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"An Administrative Review Board has reviewed the information about you that was talked about at the meeting on 02 December 2005 and the deciding official in the United States has made a decision about what will happen to you. You will be sent to the country of Afghanistan. Your departure will occur as soon as possible."

That’s it, the one and only record on paper of protracted U.S. incarceration: three sentences for four years of a young Afghan’s life, written in language Orwell would have recognize.

The document was given to a young Afghan upon his release from Guantanamo, four years after he was taken there.  He was never formally convicted of anything. As Roger Cohen writes in his New York Times op ed, A Command of the Law,

This is the lexicon of totalitarianism. It is acutely embarrassing to the United States.

 

Perhaps you would prefer Cohen's positive start, one with which I am sure most here would agree:

It’s Thanksgiving. I’m thankful for many things right now, despite the stock market, and first among them is the fact that the next U.S. commander in chief is a constitutional law expert and former law professor.

  Cohen compliments him on the forthcoming appointment of Clinton and the keeping of Gates because of their competence, contrasting that with the primary criteria used by Bush, which was of loyalty to him.  That meant no one would challenge his stupidity -  yes, in terms of the choices for which Bush opted in his policy, Cohen uses that blunt word.  He commends Obama's willingness to have his own thinking challenged, noting

The God-gut decision-making of The Decider got us in this mess. Getting out of it will require an Oval Office where smart dissent is prized.

.

Cohen revisits the manipulation of language by people like Yoo and Gonzales and others, Cheney's "dark side," the "new paradigm," the idea that Geneva was "quaint."  He then cautions us that

When governments veer onto the dark side, language always goes murky. Direct speech makes dirty deeds too clear. A new paradigm sounds bland enough. What it meant was trashing habeas corpus.

Cohen reminds us that the first detainees came to Gitmo January 11, 2002. The hearings this month were the first on whether there was justification to hold them.  The first, and the US Government lost.  Perhaps that is why this administration fought so hard to avoid having to apply habeas, because at least some were perceptive enough to realize they lacked sufficient cause beyond the fact that the powers that be wanted to.  And that, "my friends," is a clear indication of tyranny.

Yes, my two-word quotation is a direct reference to our recently defeated Republican nominee.  A man who himself had experienced seemingly unlimited detention, albeit in his case on the clear grounds of being someone captured by a nation he was attacking, surely he could have spoken out against this violation of basic international and American legal principles, could he not?  But then, after insisting on anti-torture language in a bill the President had to have, he did not blink when Bush waived that language in a signing statement.  He did not put himself on the line for a principle he had argued was important, even critical.

Perhaps that is why I am somewhat cautious in agreeing with this fine column by Roger Cohen.  For too long I have been hearing, first from Cass Sunstein, then from unnamed others through the press, that the incoming administration might not pursue the wrongdoers who are responsible for Gitmo, for Abu Ghraib, for the "black sites" nd the "extraordinary renditions," for waterboarding and sensory deprivation, for actions that were clearly grossly cruel and many that crossed into torture.  Now we hear there might only be a commission, not the investigations that Obama previously told us he would direct his Attorney General to undertake.

Perhaps the financial crises - there are several, overlapping, interconnected - will devour what political capital Obama has.  And clearly this is the greatest immediate priority, lest the nation slip into depression and pull down the rest of the world with us.  Even if only a recession lasting a year or so, the disruption to people's lives and the destruction of their hopes and dreams can potentially be devastating. Obama must address this first.

But if we are going to restore accountability, does not the new administration have to pursue and expose wrongdoing? Should not that apply to the financial shenanigans that helped create the current crisis?  And if we are to avoid future depredation of the rights we presume, however faultily, that we as Americans have and which our Constitution in its plain language does not restrict to citizens (after all, in the 5th and 14th amendments, no person is to be deprived of life, liberty or property without due process of law), that those who overstepped the Constitutional bounds on government actions, even if under the color of supposed law or administrative decree, be held to account?

I listened to John Dean on "Countdown" last night.  And in his exchange with Keith Olbermann, I heard the words that maybe Nixon was right, that if the President does it, then it's not illegal.  Even the thought of such an attitude is a total denial of the Constitutional principle of limited government.  

I hope and pray for a clear statement by President Obama that he presumes no such right.  And I also hope, at some point, for as complete a disclosure as possible.  Frank Church and Otis Pike did this nation great service when they disclosed the abuses being done by parts of this government ostensibly on our behalf.  For a long time, that experience served as a deterrent on the most extreme and egregious abuses of others.  Clearly, as that has receded into the past, some have felt as if they had no risk, as if executive orders, opinions by John Yoo, and the rationales of Cheney and Addington protected them from any retribution.  If so, has not this nation already irrevocably lost part of its soul?

Perhaps, as we learned on Countdown last night, people are not prosecutable under US law.   But that does not exempt them from prosecution in The Hague, even if not in the International Criminal Court.  There is no statute of limitations nor ability to pardon Crimes Against Humanity.  These charges should be applied at the highest level.  Because if American leaders are allowed to get away with it, then everyone else will be able to point to us as justification for their own action.  

Cohen argues for an independent investigating commission to uncover what has happened, saying that only after we know, and can identify "deciding officials" will we have people who can be judged.  I disagree.  We know that the president has claimed for himself the title of "Decider."  And we know that we executed Japanese general Tomoyuki Yamashita for the atrocities his troops committed, even though he had not ordered the atrocities - it is the doctrine of command responsibility.  And we insisted at Nuremberg and elsewhere that following orders was not a defense.  Hell, in 1965 that was part of our Marine Corps indoctrination, that we were NOT to follow an illegal order.  

And we have already a documented record that at least implies abuse. Think of Guantanamo, and these are figures Cohen repeats:

770 taken and flown to Guantanamo

23 - only 23 - ever charged with a crime

over 500 released so far, and NONE has received either apology or compensation for being wrongfully detained and abused.

Yes, abused.  Denial of rights without proper cause is abuse.  Even the worst of those convicted under our laws still do not lose all their rights.  On what basis do we accept such denial of basic rights, of basic humanity, for those who have not even been formally charged?

Cohen closes with two short but powerful sentences:

Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side.

The idea of the shining city on the hill has been part of America's image about itself since John Winthrop wrote those words in 1630, more than 150 years before our Constitution was drafted.  If we are to claim them as our heritage, if there is to be any basis for the idea of any kind of American exceptionalism, then we must fully live up to the idea of the rule of law, with no exceptions.  When we step down away from that absolute, the slope is so slippery that the dark side will be upon us almost immediately.  

There is a vindictive streak in most of us.  We want vengeance, we believe in lashing out.  The very idea of a social contract takes from us that right and empowers the government to act on our behalf lest we descend into disorder and turmoil, and then no one is safe.   Much of what the world has sought over the past two centuries, is to put similar limitations upon state actors.  That effort has never been completely successful, but it has ameliorated some level of suffering in conflict, even despite the increased force that can be applied through modern weapons and technology.  

Hobbes warned about the state of nature, with no government, which meant no industry, no agriculture, no leisure - it would be a war of every man against every other man.  No one's own power and strength would be sufficient, for others might act in concert against him, thus threatening his very existence.  And the line he uses to summarize this remains burned in my mind since I first encountered it half a century past: And the life of man; solitary, poor, nasty, brutish, and short.

Might does NOT make right. Merely because we have the power to do something does not legitimize the action.  That is what law should be about, and it is clearly the intent of having a constitutional system, and internationally having limits on the actions of governments and their minions.

There must be limits.  And those limits are meaningless if people who violate them can remain hidden in the darkness, their actions forever cloaked on grounds of national security.  

Quis custodiet ipsos custodes?   Who watches the watchers?  We are a democratic republic, which derives its authority from "We, the people of the United States."  Ultimately we are responsible for watching the watchers.  We must insist of our representatives and our newly elected administration that we be informed.  There must be exposure of the wrong-doing, lest yet again the failure to impose penalties leads to future and even more egregious wrongful actions.

If we can agree on this, then perhaps we can agree with Cohen's final short paragraph, with which I will end.  If not, then we may too soon have nothing for which to be thankful.

Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side.

May you have much this day for which you can be thankful.

Peace.

Originally posted to teacherken on Thu Nov 27, 2008 at 03:06 AM PST.

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Comment Preferences

  •  offered for your consideration (192+ / 0-)
    Recommended by:
    Meteor Blades, cdreid, ogre, AaronInSanDiego, John R, nicolemm, littlesky, Shockwave, willyr, RFK Lives, vrexford, Doctor Who, bronte17, conchita, Wee Mama, SoCalJayhawk, chuckvw, Ignacio Magaloni, thingamabob, Eddie C, DustyMathom, Barth, grannyhelen, BMarshall, lcrp, Wayward Wind, Chun Yang, songbh, Leaves on the Current, Nova Land, 3goldens, bellevie, Othniel, JanetT in MD, tRueffert, chimene, Halcyon, Alice Venturi, truong son traveler, Valtin, Dobber, reflectionsv37, eru, jimstaro, jimreyn, GreyHawk, ladybug53, LoneStarLefty, lotlizard, QuickSilver, Skid, wgard, Tunk, LithiumCola, Asinus Asinum Fricat, noweasels, xaxnar, mjfgates, emeraldmaiden, mooshter, kestrel9000, ruleoflaw, ccmask, deha, mystery2me, triv33, tecampbell, JVolvo, plf515, Preston S, ER Doc, feduphoosier, doinaheckuvanutjob, lazybum, rage, Lovo, means are the ends, lamdat, DanC, bstotts, Pandoras Box, orrg1, One Pissed Off Liberal, grayday101, dotsright, Cronesense, SomeStones, Cat Whisperer, possum, gloriana, threegoal, rgjdmls, LillithMc, Matt Z, BehereBenow, newpioneer, Orange County Liberal, vbdietz, Moderation, rogereaton, Joffan, ImpeachKingBushII, TexasTwister, davewill, ChocolateChris, LI Mike, elwior, Wes Opinion, Lujane, royce, Haplogroup V, pickandshovel, saildude, mofembot, Gemina13, kyril, utopia, luckylizard, GWboosebag, omegajew, pelagicray, George Gould, fromma, debheadley, shortgirl, Tennessee Dave, bluegrass50, Fiddlegirl, maggiejean, Mr Tentacle, Neon Vincent, rsmpdx, snackdoodle, deMemedeMedia, JG in MD, Discipline28, WereBear, Stranded Wind, ScientistSteve, SciVo, Patch Adam, mkor7, zackamac, dRefractor, Virginian in Spain, fokos, allep10, kevinpdx, elropsych, FundaMental Transformation, Dragon5616, Shocko from Seattle, Tommymac, Leftcandid, Lauren S, NCrissieB, Just Bob, jwcisneros, oohdoiloveyou, Alec82, Observerinvancouver, Dark Ranger, UTvoter, Indie Tarheel, chrome327, LeftyAce, AZphilosopher, mjbleo, Man from Wasichustan, BonnieSchlitz, snaglepuss, jlang57, qi motuoche, eyesonly, Urtica dioica gracilis, kathleen518, CA Berkeley WV, Anne was here, nosleep4u, no way lack of brain, stone clearing, implicate order, Olon, kathryn1812, blueinmn, Treghas, kostalNH, free as a butterfly, justsayjoe, lallard, Carolyn in Oregon, athena47

    and to do with it what you will.  If it does not speak to you, so be it.

    Peace.

    do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

    by teacherken on Thu Nov 27, 2008 at 03:07:22 AM PST

    •  nicely put n/t (10+ / 0-)

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 03:29:37 AM PST

      [ Parent ]

      •  We are a nation of laws..... AND men (13+ / 0-)

        And laws are only as good as the men and women who ctreate them and enforce them.

        Eight long and painful years of Bush has shown America that our finest laws, traditions and beliefs can be trampled in the mud of fear and smear by inept clowns who's rise to power gives opportunity to their malevolent darkest sides.
        Its not just Bush by far---look at all who rose to defend and gloss over his travesties, in the process smearing the patriotism and good will of everyone who raised an objection. Look at those who attacked as unpatriotic and "palling around with terorists" everyone who raised a reasonable objection at all.

        yeah we're a nation of laws all right, but theyre only good if people understand them and don't allow them to be trampled over by paranoiad, torture happy wackos with no respect for laws or basic human rights and dignity.

        What good is it to be a nation of laws if our top leaders ignore and disobey them and the lawmakers help them do it (like FISA, Torture too many others to name here)

        The takeaway from the Bush Era is how easy our laws can be shitcanned.

        If Liberals really hated America we'd vote Republican

        by exlrrp on Thu Nov 27, 2008 at 05:52:46 AM PST

        [ Parent ]

        •  Sixty some years after the accusations of (12+ / 0-)

          "victor's justice" from some on the wrong side of the Nuremberg Trials we are seeing some justification for that claim.

          What we applied there, in particular to some cases where superiors were held responsible for actions of subordinates, we see being swept under a rug here.

          You are precisely right. No system, no constitution, no laws can survive when the population become ignorant, lazy and easily swayed by propaganda or emotion in support or non-support of those systems. We have many dark little corners that show the myth of our perfection and "goodness" is a myth. None during my lifetime gave me much of a feeling for how "good" Germans of the 1930s must have felt. "How could such an educated, cultured nation descend into such madness?" was something I knew intellectually. I didn't feel any emotional "kinship" with them until I saw our actions after 9/11 when s malicious leadership fanned the emotions to undermine what had been at least the ideals of the nation, if not always the practice.

          When some surveys find that most citizens of the United States have no grasp of the Constitution, often do not even recognize quotes from the Bill of Rights, we have a system about as reliable as a modern airliner with monkeys doing the maintenance.

          The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

          by pelagicray on Thu Nov 27, 2008 at 07:36:16 AM PST

          [ Parent ]

        •  And one more thing: only as good as the public (6+ / 0-)

          And laws are only as good as the men and women who ctreate them and enforce them.

          commitment to the Constitution.  Bush was reelected because We, the People, lost our nerve.  We gave in to fear and bullying.  
            In a democracy, the people rule...and when they miss-rule, as we have by electing the Bush team, we need to have the cajones to stand up and take our medicine.  We got the government we deserved!  :-(

          ...Former candidate for Congress.

          by Steve Love on Thu Nov 27, 2008 at 08:11:50 AM PST

          [ Parent ]

          •  We stopped being a nation of laws on 12/9/00 (5+ / 0-)

            Most of what happened since then was set in motion on that dark day when 5 Supremes issued a stay of the FL recount.  The final opinion 3 days later merely confirmed a decision that had already been made.  5 GOP hacks decided that they had the authority to thwart the will of the people.

            Obama will inherit a much fuller plate than any of us will have at our respective T'giving feasts today.  That little issue of preserving, protecting, and defending the Constitution will be one of many crises he will have to handle.  Personally, I wish he had named someone like Patrick Fitzgerald as AG and told him to shake things up at DOJ.

            I hope like hell that Holder is up to the gargantuan task that awaits him.  I'd feel a lot better if Fitzgerald and a few others like him were promoted to senior-level policy positions in DOJ.

            Some men see things as they are and ask why. I see things that never were and ask why not?

            by RFK Lives on Thu Nov 27, 2008 at 10:46:03 AM PST

            [ Parent ]

            •  I am going to disagree (0+ / 0-)

              because ultimately the Supreme Court decision did not affect the outcome of the election.   After the first, unanimous decision of the Florida Supreme Court to authorize a recount, the Florida legislature, under the leadership of then Speaker and now defeated Congressman (thanks to soon to be Rep. Kosmas) Tom Feeney. as moving to legislatively designate a slate of electors for George Bush.  That is their constitutional prerogative.  Thus from that moment Gore was never going to get FL's electoral votes.

              Peace.

              do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

              by teacherken on Thu Nov 27, 2008 at 10:52:26 AM PST

              [ Parent ]

              •  Had the recount proceeded on Saturday (1+ / 0-)
                Recommended by:
                mkor7

                by Sunday, Gore finally would've pulled ahead on the little #'s they were running on the cable TV networks.  He had already picked up a net of >100 votes in Lake and Orange counties alone when the stay was entered.  Overvotes (ballots where the voter voted for Gore on the ballot and then wrote in his name, too) are legal ballots, and he was making up serious ground on them.

                At that point, there would've been a sea change in the public perception of the recount.  Yes, Feeney and his henchmen in Tally would've certified a slate of Bush electors.  They would not, however, have had the final say.

                We'll never know what would've happened in Congress had there been 2 rival slates and a final tally showing Gore ahead.  We do know that, by judicial fiat, 5 Supremes kept us from finding out.  The precedent that was set by W's selection as prez set the template for everything that followed.

                Some men see things as they are and ask why. I see things that never were and ask why not?

                by RFK Lives on Thu Nov 27, 2008 at 11:44:01 AM PST

                [ Parent ]

                •  constitutionally the legislature has the say (0+ / 0-)

                  and I have no doubt had that issue gone back to the Supreme Court, they would have ruled in favor of the legislature.

                  Then we might also have had to deal with the issue of the 14th Amendment loss of representatio?

                  By the way, remember that Scalia wrote a weird concurrence the first time Bush v Gore came to SCOTUS, something about how allowing the recount to go forward would delegitimize Bush's victory?  I should probably look it up, but it always seemed to me that he was looking at the legislative action, realized it would be definitive, and understood the implications of a recount that showed Gore winning the popular vote in the state would undermine a victory the Cour would ahve had to allow Bush to have.

                  do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

                  by teacherken on Thu Nov 27, 2008 at 11:47:53 AM PST

                  [ Parent ]

                  •  Scalia wrote an opinion on 12/9 justifying the (0+ / 0-)

                    utterly unlawful stay in response to an opinion written by Stevens challenging the stay.  That's where Scalia used the "legitimacy" argument--like a good political operative, he wanted to cover his tracks.

                    The actions of a legislature are not definitive in prez elections.  If they are, then any lege can designate their state's electors, regardless of how the vote went in their state.  Think about it--Gore would've won the FL vote and he won the popular vote already, and the FL lege still would have plenary authority to award our EVs to W?

                    The matter would've ultimately ended up before Congress in 1/01.  As it was, House members tried to challenge the FL results, but no senator would second the challenge b/c Daschle made a deal that allowed the Dems to ultimately take control of that body when Stafford defected.

                    Some men see things as they are and ask why. I see things that never were and ask why not?

                    by RFK Lives on Thu Nov 27, 2008 at 12:14:50 PM PST

                    [ Parent ]

                    •  in fact, any legislature can (1+ / 0-)
                      Recommended by:
                      Foxwizard

                      allow me to quote from Article II Section 1:

                      Each state shall appoint, in such manner as the Legislature thereof may direct, a number of electors, equal to the whole number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Representative, or person holding an office of trust or profit under the United States, shall be appointed an elector.

                      That cannot be restricted by statute, only by Constitutional Amendment, or by interpretation by SCOTUS.

                      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

                      by teacherken on Thu Nov 27, 2008 at 12:38:55 PM PST

                      [ Parent ]

            •  Maybe that is what Holder will do. n/t (0+ / 0-)

              ...Former candidate for Congress.

              by Steve Love on Fri Nov 28, 2008 at 09:47:44 AM PST

              [ Parent ]

        •  The Obama administration, from info to date, (0+ / 0-)

          doesn't want to appear vindictive and start witch hunts.  There's a lot to be said for this attitude.  But, my impression is that many Americans simply do not understand their Constitution and do not understand the magnitude of the Bush administration crimes.  Every American needs to understand that your laws cannot be "shitcanned" without consequences, including jail time.  

          There should be selected, highly publicized, prosecutions of high ranking policy makers (John Yoo and up the chain)to make people understand what has been done and why it must not be done again.  [But then you don't want "show trials" and it will be tricky to strike the correct balance.]  

          •  The problem is that these would inherently (0+ / 0-)

            be political trials, and that there is no garuntee of conviction.

            Were Yoo tried and acquited, the opposite lesson is learned.

            Damn, they sure have played us well, haven't they?

    •  We stopped being a nation of laws a long time ago (9+ / 0-)

      In Colonial times, if someone committed a crime against you, you could prosecute him yourself and not have to rely on the good graces of Alberto Gonzales.  If a public official in 18th century Britain abused his authority and thereby injured you, you could simply remove him from office.

      Our servants have become our masters, and have helped themselves to the public fisc.  War crimes are being committed in our name, and no one has the power and will to prosecute.

      There is one set of laws for me, and another set for you, as judges are free to ignore the decisions they made last Tuesday.

      How do you give thanks for that?

      •  Apropos of your diary, which I'd missed) (1+ / 0-)
        Recommended by:
        kyril

        it reminds me of this.

      •  7 comments and no recommend? (3+ / 0-)
        Have we really come to this? :(

        --
        You want money, DSCC? Get it from Lieberman.

        by DemCurious on Thu Nov 27, 2008 at 06:15:04 AM PST

        [ Parent ]

      •  The law of unintended consequences seems (0+ / 0-)

        to be in effect in the term-limited president.  Since he's subject to being disposed of automatically after eight years, there's less incentive for him/her to do a good job AND less incentive to remove him prematurely for his/her inadequacies.

        Also, the automatic removal makes it less important for the citizenry to attend to what's going on.  
        We assume that the desire for popular respect will prompt honorable behavior.  But, when the office holder is a mere figure head, there's no behavior to be judged.

        How do you tell a predator from a protector? The predator will eat you sooner rather than later.

        by hannah on Thu Nov 27, 2008 at 07:43:32 AM PST

        [ Parent ]

        •  Oh, how happy am I to hear your observation! (0+ / 0-)

            The 22nd Amendment ranks right up there with Prohibition as being really BAD law...only we have yet to come to our senses on the former.  The amendment was an act of petty retaliation AGAINST THE AMERICAN PEOPLE for having selected the FDR administration to finish winning WWII.  The amendment was misguided and we have paid a very high price.
           I would hope that one of the reforms of the Obama era would be a repeal of the 22nd.  Could we start that effort NOW?  

          ...Former candidate for Congress.

          by Steve Love on Thu Nov 27, 2008 at 08:22:12 AM PST

          [ Parent ]

          •  Sorry - I disagree (1+ / 0-)
            Recommended by:
            lcrp

            for a variety of reasons.

            1. the job is a killer
            1. we are quite used to limiting terms of executives at the state level
            1. the issue of term limits has relatively little do with how a good president does his job
            1. had we not had term limits, do you doubt that Reagan would have run again and won?  And then what, a President perhaps in the early stages of Alzheimer's?

            Peace.

            do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

            by teacherken on Thu Nov 27, 2008 at 10:54:21 AM PST

            [ Parent ]

            •  We'd have to take more care, wouldn't we? n/t (0+ / 0-)

              How do you tell a predator from a protector? The predator will eat you sooner rather than later.

              by hannah on Thu Nov 27, 2008 at 03:01:51 PM PST

              [ Parent ]

            •  Response (0+ / 0-)
              1. the job is a killer

              Really?  That's why we voted in the 22nd...that the job was hard?  

              1. we are quite used to limiting terms of executives at the state level

               That hardly is a reason.  We were accustomed to blacks having separate drinking fountains AT THE STATE LEVEL but that hardly prevailed as good national policy.

              1. the issue of term limits has relatively little do with how a good president does his job

               Oh, how well I know that!...and why I think it is poor law.  It was designed to make sure that no DEMOCRAT would stay in office.  

              1. had we not had term limits, do you doubt that Reagan would have run again and won?  And then what, a President perhaps in the early stages of Alzheimer's?

                1.  ON THE OTHER HAND had he decided to run perhaps the campaign trail would have revealed the very problem you are concerned about and the Democrats would have won.
                2. My objection is that one generation of voters has told all future generations who they CANNOT have as their President.  Was the generation of the 1950s so smart that they could foretell what is good for the country FOR ALL TIMES?  
                Sure Reagan's POSSIBLE re-election would present problems (incidentally, easily solved by the present law of presidential succession) but it also prevents the re-election of Barack Obama at an age at which he could give us the best leadership of his career.  He's 47.  He'll be 55 when this stupid law "retires" him...as it did Bill Clinton, who, I think everyone, now agrees would have been a better President on a bad day than W. has been on his best.
                3.  So your concern for a possible re-election of Reagan at the end of his powers trumpts the re-election of both Bill Clinton and Barack Obama at the peak of their's?  Have you really thought this through?  :-)

              ...Former candidate for Congress.

              by Steve Love on Fri Nov 28, 2008 at 09:34:07 AM PST

              [ Parent ]

              •  sorry - would not have supported Clinton for 3rd (0+ / 0-)

                term -  he was very much a disappointment, and not just because he couldn't keep it zipped.

                I would personally not have a problem with amending the Constitution to limit Congress -  say maximum of 10 germs in the House and 4 in the Senate, or even lower it to 8 and 3 if you like.

                I think the country benefits from change in leadership.  And I certainly don't like the idea of people becoming proprietary about public office.

                Look at Strom Thurmond before, or even, sadly, look at Bobby Byrd now.

