Countdown to the striking down of the Military Commissions Act, volume 1

Jack Balkin has now posted a great, vitally needed second look at the "Military Commissions Act".

Without going into his comments specifically, the thing that stuck out to me as soon as I first skimmed the Act is that it suspends habeas corpus as a matter of course. Its language therefore creates a suspension of habeas that is far broader and more permissive than the specific provision in the Constitution for habeas to be suspended in a rebellion or invasion that creates an emergency situation in which public safety requires the suspension. In a nutshell, then, this Act is therefore per se unconstitutional, and destined to get struck down.

The scary, anti-American and antidemocratic nature of this Act was driven home to me when, just a couple days after it was passed, I read a news article about the FBI investigating potential links between terrorists and traditional organized crime. Despite the first impression the article gave, it indicated there is no evidence for such a scenario any more substantial than an episode of the Sopranos, and the vigorous speculations of the FBI that seem to be encouraged from the highest levels. And thus we see, already, the effort underway to drive the machinery of the Military Commissions Act toward application to ordinary domestic crime, and to blur any distinctions between suspected terrorists and suspected criminals, or between the dictatorial powers of the Military Commissions Act and the Constitutional criminal procedure that has been a hallmark of America since its founding.

Thankfully, the tireless Center for Constitutional Rights is already filing habeas petitions on behalf of 25 Bagram Air Base detainees that were crafted specifically as a vehicle to challenge the Military Commissions Act, before the President has even had a chance to sign it into law.

The sad thing is not only that the media have given precious little attention to the Military Commissions Act, but that even when they cover it they betray an insufficient understanding of how extreme it is. While they have described the Act as defining anyone who materially supports hostilities against the United States as an unlawful enemy combatant who therefore qualifies to have his Constitutional rights stripped away, they have failed to report that the Act gives equal potential for someone to be defined as an unlawful enemy combatant purely by being labeled as such by a status review tribunal constituted under the authority of the President or the Secretary of Defense, with no objective standards or stated procedure, and with this determination being dispositive. This appears literally to purport that a tribunal set up by the President or Secretary of Defense, under absolutely whatever procedures they feel like following, composed of whomever or however many people they feel like appointing - even just their own selves, would have the statutory authority to strip anyone else of their normal constitutional rights and instead label them as an enemy combatant, who may then be statutorily imprisoned for any length of time with no charges and no trial - and with no possibility of judicial review of the determination by the tribunal.

It sounds too extreme to be true of any government this side of Burma or Sudan. But go read the Act our Congress just passed, and see for yourself.

October Surprise! Mark Foley, Chairman of the House Exploited Children Caucus. No really, I'm serious

With everyone's wagers now cast as to how many days or hours Dennis Hastert has left before being forced to resign, and whether John Boehner or Tom Reynolds will beat him to it, what is left to be said now of Mark Foley. (Glenn Greenwald has really gone to town on this.)

The only surprising thing about this story is that anyone is still surprised that there is any vice the Republican legislature is not willing to foster and cover up among their supremely hypocritical ranks, and turn around and pretend they are the world's great crusaders against that vice.

From the GOP's perspective, it's pretty bad when their scandals are breaking so fast that they actually get relief from attention on Condie Rice being contradicted by her own State Department about being warned, in the summer of 2001, in the gravest terms, by George Tenet and Cofer Black, about an imminent al Qaeda attack - but that relief only coming at the price of apparently an even more damaging scandal.

The depressing thing about this story is that a House leadership cover-up about one of their own members sexually harrassing and exploiting underage victims, as serious as that is, generates a lot more public outrage than the passage of the "Military Commissions Act" by the House the day before the Foley scandal broke.

The exciting thing about this story is that, over the following days and weeks, more and more information may be coming out about how far Foley's crimes went, and how many of his fellow GOP congressmen knew all about it and kept it hush-hush to avoid political damage, and potentially even conspired to cover it up as an ongoing concern, exposing them not just to political fallout but also to criminal liability - so that, out of this strange tragedy, America can shake off its corrupt Republican masters and get back to being American.

The gleeful thing, the schadenfreude, about this story will be watching all the Republicans keep contradicting each other and then turn on each other and come out with more and more stories to shift blame onto each other, hopefully right up to cutting deals with prosecutors to spill the beans in exchange for leniency.

And hopefully the GOP rank and file will finally shake loose their tinfoil hats and realize that a party leadership that conspires to cover up lying this country's way into a war of aggression is going to cover up absolutely anything.

Early analysis of our new Torture Statute

Some excellent analysis of our new Torture Statute is out:

• Analysis: Many Rights in U.S. Legal System Absent in New Bill, a nice, accurate rundown by the Washington Post, which quotes Sanford Levinson at Balkanization calling the bill a mark of a "banana republic", and Yale Law School Dean Harold Koh saying that "the image of Congress rushing to strip jurisdiction from the courts in response to a politically created emergency is really quite shocking, and it's not clear that most of the members understand what they've done";
  
• a critical analysis signed by 609 law professors;
  
• analysis from Aziz Huq;
  
• analysis by Jack Balkin; and
  
• a few comments by Glenn Greenwald on the Senate passage of the bill.

On the other hand, the NY Times and Washington Post editorial pages are both silent on the matter. I can only assume, because they just commented on this right before the Senate took it up, and they are saving up post-passage whoppers for their Sunday editions.

Senate Also Votes, 65-34, for Arbitrary Detention, Torture, Admissibility of Evidence Produced by Torture, and Denial of Habeas Corpus

The Senate Voted, 65-34, for a bill that authorizes arbitrary detention, torture, convictions based on evidence produced by torture, denial of habeas corpus, and retroactive immunization from prosecution for past torture.

The voting was live-blogged here, with the good folks of firedoglake.

As one of the commenters said: Writ of Habeas Corpus: 1215-2006. It was nice knowing you.

Yes, 65-34, the absent Senator being Olympia Snowe (R-ME), meaning eleven Democrats lined up with the Republicans to betray the American Constitution. They included both Senators from New Jersey, both Nelsons, Landrieu, and of course, Lieberman.

And after all the huffing Specter did about the bill being clearly unconstitutional, he lined right up with the GOP when it came time to vote.

Now that the Senate has passed essentially the same bill as the House, it will be signed into law probably by next week.

Why such a strong reaction?

Although this bill is filled with antidemocratic provisions, such as the admissibility of evidence produced by torture, the worst of it is probably the combination of the following two provisions:

1. Enemy combatants are denied the writ of habeas corpus.

2. An enemy combatant is defined, in one option, as anyone deemed to be an enemy combatant by a tribunal constituted by the President or the Secretary of Defense, and their determination is final - with no standards of crimes or evidence thereof such a tribunal is required to observe.

So, the administration is now statutorily authorized to lock up anyone, whether a citizen or not, whether in this country or not, forever, without ever bringing charges against them, constrained by nothing but the administration's own whims.

The bill is certainly unconstitutional. It also purports to place enemy combatants beyond judicial review, and thereby purports to place itself outside of judicial review. To the extent any judge buys that, it will at least slow down the process of getting this odious legislation struck down. But nonetheless, an attorney for a detainee should be able to file a habeas petition based on the constitution with an argument that the statute plainly contradicts the Constitution and is void.

But no thanks to the Senate for creating this mess out of our democracy. This is the single worst law passed in U.S. history.

Torture Bill Protest at John Kline's Office

From the Dump John Kline blog:

"Protests against Kline's 'Torture Bill' will be held Thursday (9/28) from 7-9 a.m. at the office of John Kline. A media alert will be sent. Kline's office: 101 W. Burnsville Pkwy #20, Bring signs. Suggestions:“Kline Sponsored Torture Bill" “Tell XXX NO to Torture” “Call Rep. Kline: 952-808-1261" read on: ..."

"a tyrannical law that will be ranked with the low points in American democracy"

So says the New York Times editorial board of the "Military Commissions Act of 2006" that was passed by the House today. This editorial is a must-read. It runs down the frightening litany of dictatorial powers granted by the Military Commissions Act, including the authorization for indefinite detention for anyone at the executive branch's whim, with no possibility of judicial review other than at the whim of the executive.

House Passes Military Commissions Act, With Authorization for Arbitrary Indefinite Detention

Here's the bill, H.R. 6166 (pdf), was passed by the House today, complete with authorization for arbitrary, indefinite detention. Here is the rundown on how each House member voted, including some notable defectors from both parties from the party lines.

Some Constitutional law experts have already emphasized the point that this bill, as it was changed in the House before passage, appears to give administration-appointed combatant status review tribunals authority to designate anyone at all an unlawful enemy combatant, making anyone vulnerable to indefinite, arbitrary detention.

