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A Government of Law, Not Fear

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Posted on Jun 19, 2008
AP photo / Brennan Linsley

The U.S. Navy base at Guantanamo Bay, Cuba, includes this maximum-security lockup, where many detainees have been held without charge since 2002.

By Stanley Kutler

The Constitution holds, albeit by a slender thread. The Supreme Court, by a 5-4 vote in Boumediene v. Bush,  ruled unconstitutional a 2006 law barring enemy combatants held at Guantanamo from seeking writs of habeas corpus. For now, we are not under Chief Justice John Roberts’ or Justice Antonin Scalia’s constitution. Fear reigns in their dissent amid Cassandra-like threats that we are doomed unless we scrap our constitutional protections for the duration of that never-ending and nebulous “war on terror.”

      Perhaps we will have a bit of relief from President George W. Bush’s fear-mongering, which has run through our political bloodstream for the past seven years.

Justice Anthony Kennedy categorically rejected the Bush administration’s defenses, saying they failed to offer “the fundamental procedural protections of habeas corpus.” In words and ideas similar to those of Oliver Wendell Holmes and Louis Brandeis, Kennedy asserted that “the laws and Constitution are designed to survive, and remain in force in extraordinary times.” Scalia lamented that the ruling would “almost certainly cause more Americans to get killed,” and he added: “The nation will live to regret what the court has done today.” Ironically, the justice who helped to override precedent and principle by handing George Bush the disputed election of 2000 railed against “judicial supremacy.”

The decision is most welcome, but also welcome is that a presidential candidate bluntly and eloquently has endorsed it and the principle of habeas corpus. No, not “Straight Talking” John McCain, who predictably pandered to his right-wing chorus and denounced the decision. “The United States Supreme Court yesterday rendered a decision which I think is one of the worst decisions in the history of this country,” former prisoner of war McCain said. He quoted red-meat sound bites from the chief justice’s dissent, and attacked “unaccountable judges” who would allow detainees to “flood” the courts.

The other candidate, Barack Obama, the former constitutional law teacher, knows his stuff, saying that the “state can’t just hold you for any reason without charging you and without giving you any kind of due process.” That, he flatly said, is “the essence of who we are.”

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And the presumptive Democratic nominee had a little bit more history for his audience in Wayne, Pa.: “I mean, you remember during the Nuremberg trials, part of what made us different was even after these Nazis had performed atrocities that no one had ever seen before, we still gave them a day in court. And that taught the entire world about who we are but also the basic principles of rule of law. Now the Supreme Court upheld that principle yesterday.”

He took nothing back in a more carefully prepared statement for his Web site. He praised the court’s protection of “our core values,” and noted it had rejected the Bush administration’s attempt to create a “legal black hole” in Guantanamo—a policy already endorsed by McCain. The Illinois senator boldly rejected Bush’s reliance on a false choice between fighting terrorism and respecting our concepts of rule of law. Bush’s policy has yet to secure a conviction resulting from any terrorist act in the past seven years. We should remember that our legal system coped fairly and efficiently, entirely within the parameters of our rule of law, to gain convictions of the World Trade Center bombing perpetrators of 1993. 

Obama voted against the Military Commissions Act two years ago. That law, which the Boumediene case overturned, was passed by a supine Congress, terrorized and at the mercy of Bush’s weapons of mass fear. Obama’s vote is a preface to his ringing endorsement of the Boumediene ruling. He has turned the administration’s position on its head, challenging Bush’s policy as “not tough on terrorism, and it undermines the very values that we are fighting to defend.”

It would be foolhardy to predict that the court will now reinvigorate the panoply of civil liberties so twisted in the past seven years. At best, the Boumediene ruling offers a faint glimmer of hope. With the proper cases, the justices might decide to correct other constitutional travesties, such as torture, rendition and warrantless wiretaps. We can applaud the court’s majority and a scholarly presidential candidate who spoke so eloquently and affirmatively in defense of our “core values.” A rare political moment for our times.

Sen. Lindsey Graham, McCain’s close ally and sometime spokesman, has called for a constitutional amendment to keep the Supreme Court from conducting war. Ridiculous, if not ludicrous. What posturing! Meanwhile, right-wing blogs have marched in lock step, calling for McCain to make this one of his causes. Fine.

  For now, the Supreme Court—well, at least a majority of it—has reminded us we have a government of laws, not men. And maybe this time, when we get around to debates or town meetings, perhaps Sens. McCain and Obama will engage each other—and us—on these vital matters of who and what we are. That would be nothing less than audacious.

Stanley Kutler is the author of “Abuse of Power: The New Nixon Tapes” and numerous other writings on American constitutional law and the presidency.


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By cann4ing, June 25, 2008 at 9:23 am Link to this comment

Cyrena, like me, Obama was not your first choice.  Kucinich was.  Like me, there are a number of positions Obama has take, e.g. failure to adopt single-payer, with which we disagree.  But unlike the clan of Nader supporters here at Truthdig, you and I possess the ability to count.  When one does the math, the choice is fairly narrow—Obama or McCain—but the substantive gap between the two men is as wide as the Pacific Ocean.  As I said elsewhere, for all progressives, voting for Obama should be a no-brainer.

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By cyrena, June 24, 2008 at 11:53 pm Link to this comment

cann4ing,

I have a feeling that you already realize from David’s post, that he can’t even be referring to the topic here, or even understanding what Boumedien v. Bush is. Apparently he doesn’t even get habeas corpus.

These are people who ‘hear’ stuff, without understanding. It’s the same thing with Jersey Girl and a few others over on the Gore Vidal thread. They’ve been railing against Obama on the HOUSE bill that provides immunity to the telecoms in FISA, as if he’s already signed his name to it, DESPITE the fact that he said he would work to have that provision removed from it.

These are the people who EITHER didn’t like Obama to begin with, so it’s a nice hyperbole wagon to jump on. OR, they don’t have a clue to what this even means, and they still jump on the hyperbole band wagon.

Regardless of which way it is, there is not connection between the emotion and the facts.