                Now imagine a president who keeps getting reelected.  Oh wait, we had that in FDR, and one might argue that before the end of his third term he was no longer up to the job, yet he ran for and won a 4th.

                do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

                by teacherken on Fri Nov 28, 2008 at 03:30:43 PM PST

                [ Parent ]

                •  Recapitulation (0+ / 0-)

                  Now imagine a president who keeps getting reelected.  Oh wait, we had that in FDR, and one might argue that before the end of his third term he was no longer up to the job, yet he ran for and won a 4th.term -

                   Give me a break here.  FDR did not elect himself!  A majority of the American people DID.  How is your indictment of that election NOT an indictment of the voters?  Seems like it was the VOTERS who were no longer up to the job, as you suggest.      
                    But lest you think I am unbiased, I am a lifelong Democrat and the only President I knew for the first 13 years of my life was FDR.  And for millions of people, his picture hung in a place of honor in their homes.  You obviously did not live through those years or have forgotten what he meant to millions of Americans who lived through the Great Depression.  For those who did and thank him for leadership in winning WWII, your suggestion that he was not up to the task is seriously offensive!  

                  (on Clinton) he was very much a disappointment, and not just because he couldn't keep it zipped.

                   Well, by that token, as a Texan and knowing what a dufus W. was, I would have outlawed electing a Texas Governor to the Presidency but could such a law stand muster as an expression of democratic principles?

                  I would personally not have a problem with amending the Constitution to limit Congress -  say maximum of 10 germs in the House and 4 in the Senate, or even lower it to 8 and 3 if you like.

                   And upon what fundamental principle clearly articulated and supported by the electorate would those numbers be based?  It seems you are just as critical of the Founders as the 80th Congress...and just as much lacking in an articulated principle except self-confidence or vindictiveness.  :-)

                  I think the country benefits from change in leadership.

                    If you believe that, you ought to advocate a term limits for CEOs, the office corps of the military and the ministry.  Societies also benefit for continuity!  To suggest that change trump competency is to suggest that fads trump proven values.  
                   

                  And I certainly don't like the idea of people becoming proprietary about public office

                   Well, from the other side, are not saying, by implication, that VOTERS should not become "proprietary" about electing their own representatives???... something that those of a Tory mentality have suggested since the nation was formed?  
                    Democracy is always a balance between a fear of the misuse of power by the elected and the wisdom of the electorate...and the Founders always came down on the side of the latter.  It's a shame that you seem to have forgotten that.  :-(

                  Look at Strom Thurmond before, or even, sadly, look at Bobby Byrd now.

                   So, the people in those states should be deprived of their voting rights?  And by what criterion would you deprive them of that?  Age?  Opinion?  Southern-stateism?   We are a DEMOCRACY, Ken, something it seems you have forgotten.  
                    People in public office DO NOT ELECT THEMSELVES and running for office or offering yourself up for re-election is not an act of egotism. Dening people the right to re-elect the people who are doing a good job is to deprive them of a fundamental avenue of GRATITUDE.  Have you ever just been grateful for a job a politician has done?  Public service is an act of civic duty and highest office in a democracy!  I think the termites of the Norquist anti-government disease has eaten into your brain.  :-(

                  ...Former candidate for Congress.

                  by Steve Love on Fri Nov 28, 2008 at 06:18:31 PM PST

                  [ Parent ]

                  •  do you always go over the top (0+ / 0-)

                    when people disagree with you, as you do in your last line?

                    I have worked for government for much of my adult life.  Time in the military, 8.5 years working for local government, and now in my 14t year of public school teaching.  I am hardly anti-government.

                    And you ignore the huge advantage of incumbency, which is what kept getting Thurmond reelected even when he could no longer do his job.  

                    You'd be surprised how often that happens, because the staff of the elected does not want to lose its sinecure.  

                    I want to see MORE people participate by holding office.   That hardly makes me anti-government.

                    do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

                    by teacherken on Sat Nov 29, 2008 at 05:43:07 PM PST

                    [ Parent ]

          •  I'll go with TeachrKen on this; imagine (0+ / 0-)

            twelve years of Reagan, then ascension by Bush Sr. Then imagine 12 years of Shrub and Cheney.

            The GOP may not be any good at winning elections, but they sure as hell know how to steal them. It was twenty years from FDR through Truman to Ike. Fortunately, FDR was benevolent and Truman was honest.

            Now, do that again with less benevolence and a total lack of honesty. The Constitution could not withstand it.

            People don't pay attention because of term limits, they don't pay attention because they don't think their voice matters. Well, since Nixon, it hasn't. Forty Fucking Years and an entrenched GOP has set the pace, framed the issues and ignored the will of the people.

            Maybe with Obama we can change things, but I don't think it will really change until Congress is no longer entrenched and there are fewer former prosecutors on the bench.

            •  Really? The Constitution is so weak? (0+ / 0-)

              Now, do that again with less benevolence and a total lack of honesty. The Constitution could not withstand it.

               So you are saying that the Constitution cannot survive the people of the United States electing WHOEVER they want for President?  It the Constitution will not survive the election of someone for a third term, what makes it survivable for a second...or even a first, in some instances?

              People don't pay attention because of term limits, they don't pay attention because they don't think their voice matters.

               My objection has nothing to do with people's attention, though having that issue forced off their plate hardly helps.  If people are turned off by what "Washington does" then allowing them to select the President they want...like a Bill Clinton...might move them to look at other issues.
                My objection is the people of the 1950s presuming to know what is good for American 66 years later!
               

              ...Former candidate for Congress.

              by Steve Love on Fri Nov 28, 2008 at 09:43:15 AM PST

              [ Parent ]

              •  My point is this: Bush has shredded the (0+ / 0-)

                constitution in ways we never imagined possible, yet he is leaving because of term limits. Without term limits he and Cheney would have the full backing of the GOP to steal the election and continue to ignore the law.

                If you object to the people of 50's presumption to know what is good for us, then I can only imagine what you think of the constitution itself. It was framed over two hundred years ago. It is not a popular docuement right now, and I am used to hearing youir line of reasoning from those who chafe at its limitations on government power.

                Reagan not only spoke against term limits, he spoke and believed as if he wished he were a dictator. Bush Jr. and Cheney behaved as if they were dictators.

                The constitution is a document, and is only as strong as those of the current generation willing to defend it.

                Not a lot of that going on right now. So no, term limits for those who would be dictator are a circuit breaker we sorely need.

                Maybe you don't think Bush stole the election; maybe you think SCOTUS was right in awarding him the presidency because the voting was so close the election might (might) have gone into the House, where constitutional processes could have worked.

                But the disdain of SCOTUS, the GOP, their echo chambers and fellow chumps for the constitution is breathtaking, scandalous and evil.

                I guess if the people keep voting for a facist dictator, you're ok with facism?

                •  Let's think about this some more. (0+ / 0-)

                  constitution in ways we never imagined possible, yet he is leaving because of term limits. Without term limits he and Cheney would have the full backing of the GOP to steal the election and continue to ignore the law.

                    If George, Cheney and the GOP are set on a lawless course, how does the 22nd Amendment stop them...after all the Constitution is, said George, just a "goddamn piece of paper?"  

                  If you object to the people of 50's presumption to know what is good for us, then I can only imagine what you think of the constitution itself.

                    I have all the faith in the Constitution, it is the 80th Congress dominated by Roosevelt haters and New Deal repealers that I have a problem with.

                  It was framed over two hundred years ago. It is not a popular docuement right now, and I am used to hearing youir line of reasoning from those who chafe at its limitations on government power.

                   I know.  I was there.  :-)  My problem is that it is not a limitation on government power...far from it!  It is a limitation on the people's power to freely elect the President they want.  As for the limitations on government power, the contrary is true in that it unleases the President elected to his second term all the evil associated with a weak President...one with the power of the pardon to execute in any way he sees fit and with zero accountablity...and strengthens proportionatly the other two branches.

                  Reagan not only spoke against term limits, he spoke and believed as if he wished he were a dictator. Bush Jr. and Cheney behaved as if they were dictators.

                     Why do you return to Reagan.  There have been three Presidents since him: George H.W. who was voted out of office because he couldn't keep his act together; Clinton, who could have been re-elected and instead we got George W.  For the life of me, I cannot imagine a better argument against the 22nd Amendment than the election of George W. and sending Clinton into exile.

                  The constitution is a document, and is only as strong as those of the current generation willing to defend it.

                    Exactly!  Which is why I think the 22nd Amendment is poor legislation, both weakening the government and our democracy.

                  Not a lot of that going on right now. So no, term limits for those who would be dictator are a circuit breaker we sorely need.

                    If term limits is the circuit breaker to dictatorial ambitions why do we not exact term limits for members of Congress and the Supreme Court?  From what you know about the history of dictators, do you know of any of them who would have been detered from their ambitions by words on a piece of paper?   Stalin?  Hitler?  Castro?  Amin?

                  Maybe you don't think Bush stole the election; maybe you think SCOTUS was right in awarding him the presidency because the voting was so close the election might (might) have gone into the House, where constitutional processes could have worked.

                     Bush didn't steal the election: the SCOTUS did it for him, but what has that to do with the 22nd...or are is this a back door way to suggest we need term limits for the SCOTUS?  

                  But the disdain of SCOTUS, the GOP, their echo chambers and fellow chumps for the constitution is breathtaking, scandalous and evil.

                    But, I'm sorry, the whitewashing of Congress for its failure to uphold the Constitution in order to ascribe to the Bush gang some supernatural powers is magical thinking at its worse.  The Republican Congress of 2003 should have impeached and covicted Bush on the torture issue.  Bush didn't walk on water; a lapdog GOP Congress violated their oath of office!

                  I guess if the people keep voting for a facist dictator, you're ok with facism?

                    Let's hold the hyperbole for the cheap seats.  Bush is no fascist dictator and there are none on the horizon.  By resorting to hyperbole you create the environment by which the GOP, who has done so poorly by their trust, get to make their case.  They do not know shades of gray: it is always black and white to them.  We, in the Netroots, ought not to encourage that kind of thinking.  :-)

                  ...Former candidate for Congress.

                  by Steve Love on Fri Nov 28, 2008 at 03:08:28 PM PST

                  [ Parent ]

                  •  I agree that congress shirked its duty (0+ / 0-)

                    when it failed to impeach Bush on the torture question in 2003; and the dem congress of 2006 did the same, when it failed to impeach him on violating Habeas Corpus on US soil -- among many other crimes.

                    If I were there when the 22nd was passed, I might have felt the same way you do. But that was before Nixon consciously fashioned an imperial presidency much more abusive than Johnson's, and Ford protected the abuses by forestalling indictment of Nixon for Watergate. I keep bringing up Reagan because he was the pivot point, where it became acceptable, with much of the country, for the executive to ignore the law. Reagan restored the imperial presidency to all its glory, and ignored the law to make it so.

                    Reagan even went further, trading in drugs and arms to (illegally) provide weapons to the contras in Nicaragua. It was Reagan that began to assert the Federalist Society's image of a presidency that was more powerful than the other two branches of government.

                    In the time of the imperial presidency, with theories of the "unitary executive" floating around, and congresses too timid to do their duty, I just think we need limits on the executive. Unlike other democracies, we cannot force a vote of confidence, force a new election before the term is up, or even recall the president. We citizens get our say every four years. The modern presidency really doesn't have to listen to the people, or the law. Bush has pretty much proved that.

                    In fact, I do believe the election was stolen for Bush, by Katherin Harris' purging of voter roles and mangling of ballots. The pre-election activity in Florida, and other states, set SCOTUS up to to make the call. Another series of crimes Congress has yet to investigate.  

                    I'd be in favor of Congressional term limits, but for one fact, and it's a quandry:  when we elect a new president, almost the entire executive branch changes. Upper level political appointees actually run the executive branch day to day. So, limiting the president to two terms doesn't make him a hostage of any beauracracy.

                    It's not the same for Congress, because there is a whole staff that keeps on churning no matter who or what party gets elected. Congress critters who aren't around for a while don't know how it works and are unable to master it. So how do we limit congressional terms without putting the legislature at the mercy of its own staff?

                    And yes, I think we may need to look at mandatory retirement for federal judges. But that is another discussion, and I have no firm opinion on that.

                    In point of fact, Bush and Cheney displayed many of the characteristics of facist dictators, taking abuse of the law to levels unseen in the White House since, well, I don't know if we've seen it before. Bush and Cheney both claimed to be above the law; Bush set aside laws he didn't like, ignored others, flaunted congressional and court supoenas and behaved like a law unto himself.

                    As a student of history, I really believe we have flirted with facism more closely in this country in the past decade, than we are really aware. Dangerously close. The mindless loyalty shown to Bush by rank and file GOP supporters is amazing. I suppose we can always say there was that factor, but I don't remember it from the 1960's, when I was coming of age. In the early 1970's, even the GOP turned on Nixon when the extent of his abuses were uncovered.

                    Bush's abuses were well known, almost from the start, and otherwise intelligent people brushed them aside because of the supposed "Liberal threat".

                    Not tryin' to get hysterical; just trying to remind that, indeed, democracy is a fragile creature, a promise that's really good for only one generation at a time.

                    •  Once again.... (0+ / 0-)

                      and the dem congress of 2006 did the same, when it failed to impeach him on violating Habeas Corpus on US soil -- among many other crimes

                      .  You really think there were votes in the House and Senate to impeach?  If there were why did so many bills get vetoed?

                      If I were there when the 22nd was passed, I might have felt the same way you do. But that was before Nixon consciously fashioned an imperial presidency much more abusive than Johnson's, and Ford protected the abuses by forestalling indictment of Nixon for Watergate.

                        But might it have been that the excessive of Nixon were precisely the consequence of being a lame duck?  Nixon has four years to get even with his enemies.  Had he the option of re-election he might have never been so driven.

                      I keep bringing up Reagan because he was the pivot point, where it became acceptable, with much of the country, for the executive to ignore the law. Reagan restored the imperial presidency to all its glory, and ignored the law to make it so.

                        But none of this is justification of term limits!  It is a justification for IMPEACHMENT...which is still in the Constitution!  By limiting the term of the presidency you really give the Congress an easy way out, "Oh, hell, we know he is a crook but he will be out of here in a couple of years so suck it up and let the bastard get away with this stuff."  If the bastard could run again, Congress would not have that out!  IMPEACHMENT is the way the Founders had for dealing with crooks in office.  Were they a bunch of numbskulls or are we the numbskulls to give Congress a pass?

                      In the time of the imperial presidency, with theories of the "unitary executive" floating around, and congresses too timid to do their duty,

                        If Congress is not doing its job, then maybe we need term limits on it?  Hell, let's just redo the whole term system and ignore the reasons the Founders organized the government like it did.  The terms of the members of the government were the subject to intense debate and carefull deliberations.  The Founders has a reason for all the terms.  The 80th Congress was just obcessed with making sure that no Democrat ever got to repeat FDR's history!  It was a partisan activity based on balancing partisan books justified by concepts alien to that of the Founders.

                      I just think we need limits on the executive. Unlike other democracies, we cannot force a vote of confidence, force a new election before the term is up, or even recall the president. We citizens get our say every four years. The modern presidency really doesn't have to listen to the people, or the law. Bush has pretty much proved that.

                        One the contrary.  We vote every two years...and as Bush found out, if you lead your party to be a bunch of screw-ups, you will find yourself with a DEMOCRATIC Congress!!!!  The election of Congress is a check on the President because he is dependent on them to pass his legislation.  And we can impeach the President, which is just as effective as a vote of confidence.

                      In fact, I do believe the election was stolen for Bush, by Katherin Harris' purging of voter roles and mangling of ballots. The pre-election activity in Florida, and other states, set SCOTUS up to to make the call. Another series of crimes Congress has yet to investigate.  

                       But those issues are not germain to the term limit issue unless you are advocating a term limit on the SCOTUS and Katherine Harris.  :-)

                      I'd be in favor of Congressional term limits, but for one fact, and it's a quandry:  when we elect a new president, almost the entire executive branch changes. Upper level political appointees actually run the executive branch day to day. So, limiting the president to two terms doesn't make him a hostage of any beauracracy

                       Not really.  The people who actually run the day-to-day activities of the government are civil service employees and are not subject to dismissal upon the change of administrations.  We replace department heads; the staff people stay in place.  
                        Government is run by career professionals NOT political appointees, which should give us comfort.  Remember the lyrics of an old hippie song, "What if they gave a war and nobody showed up?"  Giving orders does not mean they are executed.  :-)
                        But, again, my friend...my opposition to the 22nd is not what it does to or for the Presidency...it is what is does to the right of the people to exercise the fullness of Democratic freedom, which is to ELECT THE REPRESENTATIVES OF THEIR CHOICE: the chief of which is the President.

                      It's not the same for Congress, because there is a whole staff that keeps on churning no matter who or what party gets elected. Congress critters who aren't around for a while don't know how it works and are unable to master it. So how do we limit congressional terms without putting the legislature at the mercy of its own staff?

                        Just the opposite is the case.  Every member of Congress gets to hire his own staff.  There are professionals who do some of the maintenance chores but the turnover when Congress changes is PROPORTIONALLY massive compared to the turnover between presidential administrations.  Take for example, the DOD.  The political appointees for the Departmend of Defense compared to the military establisment is minute...the same is true with the DOHS and DOA...CIA, FBI...

                      As a student of history, I really believe we have flirted with facism more closely in this country in the past decade, than we are really aware. Dangerously close. The mindless loyalty shown to Bush by rank and file GOP supporters is amazing. I suppose we can always say there was that factor, but I don't remember it from the 1960's, when I was coming of age. In the early 1970's, even the GOP turned on Nixon when the extent of his abuses were uncovered.

                       Well, I came of age in the early 50s and the House Committee on UnAmerican Activies and Senator McCarthy were running roughshode over the world.  Here was an instance in which a weak President, Eisenhower, refused to use his bully pulpit to defend the Constitution (it was finally the Press - Edward R. Morrow to be exact, that put McCarthy in his place) and allowed the Congress to abuse the public and other members of government, including the Army.  

                      Not tryin' to get hysterical; just trying to remind that, indeed, democracy is a fragile creature, a promise that's really good for only one generation at a time.

                        At 75, my friend, no one knows better than I how fragile democracy is, but we do not make it stronger by taking away the public's responsibilities or by giving Congress an easy way to shirk its responsibilities!   :-)

                      ...Former candidate for Congress.

                      by Steve Love on Fri Nov 28, 2008 at 07:22:57 PM PST

                      [ Parent ]

                      •  You've given much food for thought. I do (0+ / 0-)

                        appreciate your historical insights.

                        And, since you were there, I'd really like it if you would write (or have you already?) a diary explaining McCarthy. I've discovered in the last year that there is a whole cult trying to rehabilitate him and idolizing his crusade against "communists." I think young folks need to know about him.

      •  One law for masters, another for citizens (3+ / 0-)
        Recommended by:
        lcrp, Bouldergeist, justsayjoe

        is one law too many, if you claim to be a democracy.

    •  Equity (5+ / 0-)

      We are a nation of Law and Equity.  From Art. III,

      Section 2. The judicial power shall extend to all cases, in law and equity, arising under this Constitution, the laws of the United States

      Equity tempers the harshness of the law with fairness, and is the jurisdiction which gave rise to injunctions such as those used by federal courts in integration cases.

      It is civil rather than criminal (law jurisdiction is both), and has existed for over five centuries in its English form.  Equity will not suffer a wrong to be without a remedy, and thus gave rise to divorce (an equitable remedy).

      Equitable remedies are creative, some might say "activist", but they have a very important place in our legal system and our Nation's fabric.

      I would call it the conscience of the law.

      God and ego are not equivalent expressions of reality.

      by Othniel on Thu Nov 27, 2008 at 04:47:04 AM PST

      [ Parent ]

  •  Thanks. I continue to be astonished ... (76+ / 0-)

    ...by the number of progressives who argue that the new administration should let bygones be bygones, that there should not only be no prosecution of the torturers among us, but also no investigation because that will be a distraction in getting "more important matters" attended to.

    People should note that we're not just talking about violations of the law itself here. We're talking about violations of the rule of law, which takes us to an entirely higher level. of criminality.

    Yet so many people believe that any focus on this is mere distraction.

    I'm not talking about those folks who believe nothing will ever happen to Cheney and Bush and their crew. They have some good reasons to believe as they do. I think there's better than a 10-1 chance they're right. But I don't think that the odds should lull progressives into doing nothing. Odds against progressive values have often been hugely lopsided throughout U.S. history. Those who battled for them changed the odds.

    We're supposed to be about the new politics, right? And while bipartisanship and abandoning the politics of bitterness and division could surely bring some positive results, sticking with the old politics of letting high muckety-mucks off the hook is a bulletproof guarantee that future leaders will behave as our current crew has done.

    Yes, digging into rendition - as we must and should do - will encompass more than the two Bush terms. And, yes, some high-level Democrats may be ensnared when torture during the Bush administration is examined (and prosecuted). Shall we say then that this goes too deep, that it is not worth pursuing? What makes us as a nation so high-and-mighty that we feel ourselves capable of adopting an attitude that we excoriate in others? American exceptionalism is a pernicious belief.

    An investigatory commission - congressional or presidential - comprising leading citizens from various walks of life is essential for truly moving forward. If, out of its findings, prosecutions are warranted, then these should go forward. But with or without prosecutions, we must have a full picture of what was done and who did it. To do nothing. To refuse to look at every secret memo, examine every instance of outlawry, to act as if none of this ever happened taints us all.

    We won. But we're not done. -- karateexplosions

    by Meteor Blades on Thu Nov 27, 2008 at 03:31:42 AM PST

    •  You cover many points wonderfully (31+ / 0-)

      violations of the rule of law -  if those are allowable, under any circumstance, with no consequences, then the law is meaningless and arbitrary.

      I would agree that American exceptionalism as it is often used is pernicious or even downright evil.   But I think it COULD be something positive -  the ideas of transparency, responsibility, liberty, protection of rights fully lived, now that would be an exceptionalism of some worth.

      You wrie

      sticking with the old politics of letting high muckety-mucks off the hook is a bulletproof guarantee that future leaders will behave as our current crew has done.

        My wife, then my girlfriend, argue vociferously in 1974 that such would be the effect of the pardon of Nixon by Ford.  I think in retrospect she has been proven right.  Just consider, had Nixon been held accountable, might the extension of abuses in Iran Contra have been avoided?  And think how many in this administration have roots back to that time, especially Cheney and Rumsfeld to the time of Nixon and Ford, and so many more to the time of Iran-Contra.

      About renditions -  this is a bi-partisan shame.  For too many years we have, sometimes in clear violation of US law as well as international convention, closed our eyes at what the people in places like Morocco, Egypt and Jordan did on our behalf.  We have a legal and moral responsibility for anyone we take or receive into custody, one that is not waived by transferring them to others.

      As for those in Congress who were 'read in' but remained silent?  For years I have been arguing that even should it put them at legal risk, they had a constitutional responsibility to call out the wrong doing to which they were exposed.  What is the meaning of the oaths of office if they do not?  What is the point of them being our eyes and ears if they choose to act as if blind and deaf?

      Your comment is worthy of being a standalone item, either as diary or on frontpage, to give this issue more visibility than my diary is likely to draw this day.

      Thanks for taking the time to read and to comment.

      Enjoy your Thanksgiving.

      Peace.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 04:06:01 AM PST

      [ Parent ]

      •  As I recall, renditions began during the (0+ / 0-)

        Clinton administration, according to 'Anonymous' Michael Scheuer head of 'Alex Station'.

        •  they occurred then, but prob. not for 1st time (5+ / 0-)
          Recommended by:
          BMarshall, Halcyon, eru, jimreyn, Patch Adam

          at least some evidence of similar patterns at least as far back as Reagan.  And I would not be surprised that a full examination could trace them back to Nixon, and forward through every subsequent administration, including even Carter, although if so possibly without his knowledge.

          do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

          by teacherken on Thu Nov 27, 2008 at 05:18:12 AM PST

          [ Parent ]

          •  Pinochet and his torture ships (2+ / 0-)

            where people disappeared to.  Rep. John McCain went down to Argentina in 1985 (Reagan) and had meetings with both Pinochet and then an Admiral.  I wrote a diary on this when that story broke in Huffington Post a month ago.  One of Chile's torture ships, the Esmeralda, is a tall sailing ship.  It was invited by our Congress and President several times to participate in our Operation Sail celebrations, where tall ships from all over the world sail into New York Harbor (e.g., Bicentennial, Columbus Quincentennial).  To his everlasting credit, Ted Kennedy tried to stop the Esmeralda's invitation for the Statue of Liberty's Centennial OpSail in 1986, but failed.

            "The Statue of Liberty would weep at the sight of the Esmeralda entering the gateway of freedom at New York harbor." ~ Sen. Edward Kennedy

            From the rigging, the unidentified ship in this photo from the 1986 Operation Sail is apparently not the Esmeralda, but it's haunting to think it could be:

            1986 OpSail
            http://www.nytstore.com/...

            All I can think of is America's chickens coming home to roost.  

            Coincidentally, the US/CIA-aided overthrow of Pinochet's predecessor, Salvador Allende, took place on September 11, 1973.

          •  Missing - A moment of remembrance (0+ / 0-)

            Missing - 1990 World Ice Skating Championships

            Siblings Isabelle Duchesnay and Paul Duchesnay, Canadian born and representing France, earned five 6.0s for their beautiful free dance "Missing" and won this portion of the competition.

            I remember watching this at home in 1990 and being moved to tears with the symbolism of the choreography and the melodic and haunting pan pipe music of South America.

