Balkinization  

Sunday, March 29, 2009

Kirsten Gillibrand and John Yoo

Sandy Levinson

I take it that most of us would be outraged if John Yoo were named to the Senate or otherwise proposed as the (presumably Republican) candidate for the House or Senate. Why are we not equally outraged by the appointment and presumptive re-election campaign of New York Democratic Sen. Kirsten Gillibrand, who, the New York Times reports, was an avid and willing mouthpiece (other words come to mind that would be even less tactful) for the tobacco industry in the 1990s? The Times writes that "Ms. Gillibrand plays down her work as a lawyer representing Philip Morris, saying she was a junior associate with little control over the cases she was handed and limited involvement in defending the tobacco maker." This, it turns out is an out-and-out lie. Jay Bybee probably has a better claim to being de facto out of the loop on the torture memo than Ms. Gillibrand does with regard to serving an industry that has killed far more people than any of the various torturers some of us would like to see brought to bar of justice. Moreover, it is equally a lie that, as a young associate, she was forced to take the cases assigned her. According to the Times, "in an approach that was not uncommon at law firms that represented tobacco companies, lawyers at Davis Polk were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work." She apparently had no such objections.

Back to John Yoo: Whatever one thinks of his handiwork in the OLC, and like everyone else who writes for Balkinization, I am distinctly not an admirer, there can be no real doubt that Yoo was motivated by patriotism (even if it is, on occasion, the last refuge of the scoundrel). What can Gillibrand say, other than she was a thoroughly opportunistic young lawyer who, it appears correctly, perceived that her star would shine if she took the kind of work that other lawyers at Davis Polk may well have shied away from. The Times quotes "Todd Henderson, an assistant professor at the University of Chicago Law School, [who] argued that it would be unfair to assess lawyers by whom they represent. 'Nobody would want to live in a world in which lawyers are judged by the clients they take,' he said. " This is, with all due respect to Prof. Henderson, absurd, save in the limited sense that one must know more than the identity of the client before juding the lawyer. Is the lawyer, say, a public defender, who would and should certainly defend the worst axe murderer (and tobacco company) against criminal charges brought by the state. Is the lawyer so junior and vulnerable--perhaps with tons of debts--that it's simply unfair to make any judgment about what civil clients she chooses to represent? Has the lawyer chosen, as Ms. Gillibrand apparently did, to become (close to) part of a criminal conspiracy to suppress relevant evidence of her client's perjury? And so on. (I am eager to see if David Luban, one of the country's leading authorities on legal ethics, sees any merit in Prof. Henderson's argument.)

If the Democrats in New York have any self-respect (a big assumption), they will promptly find a candidate for 2010 who is, at the very least, at least as honorable as John Yoo in his/her motivations (and, one hopes, considerably more competent as as a lawyer, should the Democrats choose a lawyer).

A caveat: It is obviously true that I am basing this on the New York Times story. Perhaps it is wrong, and perhaps I will publicly apologize to Sen. Gillibrand after she gives her side of the story, with supporting documentation. But that is simply to say that the burden of proof is on her to demonstrate that the Times story is false (in the old days, she could sue for libel) and, in the absence of such proof, she should be soundly repudiated by the Democratic Party. Is it enough, incidentally, that she may have cast a vote or two in Congress against big tobacco? No, unless she offers credible evidence that it is the result of a conversion experience, perhaps based on what she saw when she was shilling for the tobacco industry, instead of just another example of rank opportunism (as with her post-appointment switch on gun control). As a model of integrity, give me John Yoo, who performed in the OLC precisely as one might have predicted from reading his pre-appointment scholarship and who has valiantly defended himself against his critics since then.


Comments:

Her name is Kirsten, not Karen.

Also, as someone who took a job at a big law firm straight out of college to pay off student loan debt, I very much hope that my moral worth or political inclinations will not judged a decade from now by some of the arguments I have been instructed to make while working at the firm. I appreciate your point that she could have chosen to decline the work, but to me this smacks a little too much of that Bush official a few years back who claimed that companies should stop doing business with law firms who accepted Guantanamo cases. Perhaps what you object to is the adversarial system of law? I think everyone is entitled to zealous representation. Even scum-sucking tobacco companies and the equally scum-sucking pharmaceutical and insurance industries.
 

More on Gillibrand here. The INBIFO stuff is a great place to start.