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By lawlessone, June 24, 2008 at 6:33 pm Link to this comment
(Unregistered commenter)

Attention Democrat Party Congressional Leaders and other Fair Weather Friends of the Constitution:

  Just what the %&*@#% do you think you are doing?  FISA, a law only dictators could love, violates a whole bunch of unambiguous prohibitions in the Constitution designed for the express purpose of preventing dictatorships.  Why then are you cowards giving Bush and his Neocon henchmen, dictator wannabes one and all, exactly what they want?  The so-called “improvements” you are helping pass not only violate 200 year old liberties, wipe out what was clear grounds for impeachment and will let some egregious criminals in the Administration go free to continue their harm without penalty.  You could have defeated the entire concept merely by doing nothing and letting the odious law expire.  Doing nothing is something you have proven so good at over the last several years.  Why didn’t you continue doing nothing for just once in your increasingly fruitless careers instead of becoming co-conspirators in the dismantlement of everything this country once stood for?

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By cann4ing, June 23, 2008 at 2:41 pm Link to this comment

David, I am having a little bit of difficulty comprehending your post.

Please explain to me how the position taken by Obama in support of Boumediene and the preservation of habeas corpus places Mr. Obama on “team Bush” when it is Bush and McCain who would deny the right of habeas corpus.

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By David, June 23, 2008 at 2:03 pm Link to this comment
(Unregistered commenter)

As long as Obama is on TeamBush and enjoys giving away citizens rights, he will neither get my money or my support.  He is a fraud and a con man.  I am truly sickened by Barak Obama.

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By cann4ing, June 21, 2008 at 9:21 am Link to this comment

jmc, interesting take, but I would suggest that it is exceedingly unlikely that anyone possessing the blind ambition to be the “unitary” ruler will chose to exercise that unlimited power for benevolent purposes.  That is why the Framers of the U.S. Constitution found it necessary to divide power between three branches of government.  In the First Amendment, they envisioned that the ultimate check against tyranny would be a fully informed public, but they assumed that by freeing the press from fear of government censorship, the press would act to expose the deceits of those in power.  Unfortunately, by extending monopoly control of most of what Americans see, hear and read, to institutions that are decidedly undemocratic—corporations—we have created a situation in which a corporate media has found it far more profitable to throw in with power than to oppose it.

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By John Hanks, June 21, 2008 at 9:11 am Link to this comment
(Unregistered commenter)

Academic prose and concerns are the modern equivalent of Greek.  They clog the conversation with unnecessary precision and detail.  They are like throwing logs on a fire that needs to have oxygen and not more fuel.  Knowledge is valuable of course, but not when it clogs understanding.  The problem is rich crooks seducing middle class suckers to control lazy cowards.  The specific details of a particular rape need to be understood in such a way that it doesn’t require years of warming a chair in college to understand it.

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By moineau, June 21, 2008 at 6:27 am Link to this comment

jmcswan, you have quite a way with words, sir! i love your writing style (and the content isn’t bad either). :>>)) one of the tribe of strong women with long noses and double chins ~laura

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By JMCSwan, June 21, 2008 at 6:10 am Link to this comment

cann4ing (response to: June 20 at 1:36 pm)

‘A message’ from the Dept. of Homeland Stupidity’s village idiot ‘enemy combatant’ (sic): In context of (i) the fool who represents himself is the biggest fool; and (ii) those whose ego’s don’t allow them to admit they are the fools, are the biggest fools.

Re: the (‘penny for your Pork and Catholic society thoughts) stork choice facing the electorate come November.

Nomination of a Justice is one thing, appointment by the Senate and House another. I would advise that “fulminating opposition to the fundamental constitutional principles as they are broadly understood in our society” be read in the context of the 80/20 intelligence principle: the 20% left unsaid changes the context significantly.

Example: What’s the difference between giving an ‘in your head, addicted to stare decisis, etc lawyer’ and a JMD Marine a blow-job? (apologies to the few lawyers and Marines who are exceptions, and for the choice of example, some analogies come across experientially better than legalistic theories).

Making love to the JMD Marine is heaven, you can touch him with a feather and his whole body shudders from the experience, multiple exquisite little orgasms for men, kind of thing. As for the lawyer, he—unfortunately is so in his head, not in his senses—it’s as if he has been using his ‘member’ to chop wood. He is immune to feathers, soft touch, etc, you almost have to rip his member off, before he ‘gets it’. What I call the difference between theory and experience, if you get my meaning.

In that context, even for a 60 year old man who, by his own admission ‘can barely hard it’, that same ‘old man’ could be in his senses enough, to say thereafter ‘thanks for the best blow job I ever had’, kind of thing.

Communication is like sex:
If both parties are ‘hoping’ the other will touch them here, or there, or do this or that harder or softer, and neither clarifies their wants or needs: sex is lousy. For anyone whose very seldom had good sex and more so good sex with someone they really love, cause he or she has been screwing frigid snowqueens, experientially they never made love to a JMD Marine.

The point: If they are too petrified to tell the other, this or that is what I want, or enjoy, and are willing to take no for an answer, or continue the discussion, they are at least on their way to getting what they want: good sex. If they really love each other, for who they really are: awesome sex.

When allot of ganglords ain’t getting good sex at home in bed, with some emotional release involved as well, with their particular female or male if they are so inclined partners, they get that ‘good sex’ in the geopolitical arena, like Iraq, Afghanistan,
New York, etc. I am not saying these are their primary motives, or that many are even conscious about it. Very simplistically: Repressed energy manifests in many forms, from depression and suicide, to wars. (And yes I did release energy prior to writing this, for balance sake.) And in that context, imagine what repressed energy manifests like for celibate warrior ‘spiritual’ (sic)monks? Do you recall Gandhi ever making one statement about overpopulation, and to encourage Indians to breed less, in his drive for peace between Hindu’s and Muslims in India? I don’t. Do you want to live in Bombay or Calcutta? I don’t.

Do the religious and spiritual leader ganglords of the world think God is somehow going to create more oil, cause they are too petrified to take a stand on encouraging their followers to breed less? What do they honestly think ‘God, Yahweh, Allah, Buddha or whomever’s’ opinion might be on how they release their repressed celibate monk warrior energies on their ignorant followers, while encouraging them to breed, breed, breed? What do they think USAF Gov. Gray Davis would have to say about that?

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By JMCSwan, June 21, 2008 at 6:09 am Link to this comment

(continued)

A commitment to core constitutional values in 1776, I would imagine may be different in 1991, maybe not.

