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March 30, 2007


Very good, I find it interesting the obviously intentional mispronounciation of communist as "commonist", and then gaming the witnesses to bring them up on charges. Some things never change. And I thought it was only recently that they so took "sucker born every minute" to heart.

another excellent essay at the intersection of politics and hsitory.

thank you, sara

Thank you for this summary. What do you mean by: "Afterall non-Judicial Security Letters are on the block now...?"


Ah, the mystery of the post with no body has been solved. I suspected all along it was Sara. But you fooled us--you were thinking of cases that came down in the '50s that shaped the '60s.

Good essay, as always, but I disagree that we could not revert to McCarthyism/McCarranism. That was really the goal of the Bush/Rove project--pervert the elections system to gain an unfair advantage and take over the judiciary through radical appointments. Demand blind loyalty from a Congress who was only too eager to take the campaign cash (and bribes) and the rigged outcomes. And brand everyone who disagreed as a traitor. A fully remade judiciary would have overturned most of those precedents, I fear.

It might well have worked if the Bushies had been less incompetent. Their penchant for hiring supremely unqualified but loyal youngsters for top jobs and their disdain for expertise ensured that most everything they touched would eventually turn to sh*t. It isn't chance that Iraq, Katrina etc turned out the way they did; it is sheer incompetence and, as so many remind us, it is the predictable fruits of an ideology that doesn't really believe in government as a way of solving problems (other than how to make the rich richer).

Thanks, Sara!

I appreciate the constitutional law history tutorial here. I learned something new today. I hadn't heard of any of these cases. Granted I was a child when they were handed down, and not yet living in the US (my father was in the Foreign Service in Latin America at the time).

that's a whole lot of info to digest first thing in the morning

I had to take a few hours to think of a response to that one

studying the history of the Civil Rights Movement is mostly like watching sausage being made, but this was completely enjoyable

I'm glad to know that there was progress made that DIDN'T involve a lynching or church bombing

this proves to me that reality has a bias towards Civil Rights

giving people liberty is hard. Making those people fight for the liberty they have is harder

thanks for helping me and a lot of other people understand the process of how we got here. this diary should make it a little easier to defend our liberty

and as a bonus, the freepi hate these little facts that destroy their fucked up world view

I can't wait to share this dairy with "friends"

yo Mimikatz, re "the mystery of the post with no body"

it's not only been solved, all the guesses in the comments thread have been graded, and everybody who guessed was completely wrong

this might be because the title was the only information provided, and it was worded to imply that the rulings happened in the 1960s

now that the mystery has been solved, can somebody ask Sara for the details that led to the "mystery post" I love details)

even if it was unintentional, it worked out pretty good as a vehicle for discussions


McDonald, from the CV listed in the comments section of the site TPMuckraker.com, held her first government job in 1979, she is hardly a "youngster." If she were hired right out of college, with a masters as the CV states, she would be in her 50's. link to CV: http://www.doi.gov/news/040503b

Do the math: 1979- 6 (years to get a masters) = 1973, year she would have graduated from high school, at about 18 years old. 1973-18= 1955,or year she was born, making her 52, or something near that.

I think there is a naive comfort for critics of this administration to write off the transgressions to underqualified "youngsters." That is not true, most are boomers, and they certainly knew exactly what they were doing.

Ok. I was really thinking of Monica Goodling (who, at 33, is a youngster to me), but then I remmebered MacDonald, who is a real piece of work. But she is a hack.

And I'm not naive about these people, having lived through both McCarthy and Nixon.


Once again, thanks for the information. I graduated high school in 1961 in Texas, and vividly recall the "Impeach Earl Warren" signs and bumper stickers. I had detested both Nixon and McCarthy at a young age, and never realized what followed the condemnation of McCarthy beyond his death from alcoholism.

Can't tell yet what I think this will mean to the Bushies in the future. Glenn Greewald offered an excellent current essay yesterday in which he points out that today's NeoCons are not conservatives in the vein of Goldwater or even Reagan. Bush will be gone in the near future, but the form of highly authoritarian and militaristic conservatism which we now suffer with is not going to leave with Bush and his immediate tribe.

Since in my opinion we now have a Republican Party committed to Rule By Law rather than Rule Of Law, the Red Monday decisions are going to be a real roadblock for them to deal with. They WILL attempt to do so in secret, and we will need to make sure the light shows on their actions.

That's as far as I have gotten in thinking about this, but this essay is one of the very rare things I have read on the internet that I have both saved and printed out to study.

I look forward to your essays. Keep it up.


Yea, sorry about that post with no content -- I was trying to import the body into typepad, and the Computer ate it for some reason. But this version is better.

My comment on non-Judicial National Security Letters referrs to the hearing this week in Senate Judiciary where Muller testified regarding the FBI's failure to follow the rules in the use of these letters. Leahy apparently has some support for modifying the Patriot Act to take these powers away from FBI given misuse. This would not have been a possible solution in the late 1950's -- any redress would have had to go through the courts simply because of the character of legislatures. Leahy seems to be thinking of requiring judicial review of warrants.

Anyhow, I thought it time to revive the history of the five 50's Civil Liberties cases, (It is, afterall, approaching the 50th Birthday of these five decisions -- Jencks, Sweezy, Watkins, Service and Yates,) and throw them into the discussion about present day issues. Things like limitations on what kind of questions Congress can ask a witness as part of an investigation -- something Monica Goodling clearly needs to learn, need revival and a connection back to these old Civil Liberties cases. Ironically, her protection from "the meanies" rests on the accomplishments of some old 1930's leftie labor organizers.

