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July 19, 2007

Comments

Grounds for impeachment: start reading here.

I don't comment about everything, but I did about this, here.

Yes, something's up: global obliteration.

(Sorry for pitching my site here--some days I feel the need to extend my outrage.)

fyi ---

Gina Cooper is ED of the YearlyKos Convention.
Website: http://www.ginacooper.com
Email: contact@ginacooper.com

Right the issue is whether the immunity asserted by Cheney et al. is absolute or qualified so subject to a "good faith" test. I should mention also that in the scenario I set out the New Mexico employer had notice of the ruling of the New Mexico courts not to register the Colorado judgment.

I assume Bivens extends liability for constitutional torts to Federal actors and suppose that essentially the ruling dismissing the claim amounts to extending absolute executive immunity to all agencies, both statutory and practical, of the executive as part and parcel of the unitary theory of the executive. Significantly in 1983 actions as I understand them the states as discrete entities are not subject to the jurisdiction of the Federal District Courts.

I am a bit short of conclusions but I am trying to advance my understanding of what is happening here.

This is the metaphorical moment in which Cheney, the WHIG Group, Bush, and their remaining allies are (figuratively) strutting across an aircraft carrier in flight suits before an enormous "Mission Accomplished" sign.

Agree 100% with pdaly @ 20:15, JohnJ @ 20:44 that 'fourthbranch' is afraid. I imagine Rove, Matalin, Hannah, Feith, Abrams, and Wurmser (attired in lavendar blouses with chartreuse camisoles) out in force at TNH and commenting as 'Jodi', 'windanssea', et al. With a little imagination, the troll comments here can actually provide abundant entertainment.

It's as if we're in Act III of Gladiator, with Bush/Cheney now revealed as Caligula.
The FBI and the military are like Maximus -- they've been 'stabbed in the back' by Bu$hCo.
Will the Dems protect the FBI, the DoJ, and the military? Or are they too gutless? Or too compromised?

Meanwhile, a judge today handed down the Republican, legalistic decision that takes the heat off Bu$h and Cheney. It's the Plame version of that old, disastrous line: "it depends on the meaning of 'is'."
We know how well that went over with the U.S. public.

This legal decision violates people's sense of fairness, so whether it is 'legally defensible' is beside the point.
People expect their elected officials to support the CIA, the FBI and the military.
Finely sliced legalistic decisions that don't fit with generally accepted notions of right and wrong simply heighten the sense that the system is wired, the books have been cooked, the fix is in, and there is no justice.

When all else fails turn to the primary material, right. Awfully odd to makre a ruling converting a claim to one falling under the FTCA and dismissing the same now converted claim for failure to exhaust remedies in one fell swoop.

One couple of other points. I don't see where IIPA exempts the executive offices (excluding agencies). This being the case and with the privacy act not applying to these offices, the reading that congress intended no civil remedy against non-agency executive officers by a way of a lack of inadvertance seems a trifle like a nod to the unitary executive. There is a sly conflation of potential agency defendants and executive office defendants here. In any event the publication where the proximate cause should have been alleged is out of the executive in this case. The court acknowledges that IIPA in and of itself cannot constitute a "special factor." The Totten analysis additionally speculates has to how the plaintiffs would conduct there case and while may foreclose some causes of actions even by the courts one reasoning would not foreclose all claims.

Though this maybe upheld, if there are sustainable grounds for reversal, it will be awhile before we know.

Good, looks like folks are still awake here.. someone email

sheesh.... lost my post.... TPM has a link of an article in todays WaPo about new executive priv claims. Saying DoJ will not pursue contempt charges if the WH declares privelege. This may be the straw!

http://www.washingtonpost.com/wp-dyn/content/article/2007/07/19/AR2007071902625.html?hpid=topnews

There's hopefully the link from WaPo. Anyway, what I was saying was someone call EW and our resident atty's this may be the last final straw. I can't see how congress would even attempt to go contempt and would have to go straight inherent contempt.

