Balkinization  

Tuesday, June 12, 2007

The Govenrment's Strange Motions for Reconsideration in Hamdan and Khadr

Marty Lederman

The government has filed motions for reconsideration of the military commissions judges' recent decisions that the Pentagon has failed to satisfy its burden of establishing jurisdiction over the defendants in the Hamdan and Khadr cases.

I've only had time to quickly peruse the Hamdan motion. The Khadr motion is here. (Thanks to Lyle for the links.)

The motion asks Judge Allred to either defer to an supposed finding of the CSRT that Hamdan is an unlawful enemy combatant, or to make such a finding himself. The oddest thing about the Hamdan motion, however, is that the government never really gives a persuasive factual account of why Hamdan is an enemy combatant, let alone an "unlawful enemy combatant" as that term is defined in the MCA.

The MCA defines "unlawful enemy combatant" as "a person who has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents who is not a lawful enemy combatant (including a person who is part of the Taliban, al Qaeda, or associated forces)." 10 U.S.C. 948a(1)(A)(i).

The government appears to make at least four arguments about why this standard is satisfied in Hamdan's case.

First, the government argues (pp. 8-9) that "the MCA recognizes that being a 'part of the Taliban, al Qaeda, or associated forces'--without more -- qualifies a person for 'unlawful combatant status." (Government's emphasis.)

I think this is simply wrong -- the statute can't fairly be read to establish such an irrebutable preumption, and it would have been unreasonable for Congress to create such a presumption. Obviously, it is not the case that anyone who is, e.g., part of forces "associated with Al Qaeda," or anyone who is "part of" Al Qaeda itself (whatever that means) has thereby and "without more" "purposefully and materially supported hostilities against the United States or its co-belligerents."


Second
, the government argues (pp. 6-7) that Congress intended that a prior CSRT finding of "enemy combatant" status would automatically establish unlawful combatant status.

But the definition the CSRTs used to determine combatancy status was simply "an individual who was part of or supporting Taliban or al Qaida forces, or associated forces that are engaged in hostilities against the United States or its coalition partners." To be sure, that definition expressly "include[d]" any person who has committed a belligerent act or has directly supported hostilities in aid of enemy armed forces"; but it was not limited to such persons. And indeed, the proof of this is that it is not at all clear that Hamdan himself directly supported hostilities in aid of enemy armed forces -- and yet the CSRT deemed him an enemy combatant.

That is to say, the CSRT's finding of "enemy combatant" status did not necessarily include a finding that the person "has engaged in hostilities or who has purposefully and materially supported hostilities against the United States or its co-belligerents," as the MCA appears to require for unlawful combatant status.

Third, the government argues (p.8), as it did last week before Judge Allred, that unlawful combatant status can be recognized by viewing the CSRT finding conjoined with the President's findings as to Al Qaeda.

But as the government's motion itself points out, the President merely found that members of Al Qaeda did not qualify for POW status under Article 4 of the Third Geneva Convention. Even if the military commissions should defer to a categorical, non-individualized determination such as that -- something that Judge Allred pointedly questioned -- the President's finding that Al Qaeda members (which might include Hamdan) are not entitled to POW status simply doesn't speak to the question of whether they are combatants, let alone whether they are "unlawful" combatants under the terms of the MCA.

Fourth, and most importantly (it actually comes first in the motion -- p.3), the government sets out the facts from which Judge Allred is urged to make his own finding that Hamdan is an unlawful enemy combatant. The alleged facts are these:
Hamdan served as Bin Laden's personal driver and as a "member" of bin Laden's body guard detatchment;

Hamdan "armed himself with a weapon";

and

Hamdan "was captured by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon."
That's it.

It's not at all clear that such conduct described anything unlawful at the time it is alleged to have occurred. (Subsequent to the conduct, Congress passed a law making it unlawful to provide personal services to a terrorist organization; but I don't believe that was an operative crime at the time.)

More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefuly and materially supported hostilities against the United States."

Here's the simple question the motion for reconsideration conspicuously fails to answer: What, exactly, is it that Hamdan is alleged to have done that proves he "purposefully and materially supported hostilities against the United States or its co-belligerents"? I don't know whether Hamdan did or did not do so. But if this is the best the government can do to make that case . . .

Comments:

Close your bold & italics after "Khadr"!
 

Professor Lederman:

First, the government argues (pp. 8-9) that "the MCA recognizes that being a 'part of the Taliban, al Qaeda, or associated forces'--without more -- qualifies a person for 'unlawful combatant status." (Government's emphasis.)

I think this is simply wrong -- the statute can't fairly be read to establish such an irrebutable preumption, and it would have been unreasonable for Congress to create such a presumption.


Why not?

al Qaeda (and arguably the Taliban because no one recognized their government) are non governmental militias under the definition of Article 4(A)(2) of the GC. There are four elements in the determination of whether members of such an organization are lawful under this GC provision.

2. Members of other militias and members of other volunteer corps, including those of organized resistance movements, belonging to a Party to the conflict and operating in or outside their own territory, even if this territory is occupied, provided that such militias or volunteer corps, including such organized resistance movements, fulfil the following conditions:

(a) That of being commanded by a person responsible for his subordinates;

(b) That of having a fixed distinctive sign recognizable at a distance;

(c) That of carrying arms openly;

(d) That of conducting their operations in accordance with the laws and customs of war.


Congress and the President can reasonably make the determination that al Qaeda / Taliban and therefore its members are not lawful combatants because the organization does not meet elements (2) - (4) of Article 4(A)(2). This does not require an individualized examination of al Qaeda / Taliban members by the CSRT or the Military Commission. The only real determination which needs to be made is whether the capture is a member of those organizations.

Obviously, it is not the case that anyone who is, e.g., part of forces "associated with Al Qaeda," or anyone who is "part of" Al Qaeda itself (whatever that means) has thereby and "without more" "purposefully and materially supported hostilities against the United States or its co-belligerents."

I do not see why not. A military organization is a team. Every member of the US Armed forces from the commanding officers to the staff of the support services like supply and maintenance are all combatants in the war against al Qaeda. They do not have to be carrying arms in direct combat with al Qaeda. They support the war effort simply by being a member of the US armed forces and doing their jobs.

If any member of the US armed forces is captured by al Qaeda, the enemy can hold him or her for the duration of hostilities with the US. I see no reason why the reverse would not hold true. Unlawful al Qaeda combatants do not have more rights than our uniformed soldiers.
 

Bart, you've said "if you were king" you would cut through this tiresome red tape of habeus corpus reviews by summarily executing and "Captures" who belonged to Al-Qaeda (or other non-uniformed forces).

"If you were king," would that extend to non-citizen "Captures" taken in the United States? (Who have succeeded in "invading" the United States I believe were your words).
 

In fewer than half the CSRTs were any factual allegations made against the prisoners. Of the minority of prisoners who were accused of anything at all, the average number of "charges" was around two.

And of the list of charges, a very high number consisted of extremely trivial "allegations". One of the favorite allegations was that the prisoner possessed a gun.

Others were, for example, that the prisoner stayed once in a "guest house" (IOW, a B&B), or was wearing green clothing when he was sold to American forces.

So it's not too surprising that the gummint has relied on such trivial allegations. In all too many cases of terrorism-suspects, that's all they appear to have.
 

One further thought:

Why do nearly all comment threads on this blog center around futile debate with bart depalma? The fellow is seriously lacking in judgment, at a minimum, as well as evasive and factually challenged.

So why bother to engage him at all?

There are nearly always stimulating and well-argued posts at Balkinization, and yet most commenters seem to turn their backs on it in order to hurl abuse at bart. It's rather like shooting pickles in a barrel.
 

Enlightened Layperson said...

Bart, you've said "if you were king" you would cut through this tiresome red tape of habeus corpus reviews by summarily executing and "Captures" who belonged to Al-Qaeda (or other non-uniformed forces).

I never posted anything of the kind. I merely observed that this is how the laws of war traditionally treated those determined to be unlawful enemy combatants.

If I were "KIng," I would detain and interrogate unlawful enemy combatants under conditions not too different than those presently at Gitmo. Given that these combatants come from a death cult, I would not try them and give them a propaganda platform or execute them and give the enemy martyrs. If the enemy capture is a gross war criminal like KSM, throw him into solitary confinement until he dies.

"If you were king," would that extend to non-citizen "Captures" taken in the United States? (Who have succeeded in "invading" the United States I believe were your words).

Why would you possibly grant additional benefits to unlawful enemy combatants who manage to invade the US, in effect rewarding them for doing so? We have never done so in the past. Treat them all the same.
 

Um, Bart, even if we assume your gloss on the Geneva Conventions is correct, how does that establish unlawful enemy combatant status under the MCA? The MCA has its own definition, which the tribunals held was not met.
 

Professor Lederman,

Do you attribute the government's "strange motions" to general ineptitude or the lack of evidence to put forth a legitimate argument?
 

Prof. Lederman:

The government appears to make at least four arguments about why this standard is satisfied in Hamdan's case.

First, the government argues (pp. 8-9) that "the MCA recognizes that being a 'part of the Taliban, al Qaeda, or associated forces'--without more -- qualifies a person for 'unlawful combatant status." (Government's emphasis.)

I think this is simply wrong -- the statute can't fairly be read to establish such an irrebutable preumption, and it would have been unreasonable for Congress to create such a presumption.


Actually, I think that the gummint is arguing this (see at the bottom of the comment), and that the eedjits, lemmings and lazy slobs that shoved through the MCA probably would agree that this is what they had in mind.