            The Duchesnays were known for their thematically innovative ice skating routines and it was ground breaking (or rather ice breaking) that ice dancers had integrated a political theme about 'disappearances' the Central and South American juntas had enforced throughout the '70s and early '80s.

            The choreography and concept of the performance "Missing" was originally Christopher Dean's work, British Olympic gold medalist in ice dancing and for a short time Isabelle's spouse.

      •  I understand your sentiments, but.... (4+ / 0-)
        Recommended by:
        BMarshall, utopia, rsmpdx, Patch Adam

        I understand your sentiments, but there are also reasoned objections to be raised.  Among those is the notion of democratic government, set against rule by judicial trial.  I'm referring specifically to your implication that we should hold members of Congress liable for not intervening to stop Executive actions.

        Yes, we should hold them liable, on election day.

        But I stop short of saying we should hold them liable in court, because that raises three very difficult issues:

        First, the courts have historically been loathe to intervene in "political questions," because to do so would undermine the court's (already shaky) status as neutral arbiters of law.  The prevailing rule of law for court review of official acts by public officials is "abuse of discretion."  It's a high standard, and they set that high standard for a good reason: so the courts would not be used as a threat to force public officials' political hands.  The independence of our independent judiciary rests on the presumption that they are non-partisan.  If the courts become merely another venue for politics then by implication judges should be elected - and there goes the goal of an independent judiciary.

        Second, there's a long and storied legal debate over a citizen's legal duty to intervene against illegal acts.  There are arguments on both sides, but the side we've come down on is that only sworn law enforcement officers have a duty to intervene against illegal acts, and even they are granted wide discretion in performing that duty.  Members of Congress are not sworn law enforcement officers, so they have no legal duty to intervene.  Were we to change that, how would you define and limit that legal duty to ensure the courts don't get dragged into every political question (above)?

        Third, there's the issue of sovereign immunity and protecting the public fisc.  It seems absurd when we're seeing $700 billion in bailouts, but let's assume it were legal to sue the President and/or Congress for the illegalities of the Iraq War.  How would you set damages?  Who pays the damages?  How do you prevent this becoming a tactic for anyone in search of a financial windfall?  The rationale for sovereign immunity is to protect the public fisc - to ensure that individuals can't use the rule of law to bankrupt the very government upon which we all rely for ... the rule of law.

        So while I fully understand your sentiments, I also understand the reasoned objections.  These are not static issues.  They are - or ought to be - always open for debate.  But when we debate them, we ought to keep in mind the reasons for how things are as they are, and weigh the risks and costs of changing them in fundamental ways.

        •  The ballot box... (5+ / 0-)

          is only a means of rejecting the actions and policies of those whose actions (and inactions) and policies are known.

          But when they're cloaked?

          But beyond that, simply removing someone from office isn't punishment for a crime, nor a corrective against future crimes of the same sort.

          Neither members of Congress nor figures of any administration are immune from criminal charges.  Nor should they be.  

          [When] the land... has become private property, the landlords... love to reap where they never sowed, and demand rent even for its natural produce. ~Adam Smith

          by ogre on Thu Nov 27, 2008 at 08:02:34 AM PST

          [ Parent ]

          •  You didn't address any of the specific issues (0+ / 0-)

            Again, I agree with the sentiment, but I raised three legitimate policy reasons for the current law.  Mere sentiment can't wish them away.

            •  trifecta (6+ / 0-)

              First, the courts have historically been loathe to intervene in "political questions," because to do so would undermine the court's (already shaky) status as neutral arbiters of law.

               

              Piffle.  Bending over backwards to avoid getting involved is a failure to perform a duty under the basic concept of the Constitution, which sets all three branches "against" each other as a check and balance. Failing to get involved undermines that.  Typically, that means that the active branch--the Executive--does something that violates the intentions, rights, understanding or will of Congress and we have a "crisis" that the courts avoid solving, so the de facto winner is the administration.

              Thus this superficially "noble" and "neutral" role effectively favors the Executive and over time erodes and weakens the authority of Congress... which will end up eroding and weakening the authority of the courts.  Failing to act as a check and balance is a failure.

              The prevailing rule of law for court review of official acts by public officials is "abuse of discretion."  It's a high standard, and they set that high standard for a good reason: so the courts would not be used as a threat to force public officials' political hands.

               
              Please, that assumes that the actions of public officials aren't often--frequently, usually--political, that there's some lofty neutrality that they function from.  Sometimes, sure.  But the point is that they often don't and the need exists for the other branches to be willing and able to leash them appropriately (checks and balances).

              The independence of our independent judiciary rests on the presumption that they are non-partisan.

               

              No, it rests on the presumption that they are fair and equitable.  The idea that they're above political concerns is specious (Bush v. Gore?  Santa Clara? Dred Scott?).

              If the courts become merely another venue for politics then by implication judges should be elected - and there goes the goal of an independent judiciary.

              That's one view.  It's not a given.

              Second, there's a long and storied legal debate over a citizen's legal duty to intervene against illegal acts.  There are arguments on both sides, but the side we've come down on is that only sworn law enforcement officers have a duty to intervene against illegal acts, and even they are granted wide discretion in performing that duty.  Members of Congress are not sworn law enforcement officers, so they have no legal duty to intervene.

              Have you LOOKED at their oath of office?

              Members of Congress are supposed to defend and protect the Constitution.  Since they're not military, just HOW do you imagine that they can fulfill that obligation?  

              Were we to change that, how would you define and limit that legal duty to ensure the courts don't get dragged into every political question (above)?

              Courts do.  Over and over and over they do.  They DON'T when the actions of the legislature and executive are sufficient and clear enough that they don't need their third partner to weigh in.

              Third, there's the issue of sovereign immunity and protecting the public fisc.  It seems absurd when we're seeing $700 billion in bailouts, but let's assume it were legal to sue the President and/or Congress for the illegalities of the Iraq War.

              Suing the president for violating the Constitution and treaty obligations?  THAT is specifically the obligation of Congress--impeachment for high crimes and misdemeanors (if squandering the funds of the nation and committing war crimes isn't, what is?). Why should we make that assumption that you ask for--that the President can be sued?

              The idea of a citizen suing his/her member of Congress for permitting war and funding a war without a declaration of war is an interesting one.  Why not?  It would be a device for ensuring that war was either declared and thus constitutional, or that it wasn't and that members who voted in ways permitting it would be held accountable. Let's say for a term the remainder of the term of office, minimum one year, automatically removing that member of Congress from office upon conviction.

              How would you set damages?  Who pays the damages?  How do you prevent this becoming a tactic for anyone in search of a financial windfall?

               

              You're mistaking criminal acts and responses with civil ones.  There might be fines, but the purpose of criminal actions is not to refund losses (though it could include it).

              The rationale for sovereign immunity is to protect the public fisc - to ensure that individuals can't use the rule of law to bankrupt the very government upon which we all rely for ... the rule of law.

              Simple.  You set it up so that a plaintiff can get legal fees and costs, with any fines above that going to the public Treasury.

              [When] the land... has become private property, the landlords... love to reap where they never sowed, and demand rent even for its natural produce. ~Adam Smith

              by ogre on Thu Nov 27, 2008 at 02:10:42 PM PST

              [ Parent ]

              •  Good response. (2+ / 0-)

                I don't agree with your conclusions, but thank you for at least responding in depth.  I appreciate it! :)

                I'll focus on the first issue - the "political question" doctrine - and why our courts have been loathe to intervene there absent a criminal charge.  And that's what we're talking about: holding public officials liable for decisions that are not expressly criminal.

                I specify that because that we already hold public officials legally liable for crimes.  Ted Stevens is only the most recent of the tens of thousands of officials at the federal, state, and local levels who have been tried and convicted of crimes committed while in office.  No, we don't prosecute every public official who commits a crime.  No, we don't convict every public official we prosecute.  But neither can you say we blithely ignore the criminal acts of public officials.

                The larger issue - and what the courts have tried to avoid - is the criminalization of political disputes.  It's a kind of politics that pops up from time to time in our history, and we've seen a wave of it since Watergate.

                Republicans felt the Watergate cases were nothing more than a political witch hunt by Democrats upset because Nixon won.  A lot of Republicans also felt the Iran-Contra cases were a political witch hunt by Democrats upset because Reagan won.  I disagree in both cases, but that's how Republicans felt and many still feel.

                So when the GOP seized Congress in 1994, they wanted some payback for Watergate.  That led to the Whitewater investigation, which three years and a few tens of millions of dollars later, yielded only the sexual harassment case against Clinton and the Monica Lewinsky mess.  It wasn't Watergate, but it was what they had, so they flogged the hell out of it right up to impeachment.  Some Republicans even admitted that it was "payback for Watergate."

                If that becomes a pattern for long enough, people take it as a given that charges filed against any government official are "just partisan politics."  It's assumed we're just criminalizing political disputes.  That doesn't enhance the stature of our courts.  Quite the contrary, it cheapens them.  The courts come to be seen as just another forum for Republicans and Democrats to score some points, and indeed the biggest points of all.  Because it isn't just winning a vote on some bill.  If you win in court, you get to send the other guys to prison.

                In order to stop that cycle, Congress let the Special Prosecutor statute lapse in 2001.  "No more political witch hunts," one said.  I've heard the arguments that the Bush administration wanted that statute to lapse so no one could investigate them.  I've even heard arguments that Republicans pursued the Kenneth Starr investigation as stubbornly as they did so Americans would object when a GOP Congress let that statute lapse.  Frankly, I think that gives them credit for way more foresight than they've shown.

                That said, there's little doubt that Dick Cheney believes very strongly in the unitary executive, enough so that he believes the president must break the law in order to demonstrate and exercise his executive power.  In Cheney's view even a powerless man can act if no one objects.  In Cheney's view, in order to have and exercise power, you must act in defiance of objections.  To exercise the power of a "unitary executive," you must be seen as having the unchecked power to break the law.

                Breaking the law becomes an end in itself.  It's not a case of: "We really want to do X, but X is illegal.  Oh well, do X anyway."

                Rather, it's a case of: "We need to break the law to prove our 'unitary executive' power ... so what laws can we break?"

                This brings us to the Supreme Court's "political question" doctrine.  That doctrine assumes that the public officials are acting in good faith: they may be breaking a law, but either it's a close call (e.g.: Thomas Jefferson's undeclared war against the Barbary pirates), or the official reasonably finds legitimate, public policy exigencies (e.g.: FDR's internment of Japanese-Americans).  Jefferson and FDR were wrong, but most historians agree they acted in good faith.

                But what happens to the "political question" doctrine when a public official is not acting in good faith?  What happens when a president breaks a law for the express purpose of proving that he is above the law?

                I agree that the courts must stop that, and they've done so with several Guantanamo cases.  But how far can you take that without casting the Court in the role of Supreme Ruling Council, or more likely, as just another venue for partisan infighting?

                There is a saying in the legal profession: "Hard cases make bad law."  The Bush administration chose to be a "hard case."  While I agree we cannot let those abuses slide, we must be equally careful not to "make bad law."  It's a difficult balancing act and I think the Obama administration is justified in proceeding with some caution.

                •  arrgh ... edit.... (2+ / 0-)
                  Recommended by:
                  ogre, teacherken

                  I've even heard arguments that Republicans pursued the Kenneth Starr investigation as stubbornly as they did so Americans would not object when a GOP Congress let that statute lapse.

                  I'd omitted the "not."  My apologies.

                •  It's too bad when the case isn't made, duh (2+ / 0-)
                  Recommended by:
                  ogre, NCrissieB

                  If members of political parties cannot act as Americans, if it's all a partisan battle at sea with no navigation by Constitutional star, then it's a total loss, and unbearably stupid -- constantly and stupidly in the dark.  We have been watching piddly actors on a enpiddled stage for years.  And we're disconnected.  It is an agonizing shame.

                  Defending the Constitution should not be a partisan issue.  To make it so is its ultimate repudiation.

                  But what happens to the "political question" doctrine when a public official is not acting in good faith?  What happens when a president breaks a law for the express purpose of proving that he is above the law?

                  That is criminal.  To not call that into court, to not make the case, to not check and balance, is criminal squared.

                  I agree that the courts must stop that, and they've done so with several Guantanamo cases.  But how far can you take that without casting the Court in the role of Supreme Ruling Council, or more likely, as just another venue for partisan infighting?

                  You simply make the clear Constitutional case every time it is necessary, and you defend that case wherever it is questioned.  You NEVER let the Constitution go undefended.  You NEVER let your party be more important than your country.  If you define the case as partisan, or accept that definition, you've lost not just that case, but the Constitution itself.  I'm not a lawyer and I can see that.  DUH.

                  •  I'm glad it's simpler than I thought.... (1+ / 0-)
                    Recommended by:
                    Othniel

                    All these years I thought the Court's longstanding "political question" doctrine posed complex legal and public policy topics.  Glad to know it's as simple as shouting "ALWAYS," "NEVER," and "DUH."

                    Fact is, law isn't as simple as you wish it were.  Decisions have consequences, whether you want them to exist or whether you don't.  Legal actions, in our legal system, create precedents.  Bold, sweeping actions of the sort the public demand in "hard cases" tend to be "bad law," because experience has shown they usually create more problems than they resolve.

                    Rule of thumb:  Whenever you think "DUH," ask why other smart people who work on that problem all the time never realized the "DUH" until you came along.

                    •  That's why the rest of the stuff is in fine print (1+ / 0-)
                      Recommended by:
                      NCrissieB

                      Big letters

                      Kinda self-evident.  WE THE PEOPLE are the deciders.  Lawyers, later.

                      Also, as a matter of law, the fine print does say justice is to be decided by juries--again, by WE THE PEOPLE.  It has to make common sense.  Counsel assists, but PEOPLE (big letters!) were supposed to decide.  The circuit had to be tested.  Thing #1, The First Amendment, codified freedom of speech and freedom of religion that had been established earlier by juries (Zenger, Penn) who nullified law.  Lawyers and politicians have screwed that part up since then, but I do not give up hope for repairs and perfecting our union.

                      Speaking of self-evident, this country is not founded on law even; we founded ourselves on self-evident truth and went from there to the next step, a decent respect for the opinion of mankind.  None of this of-the-lawyer-by-the-lawyer-for-the-lawyer shit.

                      As others above have pointed out, this isn't even a close call, and this isn't rocket science, so all your obfuscating paragraphs and hand wringing look, you know, amazingly dense and absurd to me the person.  We're talking about war on law itself, and we're talking about torture, and we're talking about every elected official's oath to protect and defend the Constitution.  HELLO!  Is anybody home?

                      But don't feel so bad that you didn't get it right on your first try.  The bankers and CEOs didn't do any better with finances than you're doing with the Constitution.  E pleb neesta!

                      •  one out of two oath takers get it right (0+ / 0-)

                      •  I said all along.... (0+ / 0-)

                        If an investigation develops evidence that Bush, Cheney, etc. violated criminal statutes, they should and likely will be prosecuted.  We have a history of prosecuting public officials who commit crimes.  We don't investigate or prosecute every single one, and we don't get convictions every time, but recall that a senior Bush White House official (Scooter Libby) has already been convicted of a crime, while Bush was in office.

                        The "political question" issue arises when the bad act is not quite a crime, when it's a bad act that doesn't explicitly violate a criminal statute.  For the reasons I've tried to explain, using the courts to punish not-quite-criminal acts by public officials is a dangerous idea.

                        The Bush administration undoubtedly ignored the law in a whole lot of not-quite-criminal ways.  They may also have committed some crimes.  I hope the investigations will expose both.  I hope the prosecutions are limited to the crimes.

                        Make sense?

                        •  Makes a circuit. (1+ / 0-)
                          Recommended by:
                          NCrissieB

                          You're back to where you started.  I'd repeat everything Ogre said and I said.  We're not likely to add anything new here.

                          You're waiting for investigations to prove crimes, but it is plain that there has been massive criminality, for years, and nothing happened to stop it.  The Libby trial stopped way short of the crime, the jury thought it should have been Cheney in the dock, and the master criminal commuted the patsy's time anyway.  That's no success.  Fitzgerald pointed a feeble finger toward the VP office...and then quit.  Dennis Kucinich spent six hours, twice, reading off articles of impeachment.  If the impeachment was scheduled, hearings could be held and evidence presented.  But it never gets to the floor.

                          It's true the courts would not be the first place to turn.  The first place would be impeachment so those asstards could do no more harm.  But Pelosi has not acted, and neither did Hastert.  Now there's your failure, because the branches of government are no longer functioning as checks and balances--Congress rolled over and quit.  The Supreme Court IS politicized and is a shameful basket case.  So now you've got Republicans acting across all branches against Democrats across all branches.  I don't think the word "party" is even in the Constitution, is it?  I think George Washington even warned against parties.  So if parties have eclipsed the branches of government as the competing ambitions, and the executive branch is doing whatever monarchical fuck-up thing it wants regardless, and every time it does so it sets precedent that it was not checked, then everybody is off the Constitutional page.  Everybody has failed their oath of office.  And that's my duh.

                          Between your "everything is working" and my "everything is broken," I guess we're just waiting to see what Obama does.  Meanwhile, more people die, more people kill, more people defraud, more people fail, and Bush still has...


                          <iframe height="235" width="340" frameborder="0" marginheight="0" marginwidth="0" scrolling="no" src="http://www.backwardsbush.com/includes/publicClock.php"></iframe>

                          ...to do more harm.

                          •  And here I agree. (0+ / 0-)

                            The checks and balances did not work.

                            They didn't work from 2001-2006 because Republicans controlled the House, and they weren't about to impeach one of their own.

                            They didn't work in 2007-2008 because Nancy Pelosi and Harry Reid made an (arguably reasonable) decision that an impeachment and acquittal - the inevitable outcome given 48 GOP Senators - would be more politically and constitutionally damaging than no impeachment at all.

                            Remember that the impeachment and acquittal would have been tantamount to Congress saying: "What Bush did is okay."  Constitutionally, that's an even worse outcome than not impeaching, because by not having brought the charges yet, the question is open for investigation (and possible indictment) under the Obama Administration and the 2009 Congress.

                            But the checks and balances most assuredly did not work with Bush in the White House, GOP appointees on most Federal courts, and the GOP controlling the House and Senate.  They put party first and the country and the world have suffered for it.

                          •  Not impeaching is same or worse than impeaching (1+ / 0-)
                            Recommended by:
                            NCrissieB

                            and acquittal.  The crimes happened.  The world sees even as Congress refuses to look.  The precedent has been set; a forfeit, no contest.

                            And I do not spot you the acquittal.  It's one thing to vote as a herd against Democrats, it's something else to vote against the Constitution.  For all their flag pin silliness, I'm not ready to say that Republicans would forsake the Constitution if it was on the line, if the case was clearly made, if they were being watched and on record.  And the people wanted impeachment, and that power could have been used to their advantage in the difficult elections ahead if only... if only someone had the courage of conviction.  I've been waiting for a Captain Kirk in Congress to step up and make the case.  But all we get are thugs and wimps.

                            Even if the House did not impeach or if the Senate acquitted, there was the opportunity to get the facts and arguments out in public.  As a lawyer you must know the value of dissents.  The quote I heard most after Bush v. Gore was from Justice Stevens' dissent that the clear loser was "the Nation's confidence in the judge as an impartial guardian of the rule of law."  Timothy McVeigh said only one short thing at his sentencing, and it was a quote from a dissent by Justice Brandeis:  "Our Government is the potent, the omnipresent teacher.  For good or for ill, it teaches the whole people by its example."  In the larger court of public opinion, these dissents live and matter, while the "winning" opinions are forgotten and dismissed.  Words have power.

                            Pelosi did not have the Constitutional option of not impeaching.  It doesn't say "may impeach," it says "shall."  She failed her oath, she failed her position, she failed her function.  And considering how she as a leader must have been read into crime programs by Bush/CIA/DoJ, I expect she herself is complicit and has a conflict of interest.  Is she supposed to recuse herself?  There's Constitutional muck for you.  I'm sure you know much more about the fine print and history than I do--it seems to me this thing of informing only the congressional party leaders of secret things could not have been in the original Constitution, that it must have been a workaround once secret programs were established--?  That only tells me that secret programs are Constitutional cancer, which is how I see the original FISA law, much less the current one, and the CIA, and I hope that we learn our lesson and do away with them.

                            In another thread, coincidentally, I was tracking down a quote where Pelosi told bloggers in a June 2007 conference call that she wasn't going to impeach, because she thought she couldn't win, but instead she was going to "build a record" of Republican transgressions that would get Democrats swept into office in the next election.  There was an interesting comment left on the webpage that documented that conference call:

                            House Impeachment Unrelated To Senate Removal Decision

                            I reject the Speaker's notion that impeachment isn't worth it because it won't succeed. The House impeachment is separate from the Senate trial. Once the House impeaches--regardless the Senate decision--all personnel subject to that impeachment cannot be pardoned. [pardon power except in cases of impeachment]

                            Also in that same thread, a Kossack told of a complaint she had filed with the house over Pelosi's conduct:  

                            On September 3, 2008, with some hesitation that she would have my name, address and other vital statistics, I followed through with a "citizens complaint" to the Committee on Standards of Official Conduct to make a formal complaint to the US House of Representatives about her ethics violations and the shredding of the US Constitution that took place when she did what she did.

                            Can you comment on their merits and chances of success?
                             

                            There is in most Americans some spark of idealism, which can be fanned into a flame. It takes sometimes a divining rod to find what it is; but when found, and that means often, when disclosed to the owners, the results are often extraordinary. ~Justice Brandeis

                          •  The "shall" in Article II is a penalty mandate (0+ / 0-)

                            Impeachment is mentioned twice in Article I and twice again in Article II.

                            The first mention in Article I says that the House of Representatives "shall have the sole power [to bring charges] of impeachment."  The second mention in Article I provides the limits of punishment for impeachment (removal from office), that the case is tried in the Senate, and that the impeached party is entitled to an attorney and due process of law.

                            The first mention in Article II provides the order of succession if the president leaves office (including by impeachment).  The second - which you cited - mandates that the president and other other officials leave office if impeached and convicted, and enumerates grounds for impeachment.

                            You're mistaking the second Art. II mention (the mandate that the president must leave office if he is impeached and convicted) for the first Art. I mention (the House power of Impeachment), and arguing that impeachment is a mandatory duty of the House.  That's a misreading.

                            Impeachment is a discretionary duty of the House.  The House may decide not to impeach.  The Senate may decide not to convict.  But if the House does impeach and the Senate does convict, the president must leave office.  That is the mandate of the Article II Impeachment Clause you cited.  It is a penalty mandate if impeached, and not a mandate to impeach.

                          •  lawyered to death! (0+ / 0-)

                            vs. the real world

                            WE THE PEOPLE:
                             title=

                            ON TV:
                             

                            http://www.dailykos.com/...

                            (6:15) TURLEY: You know, Rachel, there has never been a brighter line. This has always been a crime. It's always been a war crime. It's always been immoral. The question is not whether the act is immoral, but whether moral people will stand forward and say, "We're not going to act like politicians for once. We're going to act like statesmen and we're going to stand by principle and we're going to say, 'Yes, let's investigate.' And if there are crimes here, let's prosecute." And I think it's so very, very simple. You know, we have third world countries that when they have found that their leaders committed torture war crimes, they prosecuted them. But the most successful democracy in history is just, I think, about to see war crimes, do nothing about it. And that's an indictment not just of George Bush and his administration. It's the indictment of all of us if we walk away from a clear war crime and say it's time for another commission.

                            .

                            Can you tell me anything about the "citizens complaint"...

                            to the Committee on Standards of Official Conduct to make a formal complaint to the US House of Representatives about [Nancy Pelosi's] ethics violations and the shredding of the US Constitution that took place when she did what she did.

                            ...?

                            Thanks

                          •  Nancy Pelosi's district (0+ / 0-)

                            Beach Impeach project

                            Impeach on the Beach

                            They've been doing this every year now for 5(?) years I think

              •  On the question of electing justices (1+ / 0-)
                Recommended by:
                ogre

                The independence of our independent judiciary rests on the presumption that they are non-partisan.

                No, it rests on the presumption that they are fair and equitable.  The idea that they're above political concerns is specious (Bush v. Gore?  Santa Clara? Dred Scott?).

                If the courts become merely another venue for politics then by implication judges should be elected - and there goes the goal of an independent judiciary.

                That's one view.  It's not a given.

                In a death penalty episode of Boston Legal in April 2008, Alan Shore did make the case that the Supreme Court has become so compromised by politics that they should have to be elected like any other politician:

                Chief Justice Roberts: Mr. Shore! I don't like your demeanor, your tone, and I would remind you of where you are.

                Alan Shore: I know exactly where I am, Mr. Chief Justice. I'm in the Supreme Court of the United States, and let me tell you, you folks aren't as hot as all get out.

                Carl Sack: Dear God.

                Alan Shore: Let's consider your respective Senate confirmations. You all testified under oath that you never actually considered how you would rule on abortion. You must be kidding me! Never gave it a thought? No perjury there? Justice Scalia? You went duck hunting with Vice President Cheney while he was a named defendant in a case before this court. Congratulations on not getting shot, by the way, but you didn't exactly avoid the appearance of impropriety there? Justice Alito? You were caught hearing a case involving a company you'd invested hundreds of thousands of dollars in. Ha! No conflict of interest there? You also don't recuse yourself in terrorism cases even though your best friend is Michael Chertov, head of Homeland Security? Seems to me the Supreme Court of the United States should be made of sterner stuff. Am I right? Justice Thomas? At least put down the magazine!