Well, I have now read the memorandum decision. Man, does my head hurt something fierce. For anybody wondering why I don't do this anymore or why I constantly state how complex and difficult this type of litigation is; please, go read the entire decision, it will explain both in spades. That being said, now that I have read it, I am inclined to agree with Mary's thoughts especially in relation to the course and scope finding on the action of leaking a classified identity, and, to only a slightly lesser extent, the Bivens special factors analysis. As to the course and scope finding, it is hard to reconcile that with the Court's inherent (accepted and acknowledged in the opinion) duty to assume all factual determinations in the light most favorable to the plaintiffs (Wilsons). this actually might be a decent argument on appeal, but it is unlikely to be considered harmful enough by the Circuit Court to result in reversal in light of the other salient problems with the claim as a whole. As to the Bivens special factors discussion, wow, what an overly long, rambling diatribe. I am going to give Bates a break and assume a clerk wrote most, if not all, of that. "Frolic and detour" indeed Mary, and you are very correct that, despite the War and Piece length, there is a disturbing lack of coherent discussion of a crucial linchpin of that portion of the holding, namely the availability, or lack thereof, of alternative comprehensive statutory avenues of redress. I think this portion could have been written in a manner that made it fairly compelling as a matter of legal logic and interpretation; but, that certainly didn't occur here. Bottom line: despite the rambling, rubbish like nature of the memorandum order, it will stand up just fine on appeal. It is quite possible that the same result would have occurred no mater how well the Wilson's complaint was made out, but a better gamed tactical approach on the causes of action and parties defendant would have given them a lot better shot, and far more time to develop it, at overcoming the immunity assertion.

Note to J. Thomason - Despite what the media reports would lead you to believe, the decision did not bugger up the absolute versus qualified (limited) immunity distinction as we kind of mused earlier.

DeeLoralei - I emailed that article to EW about three hours ago. That position is certainly not a shock, as anyone spending much time here would know, but the fact that it was made so openly, brazenly and arrogantly, not to mention so early before the DOJ had even been requested to enforce a contempt citation, is truly outlandish and shocking.

Yea Bmaz, that was my point, and I should have known others here would have sent it to her. I am just appalled that they had the hubris to not wait until asked by Congress to enforce the Constitution. I think this declaration, and the new memosent from the DoD to Hilary may actually be the Bushies line in the sand. Not only can't a Senator sitting on Armed Services asj a legitimate question of the DoD she is painted as a backstabbing ( germanword) traitor to the lost cause that is Irag, nor can anyone in Congress pursue contempt charges against the administration, because the administration says no.

This is either the death knell of our American experiment in democracy, or the re-birth of reason. And it terrifies me, that I may be on the losing end.

It bothers me that these two declarations came on the same day, or I should say, the public became aware of them on the same day. Now, it is soley up to the populace, we either accept all that we have suffered under the last 6 1/2 years. Or we rise up to stop it. There is no other recourse. Our elected officials and laws have failed us. And we can take our country back, or we can let it slowly die, but it is now up to a well educated populace. And if anyone reads it, the Constitution actually calls for new conventions to keep it contemporary.

Well, if it is up to the well educated populace, you may have to leave me out after seeing my misspelling of the word "peace" above. I have got to get glasses, learn to proofread competently or something.

DeeLoralei thanks for the WaPo link, and Dismayed thanks for the Raw Story link. Taken together they certainly up the ominous ante. Oddly enough, I find the Raw Story article reassuring. I have maintained for awhile now that true conservatives (limited government power types) are going to choke on the Unitary Executive business which will bring many non-Kool-Aid drinking conservatives over to the impeachment camp.

rhfactor, I think your suggestion for a white board series of some sort is an excellent one. I am not able to attend YearlyKos this summer, but I would encourage those who are going, to discuss this however they can arrange it.

Perhaps it might be possible to get some of our best writers to put together a series of guest editorials for some MSM outlets: NPR, NY Times, LA Times, WaPo. Given that a lot of people do not have broadband access requires us to find a way to get what we know here into the MSM where more people can find out about it. If theses various news organizations fail to do the job in their news rooms, the guest editorials might be the way to go to get the ball rolling...