But I personally have issues with declaring an organisation de jure criminal (particularly doing so ex post facto as this one does) and then prosecuting anyone who (allegedly) belongs to that organisation as individuals -- you know, the "group guilt" kind of thing has lost its sheen over the years since the "blood libel" and all -- even for 'crimes' they personally haven't committed. But these are parlous and dark times, and there's plenty that think that all 'expedient' procedures should be used in this Crus... -- ummm, sorry, "Great War On A Scary Noun"....

Cheers,
 

Dilan said...

Um, Bart, even if we assume your gloss on the Geneva Conventions is correct, how does that establish unlawful enemy combatant status under the MCA? The MCA has its own definition, which the tribunals held was not met.

My point was that Congress and/or the President may make factual and legal assumptions about the unlawfulness of al Qeada or the Taliban's activities. The military must still prove whether the military commission defendant was a member or "part of" those organizations.
 

Prof. Lederman:

Fourth, and most importantly (it actually comes first in the motion -- p.3), the government sets out the facts from which Judge Allred is urged to make his own finding that Hamdan is an unlawful enemy combatant. The alleged facts are these:

Hamdan served as Bin Laden's personal driver and as a "member" of bin Laden's body guard detatchment;

Hamdan "armed himself with a weapon";

and

Hamdan "was captured by Northern Alliance forces in the vicinity of Kandahar in possession of a weapon."

That's it.

It's not at all clear that such conduct described anything unlawful at the time it is alleged to have occurred. (Subsequent to the conduct, Congress passed a law making it unlawful to provide personal services to a terrorist organization; but I don't believe that was an operative crime at the time.)

More to the point, as I read it, those alleged facts simply do not establish, as the MCA requires, that Hamdan "purposefuly and materially supported hostilities against the United States."


True, but once again, the gummint would like to elide the phrase "enemy combatant" into "unlawful enemy combatant". Even if these facts support Hamdan as being an "enemy combatant" (which I think they do not), the gummint would like to finesse this into Hamdan thus being an "unlawful enemy combatant" by virtue of al Qaeda having engaged in acts contrary to the laws of war.

But I'd note that trying so hard to make all al Qaeda "enemy combatants" works against the gummint's purposes; in making this claim, they then would be seemign to acknowledge that GC3 applies. This is why they try and do the quick shuffle to immediately make them "unlawful", based on this theory that "unlawful enemy combatants" fall outside of GC3 (despite the fact that GC3 makes express provisions for criminal trials of enemy combatants for acts that are statutory crimes or crimes against the laws of war).

Making anyone who is a "enemy" de jure criminal is contrary to the thrust of GC3. But it is convenient ... why, maybe the Dubya maladministration might be thinking next of applying this philosophy at home....

Cheers,
 

"Bart" DePalma simply makes sh*te up:

[Prof. Lederman]: I think this is simply wrong -- the statute can't fairly be read to establish such an irrebutable preumption, and it would have been unreasonable for Congress to create such a presumption.

Why not?

al Qaeda (and arguably the Taliban because no one recognized their government) are non governmental militias under the definition of Article 4(A)(2) of the GC. There are four elements in the determination of whether members of such an organization are lawful under this GC provision.


GC3 doesn't define "lawful" in Article 4. It defines "prisoners of war":

Article 4

A. Prisoners of war, in the sense of the present Convention, are persons belonging to one of the following categories, who have fallen into the power of the enemy:..."

Cheers,
 

"Bart" DePalma inadvertently lets a little bit of truth seep through:

My point was that Congress and/or the President may make factual and legal assumptions about the unlawfulness of al Qeada or the Taliban's activities.

Yeah, that pretty much sums it up.

Cheers,
 

[arne beats me to it.]

My point was that Congress and/or the President may make factual and legal assumptions about the unlawfulness of al Qeada or the Taliban's activities. The military must still prove whether the military commission defendant was a member or "part of" those organizations.

# posted by Bart DePalma : 9:20 AM



Now we are getting somewhere. This is exactly what the court in Al-Marri said. That President Bush may make an initial determination that someone can be held (even on assumptions), but, the determination as to whether or not the detention is proper requires due process.

Now we must get Bart to admit that Military Commissions as currently constituted do not provide adequate due process protections for "alleged" enemy combatants. People presumably still with rights.
 

Here's a thought.

Every time we argue about due process, let's remember that "due process" is almost synonomous with "rule of law."

Laws Herr Busch has problems working within as he conducts his one man perpetual war for perpetual peace.
 

Terrorism is a hate crime.

Who are we at war with..., it's been profferred that we are at war with people who hate america.

A US citizen has a First Amendment Right to hate america just as they have a first amendment right to hate blacks, gays, jews, abortion doctors... you name it.

They are not and cannot be punished for their views.

We do however punish their crimes, monitor hate group activity and otherwise treat it as a serious law enforcement problem.

We have seen a tendency in the law to come right up to the line of punishing bad thoughts as we have with terrorism.

This is not a military problem. You cannot combat the hatred of America with force of arms.

The best way to counter bad speech is with good speech.

It is in the nature of Democracy that they do not abandon their principles during time of war and suffer the battle with "one arm behind her back," but it is that indispensable restraint that lends moral certitude to her cause. We do it because it is right. (rough paraphrase of someone)

Loyalty to your country always, to your gummint, when it deserves it. - Mark Twain
 

smintheus:
I agree that it's a waste of time for everyone to argue with Bart on every thread, but I do think there's some value in having someone question his specific legal claims. Otherwise, to a casual observer, it looks like "well Lederman wrote such-and-such, but there's an articulate lawyer who disagrees, so who's to say." Bart does seem to aim many of his remarks at a layman audience. If I remember correctly, he has several times cited ex parte Quirin to support his position on military detentions, as if that settled the matter, without even mentioning that there has been significant disagreement (from the ABA among others) as to whether that decision really applies; he didn't bring up those arguments and dismiss them, he just didn't mention them. This suggests that he isn't trying to get lawyers to take his arguments seriously, but just muddying the waters, like the countless White House partisans who go on TV shows to drop one-liners like "Saddam kicked the UN inspectors out" because no one is likely to correct them in the same forum.
 

Hob:

Bart does seem to aim many of his remarks at a layman audience. If I remember correctly, he has several times cited ex parte Quirin to support his position on military detentions, as if that settled the matter, without even mentioning that there has been significant disagreement (from the ABA among others) as to whether that decision really applies; he didn't bring up those arguments and dismiss them, he just didn't mention them.

More than that, he ignores refutations of his nonsense even on the threads here. He just slinks off to a new thread and says the same o'l sh*te all over again.

FWIW, I obviously agree with you that, while "discussion" with a hallucinatory (or dilatory) person is fruitless and unfortunately irksome for those that have seen it all before, it nonetheless has the salutary purpose of informing the passers-by as to the actual state of affairs.

Cheers,
 

As a layman, I can definitely confirm that there is value in your debunking of Baghdad Bart's legal claims.
 

Was anyone else bothered by today's subpoena to former White House Counsel Harriett Miers? What kind of precedent is this setting? Does anyone here think that Congress can force the President to testify before them?
 

Bart:

The President might make a determination that someone is an unlawful enemy combatant under the Geneva Convention. Let's assume arguendo that (1) this has occurred with respect to Hamdan and Khadr, and that (2) the President's determination has the same effect under the Geneva Conventions as one made by a "competent tribunal" called for by Geneva. (I don't really know what you mean by Congress having made the determination-- as far as I can tell, Congress has simply defined the conflict (in the AUMF) and defined unlawful enemy combatant (in the MCA); it hasn't passed any law that says that "X is an unlawful enemy combatant".)

That still begs the question, which is, under the MCA (not Geneva), is the President's determination conclusive? Or does the Military Commission have to decide it itself? Or does a CSRT have to decide it? Can the Military Commission make up its own mind, or does it have to afford deference to a previous determination. How much deference?

As far as I can tell, the MCA doesn't answer this. It simply makes unlawful enemy combatant status a prerequisite for tribunal jurisdiction, says that a CSRT's determination can establish this, and leaves all the other questions up to the Military Commissions.

It simply isn't a clear statute on this point, and that's what gives rise to the competing interpretations.
 

Was anyone else bothered by today's subpoena to former White House Counsel Harriett Miers? What kind of precedent is this setting? Does anyone here think that Congress can force the President to testify before them?

There seems to be ample precedent for it. Link.
 

Hob, I'm all in favor of informed debate, and I can see the sense in busting some of Bart's points occasionally.

But he's obviously unwilling to concede facts or address basic issues. Yet nearly every thread on this site revolves around "debating" with somebody who's just tossing off nonsense...the same discredited nonsense, over and over.

Surely it's enough for one person to slap his nonsense down, and then move on to a sensible discussion?
 

Dilan,

Herr Bart has stated on other occasions that the President's assumption, sorry, determination of enemy combatant status provides adequate due process for indefinite detention. Period.

He won't bother discussing whether or not CSRTs provide adequate due process, but, based on my latest understanding of them, they don't.

All one is entitled to is the astute determinative powers of Herr Busch.
 

This comment has been removed by the author.
 

To paraphrase Herr Bart; the only reason to try'em is to kill'em.

Herr Busch's rulings are firm, but just.
 

Yeah, I know that feeding the troll only seems to encourage it, but let's set a fact straight.

Quoth Bartholomew:

no one recognized their [i.e, the Taliban's] government

Wrong: Pakistan, Saudi Arabia, and the United Arab Emirates each formally recognized the Taliban as the government of Afghanistan during the 1996-2001 period. You might with some reason find this to be rather a rogues' gallery of despotic governments, but the Bush Administration considers at least two of them to be invaluable partners in the War on an Astract Noun. And those three nations are a long way from "no one."
 

Mark Field: There seems to be ample precedent for it.