Look at sections 948a and 948d(c), on pages 3 and 8 on the above pdf file. An enemy combatant is defined in either of two ways, the second being "a person who, before, on, or after the date of the enactment of the Military Commissions Act of 2006, has been determined to be an unlawful enemy combatant by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense." (Section 948a.)

Once that determination is made, it is dispositive, i.e. it is settled or determined as final: "A finding, whether before, on, or after the date of the enactment of the Military Commissions Act of 2006, by a Combatant Status Review Tribunal or another competent tribunal established under the authority of the President or the Secretary of Defense that a person is an unlawful enemy combatant is dispositive for purposes of jurisdiction for trial by military commission under this chapter." (Section 948d(c).)

So an enemy combatant is anyone the tribunal appointed by the administration says is an enemy combatant - end of story. Other parts of the act specifically remove the right to speedy trial, etc. Presto, there you go: authorization for arbitrary, indefinite detention.

Is it any wonder that Charles Taylor adopted the GOP's "enemy combatant" rhetoric to crack down on dissidents in Liberia, to the complete neglect of law and order? Such a nice fit for dictatorships.

The administration and its mouthpieces like John Cornyn love to accuse anyone who worries about any standards of law and order of coddling the enemies, without ever acknowledging a possible distinction between being accused of being a terrorist and actually being a terrorist. I guess the wording in the House bill just accurately reflects that equivalence in the minds of its proponents: accusation equals guilt - the same standard all to familiar from the Inquisition and the trials for witchcraft.

Never mind that a large majority of the people held at Guantanamo were not captured by U.S. forces at all, but turned in by locals in exchange for hefty bounties, and many of whom have been definitively shown and acknowledged to have been perfectly innocent. This bill cures what the administration has apparently seen as the grave defect of those persons' innocence coming to light.

Although the House has already passed this grave offense to the core ideals of America, the Senate is taking it up for debate. The current Senate version, though bad enough, still does not have the worst provisions that were added to the House bill in its final maneuvers. Now is the time to rain down our concerns on the members of the Senate. Call them, email them, fax them, let them know the abuses this bill would allow, and urge them not to pass it - either to make dramatic changes, or far better, just to hold the thing up for the short while it would take to keep this odious bill from going anywhere before the coming recess. I've already called my senators. Now is the time. It's hard to think of a single worse blemish on the history of the U.S. House of Representatives than its passage of this bill today. Don't let the Senate make the same mistake.

GOP Presidential Convention Headed to Twin Cities, Home of Shotgunfreude

This ought to be fun. I guess they figured taking the battle directly to the stomping grounds of Shotgunfreude was the key to the '08 elections.

Stay tuned right here in September 2008 for the Shotgunfreude live blogging of the GOP Presidential Convention.

Republican Campaign Strategy Spoiled by Reality and its Well-Known Liberal Bias

"Bush to Declassify Parts of Intelligence Assessment on Iraq"

"President Bush said today he has grudgingly ordered declassification of parts of a leaked intelligence report that concludes that the U.S. invasion and occupation of Iraq has fueled Islamic extremism and contributed to the spread of terrorist cells...

"Bush charged at the news conference that political opponents leaked select parts of the National Intelligence Estimate to media organizations last weekend 'to create confusion in the minds of the American people' in the weeks before the Nov. 7 mid-term elections."

The fulcrum of both the national GOP campaign, and of the justification for this presidency, is flatly contradicted by the consensus of all sixteen federal intelligence agencies - clearly, this is just a confusion of the mind. Lie down with some smelling salts and Fox News for a few hours, and you'll feel much better from that confusing brush with "reality". Pay no attention to those facts behind the curtain.

It gets even better. How do we know the invasion of Iraq actually supported rather than exacerbated the "war on terror"?

'"You know, to suggest that if we weren't in Iraq we would see a rosier scenario, with fewer extremists joining the radical movement, requires us to ignore 20 years of experience," Bush said. "We weren't in Iraq when we got attacked on September the 11th. We weren't in Iraq and thousands of fighters were trained in terror camps inside your country, Mr. President. We weren't in Iraq when they first attacked the World Trade Center in 1993."'

Keep in mind, Bush admitted just a couple weeks ago that Iraq had "nothing" to do with 9/11. But now, we had not invaded it prior to those attacks, ergo, because we have invaded, attacks like that will be prevented.

You know, we also had not invaded England, France, Germany, Spain, Italy, Switzerland, Sweden, Canada, Estonia, Uruguay, Botswana, Bhutan, or Vanuatu when we suffered those attacks. How can we remain safe even though we still leave them uninvaded and unoccupied - just like they were on 9/11?! In fact, some of the 9/11 hijackers had actually studied in Germany, giving that country a closer tie to the attacks than Iraq. How can we leave these other nations dangerously uninvaded?

On the occasion of those prior attacks, we also did not have colonies on Mars, we had not completely eliminated the estate tax and social security, and we still allowed political parties other than the GOP to remain organized in the United States. Yet we persist in not ensuring those differences in some aspect of the world relative to the state of existence prior to 9/11. How can we leave these changes undone, under the inexorable logical force of post hoc ergo propter hoc?

Or could it be that the president is once again insinuating without explicitly claiming that Iraq was behind 9/11, after conceding repeatedly that there is no such link? How else do you explain "We weren't in Iraq when we got attacked on September the 11th... We weren't in Iraq when they first attacked the World Trade Center in 1993"? Who is "they" here?

Taken with the president's prior explanations, we're supposed to fill in the blank, that the "they" two words away from the word "Iraq", with no mention of other entities, refers to terrorists unconnected with Iraq. But the GOP campaign depends crucially on one sleight-of-hand above all others - conflating Iraq with the defeat of the pre-existing terrorists. So, the president persists in being incapable of discussing national security in the role of the president of the United States, providing leadership on actually defending our country, and instead can only talk in the role of Republican campaigner-in-chief.

Some good news: "Congress unlikely to pass wiretapping"

"Congress is unlikely to approve a bill giving President Bush's warrantless wiretapping program legal status and new restrictions before the November midterm elections, dealing a significant blow to one of the White House's top wartime priorities."

We'll see how President Bush's top priorities are handled in January when the House Judiciary Committee chairman is John Conyers.

Mark Kennedy: the reek of desperation

Minnesota Senate candidate Mark Kennedy laid out an interesting new theory in his televised debate yesterday: he accused the Star-Tribune of completely fabricating its recent poll showing Amy Klobuchar ahead of him by 24 points. (The Star-Trib reports on his comments here.) Apparently, in the world inside Kennedy's mind, the editors of the Star-Trib gathered together and conspired to publish a "pure fiction" of a polling result, to favor Klobuchar's campaign.

What would have led a group of senior editors to betray their duty as journalists, and a for-profit corporation in California to risk discrediting the newspaper it owns? Because Klobuchar's dad was once a columnist for the Star-Trib, of course. And he was such a great guy, or somehow exerts such control over his former employer, that it is willing to lie, cheat & steal to help out his daughter's political campaign.

Kennedy protested that if his father's company had published a poll, it would have shown him to be ahead. Is that because your dad is also adept at publishing complete fictions, Mark?

His ludicrous, childish attack on this poll can only damage Kennedy more than the poll itself did. Who does he think he's going to persuade when his best response to negative news about his campaign is with wild, no-evidence conspiracy theories?

John Kline and his district director issue belligerent non-apologies for use of racial epithets

As the Star Tribune discloses, John Kline's campaign manager, Mike Osskopp, was caught on film harrassing veterans attending a Coleen Rowley event and complaining about how many of them drove a "Jap car". (Hey Mike, I've got two "Jap" cars. Want to come over to my place and scream about them through that megaphone?)

Naturally, once he is actually caught in the act of his slimy take on campaign tactics, Osskopp had no choice but to publicly apologize. But how did he phrase this apology?

"I apologize if my words offended any Americans of Japanese descent, including my sister-in-law," Osskopp said. "I allowed my emotions to get the better of me and used a phrase commonly used in my youth, but which is now inappropriate and offensive."

That's right... it's not really a slur at all, you see, it was perfectly acceptable in the past, and I just have a hard time keeping up with these crazy politically correct novelties they've rolled out the past few years, he implies. Apparently he really doesn't think slurring Japanese is a problem at all - it's the damn PC police that are the problem.

Pretty classy "apology", Osskopp.

Kline also "apologized" with the same sort of belligerent non-apology:

"That's unacceptable now," Kline said. "We've all seen the John Wayne movies about World War II, and then it was acceptable. Now it's not, and [Osskopp] knows that."

