An Oopsie On The Republican ACORN Jihad

The Congressional Research Service took a look at the anti-ACORN rider the House passed last week, and pretty much agreed that the bill is an unconstitutional "bill of attainder":

The two main criteria which the courts would likely look to in order to determine whether legislation is a bill of attainder are (1) whether “specific” individuals or entities are affected by the statute, and (2) whether the legislation inflicts a “punishment” on those individuals. Under the instant bills, the fact that ACORN and its affiliates are named in the legislation for differential treatment would appear to meet a per se criteria for specificity.

While the regulatory purpose of ensuring that federal funds are properly spent is a legitimate one, it is not clear that imposing a permanent government-wide ban on contracting with or providing grants to ACORN fits that purpose, at least when the ban is applied to ACORN and its affiliates jointly and severally. In theory, under the House bill, the behavior of a single employee from a single affiliate could affect not only ACORN but all of its 361 affiliates. Thus, there may be issues raised by characterizing this legislation as purely regulatory in nature. While the Supreme Court has noted that the courts will generally defer to Congress as to the regulatory purpose of a statute absent clear proof of punitive intent, there appear to be potential issues raised with attempting to find a rational non-punitive regulatory purpose for this legislation. Thus, it appears that a court may have a sufficient basis to overcome the presumption of constitutionality, and find that it violates the prohibition against bills of attainder.

My guess is that Republicans don't care about the constitutionality of the statute, and that they'll just keep putting the same kind of language into every appropriations bill. That way they can say that they voted to "defund ACORN," and if it comes out their bills are all unconstitutional, they can claim that Democrats are "protecting" the organization from their good-faith efforts to defend the taxpayers from corruption, or something. I don't expect "bill of attainder" to become a household word anytime soon on the right.

The problem for Republicans is that they actually submitted language on the initial anti-ACORN statute that was entirely broad, to circumvent the constitutionality issue, and in the process opened up the Congress to deny funding to any company accused of fraud - namely practically every defense contractor in America. Alan Grayson has been taking the lead on this - C&L had him over for a live chat yesterday.

The bill, H.R. 3221, defunds every organization that has ever filed a fraudulent report with any Federal or State regulatory agency. As it turns out, this includes all 10 of the 10 largest Government contractors. To which I say, hooray. Finally, we take the fraud out of government contracting. Too bad that it was inadvertent.

Hopefully he can get somewhere with that.

The Rise Of The Tenthers

This is a very important article by Ian Millhiser for The American Prospect. Conservatives have found a new Amendment in the Bill of Rights to glorify, making a grand total of two, as they trash the other eight. Their entire Constitutional theory now rests on the tenth Amendment.

Almost a year after she called for an investigation to discover which members of Congress are "anti-American," Minnesota's nuttiest lawmaker is back. In a recent appearance with Fox's Sean Hannity, Republican Rep. Michele Bachmann accused her colleagues of "forg[etting] what the Constitution says" because they are poised to pass comprehensive health-care reform. Not to be outdone, Sen. Jim DeMint of South Carolina told right-wing activists on a conference call last Thursday that health reform violates the 10th Amendment; he also called on state legislators and governors to "champion individual freedom" by resisting the bill. Two Florida lawmakers beat DeMint to the punch, having already introduced legislation to block health reform from taking effect in their state.

These efforts are all part of a movement whose members are convinced that the 10th Amendment of the Constitution prohibits spending programs and regulations disfavored by conservatives. Indeed, while "birther" conspiracy theorists dominate the airwaves with tales of a mystical Kenyan baby smuggled into Hawaii just days after his birth, these "tenther" constitutionalists offer a theory that is no less radical but infinitely more dangerous.

Tentherism, in a nutshell, proclaims that New Deal-era reformers led an unlawful coup against the "True Constitution," exploiting Depression-born desperation to expand the federal government's powers beyond recognition. Under the tenther constitution, Barack Obama's health-care reform is forbidden, as is Medicare, Medicaid, and Social Security. The federal minimum wage is a crime against state sovereignty; the federal ban on workplace discrimination and whites-only lunch counters is an unlawful encroachment on local businesses.

I guess the words "to pay the debts and provide for the common defense and general welfare of the United States" don't appear in their pocket Constitutions.

Really, there's nothing new about Tentherism - it's basically nullification prettied up for the 21st century. But of course, nullification was a prelude to eventual secession and Civil War. It's not completely out of bounds to see us headed in that direction.

When George Bush sought to take money out of people's paychecks and deposit them in private retirement accounts, that was fine. Only when a Democrat takes office can the majority of actions of the federal government be seen as not only misguided, but actually in violation of the Constitution. Because conservatives consider it against the natural order of things for them not to control the government and distribute its Treasury to their favored corporate interests, a circumstance with them out of control must be criminal in nature.

This is an outgrowth of the right-wing populism we've seen in reaction to a recession and the uneasiness people feel with job insecurity and an uncertain economic future.

Today, however, the tenthers tap into the same populist outrage that inspired a generation of working-class religious conservatives to enthusiastically vote against their own interests. Fox News star Glenn Beck exhorts his audience to "be a constitutional watchdog for America" by lining up against health-care reform, cap-and-trade legislation, and the stimulus package. Gov. Rick Perry of Texas, who enthusiastically backed a tenther "state sovereignty resolution," told a right-wing radio host that he is "willing and ready for the fight if this administration continues to try to force their very expansive government philosophy down our collective throats." Tenther-inspired claims that federal spending violates the Constitution are so common at "tea party" protests that it is impossible to tell where the tenthers end and the tea baggers begin.

In other words, it is all but certain that tenthers will play a significant role in selecting the GOP's presidential nominee in 2012. And if that nominee wins, the tenthers could even come to dominate the administration in the same way that the religious right set its hooks into George W. Bush.

This is the inevitable point where all the anti-government rhetoric of the post-Reagan years was bound to go. Tenthers literally want a government that cannot govern, period. And the movement is growing. Ultimately, this is where the teabaggers meet up with the corporate interests who would thrive in an era of no regulation and no ability for the government to use their power.

But, you know, liberals are the Constitutional "activists."

The Reaction: Tough On Crime Robots Cannot Come To Terms With Reality

The federal ruling to reduce the prison population by over 40,000 is the result of a years-long, if not decades-long process, where the failed leaders run amok in Sacramento have let the corrections system grow completely out of control, preferring to warehouse prisoners into modified Public Storage units instead of embarking on same, smart policies that would save us money and make us safer. In response to this damaging comment on the state's failure, the political leadership has... signed up for more failure:

Attorney General Jerry Brown said in an interview that the order is probably not appealable, but eventually the state will have to consider going directly to the U.S. Supreme Court, marking the first time the high court would face such a case.

"I think the Supreme Court would see it differently," Brown said.

State officials said the proper solution is for the governor and legislators to work out a reduction plan as funding becomes available. The state should not be forced to function under the hammer of a federal court order, they said.