I didn't see that Waxman's letter said whether any of those officials had been subpoenaed or not. They could have all appeared voluntarily. Just sayin'.
 

Was anyone else bothered by today's subpoena to former White House Counsel Harriett Miers? What kind of precedent is this setting? Does anyone here think that Congress can force the President to testify before them?

Isn't there a general vs. specific rule that applies here? Can a general claim of implied executive privilege ever hold up against Congress' specific needs in an investigation?
 

If the subpoena fight ends up in federal court, ``the legal precedents show the law is on our side,'' Schumer told reporters. Bush has an ``extremely weak'' claim for protecting the confidentiality of his advisers' discussions, Schumer said.

Schumer said he hoped Taylor ``would come in voluntarily and tell us everything that she knows.'' If the White House invokes executive privilege to bar her testimony, ``she will have to make a decision'' on whether to honor the claim, he said.

Taylor's lawyer, W. Neil Eggleston, signaled in an interview that she was willing to testify, barring White House objections.
-Bloomberg 6/13/2007
 

Second, it is crystal clear (just as it was when Bill Clinton sought to invoke "executive privilege" to resist Grand Jury subpoenas to his aides -- Sidney Blumenthal and Bruce Lindsey and Hillary -- in the Lewinsky investigation) that the narrowly construed doctrine of executive privilege does not entitle the President to shield the communications here from compelled disclosure. When the U.S. Supreme Court in U.S. v. Nixon (1974) rejected Nixon's invocation of that privilege to resist a Grand Jury Subpoena for the Watergate tapes, this is how the Court defined its scope (emphasis added):

The President's need for complete candor and objectivity from advisers calls for great deference from the court. However, when the privilege depends solely on the broad, undifferentiated claim of public interest in the confidentiality of such conversations, a confrontation with other values arises. Absent a claim of need to protect military, diplomatic, or sensitive national security secrets, we find it difficult to accept the argument that even the very important interest in confidentiality of Presidential communications is significantly diminished by production of such material for in camera inspection with all the protection that a district court will be obliged to provide.
Similar reasoning was invoked by District Court Judge Norma Holloway Johnson in her decision denying Clinton's attempt to rely on this privilege to resist Ken Starr's subpoenas.

Finally, Bush followers are gearing up to solemnly lecture us all on how profoundly vital "executive privilege" is and how terrible it is that Democrats are trying to invade it by demanding that political advisor Karl Rove and Harriet Miers testify under oath. But that, of course, is not what they were saying -- at all -- when Clinton attempted to use that doctrine to prevent the compelled testimony of his aides.

-Glenn Greenwald 3/20/2007
 

This comment has been removed by the author.
 

Jack Balkin highlights a distinction between the Nixon and Clinton cases and the current case that I probably ought to have included in this discussion -- namely, that the Subpoenas which Nixon and Clinton sought to resist were issued as part of a criminal investigation, whereas the forthcoming Subpoenas here are not (but instead are merely Congressional demands for information). Arguably (though far from definitely), the privilege would be given less weight in the context of a criminal proceeding. Countering that, however, is the fact that by voluntarily offering Rove and Miers for "interviews," Bush (as Balkin notes) has likely weakened his own claim of privilege in a way that Nixon and Clinton never did.

Additionally, as Balkin notes, "if Congress were to pressure the President to appoint a special prosecutor (as in the Plame case) to look into allegations of obstruction of justice in the firings, that prosecutor could probably compel testimony before a grand jury." It is the case that there are distinctions between Nixon v. U.S. and this case which the administration will almost certainly cite. Whether those distinctions are meaningful remains to be seen. - id.
 

Evidently, Mr. Clinton wants to shield virtually any communications that take place within the White House compound on the theory that all such talk contributes in some way, shape or form to the continuing success and harmony of an administration. Taken to its logical extreme, that position would make it impossible for citizens to hold a chief executive accountable for anything. He would have a constitutional right to cover up.

Chances are that the courts will hurl such a claim out, but it will take time.

One gets the impression that Team Clinton values its survival more than most people want justice and thus will delay without qualm. But as the clock ticks, the public's faith in Mr. Clinton will ebb away for a simple reason: Most of us want no part of a president who is cynical enough to use the majesty of his office to evade the one thing he is sworn to uphold -- the rule of law.

Tony Snow - Op-Ed - St. Louis Post-Dispatch, March 29, 1998

Again with the nod to Glenn who posted this first and from whom I lifted it.

Has Snowball been asked about his previous stands yet?
 

Charles:

Was anyone else bothered by today's subpoena to former White House Counsel Harriett Miers? ...

No. Despite your notions of an imperial regime answerable to nobody (and your lack of historical knowledge), the executive has commonly testified before Congress. Most of the time, this is not a problem, as they do so voluntarily even. Why, might I ask, do you think that the Dubya maladministration is so loath to have anyone question them about what they've been up to?

.... What kind of precedent is this setting?...

A good one, I'd say. But it's hardly new, so it's not much "precedent".

... Does anyone here think that Congress can force the President to testify before them?

Why not? What ever gave you the idea that the executive is not answerable to Congress? Adn whatever gave you the idea that an unanswerable preznit would be a good thing?

Cheers,
 

Garth [quoting Tony Snow; quote omitted]:

... Tony Snow - Op-Ed - St. Louis Post-Dispatch, March 29, 1998

Again with the nod to Glenn who posted this first and from whom I lifted it.

Has Snowball been asked about his previous stands yet?


Different time, different boss ... ummm, different party. IOKIYAR.

Cheers,
 

Mark and Anderson:

I fine with VOLUNTARY testimony (Gerald Ford, for instance, about his pardon of Nixon), but I am not aware of FORCED testimony before Congress of any White House COUNSEL, let alone President of the United States. Here's the subpoena issued to Harriet Miers:

http://websrvr80il.audiovideoweb.com/il80web20037/ThinkProgress/2007/Harriet%20Miers%20unstamped%20subpoena%20-%20blank%20method%20of%20service.PDF

Garth:

I believe a GRAND JURY subpoena IN A CRIMINAL CASE is distinguishable, most clearly because there is no separation of powers argument. It's kinda ironic that ANY attempt at cooperation with Congress re: off the record interviews would be used to argue waiver of any applicable privileges, but go ahead and give it your best shot.
 

Charles, I am confident that they can subpoena her; whether she has to answer their questions, I am not so sure. I have a hard time seeing Miers going to jail for contempt of Congress. The courts wouldn't touch that one with a 50-foot pole.
 

Charles:

Please learn to hyperlink (or use "tinyurl.com"); your long URL screws up the page formatting for eveyone else from that point on. That's major "not polite".

Cheers,
 

Well, Anderson, which is the violation of separation of powers then, the subpoena or the contempt charge (and referral to, you guessed it, the U.S. Attorney for prosecution)? Maybe this is sorta like "What came first, the chicken or the egg?"
 

I'm not saying there's a genuine separation of powers issue, Charles. And since I don't think the courts would get into it, I don't think we'd get an adjudication. I would be happy to be mistaken about that.

I think that in the present context, where there's no criminal indictment or grand jury, Miers's conversations with Bush himself are probably privileged.

I do not, however, think that her conversations with Rove or DOJ would be privileged.

Free legal opinion, worth what you paid for it.

And Charles, it's [a href="http://website.com"]text[/a], where the brackets are replaced by < and > signs.
 

Thanks, Anderson. If Miers's conversation with Bush himself are privileged, why not with Rove when both advisors understood that the conversation was going to be relayed only to Bush by Rove? As an attorney myself, I'm very protective about attorney-client and attorney work product privileges.
 

Repeating an unprivileged statement to a client does not make it a privileged statement, Charles, tho the fact of repeating it would I think be privileged.
 

Conversely, if Miers and Rove communicated about a privileged matter, the privilege is not lost simply because Rove, rather than Miers, communicated it to the President himself.
 

The President of the supreme court of Israel, Aharon Barak, in deciding that torture could not be justified even for purposes of securing information that might prevent terrorism, wrote the following lines: "[It] is the destiny of democracy that not all means are acceptable to it, and not all practices employed by its enemies are open before it. Although a democracy must often fight with one hand tied behind its back, it nonetheless has the upper hand. Preserving the Rule of Law and recognition of an individual's liberty constitutes an important component in its understanding of security. At the end of the day, they [add to] its strength..."

Where stand ye... ?
 

torture is a bright line question?

do we engage in it?

do we get down in the mud?

do the "dirty work" of "protecting" America.

when does America get on its moral highhorse?
 

America is a Republic, not a democracy.
 

P.S. Garth: did you see where Anderson agreed on Executive Privilege?
 

America is a Republic, not a democracy.

Great, Charles. Would you care to define your terms?
 

Well, at least I didn't start nitpicking about the word "destiny" in that court decision (or what the meaning of "is" is ; )
 

Charles, assuming that last comment is addressed to me, here is my answer. If you are going to dismiss the statement that torture is incompatible with democracy by saying that the US is a republic and not a democracy, I think it reasonable to ask you what that statement means. Other than that a republic allows torture, apparently. Israel has defined itself as a democracy. What makes us so different?
 

Charles is an out-and-out troll, tossing out provocative stoopidity, just trying to dirty up the threads.... Just check out the "evolution" thread.

FYI.

Cheers,
 

Anderson:

And Charles, it's [a href="http://website.com"]text[/a], where the brackets are replaced by < and > signs.

It's:

<a href="your-favourite-URL">(your blue-clickie-text)</a>

Just a FYI, to get a "<" in your post, do "&lt;", and to get a ">", do a "&gt;"...

Cheers,
 

Charles trys to muddy the waters (or stir up the pot) more:

... or what the meaning of "is" is

I've explained this RNC "talking point" garabage before, and Charles posted after that post, so he, if he's minimally literate and conscientious, ought not keep right on spewing that RW nonsense about the meaning of "is" lke it's some kind of prevarication.....