BMAZ-I understand that the opinion claims it disposes of the jurisdictional questions stating it does not reach Cheney's claim of absolute privilege. But isn't the offshoot of a finding that allegations of an intention to harm and a per se tort arising under IIPA do not create subject matter jurisdiction a de facto absolute immunity for the executive offices under the holding?

And, quite contrary to your assertion, the words "high crimes and misdemeanors" in the impeachment provisions most definitely DO NOT require "actual crimes".

You can make them up?

Mary, thanks for the great comment at 23:41.

First, thanks to all commenters -- I now have a better grasp of what all this signifies.
Second, I heartily concur with whoever said that the TRUE conservatives are going to walk away from the bullshit argument of 'unitary executive' because it is UNAmerican.
Third, for the sake of argument, assume thatGeorge W Bush is a man with learning disabilities, who has a lot of trouble reading. I don't have fMRI's or other research data, background, or other information on George W. Bush. All I have are 'tea leaves'.

As someone with a fair amount of reading research background, I find it signficant that George W. Bush reads the Bible. The Bible originated in an oral society, and therefore it has a very clear, simple grammatical structure with a lot of action:

Subject -verb: Abraham wandered...
Subject -verb: The bush burned...
Subject -verb: God anointed (Jesus of Nazareth)...
Subject -verb: Jesus laid (his hands)...

If you were to drive on any interstate in America, and you stopped at Denny's or a tire shop, or a car dealership, or a hair salon, you'd find people who -- like Bush and Haggard -- read The Bible. They also read People. They also read Us. They might read TIME, but they'd consider it 'hard work'.

They love (love!!) text messages: sux2bu; its4u; l8r; this is actually the kind of 'lite rite-ing' they CAN do. They don't have to be embarrassed that they can't spell, and text messaging is extremely social.

But how do these non-reading text-messaging citizens make sense of Hillary 'stabbing' the military, or the FBI 'in the back'?
They're not going to read a blog; politics frustrates them. (Too complex; too confusing. UNLESS it's a 'horse race' style campaign narrative that is simple for them to follow. They watch movies and teevee. A lot.)

I listen to people who are CONSERVATIVE, and over and over I hear common themes: in the "Information Age" if you cannot read, if you cannot write, if you do not communicate effectively, 'you're f*cked'. You have trouble filling out a job application or an apartment lease. You have to disguise your inability to read with bluster, body language, talk. They like talk radio -- because it allows them to 'feel informed'. They are very 'auditory'; this is partly adaptive, since reading is such a challenge for them. They LOVE talk radio, text messaging, YouTube, and cell phones.

Along comes George W Bush, a politician who communicates that it's 'okay to be stupid'. He communicates: "Hey, I can't read either. [But} it's okay because I leave that sh*t to the Smart People (cue Cheney's entrance). I just let the Smart People do all the Heavy Lifting, and when they give me a one page summary, then I decide."

After liistening to auto mechanics, car salesmen, truck drivers, waitresses, and hair stylists, it's my hunch that probably millions of Americans voted for George W Bush primarily because he didn't make them feel 'stupid' in the Information Age where they are at tremendous risk economically. Whereas Hillary, or Al Gore are insufferably 'smart'. Al Gore's sighs in the 2000 debates made people who ALREADY 'feel stupid' feel really dumb. And they felt emotionally connected to George W Bush because they were always 'the dumb kids' in their class and they got 'sighed about', too. They found it humiliating. When Al Gore sighed in those debates, their old resentments about being 'the dumb kid' kicked into high gear.

So they're not... 'intellectuals'. They didn't go to college; their idea of 'getting away from home' was to join the military. And anyone who screws with the military is absolute scum in their eyes. They don't like uppity people (like me) who read well and use way too many 'big words'. (They like that I like them; I suspect that I am the most informed commenter at EW on the topic of How Tire Pressure Affects NASCAR Races, and I also understand why NASCAR's rules aren't leading to better engine designs, but I digress...)

Bush made them comfortable -- here was a Dumb Guy who made them feel 'okay' about having been The Dumb Kids. He reads the Bible; so do they.

But he has been caught in one too many lie.
So will they believe him, or his stand-ins, when they claim that Hillary is 'stabbing (the troops) in the back'?