                Justice Thomas: Hey!

                Chief Justice Roberts: I really don't think you mean to come after us, Counsel.

                Alan Shore: Oh, but I do! In your short term as Chief Justice this court with your narrow majority has turned back the clock on civil rights, school segregation, equal protection, free speech, abortion, campaign finance. You've been overtly and shamelessly pro-business, making it impossible for some plaintiffs to so much as sue corporations, especially big oil and big tobacco! Somebody's gotta go after you! Exxon Mobil made over forty billion dollars in 2007. Forty billion! And yet nineteen years after the Valdez oil spill plaintiffs are still waiting to be fully compensated. Justice Scalia? You wanna overturn the verdict altogether because it's not the company's fault that the ship's captain got drunk? But he was a drunk! And they knew it! Perhaps not the best choice to pilot fifty million gallons of crude oil through an environmentally sensitive area!

                Justice Scalia: You are getting so far off point.

                Alan Shore: My point is, who are you people? You've transformed this court from being a governmental branch devoted to civil rights and liberties into a protector of discrimination! A guardian of government! A slave to monied interest and big business, and today--hallelujah!--you seek to kill a mentally disabled man! I'm curious, as a group, how many executions have you all actually witnessed?  I'm sorry that's... that's unfair. I've seen five. And it is the most inhumane, cruel and unusual hypocrisy of a system that promises to be just.

                Justice Scalia: I'll ask you to leave your personal politics out of this.

                Alan Shore: And I'd ask you to do exactly the same! The Supreme Court was intended to be free and unadulterated by politics. It is now dominated by it. You're hand-picked by Presidents with ideological agendas, and of the two dozen 5-4 decisions of your 2006-2007 term, 19 broke straight across ideological lines. That's politics! And while you claim to be against judicial activism you rewrote--check that--invented new law to decide a presidential election for God's sake! If that's how it's going to be then at least have the decency to put your names on ballots like the rest of the politicians so that we the people get a voice!

                Written By: David E. Kelley & Jonathan Shapiro (God bless them!)

                - PDF transcript at http://www.boston-legal.org/...

                - youtube (embedding disabled) at http://www.youtube.com/...

        •  I can't even imagine what would be worse (2+ / 0-)
          Recommended by:
          ogre, justsayjoe

          than the state of utter desuetude into which the law has descended.  Justice Bradley offers this word of warning:

          [I]t is a right, an inestimable right, that of invoking the penalties of the law upon those who criminally or feloniously attack our persons or our property.  Civil society has deprived us of the natural right of avenging ourselves, but it has preserved to us all the more jealously the right of bringing the offender to justice. By the common law of England, the injured party was the actual prosecutor of criminal offenses, although the proceeding was in the King's name; but in felonies, which involved a forfeiture to the Crown of the criminal's property, it was also the duty of the Crown officers to superintend the prosecution. ...

          To deprive a whole class of the community of this right, to refuse their evidence and their sworn complaints, is to brand them with a badge of slavery; is to expose them to wanton insults and fiendish assaults; is to leave their lives, their families, and their property unprotected by law. It gives unrestricted license and impunity to vindictive outlaws and felons to rush upon these helpless people and kill and slay them at will, as was done in this case.

          Blyew v. United States, 80 U.S. 581, 598-99 (1871) (Bradley, J., dissenting) (emphasis added).

          The reason for the status quo is that it benefits the ruling class.  "Find out just what any people will quietly submit to and you have the exact measure of the injustice and wrong which will be imposed on them."  (Frederick Douglass)

        •  And the counter-arguments (3+ / 0-)
          Recommended by:
          ogre, maryru, thatvisionthing

          First and foremost, there's not much point in having an independent judiciary if it is completely beyond any reasonable measure of accountability.  Back in England, judges could be removed from the bench by an act of Parliament and/or pursuant to a writ of scire facias filed by an aggrieved litigant.  Today, they have become an unelected and unaccountable super-legislature ... and if you think that that is a good idea, talk to me about Bush v. Gore.

          Second, we already are deputized to an extent; just ask Michael Fortier.  Think misprision of felony (18 U.S.C. § 4):

          Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

          If we can enforce it as against Michael Fortier, why can't we enforce it against Ken Salazar?

          Absolute judicial immunity is the most sacred of juridicial cows: a doctrine created by judges for judges, predicated on a sophistry even Lewis Carroll would find impenetrable. Professor Olowofoyeku of London’s Brunel University distills it to essentials:

          You have been injured by the misconduct of a judge. We have to deny you redress. This is necessary because we have to protect your interests by protecting the judges, so that they in turn can protect your interests without fear of apprehension.

          Abimbola A. Olowofoyeku, Suing Judges: A Study of Judicial Immunity at 197.
           
          In essence, absolute immunity is like paying ‘protection money’ to Tony Soprano: If you don’t pay, bad things might start happening.  Canada recently consigned absolute immunity to the legal gas chamber, for an utterly compelling reason:

          An absolute immunity has the effect of negating a private right of action and in some cases may bar a remedy under the Canadian Charter of Rights and Freedoms.  As such, the existence of absolute immunity is a threat to the individual rights of citizens who have been wrongly and maliciously prosecuted.  While the policy considerations in favour of absolute immunity have some merit, these considerations must give way to the right of a private citizen to seek a remedy when the prosecutor acts maliciously in fraud of his duties with the result that he causes damage to the victim.

          Nelles v. Ontario [1989], 2 S.C.R. 170.

          The rest of the world has done away with sovereign immunity, and so should we.  The logic of Canada’s Supreme Court is unassailable, and supported by precedent predating our existence as a nation: "If a plaintiff has a right, he must of necessity have a means to vindicate and maintain it, and a remedy if he is injured in the exercise or enjoyment of it; and indeed, it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal." Ashby v. White [1703], 92 Eng.Rep. 126, 136.  It has likewise found its way into our own law: "To take away all remedy for the enforcement of a right is to take away the right itself." Poindexter v. Greenhow, 114 U.S. 270, 303 (1884).

          Nelles v. Ontario [1989], 2 S.C.R. 170.

      •  Harper's mag as essay by Scott Horton (1+ / 0-)
        Recommended by:
        thatvisionthing

        that the NPR interview of same, suggests a good place to go to enhance our understanding of the perameters of the issue.

        ...Former candidate for Congress.

        by Steve Love on Thu Nov 27, 2008 at 08:54:06 AM PST

        [ Parent ]

        •  Scott Horton interviewed by Glenn Greenwald (1+ / 0-)
          Recommended by:
          teacherken

          Scott Horton was interviewed by Glenn Greenwald on Salon radio at http://www.salon.com/... with transcript.  The interview is an excellent read, particularly if you can't read the Horton article at Harper's that is viewable by subscription only.

          Horton recommends a truth commission--not a truth and reconciliation commission--as the first step--not a traditional investigation by the Department of Justice, because the DoJ is itself hopelessly entwined and compromised and cannot be depended upon to honestly and competently investigate itself.  Then, prosecutions.

          Horton thinks the prosecution to start with is torture, because that is not political at all, it is universally, internationally a war crime, and a president does not have the power to pardon a war crime.  It is also historically and morally part of the foundation of our country, going back to George Washington as well as Abraham Lincoln.  Moreover, if Bush did pardon, he would be admitting the act pardoned was a crime, a crime that any country with universal jurisdiction could then prosecute.

          SCOTT HORTON:  A presidential pardon, definitely, has some effect here, but I would say at the outset, there's very serious doubts that the president can lawfully issue a pardon in this area, and that's because as a fundamental principle of international law, there is no pardon available for war crimes. And the president is bound to uphold and apply the law, and that has to be read as a qualification of his exercise of the pardon power.

          But if the president did grant the pardon, under the U.S. constitution, there's no direct limitation on that, and it might very well end up being respected by the Attorney General, and by the courts in the United States, but that pardon would not limit prosecution outside of the United States. In fact, under international law, under the principles of universal jurisdiction, the grant of a pardon of a war criminal by one country conveys jurisdiction on other countries to prosecute the person who was pardoned. That's a pretty well established concept. So in fact it might even have a boomerang effect.

          Then you go the next step, and that is he may issue a pardon, but the pardon is not likely to cover things like making false statements to Congress, or false statements in connection with an investigation. So, even if the underlying act is pardoned, there still may be a basis for prosecution. And one thing I think we see here is a long line of more than questionable statements that were made by key actors to Congress and congressional oversight hearing that provide plenty of basis for legal action.

          Also, a commenter on another website over a year ago made the case that House impeachment would preclude pardoning anyone involved in the impeachable offense, whether or not the Senate convicted:

          House Impeachment Unrelated To Senate Removal Decision

          I reject the Speaker's notion that impeachment isn't worth it because it won't succeed. The House impeachment is separate from the Senate trial. Once the House impeaches--regardless the Senate decision--all personnel subject to that impeachment cannot be pardoned. [pardon power except in cases of impeachment]

          The article being commented on was about Pelosi telling bloggers in a conference call that the Constitution was worth impeaching for if you could succeed.  It sounded offhand and dismissive and like she was putting partisan politics ahead of her Constitutional duties.  But she did also say that she took her oath of office seriously, that the rule of law had been fabulously corrupted by Republicans (Tom DeLay dissed Sandra Day O'Connor at a luncheon, and R's were saying that Marbury v. Madison--establishing the principle of judicial review--had been wrongly decided), and that Pelosi's plan of action was to "build the record" (yippee for subpoena power!) so that the public could see the differences between Dems and Repubs so the next election could change everything.  I'm wondering if Pelosi's record and election results would not support impeachment now, before swearing in of the next Congress and President?  *wish*

          NANCY PELOSI:  They have tried to eliminate the judicial review from law.  In other words, in order to amend the Constitution, you know the process.  But what they want to do is to say, by simple majority, you can amend the Constitution and at the same time eliminate the Court’s ability to have judicial review over that law as to whether it’s Constitutional.  That’s who they are.

          And I think that if you ever listen to the speeches of Sandra Day O’Connor, you will find that even she was appalled by the treatment that she, the courts received from the Republicans.  They didn’t even know it–-just as an inside thing-–we went to lunch there one day – the leadership, with the judges – right before Rehnquist died, so what would that be?  Two years ago?  Around this time.  And she sat with Tom Delay at the table–-there were three tables, three justices at each table, and so she was at the table with Tom Delay.  And he just blasted, said, "You know if we don’t like your decisions, we’re not gonna fund, we’re gonna withhold funding for the implementation of those decisions."  You know, she was stunned that he would talk that way about the separation of power and the rest.

          So she got on a jag and when she went off the Court, she spoke out against this.  So it’s about the rule of law, how corrupt they have been; the rule of law on how they refuse to be accountable; but also the rule of law on how they, you know, they don’t respect--the executive branch doesn’t respect the oversight that Congress has, but they don’t want judicial review.  When they were in power, the Republicans here did not want judicial review over their laws even though many of these courts were appointed by them, these courts were appointed by the Republicans.

          Barry Goldwater spoke out against it.  Do you know that they have said in the debate on the subject, that they have said that Marbury v. Madison, which established the principle of judicial review, was wrongly decided.  A 200-year-old decision was wrongly decided.

          So as I say, in every aspect of the rule of law and respect for the Constitution and checks and balances and the rest, and just the rule of law and how they conduct themselves, it’s just impossible to exaggerate how bad they have been.  And again, even Justice O’Connor was stunned, herself philosophically aligned with them, but was stunned to see how far they were willing to go.

          •  I don't think they'd like the results (1+ / 0-)
            Recommended by:
            thatvisionthing

            R's were saying that Marbury v. Madison--establishing the principle of judicial review--had been wrongly decided

            because Rs and those they support have used judicial review to overturn laws THEY don't like, and all of those decisions derive at least in part from Marbury.

            It is also, probably, because some R legislatures don't like the basic reasoning Marshall used, which I will quote anon.  But for those who are lawyers and belond to the Federalist society they should remember

            1. Marshall was a key Federalist
            1. he is the symbol of their society.

            And now for that opinion.  And note the bolding I have added to the text.

            Snip 1

            The question, whether an act, repugnant to the constitution, can become the law of the land, is a question deeply interesting to the United States; but, happily, not of an intricacy proportioned to its interest. It seems only necessary to recognise certain principles, supposed to have been long and well established, to decide it.

            That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it nor ought it to be frequently repeated. The principles, therefore, so established are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.

            This original and supreme will organizes the government, and assigns to different departments their respective powers. It may either stop here; or establish certain limits not to be transcended by those departments.

            The government of the United States is of the latter description. The powers of the legislature are defined and limited; and that those limits may not be mistaken or forgotten, the constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing; if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation. It is a proposition too plain to be contested, that the constitution controls any legislative act repugnant to it; or, that the legislature may alter the constitution by an ordinary act.

            Between these alternatives there is no middle ground. The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it.

            If the former part of the alternative be true, then a legislative act contrary to the constitution is not law: if the latter part be true, then written constitutions are absurd attempts, on the part of the people, to limit a power in its own nature illimitable.

            and snip 2:

            Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

            This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

            nd finally, snip 3:

            Those then who controvert the principle that the constitution is to be considered, in court, as a paramount law, are reduced to the necessity of maintaining that courts must close their eyes on the constitution, and see only the law.

            This doctrine would subvert the very foundation of all written constitutions. It would declare that an act, which, according to the principles and theory of our government, is entirely void, is yet, in practice, completely obligatory. It would declare, that if the legislature shall do what is expressly forbidden, such act, notwithstanding the express prohibition, is in reality effectual. It would be giving to the legislature a practical and real omnipotence with the same breath which professes to restrict their powers within narrow limits. It is prescribing limits, and declaring that those limits may be passed at pleasure.

            pece

            do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

            by teacherken on Fri Nov 28, 2008 at 04:24:03 AM PST

            [ Parent ]

            •  Well, the party of Lincoln is not exactly (0+ / 0-)

              recognizable as the party of Lincoln anymore...

              With malice toward none; with charity for all
               

              With malice toward none; with charity for all

              Consistency is not one of their hobgoblins.

              Also, your snips 2 and 3 are the same, did I miss something?  

              Thanks, and peace to you too

      •  If anyone agrees to let Bush & Co. walk (0+ / 0-)

        away then they are as guilty of War Crimes as the Bush Junta. Torture was done in our names - you, me, everyone in America. The Dems and the public acquiesced. I don't want anyone to even think I condone torture, much less support a torturer and killer of innocent people like Bush

        We have to get over the notion that America or it's current President is always right. Bush rubbed our collective noses in it and dared anyone to say it was real, honest to goodness, torture.

        Bush set a precedent that must not be allowed to stand. Real Americans do not torture.

        •  I never supported torture (0+ / 0-)

          Torture was done in our names - you, me, everyone in America. The Dems and the public acquiesced.

          The public acquiesced--?  I was never asked.  I do recall e-mailing and calling my congressman and senators to tell them NOOOOOOOOOOO.  So I'd be careful that the public support you're stipulating isn't a Republican meme faithfully planted and parroted in the media and by dittoheads.  I've been seeing online polls for years saying a majority of us wanted impeachment.

          I also recall another poll I took years ago, when Saddam Hussein was a prisoner.  The question: Do you support the death penalty for Saddam Hussein?  This was a poll like no other I had seen.  You went through screen after screen of argument for the death penalty and laying out Saddam's crimes.  Then you voted.  Then you went through screen after screen of argument against the death penalty, and you voted again.  So, by the time your final vote was taken, you were informed.  Now I'm about as anti death penalty as you can get, and it's pretty lonely there sometimes, so I was amazed when I saw the result that the majority of people voted against the death penalty even for Saddam Hussein.

          •  Millions of us should have been in the streets (0+ / 0-)

            protesting Bush and torture. Emailing our Congress did nothing to stop the Bush torture policies. Congress did nothing to stop the runaway lawless Bush junta.

            The American President represents us, Americans, so yes, this was done in our names.

            •  I did not say this wasn't done in our names (0+ / 0-)

              It WAS done in our names.  But without our authorization, and shamefully USING us for unearned legitimacy.  Bush wasn't elected, not once, not twice.  I have never accepted him as my president and henceforth I will refer to him as the asterisk.  His whole administration has been about subverting the Constitution and government of, by and for the people.  The media failed, and perception was managed.  God knows what went wrong with Congress and the courts.  As for the people, I chalk a lot up to the unitary MSM and the lack of independent radio stations.  Where was the music? Where was the thinking?  Where was the humanity?  God bless Green Day, but in the 60s it blossomed everywhere out of every transistor and dashboard.

              That said, I share your anger that people weren't in the streets protesting like we were in the 60s and 70s, that there weren't more people standing and marching with Cindy Sheehan.  But the better we are informed, and the more we are involved, the saner our government will be.  Obama is our best answer yet.  Lots to be angry about, certainly, but I'd like to focus it constructively and not against our best hope--we the people.

    •  This is not a "progressive" issue. (10+ / 0-)

      At least it shouldn't be. And it betrays universal cowardice on the other side of the aisle.

      Like Democrats, Republicans elected to office take oaths to protect the Constitution. Is there a principled person in their number? Is every one of them too cowed by Rush and Hannity to do his duty?

      Certainly a lot of Democrats have had their heads in the sand, too -- and if they've shirked their responsibilities, I suppose it's left to us voters -- if anybody -- to punish them. But Obama and Biden both said, before they were elected, that Bush-era crimes would be investigated. I'm trusting they both meant it, and we should not let them forget it.

      (People complain that the media have been complicit in Cheney's shenanigans -- as if that somehow lessens lawmakers' culpability. But however many reporters and editors fellated BushCo is beside the point. The media aren't elected. Reporters don't take any oaths.)

      •  At least it shouldn't be. (4+ / 0-)

        "At least it shouldn't be."

        I wondered why, among other things, the Dems did not run as the Law and Order Party this election cycle, when it would have been so very easy to list the GOP's failure to uphold and outright antagonism toward such.  How many Republican voters would have shaken in fury to see their losership so exposed?  

        And I think you're onto something with oaths of journalistic duty for reporters:-)

        The hopeful depend on a world without end, whatever the hopeless may say. --Rush

        by Leftcandid on Thu Nov 27, 2008 at 05:14:53 AM PST

        [ Parent ]

        •  agree in part (4+ / 0-)

          it should not be a partisan issue

          I have trouble however with the idea of oaths for journalists, because that seems of a piece with the licensing of journalists, and that is the first step towards severely restricting the applicability of the principle of freedom of the press

          do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

          by teacherken on Thu Nov 27, 2008 at 05:16:30 AM PST

          [ Parent ]

    •  If Obama can "rope-a-dope" (0+ / 0-)

      and lull Bush into sleep -- and, not use his pardon power -- we might even be able to bag 'em.

    •  It will happen, just not immediately (7+ / 0-)

      Obama's right to publicly put this off... while privately gathering the evidence.  Let the case build for a year or two behind the scenes, while we focus on saving our economy, healthcare, and starting the green energy program.  The unemployed and hungry won't give a shit about a public investigation into Bush crimes, but once they are employed and fed, they'll have the energy to demand justice.

      We'll keep the pressure on, but we must be patient.  As usual the burden is on those who can carry it.

      The hopeful depend on a world without end, whatever the hopeless may say. --Rush

      by Leftcandid on Thu Nov 27, 2008 at 05:19:29 AM PST

      [ Parent ]

      •  Amen! Let's stay focused on repairing the damage (3+ / 0-)

        to our people's ability to feed, cloth and house themselves and THEIR CHILDREN!!! and then let's tackle the lawlessness of the Bush administration.  
         We must, however, NEVER forget that since men in uniform have gone to prison for engaging in practices associated with torture; and others, of conscience, have resigned their jobs in the CIA and State Department rather than violate international and constitutional laws; the people at the highest level, who have played political games with this concept, should NOT be exempted from their day of accountability.  
          "The mills of the gods grind slow but fine" - so be it with the law!

        ...Former candidate for Congress.

        by Steve Love on Thu Nov 27, 2008 at 09:06:27 AM PST

        [ Parent ]

    •  We must all understand that this attitude started (4+ / 0-)
      Recommended by:
      ogre, teacherken, KenBee, utopia

      with the Ford pardon of Nixon. Nixon, who committed high crimes while president, was preemptively pardoned by his successor, Gerald Ford, in order (Ford said) to "end the long national nightmare."

      I thought then, and still believe, it was only a nightmare to those whose devotion to the imperial presidency bordered on worship. To those of us who understood that Nixon was a man, and that the presidential office, like the other two branches of government, had its clear limits delineated in the Constitution, it was never a nightmare. It was the functioning of our democracy.

      I remember Strom Thurmond, on the eve of the Watergate committee voting articles of impeachment against Nixon, decrying the "constitutional crisis" we were falling into.

      It's the same concern for avoiding the upheaval of transition that prevents us form allowing the law to work today. We feel that to 'open that can of worms,' so to speak, is more dangerous than leaving alone.

      There is also the (very real) danger that such an investigation could raise partisanship to such a level that conservatives could strangle the government into inaction, preventing Obama from accomplishing anything at all.

      Only a nation fully dedicated to the rule of law could undertake such a thing; and we might have done so in the distant past. But we are no longer that nation, and it will take a while to get back there. We need time for Obama to unite us as a nation again, dedicated to the ideals of our founders and clearly committed to a limited government of laws. And we need to use the breathing space he will provide to finally silence the murmuring facists, white supremecists, religious idealogues and klepto-corporatists whose intention is to undermine the law.

      •  This should not be a partisan issue at all (3+ / 0-)

        This is an American issue.  If Republicans can go nuts over flag lapel pins, how silly will they look if they put politicians above the Constitution?  What better way to be redeemed and move forward again than for Republicans and Democrats to get back on the same page again?  This page:

         title=

        In fact I don't believe this is a partisan issue.  I think Dems are likely to be implicated as well.  Jonathan Turley made the point on Rachel Maddow the other night that Bush is daring the Dems to impeach/indict and prosecute.  It's poker and he's calling their bluff.  Turley said that the Dems would actually like nothing more than a Bush pardon, so they could hide behind it and say there's nothing they can do anymore.  By Bush not pardoning, he's demonstrating that he had the support of Dems all along. Spineless Dems.

    •  if we the people (4+ / 0-)

      prosecute the torturers...

      ...we must also grapple with the reality that we allowed them to become torturers, on our behalf

      "If kerosene works/Why not gasoline?" -- The Bottle Rockets

      by Shocko from Seattle on Thu Nov 27, 2008 at 06:21:13 AM PST

      [ Parent ]

      •  How? With stolen elections and dittoheads? (0+ / 0-)

        You need to grapple with the reality that it is Congress's JOB to check and balance, and to preserve and protect the Constitution.  They took an oath.  They're the first line of defense.  Now I know that it sometimes seems like they don't lead until we tell them where to go... but seriously they cannot be so useless.  This is massive failure on their part.

        Also, remember all the secrecy and the lies?  How can you blame us for stuff we didn't even know about?  How can you blame us for the lies told to us to deceive and manipulate us?  I mean, that's crazy.

    •  If the Dems won't do anything about it (1+ / 0-)
      Recommended by:
      UTvoter

      then please just kill me now and get it over with.

      It's hell to be a metaphor.

      Say it loud, say it proud, "I voted for the black guy."

      by ruleoflaw on Thu Nov 27, 2008 at 07:19:17 AM PST

      [ Parent ]

    •  Actually, what you're talking about is (3+ / 0-)
      Recommended by:
      ogre, NCrissieB, justsayjoe

      subversion of the Constitution and treason.

      What I don't know is if treason has to be prompted by allegiance to another nation or is it sufficient to promote another form of government?

      How do you tell a predator from a protector? The predator will eat you sooner rather than later.

      by hannah on Thu Nov 27, 2008 at 07:48:02 AM PST

      [ Parent ]

      •  Treason has a specific definition. (1+ / 0-)
        Recommended by:
        teacherken

        The definition of treason is in the Constitution: "Giving aid and comfort to the enemy [in time of war.]"  I put the [in time of war] in brackets because while the courts have generally held that as a prerequisite for treason, there is one exception: the Rosenberg case.  That case has been very widely criticized by legal scholars - it was espionage but not treason, but espionage did not carry the desired death penalty - and I suspect a future case would revert to the traditional rule that treason only applies in time of war.

        •  Thank you. (1+ / 0-)
          Recommended by:
          teacherken

          "Treason" is a word bandied about much too lightly and much too often by those on both sides of the political/ideological divide.

          Sometimes you're the bug; sometimes, the windshield. You'll know which if the last thing that goes through your mind is your ass.

          by George Gould on Thu Nov 27, 2008 at 10:22:13 AM PST

          [ Parent ]

          •  I don't know if I "bandy it about lightly", (0+ / 0-)

            though I admit I had lost track of its specific definition in the Constitution.

            Your comment raises the question, though, of what crime specifically is committed when one actively subverts the Constitution. If it is not treason, what is it?