See, back in our day, it was perfectly acceptable. But I guess if you crazy bleeding-heart liberals insist on condemning it, we'll be okay with that...

Sorry Kline, that is worse than the original epithet. You might recall a whole lot of other racial slurs that were entirely "acceptable" fifty years ago that are now universally recognized as abhorrent - but that does not mean they were any less offensive to their targets, and morally abhorrent, when they and the attitudes they reflect were considered acceptable by a wide range of the socially advantaged.

The Star-Trib article keeps getting better: it also reveals that Kline's congressional office keeps a file on at least one critical constituent of his, Paul Bartlett, in which they save not only the emails he has sent to Kline - but Kline also has a staffer searching the Internet for and saving the same guy's blog posts critical of Kline (hat tip Inside Minnesota Politics.) As Bartlett points out, this appears to put Kline alongside J. Edgar Hoover, Joseph McCarthy and Richard Nixon in the exclusive club of American officials who felt the un-American need to keep an "enemies list". And all on our tax dollar - another terrific "fiscally responsible" expenditure by a charter member of the party that is spending away our children's future earnings like drunken sailors, and that dares not utter the phrase "fiscal responsibility" for apprehension of reminding everyone of back when they could claim to be the champions of fiscally responsible without getting laughed out of the room.

And to top it off, as the Star-Trib reports, Kline's chief of staff compared Bartlett to David Duke - because Bartlett complained about the racial slur.

So let's get this straight: Kline "apologized" for his district director's use of racial slurs by objecting that no one had a problem with the slur in the good ol' days, and has his chief of staff smear someone who objects to the slur by comparing him to David Duke.

Until recently, I was pretty neutral about Kline. I had tremendous respect for him as someone who had served our nation as a Marine, and I didn't really see anything about him that was worse than serving as a spear-carrier in the general GOP decline into subservience to K Street and a dictatorial administration. He seemed like just the sort of decent, mainstream Republican I would have been excited to vote for back in the '90's, when the GOP still stood for something.

Now I see I am represented in Congress by a guy who issues a non-apology not-too-subtly assigning blamelessness to an aide using a racial slur, and using my tax dollars to troll for and compile secret files on people who make negative blog posts and commentary about him - which I suppose includes me, if this is a halfway serious effort. (Hi there, McCarthyist Kline staffer! Sleeping well?) Well congrats, John; I wasn't really focused on my House race before, but you've made a dedicated Rowley campaign activist out of this former Republican.

When can the Minnesota Second get a representative that cares about anything at all other than passing whatever shameful tax giveaways it takes to keep the cashflow coming in from the lobbyists and from his convicted-felon-fellow-Congressmen?

Will the Democrats take over the House... by more than 40 seats? Or only by 20 or 30?

It cracks me up to see prognosticators still wondering whether the Democratic Party will gain a majority in the House of Representatives or not. The Cook Political Report lists 44 House races (pdf) in the "lean" or "toss-up" ratings as of their last update - with 35 of those currently held by the GOP and 9 by the Democrats. They also list 11 "likely Democrat" races and 20 "likely GOP" races.

But even at that, their ratings are probably still skewed to give the GOP too much benefit of the doubt. For example, on the Senate side they still list Minnesota as a "toss-up" (pdf) - even though every single poll I know of has shown Amy Klobuchar with a double-digit lead that has only grown over time, to a 24-point spread in the latest Star-Trib poll. It's an odd sort of "toss-up" that is discerned from a nearly two-to-one spread.

Another example is the Minnesota Second district, which was solidly blue until four years ago, and where the latest poll shows Coleen Rowley within three points of incumbent John Kline - effectively a tie, since the margin is about the same size as the sampling error. [UPDATE - This poll was taken in only part of the district.] Considering that virtually no incumbent House member was re-elected with less than a five or ten point spread in the last few elections, and the anti-GOP prevailing wind, and the state's and district's traditional Democratic lean, and the fact that Kline's campaign manager was shouting racial epithets at veterans going into a VFW station the other day... this is a damned competitive race.

And yet, the Cook report doesn't even have MN-02 listed at all, even as likely Republican - meaning they haven't even considered it to be competitive.

MN-02 is a genuine toss-up - but apparently it is still less competitive than the sixty GOP-held seats that the Cook Report considered competitive enough to list so far.

Given that, the only big question left in the House elections are how many dozens of seats the Democrats will have to pad their majority.

As an aside... I watch almost no television, but I happened to be in a restaurant yesterday that was showing Fox News, and an ad ran for the Kennedy campaign where he spends the whole ad smiling and snuggling with senior citizens. Which of course immediately raised the question: what does it tell you about his confidence in his own campaign if a GOP candidate feels like he has to spend money to appeal to senior citizens who watch Fox News? That is the most telling indication I have yet seen that the Kennedy campaign faces certain doom.

To follow along with the Minnesota races, here is a round-up of a few other Minnesota blogs. Check out Follow John Kline's Money, MN Publius, Dump John Kline, DFLSenate blog, minvolved, the Power Liberal, Centrisity, and for Minnesotan diversion, Pharyngula.

Is McCain alienating Republicans... or is Bush?

It's almost a pointless game these days to point out pro-administration bias in the Washington Post (inconsistently at least), but this biased headline deserves special mention: The Washington Post gives us a clear McCain's Stand On Detainees May Pose Risk For 2008 Bid - Opposition to Bush Could Alienate Republican Base. Is that the other Republican base that does not include John Warner, Lindsey Graham, Chuck Hagel Lincoln Chafee, Olympia Snowe, Colin Powell, and every traditional Republican who cannot recognize the massively intrusive government and unprecedented budgetary freefall that have been championed by the weird legion that has taken over both Washington and the GOP the past six years?

How about this headline: "McCain leads ever-widening rift of traditional Republicans shown to be alienated by Bush".

Actually Mr. President, that's the Third Great Snooze Button

Joel Achenbach at washingtonpost.com achieved this week's High Point in Blogging with a post that made my brain smile.

After discussing a report on observing galaxies at a new record proximity to the origin of galaxies and stars, and a new book on our second-most underappreciated Founding Father of America, George Mason, Achenbach ties such hallmark Enlightenment legacies into contrast with George Bush's world:

The president says we are having a Third Great Awakening...

Here are a few things we didn't know when Jonathan Edwards & Co. ushered in the First Great Awakening:

1. The world is billions of years old.
2. There are hundreds of billions of stars in our galaxy and at least tens of billions of galaxies and the whole shebang is expanding at an accelerating rate and there may even be other universes outside our own.
3. Life evolves and all living things come from a common ancestor.
4. Continents drift.
5. Complicated stuff involving Relativity.
6. Really complicated stuff involving Quantum Mechanics.
7. Stuff so complicated it cannot even be alluded to.

Maybe the real awakening will come when, after staring into a telescope at a galaxy 12.88 billion light years away, and studying the world around us, we finally grasp our humble place in the universe and our good luck in having evolved in a place that has remained habitable for something like four billion years. And then we'll decide to take better care of it.

Thank you Joel!

Hooray for Keith Ellison, Mike Hatch, and Lori Swanson!

Congrats to Keith Ellison, Mike Hatch, and Lori Swanson on their primary victories yesterday. Minnesota DFLers made absolutely the right choice in each of these three races.

The Swiftboat Path to 9/11 Exploitation

David Brin compellingly turns the tables on ABC's right-wing propaganda exploitation of national tragedy, "Path to 9/11" (which Bill Clinton has now blasted), which prompted me to respond thus (cross-post):

As for the potentially libelous depictions of Democratic officials that are apparently featured in ABC's Swiftboat Path to 9/11, John Dean made a compelling argument two years ago that Kerry should have immediately sued the "Swiftboat Veterans for Truth" - not only for the direct purpose of the disinfecting sunlight a court can bring to bear of the otherwise hopeless disputes between different flavors of truthiness, and dissuading against the use of similar tactics in the future, but also to immediately prove a public relations point - that we are confident enough that you are lying your ass off that we are sure the truth will come out on our side.

The various defamed Clintonistas should have filed just such a suit against Disney as soon as the facts on this came out, with a motion for a temporary restraining order against showing it and seeking relief in the form of a permanent injunction to the same effect, and in case it is shown, for a massive damage award and an injunction against further distribution and to issue public retractions. I don't think there's any really good argument against this plan, and again on a public relations perspective, it would give the public the idea, like no amount of bloviating and indignation would, that there is something seriously wrong with the way the facts are being depicted.