Personally I would vote to uphold Roe v. Wade. Furthermore I consider it a brave and courageous ruling against the overpopulation slave and cannon fodder breeding practices of Catholic organisations, and their attachments to refusal of supporting family planning practices.

As for seperation of powers. I agree it’s very important, in the absence of a benevolent unitary executive ruler. However, does it actually exist for the benefit of the American people, and more importantly for the future of America, in a ‘big boys backroom smoking club’, where being a member of the big boys club means more to the cigar addicts, than being an American first and foremost? And by American, I refer to the views of Timothy McVeigh, when he stated, he couldn’t start a family, or just mind his own business, when he couldn’t trust his own goverment not to barge through his front door without a warrant, or do what they did to Randy Weaver etc. Hollywood may think that a sci-fi future of the likes of Minority Report seems intriguing. My opinion is to bring a child into the world, with that future, that child would be lying in a cesspool of ‘water’, as some kind of robotic freak show Frankenstein experiment, for mad robotic freaks. My IUD stays exactly where it is, thank you very much!

And I would imagine those fellows who called Air Force One, on Sept. 11, 2001, informing the President they had the codes to the US nuclear arsenal, would be in full agreement. If you have been through the hell they’ve been through, you may agree.

We can thank ‘God’ if there is one, they and others in the White House and US Administration, didn’t use the fear of the world’s masses—except for a few outspoken Niemoller voices—after 9/11, as Hitler used the Reichstagg.

What’s the difference between Hitler’s Warsaw Mila 18 concentration camps for Jews, and spiritual and religious leaders Calcutta, Bombay and Shanghai ghetto concentration camps, or spiritual leaders Khayelitsha and Sudan ghetto concentration camps? Hitler didn’t do it to his own followers!

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By moineau, June 21, 2008 at 12:26 am Link to this comment

“Make no mistake.  What has been occurring over the last three decades is nothing short of a judicial revolution.  If John McCain is elected and appoints one more Federalist Society jurist to the Supreme Court, that revolution will have been completed.  That is the stark choice facing the American electorate come November.”

5-4 is enough of an argument to vote for obama. we must do everything we can to keep mccain out of the White House.

“But as one administration lawyer quoted by Mayer noted:  “Torture isn’t important to Addington as a scientific matter, good or bad, or whether it works or not.  It’s about his philosophy of Presidential power.  He thinks…if the President wants torture he should get torture.  He always argued for maximum flexibility.””

hayne’s testimony underscored this attitude. both the senate and house hearings on the reverse engineering of the seres techniques were chilling to the bone. looking forward to the day when addington is summoned, and hopefully the principles as well: rice, powell, tenet, cheney, rumsfield, ashcroft et al with bush on the other side of the door.

“For example, it’s clear that almost all murders and rapes are committed by young men. Obviously, if we simply put all young men in jail, we would dramatically reduce the occurrence of murder and rape (at least outside of prisons).”

actually, it is a tactic of totalitarian regimes to arrest all the “military-aged” men, which includes children in many societies. israel and the u.s. have used this as well. in history, taken to the extreme, one kills all the male progeny.

EXCELLENT and brilliant discussion on this critical issue and a real educational tool. i’ve learned a lot. thank you! ~laura

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By cyrena, June 20, 2008 at 9:16 pm Link to this comment

Ah Paolo…you said it all right here.

•  “…Leave it to Republicans to invent a whole new category, “unlawful combatants,” who allegedly have NO RIGHTS—not even rights protecting them from torture, forced confessions, or sexual humiliation…  How convenient!..”

So true, so true. And, that goes to exactly what cann4ing says here as well:

•  “…“Torture isn’t important to Addington as a scientific matter, good or bad, or whether it works or not.  It’s about his philosophy of Presidential power.  He thinks…if the President wants torture he should get torture.  He always argued for maximum flexibility.””

This last part from the Jane Mayer piece, (thanks for that excellent reference…I’d read it sometime ago, and it’s good for a re-read).

So, while Republicans are certainly awful enough, (just in general terms) THIS batch of ‘em is like nothing we’ve ever really experienced before. They’ve actually gone far beyond even the moral and ethical swamp that engulfed Nixon. They’ve actually crafted themselves into the most dangerous Cable we’ve seen in over a century. (even though we had Bork, who as cann4ing said, was unfortunately not unique..the cabal has grown from these elements)

Even now, I’m just seeing another piece that follows several years of hard work by Henry Waxman in trying to get information from Dick Cheney. He’s ‘excepted’ himself and his staff from ALL law. (we don’t even know all of who is ON his staff…it’s private)
Here’s an excerpt from that piece.

Thursday 19 June 2008
“Cheney Gets Last Laugh”
by: Kevin Bogardus and Rebecca Brown, The Hill

~  “Vice President Dick Cheney has won his battle to withhold records from the public despite efforts by Congress and other critics who say they should be open to scrutiny.

  The Democrats are conceding defeat. The party’s top investigator in the House of Representatives acknowledges that there is nothing more he can do to force the vice president’s hand.

  “He has managed to stonewall everyone,” said Rep. Henry Waxman (D-Calif.), chairman of the House Oversight and Government Reform Committee. “I’m not sure there’s anything we can do.”

  Waxman said that despite Cheney’s turning this administration into “one of the most secretive in history,” there’s not much he or anyone else can do because the administration has only a few more months left in office.

  Cheney argues that, as the tie-breaking vote in the Senate, he is not exclusively part of the executive branch and therefore not subject to the public-records standards that have been applied to past administrations.

  Congressional probes, sometimes ignored by the Justice Department, have led nowhere, and prominent lawmakers are throwing their hands in the air.

  A leading watchdog group agrees that Cheney will probably leave the White House without turning over the precise number of records he has determined to be classified or a detailed list naming whom he employs.

  The Information Security Oversight Office (ISOO), a branch of the National Archives, confirmed that it does not possess any reports about what data Cheney’s office has classified or declassified. The Office of the Vice President (OVP) has previously done so in accordance with an executive order created by President Clinton in 1995, which aimed to create a uniform system of protecting classified information.