Great words and an awesome perspective. Rarely do we appreciate the case law battles before the battles that decide the war. Given what we know now it seems the unintended consequences may have saved them from themselves.

The post with no body was fun. It really worked out well.

Although this is also kinda good.

Of course we could go back to McCarthy and worse. As a matter of physics, power always does flow from the barrel of a gun. We are at the moment watching an unfolding causus belli in Iran aren't we?
Get that rolling and the Big Fear returns. It's a part of human nature.

This is one of the most enlightening posts, on any subject, that I've ever read. And I've read more blog posts than I care to think about.

Thank you, Sara.

yup, Sara is a treasure.

Since the other thread in which we made up the development ideas, I have found a few cherishable links for context. I will leave those with a brief introductory remarks section, in appreciation. As Mimikatz first reminded us in the other discussion, whose title was somehow more retrospective than Sara's current, and very accomplished elucidation, in the latter days of the subsequent decade Miranda was bedrock formed and enduring substantially providing rights for prisoners for a few decades; until very recently. Remarkably, reading Miranda, one discovers the sole Truman appointee whose tenure lasted beyond the 1950s, Associate Justice Tom Campbell Clark, as was his wont, typically dissented in Miranda, although joining the majority opinion written by Chief Justice Warren in the narrow subsection of Miranda which treated the companion case of Stewart. For the very modern among us, I provide a link to a picture of an oceangoing cardgame around which table were joined both Truman and his appointee to the Supreme Court, Tom Clark; TC is the one reaching for his downcard. An allied and more obsequious depiction may be found elsewhere in government archives, though in this laudatory image Truman seated demonstrates his air of concentrated attention; the text belies that somber appearance, divulging that Truman was a tad more of a dilettante at poker than Hoyle orthodoxy would recommend.

In the other thread I linked to Associate Justice Goldberg's thumbnail biography in which it was stated that among the opinions which he elaborated in his brief tenure on the Supreme Court was Escobedo. In reading Miranda, one is impressed by the number of important precedents the Escobedo case provided for reaching the full suite of protections set in the context of the laws of modern nations which Warren examines in Miranda.

Carrying forward from Miranda into our millenium, the Roberts court concocted the ruling denaturing some of the privacy underpinnings of Miranda in what was primarily a fourth amendment case, that of Booker T. Hudson, Jr., v MI (2006) 04-1360 in which fully half of the 52 page slip opinion is comprised of Associate Justice Breyer's carefully documented argument based on decades of caselaw far beyond the majority opinion composed by triggerhappy Scalia. Breyer's chronology of cases in the last footnote is an excellent guide to the mainstream current in US law which produced the prisoner rights rule in Miranda v AZ.

On Justice Clark -- in his old age and cups, Harry Truman nominated Clark as his worst appointment ever. I've always remembered a combination of Clark's decisions and his various written dissents, when I watch his son, Ramsey Clark, do what in my mind are silly things like defend Milosevich and Saddam Hussain. Bush invades Iraq to vindicate Poppy, -- Ramsey really has taste in clients to vindicate his Daddy. (God, if you exist, get us out of this cycle!!!)

But John Lopresti is right in pointing to the Roberts Court picking cases to hear about Privacy -- you really can't undo Rowe v Wade unless you undo it's root, which is Griswold, which found Privacy in the Constitution, ultimately leading to Rowe. While difficult, one way to thwart Roberts is to send him Privacy cases based on litigation around things like Goodling et al. Does she have a private zone around things she did while in public service? Do USA's being politically dismissed have a right to privacy or at least accuracy in why they were fired? In other words, cases around these privacy matters could emerge from various circuts, with different decisions, forcing the court to take appeals from Conservatives (or wingers) that conflict, but are about the question of a Constitutional basis for privacy.

For while the Court can not pick and choose its issues except as they have a choice of cases -- that string of cases around Red Monday was about an issue being ripe for decision. I think it wise to see Privacy coming in the near future -- and get up the discussion that lays the predicate. As I said, the slow evolution of case law is not exactly great Cable TV Entertainment, but we need to know how critical it is.

This is an excellent post which provokes the question: what to do about the P.A.T.R.I.O.T. Act which is the cause of so much mischief which has partly put us in the situation you describe? My hope is that it will be repealed as the piece of legal garbage that it is. In my mind, it has nullified the Constitution where privacy (among other basic rights) is guaranteed.

I think either repeal or vast revision of the Patriot Act is the direction Leahy was headed when he stubbed his toe on the US Attorney matter. We should never forget this issue emerged because bloggers over at Josh Marshall's place tracked down the elementary pattern of the firings, and then things went from there. But before that, Leahy had called for the GAO studies that provided the base for his hearings on National Security Letters last fall, and he was ready to go on that once he became Chair of Judicary. To get to reform, repeal or revision at some point in the future, Leahy has to lay the predicate. He needs perhaps ten different issues such as the National Security Letters in order to arrive at a point where the Senate will vote out major reform. Frankly, I don't think it is worth trying to do major legislation till we have a different President. No sense doing lots of quality legislative work only to get a Veto. So you get ready for 2009.

I’d prefer reading in my native language, because my knowledge of your languange is no so well. But it was interesting!

I’d prefer reading in my native language, because my knowledge of your languange is no so well. But it was interesting! Look for some my links:

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