            My usual response when someone starts in on the need for a Death Penalty is this: If your standard for the Death Penalty does not include the crimes of Oliver North (who sat in the White House, surreptitiously exercising the power of the US government in direct, secret defiance of the Congress) then I am not interested in listening to the rest of your argument. I have always thought of North (and those of his ilk) as traitors, pure and simple: they subverted the government, stealing the people's power and using that power for purposes and in ways that the people -- through their representatives -- had explicitly forbidden.

            According to the Constitution's very narrow definition, it wasn't treason. So what was it?

            I don't, incidentally, care very much for the Constitution's definition, since it clearly encompasses poor Jason Lindh, who had the bad fortune to be enlisted in the military forces of one of our allies, when we changed our minds and declared them our enemies. To me, an action is only meaningfully treason if it involves taking explicit advantage of one's citizenship in order to aid and abet the enemy. Yes, going over to the enemy, and delivering lots of useful information, is treason. On the other hand, merely fighting in the forces of the other side: That doesn't seem like treason to me -- it's no better or worse than what anybody else fighting in the forces of the other side has done. I mean, don't expect a hearty welcome home -- I have no problem with stripping such a person of citizenship -- but the idea that unlike every other enemy combatant on the field, a US national is subject upon capture to execution merely for being there is bizarre. The Constitution's definition reduces "treason" to a matter of mindless tribalism, really. (Especially problematic since it is almost impossible to "give up" your American citizenship.)

            I am further of the opinion that the President must be impeached and removed from office!

            by UntimelyRippd on Thu Nov 27, 2008 at 11:15:16 AM PST

            [ Parent ]

      •  It's not treasonous to advocate for a different (0+ / 0-)

        form of government.

        Treason is the act of undermining the current government secretly and/or violently.

        Aaron Burr's treason was in trying to set up his own nation on land that was claimed by the US.

    •  Bygones be bygones? (3+ / 0-)

      That's the Orwellian recipe for raping justice.

      Fiat justitia, ruat coelum.
      "Let justice be done, though the heavens fall.

      (or, alternatively,)

      Fiat justitia et pereat mundus. "Let justice be done, though the world perish."

      That justice can take many forms--South Africa's Truth and Reconcilation program has been a wonder.  But simply letting it go is a license for people--the same ones or others--to commit terrible crimes and call for them to be forgotten too.

      Never.

      [When] the land... has become private property, the landlords... love to reap where they never sowed, and demand rent even for its natural produce. ~Adam Smith

      by ogre on Thu Nov 27, 2008 at 07:58:12 AM PST

      [ Parent ]

    •  Amen to this and (1+ / 0-)
      Recommended by:
      justsayjoe

      Happy Birthday.  

    •  The issue of torture is not limited, (4+ / 0-)

      as you point out, to a party.

      Whoever proposed is guilty.

      Whoever approved is guilty.

      Whoever acted is guilty.

      This is not about party.  This is about who we are as a people, what we hold to be our core beliefs.

      I have spoken much lately of the necessity to be inclusive of all parties in the coming administration.  However, this is entirely different.

      I have neither pity nor understanding for those who have contributed to this.  This is not vengeance.  This is the practical application of what our country's basic premise is.

      We believe in the law, and when the law is subverted, we believe in prosecuting those who have subverted it.  I will NOT be convinced by any person that this was EVER necessary or even important for our national security.  I will NOT be told that this act of hunting down and punishing those responsible is not important for our nation.

      If we do not do this, we don't have a nation.

      "Courage is not the absence of fear but, rather, the recognition that there exists that which is more important than fear." -Aubrey Redmoon

      by jlang57 on Thu Nov 27, 2008 at 12:11:14 PM PST

      [ Parent ]

      •  Scott Horton and Glenn Greenwald (0+ / 0-)

        Excellent interview with audio and transcript on Salon:  http://www.salon.com/...

        GLENN GREENWALD: Yeah, you know, I had an exchange this week with Robert Litt, who was a senior prosecutor in the Clinton administration. He argued at an event held at the Brookings Institution, you know the sort of standard Beltway line, that we can't get caught up in the past, we need to move forward, prosecutions would be vindictive and partisan and the like -- arguments that essentially mean that the minute that the president or any high official has an opinion from a government lawyer saying that what they want to do is legal, in essence, that provides absolute immunity from prosecution, which would obliterate the rule of law. Presidents could always get people inside the government who are loyal to them, to issue the legal opinion saying what they want to do, even the most flagrantly illegal acts, are legal, either beforehand or in this case, as you point out, after the fact.

        And there were, as your article references, all sort of indications from people inside the Bush administration, in the State Department and even in the Pentagon and CIA, who knew that there was a substantial risk that what they were doing constituted war crimes, and for that very reason, wanted legal opinions to provide them with this sort of immunity or golden shield from prosecution, which suggests exactly the kind of bad faith that even the Military Commissions Act recognizes is a ground for continuing with prosecutions.

        I want to just ask you about....

        SCOTT HORTON: That's right. When all the facts are exposed here -- and they're not, I mean, an awful lot of this remains covered up and not known -- but when all the facts are exposed, we're going to find that the experts inside the Bush administration, people who really knew about the laws of war, had expertise in this area, had unanimously told the administration, this conduct violates the law, is criminal conduct, and you may be prosecuted for it. And Jane Mayers reported that at a cabinet meeting, Alberto Gonzales was asked at one point, is this all this talk about war crimes serious? Should we be concerned about it? And Alberto Gonzales responded, yes, it's serious. There is a real exposure, and people may be prosecuted for this. And of course he was correct.

        and

        SCOTT HORTON: When we look at all these things in tandem, we see that there's a collective attitude that applies across the board, which is, they don't care about criminal law limitations on the power of the president. They believe the president has the right to ride roughshod over them. And in fact, just as a good example: if you look at Barton Gellman's book the Angler [Angler: The Cheney Vice Presidency] -- excellent book -- he talks about the formation of the terrorist surveillance policy and its implementation. And he had David Addington, with the authority of Vice President Cheney, telling individuals who are putting in their proposals, to make their proposals completely disregarding the law, including the criminal law restrictions. And indeed, they specifically solicited proposals disregarding the law, and they implemented them disregarding the law -- knowing that they didn't have legitimate legal arguments to avoid the restriction, that they could just do it by force and dint of power and authority.

        And they could only do that by getting high-level policy makers and people down the line to accept their position of being above the law. So they did that. They were basically governing via being at war with the law...

  •  Here’s a data point (3+ / 0-)

    I don’t know exactly what to make of it, but let me describe a conversation with a Brit on holiday in Europe.

    He initiated political discussion by saying "I guess we can talk to you since you have done the right thing by electing the right person. It must be good to be getting Bush out of Washington."

    I replied "Yeah.  Maybe we can send Bush to the Hague."

    He had a blank look and did not seem to understand what I meant.  We then proceeded to discuss the economy.  His favorite quote was "Things are bad.  But it’s America’s fault."

    Perhaps he thinks all of us should be sent to the Hague.

    •  I do not believe we recognize the authority of (3+ / 0-)

      the World Court, pulled out sometime in the mid 80's I think. Now we recognize their jurisdiction on a case by case basis. We are not signatories for the International Criminal Court, altho I believe Clinton signed it, but never ratified by Congress. A trial at the Hague is a long shot., at least twice they have been asked to investigate charges of genocide etc,. in Iraq and to date they have only found an incredibly poorly exicuted war but no crimes. Hard to believe I know, and disheartening.

      The other part of it is, WE need to bring them to justice here. Justice at the Hague is the second step, not the first. I say this because as a nation we not only need to know, but participate in the process for it to be meaningful repudiation of Bush's policies. The world needs to see our reaction to his crimes.

      •  According to Scott Hanson in his Harper's (2+ / 0-)
        Recommended by:
        teacherken, Scientician

        essay, if the U.S. does not institute proceeding against our OWN war criminals, then ANY OTHER NATION CAN!  And he goes on to note that Spain and one other country have already begun proceedings along this line.  This is NOT something we can just sweep under the rug in order to avoid seeming partisan.  Obama and Kum-ba-ya with the GOP must have limits.  Scott also suggests that a commission of non-politicos - not Washington insider - can be expected to render a fair finding.

        ...Former candidate for Congress.

        by Steve Love on Thu Nov 27, 2008 at 09:14:07 AM PST

        [ Parent ]

        •  No we can't, but for it to mean something (1+ / 0-)
          Recommended by:
          justsayjoe

          to all the people who have been harmed by Bush policies, it needs to be done here first. Also, I wouldn't hold your breath waiting for another country to do it, not going to happen. About two years ago I wrote dozens of people who might have been in a position to do something, wanting to know if they could or would and wanting to know if we could get it in motion on behalf of the Iraqi people. No takers. Rumsfeld was indicted but if you will notice he has yet to be arrested. They will all die of old age before anything happens if we don't do it here.

          •  Oh, I agree (0+ / 0-)

            to all the people who have been harmed by Bush policies, it needs to be done here first.
            Also, I wouldn't hold your breath waiting for another country to do it, not going to happen.

            Well, according to comments made by Horton in his NPR interview, suits are already entered in a court in Spain and, if my memory serves me, Italy.

            About two years ago I wrote dozens of people who might have been in a position to do something, wanting to know if they could or would and wanting to know if we could get it in motion on behalf of the Iraqi people. No takers.

            That was two years ago and it may well have been that you wrote to people who lacked standing in a court with jurisdiction over such matters.  

            Rumsfeld was indicted but if you will notice he has yet to be arrested. They will all die of old age before anything happens if we don't do it here.

              You do not hear me advocating that they get a free pass.  

            ...Former candidate for Congress.

            by Steve Love on Fri Nov 28, 2008 at 03:43:49 PM PST

            [ Parent ]

          •  Everyone has been injured by Bush's policies! (1+ / 0-)
            Recommended by:
            snackdoodle

            to all the people who have been harmed by Bush policies,

              When the rights of ANY PERSON is denied, the rights of ALL OF US is threatened.  Surely we have learned this from the Nazi regime!  

            ...Former candidate for Congress.

            by Steve Love on Fri Nov 28, 2008 at 03:46:25 PM PST

            [ Parent ]

  •  We MUST be a nation of laws, (9+ / 0-)

    where no one, not even the President, is above the law, where accountability is as certain as the sun rising in the morning.

    If we are not, and elected leaders continue to act in disregard of the law with impunity, then it will be just as certain that we will cease to be a nation worthy of being one.

    I am a warrior for peace. And not a gentle man... Steve Mason, 1940-2005

    by Wayward Wind on Thu Nov 27, 2008 at 03:39:41 AM PST

    •  But who IS accountable today? The (5+ / 0-)

      governors and legislators of the various states seem to do as they please; corporate executives can run their companies into the ground, and still get multi-million dollar bonuses. Lower level government employees are let off the hook when there is crime or incompetence.

      The US, since Reagan, has slid into a culture of unaccountability, in which the bigger the mistake or crime, the more blithely we dismiss it.

      Here in Georgia, an extreme amount of energy has been spent (since I moved here) on making sure people who had sex with their high school sweethearts are brutally punished, registered as sex offenders, and denied a place to live, work and families.

      Meanwhile, the governor accepts bribes from developers, the state turns our state parks over to developers and the legislature worries more about potential voter faud than they do about the shenanigans of a Senator whose only constituency are the businesses that pay him the highest dollar.

      The same story is written across the US. Though 'Brownie' might have epitomized incomepetence, he was by far no exception. Those in government treat it like an ATM to dispense favors to those who pay to play, and the public is so cynical we let it continue.

      An entire county school system lies in shambles in metro Atlanta, discredited and barely functioning. Yet the state has prevented county residents from replacing the governors school board cronies.

      From families, to business, to government, no one is accountable anymore.

      In such an atmosphere, how can we expect people to behave?

      •  We are living in a culture of irresponsibility. (2+ / 0-)
        Recommended by:
        Foxwizard, justsayjoe

        Though that is a favorite mantra of the right--and they are often the leaders of that irresponsibility--it is true. Accountability at all levels, from reckless driving and the lowest order commercial actions to the highest offices of the land seems to be a lost value.

        The only foes that threaten America are the enemies at home, and those are ignorance, superstition, and incompetence. [Elbert Hubbard]

        by pelagicray on Thu Nov 27, 2008 at 07:46:44 AM PST

        [ Parent ]

        •  Yes, and the hypocrisy of the Right does not (2+ / 0-)
          Recommended by:
          pelagicray, justsayjoe

          make it less so.

          As liberal as I am about marriage and sex, I beleive fathers need to assume responsiblity for the children they help create. I believe children should be held responsible, by their faimilies, for their performance in school and their failure to accomplish that which is positive in their lives.

          I am fortunate to work for those who recognize their responsiblity to the workers, as well as the workers' responsiblity to the company. Government service ought to be seen as public service, not an opportunity to loot the public trust and enrich self and friends.

          I don't get hyper about teen sex, but by golly the adults in kids' lives have a responsibility to teach them why it's better to wait, and how to be responsible if they don't. I believe teen violence is directly related to the violence they see in the adults around them, and I believe our communities are built on the accountability and honor of the individuals and families that make up those commuities.

          I know it sounds socialist, in today's language, but a nation, a community and a family are built on the recognition that we all have a responsiblity to one another.

          Quite a novel idea, though it's been taught by many philosophers and most religious leaders through history.

  •  What a difference four years can make (15+ / 0-)

    Four years ago today I was still depressed, avoiding the television set, preparing for my last set of finals and for my study abroad and internship in Thailand.  Let me tell you I was really happy I had decided to get the fuck out for a few months.  

    Four years later, I'm breathing a sigh of relief. After law school I stopped looking at Bush's judicial appointments in the way they are examined by the press.  I mean yes, Roe v. Wade, gay rights, consumer protections, etc. those are all still important.  But the disturbing trend I noticed, and that Charlie Savage documents very well in his book Takeover, is their extreme approach to executive power.  It is the reason I remain wary of a Sunstein pick.  We are a nation of laws, yes, but there are four justices on the Supreme Court who would sanction this lawlessness.  And that's something to keep in mind as we move forward.

    Anyway, a bit of rambling here, but thanks.  Nice diary.  

    "We're half awake in a fake empire."

    by Alec82 on Thu Nov 27, 2008 at 03:43:52 AM PST

  •  The 'city on the hill'... (4+ / 0-)

    This is the same Winthrop who opined, "If we should change from a mixed aristocracy to mere democracy, first we should have no warrant in scripture for it: for there was no such government in Israel ... A democracy is, amongst civil nations, accounted the meanest and worst of all forms of government. [To allow it would be] a manifest breach of the 5th Commandment."?  The same who was an absolutely intolerant Puritan leader?

    No, I cannot accept John Winthrop, intolerant and vindictive as he was, as any symbol worthy of accolade... not to mention that he was, in some respects, a very 'shady' character in his dealings and apparently more than a bit hypocritical.

    Otherwise, it is true that it is 'we' who must watch the watchers.  The problem is, at least in recent history, that the 'watchers' are most beholden to monied interests who funded their past election(s) and can most likely fund future campaigns, as well.  It is much easier to acquiesce to the wishes of a few (well-heeled) supporters vice the expansive rabble of common voters!

    Now, you and I can 'insist' on accountability and other matters from now until Hell freezes over.  But in the broadest sense, there is little evidence that most elected officials give any thought to our 'insistence', at all.  With the behind-the-scense deal-making that goes on, the quid pro quo's, the normal political process that is Washington, achieving that elusive accountability may be a very long process, indeed... if it is to ever be achieved, that is.

    Sorry to sound so negative, but that is the way I see it... and it is the way recent history has played out.  Other than that, happy Thanksgiving Day.  Cheers:)

    Life is not a 'dress rehearsal'!

    by wgard on Thu Nov 27, 2008 at 03:44:06 AM PST

    •  It is not that I accept Winthrop (10+ / 0-)

      Cohen references his language, so I refer to him. Here I note, as my wife just reminded me, she is a direct descendant of his second wife, albeit not of him.

      I am no fan of the Puritans, and think we do too much mythologizing of the early European settlers of N America.  

      And we go through paroxysms from time to time.  I did not put in the diary, but was thinking of the willingness of Bill Colby to be honest about some of the misdeeds of CIA, an honesty that led some from the dark side of that agency to accuse him of being a traitor.  Many in the clandestine service thought of themselves as beyond the law, but as a sacrifice on behalf of the nation.  I know several from that era who are now retired who have expressed same.

      Perhaps I have an erroneous vision of what this country was intended to be.  If so, then perhaps I should not be teaching that intent to my students.  And yet, if we do not aspire to something beyond mere convenience and the easy rationalization for doing the thing that in our heart we know we should question, pray tell how are we in kind different than a totalitarian state?  Where do we decide to draw the line? In fact, who or what is left to draw such a line?

      Peace, and a happy T"giving Day to you, stil down under?

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 03:54:53 AM PST

      [ Parent ]

    •  There's a good argument for campaign (1+ / 0-)
      Recommended by:
      justsayjoe

      finance reform.

      Liberté, Egalité, Fraternité

      by snaglepuss on Thu Nov 27, 2008 at 04:55:25 AM PST

      [ Parent ]

  •  Brig Gen Karpinski (6+ / 0-)

    gets relieved of duty for Abu Ghraib torture. Something tells me that the chain of command responsibilty ended there. As soon as we speak of the constitution and rule of law, like pavlov's dog, the Republicans aided and abetted by the media claim "soft on terrorism." Disgusting.

  •  Perhaps an irrelevant example, but.... (12+ / 0-)

    A couple of weeks ago, my local NFL team were playing and the action was getting ... chippy.  There were a few shots to the head, late hits, etc.  The referee finally went over to both benches and told both head coaches: "Control your players, so I don't have to."

    I was a basketball referee for a couple of years, as well as a coach, so I've been on both sides of that same discussion.  If the coach can't police his/her own players and make sure they play within the rules, the referee has to start penalizing or ejecting the players ... and that usually just drives the tension even higher.

    I think President Obama will face a similar choice.  Either the U.S. must police ourselves - investigate and prosecute those who've broken not only our own laws but violated international laws to which we are a party - or we'll have to join the ICC and hand the people over to the ICC for investigation.

    I think the U.S. should join the ICC regardless.  By refusing to join unless the ICC investigated only cases referred by the U.N. Security Council - where we held a veto - we thumbed our noses at the rule of international law.  George Bush didn't make that decision.  Bill Clinton did.  And Barack Obama should change that policy.

    But the ICC's charter only allows it to prosecute crimes if those crimes are not being investigated and prosecuted in the country where they occur.  We should join the ICC, yes, but we should forestall any ICC investigation by having a complete and transparent investigation of our own.

    The U.S. cannot simultaneously decry terrorism as counter to the rule of law ... and ignore the rule of law ourselves.  We cannot decry Russia's "invasion of a sovereign state" (North Ossetia or Georgia, depending on one's prism) ... while we occupy a sovereign state we've invaded (Iraq).

    Enough hypocrisy.

    We are not so "exceptional" that anything and everything we do is a priori lawful and good.  We must first obey what we demand others to respect.  We must be a nation of laws, or we have no claim to lawfulness.

    •  I refereed and coached soccer. Your comment (6+ / 0-)

      reminds me of an incident that occurred when our varsity boys soccer (I was assistant there as well as JV coach) were playing a team that was somewhat out of control.  The referee ejected one of their players, who then instead of staying with his team walked towards our bench that threatened the varsity coach and me.  His words were to the effect that he was going to "fuck you over."  

      The referee heard, blew the whistle, and informed the other coach that if he could not control his players on the bench, he clearly could not control them on the field. He forfeited the game and officially carded the coach.

      Peace.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 04:10:26 AM PST

      [ Parent ]

      •  I suppose the referee had to, but.... (4+ / 0-)
        Recommended by:
        teacherken, Othniel, ladybug53, Joffan

        I suppose the referee had to do what he did, but it's still sad.  I also played and coached (though I've not refereed) soccer, and I hope I learned something from my experience as an athlete: you're not (really) competing to win; you're competing to create a "great game" together.

        I've been blessed to have played and coached in some "great games."  Not in the newsworthy sense; none of them were covered by the media.  But they were truly "great games."  The play was very intense, yes, but it was an intensity that brought out the best in us, crystalline moments when we transcend our "limits" and create beauty.

        In the game you described, apparently the opposing coach never gave his players a chance to experience that.  I can't blame the referee; he felt he had no other choice.  But the opposing coach never gave his players a chance to experience beauty.  That's sad.

        As a basketball referee, the few times I had to talk to the coaches about policing their players so I didn't have to, I tried to put it in those terms: "Do you just want to beat the other team, or do you want to play the best game of your lives?  You won't remember the wins and losses ... but you'll never forget the great games."

        It had only mixed success.  But I had to try....

    •  We're not a nation of laws (2+ / 0-)
      Recommended by:
      tRueffert, justsayjoe

      and even our lawyers don't have the cojones to say it.

      Hell, the Bar exhorts its members to perform fellatio on scofflaw judges and even defend their right to run roughshod over the constraints of precedent and rules of statutory interpretation.  See e.g., William E. Walters (CO Bar Assn. president), Defending the Judiciary—An Obligation of Bench and Bar, 37 Colo. Lawyer 11 (Nov. 2008) at 5.

      And yet, you wonder why you get travesties like Bush v. Gore and Kelo?

      •  Your cynicism is tiring. (1+ / 0-)
        Recommended by:
        Othniel

        If you really think the system is that broken, perhaps you might offer something constructive as an alternative?  Honestly, Boulder, at this point I've stopped reading your comments because your cynicism is, frankly, getting old.

        •  And that is sad (1+ / 0-)
          Recommended by:
          Foxwizard

          because some things do need to be said and heard.  Civil Discourse works fairly well, but cynical tirades usually produce few, if any, results.  There is just to much static.

          God and ego are not equivalent expressions of reality.

          by Othniel on Thu Nov 27, 2008 at 05:06:03 AM PST

          [ Parent ]

        •  I've already offered an alternative (3+ / 0-)
          Recommended by:
          tRueffert, Haplogroup V, snackdoodle

          Glad you asked.

          Power minus accountability equals tyranny.  But how can I effect change if you won't admit that there is a problem?  Republican judges have shut the courts as tight as a drum, but no one in the organized Bar seems to give a damn.  Trial lawyers are too busy genuflecting before the judges they "work for" to work for change.

          Our judges should be held personally accountable for misconduct on the bench.  Even King Hammurabi put a system of accountability in place.

          The tools already exist: the ancient writ of scire facias (that's what the "good Behaviour" clause is referring to), vigorous criminal prosecution of judges who violate the law, private prosecution of government officials, and either the abolition of judicial immunity and/or primary state liability for rights violations.  I've blogged about these at some length, but let's be honest: Unlike the blogs praising the legal system, these don't make it to the rec list.  This just isn't as sexy as scandals involving Mike Huckabee.

          •  What are you talking about? (2+ / 0-)
            Recommended by:
            teacherken, snackdoodle

            What do you think the ACLU, the ACS and various other organizations have been doing for all of these years? The latter is essentially a liberal response to the Federalist Society, and the former has been on the front lines long before 9/11, and long after becoming a pariah within the larger progressive community, and the Democratic Party, for its unpopular stands, particularly on First Amendment and criminal procedure issues.  The ABA condemned the use of signing statements, there have been refutations of Yoo's theories of executive power, etc.  The "trial lawyers" you castigate have been documenting right wing attempts to shut down the judiciary for decades.

            So please, go sell your tired nonsense somewhere else.  

            "We're half awake in a fake empire."

            by Alec82 on Thu Nov 27, 2008 at 05:33:43 AM PST

            [ Parent ]

            •  Has anyone addressed the core issue? (1+ / 0-)
              Recommended by:
              snackdoodle

              As long as judges can disregard the law in individual cases with impunity, there is in fact no law.  Until federal and state judges are held personally to account for their forays beyond the scope of their Article III authority, no right is safe.

              The ACLU is not even on the radar here.  

              •  Your bizarre belief..... (1+ / 0-)
                Recommended by:
                burrow owl

                ...that federal judges are sociopaths?

                I've tried to address your concerns about the federal judiciary before, but I just don't see where you're coming from.  Your proposed solution appears to be the abolition of judicial immunity, and good luck with that.  I'm not even sure what you think the problem is, apart from an attack on our entire profession.    

                "We're half awake in a fake empire."

                by Alec82 on Thu Nov 27, 2008 at 05:42:16 AM PST

                [ Parent ]

                •  I don't make up the facts, my friend (1+ / 0-)
                  Recommended by:
                  snackdoodle

                  In one of his timeless tomes, Professor Llewellyn observed that judges often

                  manhandl[e] ... the facts of the pending case, or of the precedent, so as to make it falsely appear that the case in hand falls under a rule which in fact it does not fit, or especially that it falls outside of a rule which would lead in the instant case to a conclusion the court cannot stomach.

                  Karl Llewellyn, The Common Law Tradition: Deciding Appeals (1960) at 133.

                  As Professor Monroe Freedman, one of the nation’s leading scholars on judicial ethics, observes:

                  Frankly, I have had more than enough of judicial opinions that bear no relationship whatsoever to the cases that have been filed and argued before the judges. I am talking about judicial opinions that falsify the facts of the cases that have been argued, judicial opinions that make disingenuous use or omission of material authorities, judicial opinions that cover up these things with no-publication and no-citation rules.