Cheers,
 

'democracy' means 'people power'.

'republic' means 'public thing'.

The Romans called their government a 'res publica' I suppose because they didn't have the imagination or will to designate it with a more prescriptive term.

The US constitution was modelled upon ancient and early modern misinterpretations of the Roman Republican constitution. That is to say, it is a cross-fertilization of the ancient theory of the "mixed constitution" with the actual Roman constitution.

That just goes to show that a "republic" can describe almost any form of government, including a military monarchy (as under the early Roman Empire, still called for the sake of pretense the Republic).

We've got a democracy, but only as long as people can exercise actual power over their government. That means above all the power to hold officials accountable for wrong-doing.

Seems to me, that's what the Congress is trying to achieve with these subpoenas, to expose and punish official wrong-doing.
 

Anderson:

I'm not saying there's a genuine separation of powers issue, Charles. And since I don't think the courts would get into it, I don't think we'd get an adjudication. I would be happy to be mistaken about that.

I think that in the present context, where there's no criminal indictment or grand jury, Miers's conversations with Bush himself are probably privileged.


Why? Miers wasn't Dubya's counsellor. She was the preznits's. And as the Bruce Lindsey stuff showed, there's no ACP, as such consellors to the preznit are the gummint's lawyers, not the preznit's.

Miers has no more privilege than any other executive office lawyer, which is to say basically none.

Cheers,
 

Charles:

Thanks, Anderson. If Miers's conversation with Bush himself are privileged, why not with Rove when both advisors understood that the conversation was going to be relayed only to Bush by Rove? As an attorney myself, I'm very protective about attorney-client and attorney work product privileges.

ACP covered in the prior post. Sorry, it doesn't apply (although I was happy to see that the N.Y. Times printed my LTE about ACP during the Starr chamber proceedings, and that the U.S. Supreme Court agreed with me subsequently). Foster was Clinton's personal attorney, and the ACP privilege inheres in the client, not the lawyer.

But Mier's consultations with Rove are a different beast entirely. No longer is there even any colourable claim (weak though it may be) that the preznit needs candid advice (and the supposition that he'd get better advice if no one else is looking too closely at it; the contrary is probably more accurate, that if the advice offered is to be the best possible, it ought to withstand the scrutiny of multiple eyes).

Whatever Meirs and Rove talked about should -- by all right and by any sense of justice -- withstand the cold scutiny of the full light of day.

If it doesn't, perhaps you could explain why that's a good thing, Charles.....

Cheers,
 

Charles:

Conversely, if Miers and Rove communicated about a privileged matter, the privilege is not lost simply because Rove, rather than Miers, communicated it to the President himself.

False. You want to talk about your client's affairs in a public restaurant, there's no privilege that would keep someone from testifying about what you said.

The privilege arises from the communication between the client and the lawyer (and any other agents of the lawyer that are professionally bound to keep such secret). You talk to a third party (or through a third party), and you're SOL.

Not to mention, Miers wasn't Dubya's lawyer.

Cheers,
 

Charles:

Conversely, if Miers and Rove communicated about a privileged matter, the privilege is not lost simply because Rove, rather than Miers, communicated it to the President himself.

Hey, look, you want to assert that the preznit was involved in the U.S. attorney firing scandal and such, be my guest. In fact, I'd like to see any evidence for such brought out in a court of law....

Cheers,
 

Thanks for the html tip, Arne. You evidently know more than I do re: the ACP scope, but I thought I'd seen Marty Lederman take a different view of it based on his work experience.

Certainly I'm sympathetic to the idea that if a president wants ACP, he should pay for it out of his own pocket; but I can also see that the president would have a legitimate need to get legal advice on his official duties & powers w/out its being in the newspaper the next day.
 

P.S. - Charles, having Anderson agree w/ you, plus $4, will get you a tasty cup of coffee at Starbucks.
 

Hear that silence - its (unfortunately) Kopel, Volokh, and presumably Reynolds (I can't read his crap), taking up the rights of people to bear arms - no wait, it's SILENCE!


::sigh::
 

Enlightened Layperson:

Someone noted that Israel had decided that torture could not be justified -- well, good for Israel -- I didn't dismiss the statement that torture is incompatible with democracy -- perhaps if the United States was not around to protect Israel, they would have come to a different conclusion. You really want me to start listing all the ways that the world's sole superpower is different than Israel?

Anderson:

As you noted initially, the free legal advice was only worth the price paid for it . . .
 

Anderson:

You evidently know more than I do re: the ACP scope, ...

Doubt it. IANAL. But I stayed in a Bourbon Business Hotel last night. ;-)

... but I thought I'd seen Marty Lederman take a different view of it based on his work experience.

One could argue that for lawyers working for the executive, their "client" is the executive and their communications with their "client" are privileged as against queries by other gummint branches. Or one could argue that the "client" is the gummmint and they're privileged against inquiries by the lay public. Or one could argue that their "client" ultimately is the public who own the gummint and that any communications are the proerty of the public at large.

But generally the public has no right and no power to compel disclosure of such communications; it has to be the courts or Congress that compel breach of any such ACP, and this is what we mean by ACP. Absent such power to compel, any good lawyer is ethically required to just keep his mouth shut if someone asks about lawyer-client communications, and if he does so, it doesn't end up in the papers.

Certainly I'm sympathetic to the idea that if a president wants ACP, he should pay for it out of his own pocket; ...

You mean have a personal lawyer (like Bob Bennett was to Clinton).

... but I can also see that the president would have a legitimate need to get legal advice on his official duties & powers w/out its being in the newspaper the next day.

But this is "executive privilege", not ACP. But as I stated before, I don't see why the people's preznit should get advice that can't stand the light of day (except when national security interests intervene).

Cheers,
 

Anderson:

Executive privilege (especially involving national security) is analogous to, but still a different animal from, attorney-client privilege. I think it's pretty clear with Ms. Miers as White House COUNSEL. The best test case for Dems would be whether Executive Privilege applies to the President gaining access to John Ashcroft via Mrs. Ashcroft that night. Although, we already know that oil company executives (not government employees, nor confirmed by the Senate as Presidential appointees) communicating with the Vice President are covered by Executive Privilege -- see, e.g. Walker v. Cheney.
 

Charles [to Anderson]:

Executive privilege (especially involving national security) is analogous to, but still a different animal from, attorney-client privilege. I think it's pretty clear with Ms. Miers as White House COUNSEL....

... that we're not dealng with "national security". Nor are they seeking to question her on any subject likely to touch on that.

... The best test case for Dems would be whether Executive Privilege applies to the President gaining access to John Ashcroft via Mrs. Ashcroft that night.

Ummmm, not sure I follow you. Why? And how (and who)? Could you be more explicit as to who would get questioned and about what?

... Although, we already know that oil company executives (not government employees, nor confirmed by the Senate as Presidential appointees) communicating with the Vice President are covered by Executive Privilege -- see, e.g. Walker v. Cheney.

Not true. That case turned on standing, not "executive privilege", and the court declined to decide on the merits. In Darth Cheney v. U.S. District Court (the Judicial Watch/Sierra Club case), the case turned on statutory construction.

Cheers,
 

John Dea had this to say in a recent Findlaw article.

"A witness's failure to honor a subpoena can result in a contempt citation by the Congress, and of course, contempt can bring jail time. The mere threat of contempt has been used, on countless occasions, to force a wide array of high-level Executive Branch officials to produce the requested information. No president has yet instructed an officer to defy Congress and go to jail. However, there have been a number of close calls.

Secretary of Commerce Rogers Morton turned over information regarding an Arab boycott of Israel in 1975, rather than be held in contempt. Secretary of State Henry Kissinger avoided contempt when President Ford had a member of his National Security Council provide information Congress wanted. Secretary of Interior James Watt, and Attorney General William Smith, yielded to Congress rather than face contempt. President Reagan's EPA head, Anne Gorsuch Burford, was dangerously close when the House voted, 259-to-105, to hold her in contempt, but Reagan yielded.

Attorney General Dick Thornburgh turned over documents in 1991, rather than risk contempt. White House associate counsel William Kennedy turned over notes regarding President Clinton and the Whitewater Development Corporation, rather than be held in contempt.

The list is long, and I have cited only a few examples, but no tool is more effective than a subpoena, if the House or Senate has the will to enforce it."
 

John Dean.
 

Garth:

We have seen that Dems do not even have the will to stop funding the Iraq war. Even if they do as to U.S. Attorneys, this will drag on until 2009.

Arne:

To quote someone much wiser than I: "If pigs flew over the moon, maybe I'd feel some duty to answer you." Honestly, why does it matter to you what a "knee-jerk ass, proffering flatly, and on their face, not merely lame but obvious bullshit rationalizations based upon nothing but 'I Love Bushit'" thinks?
 

Charles,

Respectfully, I disagree. If Miers and Taylor refuse to testify, I think Conyers will hold them in contempt. This year.

This is a much simpler issue than troop funding. This is corruption. So far it looks like they are still turning the screws.
 

Recall the Nixon tapes involved all sorts of privileged communications with all sorts of parties.

8-0 turn'em over.

I think Schumer is right when he says Bush's arguments in this context are weak.

SCOTUS is the wild card, but, I still think Kennedy will find it hard to be the deciding vote granting Bush the authority to sweep this under the rug.
 

Charles:

To quote someone much wiser than I: "If pigs flew over the moon, maybe I'd feel some duty to answer you." Honestly, why does it matter to you what a "knee-jerk ass, proffering flatly, and on their face, not merely lame but obvious bullshit rationalizations based upon nothing but 'I Love Bushit'" thinks?