The NYT article is substantiated by tobacco industry documents here. Search tip: Gillibrand's maiden name Rutnik, sometimes misspelled Rutnick in the documents.

Anyone who has watched Big Tobacco over the years knows it could not be the immensely powerful and profitable predatory industry it is without the help of politicians who carry a lot of water for it. And it is very good at rewarding those who help it: money, access, connections. Gillibrand and Big Tobacco have been helping each other out for years. Gillibrand's tobacco ties are extensive and longstanding. Now Gillibrand downplays them. The facts say otherwise.

Whether Yoo is better than Gillibrand is like debating who's your favorite Menendez brother.
 

everyone is entitled to zealous representation

Sounds reasonable.

Scorched earth, endless procedural delay until your plaintiff dies, enabling a product that kills half its best customers to stay on the market, helping the manufacturer keep the profits and push the human and massive financial costs of that product onto everybody else, and enabling an industry whose business plan is addicting 12 year olds to slow poison -- that doesn't sound so reasonable.

More on services tobacco consigliori provide their clients here.
 

I read the article to learn the facts of her working situation so I could draw my own conclusions.

What a frustrating article. The authors of the NYT piece either (1) are so ignorant about how law firms work that they were unable to provide their readers of the basic facts with which their readers could form an intelligent position, or (2) are well aware of the facts and chose not to provide them so as not to dilute the authors' "take" on the issue. My sense: option (2), but neither option does the NYT much credit on that article.

John Steele
 

As hard as it is, I'll assume you're serious and not just concern trolling. You ask:

Why are we not equally outraged by the appointment and presumptive re-election campaign of New York Democratic Sen. Karen Gillibrand, who, it turns out, was an avid and willing mouthpiece (other words come to mind that would be even less tactful) for the tobacco industry in the 1990s?

Let me list a few reasons.

1. I believe John Yoo facilitated the commission of war crimes, including torture, by providing legal reasoning that he knew to be false. I don't even add the 'or should have known'. It's absolutely clear that Yoo was asked to provide ex post facto justification for actions that he knew violated international treaties, U.S. law, and the norms of civilized nations.

2. John Yoo used the authority of the OLC to undermine the rule of law. His legal opinions eviscerated the Constitution and the Magna Carta. He wrote opinions that purported to give the President of the United States the authority to seize U.S. citizens inside the country, hold them indefinitely, and torture them without any review by the courts. Just to be clear, according to John Yoo's OLC opinions, which were binding on the executive branch for years, George Bush had the right to declare you, Sandy Levinson, a non-person. He could have had you picked up any time he wanted, thrown in a military brig, and tortured. Nobody disputes that last fact.

3. John Yoo's opinions were also used to justify tapping all of your electronic communications, both voice and data. Not just yours, but everybody's. If they didn't snoop through yours, it's just because they didn't get around to it.

4. John Yoo helped establish a regime of secret law that corrupted the very functioning of our democratic system of government. I thought that that was a particular concern of yours.

Kirsten Gillibrand represented a reprehensible company. There's no real evidence that she committed any crimes, facilitated the commission of crimes, or engaged in a conspiracy to subvert our Constitution. Where exactly is the moral equivalence?
 

i'm going to give everyone here the benefit of the doubt. i have absolutely no love lost for the tobacco industry; however, pro. levinson, on this occasion, i believe you shot first, and asked questions afterwards.

for those who have ever been young associates in a law firm before, we all know quite well what happens when you are asked to work on a particular client's files by the higher ups. yes, you can back out on morality grounds at most firms, but you can fully expect once you do so to be looking for work shortly. i recall fairly early on in my career, invoking the morality clause when one of the executive partners at my firm assigned a case to me that involved representing a client i wanted nothing to do with, and found reprehensible. i was called into the partner's office, who promptly told me that he admired my morals, congratulated me upon taking such a stand, and then told me i had about ten minutes to choose between my morals and my job. i took the case.

now, i haven't a clue if this happened to sen. gillibrand; however, when she says she was a junior associate and had no say in the cases she handled, in spite of her firm's stated policy, i am willing to give her the benefit of the doubt that she is probably telling the practical truth.
 

we would be better of if we had some kind of a process going (initial investigation, Leahy truth commission, etc) re Yoo, Bybee, Gonzo, et al, because that would effectively put a stop to those just announced Spanish proceedings which cannot be good for this country however you look at it.
 