And, if one of the defamed officials can come up with standing to sue in someplace like the U.K. or Australia with far more severe standards and penalties for defamation, which shouldn't be too hard, we could compound ABC's reasons to regret their September Surprise.

As for the idea of more reverse September/October surprises, like the new Senate report showing the intelligence indicated no connection, and in fact active enmity, between Saddam and al Qaeda, the release of which was apparently engineered by the Senate Democrats - anyone want to venture what other closet doors Democrats, journalists, or critics of the administration will be able to yank open before the election?

On the other hand, the GOP Congress is pretty effectively pulling a September Surprise against itself - when their political lives are on the line, they've accomplished far less this term than the infamous Do-Nothing Congress of 1948, and the nation is beset with compelling concerns - they parody themselves with a torrential debate about what to do with aging horses, for what even the GOP majority leader referred to as "the horse-shit bill". Are they just trying to get swept? (For what it's worth, I used to eat fried horsemeat on a stick from the corner friet stand when I lived in Belgium. Naturally, it tastes like chicken.)

Dana Milbank puts this Congress's lotus-eating in shocking perspective:

"Even before the horse bill, House leaders had been a bit sensitive about their legislative pace. The People's Representatives have been in session for all of 80 days this year, and with 15 days remaining on the legislative calendar, the House is on pace to shatter all records for inactivity. The "Do-Nothing" House of 1948 was positively frenetic by comparison, passing 1,191 measures in 110 days in session.

The current House has passed barely 400 measures..."

Come to think of it, it seems like the Disney shareholders may also have a decent lawsuit to bring against Disney, for its officers violating the business judgment rule and their duty to maintain and increase shareholder value, by (apparently) pouring tens of millions of dollars into a knowingly defamatory program that is fraudulently represented as being true to the 9/11 Commission Report despite factually contradicting it, and that any reasonable manager would have foreseen would offend and alienate from Disney the two thirds of Americans who disapprove of the Bush administration, thereby damaging the goodwill and customer loyalty attached to Disney and restricting the market for its products and services.

This would be all the more damaging if it turns out, as it now begins to appear, that Disney's production was effectively co-opted by an internal group explicitly dedicated to right-wing propaganda - you know, as opposed to profits, which the corporate officers are responsible for protecting and generating.

Disney might mitigate that liability if they yank the miniseries, although the money has been spent and the damage is already underway.

Of course, shareholder lawsuits aren't my thing, but I'm looking forward to seeing what a corporate lawyer type thinks of this.

Quality Advertising is Job One

One of the great things about Slate is its fierce dedication to witty titles and captions. Today they gave us this charmer: "Have you driven out a Ford lately?"

It was terribly embarassing and an ill omen to hear Alan Mullaly, in his introduction as the new honcho, respond to the inevitable question of what he drives right now: "A Lexus... but I can't wait to drive a Ford." He could not quite come anywhere near pulling off an impression of sincerety in that patently ridiculous assertion. And knowing the inevitable need for him to trade down, and with them having had a few months to prepare for this, could he not have picked up a Ford ahead of time? Taken an early lifestyle hit for the sake of his new corporate charge?

Although the greedy UAW deserves some blame too for overreaching, I remain convinced the old Big Three American automakers were maimed into permanent decline by decades of poisonous American management culture - one that regarded technological products as static commodities, scoffed at R&D, and put all effort and emphasis into salesmanship - the attitude of the new executive who takes over a company and says, "I have no idea what a [widget X] is, but we're going to sell more of them!" (This is a straight paraphrase from an incoming manager at one of America's largest corporations about 25 years ago.)

Meanwhile, Toyota and Honda had the radical ideas that cars are technological works in progress, that you can sell more in the long run if you do the R&D to make them better - and while your focus is on engineering instead of vacuous, no-value-added, quarterly-earning-obsessed sales gods, it makes sense to have engineers promoted from within also running the company.

And who knew, but pouring your effort into constant betterment through engineering also happens to make for a more efficient economy.

Besides other recent failures - thinking genetic dynasty was somehow a qualification to run one of the world's largest companies, thinking the SUV craze was going to fly indefinitely in the face of long-term trends in oil prices and public attitudes toward the environment - the question is, when, if ever, will Ford and GM complete the cultural shift to the Honda mindset that they need to survive? Probable answer: when Kerkorian succeeds at clearing out the top spot at GM to make room for superhuman auto executive Carlos Ghosn - who happens to have risen up through the ranks of engineering R&D.

Shorter GOP: concern for national deficit or for crunch on nation's middle class = "class warfare"

Another cross-posting from comments to The Fix - if there's one trope I can't stand that I haven't said anything about yet, it's the GOP rhetoric that any opposition to their squeezing out the middle class and grinding the nation's finances into the most ludicrous debt in the history of the world, is "class warfare". Jeez. Real class warfare in the 1800's meant French peasants and servants taking up arms against the aristocrats and both slaughtering each other - kind of like actual "warfare". But naturally the same people who insist the sectarian bloodbath in Iraq "is not a civil war!" have no problem slinging around rhetoric of "class warfare" to shut down any debate on Congress's feverish addiction to filling out every credit card offer they get for another Great Big Bank of China Credit Card.

Who's actually waging class warfare while casting blame elsewhere, as opposed to being blamed for it? The Bush-GOP Congress team has done more damage to the U.S. Gini coefficient than at any time since George III, thanks in large part to tax breaks overwhelmingly tilted to the highest incomes coupled with a deficit-fueled decline of the dollar and passing on the tax burden to the states with unfunded mandates, and in large part to this GOP crew's fervent practice of cronyist economics as opposed to actual free market capitalism - how many hundreds of billions of federal tax dollars have they doled out to their good buddies among the wealthiest few through sweetheart corporate welfare tax breaks, no-bid contracts, federal land natural resource extraction leases at pennies on the market value dollar, and federally legislated windfalls for big pharma (medicare part D) and wall street (privatized social security, they hope) - right down to the ludicrous tax avoidance / wealth transfer scam of Barbara Bush earmarking a "charitable donation" to be funneled to Neil Bush's Ignite software company by way of the Katrina (Slush) Fund.

That is the difference between the classically liberal free market economics of Adam Smith and of the U.S. laissez-faire conservative tradition, as opposed to the wealth-accumulation-by-government (i.e. central planning economics) of the current GOP, who have gone full circle in their economic philosophy back to what was considered "conservative" in Adam Smith's day - for the lion's share of economic rewards to be doled out by diktat to the nobles and the king's other buddies in the form of royally granted monopolies, import patents, and sinecures. Sound familiar?

The reality is, the economic policy that emerged from Clinton-Gore and a less extremist GOP Congress forced to work together was a thousand times more faithful to free market capitalism than the disastrous all-GOP Bush/extremist-Congress team has been.

A single-issue election: Whither the American rule of law?

Cross-posted from comments to Chris Cillizza's The Fix - which got me on a roll about the upcoming election.

I am one of those who are far more enthusiastic to vote this year than in most previous elections - and while I voted almost straight-ticket Republican through the 2000 election, I have since re-registered as an independent and am now enthusiastic to vote for, and contribute to, Democratic candidates.

While I still value many of the stances Republicans traditionally espoused prior to 2000, the party under this administration has been hijacked into extremist policies bearing little resemblance to anything that attracted me to the GOP in the first place - like, say, a prudent fiscal policy, or wise and effective use of the military, or the overriding principle that government's primary job is to stay out of our business - all of which are now anathema to the Republicans in charge.

The way I see it, this is a single-issue campaign. The Republicans now in power have embraced, as their primary policy, an aggressive opposition to the Bill of Rights, to the separation of powers, to the rule of law - in short, to the Constitution that has been the foundation of America since its beginning. Their only political philosophy now is to fantasize that the Founding Fathers of America intended to create a presidency even more powerful than the office of king under George III - that they fought a war of revolution because they just couldn't bear being ruled by a chief executive who didn't hold enough arbitrary power over their lives.

While most Democrats have not had enough spine to take a stand on this (with a few terrific exceptions), nevertheless the Democrats, simply by default, have become the party of *not* vigorously trying to tear down the American rule of law. That is the only issue for me. If that fails, we have nothing.

Even before learning a single thing about what the Democrats have to offer, I cannot imagine how any thinking person of whatever American political tradition could listen to a rhetoric that is founded on surrendering all competing interests to overriding fear, and equating the large majority of Americans who disagree with the administration's policies with Nazi appeasers, and boasting of secret CIA prisons as a campaign highlight to excite their base, and not feeling the overriding need to run them out of office.