They value fairness and honesty.
They believed Bu$hCo, but were lied to.
They don't trust Bu$hCo.
I suspect they are looking at Bush, and at Hillary, and at all the others in the news and wondering, "Which one is Caligula?"
Is Hillary more similar to Caligula? Or is George W Bush?

If you view any of this through a lens of what learning disabilities can imply about behavior, and about decision-making, it's very ominous. Bush: a cornered man, who has trouble processing complex written information and abstract details, is desparate. In the past, he's shown a pattern of seeking to destroy anyone who threatens him (Jim Hightower, Ann Richards, John McCain).
He's also repeatedly shown that he resents 'Smart People' (cue: Hillary Clinton, Al Gore, Jim Webb, Chuck Shumer, Pat Fitzgerald, Wesley Clark), who humiliate him simply by existing. (I am not blowing smoke -- I've watched this pattern of behavior repeatedly; generally in white, middle-aged (mostly men) who had been laid off and were hopeless, resentful, defensive, defiant, and scared.)

Given some background dealing with adults whose lives have been seriously impacted by learning disabilities, I'd guess that Bush has no clue how to back down. He's defiant, inflexible, desparate, and he'd rather die than be humiliated. I've seen the type.
And then there's Cheney, an authoritarian who clearly builds Bush's ego. (BTW: Just why did Cheney flunk out of Yale? Anyone here know?)

Bottom line: Bush **has** to present Hillary as a threat, a danger, a 'stab in the back' person.
(I hope Hillary has some good Biblical one-liners, because she just may need them.)

Auto mechanics, hair stylists, technicians aren't going to read a blog like this. They can't.
But they've watched "Gladiator."
They understand that when Caligula went after Maximus, he hid the knife.

So the Dems need to reveal who actually has the knife, who's doing the stabbing, and who's getting stabbed.
If the Dems sit by and let Bu$hCo further undercut the FBI, the CIA, the military, and DoJ, then we -- and much of the rest of the globe -- are lost.

Because there are plenty of creeps, dictators, drug lords, and criminals on the planet who will enslave, pimp, and otherwise degrade their own fellow humans unless there is a mighty force for true justice in this world. So if the Dems fail to deal decisively, but shrewdly, with Bu$hCheney, we will all be screwed.

..

readerOfTeaLeaves --

Thanks for that great analysis and I agree with it up to a point. I think you're spot on about Bush regarding his inflexibility and it may well extend to other people with learning disabilities. But having grown up in rural America I always get uncomfortable about broad characterizations that paint rural blue collar folks as a bunch of illiterate hicks. It simply isn't true. Some of the smartest people I know are farmers, and I know people with Ph.D.s in academia that have pictures of NASCAR drivers on their office walls.

You are right that rural people can't read blogs, but that's not because they can't read, it is because the cable companies did not follow through on promises they made a decade ago to extend their service to far flung locales. Heck, there are neighborhoods in Midwestern cities that don't have service yet. Meanwhile the residents of these areas assume they are getting the news they need from the MSM. An assumption I made myself about the NYT and WaPo until fairly recently, so it is not an unreasonable assumption. And blogs are still a new and evolving source of information. Prior to discovering Buzzflash, DailyKos, C&L, FDL, TNH, TPM, etc., I had thought blogs were mostly of the "dear diary" variety, and with 6 billion people on the planet, who has time to read all that? So part of reaching out to a broader audience involves getting even connected people to realize that blogs are a viable reliable news source, as well as a great place for dialog (Al Gore's public square as it were).

So while I concede that the personality type you describe certainly is something to be reckoned with, I do not believe it is representative of the majority of rural people. It certainly was not true of my hometown.

phred

Second that.