"We just don't agree that the federal courts should be ordering us to take these steps," said Matthew Cate, secretary of the state Department of Corrections and Rehabilitation.

How dare the federal courts order anyone around to respect Constitutional rights against cruel and unusual punishment! Who the hell do they think they are, a co-equal branch of government?

What's so interesting about this is how abnormal it is. Federal courts grant a significant amount of leeway to the states to manage affairs. But when a state consistently and deliberately violates Constitutional rights without letup, they must act. And that's been true for a long time.

California's archipelago of 33 prisons houses more than 170,000 inmates, nearly twice the number it was designed to safely hold. Almost all of its facilities are bursting at the seams: More than 16,000 prisoners sleep on what are known as "ugly beds" — extra bunks stuffed into cells, gyms, dayrooms, and hallways. [Governor Arnold] Schwarzenegger has referred to the system as a "powder keg."

....Even as Schwarzenegger has promised reform, the corrections budget has exploded during his term, from $4.7 billion in fiscal 2004 to nearly $10 billion in fiscal 2007, or about $49,000 for each adult inmate.

....For more than three decades, California has been trapped in a self-perpetuating cycle where putting more people in prison for longer periods of time has become the answer to every new crime to capture the public's attention — from drug dealing and gangbanging to tragic child abductions. Spurred on by a powerful prison guards' union and politicians afraid of looking soft on crime, corrections has become a bottomless pit, where countless lives and dollars disappear year after year. And now that it has metastasized to the point where even a tough-guy governor and the guards agree that the prisons must be downsized or else (see "When Prison Guards Go Soft"), every attempt at change seems stymied by inertia. The sheer size of the system has become the biggest obstacle to finding alternatives to warehousing criminals without preparing them for anything more than another cycle of incarceration. "The public believes the prison population reflects the crime rate," says James Austin, a corrections consultant who has served on several prison-reform panels in California. "That's just not true. It's because of California's policies and the way it runs the system."

This is a policy failure driven by a political failure, a cowardly series of actions that arises from a broken system of government. Dan Walters happens to be spot-on today - politicians have played on people's fears for 30 years and, faced with the tragedy they created, delayed and procrastinated until it became so torturous that the courts had to step in. From the three-strikes law to the 1,000 sentencing laws passed by the Legislature, all increasing sentences, nobody comes out looking good in this failure of leadership. Even the Attorney General of the United States recognizes that we cannot jail our way out of crime problems.

“We will not focus exclusively on incarceration as the most effective means of protecting public safety,” Holder told the American Bar Association delegates meeting here for their annual convention. “Since 2003, spending on incarceration has continued to rise, but crime rates have flattened.”

“Today, one out of every 100 adults in America is incarcerated — the highest incarceration rate in the world,” he said. But the country has reached a point of diminishing returns at which putting even greater percentages of America’s citizens behind bars won’t cut the crime rate.

Mark Kleiman has additional good thoughts.

Federal Judges Order California To Reduce Prison Population By 40,000

A ruling by the three-judge panel who have effectively taken control of the California prison system has ordered the state to reduce the prison population by as much as 40,000 inmates within the next two years, finding the system in violation of Constitutional mandates. The Tough On Crime balloon has just popped.

The judges said that reducing prison crowding in California was the only way to change what they called an unconstitutional prison health care system that causes one unnecessary death a week. In a scathing 184-page order, the judges criticized state officials, saying they had failed to comply with previous orders to fix the health care system in the prisons and reduce crowding, and recommended remedies, including reform of the parole system.

The special three-judge panel also described a chaotic prison system where prisoners were stacked in triple bunk beds in gymnasiums, hallways and day rooms; where single guards were often forced to monitor scores of inmates at a time; and where ill inmates died for lack of treatment.

“In these overcrowded conditions, inmate-on-inmate violence is almost impossible to prevent, infectious diseases spread more easily, and lockdowns are sometimes the only means by which to maintain control,” the panel wrote. “In short, California’s prisons are bursting at the seams and are impossible to manage.”

This started as a series of lawsuits claiming that the overcrowded prisons violated inmates' Constitutional right to medical care through the 8th Amendment, which prohibits cruel and unusual punishment while under confinement. The judges concluded that massive reductions were the only way to get the balance right and restore Constitutional order to the process.

It's nothing less than an epic failure at all levels of leadership over the last thirty years which has brought us to the point where judges must mandate reductions in the prisons. A state that is unable to manage its finances can also clearly not manage its plainly illegal corrections system.

This now hangs over the head of lawmakers as they come back from recess in August and determine how to achieve $1.2 billion dollars in savings to the prison system. The Governor and Democrats in the legislature have proscribed various reform programs that would reduce the prison population, change mandatory prison sentences for technical parole violation, and create an independent sentencing commission to look at reforming our draconian sentencing policies. Many of these reforms are desperately needed, would save money for the state and also comprise a smarter, more sensible way to deal with prisons that actually makes Californians safer. Today's ruling makes this not only a good set of ideas, but a mandatory set, given that the state is now under court order to reduce the population.

The Governor's Prisons Secretary Matthew Cate is not ruling out appealing the ruling to the US Supreme Court. He also claims that the state has a plan to reduce overcrowding that would lower the number of prisoners by 35,000 in two years. That's less than required by the ruling. But this is no longer an option; unless they appeal, and it's no guarantee they can, the state must submit a plan to meet the judges' dictates within 45 days. End of story.

Showdown In Tegucigalpa

The Organization of American States unanimously demanded the return of Mel Zelaya to the Presidency in Honduras, and gave the new government three days to do so. If they refuse, they will be suspended from the organization. The US has put joint military exercises in Honduras on hold. The UN resolved not to recognize the coup-backed government. And Mel Zelaya will head back to the country:

The two presidents of Honduras were headed on a collision course Tuesday, as the president ousted by a coup vowed to return and his replacement threatened to arrest him the minute he lands.

Neither side seemed willing to bend in a looming confrontation that is the first test of the Obama administration's diplomacy and clout in the hemisphere.

Honduran President Manuel Zelaya, removed from office Sunday in a military-led coup, addressed the U.N. General Assembly in New York on Tuesday and said he would fly back to Honduras on Thursday, accompanied by the head of the Organization of American States.

But the newly appointed interim president of Honduras, Roberto Micheletti, warned that if Zelaya returns, he will be arrested, tried and sent to prison for years. Micheletti's claim on the presidency is seen as illegitimate by the international community.

The situation is somewhat complex - referenda of the kind that Zelaya sought have questionable legality in the Honduran system, and sadly, the military runs elections. But the real problem here is the lack of a legislative check on the Presidency. If a President falls from favor with the representative Congress, they have no means, through impeachment, of removing him. There's nothing constitutional about rousting the President from his bed at gunpoint, sending him to the airfield in pajamas and flying him out of the country. But there's no remedy to a Constitutional crisis of the type that supporters of the coup, at least, feel they had with Zelaya's call for a referendum that they say would eventually increase Presidential term limits.