And with a president who campaigns based on letting Osama bin Laden dictate our entire foreign policy, despite having said before the election four years ago that "I don't know where bin Laden is. I have no idea and really don't care. It's not that important. It's not our priority", and who has been unable to do anything about this one lousy guy despite having a military that has gone through a cumulative budget of over two trillion dollars since 9/11 and that has the cooperation of the governments of both Afghanistan and Pakistan, and who let a great American city be largely destroyed even with all the advance warning of a disaster that one might hope for, assuring disaster managers from his vacation hideaway that everything would be just fine -- it seems impossible that any thinking person might still be suckered into the GOP sales pitch that they are somehow a better option for national security, rather than be aghast at the breathtaking military incompetence of this administration, and desperate to return to the kind of administration that actually proved itself in Kosovo to be a master of military effectiveness with no U.S. fatalities and no degradation in military readiness or diplomatic standing -- the kind of administration that understands and responds to the reality-based world rather than just grand theories, grand photo-ops, and grand soundbites.

Is Ned Lamont Way Too Into "Memento"?

All he needs to do is take off the tie, and Lamont is sporting the trademark cream suit / blue shirt combo that Leonard Shelby sported for most of Memento, after swiping it from Jimmy Grantz. (Okay, so I helped Lenny try on Lamont's tie to complete the match.) Maybe Lamont wanted to suggest in dramatic fashion that his prior votes for Republicans are all but lost to his memory, and that he is single-minded in his determination to track down and avenge himself on the mysterious stranger who broke into his home state and supported George Bush.

As long as Lamont is sartorially bringing up the analogy, we could easily take it further:

Uygur on the Pakistan Solution

Cenk Uygur argues that our involvement with Pakistan is the right way to fight terrorism throughout the world - diplomatic engagement wherever possible, and enlisting the help of Islamic governments to work together to combat the true terrorists. There are a few things I'd add.

Another thing we've done exactly right in Pakistan that Uygur doesn't mention is the large amount of American aid provided to Pakistan in the aftermath of the terrible earthquake there last year. It wasn't even that much aid, or that expensive - but it caused a substantial rise in public sympathy toward America among the Pakistani public - no small feat.

If we went further and engaged in the kind of "weapons of mass salvation" campaign advocated by Jeffrey Sachs, even though it would involve a large rise in our foreign aid spending, it would still be only a drop in the bucket of defense spending, to which it might properly be compared, since could do a lot to shift sentiment to our favor in would-be "terrorist breeding grounds", in a grand extension of the Pakistan earthquake aid effect, and genuinely make our nation more secure.

Another major characteristic to account for in Pakistan's case is a leader who seems to be guided by rational pragmatism rather than dogmatic fervor, in Pervez Musharraf - something shared in common with Mohammad Khatami and maybe Bashar al-Assad, but unfortunately not with Ahmedinejad, or the clerics who wield the true power in Iran, or, say, Kim Jong-il. Opportunities for diplomatic engagement with those leaders on the level of our engagement with Musharraf don't exist, nor do the distinctions between them and rogue elements within their borders in terms of threats to the American interest.

The example of the Pakistan Solution also can't be discussed without mentioning that allying with Pakistan has still been something of a deal with the devil - it means going along with a nation armed with nukes that it never should have been allowed to acquire, even overlooking its past proliferation of nuclear technology to other unsavory regimes, strengthening the undemocratic administration of a general who seized power in a coup d'etat, and supporting a perennial threat to a great democratic nation on its border, India - which works as long as we are closely involved, but that is only a quasi-stable state.

The Pakistan Solution, or better yet, a magnified version of it, might work with Syria, Lebanon, the Palestinian territories, possibly with Sudan and Burma. Iran is a unique case, with a large and well-educated and generally pro-American citizenry. In North Korea, the regime is the problem and there is no domestic element with competing interests to the state. If there is one state more than any other that has little chance for a successful resolution without a proactive policy of regime change, and a compelling need for such resolution to liberate its people and remove its capacity for imminent threat, it is the regime of the "Dear Leader" Kim Jong-il.

The "far left wing" now encompasses Goldwater

Never one to absorb a new insight no matter the evidence, or to distinguish the difference between news and editorial, the Washington Post's Dan Balz is still hammering away his Rove-issued propaganda on the Connecticut Senate race being about "the politics of anger". For two paragraphs in a row, he equates Lieberman with "civility" and "bipartisanship". Given this administration, why should civility be the highest priority? (Although, Balz's only "example" of Lieberman's civility is to quote Lieberman announcing that the Lamont victory was being celebrated by terrorists. Vote for me or you're a pawn of the terrorists - a real paragon of civility, Joe.) And what does bipartisanship mean when Lieberman is too far right-wing for a traditionally Republican voter like me? Balz must be reacting against that far-left-wing extremist who said, "I would remind you that extremism in the defense of liberty is no vice! And let me remind you also that moderation in the pursuit of justice is no virtue!" That Barry Goldwater's edict is equated with the uncompromising far left wing shows how ludicrously well certain elements in the national debate have internalized Karl Rove's spin.

To Lieberman, from one of your former campaign donors: drop the towel already and get behind Lamont

I donated to Lieberman's presidential campaign in 2004. I had been mostly a Republican voter prior to the Bush administration taking office and turned the GOP into a party of opposition to fundamental American principles. Without going through the specifics, I thought Lieberman represented the best ideas without regard to partisan affiliation.

That is no longer the case, for reasons best laid out in this editorial by the New York Times - and the background for which is best laid out in this memorandum by then General Counsel of the U.S. Navy, Alberto Mora. As the Times put it:

In his effort to appear above the partisan fray, he has become one of the Bush administration’s most useful allies as the president tries to turn the war on terror into an excuse for radical changes in how this country operates. Citing national security, Mr. Bush continually tries to undermine restraints on the executive branch: the system of checks and balances, international accords on the treatment of prisoners, the nation’s longtime principles of justice. His administration has depicted any questions or criticism of his policies as giving aid and comfort to the terrorists. And Mr. Lieberman has helped that effort.

Anyone who actually tries to paint Ned Lamont's stance on the war as far-left-wing, or the rejection of Lieberman as an enforcement of narrow Democratic Party dogma, is shockingly out of touch with the American people, around two-thirds of whom are against the continuing presence in Iraq and against the Bush administration, as the polls make clear. This includes not just Democrats, whether far-left-wing or not, but an overwhelming number of independents, including former Republicans driven into exile from the hostile takeover of their party, such as myself, and people like John Dean and Cenk Uygur.

It is continuing support for the status quo of our occupation of Iraq, with its disastrous mismanagement, inadequate troops, and disregard for human rights or distinguishing the innocent, that is a radical extremist position. And it is the broad bipartisan opposition to that status quo among the American people that Lamont laid claim to. Lieberman needs to recognize this, and bow out of his increasingly embarrassing independent run.

The Lamont victory in the Connecticut primary can be viewed in part as a victory for the influence of blogs - and none moreso than firedoglake, which has been promoting Lamont since his name recognition in his own state was within statistical noise of zero. Now firedoglake is promoting Dave Mejias for New York's third district, on Long Island, opposite Peter King. And what do you know, but the Cook Political Report has added NY-3 to its list of competitive House races, bringing the total of vulnerable GOP House members in all categories up to 55 (compare the previous month). The Cook doesn't do that lightly - it declined to recategorize the Minnesota Senator race from "toss-up" even after several polls have shown Amy Klobuchar with a double-digit lead (hooray!). Take a look at Mejias.

Journalistic standards slipping at Maxim?

A nice little gem inside this piece about Maxim laying off some of its staff... Maxim actually had a fact-checker to lay off in the first place?!

"Unitary executive" power: honest belief, or flimsy excuse from the start?

This is one of the most significant stories of the week: Alberto Gonzales acknowledged before the Senate Judiciary Committee that President Bush personally directed the DoJ to deny security clearances to its own Office of Professional Responsibility lawyers so that they could not investigate the NSA warrantless domestic spying program - with the excuse that each extra person who knows about the program is another potential leaker; in other words, the ethics lawyers at the OPR can't be trusted. But when it comes time to investigate who might have leaked information about the program, a huge crowd of lawyers and non-lawyer investigators from a variety of agencies were given security clearances without a second thought, putting paid to the excuse for blocking out the OPR.

Not only that - as the ever-vigilant Glenn Greenwald points out, this clear dichotomy serves as evidence for a culpable mens rea in the White House. The excuse that so many people have named as a last resort - that even if the administration's actions are illegal, they were being pursued with a good faith belief in their legality - is in shambles.