I wasn't trying to elicit a response from you (and where'd ya get the quote?). Just pointing out that you're wrong.

Cheers,
 

Garth:

This is kinda off topic to Hamdan and Khadr, but even if Miers refuses to testify, Conyers can either to report a resolution of contempt to the House or cite her for contempt but not immediately report the resolution to the floor. In the case of subcommittees, they report the resolution of contempt to the full Committee, which then has the option of rejecting it, accepting it but not reporting it to the floor, or accepting it and reporting it to the floor of the chamber for action. On the floor of the House or the Senate, the reported resolution is considered privileged and, if the resolution of contempt is passed, the chamber has several options to enforce its mandate.

1) Inherent contempt -- under this process, the procedure for holding a person in contempt involves only the chamber concerned. Following a contempt citation, the person cited for contempt is arrested by the Sergeant-at-Arms for the House or Senate, brought to the floor of the chamber, held to answer charges by the presiding officer, and then subject to punishment that the House may dictate (usually imprisonment for punishment reasons, imprisonment for coercive effect, or release from the contempt citation.)

Concerned with the time-consuming nature of a contempt proceeding and the inability to extend punishment further than the session of the Congress concerned (under Supreme Court rulings), Congress created a statutory process in 1857. While Congress retains its "inherent contempt" authority and may exercise it at any time, this inherent contempt process has not been exercised by either House in over 70 years.

2) Statutory proceedings -- following a contempt citation, the presiding officer of the chamber is instructed to refer the matter to the U.S. Attorney for the District of Columbia . . . LOL

That law refers to the "duty" of the U.S. Attorney to empanel a grand jury for its action on the matter. But, a legitimate dispute exists over whether or not the Congress can properly compel the U.S. Attorney to take this action, as the U.S. Attorney is a member of (you guessed it) the Executive Branch and ultimately reports to the President. The Courts have been reluctant to decide this question, claiming it is a "political question" for resolution by the elected branches of government.

3) Civil procedures -- over in the Senate, there are Standing Rules which permit the Senate Legal Counsel to file a civil action against any private individual found in contempt. Upon motion by the Senate, the federal district court issues another order for a person to comply with Senate process. If the subject then refuses to comply with the Court's order, the person may be cited for contempt of court and may incur sanctions imposed by the Court. The process has been used at least six times; but the civil procedure can only be used against Executive branch officials "in certain limited circumstances."

And, this is all APART from whether any Court will quash the subpoena or rule on the merits of Executive Privilege. You were saying, again, how all of this would be resolved BEFORE 2009?
 

http://en.wikipedia.org/wiki/Contempt_of_Congress#Partial_list_of_those_held_in_contempt_since_1975
 

we shall see.

Bush at 29% means he hasn't got a lot of strategies left except to stonewall, but the pressure is already extraordinary.

the mere intent of Conyer's to seek a contempt citation will be headlines the world over.

republicans are going to abandon the president on this issue because they have to.

and once gonzo goes we may get a different tune out of the DOJ.

they must be dying to clean house and rid themselves of these mayberry machiavellis.
 

there are several methods for removing turd stains from your carpet.
 

Bush is at 29% but Congress is even LOWER!
 

congress is lower because they are disgusted at congress for not standing up to bush who they are also disgusted with.

methinks the pressure on congress to get tough is become more and more unstoppable.

that's why when Conyer's seeks contempt charges against Miers and Taylor, the public will approve and Conyer's approval will go up.

Bush's approval will only continue to go down.
 

Bush's approval ratings could go up if he commutes Libby's sentence and/or tosses the illegal immigration bill under the bus. There could also be some other national tragedy that would unite the country again.
 

Charles said:

There could also be some other national tragedy that would unite the country again.

I like this other formulation better: "Fool me once, shame on you ... <*uhhh*> ... fool me, you can't get fooled again...."

There is so much wisdom in those few words.

Cheers,
 

somehow i don't think bush's approval ratings will go up if he pardons libby.

you want to cite some polls?

it was my understanding that public consensus is guilty as charged.
 

immigration is piss in the wind compared to what else is going on.

immigration will get bush nothing.
 

bush's approval ratings are in the tank because he sucks on the war and everything else. he has not a single success to his name.

congresses approval ratings are in the dumps because they are not doing enough to clean up his messes.

two different dynamics.

of course you are right.

do you think KKKarl is hoping for another 9/11?
 

right now the national tragedy this country is facing is Bush.

the voters know it.

the Corruptlican party is getting scared.

and congress better hop to.

plenty of public will and nature abhors a vacum.
 

Nearly 70 percent of Americans oppose a presidential pardon for former White House aide Lewis "Scooter" Libby after his conviction on perjury and other charges related to a CIA agent's exposure, according to a CNN poll out Monday.

Just 18 percent said they would support a pardon for Libby, the former chief of staff to Vice President Dick Cheney, while 69 percent said they opposed the idea. Meanwhile, a narrow majority said they believe Cheney was part of a cover-up in the case.

The new poll was conducted for CNN by Opinion Research Corp. between Friday and Sunday. Pollsters quizzed 1,027 adults for the survey, which had a sampling error of 3 percentage points.

- CNN 3/12/2007
 

With regard to the four criteria, since when do the Taliban not carry arms openly? In all of the photographs I've seen from Afghanistan they do.

I also question the treatment of the Taliban as a military force, any member of which can be treated as a combatant. A more accurate characterization, it seems to me, would be as a political party that for a time gained control of a state. Removed from state power, it now operates as a political party with troops. Some Taliban are in fact combatants, some are (in areas under Taliban control) civil servants, and some are essentially rank and file party members or more hangers on. The Taliban are not all combatants any more than every government employee or rank-and-file Nazi party member in Nazi Germany was a combatant.
 

Garth:

Just 18 percent said they would support a pardon for Libby, the former chief of staff to Vice President Dick Cheney, while 69 percent said they opposed the idea. Meanwhile, a narrow majority said they believe Cheney was part of a cover-up in the case.

But ... but ... but waddabout those twelve eminent legal scholars that laid out in great detail why Scooter should walk?!?!? Isn't the public listening to any proper authority any more?

Cheers,
 

There could also be some other national tragedy that would unite the country again.

Hope springs eternal, doesn't it?

In his first interview as the chairman of the Arkansas Republican Party, Dennis Milligan told a reporter that America needs to be attacked by terrorists so that people will appreciate the work that President Bush has done to protect the country.

"At the end of the day, I believe fully the president is doing the right thing, and I think all we need is some attacks on American soil like we had on [Sept. 11, 2001]," Milligan said to the Arkansas Democrat-Gazette, "and the naysayers will come around very quickly to appreciate not only the commitment for President Bush, but the sacrifice that has been made by men and women to protect this country."

 

arne,

did you read the brief. it was pretty good, but the strategy was plainly to focus so much on the details that it provided no context.

generally, speaking I think Ashcroft/Comey made a proper delegation to him of authority to pursue a criminal investigation.

the CIPA question is very narrow and doesn't arise until scooter starts wanting to get all sorts of sensitive documents in as exhibits. recall this was part of his graymail attempt.

fitzgerald signed off on allowing scooter to use the documents pursuant to CIPA.

our twelve imminent law professors are arguing that fitzgerald could not have been given the authority to sign off on scooter's use of the documents because that authority has been delegated specifically to the AG and named Assistant AGs.

they baldly state that this authority is non-transferrable. i'm not sure. i'm inclined to believe that if it is appropriate for the AG to recuse himself and name a special prosecutor, it would defeat the purpose of the recusal if the SP lacked the power to carry out his job.

fitzgerald claims among other things that this is harmless error, not prejudicial to the defendant and he also claims authority for doing so as appropriate in the course of the trial.

there is also a question as to whether scooter's team has waived this by failing to obtain a ruling at the time and proceeding to trial.

i would be interested to know what more knowledgable people than i have to say about this.
 

our twelve imminent law professors

I like that. As in, "this isn't what the law is now, but it's what the law *will* be when the D.C. Circuit finishes with your ass, Judge!"
 

Garth:

arne,

did you read the brief. it was pretty good, but the strategy was plainly to focus so much on the details that it provided no context.


I skimmed it a bit earlier. They're trying to relitigate "independent counsels", while claiming not to be going against Morrison v. Olson. They say that in order for Morrison to apply, the facts of the case must be identical to independent counsel Morrison's (including, perhaps, his name), and that the Supes have said that Morrison doesn't pretend to lay out in detail under what other circumstances except Morrison's, such a counsel is legal.

They make a big thing about Fitzgerald's supposed "independence" from oversight, unlike Morrison, but I don't think that's a winning argument, particularly since there's no factual basis to claim that Fitzgerald acted in any way outside the scope of what a prosecutor assigned an investigation should do.

I'd like to see what the reply briefs say on this point. I understand that Walton didn't think much of the argument.

generally, speaking I think Ashcroft/Comey made a proper delegation to him of authority to pursue a criminal investigation.

Yes, they did, and they said, "do what you need to do". I don't see the constitutional infirmity in that, unless Fitzgerald did something illegal. But he didn't.
That Comey "expressly exempted the Special Counsel from complying with Justice Department policies established under 28 C.F.R. Part 600" doesn't mean that Fitzgerald did anything wrong or illegal, nor do they allege that. If there's fault, it would be with Comey, not Fitzgerald.

Their whole argument seems to be that Fitzgeral was not an "inferior" officer as required by the Appointments clause. But that's a stretch on the facts as presented.