This sounds like a compromise:

As the rally was underway, a small, anxious but growing group of Honduran lawmakers sought to build a coalition to endorse a compromise measure to allow for Zelaya's return. According to one participant in the talks, who spoke on the condition of anonymity for fear of derailing the negotiations, the compromise would include a general amnesty for everyone involved, including the coup leaders and members of the military, while Zelaya would have to abandon his plan to hold a referendum that could lead to a change in the Honduran constitution.

One four-year term sounds a little constricting for a President, but Zelaya shouldn't necessarily be allowed to orchestrate his own hold on power. Of course, the point of a referendum is that the people decide, so I'm not seeing the dictatorial nature of it. I guess the military is saving the people from themselves.

The Thing Is, We Cannot Default As A Matter Of Law

I've seen a bit of confusion in traditional media accounts of California's budget situation, and whether or not the state should receive a federal bailout. This seems to go toward the idea that without federal aid, California will default on its creditors and go bankrupt, and the federal government has a compelling interest in keeping that from happening. You can argue whether or not it would actually make sense for the state to default - it certainly worked pretty well for Argentina, despite neoliberal fuming to the contrary. And as noted by Peter Schrag in the above-linked entry, the Governor has never asked for any help of this kind, and given his status as a born-again Friedmanite, would probably reject it. But Paul Kedrosky, who has read the relevant law, explains in a piece supporting default that California really cannot do so.

The root issue, of course, is that California is insolvent, and irritating people like S&P analysts keep noticing. The state -- let's call it Latvia by the Pacific -- has a $24-billion budget gap that must be closed for it to continue operating (and I use that word advisedly). Without a clear sense of how that will happen rational creditors are going to be increasingly skittish about filling the hole. Now, does that mean California can't sell enough bonds to backfill the gap this time? You bet it can, and it will. This is part Schwarzenegger/Lockyer Financial Theater, and partly a laughably transparent attempt to demonstrate budgetary semi-competency in hopes of a few basis-points of relief on the inevitable bond sale. That's all.

Because California has $5.7-billion in debt servicing obligations. And while that will grow, debt occupies pride of place in California's constitution -- only education must be paid off before the next slug of cash goes to creditors. Get that? Healthcare, prisons, and other frivolities can all go to rack and ruin, but creditors must be paid, constitutionally speaking. That means, if you're looking at this through the gimlet eyes of muni-bond ghouls, that California has something like $50-billion in budgetary space to make its $5.7-billion in payments. It's pretty easy to calculate that California can make the payment nut, even if it has to close hospitals, release prisoners and stop patrolling the highways to do it.

Now, Kedrosky thinks this is theatrical and should not be rewarded. I say it's the perfect reason for California, and actually all states with this kind of constitutional arrangement, to receive those federal loan guarantees to stop gouging from Wall Street for short-term bonds. Not only do Schwarzenegger and Lockyer know we have to pay back all out debt, so do the bondholders and the rating agencies. It's almost literally impossible for us to default on those bonds, short of the entire state's residents spontaneously getting fired at once. If those loans will obviously get paid back, the interest shouldn't be set at payday-loan rates. And the federal government could very easily remedy that situation, at no cost and probably at a profit, as they reaped from the loans to New York City in the 1970s.

Is it a problem that California operates at the mercy of its creditors? In a sense. Is there a remedy? At the least, there's a way to get some equitability into the process so that we aren't blowing money on Wall Street firms who have been bailed out by those same Feds ten times over. In addition, this kind of thing weakens the municipal bond market, and the federal government has an interest in keeping credit flowing through that.

Loss Of Honor

The only good news out of this Marc Ambinder post is that the White House reads a lot of Glenn Greenwald. That's of course fine, but the main point here is that the White House will, at some point, endorse and implement a policy of indefinite detention. We don't know how many people will be held under this policy, but basically the idea here is to allow the President to determine, at essentially his discretion, although there may be certain safeguards, that a prisoner cannot be either charged with a crime or released from prison, and must be kept in a holding cell "until the terrorists disappear", as Newt Gingrich put it today. This prisoner will have not been proven to have committed a crime, but will simply be thought likely to commit crimes against the United States in the future, based not on actual proof (otherwise they could be charged) but the supposition of a few in the executive branch. Greenwald lays this all out here.

This really and truly makes me sick to my stomach. I recognize that the Bush Administration picked up random people off a battlefield and made little or no effort to corroborate the hearsay that brought them into custody in the first place. What evidence exists probably has been gained through coercion or torture. And so American law, or even the diminished American law in the military commissions process, cannot handle such evidence. That's the theory put forward by the White House, anyway. And yet plenty of terrorism suspects, in cases with similar challenges, have been tried and convicted in American courts, not only in recent history but for hundreds of years.

This is an unprecedented expansion of the power of the executive to detain enemies he designates essentially forever. It's also completely unjustified in a country that pretends to follow a Constitution based on the preservation of liberty.

There's more here and here, and I don't think I could add much. I'm just completely disgusted by the prospect of indefinite preventive detention.

At least we have some American lawmakers left who understand the magnitude of this decision.

My primary concern, however, relates to your reference to the possibility of indefinite detention without trial for certain detainees. While I appreciate your good faith desire to at least enact a statutory basis for such a regime, any system that permits the government to indefinitely detain individuals without charge or without a meaningful opportunity to have accusations against them adjudicated by an impartial arbiter violates basic American values and is likely unconstitutional. While I recognize that your administration inherited detainees who, because of torture, other forms of coercive interrogations, or other problems related to their detention or the evidence against them, pose considerable challenges to prosecution, holding them indefinitely without trial is inconsistent with the respect for the rule of law that the rest of your speech so eloquently invoked. Indeed, such detention is a hallmark of abusive systems that we have historically criticized around the world. It is hard to imagine that our country would regard as acceptable a system in another country where an individual other than a prisoner of war is held indefinitely without charge or trial.

You have discussed this possibility only in the context of the current detainees at Guantanamo Bay, yet we must be aware of the precedent that such a system would establish. While the handling of these detainees by the Bush Administration was particularly egregious, from a legal as well as human rights perspective, these are unlikely to be the last suspected terrorists captured by the United States. Once a system of indefinite detention without trial is established, the temptation to use it in the future would be powerful. And, while your administration may resist such a temptation, future administrations may not [...]

I appreciate your efforts to reach out to Congress on this important issue. In that spirit, I intend to hold a hearing in the Constitution Subcommittee of the Senate Judiciary Committee in June and ask that you make a top official or officials from the Department of Justice available to testify. I recognize that your plans are not yet fully formed, but it is important to begin this
discussion immediately, before you reach a final decision. I will be sending formal invitations in the coming weeks and look forward to hearing the testimony of your administration.