Update - Froomkin also reviews the revelation, comparing it to Nixon's firing of Archibald Cox, and puts it all in perspective: Bush blocked an investigation into the possible unlawfulness of his own program. The OPR had never previously been blocked from making an investigation since it was founded, 31 years ago - amid the effort to protect against any recurrence of the Nixon debacle. How many more parallels will cast this administration as the second coming of Watergate?

The mark of the tipping point has arrived: the major media actually refrain from labeling any Bush critic as a liberal by definition

The Washington Post finally acknowledges that Conservative Anger Grows Over Bush's Foreign Policy, maybe after being prompted by yet another incisive blast of the Bush administration by their own George Will, although the category of conservative Bush critics is enormous and growing. Come to think of it, it's hard to think of any actual conservatives, in any definition under which that term was understood prior to the Bush administration, who remains an enthusiastic Bush supporter.

Of course, this Post article is discussing not the condemnation of the Bush administration's authoritarianism and lack of interest in the form of government established by the Constitution, but rather the disappointment in Bush's foreign policy dithering by the military überadventurers who for some reason are shelved on the conservative aisle these days. Even for the Kristol Krowd though, I can't understand why they still want the Bush administration to pursue any of their overseas objectives. Eliminating foreign threats and spreading democracy, per se, are excellent goals. But the Bush administration pursues these goals with such disastrous incompetence, and such offense to innocent bystanders and would-be friends and allies, that it is turning neoconservativism into a hiss and a byword to persist for the next two generations. I can't imagine a greater harm to inflict on their cause than to continue encouraging the present administration to serve as its champion.

Actually, their truest champion should be the leader behind the most successful recent intervention to act aggressively against a fascist dictator - who hadn't even attacked us - and promote democracy among the oppressed - that intervention being in Kosovo, where we accomplished those goals without a single American combat fatality, and that leader being Bill Clinton.

Speaking of alienation between the Bush administration and conservative principles, I'm going to be attending and blogging John Dean's visit in a few days, while he promotes his new book, Conservatives Without Conscience. Should be lots of fun.

"Dear Mr. Data, You Made Me Love You"

Trust Camille Paglia to provide the most exuberantly accurate diagnosis of Star Trek. [UPDATE: Link fixed courtesy of tip by commenter.]

"You know that crushing feeling of general helplessness that envelops you like a leaden blanket? Vodka can make it go away."

Amelie Gillette comes up with the best marketing campaign ever. Check it out.

I had no idea how much conservatives hate Bush all the sudden...

Greenwald surfs the right-wing blogosphere so we don't have to, to get the flavor of conservative reaction to Bush's big new immigration red herring, and comes up with astonishing news to report: apparently, the full-scale abandon-ship of the axis of right-wing bitterness. After carefully hand-crafting a political engine of xenophobia, it's tough to stay on for the whole ride.

And they say the Democratic base is just a loose collection of independent interests - the interests don't get more independent, or more mutually opposed, than the cheap-labor-loving big-business interests that provide the money and command the truly heartfelt loyalty of the GOP, and the social conformist-isolationists the GOP has counted on to get out the vote and who are now turning immigrants into the new scapegoat.

Bush's approval rating was already going to keep tanking - the bungled Iraq war alone is enough to keep pushing the national sentiment toward those responsible for it ever further downward, for as long as it goes on - whether or not America has as much righteous indignation over warrantless domestic spying and prisoner abuse as it should. But with the very core of his base now finding excuses to desert him and trade fantasies of impeachment, I would not place even money on Bush finishing out the summer without pulling a federal version of a Bob Taft, and hitting a new all-time lowest approval rating of any president in the history of polling.

If only the country would stop thinking of impeachment as a drastic step, and think of it more like a European parliament voting no confidence in their prime minister. Impeachment is a vital tool for expressing the democratic will - in this case, the democratic will to dispose of executives who commit not just high crimes, but even just misdemeanors - even just little infractions - as we would expect of an executive who remains subservient to the people and their elected legislature, as the Framers intended.

"Bush approval rating hits new low" - again... and again... and again...

How many times does this headline have to run before it's no longer newsworthy to note that Bush's approval rating has once again inexorably declined? It's kind of like a headline that says "Thousands dead from old age". I guess it will be newsworthy again when Bush actually breaks the record for lowest approval rating of any president in the history of polling. But at this rate, that's coming up in about two weeks - the papers might as well hold off til then to keep the story fresh.

Zen blog koan: what is the sound of an empty post?

Did Exxon CEO Lee Raymond Inspire a Star Wars Alien?

Did Exxon CEO Lee Raymond Inspire a Star Wars Alien? The Post has some terrific evidence. Lucas named the alien Nute Gunray after Newt Gingrich and Ronald Reagan, whom he was intended to resemble. Maybe this was more of the same.

(For the uninitiated, the guy on the right is Twi'lek senator Orn Free Taa.)

What difference does public debate make when the administration has blockaded itself away from democracy?

There's never an unprovocative moment reading Glenn Greenwald, as he shows us again with his post, Does the debate over Iran matter? He makes the persuasive point that the participation we take for granted in democratic, national decision-making is made into a fool's errand by the administration's claims toward dictatorial powers.

In short, any debate over the proper pursuits of our government - including what to do about Iran - has to turn back into a debate over how democratic debate can once again matter in the guidance of our country. The only answer to that is to bring the administration under control, by Congress or the Supreme Court finally taking away the whiskey and shotguns figuratively away from Bush and literally away from Cheney, and telling the administration to shape up or ship out. And the best way to make that happen is to throw the Republican bums out of Congress this November.

As for Iran, Bush and Ahmedinejad are sordidly in each other's embrace now - each looking to the other to hurl feces and beat his chest, as the only hope of whipping up nationalist sentiment and salvaging his own clout at home.

I found a different interpretation, though, behind Mr. Greenwald's characterization that "The administration... sees its powers as being tantamount to those exercised by Abraham Lincoln..."

Actually, Bush has far surpassed the powers exercised by Lincoln, because the Constitution specifically provides that "Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it"; and furthermore, Lincoln wrote to Congress at the earliest reasonable opportunity asking it to retroactively authorize his actions - and thereby expressly acknowledged the supreme authority of Congress over the president's execution of his duties.

Yoo's and the DOJ's reading of the Constitution is willfully dishonest. No other possibility makes sense. Their position has been adopted because that's the legal advice Bush and Cheney were shopping for, in the same way their purported advice from their military commanders is only precisely the product of shopping for commanders willing to read them their fantasy script.

The Constitution grants Congress the sole authority to "make all Laws which shall be necessary and proper for carrying into Execution... all... Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof", which manifestly includes the President. Conversely, it specifically obligates the President to "take Care that the Laws be faithfully executed" - those same Laws that Congress has the sole authority to "make all" of.

Even further, in case that wasn't clear enough, the Constitution grants Congress the additional, exclusive power "To make Rules for the Government and Regulation of the land and naval Forces", above and beyond the exlusive power to make all laws governing the actions of the executive. "Rules for government and regulation" defines a lot more particular, intrusive, hands-on, micromanagement than "merely" having sole authority to "make all Laws" for carrying out the executive function.

To take one example, the rules for the Patent & Trademark Office mandate what sizes of paper you may (8&1/2x11 or A4) or may not (anything else) use to submit anything to the Office. There is little if any limit to the closeness and intimacy of control implied by a sole authority to make rules and regulations, in addition to just laws, to administer an organization.

Even with Congress authorized to make all rules for the military, the Founders had debated whether the military was too great a threat to democratic control of government, and debated adding to that clause, "provided that in time of peace the army shall not consist of more than thousand men." (Aug. 18, 1787, Constitutional Convention)

In his Commentaries on the Constitution (1833), Joseph Story explained that this clause was added without objection, and was motivated specifically to avoid the type of executive control of the military that they had seen so abused by King George of England: "The whole power is far more safe in the hands of congress, than of the executive; since otherwise the most summary and severe punishments might be inflicted at the mere will of the executive."

The President, the military, and the entire executive branch were intended by the Founders to be the humble handmaidens of Congress, the branch closest to the People. The gang in power now haven't exaggerated the Constitutional role of the president; they have declared open rebellion against it.

(This got a lot bigger than I'd planned on for a comment on Mr. Greenwald's site, so I cross-posted.)

Clinical trials by for-profit companies are unscientific by definition

The Post reports on findings of systemic error in pharmaceutical trials sponsored by companies making the drug being tested, which lie squarely in the definition of Cargo Cult science. No one fluent in science can possibly be surprised by these results. The only question is why supposedly scientific experiments to compare the efficacy of different products are still given any thought at all; why the government acknowledges them, why any supposed scientist puts his name on them, why any supposed scientific or medical journal publishes results from them, when they are unscientific by definition. By that I mean, the definition of science includes at its core taking all possible steps to eliminate bias, to proactively investigate all possible sources of bias and do everything you can to root them out, out of recognition that human perception is slippery, and will always - always - skew interpretation of experimental results.