                  Prof. William Reynolds describes as a conspiracy between our lower court judges to engage in so-called "guerilla warfare," explaining that

                  [a] court can make it unlikely that effective review of its decisions can ever take place.  It may, for example, make creative use of fact-finding, and it may issue its opinions in such a way as to forestall careful consideration of what it does.  By making review more difficult, the lower court can help forestall realization that it has ignored pronouncements from on high.

                  1.  Fact-Finding.  A trial court can always find "facts" in such a way as to insulate the case from effective appellate review.  That is because review of "factual" resolutions is subject to deferential review (that is, whether there was some evidence to support the finding), as opposed to the de novo review (that is, our guess is as good as yours) given legal findings.  Appellate judges, of course, are alert to these kinds of shenanigans, and know how to play the game in reverse; they can do so by simply finding that the court below mischaracterized "law" as "facts." And if the trial judge and the appellate judge are both convinced that the Supreme Court was wrong, a tacit conspiracy between the two on law and facts can achieve a lot.

                  William L. Reynolds, Who Are the Juristocrats? Guerilla Warfare Among the Courts (Mar. 2005) (unpublished draft) at 3, http://digitalcommons.law.umaryland....

                  I've seen too much to believe that our judges are anything but a band of black-robed Ba'athists.

                  •  Yes, there are abuses (1+ / 0-)
                    Recommended by:
                    snackdoodle

                    And yes, the system is imperfect.  But black-robed Ba'athists?

                    Your rhetoric simply doesn't match the legitimate concerns that are expressed in the articles you cite.

                    "We're half awake in a fake empire."

                    by Alec82 on Thu Nov 27, 2008 at 05:57:27 AM PST

                    [ Parent ]

                    •  It's like folks were saying about Prop 8 (0+ / 0-)

                      If it has negatively affected your life, it matters a lot more.  "You're not upset about our not being able to marry the person you want because you can do so."

                      I have no rights whatsoever.  I can't even plan my affairs in such a manner as to comport with the law, because the judge could change the law on me without notice.

                      How am I supposed to find this state of affairs even marginally tolerable?

                      The average Ba'athist did his job most of the time, but knew when to be corrupt.  The analogy is fair.

                      •  So this is a personal issue? (0+ / 0-)

                        I'm assuming criminal, if that is the case.  Regardless, without providing some sort of background, I'm not really equipped to comment on it.  I can only address your rants against the judiciary you have provided here, which are sorely lacking.  

                        "We're half awake in a fake empire."

                        by Alec82 on Thu Nov 27, 2008 at 06:11:47 AM PST

                        [ Parent ]

                        •  How so, Counselor? (0+ / 0-)

                          Riddle me this: What would you say if a judge decided a case in which she was a proper party defendant in tort, despite the fact that a number of other judges were both available and authorized by statute to hear it in her stead?

                          I'll spot you the cases: Dr. Bonham's Case, Tumey v. Ohio, In re Murchison.

                          What would you say if a judge performed a Rule 72(b) review of a recommendation of dismissal before the plaintiff submitted his objections?

                          What would you say if a judge, with full knowledge of binding Circuit and Supreme Court precedent saying "X," decided "not X" at trial, and the appellate court upheld that decision in an unpublished opinion?

                          What would you say if a federal judge refused to hear a timely claim under Section 1983 on the grounds that she didn't have standing to hear it?

                          How many horror stories are enough?

                        •  And no, it's not criminal, except (0+ / 0-)

                          for the actions of the judges in question.

                          But hey, we don't prosecute crimes like the ones that tripped up Judge Naughty.

                •  The lawyer's loyalty is to the Constitution (0+ / 0-)

                  The only authority a judge has resides in Article III.  The words "Judicial power" mean something, and our Framers never understood it to mean that a judge could do whatever he damn well pleased.  Lord Coke wrote that "[i]t is the function of a judge not to make, but to declare the law, according to the golden mete-wand of the law and not by the crooked cord of discretion."  1 E. Coke, Institutes of the Laws of England 51 (1642).

                  When a judge crosses that line, the condemnation by the profession should be loud, long, and boisterous. When you abandon your principles -- not you, but the profession as a whole -- do you think you should be judged any less harshly than others in our government you have been judging for the past eight years?

        •  Speaking of cynicism, Crissie.... (0+ / 0-)

          S/he who lives in a glass house should not get into the habit of throwing stones....

          I'm willing to cut Obama some slack, even though I have a major problem with the Rubin-Citicorp axis of evil.  By contrast, extensive exposure to our cruel joke of a legal system has earned me the right to be cynical.

          •  If you can't distinguish satire and cynicism ... (0+ / 0-)

            ... we can't have a meaningful dialogue.

            •  And people shouldn't be upset? (0+ / 0-)

              We hired the guy to bring change.  I'm willing to cut him some slack, but I can understand the feelings of betrayal out there, and the validity of their voice.

              I'm a patient guy, but if Obama stops listening, how is the new boss going to be any different from the old boss?

              •  He's bringing change (1+ / 0-)
                Recommended by:
                cville townie

                He may not bring the exact change you individually wanted.  But he's bringing change.

                Obama did not, for example, continue the inside-the-Beltway habit of picking petty spite-fights in revenge for political slights (Joe the Turncoat).  He could have.  A lot of people here wanted him to.  I think Joe the Turncoat deserves to be out of his committee chairs, out of the Democratic caucus, out of the Senate, and out of this solar system.  By not having that spite-fight, Obama brought "change," and a kind of "change" he'd specifically promised in his campaign speeches.

                As for keeping Gates, Obama had hinted at that back in the primary season.  He's not breaking a promise there.  Do I think he ought to keep Gates?  No, but I also understand his reasons for doing so.  I'd weigh those reasons differently, but I don't feel betrayed.

                "Change" has to mean something more than Democrats trashing Republicans the way Republicans trashed us under Bush.

                •  I agree. However, there are caveats (0+ / 0-)

                  A lot of people have valid concerns over the choice of a gaggle of centrists and even rightists, and as the main diary points out, the refusal to prosecute the offenses of the Bush junta is a betrayal of the very rule of law.

                  If he does not hear the raised voices of the Dennis Kuciniches, he may be deluded into thinking that his approach is being met with complete approval.

                  Raising your voice now may prevent the need for doing it later.  Dissent is not just a right, but a duty.

                  •  I agree, and said so in the diary you criticized. (0+ / 0-)

                    That diary addressed - in satire - a very specific kind of dissent: the "I canvassed and phone-banked and donated and THIS is how Obama treats ME?" style that personalizes every decision Obama makes, as if that individual commenter were forefront in Obama's thinking.  I see that as childish narcissism, and that's why I satirized it as such.

                    I've criticized Obama's consideration of Hillary Clinton for Secretary of State, not on the grounds that some "we" rejected Clinton in the primaries - that to me is an absurd argument - but on the grounds that there are legitimate conflict of interest issues in her case.  Bill Clinton has a legitimate privacy interest in his charitable work.  Barack Obama has a legitimate (arguably greater!) transparency interest in his cabinet.  Unless and until those interests can be resolved to Obama's satisfaction, he ought not to appoint Hillary Clinton to a cabinet post.

                    I've no problem with reasoned criticism.  I've a problem with childish narcissism.

                    •  When does one become the other? (0+ / 0-)

                      I concur wholeheartedly with your assessment of the Clinton situation; the standard for public officials should be "appearance of impropriety."

                      Speaking of which, what would you say about a judge deciding a matter in which she was a proper party defendant in tort, despite the fact that a number of other judges were both available and authorized by statute to hear it in her stead?  (I'll spot you the cases: Dr. Bonham's Case [1610], Tumey v. Ohio, In re Murchison, US v. Will [limits of the Rule of Necessity].)

                      This is the kind of stuff that happens in our courts on an all-too-regular basis -- and, which makes me a hardened cynic.  But as Frederick Douglass put it, "If there is no struggle, there is no progress.  Those who profess to favor freedom, and deprecate agitation, are men who want crops without plowing up the ground, they want rain without thunder and lightning."  It is our job to agitate, and if it sounds at times as if it might be a strain of childish narcissism, simply give thanks that God did not distribute the gift of eloquence equally.

                      Listen to how the LGBT community howled when Prop 8 passed.  Sure, they sounded like drama queens at times, but the underlying claim has merit.  I am inclined to cut 'em a little slack, but that's just me.

                      •  I don't know the factual details of the case (0+ / 0-)

                        I'm an attorney and formerly practiced criminal appellate law.  That means I'm not going to give you a legal opinion based on a one-sentence summary.  I'd have to have the factual details, including the testimonial record, and do my own legal research on the standards for recusal in that jurisdiction.  As I charged $300/hour for my work and I doubt you'll want to pay that ...

                        ... you'll have to survive without my opinion. :)

                        •  You're pulling a Palin on me, Counselor! (1+ / 0-)
                          Recommended by:
                          qi motuoche

                          I hate it when attorneys are being intentionally evasive.  Attorneys here give their opinions on legal matters here all the time, and I've been around long enough to know it.  In light of how often this dance of deception happens, do you really wonder why I have such a negative view of the legal profession?  We're just talking here; no attorney-client relationship is being created, nor would one reasonably be inferred.

                          Judges distill cases to their bare essentials in opinions like that all the time.  Assume, arguendo, that those are the legally significant facts.  Either it is proper for a judge with a material personal financial interest in a case to hear it, or it is not.  

                          Let me give you the Supreme Court's opinion:  It "certainly violates the Fourteenth Amendment ... to subject [a man’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case."  Tumey v. Ohio, 273 U.S. at 523.  The litmus test the Court has consistently used in determining whether a judge has an interest in a case sufficient to disqualify him from consideration of an appeal is "whether the ‘situation is one ‘which would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear, and true.’’" Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986) (citations omitted).  In Tumey, it was only a few hundred bucks added to his budget.

                          The extra facts were added to negate the possible application of the Rule of Necessity.  As the Court observed (in dictum, as they cannot hear a case if there is no quorum):

                          The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest -- where no provision is made for calling another in, or where no one else can take his place -- it is his duty to hear and decide, however disagreeable it may be.

                          United States v. Will, 449 U.S. 200, 214 (1980) (emphasis added; citation omitted).

                          I will tell you that in this case, the legally salient facts are admitted by the defendants. A written admission, which is conclusive by the very nature of the beast.

                          •  Okay, I'll be clearer then.... (0+ / 0-)

                            I'm not going to play the "Assume I'm right, so ... am I right?" game.  You obviously lost a court case.  I'm not going to assume that your characterization of the facts is accurate.  I'm not going to assume that the decision in your case was unjust.

                          •  You don't have to assume a thing, Counselor (0+ / 0-)

                            Either the act of a judge hearing a case in which she is a party when other judges are available to hear it is a violation of the Fourteenth Amendment, or it is not.  (I can show you a dozen reported cases saying that it is, and there is no dissenting view.)  You don't have to be a party to a case to see this.  Show me that it can't happen, and there is no controversy.

                            I want you to think like a C.P.A. for a moment.  In designing internal controls for business, the C.P.A. asks two questions: "What can go wrong?" and "What kind of controls can prevent this from happening?"

                            If we admit that this scenario is possible, what 'brake' in our judicial system stops it? When we speak of the virtues of our government, we think mostly in terms of "checks and balances."  What is the check on untrammeled judicial power?

                            Is it the watchful eye of the Supreme Court?  Get real!  Prior to 1925, virtually every decision was appealable on a writ of error; today, 95% of cert petitions are read by no more than two clerks, and the Court has no statutory obligation to hear any petition alleging mere error.

                            What about federal courts?  Epic fail; try again. Courts have been abusing Rooker-Feldman ever since it was devised; SCOTUS has read them the riot act for it (in Saudi Basic), but that doesn't deter them, nor can it.

                            Congressional oversight?  We can't even get those unprintable bastards to investigate torture being perpetrated in our name and besides, as Jefferson observed, impeachment is but a "scarecrow."  And, as a practical matter, no federal judge has ever been impeached for a single decision.

                            Criminal sanctions?  While 18 U.S.C. Sections 241-242 apply in theory, getting a local United States District Attorney to prosecute a judge takes nothing short of an act of Congress.  Attorneys know that they "work for" the judges (one barrister admitted this to a House committee here Colorado; I was in attendance); going after a federal or state judge for criminal misconduct on the bench is a career-limiting move.  Even Alan Dershowitz knows to keep his head down.

                            Judicial self-discipline?  Puh-LEEEZE!  Letting judges investigate themselves is like letting the Bush Administration investigate itself. The proof is in the pudding: Less than ten complaints out of ~7,500 have resulted in any kind of sanction at all, and half of those involved written rebukes to the offending judge.  Even when a judge solicited a bribe from a law firm, the Judicial Council refused to issue any kind of sanction at all, according to Senior District Judge John Kane (who was on that panel, and confessed this fact in the WaPo).

                            Attorney outrage?  Are you kidding?  Attorneys are conclusive disproof of evolution, in the sense that they have shown that one can be intelligent without benefit of a spine.  The rare attorney who speaks out on principle invariably has his or her head cut off (ask Jess Radack what the price of standing on principle is).  Besides, unprincipled attorneys -- it seems like it is almost the whole lot of them -- profit handsomely from corruption in the system, which is why they invest so much effort in currying the favor of the bench.

                            Sure, it happened to me.  So fucking what?  If it can happen to me, it can happen to anyone, which means that it can happen to you.  When I found out how common it was, I decided to do something about it.  What should we tell the LGBT couples who can't marry?  Is there really any difference?  And if you defend a system that relegates people like me to second-class citizenship in this Third World toilet because it benefits you, aren't you just as guilty as the perpetrators?

                          •  I'm not assuming ... (0+ / 0-)

                            I'm not assuming the judge was a proper party to the case simply on your word.

                            You lost.  Every litigant who loses things the system is screwed up, because losing litigant thinks he/she would have won in any fair proceeding.  No one goes into court thinking "I hope this judge and jury are idiots, coz otherwise I'm gonna lose."  Every single litigant thinks that he/she should win, and everyone thinks the system must be screwed up if he/she loses.

                            But I'm supposed to believe you're the exception - that the system really was screwed up in your case - because you say so ... again and again and again....

                            Sorry, but no.

                            You lost.  I'm not going to assume the system screwed up because you lost.  I'm not going to take your version of the facts as accurate, just because you keep repeating them.

                            I'm not going to subordinate my education and experience to your bitterness.

                            Find another playmate.

                          •  please take this elsewhere n/t (1+ / 0-)
                            Recommended by:
                            NCrissieB

                            do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

                            by teacherken on Fri Nov 28, 2008 at 06:42:50 AM PST

                            [ Parent ]

                          •  I apologize, Ken. (1+ / 0-)
                            Recommended by:
                            teacherken

                            Sadly, he takes it everywhere.  I should simply not respond, and henceforth I won't.

                          •  The only difference between "liar" and "lawyer" (0+ / 0-)

                            is in the pronunciation.

                            In a motion for summary judgment, who determines what the facts are?  That's right: THE PLAINTIFF!

                            Moreover, you don't have to take my word for anything to address the question of the lack of judicial accountability.

                            You are an integral part of the problem, as you will defend the system far beyond the point of total irrationality.  As Thomas Jefferson put it, "Our judges are as honest as most men and not more so."  Thomas Jefferson, Letter (to William C. Jarvis), 1820. Acknowledging that they indulge their personal interests from time to time should not be difficult for any rational man.

                          •  please take this elsewhere n/t (0+ / 0-)

                            do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

                            by teacherken on Fri Nov 28, 2008 at 06:42:35 AM PST

                            [ Parent ]

                          •  God forbid that we should ever actually talk (0+ / 0-)

                            about the very issues you pontificate upon.  Surely, such a thing is not permissible ... right?

                            If it is important to restore accountability to the government -- as you yourself say in your missive -- why should our judiciary be immune?

      •  There are always and will always be (3+ / 0-)
        Recommended by:
        teacherken, Jakob, WereBear

        those who see an opportunity for improper action to profit themselves who take it.  It is the nature of man.

        Many of my Republican aquaintances have told me that I am a dreamer, a pie in the sky, unrealistic liberal who sees the glass as half full, regardless of whether it is water or blood.

        My response is to tell them to read the Declaration of Independence and the Constitution.  If you want to see the true dreamers, the true believers in pie in the sky, that is where you will find them.

        This whole experiment is pie in the sky.  Man's dream of freedom always has been, because too many men's nature is to take advantage for personal gain, to take an opportunity to make a buck at his neighbors expense, to do something to advance himself against others if he thinks he can get away with it.

        This whole country is pie in the sky.  But, that's the beauty of it.  That's the beauty because man is nothing without a challenge to drive him forward.  Man cannot exist without a goal to achieve.

        This is our challenge, every man's challenge.  This is our battle, for each person to move forward in some way towards that unreachable goal and then, to hand to our children a nation, a country more perfect than it was before.

        Those abuses will never end.  It's the fact that they will never end that challenges us to move forward and, in the process, to become more perfect ourselves.

        "Courage is not the absence of fear but, rather, the recognition that there exists that which is more important than fear." -Aubrey Redmoon

        by jlang57 on Thu Nov 27, 2008 at 12:23:02 PM PST

        [ Parent ]

    •  We have as a nation a very long history of this (0+ / 0-)

      most notably in the 20th century. We may never have dealt with the rest of the world in an open even handed way, starting with our Declaration of Independence, a rather amazingly spun hit piece on the King. It was also a marketing campaign to gain support for our independence, but based on the absolute truth it was not. When you start a country on the premise the end justifies the means, we shouldn't be surprised that philosophy has been a reoccurring theme the last 232 years.

      •  I dispute your characterization of the (0+ / 0-)

        declaration of independence. It is an eloquent document that both identifies the founders' reasons for revolt, and universalizes their belief in the rights of humanity.

        The core belief, that taxation without representation is tyranny, was clarified with the correct assertion that rights are not permitted by governments, but endowed at birth on all humans; that government must be limited and must respect the endowed rights of all humans; and that a revolt was extremely serious business and permissable only after all other efforts at limiting the government had failed.

        The END being sought was self-determination and a government that would respect the rights of all. The means, unfortunately, became revolt when George III's government refused to respect the rights of the colonists.

        There are plenty of governments in the world that don't even pretend to believe in human rights. And there are damn few that even try. That we even aspire to a better government is something of an achievement that, even with all its imperfections, makes our experiment in self-government signifigant.

        •  It is a wonderful document but it did exagerate (0+ / 0-)

          the circumstances and some of the crimes. This is not to say at it's core it didn't put forth some mighty high ideals, but they also knew their audience and how to gain support. We discussed this at length in HS, I should see if I can find anything on the tubes to illustrate what I am talking about.

          •  I studied this at length in College and since (1+ / 0-)
            Recommended by:
            snackdoodle

            Many of the modern interpretations of the American history are distorted by revisionist thinking guided either by a: Marxist hostility toward democratic government or b: Free market fundamentalism that seeks to monetize anything and everything. Many of the high school history teachers I've met have tilted toward one or the other, and eschewed more evenhanded interpretations of our founding documents.

            Read Richard Hofstadter for a clear, 20th century analysis of American history.

            •  It was discussed within the context of NOT (0+ / 0-)

              being able to gain independence without support from other countries. How that idea was so eleoquently sold to the rest of the world. It had nothing to do with any "isms" or free market, it had only to do with selling ideas and how clever our founding fathers really were.

              •  To interpret the founders as "selling" an (0+ / 0-)

                idea with "clever" marketing is clearly packed full of "ism". It infers a level of hypocrisy and dishonor that the historical record does not support, and reads back into history our modern obsession with monetizing and marketing everything and everyone.

                It is clear that the founders consciously exploited French rivalry with Great Britain. Before the 21st century, that was known as statesmenship. It is only historical revisionism that breeds such cynical analyses and denigrates the assertion of ideals as marketing.

                It is also clear from the subsequent French Revolution that the founders were building on ideas already extant in the 18th century. The American Revolution was a product of the intellectual era in which it occurred, ie., the Englightenment. It is also clear that the founders built upon the ideas and intellectual capital of British history and legal tradition.

                The modern obsession with monetization does not need to be stated explicitly; it is implicit in your interpretation that the declaration "justified the means by the ends," and your misunderstanding that the end was something less than the preservation of freedom against tyrannical government.

                Could the Revolution have prevailed without French intervention? Probably not, but the break with Britain would eventually have occurred anyway. It is hard to imagined that the treatement of the colonies as a hostile nation to be occurpied by British troops would have sat well with even the most ardent royalists after a time.

                IOW, the French alliance was purposeful and served the interests of both parties quite well. King Louis simply could not anticipate the blowback that Enlightenment ideals would create as he bankrupted his empire.

                I suggest you need to go a bit further than High School markting masquerading as Civics, and really study American History, before pronouncing judgements on the founders and their documents that are unmerited by the facts.

                There is nothing in the writings of any founders allegations of cynicism you have levelled.

        •  The core belief (0+ / 0-)

          was a desire not to get stuck paying for the French and Indian War.

          Parliament came up with a number of taxes, but the colonists objected.

          The British decided just to tax tea to establish taxation rights.

          The tea was dumped into Boston harbor to prevent a precedent from being established.

          •  And Parliament refused the colonies (0+ / 0-)

            representation on the question.

            I've always felt that was the real key to the issue. The colonies had enjoyed fairly democratic self-government for a long time, and having parliament impose taxes that they had no voice in was the crux of the crisis.

            From England's point of view, the colonists should pay for the war, since the king was defending the colonies. But the colonists had become rather brash and independent thinkers by then.

            As is often the case, the one grievance became the focal point of many, and Parliament's inflexibility on the representation question angered even more colonists. It was at that point that colonial leaders, born and bred in enlightenment thinking, felt they had to justify their cause by enunciating the democratic ideals they were practicing but had not, before that, spelled out to any great degree. IOW, the tax became the occasion of organizing and stating their thinking on the entire question of government.

            Of course, in the instance, you are quite right. But, as I said above, ultimately the break would have come. The colonists were growing rather tired of paying high prices for English goods while their commodity crops were sold for a pence. Ultimately, colonial wealth would have sufficiently exceeded the mother country's that the break would become fact.

  •  "If the President does it, its legal" (5+ / 0-)

    Watched little cable yesterday and was mostly ill, but I think it was John Dean who discussed how beautiful Yoo had crossed his t's and dotted his i's to ensure that the Shrubbers will avoid any 'responsibility' for the 'acts' of this administration.

    If you have more concrete info please add to this comment.

    That is the reason that Obama will push to just go forward.

    The need to document in the National Archives should be a priority. And please no sealing of the report for 50 years.

    *******

    OBL's driver has been sentences to minor charges and given credit for time served. He has been transferred to Yemen to finish his sentence which will last until the end of the year.

    "...fighting the wildfires of my life with squirt guns."

    by deMemedeMedia on Thu Nov 27, 2008 at 04:07:14 AM PST

  •  Law (1+ / 0-)
    Recommended by:
    teacherken

    Hell, in 1965 that was part of our Marine Corps indoctrination, that we were NOT to follow an illegal order.  

     In the Army, it's covered under FM 27-10 "Laws of Landwarfare", It clearly defines what an illegal order is. It's not civilian law, or International law, it's Military law.  Prisoners ,taken in arms, don't have a miranda right, nor do they have right of council,nor do they get constitutional protections BUT they do have a right NOT to have their head sawed off for a home movie.

      The Geneva convention is clear on most things, if you are part of a military organization, with a chain of command and some sort of Identification (ie uniform, rank insignia), you are "Protected" under the Geneva convention. If you don't have these things and unless your resistance is "spontanous", you are not protected under the Geneva convention.

      This is a gray area of the Convention, technicly those who fall into this catagory are breaking International Law (the Convention), and how do deal with said Law Breakers , yet another gray area of the Convention. Do you shot them, Do you let them go or do you send them to GITMO until you can make sense of it all?

      The Atrocities you list are far larger in scope and much clearer in purpose than any "atrocity" attributed to our sitting Government. You can't compare them, not accuratley.  Murdering 6 million non-combatants, with the clear intention of murdering them, Allowing troops under your comand to ramapage , killing 10,000 non-combatants are in no way, shape or  form in the same league as what has happened at GITMO.

      If the Constitution protects non-citizens ,anywhere in the world, does that not mean it has AUTHORITY over non-citizens, anywhere in the world?  Can our Goverment demand that all countries honour our constitution?

      The world is full of two edge swords

     

     

    •  The law of war prohibits torture (0+ / 0-)

      and the use of depleted uranium weapons is arguably the use of forbidden nuclear and/or chemical weapons.

      But hey, we're America.  We only sign international treaties -- we don't respect or enforce them.

      •  This expanded brings up the question of (0+ / 0-)

        OBL or his inner circle and our 'right' to pursue their capture/death in Pakistan. Obama plans to continue this policy. For comparison the 'mastermind' of the USS Cole attack was imprisoned in Yemen and escaped. We did not pursue in that case.  

        Pakistan has publicly stated that they don't want us to cross their border. Going forward Karzai now wants a firm withdrawal plan.

        Iraq's SOFA if signed will leave the US Military powerless without specific permission of Iraq to pursue or make arrests in the future. If unsigned and the UN mandate is not renewed, what is our status then?