Sadly, Feingold appears to be alone in this opinion. But one Senator can do a lot, especially with help from the outside. It's absolutely crucial that we provide him all the muscle he needs to push the Administration back on this horrific potential decision.

Republican Attack Machine FAIL

The RNC tried to get out in front of Obama's speech today by dredging up an old quote Obama made about the Constitution being "flawed." Right, um, guys, he was talking about slavery.

FACT: Obama Explains The Constitution's "Fundamental Flaw" Was Slavery. The out of context video the RNC links to contains audio from a September 6, 2001 program called "Slavery and the Constitution" on WBEZ Chicago. On the show, Obama explained that the "fundamental flaw" was "Africans at the time were not considered as part of the polity that was of concern to the framers." In addition, the framers did not "see...it as a moral problem involving persons of moral worth." [WBEZ Radio, accessed 5/21/09]

And Republicans in the House today will seek to investigate Nancy Pelosi for what she knew about torture while defending the torture she allegedly knew about. And now, even the former CIA Director, Porter Goss, refuses to say whether he was told about torture techniques, essentially refusing to contradict Pelosi's allegation.

The sickest part here is that the Democrats run scared from this nonsense.

The Speech Is Not Enough

President Obama made a nice speech today, defending his national security policies and the theory that we should not shrink from our values in a maelstrom of fear. He stood at the National Archives, in front of the founding documents, and acted as a defender of them.

And that's great. Obama made quite a few excellent points, about the closure of Guantanamo, the need for checks and balances and vigorous oversight from the other branches of government, and the failure of the previous Administration to keep faith with our values.

Bully. Wonderful.

I'm pretty much done with talk. On these issues in particular, I will look to the actions of the Administration to make determinations on their success or failure in my eyes. And those actions are likely to fail as much as they succeed. Obama basically acknowledged this. I think this was the key moment in the speech, the moment where Obama tried to position himself as offering some wise middle path and marginalizing "absolutists" on either side of him:

We see that, above all, in how the recent debate has been obscured by two opposite and absolutist ends. On one side of the spectrum, there are those who make little allowance for the unique challenges posed by terrorism, and who would almost never put national security over transparency. On the other end of the spectrum, there are those who embrace a view that can be summarized in two words: "anything goes." Their arguments suggest that the ends of fighting terrorism can be used to justify any means, and that the President should have blanket authority to do whatever he wants - provided that it is a President with whom they agree.

Both sides may be sincere in their views, but neither side is right. The American people are not absolutist, and they don't elect us to impose a rigid ideology on our problems. They know that we need not sacrifice our security for our values, nor sacrifice our values for our security, so long as we approach difficult questions with honesty, and care, and a dose of common sense. That, after all, is the unique genius of America. That is the challenge laid down by our Constitution. That has been the source of our strength through the ages. That is what makes the United States of America different as a nation.

When he talks here about absolutists, I can only assume he's talking about those of us who believe that no prisoner should be held indefinitely without charges, who believe that there need not be a military courts process outside the one used on our own soldiers, with all of the agreed-upon safeguards and rules for acquiring justice over 200-plus years, who believe that people described vaguely as "supporters" of criminal activities are not as culpable as the criminals themselves and cannot be held without legitimate charges, who believe that the government should not be able to assert state secrets as a means solely to shut down accountability by the judicial branch. If that makes me an extremist, cue the Barry Goldwater line about extremism in the defense of liberty being no vice. I'm simply articulating Constitutional principles, much like the human rights groups who met with Obama yesterday have articulated for many years. And I come out of this speech with a similar reaction to one of the participants in that discussion.

Asked whether the president had pacified some of the concerns she brought to the White House on Wednesday, (Human Rights First CEO Elisa) Massimino said that she was pleased with the opportunity for engagement. Beyond that, she still registered concerns.

"I think that many of us were disappointed by the announcement about the military commissions and wondered what the reasoning was behind that. And to be honest, I am still wondering having been in this meeting today. I don't think that this fits the overall framework that the president had articulated about using our values to reinforce a counter terrorism strategy against al Qaeda."

Obama seems committed to providing a durable framework for future Presidents to deal with these issues, and seems committed to a robust process of oversight to allow for a full examination of whether the policies are consistent with Constitutional principles. And then he throws out something like the military commissions revival or hints about preventive detention (literally, the pre-crime process from Minority Report) and you wonder if this is the same person. The actions have not matched the rhetoric, at least not always.

Now, as a token of some sort, the US government will prosecute Ahmed Khalfan Ghailani, who was allegedly involved in the bombing of US Embassies in Africa in 1998, in a New York City courtroom. That's consistent with our criminal justice system and the proper method of dealing with terrorist activity. It lends credibility to the process and shows that the United States is serious about joining the community of law-abiding nations again. But one token is not enough. And I will continue to fight for civil liberties as long as I see them being abused.

Now, Dick Cheney crawled out of the primordial ooze and I'm supposed to be watching his speech today as well. Here's my only response to that.

The Indictment Of The Bush Six

Scott Horton reports that indictments of top Bush Administration officials could be handed down in Spain as early as today:

Spanish prosecutors have decided to press forward with a criminal investigation targeting former U.S. Attorney General Alberto Gonzales and five top associates over their role in the torture of five Spanish citizens held at Guantánamo, several reliable sources close to the investigation have told The Daily Beast. Their decision is expected to be announced on Tuesday before the Spanish central criminal court, the Audencia Nacional, in Madrid [...]

The six defendants—in addition to Gonzales, Federal Appeals Court Judge and former Assistant Attorney General Jay Bybee, University of California law professor and former Deputy Assistant Attorney General John Yoo, former Defense Department general counsel and current Chevron lawyer William J. Haynes II, Vice President Cheney’s former chief of staff David Addington, and former Undersecretary of Defense Douglas J. Feith—are accused of having given the green light to the torture and mistreatment of prisoners held in U.S. detention in “the war on terror.” The case arises in the context of a pending proceeding before the court involving terrorism charges against five Spaniards formerly held at Guantánamo. A group of human-rights lawyers originally filed a criminal complaint asking the court to look at the possibility of charges against the six American lawyers. Baltasar Garzón Real, the investigating judge, accepted the complaint and referred it to Spanish prosecutors for a view as to whether they would accept the case and press it forward. “The evidence provided was more than sufficient to justify a more comprehensive investigation,” one of the lawyers associated with the prosecution stated.

...the Obama State Department has been in steady contact with the Spanish government about the case. Shortly after the case was filed on March 17, chief prosecutor Javier Zaragoza was invited to the U.S. embassy in Madrid to brief members of the embassy staff about the matter. A person in attendance at the meeting described the process as “correct and formal.” The Spanish prosecutors briefed the American diplomats on the status of the case, how it arose, the nature of the allegations raised against the former U.S. government officials. The Americans “were basically there just to collect information,” the source stated. The Spanish prosecutors advised the Americans that they would suspend their investigation if at any point the United States were to undertake an investigation of its own into these matters. They pressed to know whether any such investigation was pending. These inquiries met with no answer from the U.S. side [...]