  Similarly, Cheney’s staff information is not included in the Plum Book, which identifies all presidential-appointed positions. In the last Plum Book, the OVP was listed as Appendix 5, which stated that the vice president is part of neither the executive nor the legislative branch of government.

  The Office of Personnel Management confirmed that at this time they do not possess any staff information from OVP for the Plum Book.”  ~

More here:

http://www.truthout.org/article/cheneys-secrecy-prevails

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By Paolo, June 20, 2008 at 8:53 pm Link to this comment

Agree all on counts, Cann4ing.

Consider the case also of John Walker Lindh, the young fellow who decided, BEFORE THE US INVADED, to join the Taliban in their struggle against the “Northern Alliance.”

The US invades, Lindh fights for his side and is captured, and is immediately charged with “treason!”

So it’s now “treason” to choose the “wrong” side in a foreign civil war, BEFORE the US chooses which side to make into its satrap?

Did we expect Lindh to be able to foretell the future?

This poor kid was railroaded by an out-of-control attorney general, just when the pro-war fever was at its highest tide.

Free John Walker Lindh!

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By John Hanks, June 20, 2008 at 8:49 pm Link to this comment
(Unregistered commenter)

And the Bill of Rights is so badly written that the average person can’t understand it.  For most Americans, there is no bill of rights in the workplace so it doesn’t exist.  (Most Americans are so mislead that they actually think that a bunch of soldiers in Iraq guarantee their freedoms, and the learned inarticulateness of the academic class renders it totally useless.)

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By cann4ing, June 20, 2008 at 7:53 pm Link to this comment

Actually, Paolo, it is even worse than you think.

The so-called “military tribunals” were not erected out of a concern for determining guilt or innocence of these so-called “enemy combatants.”  They were a response to the decision in Rasul v Bush wherein the Supreme Court rejected the administration’s argument that Guantanamo was beyond the reach of the law.  The tribunals are straight out of Kafka.  As the Court explained in Hamdan, the accused can be convicted not only on the basis of hearsay, but upon evidence obtained by coercion.  “Hamdan will not be permitted to hear the testimony, see the witness’s face, or learn his name.  If the government has information developed by interrogation of witnesses in Afghanistan or elsewhere, it can offer such evidence in transcript form, or even summaries of the transcripts.”

Translated from legalese, once designated an “enemy combatant,” an accused could be “convicted” on evidence obtained by torture that the accused would neither see nor hear.  If the “evidence” were obtained by pulling out someone’s fingernails, it could be presented by way of a summary that edited out the screams.

This system was imposed on a detainee population, 55% of whom, per a Seton Hall study, had never committed a hostile act and only 8% of which were allegedly connected to al-Qaeda.  The vast majority, 86%, were captured either by Pakistan or the Northern Alliance at a time when the US was offering huge bounties for “suspected” terrorists.  In a New Yorker piece entitled, “The Hidden Power,” Jane Mayer reveals that David Addington (Cheney’s chief of staff) and Alberto Gonzales were well aware of this, for the JAG & CIA officers sent to Guantanamo, returned reporting “more than half the detainees…didn’t belong there.”  Their pleas were callously ignored.  A perplexed administration official questioned the logic.  “How could you deny the possibility that one or more people were locked up who shouldn’t be there?  There were old people, sick people—why do we want to keep them?

Questioning the utility makes sense only if one assumes Addington & Gonzales possess the belief, however misguided, that there is utility in torture in terms of the “professed” goal of fighting a war on terror.  But as one administration lawyer quoted by Mayer noted:  “Torture isn’t important to Addington as a scientific matter, good or bad, or whether it works or not.  It’s about his philosophy of Presidential power.  He thinks…if the President wants torture he should get torture.  He always argued for maximum flexibility.”

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By Paolo, June 20, 2008 at 7:19 pm Link to this comment

Part of the BIG LIE of this whole Guantanamo atrocity is the fact that many, if not most, of the detainees are NOT “combatants.” Many were just ordinary citizens who were swooped up in raids, or falsely accused by neighbors of harboring the “wrong” sentiments about our “heroic” occupation of their country.

You see, if you ARE an enemy soldier, you are entitled to certain rights under the Geneva Conventions. You cannot be tortured, humiliated, stripped naked, or forced to give any information beyond your name and rank.

In like manner, if you are a criminal, you also have certain rights. You cannot be tortured or humiliated into confession. You have the right to remain silent. You have the right to assistance of counsel.

Leave it to Republicans to invent a whole new category, “unlawful combatants,” who allegedly have NO RIGHTS—not even rights protecting them from torture, forced confessions, or sexual humiliation.

How convenient!

To paraphrase Michelle Obama with a little twist, I have to say: “For the first time in my adult life, I feel ashamed—really ashamed—to be an American.”

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By John Hanks, June 20, 2008 at 3:24 pm Link to this comment
(Unregistered commenter)

who will lie, cheat and steal using any means at their disposal.  They use the law as a license to steal.

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By cann4ing, June 20, 2008 at 2:36 pm Link to this comment

Bork’s and the Federalist Society’s reactionary goals were perhaps best summed up by Sen. Kennedy during the floor debate on Bork’s nomination to the Supreme Court.

“This debate has been a timely lesson in this bicentennial year of the Constitution of our commitment to the rule of law, to the principle of equal justice for all Americans and to the fundamental role of the Supreme Court in protecting the basic rights of every citizen.  In choosing Robert Bork, President Reagan has selected a nominee unique in fulminating opposition to the fundamental constitutional principles as they are broadly understood in our society.”

Unfortunately, Bork was not unique.  By the time of the Bork nomination fight, the Senate had already approved two radical, Federalist Society jurists—Rehnquist and Antonin Scalia, the latter by a 98 - 0 vote.

The forcefulness of the Bork nomination fight provided a brief respite from the effort to pack the Court with Federalist Society subversives.  While both Anthony Kennedy and David Souter are Republicans—Kennedy a pro-business conservative—as confirmed by the opinions in Hamdan & Boumediene, neither jurist can be described as a fundamentalist bent on overthrowing the rule of law.