The Spanish proceedings are good for this country because it will begin to teach us that we are part of the community of nations and not the "greatest country on earth," as every American politician says over and over. Most of our torture victims were non-Americans, and the U.S. has forfeited the moral authority to try the perpetrators. Suppose, for example, that the U.S. tried them and one or more of them were acquitted. The rest of the world would understandably assume that the case had been rigged in the defendant's favor, whether or not it had been.
 

“Has the lawyer chosen, as Ms. Gillibrand apparently did, to become (close to) part of a criminal conspiracy to suppress relevant evidence of her client's perjury?”

Are you serious? From what I gather from the article, Gillibrand was involved in making privilege claims on behalf of a client that was being investigated for perjury. Is that what you mean by becoming “(close to) part of a criminal conspiracy to suppress relevant evidence of her client’s perjury”? I doubt that you would say that lawyers who represented President Clinton (including the current White House counsel) were guilty of “close to” a criminal conspiracy to suppress relevant evidence of Clinton’s perjury when they made privilege claims (some of them pretty far-fetched, such as the creative “Secret Service privilege”).

I assume you know the difference between criticizing a lawyer for her choice of clients and alleging that her representation of those clients was unethical or “close to” criminal. Whether or not Gillibrand, as a junior lawyer, had a realistic option of refusing to work for this particular client, once she began the representation she had a duty of zealous representation for the client. Lay people may not be able to make that distinction (particularly when reading an article that attempts to cast aspersions without actually providing any substantiation), but you should.
 

Sandy:

You are showing a disturbing tendency to argue that it is somehow unethical for attorneys to represent clients or to take positions with which you disagree.

Code of Professional Responsibility, Rule 14.01 - A lawyer shall not decline to represent a person solely on account of the latter's race, sex. creed or status of life, or because of his own opinion regarding the guilt of said person.
 

just for the record, I do not find John Yoo a model of integrity, consistency in preaching corrupt law maybe but integrity NO, not here.
 

A few thoughts in response:

1) I wholeheartedly agree with what phg said. While the article certainly paints Sen. Gillibrand in a very negative light, it curiously fails to mention that the "morality option" is really the "I quit" option. If Sen. Gillibrand wanted to keep her job at DP&W, she had no choice, no matter what the company's stated policy may be. Of course, it's entirely possible that she threw herself wholeheartedly into the work without even being asked, but I'm reluctant to take at face value an article that pretends biglaw works in any way other than how it actually does.

2) William Ockham makes an important point about Yoo's work constituting an attack on the structure of our government and our conception of the rule of law, which Gillibrand's work didn't do. I think there's also a qualitative difference between the victims. The people who suffered the most from Yoo's justifications were innocent Afghan men taken from their homes at gunpoint in the middle of the night after being fingered by jealous rivals in their communities who knew full well what their "tattling" would do. Those innocent men ended up in places like Guantanamo and were subject to violent torture. In contrast, even the most sympathetic of Gillibrand's victims (to the extent that her actions caused any harm separate from the decades-long legal efforts on behalf of the tobacco industry, another point differentiating her case from Yoo's watershed memos) aren't fully innocent--no one held a gun to their heads and forced them to buy tobacco. Were those people lied to by the tobacco industry? Yes. Did they suffer harm as a result of those lies? Yes. And did Sen. Gillibrand's work throw up roadblocks that made redress of that harm harder to achieve? It seems so. But none of those people were forced to buy the first pack against their will.

3) Calling Sen. Gillibrand's work on privilege and discovery a "(close to) criminal conspiracy" is a misplaced attack. If one thinks her (apparently) lead role in the attempt to systematically avoid the production of "smoking gun" documents in discovery by claiming privilege and other protections is close to criminal, one's beef is with the adversarial system as it currently exists in the US, not Sen. Gillibrand. Lawyers probably take "zealous" and "adversarial" too far, but that's a systemic problem. What Prof. Levinson calls "close to criminal" would make most defense-side lawyers close to criminal. When the problem is that widespread, the proper response is to change the system, not make examples of single cases.
 

"At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes" wrote D.C. federal judge Gladys Kessler. She pointed to how both in-house counsel and outside law firms "devised" and "coordinated" strategy, directed scientists' research in favor of the industry, destroyed documents and "took shelter behind baseless assertions of attorney client privilege."
D.C. Federal Judge Slams Lawyers for Role in Hiding Tobacco Risks

"What a sad and disquieting chapter in the history of an honorable and often courageous profession"
Shook, Hardy Smokes 'Em"

". . . Time pressures in tobacco litigation are generated mostly by the tobacco companies themselves for their own advantage, quite deliberately and on several levels. Tobacco companies sell an extraordinarily profitable but lethal product which acts by addicting their customers and then killing many of them slowly (though unpredictably) over 20 years or more. Customers are unlikely to commence expensive litigation until they develop lung cancer, by which time they typically have only a year or two to live.