The Bush Six labored at length to create a legal black hole in which they could implement their policies safe from the scrutiny of American courts and the American media. Perhaps they achieved much of their objective, but the law of unintended consequences has kicked in. If U.S. courts and prosecutors will not address the matter because of a lack of jurisdiction, foreign courts appear only too happy to step in.

Which is, as Hilzoy says, to our eternal shame. The Bush Six violated our own laws as surely as they violated Spanish law. We are signatories to the same treaties to which Spain is a signatory. We have the duty, actually, the requirement under the Constitution and the Convention Against Torture, to prosecute those who broke these laws and treaty obligations. We shouldn't let Spain do our dirty work. History will not look kindly on it.

The Truth Behind The Armchair Constitutionalists

Whenever I hear media stars like Lawrence O'Donnell and Howard Fineman pontificating over whether something is Constitutional or not, I get extremely wary, particularly considering they have spent several years arguing about detainee policy and wiretapping and torture in mostly POLITICAL terms instead of the constitutional aspects. Suddenly when Congress tries to set tax policy toward a particular class of wealthy people the media gets out their social studies texts. I imagine there can be a fair amount of reasonable argument around this, but Scott Lemieux, claims the Constitutional concerns are groundless.

Ed -- regrettably echoing the hapless Charles Krauthammer -- says that "Bills of attainder" and "ex post facto" are two phrases well-known to high school freshmen taking mandatory civics classes, so they must certainly be known to Congressmen." The ex post facto clause, however, has been held since the early 19th century to apply exclusively to criminal cases. The prohibition on bills of attainder is even less relevant; it certainly prohibits Congress from convicting AIG traders of criminal offenses without a trial, but says absolutely nothing about Congress's ability to set tax policy.

Another blogger, in addition to the clearly erroneous claims, asserts that the bill violates the equal protection clause. The obvious problem with this argument, however, is that it proves too much. The tax code discriminates in countless ways -- against renters and wage earners and in favor of homeowners and investment income earners, for example. It was been well-settled for decades that such discrimination require only some rational relationship to a legitimate government interest. The policy taxing bonuses for corporations that would have gone bankrupt without public support bears a much clearer relationship to a legitimate public objective than a law preventing anyone but an optometrist or ophthalmologist from putting lenses in glasses frames, which the Supreme Court upheld unanimously.

The debate about whether a large excise tax is good public policy ought to go forward. But let's be clear what these Constitutional questions are all about. The average salary of practically everyone you see on the teevee is well beyond the national average, and in most cases beyond the $250,000 a year cited in the House bill, and used as a dividing line in Obama's budget to reset marginal tax rates from 35% to 39%. And so, for Overton Window purposes, characterizing any effort to reduce income inequality as unconstitutional makes a whole lot of sense. Take a look at Mark Haines, CNBC's latest hero, arguing that no company can be "run well" by anyone making under $250,000 a year. Because they've been run so well by the overclass to this point.



Here's a separate interview between Haines and Rep. Brad Sherman (D-CA):

HAINES: It does not go far enough, sir?

SHERMAN: Absolutely -- it doesn't deal with the Merrill Lynch bonuses, since they were paid in December, and worse than that it doesn't deal with million-dollar-a-month salaries. More importantly, we should have AIG in receivership, they should've been put in receivership months ago, and we would have saved tens of billions of dollars. We wouldn't see tens of billions going to the richest on Wall Street, and overseas -- and of course, these bonus contracts would have been voided. We need receivership, and we need limits on salaries as well as bonuses.

HAINES: Well, receivership ... I think most people agree, that would have caused some systemic problems.

SHERMAN: Most people on Wall Street agree. But most people on Main Street do not.

HAINES: And what do the people on Main Street know about running a financial system?

SHERMAN: What do AIG executives know about running a financial system? [crosstalk] They only know how to destroy one.

HAINES: This is witch-huntery. I'll be perfectly honest with you.

SHERMAN: We don't have to hunt the witches. We know who they are.

HAINES: You and people who share your opinions seem to think, you know, let's hold salaries on Wall Street to $100,000. Do you have any idea what Wall Street would look like if you do that?

SHERMAN: Well, first of all, I wouldn't set the limit at $100,000.

HAINES: Well, whatever. $250[,000]. All the business would go -- all the business would go overseas, that's the bottom line.

SHERMAN: Obama's position is $500,000 plus unlimited restricted stock. That's where I'm at as well, although I was actually at a higher level before Obama's statement. But for you to assume that Wall Street is acting in the national interest flies in the face of recent reality.

There's a multi-pronged attack here. Congress cannot tax exorbitant bonuses of companies they bailed out because it's unconstitutional. Corporations can only be run well by the rich because greed is virtuous. Only investor participation can save the financial system, so government had better not get any ideas about capping executive compensation. And those executives must be kept happy and lavished with gifts because they are so wise in the ways of exotic financial instruments that they are the only ones who can defuse them, a fairly ridiculous idea.

Similar arguments made during the 1997 Asian financial crisis, when currencies and stock markets collapsed in much of Southeast Asia, turned out to be a smokescreen to protect the executives who were partly responsible for the mess. Recovery from that crisis required Indonesia, South Korea and Thailand to close or consolidate banks. In all three countries, bankers protested, claiming that their connections with borrowers were critical to recovery.

In South Korea, cozy relationships between banks and the large conglomerates called chaebols were a major reason for the crisis. But after the crisis hit, Korean bankers and companies insisted that the complexity of chaebols like Samsung and LG — with their many separate but interwoven businesses — meant that outsiders would not be able to distinguish good loans from bad.

In Thailand, some argued that the preponderance of family-owned businesses — and the lack of clarity about precisely which family members were really in charge — meant that only bankers already working in big institutions like Bangkok Bank and Siam Commercial Bank could determine which borrowers were creditworthy.

The leaders of Thailand and South Korea did not listen to such arguments, and thank goodness. Some of the leading Thai banks were taken over by the government. After the crisis, a civil servant in charge of one such bank noted that its bad loans were much bigger than had been indicated before the takeover, largely because of an internal coverup. Only when outsiders took over did the public discover the full scope of the losses.

We have a major inequality problem in this country. Wages for workers have stagnated while the rich grow ever richer. It is well within the public interest to address that, and because this has become so extreme as to affect consumer spending and economic activity, it's more vital now than ever. Wall Street has decoupled salary from performance and perpetuated a culture of greed in the belief that such greed made sense for the overall economy. But an oversized financial sector that produces nothing but imagined wealth actually debilitates a country. Simply put, astronomical profits from making side bets on the economy should be discouraged, making the same profits from inventiveness and innovation would be encouraged in the exchange.