And why this should make a difference to Libby's conviction is beyond me. This was an ordinary criminal trial, outside the fact that it was a White House guy that was the perp. Ummm, I'll amend that; it was an ordinary criminal trial, period; seems to be a lot of White House perps nowadays....

the CIPA question is very narrow and doesn't arise until scooter starts wanting to get all sorts of sensitive documents in as exhibits. recall this was part of his graymail attempt.

What's the CIPA question?

fitzgerald signed off on allowing scooter to use the documents pursuant to CIPA.

Not sure what you mean.

our twelve imminent law professors are arguing that fitzgerald could not have been given the authority to sign off on scooter's use of the documents because that authority has been delegated specifically to the AG and named Assistant AGs.

So this hurt Scooter exactly how?

they baldly state that this authority is non-transferrable. i'm not sure. i'm inclined to believe that if it is appropriate for the AG to recuse himself and name a special prosecutor, it would defeat the purpose of the recusal if the SP lacked the power to carry out his job.

fitzgerald claims among other things that this is harmless error, not prejudicial to the defendant and he also claims authority for doing so as appropriate in the course of the trial.

there is also a question as to whether scooter's team has waived this by failing to obtain a ruling at the time and proceeding to trial.


I'm not seeing this CIPA argument in the amicus brief. Is it in Libby's filings?

i would be interested to know what more knowledgable people than i have to say about this.

As would I. I'm sure that "Bart" will step up to the plate, and if not him, Charles.

Cheers,
 

Arne,

CIPA; classified information protection act.

when scooter was trying to show how busy he was by introducing sensitive, classified material, fitzgerald, pursuant to CIPA, redacted sensitive portions of scooter's desired evidence and, then, the judge admitted some of it over Fitzgerald's objection.

the current theory of libby supporters is that the power to declassify sensitive material pursuant to CIPA was delegated specifically to AG and Assistant AGs.

their theory is that this power was non-delegable and inappropriately exercised by Fitzgerald and thus a mistrial should be declared freeing scooter.

this is what the 12 imminent law professors signed their name to.

here's a link to the original pdf.

http://thenexthurrah.typepad.com/the_next_hurrah/files/101806_fitzgerald_status_report_on_cipa_6a_documents.pdf
 

The Section 6(a) Hearing

The purpose of the hearing pursuant to section 6(a) of CIPA is for the court "to make all determinations concerning the use, relevance, or admissibility of classified information that would otherwise be made during the trial...." 18 U.S.C. App. III § 6(a).

The statute expressly provides that, after a pretrial section 6(a) hearing on the admissibility of evidence, the court shall enter its rulings prior to the commencement of trial.

If the Attorney General or his/her designee certifies to the court in a petition that a public proceeding may result in the disclosure of classified information, then the hearing will be held in camera. CIPA does not change the "generally applicable evidentiary rules of admissibility," United States v. Wilson, supra 750 F.2d at 9, but rather alters the timing of rulings as to admissibility to require them to be made before the trial. Accord, United States v. Smith, supra, 780 F.2d at 1106.


the whole hubub has to do with that part about the AG's designee.

is Fitzgerald a designee and if not the case is a mistrial.

i'm doing more research.
 

the above information was taken from the Criminal Justice Manual written by the DOJ and it explicitly states or AG designee.

as for USA's and CIPA, the only limit on a USA's power is as follows.

9-90.240 Classified Information Procedures Act (CIPA)

The Counterespionage Section (CES) is responsible for the development and implementation of policies and procedures related to CIPA. All Assistant United States Attorneys and departmental attorneys prosecuting CIPA cases are required to consult with, and closely coordinate, their cases with the CES. In particular, prosecutors must:

notify CES if a district court or appellate court will not accept a substitution proposed by the government under section 6(c);

obtain the prior approval of the Solicitor General to file an interlocutory appeal under Section 7(a) of CIPA; and

immediately notify CES if it becomes likely that an intelligence agency employee will testify in any criminal case.

See the Criminal Resource Manual at 2054, for a synopsis of CIPA. CES is also responsible for the preparation of reports to Congress concerning cases in which prosecution is declined for national security reasons and reports concerning the operation and effectiveness of the act.

I believe they are arguing that because Fitzgerald did not comply with some of these requirements for a USA, then he was exercising the powers of a superior office and thus a mistrial should be declared.

He cannot argue that it harmed him.
 

Garth, clarify something for the ignorant here. Are you saying that these 12 eminent professors are calling for Liddy's conviction to be overturned because the prosector improperly granted him access to exculpatory evidence and the judge improperly admitted such evidence???

And needless to say if Liddy had been denied access to such material it or it had been kept out of evidence, that would be grounds for appeal.

Are they actually claiming something that bizarre, or am I misunderstanding you?
 

Garth:

their theory is that this power was non-delegable and inappropriately exercised by Fitzgerald and thus a mistrial should be declared freeing scooter.

Even if they're right on Fitzgerald's authority to agree to redactions and disclosure(which I think they're not), they would have to show actual harm or prejudice from this error to get a mistrial. Are they claiming they would have gotten more documents from another prosecutor (or someone more specifically authorised to agree to release of such documents)? Wasn't it the judge that ruled on what could be admitted (and which redactions were permissible)? I really don't know much of the procedural history here. It looks like Fitzgerald made a proffer, and that the judge ruled on any objections or disagreements that the defence might have had. And it all has to do with this bogus crapola of Libby that he was so snowed by work he "couldn't remember". That theory shouldn't even have been allowed by the judge; the judge should have just said that the classified documents simply weren't relevant (I think the judge allowed it just to make sure that Libby didn't have such an exclusion to hang his hat on for an appeal, however cockamamie).

this is what the 12 imminent law professors signed their name to.

Not clear from their brief.

"eminent". Maybe also imminent ... if you're planning on going to law school. ;-)

here's a link to the original pdf.

Garth: Try using hyperlinks next time (see above for how). Charles has already done the damage here, but you should get in the habit too.

http://thenexthurrah.typepad.com/the_next_hurrah/files/101806_fitzgerald_status_report_on_cipa_6a_documents.pdf

That's Fitzgerald's filing.

Umm, here's the link I had for the amicus brief. I don't see CIPA mentioned in it at all.

Cheers,
 

Garth:

Still having difficulty following Libby's lawyers' 'argument':

The Counterespionage Section (CES) is responsible for the development and implementation of policies and procedures related to CIPA. All Assistant United States Attorneys and departmental attorneys prosecuting CIPA cases are required to consult with, and closely coordinate, their cases with the CES. In particular, prosecutors must:

notify CES if a district court or appellate court will not accept a substitution proposed by the government under section 6(c);

obtain the prior approval of the Solicitor General to file an interlocutory appeal under Section 7(a) of CIPA; and

immediately notify CES if it becomes likely that an intelligence agency employee will testify in any criminal case.

See the Criminal Resource Manual at 2054, for a synopsis of CIPA. CES is also responsible for the preparation of reports to Congress concerning cases in which prosecution is declined for national security reasons and reports concerning the operation and effectiveness of the act.


So what didn't Fitzgerald do right here? And if he did something that he didn't have the power t do, how did that harm Libby?

You know, considering that appeals courts have been willing to tolerate all kinds of things as "harmless error" (including attorneys sleeping through trials!), even when the defendant is at risk of loss of life, Scooter's on rather shaky ground here....

Cheers,
 

arne,

that's the link to their petition for permission to file a brief.

not their brief.
 

Here is the very nub of their claim Arne. Note sec.6(a), the in camera review of the sensitive material libby wanted in was pursuant to an affidavit of Fitzgerald and not the AG.

"if the Attorney General certifies to the court in such petition that a public proceeding may result in the disclosure of classified information."




Sec. 6. Procedure for cases involving classified information

(a) Motion for Hearing. - Within the time specified by the court
for the filing of a motion under this section, the United States
may request the court to conduct a hearing to make all
determinations concerning the use, relevance, or admissibility of
classified information that would otherwise be made during the
trial or pretrial proceeding. Upon such a request, the court shall
conduct such a hearing. Any hearing held pursuant to this
subsection (or any portion of such hearing specified in the request
of the Attorney General) shall be held in camera if the Attorney
General certifies to the court in such petition that a public
proceeding may result in the disclosure of classified information.
As to each item of classified information, the court shall set
forth in writing the basis for its determination. Where the United
States' motion under this subsection is filed prior to the trial or
pretrial proceeding, the court shall rule prior to the commencement
of the relevant proceeding.



i've been digging too deep in the weeds. i need a beer.

ciao.
 

but note that the DOJ Manual synopsis of this specifically says AG or his/her designee.

it's all absurd but imminent people have been let loose on less. Col.North?
 

E.P.

you are correct. that is exactly what they are claiming. which is why fitz said this is at best harmless error.
 

well, i should say one the few instances they can point to where Fitz appears to exercise powers reserved wholly for the AG.

and thus he was too independent.
 

may bad arne. the link is right and the whole argument is about nothing about superior and inferior offices.

but the factual distinctions those arguments are based on are the CIPA affidavit moving towards (not mentioned in the amicus, but in some other brief. i've read too many of them i am getting confused)

and in the "apparently" over broad mandate.

the amicus brief ignores the facts in that classic illustration of when you don't have the facts, argue the law.
 

the amicus's lack of facts and context detracts mightily from it's persuasiveness.
 

Your Honor, we believe that the defendant was improperly convicted on the grounds that he was granted access to information that should have been withheld and permitted to introduce evidence that should have been excluded. We therefore request that the verdict be overturned and, on retrial, that he be denied access to classified material and not be permitted to introduce it into evidence. If he is convicted on retrial, we will promptly use these denials as grounds for appeal.

How can anyone make such an argument with a straight face?
 