The respite ended with the 1991 nomination of Clarence Thomas.  As revealed by David Brock in “Blinded by the Right” “Thomas had been coached by the Federalist Society confirmation team to give the Judiciary Committee answers to questions that may have been technically true but deliberately misleading.”  Sen. Leahy questioned the truth of a Thomas answer, technical or otherwise.  “Thomas said that he did not believe he had ever expressed an opinion about Roe even in private nor had he ever formulated a personal opinion on the case in the 18 years since it was decided.”  Kennedy likened the nomination to playing a game of “Russian roulette with the Supreme Court,” adding, “If we confirm a nominee who has not demonstrated a commitment to core constitutional values, we jeopardize our rights as individuals and the future of our nation.  We cannot undo such a mistake at the next election or even in the next generation.”  Sen. Simon observed, “If evasiveness before the committee is rewarded, we warp the process.”

By the time Roberts was nominated, the Federalist Society tactic of avoiding exposure of the nominee’s radical views had become so adroit as to prompt UCSD Law Prof. Peter Irons to liken questioning Roberts to trying to “nail Jell-O to a wall.”  Unlike Thomas, the amiable Roberts displayed a superior intellect.  His recall was superior with one glaring exception.  Roberts could not recall whether he was ever a member of the Federalist Society.  Yet a 1997-98 Federalist Society leadership directory listed Roberts as a member of the steering Committee of the group’s Washington chapter.

Make no mistake.  What has been occurring over the last three decades is nothing short of a judicial revolution.  If John McCain is elected and appoints one more Federalist Society jurist to the Supreme Court, that revolution will have been completed.  That is the stark choice facing the American electorate come November.

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By cann4ing, June 20, 2008 at 2:13 pm Link to this comment

JMCSwan:  Perhaps I did not make myself clear enough.  The separation of powers problem is far greater than the question of POW vs. Enemy Combatant.

“Unitary Executive” theory first arose when, on Feb. 5, 1986 when a young lawyer in the Reagan administration named Samuel Alito issued a memo that asserted since “the President’s approval [of a bill] was just as important as that of the House or Senate, it seemed to follow that the President’s understanding of the bill should be just as important as that of Congress.”

A 2006 report of the bi-partisan American Bar Assoc. Task Force on Presidential Signing Statements concluded that the Alito memorandum provided the underlying premise for what has become a ritualistic practice of tacking on a presidential signing statement to nearly every bill after it is “routed through Vice President Cheney’s office to be searched for perceived threats to the ‘Unitary Executive.’”  In June 2007 the GAO released the results of its study of 19 provisions to which these signing statement objections had been attached.  It fouind that in six instances, the administration failed to implement provisions as required by the measures Bush signed into law.

The reason why I say that “Unitary Executive” is not merely radical but subversive are these:  Every U.S. President based upon the mandatory language of Art. II of the Constitution, takes a solemn oath to see that the laws are faithfully executed.  When he was an Assistant Attorney General in 1969, the former Chief Justice of the Supreme Court, William H. Rehnquist noted in 1969, “It is in our view extremely difficult to formulate a constitutional theory to justify a refusal by the President to comply with a Congressional directive….The execution of any law is, by definition, an executive function, and it seems an anomalous proposition that because the Executive Branch is bound to execute the laws, it is free to decline to execute them.”

The Federalist Society was founded by Robert Bork in 1982.  Bork first became a household name during an event known as “the Saturday night massacre.”  At the height of Watergate, a Dem-controlled Senate Judiciary Committee insisted that Nixon’s choice for Attorney General, Elliot Richardson, agree to name a special prosecutor.  Richardson appointed Archibald Cox, and when Cox sought the Nixon tapes, Richardson and his assistant Wm. Ruckelshaus refused to obey Nixon’s order to fire Cox.  Nixon turned to Solicitor General Bork, who had no ethical qualms about sacking Cox.

(continued on next post)

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By JMCSwan, June 20, 2008 at 11:07 am Link to this comment

cann4ing,

POW to POW: Interesting post.

My views on ‘Unitary Executive’ theory, as I understand it, are, briefly as follows:

Within the context of (i) ‘why would I want to exchange one conscious POW tyrant 3,000 miles away, for 3,000 unconscious POW tyrants one mile away?’ and (ii) ‘McCain’s views, which I interpret as follows: he has been a 5 star POW.

In a world economy based upon slave and cannon fodder breeding, war, and conquest; we are all prisoners of war.

Some of us are simply very much more conscious thereof, while others are unconsciously in ignorance is bliss mode.

I imagine McCain thinks that it doesn’t matter how many allegedly admire him for his sacrifice as a 5 * POW. Until they have experienced what it is like to be a POW for years and years on end; they haven’t the faintest clue, what he really went through. And as such don’t understand his psychological strength, from that experience, in terms of being the future President. [More background to princples at: http://www.angelfire.com/fl4/prison/goodbad.html and http://www.davesweb.cnchost.com/corcoran.htm Richard Caruso, by the way, was a former US Marine.]

According to Dr. Richard Korn, my former mentor, when I lived in California: History has, infrequently it is true, brought forth ‘unitary executive’ Kings who were benevolent rulers. Personally, I’d describe Mark Twain’s quote “If I were King….”, as a reasonable brief definition of a benevolent unitary executive ruler.

In an Orwellian controlling insanity world of schizophrenic O’Brian power for the sake of power ganglord illusionists, who peddle ‘their illusion or perception as reality’, as a form of manipulation and control, the consequences thereof become paranoia, like those of mafia crime bosses.

There is very little trust between gang bosses to keep their word, which is not too different from the cold war game-theory that was stated as an absolute truth by John Nash and SRI. Today’s corporate, political or military truce is tomorrow’s betrayal, kind of thing. Such rulers prefer agreements that are intentionally vague, instead of one’s that are crystal clear to both sides; where an honest conversation can occur on changing the agreement, when either party is dissatisfied with the current agreement, or the other parties conduct in terms of not abiding by the agreement.

Personally, my experience in South African law courts—except before two listening Magistrates, who actually thought what I said mattered—was not very different than going into a legalese torture chamber; where for all intents and purposes the constitution had already been shredded, and the Magistrates dictatorial decision of the moment, without any further enquiry, was the ‘rule of law’. My attorney ‘interpreters’ of the legalese, couldn’t have cared less about interpreting their little legalese game for me. I was simply the guinea pig. Legal or psychological or whatever theory is one thing, experience quite another. Why don’t universities require psychologists or lawyers to spend time as undercover mental patients (with psychologists who don’t listen) or prisoners (with sadistic guards), as part of their Ph.D’s or fancy law degrees?