If it turns out that you can make a comfortable living at zombie institutions but can’t earn big bucks there, then smart, confident, ambitious, greedy people will leave their jobs and go do other things. In a good way! Maybe they’ll start small businesses. Maybe they’ll join non-enormous, better-managed firms and help them grow and prosper. That’s the kind of thing smart, confident, ambitious, greedy people ought to be doing. Putting their talents to work in the pursuit of profitable market exchanges. Not putting their talents to work trying to run scams at taxpayer expense.

There are promising signals that the Administration is taking concerns about executive compensation seriously, although there are far better ways than having a secretive institution like the Federal Reserve "oversee" giant corporations (which they failed to do in the run-up to this crisis). Perhaps one way is to actually tie pay to performance through Silicon Valley-style compensation schemes, but the best way is through the tax code with rates at the highest marginal levels (I'd insert an additional rate above $1 million or more) that look more like the pre-Reagan era. Which is why those who wed themselves to the establishment elite get so nervous with clawback provisions like the AIG bonus tax. They don't want anyone in Washington getting any funny ideas about marginal tax rates. After all, it's unconstitutional.

The Obama Signing Statement

President Obama signed the omnibus spending bill yesterday, and he came up with a program for earmark reform which is very much in the "mend it, don't end it" vein. Fair enough - I think earmarks are a fake debate, and Obama's ideas are fine (more transparency, competitive bidding) are fine. But there was also a signing statement appended to the bill. Unlike Bush's boilerplate language ("I'm the unitary executive and you can't stop me"), this signing statement was pretty detailed and thorough, and asked that five small sections of the bill be made supervisory. When these omnibus bills are combined, there are lots of conflicting pieces of information in them. And I hope this doesn't become a habit. But in the general sense, these particular points seem to be on relatively solid constitutional footing. Again, the signing statements debate is not that they ought to be completely abolished, it's that they shouldn't be used to nullify entire statutes based on flimsy reasoning. I'll add the whole signing statement below.

As I announced this past Monday, it is a legitimate constitutional function, and one that promotes the value of transparency, to indicate when a bill that is presented for Presidential signature includes provisions that are subject to well-founded constitutional objections. The Department of Justice has advised that a small number of provisions of the bill raise constitutional concerns.

Foreign Affairs. Certain provisions of the bill, in titles I and IV of Division B, title IV of Division E, and title VII of Division H, would unduly interfere with my constitutional authority in the area of foreign affairs by effectively directing the Executive on how to proceed or not proceed in negotiations or discussions with international organizations and foreign governments. I will not treat these provisions as limiting my ability to negotiate and enter into agreements with foreign nations.

United Nations Peacekeeping Missions. Section 7050 in Division H prohibits the use of certain funds for the use of the Armed Forces in United Nations peacekeeping missions under the command or operational control of a foreign national unless my military advisers have recommended to me that such involvement is in the national interests of the United States. This provision raises constitutional concerns by constraining my choice of particular persons to perform specific command functions in military missions, by conditioning the exercise of my authority as Commander in Chief on the recommendations of subordinates within the military chain of command, and by constraining my diplomatic negotiating authority. Accordingly, I will apply this provision consistent with my constitutional authority and responsibilities.

Executive Authority to Control Communications with the Congress. Sections 714(1) and 714(2) in Division D prohibit the use of appropriations to pay the salary of any Federal officer or employee who interferes with or prohibits certain communications between Federal employees and Members of Congress. I do not interpret this provision to detract from my authority to direct the heads of executive departments to supervise, control, and correct employees' communications with the Congress in cases where such communications would be unlawful or would reveal information that is properly privileged or otherwise confidential.

Legislative Aggrandizements (committee-approval requirements). Numerous provisions of the legislation purport to condition the authority of officers to spend or reallocate funds on the approval of congressional committees. These are impermissible forms of legislative aggrandizement in the execution of the laws other than by enactment of statutes. Therefore, although my Administration will notify the relevant committees before taking the specified actions, and will accord the recommendations of such committees all appropriate and serious consideration, spending decisions shall not be treated as dependent on the approval of congressional committees. Likewise, one other provision gives congressional committees the power to establish guidelines for funding costs associated with implementing security improvements to buildings. Executive officials shall treat such guidelines as advisory. Yet another provision requires the Secretary of the Treasury to accede to all requests of a Board of Trustees that contains congressional representatives. The Secretary shall treat such requests as nonbinding.

Recommendations Clause Concerns. Several provisions of the Act (including sections 211 and 224(b) of title II of Division I, and section 713 in Division A), effectively purport to require me and other executive officers to submit budget requests to the Congress in particular forms. Because the Constitution gives the President the discretion to recommend only "such Measures as he shall judge necessary and expedient" (Article II, section 3 of the Constitution), the specified officers and I shall treat these directions as precatory.

And Now Signing Statements

As I've said a few times, the Bush Administration so catastrophically fucked this country in seemingly limitless weighs, that the Obama Administration could be 90% on the side of the angels and still have lots of issues where they are wrong, creating an impression that they are not fulfilling the promise of change. But on the majority of issues, they are! And here's another one: ending the pernicious practice of signing statements that nullify settled Congressional law based on extreme theories of executive power, which was brought to truly epic levels under Bush and Cheney.

In recent years, there has been considerable public discussion and criticism of the use of signing statements to raise constitutional objections to statutory provisions. There is no doubt that the practice of issuing such statements can be abused. Constitutional signing statements should not be used to suggest that the President will disregard statutory requirements on the basis of policy disagreements. At the same time, such signing statements serve a legitimate function in our system, at least when based on well-founded constitutional objections. In appropriately limited circumstances, they represent an exercise of the President's constitutional obligation to take care that the laws be faithfully executed, and they promote a healthy dialogue between the executive branch and the Congress.

With these considerations in mind and based upon advice of the Department of Justice, I will issue signing statements to address constitutional concerns only when it is appropriate to do so as a means of discharging my constitutional responsibilities. In issuing signing statements, I shall adhere to the following principles:

The executive branch will take appropriate and timely steps, whenever practicable, to inform the Congress of its constitutional concerns about pending legislation. Such communication should facilitate the efforts of the executive branch and the Congress to work together to address these concerns during the legislative process, thus minimizing the number of occasions on which I am presented with an enrolled bill that may require a signing statement.

Because legislation enacted by the Congress comes with a presumption of constitutionality, I will strive to avoid the conclusion that any part of an enrolled bill is unconstitutional. In exercising my responsibility to determine whether a provision of an enrolled bill is unconstitutional, I will act with caution and restraint, based only on interpretations of the Constitution that are well-founded.

To promote transparency and accountability, I will ensure that signing statements identify my constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection.

I will announce in signing statements that I will construe a statutory provision in a manner that avoids a constitutional problem only if that construction is a legitimate one.