        "...fighting the wildfires of my life with squirt guns."

        by deMemedeMedia on Thu Nov 27, 2008 at 04:54:00 AM PST

        [ Parent ]

      •  The EU Court of Justice just found it could annul (0+ / 0-)

        international law that is in conflict w/ EU constitutional principles:

        All these cases have in common that, although the Court takes great care to respect the obligations that are incumbent on the Community by virtue of international law, it seeks, first and foremost, to preserve the constitutional framework created by the Treaty.

        The primacy of sovereignty over international law isn't just an American claim.

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Thu Nov 27, 2008 at 05:33:03 AM PST

        [ Parent ]

    •  A wise observation, but here is one to (0+ / 0-)

      think on: the Declaration of Independence, which is foundational to understanding the Constitution, universalizes the American belief in limited government, endowed rights and the responsiblity of the government to respect and defend those rights.

      Some (me among them) think this is the charter under which the US should act as the champion of human rights in the world. A special obligation, if you will.

    •  No, the Constitution has authority over (2+ / 0-)
      Recommended by:
      UntimelyRippd, theal8r

      OUR agents of government.  When the agents of government are properly regulated (limited) in the performances of their offices, then the rights of individuals, wherever and whenever they come in contact with American agents of government, will be respected.  That's an ancillary benefit.  The purpose of the Constitution is not to protect human rights or civil rights.  It's purpose is to restrain the agents of government.

      Not understanding this is a central error in the conservative community.

      How do you tell a predator from a protector? The predator will eat you sooner rather than later.

      by hannah on Thu Nov 27, 2008 at 08:38:51 AM PST

      [ Parent ]

  •  I think the most thorough investigations (3+ / 0-)
    Recommended by:
    teacherken, deMemedeMedia, snaglepuss

    may be done by journalists, and for profit, for the purposes of writing books. That's how the truth will come out. Not through the government.  There is no appetite for this in our government, unfortunately, even though many Democrats in government feel it would be the right thing to do. There is just too much potential for political blowback and accusations of complicity, except for exposing the major players. Investigations would stand a good chance of leading to a paralyzing degree of political acrimony, which the Obama Administration has said it does not want or need right now.

    There is, however, a lot of money to be made dissecting the evils of the last eight years.  I suspect we're in for a truckload of books, probably being written right now, examining how this Horror came about and its manifestations.  

    Who was Bush_Horror2004, anyway?

    by Dartagnan on Thu Nov 27, 2008 at 04:43:44 AM PST

    •  perhaps, but they need access to documents (4+ / 0-)
      Recommended by:
      burrow owl, Dartagnan, Alec82, snaglepuss

      which might otherwise remain sealed.  An investigation approved by the administration, criminal or otherwise, would have access to everything.  That could make a difference.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 04:49:08 AM PST

      [ Parent ]

      •  The thing about documents (2+ / 0-)
        Recommended by:
        burrow owl, Othniel

        and probably one of the biggest fears among the Administration, and the rationale for a lot of their obsessive secrecy, is that once a document is released it is transmittable everywhere, instantly, and available permanently to anyone on the web.  That's potentially a lot of names forever tainted, forever visible, and a lot of families, forever implicated.  Many of the enablers of these abominable policies were probably ordinary military folks simply taking orders from the chain of command. Their names are going to be spread far and wide, too.

        Maybe the concern is leaks that would be engendered by such a far-reaching investigation.

        Who was Bush_Horror2004, anyway?

        by Dartagnan on Thu Nov 27, 2008 at 04:56:23 AM PST

        [ Parent ]

      •  re: rule of law & documentary evidence: (2+ / 0-)
        Recommended by:
        Dartagnan, Alec82

        in '00, I thought Bush might be a decent president.  I remember distinctly that one of his first actions in office was to grant himself the authority to prevent the scheduled release of prior Presidents' records.  Soon thereafter, he instituted the backwards-world FOIA rules, where an agency needed a good reason to release a document rather than t'other way 'round per the law (ie, the law tells us that an agency should release a document unless they have good reason not to).

        From that moment, I figured there was good chance that my optimistic assessment was wrong.

        At any rate, Obama could immediately signal his allegiance to law and gain the trust of those that value historical record and institutional memory be rescinding those Bush orders.  

        We are building a team that is continuously being built. - Sarah Palin

        by burrow owl on Thu Nov 27, 2008 at 04:56:34 AM PST

        [ Parent ]

      •  Executive Privilege and the 4th Branch of Gov. (1+ / 0-)
        Recommended by:
        JG in MD

        plus the white-wash results of previous commissions almost makes any such effort so much whistling in the wind.

        As time passes the interest of the public is dulled. Last night KO had a list of those few that were actually convicted in the S&L Scandal that Shrub had pardoned unnoticed.

        "...fighting the wildfires of my life with squirt guns."

        by deMemedeMedia on Thu Nov 27, 2008 at 05:12:28 AM PST

        [ Parent ]

  •  Remember Thomas More (7+ / 0-)

    Cherishing the law was central to the depiction of Thomas More in A man for all seasons.  His words (and the move scene I remember) state the issues so forcefully and well.

    "What would you do? Cut a great road through the law to get after the Devil? ... And when the law was down, and the Devil turned round on you - where would you hide, Roper, the laws all being flat? This country is planted thick with laws from coast to coast, Man's laws, not God's, and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I give the Devil benefit of law, for my own safety's sake!"

  •  There was a point a couple of years ago when (10+ / 0-)

    I realized this administration believed that following the law was a sign of weakness, that the law was for sissies, that real men, real leaders ignore the law when the bad guys are attacking.  

    Bush would always describe his most important duty as president to be "protecting the American people" when in fact he swore an oath to his God to protect the Constitution, which protects us all.

    Just about every misdeed of this administration stems from their desire to change the law, ignore the law, bend the law, redefine the law...cheney the law.

    Tipped and recommended for putting it into words that I never could.

    "I believe that ignorance is the root of all evil. And that no one knows the truth." - Molly Ivins

    by littlesky on Thu Nov 27, 2008 at 04:47:11 AM PST

  •  Its Clinton's fault (2+ / 0-)
    Recommended by:
    Othniel, Haplogroup V

    These last 8 yrs have been a never ending torture session for rational people that appreciate the history of our country. Remember when the republicans were outraged about Clinton's "blatant disregard" of the rule of law?  I can easily imagine one Ken Starr defending Bush at the Haig.

  •  Hobbes was wrong. (5+ / 0-)

    However, it is the belief that Hobbes was right--that man in his natural state is a brute and requires government to make him good--which is precisely what justifies the giving of orders by superior rulers who know better and the insistence that they be complied with.

    Moreover, the "laws not men" dichotomy is misleading in that it fails to address by whom those laws are made.  According to the minions of Bush/Cheney, the laws are formulated by the ruler.  And the legislative bodies, rather than being representatives of the people whose will is determinative, are merely scribes tasked with writing down the directives of the ruler.

    Whether the Bush/Cheney-authorized actions (they did nothing themselves, as far as we know) contravening their mandated duties according to the Constitution (to hold human rights inviolate) were illegal is a valid question. There is no question that they were unlawful, but that's different from illegal.

    Though it may seem like quibbling, I think that the difference between unlawful and illegal is significant.  It takes into account that the agents of government are presumably competent to carry out their duties and only those duties that have been specified.  Any actions that have not been specified--for which there are no legislative directives--are ipso facto unlawful, but not necessarily illegal and presumably not crimes, in the sense of being behavior that's specifically forbidden (like murder or theft).

    When we consider the behavior of agents of government we are somewhat in the same position as when we consider the behavior of a qualified surgeon.  We presume that their actions are well-intentioned and aim to help the patient/citizen/resident.  Of course, we have learned from experience that this presumption of good intent is sometimes not merited by some surgeons.  And now we have learned that the presumption has not been merited by some of our agents of government either--mainly because they over-stepped their authority and caused injury under color of law.  But, do we know how to respond to that?

    I do want to make the point here that I don't agree that the exposure of abuse by the Church investigation deterred behavior.  Not only do we not know how long or how much surreptitious and subversive behavior has gone un-noticed and un-reported in the intervening years, experience has shown that most people are not deterred by the bad experience of others.  That's probably because most people are either inattentive, willful or inclined to think that they can "do better"--i.e. get away with what others were caught for.

    Finally, we may think that we are witnessing a fall from grace, that some long-standing tradition has been over-turned.  In fact, the Bush/Cheney minions have been aiming for a restoration of sovereign rule, such as was enjoyed by public officials until the legislative, judicial and popular reforms that were initiated in the latter half of the last century.  First there was tort reform in the passage of the Federal Tort Claims Act and similar state statutes.  Then came the civil and consumer rights laws, followed by the guarantee of access to public information.  None of these events were pleasing to the ears of minor potentates long accustomed to doling out favors from the public treasury (our natural resources) to their advocates and supporters.

    So, I would conclude that we have actually come a long way towards popular government, with laws based on the consent of the governed rather than imposed by a ruler, whose incompetence (Bush, Reagan, Ford most recently) merely served to disguise what was really going on--that figure-head monarchs were fronting for the bandit/barons, as has happened from time immemorial.  Let's not forget that the North American colonies were "grants" from the Kings of Britain, France and Spain, who had claimed the territory for themselves and offered their "protection."

    How do you tell a predator from a protector? The predator will eat you sooner rather than later.

    by hannah on Thu Nov 27, 2008 at 04:56:35 AM PST

    •  Locke acknowledged there was no state of nature (0+ / 0-)

      that it was an interesting and useful construct, but that humans inevitably organized themselves in some fashion.

      I do not believe that Hobbes was completely wrong.  Remember, he wrote in the context of living through the English Civil War, and in a time of great religious ferment in England.

      Absent SOME organizational structure, what he describes is quite probable.  It is a theme that has been explored in literary terms, for example in Willima Golding's <i?Lord of the Flies</em> although the school-aged kids are not truly in a state of nature, since (a) they have some knowledge/experience of civil society and (b) they attempt to organize themselves.

      But there is clearly in most human beings, at least in those societies to some degree defined by a history of any of three Abrahamic religious traditions, some element of vindictiveness, of wantig to get even, that can quickly, without restrictions, cross into overt cruelty and worse.

      I do not disagree with most of your comment.  And I think Hobbes might well argue that it was natural for men to come together in some format - after all, the work from which I quote is in its original full title Leviathan, or, The matter, forme & power of a common-wealth ecclesiasticall and civill.  Absent some accepted structure, I think his analysis of the life of man in the state of nature is more accurate than we might want to admit.

      And I do not accept those who idealize noble savages -  closer examination of the practices of so-called groups often find stronger similarities as to cruelty and power than we might want to admit.

      Peace.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 05:13:14 AM PST

      [ Parent ]

      •  Yes, although humans are, perforce, social (2+ / 0-)
        Recommended by:
        teacherken, UntimelyRippd

        creatures because, ab initio, they cannot survive on their own, it's possible for the infant to be deceived and believe that whatever nurture s/he acquired was prompted by her/his demand.  Becoming aware of this give and take relationship takes some maturation and not a little re-enforcement by care-givers to demonstrate that their experience not only lets them "know better," but entitles them to some deference, as well as to set conditions for continued nurture.

        When, for whatever reason, this "lesson" of deference/obligation is not learned, the development of the person seems to get stuck at the demand stage and the "give and take" relationships don't develop.

        We say "give and take," but in actual fact the sequence is "take and give."  Those that get stuck at "take" are, in effect, predators.  Perhaps that's the default mode for whenever trade and exchange break down.

        It's possible that both gross negligence and gross-indulgence have a similar result.  The individual ends up both self-centered and insecure.
        I suspect we don't automatically consider self-centered persons to be insecure.  

        How do you tell a predator from a protector? The predator will eat you sooner rather than later.

        by hannah on Thu Nov 27, 2008 at 07:34:43 AM PST

        [ Parent ]

      •  Hobbes is an insufferable authoritarian (0+ / 0-)

        If we want to examine the "state of nature" we can study primate behaviour and anthropology. Hobbs creates false dichotomies. There are many options for human organization depending on environmental constraints.

        Somalia has failed large scale government. In Somalia and other places with failed central government families and extended families (tribes) become the center of social organization.

        "It's the planet, stupid."

        by FishOutofWater on Thu Nov 27, 2008 at 02:09:27 PM PST

        [ Parent ]

  •  The totalitarian nature of BushCo (0+ / 0-)

    is exactly why thorough investigations of every dept and not just foreign affairs related offices have to be conducted and made public, so that everyone can see what these assholes did.  I would prefer indictments, trials and convictions, but if Obama’s not feeling up to that a healthy dose of public ridicule is certainly in order.

    Liberté, Egalité, Fraternité

    by snaglepuss on Thu Nov 27, 2008 at 05:01:48 AM PST

  •  Thank you for this diary (3+ / 0-)
    Recommended by:
    teacherken, Lovo, imchange

    Democracy doesn't guard itself.  Just as criminals don't respond to a slap on the wrist and being implored never to 'be bad again,' there must be consequences for an administration that ran amok and broke both treaties and Constitutional laws.  There must be prosecution for crimes against both humanity and our democracy.  

    We can't have one law for the people - the citizens of this nation - and another for rich (questionably) elected officials who start wars and shred the Constitution...

    Peace and justice are two sides of the same coin. - Dwight D. Eisenhower

    by feduphoosier on Thu Nov 27, 2008 at 05:14:00 AM PST

  •  Not to mention what some interpret as torture (1+ / 0-)
    Recommended by:
    JG in MD

    It occasionally crosses my  mind that I wish somebody would circumnavigate the legal framework and engage in a robust interpretation of the concept of civil disobedience by engaging in an activity that some critics might interpret as punching these fascist bastards in the mouth.

  •  Powerful stuff... (3+ / 0-)
    Recommended by:
    teacherken, imchange, kathleen518

    I hope that we as a country will not heed calls to "move on" and "let bygones be bygones".

    These crimes must be investigated and prosecuted.

    If we as a country do not do this, our reputation forever is shattered.

    I will make a bargain with the Republicans. If they will stop telling lies about Democrats, we will stop telling the truth about them. -- Adlai Stevenson

    by DrWolfy on Thu Nov 27, 2008 at 05:25:14 AM PST

  •  Iraqi parliament approves U.S. security pact (0+ / 0-)
  •  We've Never Done It Before (0+ / 0-)

    And we've had many indications we're not going to start now.

    We are called to speak for the weak, for the voiceless, for victims of our nation and for those it calls enemy.... --ML King "Beyond Vietnam"

    by Gooserock on Thu Nov 27, 2008 at 05:31:59 AM PST

  •  Item # 1 should be (5+ / 0-)

    to rid ourselves of the Germanic/Orwellian sounding names for offices and agencies Bush seemed to have a penchant for.

    No more Department of Homeland Security lets simply call it the Department Of National Security.

    Small steps like these, as well as closing Gitmo, will be the signal that we are pulling back from the edge of the fascist state that the Bush regime tried to put in place.

    If these traitors are not punished for their crimes the next bunch of fascists will learn from their mistakes and maybe succeed next time!

  •  We are a nation with a two-tiered set of laws (5+ / 0-)

    One for the people:

    Florida Boy Arrested For Gas Attack

    A student at a Florida school has been arrested after authorities said he was "passing gas" and turning off his classmates' computers. According to a report released Friday by the Martin County Sheriff's Office, the 13-year-old boy "continually disrupted his classroom environment" by intentionally breaking wind.

    ...and one for the "ruling class."

    The Prez likes to fart
    By CHB Staff
    Aug 22, 2006, 21:24

    Paul Bedard of U.S. News & World Report raised a few eyebrows this week when he went public about President George W. Bush's fondness for...well...farts.

    Yep. The President farts - a lot. He farts in front of other White House staffers. He likes to joke about farts, cusses constantly and laughs with glee at the misfortune of others.

    -7.25 -6.77 "A politician thinks of the next election; a statesman, of the next generation." - Eubie

    by Lovo on Thu Nov 27, 2008 at 05:38:55 AM PST

  •  Quis custodiet ipsos custodes? (2+ / 0-)
    Recommended by:
    teacherken, WereBear

    How that question is answered is fundamental to determining what kind of society we live in. The Rule of Law is only as trustworthy as the humans who govern. Obvious things to say, but not simple to carry out in practice.

    As one of the themes threaded through a really good story, the rule of law, justice, and crossing the line gets a really good workout in Terry Pratchett's book The Night Watch and in Thud!

    Policeman Sam Vimes is at the heart of both stories, and as in every story where Vimes takes a leading role, matters of ethics, justice, and the law get a good work out. The trajectory of Vimes career through Pratchett's novels has made him a legend in the fictional world he inhabits.

      The Night Watch is a thought provoking antidote to the culture of fear we've been living in for the last years, disguised as a fantasy/police procedural. It takes a good hard look at the rule of law versus the rule of men; who pays the price, what it costs, and what it really means.

    ....Pratchett then starts the process of putting a seasoned cop with years of experience back into a pair of thin-soled boots and on the beat. Here we meet all the unfamiliar faces and get familiar with them as they once were. Pratchett has set up a very simple but clever plot wherein the veteran gets to relive his rookie years and possibly put to right old wrongs.

    But once Vimes gets those boots on, Pratchett finds a groove and goes on to write arguably the best police procedural to be found in fantasy literature. The invented world melts away and the reader is plunged into the pleasurable company of the Night Watch. Inept, untrained but not unwilling to learn, they follow Vimes' natural lead. His commons sense solutions to the problems of potential mob violence, corrupt politicians, military forces on the loose in a civic setting and secret police who are a bit too fond of violence are blissfully fun to read. Pratchett balances the salivating revenge gland with the twitchy comeuppance muscle. With the advantage of hindsight, nearly every hit is a home run, yet there's never a second when victory seems certain. The only thing greater than the tension is the pleasure of reading about these wonderful, enjoyable characters.

      A way of approaching the Rule of Law that reduces it to immediate, human terms is to ask "What would Sam Vimes do - and what would he NOT do?" Given the shortage of role models in circles of authority in the last 8 years (although there have been some), a fictional character is not the worst place to start looking at these questions.

    "No special skill, no standard attitude, no technology, and no organization - no matter how valuable - can safely replace thought itself."

    by xaxnar on Thu Nov 27, 2008 at 06:54:02 AM PST

  •  We need to fight (1+ / 0-)
    Recommended by:
    teacherken

    We need to pressure the new government to fully investigate and prosecute wherever warranted, and no matter at what level. There will be a huge temptation with all the current crises to "just move on".  However, our government of laws has been severely undermined, using excuses that didn't fly at Nuremberg.  If this is not done, then we will have ceded unlimited power to the office of the President, and for evermore will have to depend on the good intentions of whoever holds that office. This isn't optional. We absolutely must do this. Even from the pragmatic standpoint, I think it will help defeat terrorist tactics, when people of the world see that the inhuman attacks of 9/11 did not ultimately destroy our way of life and most cherished beliefs from within.

    "The only thing we have to fear - is fear itself." - Franklin Delano Roosevelt

    by orrg1 on Thu Nov 27, 2008 at 06:55:38 AM PST

  •  Mukasey refuted all this in his "slump" speech (0+ / 0-)

    Some writers have so confounded society with government, as to leave little or no distinction between them - T Paine

    by breezeview on Thu Nov 27, 2008 at 07:17:16 AM PST

    •  I have - (0+ / 0-)

      just because he says something does not make it so.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 07:18:03 AM PST

      [ Parent ]

    •  This is an interesting comment: (0+ / 0-)

      On September 11th, 2001, nineteen terrorists inflicted the most catastrophic attack on our homeland since Pearl Harbor.

      What the hell is "homeland" supposed to mean, if it is going to include territories explicitly not represented by the governmental structures of the Constitution?

      The very term "homeland" presupposes an empire -- lands somehow tributary to our own, but not members in full standing of the established polity, lands whose government we explicitly deny to any other nation, for whose government we take explicit responsibility, lands over whose resources and commerce we claim ultimate right and authority, but to whose inhabitants we deny the full benefits of citizenship.

      It is both nauseating and encouraging to see America recognizing via its political language that we are in fact an Empire; but regardless of the state of one's stomach or mind, Hawaii was not part of the homeland in 1941.

      I am further of the opinion that the President must be impeached and removed from office!

      by UntimelyRippd on Thu Nov 27, 2008 at 11:54:35 AM PST

      [ Parent ]

  •  From "A Man For All Seasons" by Robert Bolt (1+ / 0-)
    Recommended by:
    teacherken

    Now more trenchant than ever.

    http://en.wikiquote.org/...

    Alice: Arrest him!

    More: Why, what has he done?

    Margaret:: He's bad!

    More: There is no law against that.

    Roper: There is! God's law!

    More: Then God can arrest him.

    Roper: Sophistication upon sophistication.

    More: No, sheer simplicity. The law, Roper, the law. I know what's legal, not what's right. And I'll stick to what's legal.

    Roper: Then you set man's law above God's!

    More: No, far below; but let me draw your attention to a fact -- I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, oh, there I'm a forester.I doubt if there's a man alive who could follow me there, thank God.

    Alice: While you talk, he's gone!

    More: And go he should, if he was the Devil himself, until he broke the law!

    Roper: So now you'd give the Devil benefit of law!

    More: Yes. What would you do? Cut a great road through the law to get after the Devil?

    Roper: I'd cut down every law in England to do that!

    More: Oh? And when the last law was down, and the Devil turned round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast -- man's laws, not God's -- and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.

    "Single payer. Period."

  •  American Exceptionalism (2+ / 0-)
    Recommended by:
    lotlizard, kathleen518

    is the disease my friend, not the thing we should be trying to cleanse and refurbish.

    American Exceptionalism taken to its logical extreme is what gave us Gitmo.  After all, we know best, and all those brown people aren't real, important people after all, I mean, its not like they are Americans. (and if they are, its not like they are real, patriotic WHITE Americans).  

    Who cares what we have to do to the Brown People.  You know, the Sand Niggers, Slants, Beaners, Coons, Injuns and all the rest. (intentionally offensive, its the way the people who brought us American Exceptionalism, whether in the guise of Manifest Destiny, or White Man's Burden, or that very city on a Hill speech think.)

    Screw American Exceptionalism.  What in our history gives us legitimate claim to being better than other nations?

    schadenfreude ... it's whats for dinner.

    by TheGryphon on Thu Nov 27, 2008 at 07:30:27 AM PST

  •  fascism (1+ / 0-)
    Recommended by:
    3goldens

    When you consider all the MILLIONS of people who died fighting fascism over the last century (including relatives of damn near everyone reading this post if it were researched)-it's sickening that we have to deal with it in our own government!  Yet I read on the right people saying that accusations of the administration "shredding the constitution" are baseless smears???

  •  Superbly written. Thank you. (1+ / 0-)
    Recommended by:
    UTvoter
    •  you are welcome, although I would not (1+ / 0-)
      Recommended by:
      UTvoter

      praise it quite so highly.  Like many of my diaries, it was written in one sitting, having read the Cohen and processed it internally, and then as I wrote, having at best a general idea where I was going, the pieces began to come together.  I edited a bit as I wrote, and after I posted went back and caught more than a few typoes.  

      Again, thanks for the kind words you have offered about my writing.

      Peace.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 11:00:46 AM PST

      [ Parent ]

  •  the biggest Pelosi disappointment to me was (2+ / 0-)
    Recommended by:
    lisastar, RadicalGardener

    taking impeachment off the table. How could that be. Impeachment is imperative for high crimes and misdemeanors. end of story.

    I passed the white house last week and it was nice to know that i know longer felt the need to storm the gates with pitchforks and torches, but i've just hung them up in my garage - i won't sell them on ebay just yet.

    "But above all, I will never forget who this victory truly belongs to - it belongs to you." Barack Obama

    by UTvoter on Thu Nov 27, 2008 at 08:26:45 AM PST

  •  end proahibition (2+ / 0-)
    Recommended by:
    Tonal Crow, shmuelman

    may be the only thing that could benefit from the "laws" that have been forged by shrub and darth cheney.
    Obama could just say on day one. The act of war against the citizens of America has ended.
    Ending Prohibition has failed as a policy.
    Harm Reduction is the cure.
    There are models out there in the world that we{US}could use.
    Al Giordano for Drug 'Czar'.
    peace

  •  i give thanks (2+ / 0-)
    Recommended by:
    teacherken, 3goldens

    for teacherken.

  •  What a huge error this is! (2+ / 0-)
    Recommended by:
    Bouldergeist, athena47

    "Give thanks on this day for the law. It’s what stands between the shining city on a hill and the dark side."

    Nations enshrine all their darkest moments in legal justifications too.  The actions of nation states are based in law.  Slavery was within the law.  Conquest of colonies was within the law.  Seizing the property of witches and burning them at the stake was within the law.

    It is not the law that stands between "the light and the dark" sides of human conduct.  War is not outlawed!  The law expresses both sides, and we are fools to think that the law is somehow right or "light" as opposed to darkness.  The law is a useful vehicle to justify and condone the darkest of actions, like illegal detainment, torture, sexual abuse, and covert and forced psychoactive drugging.

    After you have experienced all this by those acting under color of law, the distinction between ideals about "the law" and legal actions becomes much clearer.

    Be thankful for those who know when the law is wrong and do something about change.