Rural areas went for mobile phones early - your home phone may be a mile or more from the field you're in. The rural area my parents retired to (the nearest PO was ten miles away, the nearest place to buy gas was four) had a computer in almost every house, because the farmers need them to do accounting and planning. The local extension office was the local source for Excel training. People signed up for 18-inch satellite dishes through the phone and power co-ops, even with a six to eight month wait for delivery. The nearest city (pop 25000) had, at one time, four BBS/ISPs at the local level. The newspaperhad one of them. The public library is a major point for local access to the Web (they had a LAN in 1992). No one is going to run cable ten or twenty miles out into the country, and the local phone switcher is too far for DSL; your choice is satellite or dialup. The demand is there, the technology is slow.

why [doesn't] someone run against Tom Davis

Because Davis is very likely to run for Senate if Warner retires. Warner is not fundraising like someone who plans to run.

An open seat in NoVa would be a quite possible Dem pickup, assuming the primary didn't leave too much blood on the floor.

Hey Phred, Excellent points! I've vastly 'oversimplified' the urban/rural spectrum. Like you, I am fortunate to know some very smart farmers. Sorry to give the wrong impression 8-(
Farmers really are an 'endangered species' these days, and the economics for farming are not for the faint of heart.

People in all kinds of communities have learning disabilities that affect their political perspectives and livliehoods.Several of the people that I described live in smaller or mid-sized cities (40,000 - 100,000). Others live in suburbs of a large West Coast urban region. Still others live in genuinely rural (agricultural) areas.

Unfortuanately, anyone who's spent years as a dairy farmer, or a wheat grower, or a logger doesn't just turn on a dime and find a new job in mid-life. They're told in many subtle ways that no matter how much experience and expertise they have, it's 'not relevant'. They're losing their livlihoods, lifestyles, and identities. And these are the very people who have worked hard and 'played by the rules'.

In parts of my state and adjoining states (Wa, Oregon, Idaho, Montana) you'll find some smart farmers who want their kids to learn Japanese and Chinese, and who are remarkably well-traveled. Those lentils, wheat, potatoes, and beef get shipped off to lots of places, and they need to know about their customers. Few Americans have any idea how much soil chemistry, climatology, international trade policies, and other seemingly-unrelated topics a whole lot of farmers understand, explain, and apply in the course of a day.

Anyway, too long on the blogs today; but your points are well taken and I sincerely appreciate your pointing them out to me.

Although I've oversimplifed the rural/urban distinction, the reading research and info about learning disabilities definitely still applies. In smaller communities, it's often easier to spot adults with long term LDs (learning disabillities) than when you meet them in urban areas. In smaller communities, they tend to have more social support; a supportive community is a huge asset for anyone undergoing a lot of change, and for some of these people the prospect of new biofuel operations, or 'Green Economy'' initiatives, could be a huge benefit. But to move those things forward, we need a government that is open, functional, and not hampered by secrecy and mistrust.

PJ Evans, yeah, see a farmer; see a cell phone ;-)
Last week, I saw a classic scene: guy out moving an irrigation line with a cell phone in one hand, irrigation valve in the other. And it's a fair bet that he had a satellite dish back at the house.

I also evidently didn't point out clearly enough that having a learning disability doesn't mean a person is stupid. However, in the (many) cases that I've seen, it adds a layer of complication to the way that they seek, use, and apply information.

readerOfTeaLeaves -- I figured that was what you were driving at in your earlier comment, but still wanted to clarify some of the technological hurdles rural communities face, although PJ did a much better job at that than I did (thanks for that!). So no worries, just wanted to add my two cents :)

And I agree, we desperately need a better farm bill because the deck is completely stacked against family farmers. I went home for a class reunion not too long ago and my classmates who had inherited farms were still farming, but most of them had day jobs so they could support their families. They love farming too much to give it up, but they can't make a living doing it. Back in the late '70s/early '80s it was a farmer who first explained to me how screwed up the farm subsidies were. Prior to that I thought they were a good thing. A few months ago I was reading Michael Pollan's book Omnivore's Dilemma where he explained the same problem -- almost 30 years later and we still get sold the same bill of goods about how farm subsidies are saving the family farm -- poppycock. They should be, but they're not.

Phred (and PJ Evans), thanks for keeping me more accurate (and therefore, more honest). phred's point rings true for me: too many farmers need supplemental income simply to continue farming. That should worry the rest of us.

And yeah, I know at least one NASCAR fan who is an academic (mechanical engineering ;-)

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