"That makes tobacco litigation relatively easy to defend (especially when you have billions of dollars from a huge addicted captive market, allowing you to employ the "best", most ruthless lawyers). All you have to do is create delay and obstruction (while professing only to be asserting your ordinary rights as a litigant) until your opponent dies"

Playing for Keeps
archived
hereKen Parish's blog Law - Personal Injury.

"industry lawyers have engaged in activities having little or nothing to do with the practice of law, including gauging and attempting to influence company scientists' beliefs, vetting in-house scientific research, and prohibiting scientists from publishing potentially damaging results."
Tobacco Industry Lawyers as Disease Vectors Tobacco Control 2007;16:224-228; doi:10.1136/tc.2006.018390 (also found here.

"The involvement of tobacco industry lawyers in the selection of scientific projects to be funded is in sharp contrast to the industry's public statements about its review process for its external research program. Scientific merit played little role in the selection of external research projects. The results of the projects were used to generate good publicity for the industry, to deflect attention away from tobacco use as a health danger, and to attempt, sometimes surreptitiously, to influence policymakers."
Lawyer control of the tobacco industry's external research program. The Brown and Williamson documentsJAMA. 1995;274(3):241-247.

"a network of scientists being financed by industry lawyers to contest the evidence that secondhand smoke caused disease"
Constructing "Sound Science" and "Good Epidemiology": Tobacco, Lawyers, and Public Relations FirmsNovember 2001, Vol 91, No. 11 | American Journal of Public Health 1749-1757

Let us please not pretend that what tobacco consigliori do for their clients is what any attorney would do for his client. It goes way beyond that.
 

The issues raised by Sandy are quite provocotive and should be seriously addressed. The adversarial aspects of the practice of law can present some serious concerns. Consider that tobacco products have been around and legal for a long time, once being a significant part of our economy. Slavery was once legal, protected by our beloved Constitution. When abolitionaists and others challenged slavery, attorneys were present to represent them. These attorneys were well aware of the provisions in the Constitution protecting slavery as an institution. Supporters of slavery had their own attorneys to remind abolitionists and their attorneys of these constitutional provisions. With slavery, there were moral issues that were quite deep. There are moral issues involved with tobacco products, but perhaps to a lesser extent than with slavery. There were moral issues with alcohol as well and look what happened with Prohibition via the Constitution.

So lets get real serious on this thread. What is being raised are long standing problems with the adversarial system. I remember back in law school back in the '50s how many of my fellow students felt comfortable taking either side of a legal issue, so long as ethical rules were abided by. When we became lawyers, we could not always pick the side we liked. But whatever side we took, we learned what I have referred to often as the secret to the successful practice of law: GETTING PAID! And the pressures of GETTING PAID can at times clash with ethical standards.

(GETTING PAID is not limited to cash, as in the case of Yoo.)

So far the debates here are serious. May they continue, despite the fact we're not GETTING PAID.
 

I just read an LATimes editorial today (3/30/09):

http://www.latimes.com/news/opinion/la-ed-witness30-2009mar30,0,7983947.story

titled "Spector--and expert witnesses--on trial" that may have some relevance, at least on tobacco cases, to Sandy's issues.
 

It seems that the most significant difference between Senator Gillibrand and John Yoo in their earlier, controversial, careers, is that Gillibrand primarily was an advocate for her tobacco industry client. John Yoo's role was limited by statute to being an advisor for his government client.

When an attorney acts as an advocate for his or her client the attorney should zealously represent the client within the bounds of the law and ethics. So far, there is no evidence that Gillibrand exceeded either legal or ethical limits for her prior client.

Yoo, on the other hand, crossed over the line from advisor to advocate. As an advisor he should have limited his legal work to telling his government client what the state of the law was. His job was to offer advice on what proposed actions by his government client would pass legal and constitutional muster. Other administration attorneys, outside the Office of Legal Counsel, such as the Solicitor General, are the administration's advocates.