  •  the law: (0+ / 0-)

    as it turns out, our high law currently mandates a national convention of state delegates to convene.

    http://wiki.lessig.org/...

    we had agreed to disagree teacherken, about this. but with legal arguments and the first ever database of state applications on record, it should alert you to the error in thought of the Anti-Conventionists.

    i hope you begin to teach how the constitutional principle of convoking a convention is not something one gets to subjectively decide whether a good idea or not. it's mandated by the Constitution.

    Billion dollar presidential campaigns are for losers.

    by john de herrera on Thu Nov 27, 2008 at 09:52:53 AM PST

    •  in mandates no such thing (0+ / 0-)

      it allows it, no more than that

      And that you find errors or flaws in their thinking does not make it so.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 11:05:08 AM PST

      [ Parent ]

      •  ... (0+ / 0-)

        the constitution mandates the call from the congress once applications go on record. one congress after the next ignores the applications.

        it just hasn't happened because certain people don't understand the thing they profess to revere. all applications are on record, and neither you nor any branch of government gets to question their validity based on this or that, because our high law says their validity is based solely on having been cast. they're all on record, the convention call is mandated.

        Billion dollar presidential campaigns are for losers.

        by john de herrera on Thu Nov 27, 2008 at 02:54:14 PM PST

        [ Parent ]

        •  and as of now please tell me how many calls? (0+ / 0-)

          absent the calls, there is no mandate.

          Case closed.

          Please take this elsewhere.

          do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

          by teacherken on Thu Nov 27, 2008 at 03:01:37 PM PST

          [ Parent ]

          •  ... (0+ / 0-)

            the call has not occurred because of corruption.

            case is closed for the corrupt, but the truth it comes.

            Billion dollar presidential campaigns are for losers.

            by john de herrera on Thu Nov 27, 2008 at 09:31:56 PM PST

            [ Parent ]

            •  you still do not make your case (0+ / 0-)

              there is no call

              you claim it is because of corruption because you do not like the absence of a call

              you offer no proof, merely an assertion

              thereby demonstrating the lack of an argument

              now please, in the future, stop hijacking threads for your own purposes.  

              do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

              by teacherken on Fri Nov 28, 2008 at 04:26:21 AM PST

              [ Parent ]

              •  from one educator to another: (0+ / 0-)

                having researched this subject extensively, i am failing to convey the principle of the matter. whether you want to reply to the following or not is up to you. i'm offering it for two reasons: this is an open forum, and when a diary is posted which has the phrase "rule of law" in it, i feel it is my right and duty to speak truths about the convention clause of Article V, and how it's currently suffering subordination.

                i don't get to every diary which has that phrase i'm sure, but i caught this one, and i especially liked to see a photo of our high law in the comments. that was the second reason.

                thank you for inspiring me to re-write some old work teacherken. i hope you take time to consider this message. not only the constitutional principle, but the legal principle, namely, a numeric count, that up until now, for many reasons, has gone unrecognized.

                if you're sincere about returning the nation to its founding principles, and the rule of law, you need to change your attitude about the convention clause. it's irrational, illogical, and too, illegal.

                   America was originally thirteen colonies. The British had us under their thumb, we organized, and with help, threw off a long train of abuses to secure freedom.
                   For a short time the Articles of Confederation kept us and our new freedoms intact. Then citizens thought revisions were needed, and Alexander Hamilton led a group that went state to state with the idea it was time to call a convention. Most everyone agreed, and the delegates convened in Philadelphia.
                   After the first few hours they realized they were split in two, between Federalists and Anti-Federalists. Federalists wanted a centralized government. Anti-Federalists were like, "What?! We just got free from the British! Centralized government?! It’s just a matter of time before money corrupts! And then what?! Another war for independence?!" Some representatives who had shown up turned heel right then and there, hollering at the top of their lungs evil was afoot.
                   After it was written, the Federalists had to go sell this new constitution to the thirteen states. Nothing had been ratified, and according to the Articles, you needed a certain percent to agree before it was adopted.
                   The final rebuttal to Anti-Federalists, who thought it was a mistake to place all that power into three branches, was Federalist 85. Hamilton wrote it himself. He said, Look, if Congress becomes so corrupt it's no longer expressing the will of the people--if corruption ever becomes institutionalized--the states can convene and purge it. The clause, upon satisfaction of numeric count, is peremptory, done without debate, and no Congress, Executive, Court, or private citizen can say Boo about it. The convention clause is a legal principle outside the grasp of individuals alive at any one time. Today, that means you and I. That's the essence of the American spirit, that we consent to governance, and when things run afoul we can amend. That was the final reply to the Anti-Federalists, and why we ratified the Constitution and became the U.S.A.
                   Now fast forward to the 1960s, 70s, 80s and 90s, when talk of a convention went around. Look at editorials from those days: "No--no convention! If a convention happens the Constitution can be torn to pieces! Or maybe a runaway convention, and suddenly hundreds of amendments, and everything's a joke!"
                   It's the same argument politicians trot out every time America starts discussing whether or not it's time to call a convention. Americans have been conditioned like Pavlov's dog to fear it like it might be some kind of Pandora's Box. But what politicians fail to mention is the ratification process. They tell half the truth (and as the late great Ben Franklin mentioned, half the truth is often a great lie). The ratification process requires seventy-five percent of the country to agree before anything is amended. The Founders knew to get three-quarters of everyone is so difficult that any idea that’s even slightly questionable is toast. It has no chance of being ratified. Only the ideas that are obvious would be ratified. To fear a convention, is to fear open discussion--the very thing which must happen for any hope of survival. The Founders knew then what we know now--that governments can become corrupt, and why the legal mechanism of the convention clause was placed in our Constitution. It's King Kong sitting there to keep any monsters--corporate or otherwise--from getting between the American people and their government.
                   If Article V was supposed to be the mechanism to save the day when things got corrupt, then why are things the way they are? There's an answer. In order for there to be a convention for proposing amendments there must be applications from two-thirds of the states, and the reason we're living under a cap of disinformation called the military/industrial complex, and the reason there's no health care or an education for whoever wants it, is because there are over five hundred applications requesting a convention and Congress has never issued the call. All state applications are in the Congressional Record and Congress is ignoring them. Laches, it's known as legally--ignoring something on purpose.
                   Besides those who no longer care, whether you know it or not, we're all either Conventionists or Anti-Conventionists--you're either for a convention or you're not, and if you're against a convention you're either ignorant, in denial, or part of the problem. And because the problem is causing the levels of misery in the world that it is--so a few can benefit at the expense of the many, makes it a moral dilemma. Thoreau already said it in Civil Disobedience. If a government turns you into an agent of injustice, and taking a moral stand means ending up in jail, then sometimes the only place for a just person is jail (why Thoreau did not mention the convention clause of Article V in his book is one of the great mysteries of life). But we the living today, we don’t have to go to jail. A convention is a peaceful reformation. That's why the Constitution is so great, it provides for peaceable revolution.
                   We're trapped by whatever forces control banks and corporations, and if we need to get out from underneath that, the Article V Convention is the way to do it. This is not to say we should all be out on a corner with a banner and a bullhorn, foaming at the mouth, but we should at least know what ought to be done. Isn't that important? To be aware of what ought to be happening? If we change the way we're looking at things, the things we're looking at change!
                   Imagine this--Congress issues the call to the states with a date to convene (one year). The states hold special elections for delegates, and before long we'd start getting the human interest stories of who these convention delegates are, and what they wanted to propose. They'd fly to the Capitol and the gavel would fall, calling the convention to order. We'd get to watch the delegates propose ideas--the good, the bad, and the ugly--and in the process witness modern-day Jeffersons and Madisons emerge. They'd be on the news and late-night TV shows just like senators are today.
                   After all the ideas were proposed, the gavel would fall again, end the convention, and everyone would go home. Then we'd start getting reports about which states had approved which ideas, and as soon as any one of them reached the thirty-eight-state threshold--Boom--ratification. Think about what that process would do to the political landscape.
                   Whenever you debate an Anti-Conventionist, and they give the same invalid reasons---that the whole Constitution can be torn up--which is a lie-so they can remain in denial--or that the current applications are somehow void or expired--ask them why it’s there? Why is the provision for a convention in our Constitution in the first place? Some delegate might come up with a better idea than Senator Reid or Speaker Pelosi, an idea like taking private money out of public campaigns?
                   In fact though, because the requisite applications are on record, it's a constitutional requirement a convention is called. It’s mandated. To be Anti-Conventionist today is actually to be Anti-Constitutionalist, and that’s against the law. To advocate overthrowing our constitutional government is a federal crime. The intent of the convention clause is why the Founders left one requirement--a numeric total--as the single one. In other words to question any application for any reason whatsoever, beyond whether it’s on record, is illegal. To a fine point, that is the rule of law in its most profound sense to the American citizen.

                Billion dollar presidential campaigns are for losers.

                by john de herrera on Fri Nov 28, 2008 at 01:54:26 PM PST

                [ Parent ]

  •  The law, unfortunately,... (1+ / 0-)
    Recommended by:
    Bouldergeist

    is a whore, selling her wares to the highest bidder.

    Sometimes you're the bug; sometimes, the windshield. You'll know which if the last thing that goes through your mind is your ass.

    by George Gould on Thu Nov 27, 2008 at 10:45:04 AM PST

    •  Here's a token of my esteem for all your (8+ / 0-)

      tireless uprating of trolls.

      "Life is what happens to you while you're busy making other plans." John Lennon

      by trashablanca on Thu Nov 27, 2008 at 01:59:39 PM PST

      [ Parent ]

      •  please cool it n/t (1+ / 0-)
        Recommended by:
        lazybum

        do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

        by teacherken on Thu Nov 27, 2008 at 03:34:27 PM PST

        [ Parent ]

      •  I apologize for calling you a fascist. (0+ / 0-)

        It was uncalled for and thus I am sorry.

        I wll however continue to uprate comments that are getting troll ratings not because I agree with what the troll-rated person is saying but because, as a matter of principle, I believe that no one deserves to be pushed down the memory hole.  If you disagree with them you have two options: call them out or ignore them.  As a "Trusted User" you have the power to troll-rate someone but I don't believe you have the right to do so.

        Jefferson said it best in a letter to William Roscoe in 1820:

        "We are not afraid to follow truth wherever it may lead, nor to tolerate any error so long as reason is left free to combat it."

        Sometimes you're the bug; sometimes, the windshield. You'll know which if the last thing that goes through your mind is your ass.

        by George Gould on Thu Nov 27, 2008 at 04:13:45 PM PST

        [ Parent ]

  •  Are we not men? (1+ / 0-)
    Recommended by:
    qi motuoche

    We are Devo.

    "We will now proceed to construct the socialist order."

    by 7November on Thu Nov 27, 2008 at 10:51:00 AM PST

  •  I weary of being told to get over it (4+ / 0-)

    Whether we are a nation of laws and not of men is, indeed, the question for our time.  This issue will cast the darkest shadow in the light of history, long after the Dow rises again to 10,000, and US troops are finally, blessedly home where they belong.

    Justice delayed is still some justice.  Salim Hamdan, guilty of no more than being a gofer, will soon be on his way home, thanks to the dedicated and selfless efforts of several American attorneys.  One of them, Charlie Swift, sacrificed his military career to free an innocent man.

    We can be thankful for that.

    www.bushwatch.net - Kicking against the pricks since '98!

    by chuckvw on Thu Nov 27, 2008 at 11:00:07 AM PST

  •  Is Obama going to ignore the rule of law? (0+ / 0-)

    Perhaps that is why I am somewhat cautious in agreeing with this fine column by Roger Cohen.  For too long I have been hearing, first from Cass Sunstein, then from unnamed others through the press, that the incoming administration might not pursue the wrongdoers who are responsible for Gitmo, for Abu Ghraib, for the "black sites" nd the "extraordinary renditions," for waterboarding and sensory deprivation, for actions that were clearly grossly cruel and many that crossed into torture.  Now we hear there might only be a commission, not the investigations that Obama previously told us he would direct his Attorney General to undertake.

    Ever since he's nominated people like Gates and Clinton I had a feeling he would do this. This is what I was afraid of when he voted for the horrible FISA bill that some on the left (Olbermann) defended as being appropriate because Obama was in the middle of a tough election fight and had to look "strong" on national security.

    The argument was that we are giving up the right to sue telecoms but an Obama administration would criminally prosecute them. Now I'm am fast losing hope that he will. I hope I'm wrong. This idea about having a commission is a slap in the face of all the people who voted for him thinking that an Obama administration would prosecute both the telecoms and Bush administration war crimes.

    "Guard against the impostures of pretended patriotism." George Washington

    by Probus on Thu Nov 27, 2008 at 11:06:08 AM PST

  •  absolutely (2+ / 0-)
    Recommended by:
    teacherken, qi motuoche

    I had the same general thoughts this morning, then read Cohen, then posted this before reading your excellent essay.

    More of these ravings at the website listed in my profile.

    by Barth on Thu Nov 27, 2008 at 11:09:15 AM PST

  •  This Brings to Mind Thomas More (0+ / 0-)

    As imagined in A Man for All Seasons

    And when the last law was down,
    and the Devil turned on you...

     
                     
    ...where would you hide, Roper,
    the laws all being flat?

     
                     
    This country is planted with laws
    from coast to coast...

     
                     
    ...Man's laws, not God's,
    and if you cut them down...

     
                     
    ...and you're just the man to do it...

     
                     
    ...do you really think you could stand
    upright in the wind that would blow then?

  •  Restoration of the Rule of Law was the single (3+ / 0-)

    most important reason why I supported Obama.

    The question that remains -- and I, too, read Jack Goldsmith's op ed and saw John Dean on Olbermann -- is to what extent restoration requires two more things: restitution and retribution.

    By restitution I mean restitution to the victims, whether they be those who were tortured, those who were held without legal basis at Guantanamo, those who were subject to extraordinary rendition, those who will politically prosecuted, those whose privacy was invaded, those whose livelihoods were destroyed.  The "American people" as a whole -- I think they get "justice" through the normal political process.  Bush, Cheney, and many others will forever be regarded as the evil-doeers that they proved to be (except among a fringe of unreprobates).  Bush has said he will let history judge his performance.  The people have already done so in this election; history will not rescue him.  May his God save his soul.  But it's not up to the American people.

    By retribution or punishment, I mean some due process in identifying and meting out appropriate punishment to whose who knowingly violated the law -- whether under cover of the dubious sanctions of John Yoo's memoranda, or under cover of the Nuremburg rationale that they were just following what they regarded as a lawful order.  Such people must at least be identified, a public record made of their actions. They must at least bear the moral burden of such public identification; if they want to defend their actions publicly, then by all means they should be allowed to do so. But the light of publicity is the only way our leaders will learn the different between right and wrong.

    There are, of course, a special few who should not be let off scot free.  For them -- among whom I would include Rove, Rumsfeld, and Gonzales (just below the top two master felons) -- there are living beings who suffered directly because of their actions. Those individuals should have the power to sue for personal damages even if Bush grants them pardon for criminal actions.  They are, after, all citizens of the United States.  And the harmed are entitled to restitution.

    "Getting elected is the only true moral imperative that politicians believe in." -- Anon

    by zackamac on Thu Nov 27, 2008 at 11:38:18 AM PST

    •  restitution - in one sense not possible (2+ / 0-)
      Recommended by:
      zackamac, RadicalGardener

      "restoration to the former or original state or position"  - not possible with the horrors to which we have subjected some people.

      How do we restore the mind of Jose Padilla, for starters?

      Add your own examples.

      do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

      by teacherken on Thu Nov 27, 2008 at 11:43:12 AM PST

      [ Parent ]

      •  Agreed on that (1+ / 0-)
        Recommended by:
        teacherken

        There is no true restitution to such victims. But where a harm is done -- even a civil harm -- there should be a remedy, if not criminal sanction against the miscreant then some form of compensatory award.  

        Of course what sometimes happens in such cases is that we "excuse the agents" and charge the costs to the "system," i.e., the American people. That is what we did for the Japanese Americans who were deported inland during WW II. It was a late and miserly "compensation," but apparently allowed some of the victims to regain a sense of justice and even faith in the system.

        "Getting elected is the only true moral imperative that politicians believe in." -- Anon

        by zackamac on Thu Nov 27, 2008 at 11:47:49 AM PST

        [ Parent ]

        •  There already are lawsuits, and will be many more (1+ / 0-)
          Recommended by:
          qi motuoche

          asking for restitution.

          It will be very costly.

          teacherken is right though, that no amount of money can make up for a broken life, a broken mind.

          And no amount of hogwash can make up for a broken US system that pretends outlaw presidents and neofascist movements can just be forgotten away from reckoning.

          They had a saying in France after WWII. "So and so? Never knew him". If you said that phrase anytime in the late 20th Century, everyone knew what it meant, it was slang for collective denial of recognizing the ugly truth of collaborators with the Nazi regime in France instead of the myth that everyone, simply everyone, was involved with the glorious resistance. You could say that phrase out of context just to describe any kind of denial, or any kind of glib whitewash. The desire to whitewash can run deep. And the sad truth is that America loves fairy tales, amnesia, and pretending everything's gotten better and nothing needs to be done about what happened.

          Children in the U.S... detained [against] intl. & domestic standards." --Amnesty Internati

          by doinaheckuvanutjob on Thu Nov 27, 2008 at 12:59:57 PM PST

          [ Parent ]

  •  In my mind, (3+ / 0-)
    Recommended by:
    Tonal Crow, WereBear, RadicalGardener

    this is the single most important act of the new President, to not only distance himself from the Bush administration's policy on torture, but to actively pursue the punishment of those who approved and executed it.

    If we do not, then all that has gone before, all of the blood shed to keep us free, all of the civil rights movement, all of Martin Luther King's words, all of the efforts to secure a free and democratic nation have been for naught.

    Thank you for this diary.  It spoke to my heart because my heart has been speaking it for quite some time.

    "Courage is not the absence of fear but, rather, the recognition that there exists that which is more important than fear." -Aubrey Redmoon

    by jlang57 on Thu Nov 27, 2008 at 11:58:25 AM PST

  •  Obama reported to consider torture commission, (2+ / 0-)
    Recommended by:
    teacherken, Tanya

    in the style of the 9-11 commission. Link hereto the article reporting this.

    The (absurd yet Village appropriate) argument for it among advisors is that it will avoid appearances of revenge against Republicans, which it is argued, Congressional hearings would then be subject to lack of cooperation from Republicans that could spill over into thwarting Obama's other programs. There appear to be at least primarily 2 factions, the do nothing about it crowd, and those including Eric Holder who want very much to expose the wrongdoing of torture and related abuses.

    IMO, the advantage of such a commission is exposure and perhaps the means to prevent future abuses, the disantadvage is the potential for whitewash.

    Children in the U.S... detained [against] intl. & domestic standards." --Amnesty Internati

    by doinaheckuvanutjob on Thu Nov 27, 2008 at 12:40:20 PM PST

  •  Our Constitution (0+ / 0-)

    in Article I Section 8 explicitly allows the holding of people on a non-criminal basis.

    Congress has the power to:

    To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water

  •  Not if you're Dick Cheney or a BUSH (0+ / 0-)
  •  A nation of often-perverted laws (0+ / 0-)

    Take, for example, the Lori Drew "cyberbullying" case. While what Ms. Drew did was sickening, and probably a tort (intentional infliction of emotional distress), a U.S. Attorney did his best to make it a federal crime. He prosecuted her (a resident of Missouri) in Los Angeles, for violating a statute originally intended to penalize computer hacking. As extended by their argument, this statute also criminalizes a user's violation of a website's terms-of-service. To repeat: it criminalizes a user's violation of a website's TOS.

    This in a outrageous violation of Liberty. We elect legislatures to make laws. We do not elect MySpace, AOL, or Redstate.com to do so. Yet MySpace's TOS is exactly the "law" that the U.S. Attorney charged Ms. Drew with violating, and that a jury convicted her for violating. Under this decision, it's perfectly OK for a legislature to delegate to a private entity its authority to make criminal law, and for it to do so implicitly, or even unintentionally (the statute doesn't explicitly support this interpretation).

    Please pass the handcuffs; I'm feeling too free.

    This case also violates the 1st Amendment, since website TOSes restrict all kinds of speech that courts previously have determined to be protected.

    Finally, this case violates due process by virtually eliminating the requirement of fair notice, and by requiring a person to defend herself far from the place where she committed the charged act.

    Kossacks rightly stand up against torture, illegal spying, and politicians who lie us into war. Let's also stand up against creeping criminalization. It's just as big a threat.

  •  Ruling on the Law (1+ / 0-)
    Recommended by:
    Tonal Crow

    Having a constitutional scholar in office doesn't guarantee anything unless we are willing to go to bat for it. Obama will simply get overruled or undermined by the "sensible" people in the administration unless we are willing to force the issue.

    To do that, we need to exercise real power. That means making the Democrats in Congress fear us more than they fear The Bandits and the other people who would sell us out for whatever profit they can make.

    We have to find and support challengers in the next Democratic primaries, in 2010. We really need to upset and remove from office one or more Democrats that have been weak on constitutional issues and other liberal causes. Until we do that, they will just ignore us. Even if Obama is as liberal as the crazy right thinks he is, he won't act on this until he sees that it is politically feasible. That can only happen if we have the ability to change one or more offices, removing their occupant and replacing them with someone more liberal.

  •  the law is meaningless if not enforced (2+ / 0-)
    Recommended by:
    FishOutofWater, Bouldergeist

    I will be thankful when the aws of our nation are once again enforced

    To sin by silence when they should protest makes cowards of men~~ Abraham Lincoln

    by Tanya on Thu Nov 27, 2008 at 01:36:24 PM PST

  •  oh heavens (0+ / 0-)

    we've got way too many other worries foisted upon us by the evil rethugs and lameass democrats to ever deal with these crimes.

    Actually a last minute treasury looting was a great way to get this - and many other things - off the agenda.

    If only Americans had agonized over every detail of the candidate's history when deciding to vote for GWB as they did with Barack Obama.

    by lisastar on Thu Nov 27, 2008 at 02:48:45 PM PST

  •  Very Well Put (0+ / 0-)

    a   When I was a college student, I only cared about substantive results.  Procedural questions seemed silly, a side-show.  Now I realize that procedure is as important, if not more important than the underling action.  This is an American tragedy.  I pray that we are responsible citzens and press the president-elect for a full investigation with official apology and compensation if needed.  G. only created more terrorists.  We shot ourselves in the head when we started with a clear moral mission.

      The formulation that we are a nation of laws must constantly be made a reality.

  •  It has been much on my mind. (0+ / 0-)

    I find it hard to believe that nothing can be done, when they have confessed on every media outlet.

    There is nothing stopping anyone in government from doing any heinous thing if they can come up with some weak legal argument that says they can.

    I feel the American people have repudiated their policies and their practices, but now, practically speaking, something must be done.

    Laws without punishment are merely suggestions.

    There has to be consequences.

    WereBear
    Pootie fan? Me too! Check out my cat advice blog.
    The Way of Cats

    by WereBear on Thu Nov 27, 2008 at 05:00:57 PM PST

  •  One extra thing I am thankful for today (0+ / 0-)

    And that is teacherken's wonderful diaries, of which this thoughtful essay is an exemplar.

    War is the statesman's game, the priest's delight, The lawyer's jest, the hired assassin's trade Invictus

    by Valtin on Thu Nov 27, 2008 at 05:15:22 PM PST

  •  Men make the laws, (1+ / 0-)
    Recommended by:
    BalanceSeeker

    and interpret them, and enforce them.  There's really no way around that particular catch.

  •  Hobbes wrote... (0+ / 0-)

    ...every nation stands in relation to each other as man stands in relation to each other in the state of nature.  So actually, Hobbes would have no particular issue with the Jack Bauer tactics.

    The only Hobbesian argument one could make against this sort of garbage is that the dark side directly enables violent protest etc that would destabilize the country.

    I'm not saying we should all be Hobbesians or necessarily fine with what is going on, however I'm saying it is a misreading of Hobbes.

    And AZphilosopher says "Save a bad country music act, vote Obama."

    by AZphilosopher on Thu Nov 27, 2008 at 07:27:31 PM PST

  •  Ken, I'm reading this late, and I don't want to.. (0+ / 0-)

    revisit the primary, but....  this notion of Simon's, and of Obama's, I suppose, that Hillary at State is a vote for competence: I don't get it.

    She was incompetent when she had a chance to reform health care.
    She was incompetent when she voted for AUMF.
    She was incompetent in her campaign for the Democratic nomination.

    You understand groupthink; where does this come from?

    And thank you for this post.  

    To avoid starting dumb wars, punish the dumb people who vote for them.

    by joesig on Thu Nov 27, 2008 at 07:48:04 PM PST

  •  first, it is Cohen, not Simon (0+ / 0-)

    second, while her individual judgment may have been colored by politics, when it comes to foreign relations

    1. she is known and respected by leaders around the world.
    1. it will be Obama's policy she will be carrying out.   And she proved during the campaign that she could submerge her own ego and work her heart out on behalf of what he wanted.

    do we still have a Republic and a Constitution if our elected officials will not stand up for them on our behalf?

    by teacherken on Thu Nov 27, 2008 at 08:02:50 PM PST

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