One of the best educations I gave myself was to be a nanny, for a few years in England and America. Gives you an entirely different experiential understanding
to considering the responsibilities of taking care of ‘adopted’ children. I learnt quickly prior to accepting any nanny job; that at the interview, I was as much interviewing the family as they were interviewing me.

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By JMCSwan, June 20, 2008 at 11:06 am Link to this comment

pt 2:

I don’t subscribe to those nanny theories that ‘children should be seen and not heard’. I always considered the opinions of the children I nannied, seriously, and with some, had some of the most interesting loving conversations and relationships as friends, which are treasured memories.

Nor do I subscribe to the nanny theory, by children, that nanny’s authority means nothing; if so, such ‘adopted’ children effectively disown themselves, and if or where they are unclear about that, I made it clear by resigning the position, with their real parents. Particularly when I wasn’t being paid one red cent for my nanny services, very few of the ‘adopted’ children were informed of their nanny, and accordingly did not recognize my nanny authority, and the alleged agreement by the parents, of future payment for my services appears to be an analogy of the terms experienced by Yossarian in Catch 22.

Now in such a case would you demand a more stringent interview process, should these parents want to re-hire you, or their children want you back as their nanny? Like a win-win crystal clear agreement? And in a geo (ego) political game-theory world of paranoic ganglords, what do you think my chances are of finding a win-win crystal clear agreement?

And that’s fine. It’s quite possible that most ganglords enjoy being paranoic ganglords. Perhaps they consider that their existential purpose. Doubt any of them had a nanny, or someone in their youth, who was really there for them, and provided them with an example, of matriarchal justice and forgiveness, and encouragement to be real life Gunny Dye, Peter Hubbard, Timothy McVeigh and Richard Caruso’s.

Simplistically, I imagine it all comes down to what the ganglords, and their followers perceive as strengths and weaknesses. Authority without domination—shibumi—is not a concept many ganglords consider a strength. For many, particularly in Hollywood, with Robert Redford and a few other exceptions, (who set the cultural controlling insanity cognitive conceptualisation of what is force, and what is power, to the masses. As such Hollywood is to the Pentagon, what Hamas is to Al’Quds), force, particularly excessive violent force, is their ultimate conceptualisation of authority and power. And when dealing with such a gangland adversary, in the geopolitical context, as I see it, an individual who prefers to practice shibumi, is left with various options, from exercising their vote to authorize the resort to violence or war, to ‘get the message’ across, to the other end of the spectrum: withdraw from direct participation, to either participate as a guerrilla in the gangwar, and eventually, like Yossarian, to just totally walk away, as if the controlling insanity gangwar does not exist, and go searching for his or her love, hoping for the best.

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By John Hanks, June 20, 2008 at 10:55 am Link to this comment
(Unregistered commenter)

They are written by crooks who specialize in force and fraud to set up rackets for the over-privileged.  They make the public pay taxes for the rich.  They make nothings illegal, so the prisons can be filled.

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By clipper, June 20, 2008 at 5:02 am Link to this comment
(Unregistered commenter)

Concerning the torture on the prisoners at Guantanamo, it seems that some people, in their subconscious minds , enjoy inflicting pain on others. One would think McCain would understand this, and not agree to continue, or help create another war.

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By Marc Schlee, June 19, 2008 at 11:56 pm Link to this comment
(Unregistered commenter)

The Bush administration…

TRY ‘EM & FRY ‘EM

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By cann4ing, June 19, 2008 at 8:10 pm Link to this comment

What people need to understand is that the four dissenting Justices are all connected to the Robert Bork-founded, Richard Mellon Scaife-funded “Federalist Society.”  All four subscribe to “Unitary Executive” theory—a doctrine not only radical but subversive to the rule of law.  “Unitary Executive” was not taught when I attended law school in the mid-70s because it did not exist until Scalia invented it in the 80s as a young attorney in the Reagan Justice Department.

It is a theory that would wipe out the entire concept of checks and balances, extending to the president unlimited powers that could not be tempered by either Congress or the Courts once national security is invoked.  And under the cover of an endless, Orwellian “war on terror” it is always invoked.  It is this radical theory that has been used to justify extraordinary renditions, arbitrary detentions, torture, the Kafka-like military tribunals, domestic surveillance and over 1,000 presidential signing statements that boldly assert that a president can pick and chose which portions of the law he will enforce—this despite the express command of Article II that a President faithfully execute the laws of these United States.

In Boumediene v. Bush, Justice Kennedy, writing for the majority, expressly recognized what was at stake, noting that the Framers understood “that pendular swings to and away from individual liberty were endemic to undivided, uncontrolled power.  The Framers’ inherent distrust of governmental power was the driving force behind the constitutional plan that allocated powers among the three independent branches.  This design serves not only to make Government accountable but also to secure individual liberty.”

As it pertained to the case before the Court, Kennedy quoted a poignant passage from the Federalist No. 84:  “The practice of arbitrary imprisonments, have been, in all ages, the favorite and most formidable instruments of tyranny.”

Obama, who, despite his impoverished beginnings, graduated Magna Cum Laude from Harvard Law School, like the majority of justices on the Court understood full well what is at stake and openly embraced the Court’s decision.  McCain, the privileged son and grandson of admirals, who finished 894 out of a class of 899 at Annapolis, has not only sided with the radically subversive minority of four but promise to appoint yet another Federalist Society jurist to the Supreme Court.

This issue, more than any other, presents the stark choice before us.  Restoration of the rule of law vs. the final shredding of the constitution and a descent into tyranny.

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By cyrena, June 19, 2008 at 6:50 pm Link to this comment

Ocjim, great comments. I enjoyed reading.
This is one of those razor sharp edges between survival (the rule of law) and Totalitarian style Authoritarian destruction. Complete Fascism. Worse than Hitler’s Nazi regime. I’m not exaggerating.

•  “..McCain, if elected, can solidify a real legacy for Bush, giving a court majority that supports what Bush has always stood for: a tyranny of purpose and a priority of politics…”
•  “Then it could easily be Brutality 5 and Justice 4.”
And THAT very chilling truth should scare the crap outta anybody!