Obama is essentially saying that he would raise constitutional issues BEFORE a law reached his desk. What the Bush Administration would do is negotiate a bill, and then when it passed nullify with the stroke of the pen any aspect that put a check on his executive power. Obama would give the Congress the benefit of the doubt and act with restraint in issuing signing statements, generally within the accepted practice of the previous 200-odd years. The statements typically would be used as a guideline for the Supreme Court to judge the constitutionality of a provision if it were litigated, as I understand it. That is a far cry from what essentially was a line-item veto, the way Bush used it. And the part where he writes that he would "constitutional concerns about a statutory provision with sufficient specificity to make clear the nature and basis of the constitutional objection" would be far different from the boilerplate that Bush used on over one hundred signing statements:

Bush’s postsigning statement declared that he would interpret many sections of the new law “in a manner consistent with the president’s constitutional authority to supervise the unitary executive branch.” In plain English, this means that many of the limits that Congress imposed on Bush’s power – and that he accepted when he took the money Congress appropriated – are null and void. Why? Because the president says so.

And best of all, instead of just looking forward, in this case he's looking backward.

To ensure that all signing statements previously issued are followed only when consistent with these principles, executive branch departments and agencies are directed to seek the advice of the Attorney General before relying on signing statements issued prior to the date of this memorandum as the basis for disregarding, or otherwise refusing to comply with, any provision of a statute.

In other words, Mr. Bush, your signing statements just went poof in the night.

Charlie Savage, who basically uncovered the practice of nullifying law through signing statements during the Bush Administration, has a writeup on this memorandum. And he says that Obama's perspective is consistent with his remarks on signing statements in a questionnaire Savage authored during the campaign.

No More Taxation Without Representation?

The DC Voting Rights Act passed today in the Senate by a vote of 61-37. It moves to the House, where it will be virtually assured of passage, and then in all likelihood to the US Supreme Court, where a ruling will be made on the constitutionality of offering voting rights to a member of Congress who is not from a state. Jonathan Turley says it's plainly unconstitutional, but others differ:

Judge Kenneth Starr, during congressional testimony in 2004, asserted the constitutionality of Congress using the District Clause to confer voting representation:

"The use of the word ‘state’ [in the Constitution] cannot bar Congress from exercising its plenary authority [under the District Clause] to extend the franchise to District residents."

Professor Viet Dinh concluded in a 2004 memorandum that the framers of the Constitution did not intend to deprive citizens of the most basic right of democracy – the right to have a voting representative in Congress:

“There are no indications, textual or otherwise, to suggest that the framers intended that Congressional authority under the District Clause, extraordinary and plenary in all other respects, would not extend also to grant District residents representation in Congress.”

In a letter to the House Judiciary Committee this month, the American Bar Association concurred with the analysis of Starr and Dinh:

“Enactment of the proposed [bill] would be an exercise of this constitutional authority conferred by the “District Clause”.... Not only is there a moral obligation for Congress to restore such rights, there is also a constitutional obligation for Congress to ensure the right of D.C. residents to the equal protection of the laws...”

Ultimately, the arguments don't matter as much as the numbers on the Supreme Court, and once again Anthony Kennedy will be the likely swing vote. Even if the court battle fails, however, Jerome Armstrong sees a road to statehood for the District:

"We will certainly be celebrating once the DC Voting Rights Act is passed," Zherka emphasized. "It will be a momentous win. But then, it's on to the business of defending any legal challenges to the legislation and looking towards future victories such as Senate representation and broader, local autonomy for the District."

The 'solution' is sorta a cut-the-baby-in-half one. DC gets a single Rep in the House, and one more is added, which goes to Utah and the GOP. But the issue of whether this is constitutional is a pretty big one-- since when do places that are not states have Congressional representation?

It will go to the courts, and I would not be shocked to see it reversed; because its not really that great of a precedent, and it doesn't really entirely solve the problem. If that happens, then it will go back to Congress, and force the issue of statehood-- which it should.

That's down the road. For the moment, 500,00 American citizens are closer to representation in their government.

...Also, the Senate had to take away the rights of the district to set their own gun control laws as a condition of representation, which sure sounds like the conservative mantra of "local control" to me! The Ensign Amendment passed (I'm not sure why it needed to, after Heller). Here's Clay Risen:

And Republicans wonder why D.C. votes overwhelmingly Democratic. Maybe it's because for all their talk of states' rights and federalism, when it comes to Washington the GOP is aggressively paternalistic, to the point where a senator from Nevada can, with a straight face, presume to tell Washingtonians the best way to run their city.

Country First

The lack of representation for the nearly 600,000 residents of Washington, DC is an enduring scandal and shame, a very real betrayal of the principles that led to the American Revolution. Yesterday, the Congress moved closer to erasing this blot when a Senate Committee approved the compromise plan that would give a voting member to DC and an extra voting member to Utah until the next apportionment after the 2010 Census. The vote had only one dissenter - John McCain.

McCain was the only one of them who voted nay, and he gave two reasons. The first was that the proposed compromise that would give D.C. voting rights while giving Utah a fourth seat in Congress was unfair to other fast-growing states. The second was that McCain didn’t want to pass a bill that constitutional scholars are still tussling over “and then have the Supreme Court decide whether or not it’s constitutional.”

This is a problem. What would happen if — a totally random example here — a senator introduced a campaign finance law that, according to many constitutional scholars and the president of the United States, violated the First Amendment? What if the Supreme Court had to decide whether or not the law was constitutional? That would be crazy.

Dave Weigel is a libertarian and I don't necessarily agree with him about McCain-Feingold, but the core idea that Congress can't make a law because the Supreme Court might overturn it would essentially end all lawmaking entirely, wouldn't it?

Because of this technical and entirely bullshitty reason, John McCain told the residents of DC, people he's walked among for 26 years, to go stuff it. What a man of the people.

Inaugural Do-Over

John Roberts and Barack Obama retook the oath of office just now, out of an "abundance of caution." From Obama counsel Greg Craig:

"We believe that the oath of office was administered effectively and that the President was sworn in appropriately yesterday. But the oath appears in the Constitution itself. And out of an abundance of caution, because there was one word out of sequence, Chief Justice Roberts administered the oath a second time."

Obama joked that there are now going to be twelve more balls, but what he doesn't realize is that 2 million people were denied access to his inauguration! So much for the most open and transparent Presidency of modern times.

Also, with the second oath administered on January 21st, doesn't this violate the 20th Amendment, as long as we're being stupid, which says that the new President must be sworn in on January 20th? I don't think the wingnuts have lost steam on their lawsuits yet. Get creative!

Change Has Come

Barack Obama is now our nation's 44th President. More important from my perspective is that George W. Bush is our nation's 43rd ex-President. You could feel that in the crowd, from the NAA-NAA-HEY-HEY-GOODBYE to the burst of exultation after the swearing-in (which John Roberts mangled and the new President stumbled through a little nervously, and wouldn't you be?):



Waiting for the first wingnut post alleging that because Obama didn't say the oath exactly as it is written in the Constitution, he is NOT OFFICIALLY PRESIDENT!!!1!

