[6] http://yglesias.thinkprogress.org/archives/2010/01/nomination-follies.php
[7] http://motherjones.com/environment/2010/03/climate-bill-john-kerry-lindsey-graham
[8] http://motherjones.com/politics/2010/04/how-immigration-could-splinter-right
[9] http://www.amazon.com/Filibustering-Political-Obstruction-American-Politics/dp/0226449653
[10] http://www.theatlantic.com/science/archive/2009/12/the-filibuster-lets-talk-about-it/32384/
[11] http://www.theatlantic.com/magazine/archive/2010/01/how-america-can-rise-again/7839/
[12] http://motherjones.com/kevin-drum/2010/03/jim-bunning-and-end-outrage
[13] http://motherjones.com/mojo/2010/02/pollster-filibuster-lot-ground-cover
[14] http://www.rollcall.com/news/42771-1.html
[15] http://www.youtube.com/watch?v=mEJL2Uuv-oQ
[16] http://www.amazon.com/Unorthodox-Lawmaking-Legislative-Processes-Congress/dp/0872893065
[17] http://www.themonkeycage.org/2008/06/campaign_finance_and_partisan.html

Is the NRA Encouraging Anti-Government Extremism? 15 APR & GOP Rep. Broun: Beware "Tyrannical" Gov't 19 APR from MOJO

I own 2 guns, a 410 shotgun and a 30-30 rifle, and I can't stand the NRA. They are an evil, neo-Nazi cabal of cowardly, hypocritical fascist pigs with the blood of tens of thousands here in the U.S. and around the world on their hands. The politicians that kow-tow to them are equally cowardly....I remember the time a lone gunman killed a couple security guards at the Capital building a few years ago, one of the NRA's strongest supporters on the Hill, Tom DeLay, was cowering under his desk in his office, terrified that he was going to suffer the results of what he had wrought. These cowards also pass laws allowing for people to carry guns in bars and restaurants and public parks but refuse to allow guns to be carried in local, state and federal government complexes. Let's level the playing field, if they are so hip on gun freedom then they should be exposed to the same level of risk they put the rest of us at. Click the header to go to the story at Mother Jones, the 2nd story includes the link to copy and paste.

Apparently the actions of National Rifle Association member Timothy McVeigh didn't teach the organization that its violent anti-government rhetoric can have dangerous consequences. On a day when thousands of Tea Party activists are taking to the streets to protest Tax Day, the Violence Policy Center has released a report today chronicling the increasing ties between the gun lobby and the Tea Party movement, and the NRA's adoption of much of the "Patriot movement's" anti-government language. The center sees direct parallels between the NRA's current activities and those in the years leading up to McVeigh's fateful decision to blow up the Oklahoma federal building:

"The gun lobby is once again embracing—and, equally important, validating—the anti-government rhetoric being offered by activists that range from Tea Party members, through pro-gun advocates, to members of the militia movement. And as was the case with Timothy McVeigh, the risk lies not so much with the organized members of these groups, but with the "lone wolves" who not only embrace their rhetoric, but are willing to act on it with violence."

The report connects the NRA to the organizers of this Monday's Second Amendment March in DC, an event the VPC finds ominous. The VPC quotes march organizer Skip Coryell, who wrote a March article in Human Events describing the event's purpose:

My question to everyone reading this article is this: "For you, as an individual, when do you draw your saber? When do you say, “Yes, I am willing to rise up and overthrow an oppressive, totalitarian government?”...I hear the clank of metal on metal getting closer, but that’s not enough. The politicians have to hear it too. They have to hear it, and they have to believe it. Come and support me at the Second Amendment March on April 19th on the Washington Monument grounds. Let’s rattle some sabers and show the government we’re still here. We are here, and we are not silent!

The NRA is not an official sponsor of the event, but it's provided an unofficial blessing and has helped promote the march to its members. The VPC finds the connections disturbing given that the march will feature such speakers as Larry Pratt, a Tea Party member who played a pivotal role in a 1992 meeting of racist and extremist activists in Colorado that essentially launched the modern militia movement.

The VPC also finds a big overlap between the NRA's election volunteer coordinators and Tea Party activists in many states, and notes that the NRA has capitalized on the movement by marketing a line of "Don't Tread on Me" T-shirts and other apparel regularly sported at Tea Party rallies. The report closes with a quote from Aitan Goelma, a former federal prosecutor who helped win convictions against McVeigh and Terry Nichols in the Oklahoma City bombing case, who told the Christian Science Monitor in March:

Anytime you have group-think and this churning of ridiculous ideas back and forth, eventually you’ll get someone like McVeigh who’s going to say ‘I’m going to take the mantle of leadership and fire the shot heard around the world and start the second American revolution...’ Some of this is fantasy. I think the idea is that it is kind of fun to talk about a UN tank on your front lawn and the New World Order...but when someone blows up a building and kills 19 kids in a day-care center, it’s not so glamorous anymore"

As the VPC report suggests, the NRA ought to think twice before egging on people who frequently talk about how the tree of liberty needs periodic watering with the blood of patriots. A few of them might start to take that line a little too seriously. It wouldn't be surprising of some of those folks showed up next week at the Second Amendment March—an event that promises to make today's Tax Day antics look like, well, a tea party.