Enlightened Layperson:

Your Honor, we believe that the defendant was improperly convicted on the grounds that he was granted access to information that should have been withheld and permitted to introduce evidence that should have been excluded. We therefore request that the verdict be overturned and, on retrial, that he be denied access to classified material and not be permitted to introduce it into evidence. If he is convicted on retrial, we will promptly use these denials as grounds for appeal.

"By Jove, I think you've got it!"

Fortunately for Fitzgerald, the public is not into legal intricacies, much less sophistic ones. So Libby's "friends" have resorted to other means....

Cheers,
 

I. MR. LIBBY'S CHALLENGE TO THE AUTHORITY OF THE SPECIAL
COUNSEL SATISFIES THE RE4UIREMENTS OF é 3143(b)

The government virtually concedes that, if this case is controlled by the "direction and supervision" test set forth Edmond v. United States, 520 U.S. 651, 662-63 (1997),
then Mr. Libby's Appointments Clause challenge presents (at the least) a "close"
question for appeal. It confines its discussion of Edmond largely to the margin, and
insists that Morrison v. Olson, 487 U.S. 654 (1988), "dictates" the answer in this case.
Govt's Resp.

It suggests, moreover, that whatever the scope of his powers, Mr. Fitzgerald's
theoretical removability is itself sufficient to render him an inferior officer no matter
what test applies, and that the issue is not even close. The government is wrong on all
counts.'

First, as explained in Mr. Libby's motion, the appellate court could easily
conclude that the straightforward rule announced in Edmond - rather than the ad hoc
analysis used in Morrison - provides the appropriate framework for review. While
Edmond did not expressly overrule Morrison, it made no attempt to conform to its
analysis and made a point of stating that Morrison did not "set forth a definitive test for whether an office is 'inferior' under the Appointments Clause." 520 U.S. at 661i see also
Morrison, 487 U.S. at 671 (declining to set forth a general test because on the facts of
that case the answer to the principal-inferior officer question was clear).

The Court then went on to provide a straightforward rule - stated in generally applicable terms - for making the inferior-officer determination. It gave no indication that this rule should not be applied to Appointments Clause challenges subsequently raised.

Thus, while Morrison might dictate the outcome if a court were confronting a
special prosecutor whose authority was identical to that of the independent counsel in all
material respects, it does not have the binding effect that the government posits. Because
the office at issue in Morrison and in this case differ in several significant respects, and
because Edmond and Morrison are concededly in "tension," it is at least a close question
whether Morrison applies at all. See I. Lewis Libby's Mot. to Dismiss (outlining the differences between the appointment of the
Special Counsel here and the independent counsel under the Ethics in Government Act).

Second, given the sweeping scope of his powers, the appellate court might well
conclude that the Special Counsel is a principal officer - under Edmond_Morrison.'
To take one example, unlike the independent counsel, Mr. Fitzgerald is not obligated by
any statute or regulation to comply with 7ustice Department policies and regulations. We
recognize that this Court reached a different conclusion on that question. But, as with its
other conclusions regarding the scope of Mr. Fitzgerald's power, it did so by applying
principles of agency law. The appellate court might well decide that the application of
agency law is misplaced since it assumes the answer to the question presented: whether
the Special Counsel is an agent of a principal within the Department or a principal
himself.

In considering this question, the court of appeals might instead rely on the language in Mr. Comey's February 6, 2004 letter, language that actually defines the
scope of the appointment and expressly relieves Mr. Fitzgerald of any obligation to
comply with 28 G.F.R. é 600 et seq. Those regulations require all other Special Counsel
to comply with Department policies and regulations. By virtue of Mr. Comey's letter,
Mr. Fitzgerald would appear to be exempt. The appellate court could, moreover, easily
find irrelevant the fact that Mr. Fitzgerald is obligated to comply with Department
policies in his role as a U.S. Attorney since, in his role as special counsel, he is relieved
of numerous other requirements otherwise binding on a U.S. Attorney.

The appellate court might also find significant the fact that Mr. Fitzgerald
assumed (and perhaps was ceded) significant powers under CIPA - an issue that did not
arise at all in Morrison. Section 14 of CIPA expressly requires that "[t]he functions and
duties of the Attorney General under this Act may be exercised by the Deputy Attorney
General, the Associate Attorney General, or by an Assistant Attorney General designated
by the Attorney General for such purpose and may Not be delegated to any other o_cial."
(Emphasis added.) That provision reflects Congress's clear concern that, given the
extraordinary interests at play in a CIPA case, certain crucial steps must be taken by the
Attorney General himself or other specifically enumerated members of the Department.

For example, CIPA clearly provides that it is the _ttorNey General who must sign and
submit to the court the é 6(c) "affidavit certifying that disclosure of classified information
would cause identifiable damage to the national security of the United States and

4

explaining the basis for the classification of such information." Yet, here, it was Mr.Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory
scheme. This fact alone is compelling evidence that the Special Counsel, with all of his
sweeping powers, qualifies as a principal officer under the Appointments Clause.

The government insists that it need not demonstrate "day-to-day supervision" to
establish inferior officer status under Edmond. See Resp. at 15 n. 13. That may be true.
But Edmond clearly requires "direction and supervision" by a principal officer "at some
level." As the foregoing examples show, here there is no supervision at all.

Third, contrary to the government's suggestion, Mr. Fitzgerald's theoretical
removability is not necessarily dispositive on the inferior-officer question. See Resp. at
13, 14 n. l l. While removability may be a "powerful tool for control," the court of
appeals could easily conclude that that power has no practical, and therefore no legal,
significance, where it is not coupled with some degree of supervision or direction. Here,
there is no oversight or monitoring mechanism in place and, unlike other special counsel,
Mr. Fitzgerald has no obligation to report significant developments to the Department.
What's more, in a case necessitating numerous in camera and ex parte proceedings under
CIPA, Mr. Fitzgerald's conduct cannot be effectively monitored from afar. We are aware
of no case where supervision was so wholly lacking, yet the power to remove was held
sufficient to render an officer inferior. Whether the appellate court will reach that
conclusion here is, in our view, quite doubtful. It is, at the least, a close question.

Finally, the government contends - for the first time in this filing - that even if
the Special Counsel's appointment were unconstitutional, reversal would not be required
because Mr. Libby "was not prejudiced and . . . any error was harmless." Resp. at 15 n.

5

12. The government has never before made this argument, and for good reason. Where,
as here, a federal official exercises authority in violation of federal law, his actions must
be invalidated regardless of whether specific prejudice is shown. See rouNg v. United
States e_ rel. VuittoN et Fils S._., 481 U.S. 787, 809-14 (1987) (plurality) (contempt
convictions must be reversed, regardless of any showing of harm, where district court
erroneously appoints counsel for an interested party to prosecute alleged violations of a
court order)i id. at 815-25 (Scalia, 7., concurring in the judgment) (concluding that
appointment of counsel to prosecute contempt charges exceeded district court's power
under Article III and that convictions therefore must be reversed)i NguyeN v. United
States, 539 u.s. 69, 79 (2003) _udgment of court of appeals constituted in violation of
federal law must be invalidated without assessment of prejudice)i cf. United States v.
Providence 7ourNa1 (To., 485 u.s. 693 (1988) (dismissing case for want of jurisdiction
because special prosecutor lacked the statutory authority to represent the United States in
a petition for certiorari).

Indeed, the D.G. Circuit has already indicated that a violation of
the Appointments Clause qualifies as structural error and therefore cannot be subjected to
harmless error review. See Landry v. Fed. Depositions. (Torp., 204 F.3d l 125, l 130-32
(D.G. Cir. 2000).

Nor can it be said that Mr. Fitzgerald's unsupervised and undirected exercise of
principal-officer power has not made a difference in this case. As Special Counsel, he
has made numerous crucial decisions - implicating national security, First Amendment
interests, and the appropriate use of prosecutorial resources - that are typically subject
to oversight and approval by a principal officer properly appointed by the President with
the advice and consent of the Senate. Here, by the express terms of Mr. Fitzgerald's
appointment, no such oversight or review occurred. If, as Mr. Libby contends, the
appointment of Mr. Fitzgerald and his exercise of the authority conferred upon him was
unconstitutional, the remedy is dismissal of the indictment.
 

the whole argument laid out above is their only non-evidentiary based basis of appeal. (i think)

and, i think it fails.

notable again is the lack of context.

"Because the office at issue in Morrison and in this case differ in several significant respects, and because Edmond and Morrison are concededly in "tension," it is at least a close question
whether Morrison applies at all."

this is not true. the "tension" between the two cases does not present a close question in this case. the court's reasoning in Morrison is certainly a useful lens for viewing the current case.

consider:

fitzgerald was appointed to investigate and prosecute crimes related to the leak of Plame's covert status.

if at any time, the AG disapproved of his ventures they could remove him. he could order him to report to him.

fitzgerald is the type of prosecutor you can trust with a long leash because you can trust he will use the power appropriately.

much has been made of Comey responding somewhat wafflishly to the question as to whether he could remove him. he waffled. but, i think this should be interpreted as him thinking Well, we'd better have a damn good reason to fire someone like fitzgerald in the midst of a highlevel felony prosecution.

the AG was aware of the affidavit filed by fitzgerald requesting in camera review. this and his jailing of reporters are the two main examples they use to show he was either abusing his authority or improperly acting as a superior officer.

fitzgerald was nominated and confirmed by the corrupticons currently in power. it was expected at that time that he would be given the authority to prosecute high level crimes implicating national security.

the firing power or threat of firing power is an absolute check in this case. the AG would immediately take control of the trial and can take any action he wishes. it is not Fitzgerald's fault that the AG exercised the degree of supervision he did.

recall that the AG specifically appointed Fitz to avoid the appearance of meddling. he chose to supervise lightly and placed a good deal of trust, deservedly so, in Fitzgerald to properly do the job he was tasked to do.

even under Emond he is an inferior office, dismissed at will by a superior office and required to account for his actions to a supervisor.

therefore this is wrong;

"While removability may be a "powerful tool for control," the court of appeals could easily conclude that that power has no practical, and therefore no legal,
significance, where it is not coupled with some degree of supervision or direction."

the following is trickier, but i still think common sense dictates that as the agent of the AG, who would have the power in this instance, since it is clearly within the scope of his mandate. and the AG knew about it. and this benefitted scooter. it was part of his graymail strategy to rely on sensitive documents.