Ed,

Thanks very much for your argument on the deal with Scalia’s logic, and what the proper response should be..

•  “The proper response to this argument is, “So frigging what, you authoritarian lunatic!”
I love it. That’s one of many proper responses. I can think of others too, but I guess I’ll just hold back and maintain my low profile.

Meantime, Obama proved very clearly what he’s about, when all of the bullshit and radical stuff from the would-be totalitarians is cleared away,  (like some of these comments) and we get down to what THE foundational priority IS, Thank God he’s a nerd, and could figure this stuff out…like how THE RULE OF LAW is the foundation for the whole experiment… the democracy thing.

Otherwise, we’re not who or what we claim to be; a republic or a democracy.

Great piece from Stanly too. I almost ALWAYS enjoy his work.

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By JMCSwan, June 19, 2008 at 6:26 pm Link to this comment

jackpine savage, 

You state:
“Would anyone like to take a bet that the election of Barack Obama will not close Guantanamo nor any of the other secret prisons in the American Gulag Archipelago?”

You seem pretty sure of yourself. Has Obama flopped the geopolitical game-theory nuts? If so, I guess I should accept the reality that there are more than a few powerful people who do not want me to be with the man I love. I certainly hope, for their sakes, they never have to experience such pain; I wouldn’t wish it on my worst enemy, to deny them being with someone they love, for so long.

And if that’s not what you are trying to say, why don’t you just say exactly what the hell it is you’re trying to say. Would that be too much to ask?

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By troublesum, June 19, 2008 at 3:03 pm Link to this comment

Mike112769
I share your toughts entirely.  Change isn’t going to come from the top, but one of the objectives of Obama’s campaign is to make people believe that it can only come from someone at the top: “If you want change just vote for me and I’ll take care of it; you don’t have to get involved.”  I believe that one of Obama’s main challenges if elected will be to stop the spread of leftist governments in Latin America.  While attention has been almost exclusively focused on the ME in the last eight years a lot of progress has been made in Latin America.  Washington was too busy to interfere as it usually does when they start taking democracy seriously down there.  Obama’s job will be to get rid of Chavez.  Look for him to start something like Kennedy’s Alliance for Tyranny and Corruption.
It is interesting to go back and look at some of Kennedy’s speeches in conjunction with standard Bushism.  Kennedy of course was much more articulate but he did exactly what Bush does.  He talked about peace and freedom and democracy (for public consumption) while all the time planning and carrying out the opposite.

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By Pacrat, June 19, 2008 at 2:06 pm Link to this comment
(Unregistered commenter)

Flipper McShame wants everyone else to share his prison experience - except that he was truly a   POW! Big difference.

Most of the folks in Gitmo were just swept up by the troops and kept secretely from their families and friends without notification or any rights at all.

No wonder the US has a black eye around the world - since it abandoned the Geneva Conventions by politico-legal chicanery!

Another term for Bush!

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By GrammaConcept, June 19, 2008 at 2:00 pm Link to this comment

Cynicism actually… ‘is the last refuge to which a scoundrel retrreats’......
Beware of the company you keep; this disease is very contagious, and addictive…

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By skulz fontaine, June 19, 2008 at 11:20 am Link to this comment

Maybe ‘we the people’ need to give serious debate to dissolving our Union. Our Union ain’t working for ‘we the people’. Not the gub-ment, not the Congress, not the executive, and certainly not Justice. I mean the Supremes and not the slimy varmints at DOJ. What a smelling disgrace Department of Justice has become. Golly, thanks there Bushy-bush-bush! Oh wait, that would have to include Defense, Interior, Agriculture, Homeland Absurdity, and those pesky rascals at H.& H S.. Golly, ain’t Mike Leavitt just the cat’s meow? Whirling trout disease? Sorry, I wax parochial. I mean, the federal government is a burden to all of us. Maybe more like a terminal cancer. Terminal cancers are for the most part, surgically removed in a last ditch effort to save the patient. Are ‘we the people’ at that last ditch effort yet? I’m just suggesting possibilities for discussion. That’s all. Dissolve the Union and avoid a civil war before the Bushy-bush-bush kids toss the nuclear termination of our planet into the equation. Opinions? Discussions? Anyone? I know, let’s ask Ben Stein.

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By SlimTim, June 19, 2008 at 10:30 am Link to this comment
(Unregistered commenter)

Yay, the detainees get their day in court! Now we’ll show them some compassion amidst the near drownings, freezing cell temperatures and ball grabbing.

Wait, aren’t we using CIA endorsed black sites in Poland, Romania, Egypt, Afghanistan, Morocco, Jordan, Libya blahh blahh. If the Pentagon doesn’t want the detainees to have a trial, I do think they have available suites elsewhere.

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By Ed Harges, June 19, 2008 at 10:19 am Link to this comment

ocjim writes:

Did anyone notice that Justice Antonin Scalia’s dissenting opinion is quit strident on the side of fear, order, and politics, predicting “devastating” and “disastrous consequences” from the decision. “It will almost certainly cause more Americans to be killed,” he said.

Ocjim: here is where I think many fail to make the right arguments against fanatics like Scalia. Even many of his critics implicitly accept the idea that whatever policy results in the fewest Americans killed is the best policy. In other words, when it comes to terrorist violence, whatever policy reduces risk closest to zero is the best policy.

But we obviously accept risk of violence all the time. For example, it’s clear that almost all murders and rapes are committed by young men. Obviously, if we simply put all young men in jail, we would dramatically reduce the occurrence of murder and rape (at least outside of prisons). If we adopted such a policy, those favoring it could rightly say, “Abandoning the policy of keeping all young men in prison will almost certainly cause more Americans to be murdered or raped!”

The proper response to this argument is, “So frigging what, you authoritarian lunatic!”

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By ocjim, June 19, 2008 at 10:05 am Link to this comment

Elect McCain and you can solidify a Bush legacy.

A recent statement of McCain clarifies his appointment philosophy. He has promised to insist on persons who were faithful to the Constitution and that had such a record. Then he went on to say, “that is why I strongly supported John Roberts and Samuel Alito for the Supreme Court and that is why I would seek men and women like them as my judicial appointees.”