John Yoo also did something worse than cross over from advisor to advocate. He was so zealous in his advocacy for his client that he counseled and created rationalizations for his client to violate federal criminal statutes related to the prohibition against torture.

We can all read the clear language of these statutes. It is very difficult to believe that John Yoo, with all his legal credentials, was unaware of his involvement in a criminal conspiracy to violate the federal anti-torture statutes. Really, there is little similar ethical or legal comparison between Senator Gillibrand and John Yoo.
 

This post is extremely disturbing. Lawyers do have an obligation to represent clients zealously within the bounds of the law. When Charlie states that lawyers take "zealous" too far, perhaps the "within the bounds of the law" part should be examined. Once a lawyer has to determine what, within the bounds of the law, is "too zealous", the client is left in the perilous position of having the lawyer be the judge.
 

"Once a lawyer has to determine what, within the bounds of the law, is 'too zealous', the client is left in the perilous position of having the lawyer be the judge."

But if the lawyer is not the judge, does the client become the judge of the ethical obligations of the lawyer? This may be chicken and egg. But consider that the lawyer is also an officer of the court. In that role, the client does not control the lawyer. The lawyer may resign with this dilemma if not resolved. But as I suggest above GETTING PAID may stand in the way.

Some might suggest a procedure whereby such a dilemma might be resolved by an objective party, to protect both the lawyer and the client. But this could be cumbersome and time consuming. And who would bear the expense?

Lawyers serve as gatekeepers to protect not only their clients but the system of justice. It isn't always easy.
 

Shag, as I mentioned, perhaps not emphatically enough, I would suggest that "the bounds of the law" is the objective standard by which a lawyer's duty should be assessed. If lawyers are able to game the system, the laws (or rules) are what need to be changed, not the lawyer's level of advocacy. The bar isn't composed of a communion of saints - lawyers, like everyone else, should be able to base their actions on objective criteria.
 

I would be outraged if Yoo was elected to the House. Kirsten Gillibrand was elected to the House twice. Not outraged.

I share the various sentiments here, including of William Ockham and Nick Jackson, that you are off base here. The level of control and authority issue is particularly beneath you. Bybee (now a federal judge) and Yoo were key in making national policy. Gillibrand had some significant role in defending one bad company.

There is the distaste for tobacco companies. Yes, their products kill. We know they kill. We still allow them, millions smoking. Alcohol kills too. A drunken driver is more lethal than a smoker. This is a result of voluntary acts. It is not the same thing as torturing. Sorry.

Sen. Schumer is an enabler of the financial industry, helping the current mess. He also voted for Gonzo's replacement, aiding torture as well. But, he didn't as a junior associate defend a business millions partake in, much to the pleasure of those who use the taxes (as well as all those Native Americans) gained. No outrage there.

To add insult, the entry in effect DEFENDS Yoo. He is in fact "valiant" (strange; sounds more weasel of late ... does he support a real investigation of his acts at his university, unlike Sandy et. al.?) Charming.

We are told he was inspired by his view of patriotism. Debatable. One can say he was inspired by his view of power and career advancement. We are told his previous works guided what he did. Debatable. In the Clinton years, he opposed broad federal power that he now supports.

OTOH, maybe Ms. Gillibrand was guided by her view of how the law should work, including a good defense, and not selectively targeting the same companies that the Powers That Be have helped and continue to help (are tobacco subsidies all over? Gore used to be in the tobacco business, though a private tragedy changed things).

I'd end by noting that it would be different if in the 1990s there was a concerted effort to shun big law firms (some which did useful pro bono work) that defended big tobacco. Or, if she did in in the 2000s.

"If the Democrats in New York have any self-respect (a big assumption)"

Charming.
 

Let me add that I respect Sandy for allowing comments -- he gives and is willing to take. That's how blogs should work.

OTOH, recent entries on Scalia/homosexuals and the constitutionality of the bonus scheme both warranted feedback. They were definitely in some fashion debatable.

But, since a few people here annoy the PTB too much, and they don't have the time to regulate them as they like, no comments. Not ideal.
 

At least Levinson admits that Yoo was acting as a patriot. No big surprise at the double-standard and outright hypocrisy on display in defending Gillibrand. This should be an interesting thread. Thank you for allowing comments (whereas Balkin won't when he accuses Scalia of being a "homophobe"),
 

I'm just adding my voice to the rest of the replies here. While I agree with most everyone, I think Nick Jackson, in particular, made the critical distinction, one that Yoo's supporters try constantly to elide: between an advocate and an advisor.