GOP Rep. Broun: Beware "Tyrannical" Gov't 19APR10 from MOJO

http://motherjones.com/mojo/2010/04/gops-broun-beware-tyrannical-govt

At a Second Amendment rally in the shadow of the Washington Monument, Rep. Paul Broun (R-Ga.) fired up an already boisterous crowd of gun lovers, sign toters, and self-proclaimed Constitutional defenders by railing against his "socialist" colleagues on Capitol Hill and demanding a ballot-box revolution this fall. In doing so, Broun gave the event's organizers—like Skip Coryell, a anti-government gun rights advocate from Michigan—and attending groups like the Oath Keepers just what they wanted to hear.

Echoing a controversial remark made last fall aimed at House Speaker Nancy Pelosi, Broun told the crowd, "We have a lot of domestic enemies in the United States, and they work down the Mall," referring to certain members of Congress. Soon after, Broun added that Second Amendment defenders like himself and those in the crowd—many of them sporting bright orange stickers saying "Guns Save Lives"—needed to protect themselves from "the tyrannical government of the United States" and fight back against the "socialists that are running Congress."

This is not unusual rhetoric for Broun. He has called President Barack Obama a "socialist" and suggested that the administration might use a natural disaster or pandemic to "develop an environment where they can take over." He has also refused to fill in the complete Census form this year, describing it as an invasion of his privacy.

In a brief interview after his speech, I asked Broun whether he, as a politician, agreed with the virulently anti-government rhetoric of the groups hosting the event. For instance, Larry Pratt of Gun Owners for America, one of the march's sponsors, was reported to have said earlier today that "we are in a war." Referring to the government, he added, "They're coming for our freedom, for our money, for our kids, for our property. They're coming for everything because they're a bunch of socialists!" Broun said that he believed "government certainly has a place," but that only "people who are going to fight for limited government, low taxes, low intrusion into people's lives" should be left in office. "It's all about freedom," he said. "The federal government should only be doing the 18 things that Article 1, Section 8 [of the Constitution] gives the authority to do. Just 18."

If You Liked This, You Might Also Like...

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Gunning for Government
Gun rights activists descend on Washington, DC and northern Virginia for a day of protests.
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Tax To Grind
Scenes from a Tea Party rally on Tax Day 2010.
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Open-carry rally on banks of Potomac River, made possible by none other than President Obama.

Holder prefers keeping option of civilian courts for terrorism suspects from WashPost 15APR10

Consider these words from the film 'Judgment At Nuremberg' taken from the decision of Judge Dan Haywood (Spencer Tracy).
There are those in our own country too who today speak of the "protection of country" -- of "survival." A decision must be made in the life of every nation at the very moment when the grasp of the enemy is at its throat. Then, it seems that the only way to survive is to use the means of the enemy, to rest survival upon what is expedient -- to look the other way.

Well, the answer to that is "survival as what?" A country isn't a rock. It's not an extension of one's self. It's what it stands for. It's what it stands for when standing for something is the most difficult!

Before the people of the world, let it now be noted that here, in our decision, this is what we stand for: justice, truth, and the value of a single human being.

I can picture Joe Lieberman as a Kapo in the Jewish Ghettos, sending his fellow Jews off to the death camps while he licks the boots of his Gestapo master John McCain. They are disgusting.

THE WASH POST STORY
A proposal before the Senate to try all foreign terrorism suspects before military commissions would "seriously harm our national security," U.S. Attorney General Eric H. Holder Jr. said Thursday, criticizing legislation introduced last month by Sens. John McCain (R-Ariz.) and Joseph I. Lieberman (I-Conn.).

"The proposal by some respected leaders in Congress to ban completely the use of civilian courts in prosecutions of terrorism-related activity obscures some basic facts and allows campaign slogans to overtake legal reality," Holder said at an awards dinner for the Constitution Project, a bipartisan legal advocacy group. "There's no question that if such a plan advances, it would seriously harm our national security."

Civilian courts and military commissions are both effective weapons that should be selected case-by-case, he said. Civilian courts can consider a wider range of offenses -- giving the government more opportunities to disrupt plots and use leverage to negotiate cooperation -- and enjoy greater credibility with foreign allies with less likelihood of appeal until commissions become more established, Holder said.

Supporters of military commissions say that foreign terrorism suspects are enemy combatants in an open-ended war who should not be treated in the same way as criminals. They argue that evidentiary rules should reflect battlefield conditions, and they note that recent congressional reforms have solidified the legality of commissions.