A Supreme Court justice is supposed to consider the Constitution and human rights in interpreting laws.

Roberts’ dissenting statement smacks of control and politics: “The decision is not really about the detainees at all, but about control of federal policy regarding enemy combatants.” The public will “lose a bit more control over the conduct of this nation’s foreign policy to unelected, politically unaccountable judges,” he added.

Did anyone notice that Justice Antonin Scalia’s dissenting opinion is quit strident on the side of fear, order, and politics, predicting “devastating” and “disastrous consequences” from the decision. “It will almost certainly cause more Americans to be killed,” he said.

Scalia and Thomas were Bush’s prototypes for Roberts and Alito. Roberts and Alito are the McCain mold for his own appointments.

If Bush leaves any kind of legacy, it is negative: one of politics, fear, and tyranny. To these ends, Bush’s court appointments will continue on.

McCain, if elected, can solidify a real legacy for Bush, giving a court majority that supports what Bush has always stood for: a tyranny of purpose and a priority of politics.

Then it could easily be Brutality 5 and Justice 4.

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By Ed Harges, June 19, 2008 at 9:13 am Link to this comment

Some people think you’re protected if you’re an American citizen, but if they imprison you and falsely say that you’re not a US citizen, you can’t ever prove that you are, because you can never get to a court to prove it — because only American citizens are allowed to challenge their imprisonment!

And McCain thinks that’s just fine!

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By skulz fontaine, June 19, 2008 at 9:04 am Link to this comment

“We have a government of laws, not men.” Are you sure? I mean if one was to use the current motif at work and play in Amerika and that being the Bushy-bush-bush kids, we are a “nation” of immoral war criminals. Let us use John Yoo as the poster boy for war criminal example. The Supremes render their ‘ultimate’ decisions and the Bushy-bush-bush kids wantonly ignore the supreme decision. Tony ‘the gavel’ Scalia whimpers, Congress acts in their spineless and craven fashion doing NOTHING, and the Amerikan people are stuck at the gas pump scratching their numb heads trying to figure out which credit card will cover their fill up.
Amerika is NO LONGER a nation of laws. Amerika is a nation of expedient torture, genocidal preemptive war, and lying politicians that are deserving of a “nice” visit with the guillotine. Or ritual sepuku. That would be the honorable exit for a scum like G. Scooter Feith. An amalgam of villains and I can admit that.
I realize that the wheels of justice turn at an excruciatingly slow turning. But criminy, it’s been eight (8) freaking long and criminal years. If the Bushy-bush-bush kids slap Amerika with a “martial law” decree, what then?

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By Don Stivers, June 19, 2008 at 7:47 am Link to this comment

The drum beats of war crimes is out there.  A top General says such is the case.  Any more reports out there that we can publicize?

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By mike112769, June 19, 2008 at 6:33 am Link to this comment

Everybody keeps talking about the change that Obama will bring. When I was younger, I had some hope every 4 years. I grew out of that.            I believe that IF Obama wins the election, he will do as Lincoln did and ignore the judicial branch’s ruling regarding habeus corpus. He will do this because of the “war” on terror.            Every 4 years, people start praising their candidates and say “This time it’s different. My man/woman for office will make a difference!”. How sad. For all of the nice big flowery speeches they give about how different they are in their policies, there’s not enough difference in any of the politicians to matter to the public. ANY president is subject to the powers of congress. America hasn’t fallen far enough for THAT to change (yet). Something that most people want to ignore is that without the approval of Congress, our troops wouldn’t be in Iraq right now. Everyone wants to blame Little Bush, but it’s not all his fault. He had plenty of help, from the halls of Washington to the tacit approval from the American public. There isn’t a pound of useful difference between Democrats and Republicans. Thay all want the same thing, power and control of the populace. They simply choose to go about it by different means.
The one difference that can be surprising is which corporations bought which candidate. One of the similarities is that sometimes a corporation pays for BOTH candidates. If the corporations have paid them both, you could argue that both politicians are working for the same company; which makes the politicians partners. So, if they are partners, how are they REALLY and USEFULLY different?
Basically what I’m trying to say is that it DOESN’T MATTER if Obama or McCain wins. Neither one of them will do a damned thing to stop what is happening to our government. They won’t be allowed to.

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By Ed Harges, June 19, 2008 at 6:13 am Link to this comment

Last night, Keith Olberman made a very good point.

• A lot of Americans are OK with the idea that Bush can use his power of limitless detention (with no possibility of presenting a challenge in court) only on non-US citizens, captured overseas, in battle, etc.

However:

• If Bush (or any one of thousands of people to whom he thoughtlessly gives the authority) detains you, merely CLAIMING that you are not a US citizen, captured abroad, etc., you can’t challenge your detention even if you really are a US citizen, because you can never get to a court to prove it!.

(And I would add:

• Furthermore, you can’t even challenge it when the “war” is over, because the “war on terror” is completely open-ended!)

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By Aegrus, June 19, 2008 at 5:58 am Link to this comment

js, I’ll take that bet. We don’t know 100% what we’ll get from Obama after he is elected. He hasn’t mentioned anything about the secret prisons or use of mercenary forces. It doesn’t seem as though he would want to perpetuate these things, though, because, aside from the moral conflict, they cost a whole lot of money on both ends when we have to balance the budget.

It would be great if Barack would really step up to the plate on these issues, though he refers to Constitutional law and seems to have reformer experience. There is a big question on what will happen with KBR/Halliburton contractors in Iraq, and what military force will protect them. There is a gut feeling I have that tells me Blackwater will be in Iraq after all our troops have left. Hell, if nothing else but being employed by Iraqi officials who have come to appreciate the brutal security they provide.

*shrugs* There are so many factors, it’s hard to say whether Obama will have the opportunities necessary to accomplish what he wants. It is, however, heartening how he has diminished, greatly, the amount of corporate money his campaign has been taking and now the DNC. That’s more progress than we have seen in some time, and should lend some currency to hope.

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By jackpine savage, June 19, 2008 at 5:02 am Link to this comment

Would anyone like to take a bet that the election of Barack Obama will not close Guantanamo nor any of the other secret prisons in the American Gulag Archipelago?

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