The Great Master said it best:

“But there is one feature I notice that is generally missing in Cargo Cult Science… It’s a kind of scientific integrity, a principle of scientific thought that corresponds to a kind of utter honesty – a kind of leaning over backwards. For example, if you’re doing an experiment, you should report everything that you think might make it invalid – not only what you think is right about it: other causes that could possibly explain your results; and things you thought of that you’ve eliminated by some other experiment, and how they worked – to make sure the other fellow can tell they have been eliminated.

“Details that could throw doubt on your interpretation must be given, if you know them. You must do the best you can – if you know anything at all wrong, or possibly wrong – to explain it. If you make a theory, for example, and advertise it, or put it out, then you must also put down all the facts that disagree with it, as well as those that agree with it. …

“In summary, the idea is to try to give all of the information to help others to judge the value of your contribution; not just the information that leads to judgment in one particular direction or another.” (Richard Feynman, The Pleasure of Finding Things Out, pp. 209-210.)

Leaks are bad things... leaks are good things...

Bottle of Blog has a hilarious recap of Dubya's antics.

(P.S. If you need reminding of the reference...)

Centrisity interviews Obama

Update on the Amy Klobuchar - Barack Obama rally: Centrisity got a great blog interview with Obama. Check it out.

The origins of patent law

Hat tip to Brad DeLong for pointing us to the new blog by Greg Mankiw.

One of his posts prompted me to make the following observation:

This article by Paul Romer is a great reference.

However, I have to take exception with his assertion that "The British invented patents and copyrights in the seventeenth century."

Aristotle in "Politics" criticizes what he says is a proposal by the architect Hippodamus of Miletus for the state to provide a system of rewards for those who make useful inventions. The first true patent law that we know of was an act passed by the Senate of Venice in 1474. It said in part,

"...every person who shall build any new and ingenious device in this City, not previously made in this Commonwealth, shall give notice of it to the office of our General Welfare Board when it has been reduced to perfection so that it can be used and operated. It being forbidden to every other person in any of our territories and towns to make any further device conforming with and similar to said one, without the consent and license of the author, for the term of ten years..."

Patent laws tended to spread throughout Europe from Italy after that, often with the express intention of luring Italian glass makers; most of the first patents granted by other governments were issued to Italians. Venice was followed by patent acts in various German principalities and France; then they were introduced in England by Elizabeth I's chief minister, William Cecil the Lord Burghley, again with the explicit intention of luring continental craftsmen to England.

James I abandoned the role of patents as rewards for new inventions, issuing them instead as monopolies for cronies on almost any kind of trade, prompting Parliament to pass the Statute of Monopolies of 1623, forbidding all grants of exclusive privileges, with a sole exception in section 6 for patents on new inventions to be issued "to the true and first inventor and inventors..." Similar laws were quickly picked up in the American colonies, and Massachusetts issued the first patent in America in 1641.

The Washington Post editorial page gets it horribly wrong again... this time about the NSA illegal domestic spying program

The Washington Post editorial page is perfectly dazzled by the administration's and its congressional enablers' campaign to make it seem like something is actually being done about the NSA illegal domestic spying program. While admitting that "critics have confidently denounced it as illegal" - not mentioning that that includes most Republicans and conservatives who have actually given it serious thought - and, in the understatement of the month award, that the administration has nothing but a "less-than-compelling legal theory" to back up their claim - the Post editorial is assured that all is well from pronouncements by a couple members of Congress that their briefings on the matter have had "great detail".

Worst, the Post echoes the groundless and ignorant conventional wisdom foisted from the desk of Karl Rove, that "It's impossible to assess whether the program is legal or lawless, important or abusive without a comprehensive understanding of what it is..."

That's just not the case; comparing what the administration has already admitted to against the law, makes it perfectly clear that the program is illegal; a massive, illegal and unconstitutional program engaged by our administration continuously for over four years.

What's more, the administration has also said it has no obligation to follow any laws, whether already on the books or anything Congress cooks up now that the illegal program is in the light. So despite the Post pointlessly venturing that "The goal should be for a bipartisan group of senators and representatives, literate in the program's details, to agree about whether it is legal and necessary -- and what to do about it...", the administration has already proclaimed that it doesn't give a barrelfull of quail shot what Congress decides to do about it at the end of all their pontificating.

One more worthless, somnambulant petard puffed out by the Washington Post editorial page to lull the unsuspecting readership into a false sense of complacency.

But then again, they didn't have any credibility left to lose by this point.

Senator Norm Coleman reminds me why this November is a single-issue election: Does the United States Constitution still mean anything?

I got a response from Norm Coleman to the letter I sent my two senators, him and Mark Dayton. It still blows me away that Coleman was first elected to public office (mayor of St. Paul) as a Democrat. Coleman wasted no time playing the war and terror card:

Dear Mr. ...,
Thank you for taking the time to contact me concerning S. Res. 398, a resolution to censure President George W. Bush.

I reject the idea of the President being censured. We must keep in mind that we are a nation at war and a country under threat of terrorist attacks. ...

That's a convenient way to cut off debate - except that neither Coleman nor any other enabler of the new monarchy has even tried to explain how spying without warrants contributes anything at all to national security compared with surveillance under FISA.

He continues:

I believe we must explore this matter deliberately and not use it for partisan political purposes. After careful consideration of the legal and security issues involved, I support the National Security Agency (NSA) Terrorist Surveillance Program[®].

So his need for deliberate exploration of the program was apparently satisfied with his unelaborated careful consideration of the legal and security issues involved. If they satisfy him, I sure wish he would take the time to explain them to me, because from where I'm sitting it sure looks like the President is breaking the law and violating the Constitution.

Joined to the hip with the all-purpose war and terror card is the blanket accusation that any criticism is just for "partisan political purposes". I guess it's inevitable that any effective manner of redressing the administration's law-breaking would reduce the political standing of the administration and its allies relative to those opposing them to defend the Constitution. Since that's inevitable, then any action taken against any crime or corruption could be just as fairly labeled as for "partisan political purposes". If it's a choice between a criminal government and the partisan political purpose of those who oppose it, I'll take the partisans.

Coleman goes on to extoll the virtues of the seven-member Congressional Capitulation Subcommittee in providing greater Constitutional oversight of the illegal domestic spying program, in which the seven senators will have all the authority of adorable fuzzy little teddy bears to investigate and exercise oversight of the program, as I discussed earlier.

Jack Balkin has another powerful post on the administration's self-anointment as a monarchy: while it's dismaying to learn from Abu Gonzales now that the administration is spying on purely domestic communications, it's also completely unsurprising based on the power they've already claimed: namely, the power to wake up every day and decide what the law will be that day. The very definition of a dictator is one who dictates: one who says what the law is from day to day, so that the only law is the dictator's word. It can't at all surprise us that they claim under that power to be entitled to spy on purely domestic communications, because they have already claimed the power to make what the law is a new surprise every day.

That's just the point here, the point that has not yet sunk into the popular consciousness of the Bush power grab: this is not just about spying.

This is about never again being certain what law the administration might or might not feel itself constrained to follow from one day to the next.

Once the President reserves for himself the power to ignore any law that he personally decides isn't compatible with his office, who can possibly say what law we might still be able to rely on? Or what rights, if any, we still have, that the administration does not feel free to ignore?

That is why this November is a single-issue election, with one issue so important that all other questions are insignificant in comparison:

Is our government still based on the United States Constitution? Or is it based only on the whims of what can only be called a dictator?

The entire Republican party has apparently aligned itself with unlimited presidential powers and devoted itself to enabling that coup d'etat from within, allowing the Democratic party by default to become just that, in far more than name: Democratic, as in the party of Democracy - and the only major party on the ballot supporting Democracy as the form of our government.

Even many in the Democratic party have not stood up against dictatorship and for Democracy - but many in the Democratic party have done so, and they will command the consensus once in power. So, the most important task we can accomplish right now is to vote out the legislators supporting a government that declares for itself what the law is and what our rights are, if any, from one day to the next; and to fill the Congress with lawmakers - enough to take control of one or both houses - who are loyal to the United States Constitution and who will defend the United States as a Democracy.

"Senator Feingold makes standing on principle and demanding accountability seem so effortless"

VoxMía has a transcript of a terrific barrage Feingold unleashed on Faux News: "...when the president breaks the law and doesn’t admit that he’s broken the law, and then advances theories about being able to override the law on torture... what he’s trying to do is change the nature of our government..."