THE BIRTHERS NEXT TARGET: HILLARY CLINTON from MOJO 16FEB10

These birthers are a demented lot, one might consider them drippings...the best part of them ran down their mommas legs. Click the letter to go to the story and links to related articles and the comments section.

Barack Obama's not the only Democrat whose eligibility for office is being challenged in court by conservative activists.

— By Stephanie Mencimer
Tue Feb. 16, 2010 2:30 AM PST
Ever since Barack Obama started running for the White House, he’s been plagued by lawsuits from detractors who claim that he is not a natural-born citizen, and thus is ineligible to serve as president. Now the devoted conspiracy theorists of the so-called "eligibility movement" have a fresh target: Secretary of State Hillary Clinton. And there’s a chance that the Supreme Court might hear their challenge.

In January 2009, a longtime foreign service officer named David C. Rodearmel sued Hillary Clinton in federal court in DC arguing that an obscure provision of the Constitution blocks her from serving in Obama's Cabinet because of her previous stint in the US Senate. This argument isn’t as nutty as those used in the numerous lawsuits disputing Obama’s citizenship—in fact, it previously prevented Orrin Hatch from becoming a Supreme Court justice.

Rodearmel is relying on what's known as the Emoluments Clause, which bars members of Congress from taking a federal civil job if Congress raised the salary for that job while they were still in office. The secretary of state’s salary went up in 2008, while Clinton was still in the Senate. The provision, which was designed to combat corruption, has long been a headache for presidents seeking to tap members of Congress for their Cabinets. They’ve typically solved the problem by resorting to what’s known as the "Saxbe fix"—a move named after William Saxbe, a Republican Ohio senator Richard Nixon installed as attorney general during the Watergate scandal.
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The fix is simple. All Congress has to do is repeal any pay raises for a given position so that the salary is the same as it was before the nominee's last term of elected office. Most modern presidents have adopted this solution, and after Obama nominated Clinton for secretary of state, Congress duly repealed the pay raises for the position that had gone into effect while she was serving in the Senate. Yet the fix has always been somewhat controversial. In 1987, President Ronald Reagan decided that the Emoluments Clause barred him from nominating Utah Senator Orrin Hatch to a Supreme Court seat, and he nominated Anthony Kennedy instead. Now, Rodearmel thinks the clause should be enforced against Clinton—as well as all the other former senators in the Obama administration.

Rodearmel himself says he’s just doing his best to protect the Constitution, although he's no stranger to conservative political causes: In 2004, he donated $250 to Swift Boat Veterans for Truth. And he’s supported by some familiar Clinton antagonists, namely the conservative legal group Judicial Watch, which filed numerous suits against both Hillary and Bill Clinton when they occupied the White House. His quest has also been cheered on by WorldNetDaily, the leading online promoter of the birthers’ cause, who seem eager to open up a new front in the "eligibility" fight.

Rodearmel’s case could become an irritation for the Obama administration. The US district court in DC tossed his complaint out last fall on the grounds that Rodearmel lacked standing—meaning he couldn’t actually demonstrate that he’d suffered any injury from working for a supposedly ineligible boss. (This fatal flaw has also prevented any of the birther lawsuits from going forward.) The court didn’t buy Rodearmel’s arguments that working for Clinton would violate his oath to "bear true faith and allegiance" to the Constitution. But thanks to a quirk in federal law, such eligibility cases can now be appealed directly to the Supreme Court. So Rodearmel recently asked the high court to consider his case.

Many legal experts out there think the Emoluments Clause is a non-issue. Chief among them is Obama’s former constitutional law professor from Harvard, Laurence Tribe, who has pointed out that the clause implies that a member of Congress is only ineligible for a civil job if they personally voted for a pay raise for that position. In Clinton’s case, the raise for the secretary of state was essentially a routine cost of living adjustment, mandated by a law passed in 1990 rather than a vote that Clinton participated in. But in swinging for the high fences, it’s clear that Rodearmel is seeking to persuade one justice in particular—and it's not who you might think.

As it turns out, one of the most prominent critics of the Saxbe fix during the Watergate scandal was none other than liberal Justice Stephen Breyer, who was, of course, appointed to the bench by Bill Clinton. As a law professor, Breyer wrote a letter to Sen. Robert Byrd concluding that the "fix" Nixon was proposing in order to install Saxbe was unconstitutional. (Defending the idea, oddly enough, was Robert Bork.) Rodearmel is clearly hoping that Breyer might be intrigued enough to want to revisit the issue after all these years. And standing behind him are a host of conservative activists, hoping that this legal long-shot might just work when all the others have failed.

Stephanie Mencimer is a staff reporter in Mother Jones' Washington bureau. For more of her stories,