Still some kinks to be ironed out. The White House's email signup page is broken right now as well. And their RSS feed really should not be partial. But this feels very different. Mainly because of the miscreants that have to scurry out the back door.

America can exhale.

Oh, and Dick Cheney can now get back to closing the Bailey Savings & Loan.

Holder Pattern

I caught a little of the Eric Holder testimony to the Senate Judiciary Committee on the way in. I guess the page one headline is that he called waterboarding torture. If that's so, then he is obligated by law to prosecute those who authorized and directed it. Just sayin'.

The cable gabfests are probably talking about him taking responsibility for mistakes made in the Marc Rich pardon. I want to focus on a couple other things. First, the issue of Guantanamo:

Holder echoed that stance Thursday but said shuttering the prison would be difficult and would take time. Many detainees could be transferred to other countries, he said, and some could be charged in U.S. courts. That is a contentious proposal because many oppose the idea of bringing terrorism suspects onto U.S. soil.

"There are possibly many other people who are not going to be able to be tried but who nevertheless are dangerous to this country," Holder said. "We're going to have to try to figure out what we do with them."

What we do is old-fashioned detective work, figure out if we can charge these people, and if we can't, release them. It's as simple as that. That's going to take a little time, since the evidence is currently in complete disarray, as a former prosecutor at Gitmo acknowledges. But it can and should be done as quickly as possible. Furthermore, there is an error in assuming this applies to every detainee still at the facility. It does not. There are hundreds that present no threat to the United States and should be released.

A federal judge ordered the release yesterday of a detainee at the U.S. military prison at Guantanamo Bay, Cuba, ruling that the government's evidence is too weak to justify the man's continued confinement.

It is the second time that U.S. District Judge Richard J. Leon has ordered the release of a detainee after examining government evidence, most of it classified. Leon said that the Justice Department failed to prove that Mohammed El Gharani, 21, is an enemy combatant because it relied heavily on statements made by two other detainees whose credibility is questionable.

In fact, the least we can do is allow some of the detainees whose lives we destroyed to remain free in the United States, even as a symbolic act of contrition and tolerance. This will make it easier to export other detainees to Western nations. If the Obama-Holder plan is just a kinder and gentler indefinite detention and more friendly military commissions, then they own a process which, among other things, is trying children in sham courts, against international law.

A couple other things - Jeff Sessions' questioning of Holder was hilarious. Sessions admitted being "concerned" that Holder wants to operate within the "spirit of the Constitution," because that could mean different things to different people. Yes, see, if your version of the Constitution means that we're not allowed to crush the testicles of children, Mr. Holder, we've got a problem!

In Chuck Schumer's testimony, Holder was asked if he would review the case of Bradley Schlozman and the politicization of the civil rights division, to determine why the US Attorneys declined to prosecute, and Holder said he would. So the Schloz is not out of the woods yet. And he was strong on the overall issue of politicization.

Holder promised to be an independent attorney general, telling lawmakers that he did not believe the attorney general's job was to serve as the president's lawyer — a frequent criticism of Gonzales' tenure under President George W. Bush. He also pledged to restore the independence of a Justice Department where Bush administration appointees used political benchmarks when making hiring decisions.

"One of the things I'm going to have to do as attorney general in short order is basically do a damage assessment," Holder said.

Several Republicans have already agreed to back Holder, so the effort to oppose him is pretty much a sideshow. Inside the false media narrative, however, there is some important information coming out.

Signing Statement Expiration Dates

We've all been concerned about President Bush's disrespect of the Constitution and the separation of powers, but one interesting sidelight to it all is that, at least on the question of signing statements, the long-term effects are less severe than realized, at least in the specific sense.

Critics say the statements, which went mostly unnoticed [3] until the middle of Bush's second term, usurp Congress' constitutional right to make laws and violate the separation of powers. But hope is just around the corner for the signing statement opponents.

"They will mean nothing" once Bush leaves office, said Stephen Saltzburg, a law professor at George Washington University and member of an American Bar Association task force that studied, and ultimately condemned [4] (PDF), the practice of using signing statements to reject statutes. Presidents should veto laws they believe are unconstitutional, the task force said.

Though the statements aren't legally binding, they send the message to executive branch agencies that they may ignore certain laws, usually on the contention that they impinge on the president's constitutional authority. Agencies that have adopted such presidential advice as policy could still be affected when President-elect Barack Obama's appointees inherit the "status quo," Saltzburg said.

Neal Sonnett, a Miami lawyer who led the Bar Association task force, suggested that Obama make a general statement withdrawing the Bush signing statements to assure a clean break. But Sonnett and others believe the most conspicuous statements -- and their effects -- will be obvious to the newcomers.

Of course, the problem with signing statements wasn't really that they would settle law, but that they would embolden the executive to follow Bush in determining which parts of a statute to abide by and which to ignore. That the specific damage done washes away is a good thing, but the precedent remains. President-elect Obama would do well to completely repudiate the practice, to at least try and establish a new precedent.

Where Progressive Leadership and D-Day Obsessions Collide

Thomas Geoghegan, who is running for Congress to replace Rahm Emanuel, already had me excited about the potential for new progressive leadership. When he wrote the definitive brief against the absurd Senate appointment process today, that just made it all the sweeter.

IN 2009 four new senators will slip into office — all in violation of the Constitution, which requires a special election to fill a Senate vacancy. Colorado, Delaware, hapless Illinois and star-struck New York will have senators “elected” by a single voter, the governors who appoint them.

It may have been a while since many of us read the 17th Amendment, which was ratified in 1913. Its first paragraph replaced the indirect election of senators by state legislatures with “direct” popular election by the voters. The second paragraph, which you may have skipped in school, deals with vacancies. It states that when seats open up unexpectedly, governors “shall issue writs of elections to fill such vacancies.” The plain enough meaning is that the governor will issue an order for a special election. But for decades now governors have opted not to issue writs directing new or special elections. Why are they ignoring the Constitution? To increase their own power, of course.

I have been saying this at least since the Blagojevich thing sparked up. The 17th Amendment allows for an appointment if the legislatures so choose, but it does NOT cancel out the plain statement that governors must issue orders for special elections. Governors have chosen to move these special elections until the next general election, but that does not make it legal.

The Senate appointment process invites corruption, as any action that puts power in the hands of the few does. It ought to be abolished so the people can choose their own representatives. Geoghegan argues that the Supreme Court could easily fix this by reinterpreting the law. If they choose not to, I'm sure someone would be willing to push for clarity in Congress. Someone like Tom Geoghegan.

I'm telling you, this guy is the real deal. Support Geoghegan for Congress.