Blogging the Amy Klobuchar - Barack Obama Rally

I went to today's Amy Klobuchar - Barack Obama Rally in St. Louis Park, Minnesota. Mark Dayton was there too - I haven't seen two senators together in person since I was in New Hampshire.

Amy Klobuchar was great, and she'll make a great senator. Anyone who wants this country back on track should donate to her campaign, here.

Minnesota is ranked by the Cook Political Report as the only toss-up among Senate seats currently held by Democrats, but Klobuchar looks like a tough campaigner with broad appeal among Minnesotans. There's an outstanding chance the Democrats will not lose a single seat, while picking up the six rated as toss-ups from the Republicans. And if John Kyl's new perpetration of fraud on the U.S. Supreme Court in collusion with the DOJ, and/or a new indictment related to the incident, gets some legs among Arizona voters, the Democrats may get to pad their new Senate majority.

Obama was a thrill to listen to live, clapping amid five thousand other supporters, in a way you don't get from watching on a screen. He quoted Martin Luther King, our twentieth century Founding Father, several times, to define the positive vision of the America we are striving for - one where an injustice anywhere is a threat to justice everywhere.

Obama also said he wouldn't have thought he'd be citing Newt Gingrich, but then he made good on Gingrich's wry observation that the Democrats would have a stellar slogan with simply, "Had enough?" Obama turned it into a litany: Had enough of spending $400 billion on a war that has made us less safe? Had enough of exploding the amount of debt ordinary Americans owe to Chinese and South Korean and Japanese central bankers, so the rich can get tax breaks to make them even richer? Had enough of warrantless wiretapping and the trampling of civil liberties?

...Well now that you put it like that... yeah, I sure have had enough.

He also compared the current administration's approach to a teenager with a six-pack and the keys to his dad's car: "There's no adult supervision in the White House today!" He got a huge reaction to that.

Maybe Bush just wants to get impeached so he can go home already

Cenk Uygur has another of his wittily written great ideas: maybe Bush is doing all he can to get impeached, because he's just tired and wants to go home and get back to a fun job, like clearing brush. It would certainly explain a whole lot... it almost makes too much sense not to be true.

If only he didn't have a Congress so exasperatingly dense: "Sheesh, what do I have to do to finally get you guys to haul me in before an impeachment hearing?"

Harry Taylor's Freedom of Speech

"...in my lifetime, I have never felt more ashamed of, nor more frightened by my leadership in Washington..."

Read about Harry Taylor, American citizen and omen of the meltdown, putting the leader of the free world in his place.

Thanks to Sauntering for putting these two side by side.

P.S. Interesting strategy Bush is using, sarcastically laughing off this kind of criticism - along the same lines as Cheney continuing to keep his marksmanship fresh in everyone's memory with flippant humor about having shot someone in the face. What a pal.

IPthoughts: The Risks of Being a Patent Attorney

Hat tip to Patently O for pointing out the new patent attorney blog IPthoughts - which has an interesting post on the explosion of potential liability for patent prosecutors. The blogger - a very seasoned practitioner - questions whether becoming a patent prosecutor is even worth the risk anymore! But it's true that patent prosecutors face a potential liability far out of proportion with probably any other field.

Consider the recent Blackberry settlement. Can you imagine if the parties had been negotiating a settlement that established the value of a patent at $612.5 million - but then RIM had been able to pull an invalidity holding out of the court? I'm sure the original prosecutor of NTP's patents was not having a pleasant time until the signatures were on that settlement.

Here's a cross-post of my comment at IPthoughts:

The chances of this are not infinitessimal - it happened to a co-worker of a brother of a co-worker of mine (got that?).

It also points out the ridiculously disproportionate potential liability of patent prosecutors compared to any other field, even surgeons. Which suggests that there should be some kind of solution: statutory relief for patent prosecutor liability.

No nuclear power plant would ever have been able to have been built if not for government-provided catastrophic liability coverage under the Price-Anderson Act. Government-provided catastrophic care coverage is often mentioned as an important component in restraining the explosive growth of private health insurance costs. Needless to say, the plight of patent prosecutors hasn't gotten quite the public or media attention, but government-provided catastrophic liability coverage for patent attorneys is the only way I see of ensuring fairness for patent attorneys and preventing gross distortions in the labor market.

It would not only be important to patent attorneys; a strong case could be made that the threat of such catastrophic liability is already restricting the labor market for patent prosecutors by intimidating many potential workers from pursuing the field - this post and several of the comments on it are evidence of that. This restriction on the labor market in turn drives up the costs for an inventor to seek patent protection, a burden likely to fall disproportionately on small businesses, which as we often hear, are responsible for two thirds of the job creation in this country.

So, time to lobby for a Job Creation Protection Act of 2006, to include a patent prosecutor version of the Price-Anderson Act. Every entity with an interest in facilitating the patent system and keeping down the costs of prosecuting patents should want to get behind this.

"Strategery" for seeking accountability for the warrantless domestic spying program

Anonymous Liberal has a great discussion at Unclaimed Territory on how best to go about seeking to hold the administration accountable for the illegal warrantless domestic spying program. He's got some terrific ideas, though I disagreed with him on a few points:

As for the question of retroactive effect of any new legislation baptizing the warrantless domestic spying, this would make a standing argument more difficult, but I don't think impossible. The administration would still have spent four and a half years continuously violating a criminal statute; those who were subject to it are still victims of a crime (and those who have reasonable suspicion of having been victims still have the same argument that the secrecy of the program necessitates compelled discovery); and while they arguably lose the ability to seek injunction as a remedy, they could still seek compensation and punitive damages for having been the victim in the past.

Even then, I think they would still have a reasonable argument to seek an injunction under the argument that the administration ignored the statute before and claimed the right to do so, so it is likely that they are continuing to violate the terms even of the new legislation, whatever form it takes.

And as for the political inability of Congress to discipline the executive, instead waiting to defer to the courts: I think Congress could and should do so without waiting for the courts. This assumes the Democrats take control of one or both houses this fall, as is likely. Politically it may polarize committed Republicans, but I think past experience with Clinton particularly has ingrained on us an overbroad understanding of political risk, when the facts were very different. Clinton was a very popular president who was impeached for an offense only obliquely related to his office. Stonewall Jackson also enjoyed far more popular support and committed a far less offensive act than Bush before Jackson was censured. Bush and Cheney are deeply unpopular with the general electorate, and their offense is against the core of the rule of law and the Constitutional separation of powers. Their situation is not comparable to those of the past. Never before has a president openly claimed the power to ignore the law.

The real problem is they have still successfully framed the NSA scandal as a debate on national security. We need to reframe the argument in the popular understanding: The law already provided an eminently effective way to gather intelligence on domestic telephone lines. The warrantless domestic spying program did nothing at all to add to, and is irrelevant to, our national security. Rather, this is strictly a debate about the rule of law and the Constitutional separation of powers: is the President bound to faithfully execute the law as the Constitution mandates, or has the Constitution been replaced by whatever secret legal memos the President orders up from the OLC from one month to the next.

If the public and Congress understand the debate in this, its true nature, there will be no political price at all outside of further alienating the fairly small immoveable core of GOP-according-to-Bush loyalists who are apparently going to be alienated anyway by any development away from Bush reigning as a dictator.

Beyond that, even the general understanding that Congress must wait for the courts to hold the president accountable is a reflection of the dangerous erosion of Congress's powers that has been in progress for decades. The Founders intended Congress to be the pre-eminent branch, authorized not coincidentally in the very first article of the Constitution. The Constitutional Convention discussed the possibility of Congress appointing and dismissing executives as they were needed to accomplish discrete tasks. One of their long-running debates was whether to have a single chief executive or a group of co-equal top executives, and the terms of the debate centered on which option would be weaker and more easily accountable to the Congress; it was because they decided a single chief executive that would meet these conditions that they went with that option (see e.g. the record for June 1 and June 4, 1787). Other democracies have little problem calling new elections and replacing their prime minister when they grow dissatisfied with the one in office. Our office of president is different, and is impeachable only for high crimes and misdemeanors. Still, the double condition implies that it is not only high crimes, but also misdemeanors, i.e. minor crimes, that should disqualify the president from remaining in power. We should get used to treating our chief executive as firmly accountable to the legislative branch as other democracies do and as the Founders intended for our own nation. Continuing to treat Congress as unable to check the authority of the President, even if for chiefly political reasons, can only further cement this precedent as a self-fulfilling prophecy.