"Yet, here, it was Mr.Fitzgerald who provided the é 6(c) affidavits, in apparent violation of the CIPA statutory
scheme. This fact alone is compelling evidence that the Special Counsel, with all of his
sweeping powers, qualifies as a principal officer under the Appointments Clause."


This bit is clearly untrue;

"But Edmond clearly requires "direction and supervision" by a principal officer "at some level." - TRUE

As the foregoing examples show, here there is no supervision at all." - FALSE

The AG exercises his supervisory capacity at his discretion. It is reasonable to assume he approved of all of this and felt no reason to muddy the issues with his presence. Fitz could have been removed at any time or called on the carpet to explain himself. Don't deny that couldn't happen. Otherwise he'd be fired. This is sufficient control for these facts. Thus Morrison's logic is appealing. Edmonds logic supports inferior office.

This is not a close question.

*on a side note. much has been made over the apparent scope of Comey's authorization letter. put in context it must be remembered that at the time the dept was attempting to assure the public the investigation would be fair and the intent of the letter was to hammer that fact home.

Fitzgerald could have been called to account for his actions, guided or fired. Because the AG didn't do that doesn't mean he couldn't and nothing in Comey's letter changes that.
 

and of course if Gonzales wouldn't fire Fitzgerald, Bush could replace him with someone who would.

the right's real beef here is that the AG didn't pull the plug on Fitzgerald or try to rein him in, in any way.

of course the headline; White House Fires Fitzgerald, which would have resulted is the only thing that prevented this.

ie; how could Fitz have been an out of control prosecutor of innoncent scooter, when Gonzales could have replaced him with someone who would have dropped the matter.
 

"Bart" conclusively writes:

"Given that these combatants come from a death cult, . . . ."

Er -- alleged combatants, "Bart"? Is it so difficult for you to be intellectually honest?

Okay, "given" that you were fantasizing about being a "King," therefor need not bother with such technicalities, and as such were applying the "traditional" -- under said putative "King," not under our Constitution -- punishment to those found to be guilty based upon the "evidence" first extracted by means of torture . . . do you in fact not get it that barbarism is not a class act, even in a "King"? Do you not grasp that barbarism results in barbarism -- or, if one will, "blowback"?

Are you oblivious to consequences only of your actions as a "King" maintining the "moral high ground" of obvious hypocrisy?

Those are, of course, rhetorical questions -- we already know the answers which would emanate from the beknighted pre-Enlightenment Dark Ages in which you exist, and would rather exist (so long as you are the "King" and not someone else).

With such anti-Constitutional views, you cannot possibly be a lawyer, and I won't humor your claim on that point. Not, anyway, one who has a functioning brain in his skull, or the least awareness of reason and ethics. Your notion that US law is a door which swings only one way is simply and obviously BS. Is the moral vacuity John Yoo your paymaster?
 

Charles:

Was anyone else bothered by today's subpoena to former White House Counsel Harriett Miers? ...

No. Despite your notions of an imperial regime answerable to nobody (and your lack of historical knowledge), the executive has commonly testified before Congress. Most of the time, this is not a problem, as they do so voluntarily even. Why, might I ask, do you think that the Dubya maladministration is so loath to have anyone question them about what they've been up to?

.... What kind of precedent is this setting?...

A good one, I'd say. But it's hardly new, so it's not much "precedent".

... Does anyone here think that Congress can force the President to testify before them?

Why not? What ever gave you the idea that the executive is not answerable to Congress? Adn whatever gave you the idea that an unanswerable preznit would be a good thing?

Cheers,

# posted by Arne Langsetmo : 6:10 PM

Oh, come on, Arne, it's much simpler than that. And, come on, Charles, as a Bushit supporter you should know better:

Republicans insist, as a "philosophical" premise, that the best way to ruin [oops -- sic] run gov't is as if it is a business. Do corporate CEOs have Executive Privilege (aside from the key to Executive washroom)? Of course not.

I seem to recall that Jefferson testified -- though perhaps voluntarily. And we know "God" Reagan testified (though mostly about his inability to remember, from which the cause of Alzheimer's was discerned: being a Republican). So, if "God" Reagan can testify, then vindictive little prick Bushit can testify.

But we aren't asking Bushit to testify (at least not yet); rather, we want several of his subordinates to testify, such as Rove, about his "Permanent Republican Majority" intent, and his use of the entire Federal gov't as vehicle of the Republican party by means of which to undermine the rule of law in order to determine the outcome of elections (We the people being beside the point).

There should be no objection to him testifying: he has no political secrets which need be kept, as Bushit is a lame duck. And Miers isn't a member of the disesteemed SC. And Taylor is merely a convict-Abramoff-to-Rove hack.

And Jennings is merely a serial violator of the Hatch Act.

And as Waxman makes clear, the Reoublicans investigated not only Clinton's pocket and navel lint, but also the White House email system. So the emails being withheld (not those offered by Fielding: he wouldn't offer evidence against his clients) are well within the purview of Congress to demand.

So it's simple, as the Republican's themselves have established: the Oval Office is simply the Executive suite of a corporation, not a palace moated around by kingly divine right.
 

America is a Republic, not a democracy.

# posted by Charles : 7:37 PM

Elections are the essence of democracy. The US Constitution expressly incorporates elections. The US is a democratic republic.

The claim that the US is not a democracy is a right-wing political assertion -- the intent being classist denial of suffrage to their inferiors, who by definition are those who vote for others than them -- by those who fail to distinguish between politics and law.
 

Charles:

Conversely, if Miers and Rove communicated about a privileged matter, the privilege is not lost simply because Rove, rather than Miers, communicated it to the President himself.

Hey, look, you want to assert that the preznit was involved in the U.S. attorney firing scandal and such, be my guest. In fact, I'd like to see any evidence for such brought out in a court of law....

Cheers,

# posted by Arne Langsetmo : 10:46 PM





Thanks for the html tip, Arne. You evidently know more than I do re: the ACP scope, but I thought I'd seen Marty Lederman take a different view of it based on his work experience.

Certainly I'm sympathetic to the idea that if a president wants ACP, he should pay for it out of his own pocket; but I can also see that the president would have a legitimate need to get legal advice on his official duties & powers w/out its being in the newspaper the next day.

# posted by Anderson : 11:38 PM

I don't recall the cite, but if a third party inadvertently overhears a lawyer-client consultation, the third party, not being bound by the privilege, can testify to the content of the consultation.

I don't know if it's been litigated, but I wonder what happens to the privilege if law enforcement listens to the consultation via wiretap or bug.
 

Garth:

We have seen that Dems do not even have the will to stop funding the Iraq war. Even if they do as to U.S. Attorneys, this will drag on until 2009.

# posted by Charles : 1:25 PM

It isn't lack of will. It is lack of votes because the Republicans are foot-dragging. The latter fact will begin to change in September.
 

"Bush's approval ratings could go up . . . . There could also be some other national tragedy that would unite the country again.

# posted by Charles : 2:27 PM

'Fraid not on the latter. Bushit has cried wolf too often to be trusted. And he has boasted -- without ever providing evidence -- that we haven't been attacked "again" because he's such a tough fake cowboy from Connecticut. Remember: Bushit, not Clinton, was in office on 9/11, concerning which he clearly failed to protect and defend. If he failed -- as it would be perceived (and would doubtless be the fact) -- a second time, he would be roasted with everything but jokes.

There is no way Bushit's approval rating can go anywhere but down, though he may luck out and actually not alienate the extreme right-wing anti-Americans who still swear by him, and in his behalf, therefore remain for the interminable remainder of his term at the spectacularly inflated 28 per cent.
 

[Bush] has not a single success to his name.

# posted by Garth : 4:06 PM

I beg to differ: he has a single and singular success to his name: being a perfectly consistent failure.

Any other human who made such an effort would invariably screw up a time or two and inadvertently do something right.
 

There could also be some other national tragedy that would unite the country again.

Hope springs eternal, doesn't it?

In his first interview as the chairman of the Arkansas Republican Party, Dennis Milligan told a reporter that America needs to be attacked by terrorists so that people will appreciate the work that President Bush has done to protect the country.

"At the end of the day, I believe fully the president is doing the right thing, and I think all we need is some attacks on American soil like we had on [Sept. 11, 2001]," Milligan said to the Arkansas Democrat-Gazette, "and the naysayers will come around very quickly to appreciate not only the commitment for President Bush, but the sacrifice that has been made by men and women to protect this country."

# posted by Anderson : 5:17 PM

As if we needed proof that, in order to become a Republican in charge of something, one must be an unconscious idiot appearing to be awake. And the more idiotic, the higher the thing of which to be in charge.

So, we should get attacked again as proof positive that Bushit is successfully protecting us from being attacked again.

Mmm. Snake bites tail. Republican bites own ass.

These are the people 28 per cent believe are competent to run the country.
 

In case anyone else is still reading this thread, I will at least agree that the United States is a democratic republic (for now ; )
 

In case anyone else is still reading this thread, I will at least agree that the United States is a democratic republic (for now ; )

# posted by Charles : 12:42 PM

Thank you. I'll have you voting Democratic in no time.
 

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