I've litigated plenty of times against Biglaw firms. I've gotten orders applying the crime/fraud exception to the attorney client privilege which allowed discovery of documents they tried to shield. While I find such behavior reprehensible, at no time would I compare their behavior to that of John Yoo. Moreover, the adversary system allows such a remedy (slow and frustrating though it may be). Yoo acted without any check at all.

Whatever Gillebrand did, it doesn't begin to compare with Yoo.
 

Mark Field:

Just because Pelosi took impeachment off the table doesnt mean that wasn't a "check".
 

Shag, tobacco industry expert witnesses say the darndest things.

Extensive analysis here.

And a nice write-up on how it's done here (Am J Public Health. 2006 January; 96(1): 33–37). "Despite judicial efforts to eliminate 'junk science' from lawsuits, a well-financed defendant may succeed in persuading jurors of the epidemiological equivalent of the proposition that the earth is flat."
 

Needless to say, I dispute that Yoo was a "misguided" patriot.
 

I agree, Charles. I see no reason to let him off that easily.
 

No. Yoo is a patriot, pure and simple.
 

I was unaware it was patriotic to increase American casualties.
 

It is funny that Levinson is considered a "troll" just for pointing out an inconvenient truth about Gillibrand.
 

While it is true that much chicanery emerged in discovery concerning the toxicology evidence in the tobacco litigation's broad scope, I always found curious the attribution of obligate compulsive behavior to tobacco's consumers. There seems to be an asymmetry of the comparison, though I recognize its intended rhetorical impact, to posit intent as similar in Gillibrand and Yoo. Perhaps a better parallel might be found in offering as a similar case some of the compromised test data in other fields within toxicology. A rather dated case especially comes to mind, namely, that of Industrial BioTest. Letting manufacturer data be the sole source of toxicity statistics is a guaranteed way to skew outcome toward affirmation of compliance with legal limits. The materials IBT tested were pesticides, called in the legal literature "economic poisons".
 

P.S. to jpk: Gillibrand's legal work is responsible for more American deaths than Yoo's. In addition, we haven't had another terrorist attack on U.S. soil since 2001.
 

we haven't had another terrorist attack on U.S. soil since 2001

The right wing sure does love to rewrite history.

Anthrax. Shoe bomber. Two easily cited examples.

But please, believe whatever you like. Don't let the facts get in the way.

Gillibrand's legal work is responsible for more American deaths than Yoo's.

It's impossible to estimate Gillibrand's body count.

Yoo's may perhaps be estimated from my previous reference.

But why worry about facts?
 

To quote Levinson: "Jay Bybee probably has a better claim to being de facto out of the loop on the torture memo than Ms. Gillibrand does with regard to serving an industry that has killed far more people than any of the various torturers some of us would like to see brought to bar of justice." (Emphasis added)

The anthrax attacks were in 2001 and the shoebomber was not on U.S. soil.

Next "fact"?
 

This comment has been removed by the author.
 

Compared to Yoo:

There are 440,000 annual deaths each year which are smoking-associated (per CDC stats).

http://www.wrongdiagnosis.com/s/smoking/deaths.htm
 

The anthrax attacks were in 2001

Technically accurate but misleading; the reference was to 9/11. You are as welcome to split hairs as to ignore facts. Enjoy!

and the shoebomber was not on U.S. soil.

Likewise. Go wild! How impressed we'll all be!

an industry that has killed far more people than any of the various torturers

Absolutely true. Good quote. Here's another:

"It's no exaggeration to say that at least half of our losses and casualties in that country (Iraq) have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans." (previous reference)
 

jpk:

Weren't you the one linking to all the anti-tobacco sites, pointing out that big tobacco's policy was getting 12 year olds get addicted, and even "Whether Yoo is better than Gillibrand is like debating who's your favorite Menendez brother"?
 

As YOU (not Yoo) quoted from my 12:05 PM post: "we haven't had another terrorist attack on U.S. soil since 2001." I made ZERO reference to 9/11 as the cutoff date.
 

I wonder about the responsibility of big Wall Street law firms for the current financial mess. I don't know much about their role in AIG, credit default swaps, or derivatives in general, but it certainly seems possible and worth considering that their legal opinions, like those of Yoo, may have aided and abetted wrongdoing.
 

440,000 annual deaths each year [sic] which are smoking-associated (per CDC stats).

Correct.

Since 1964, the year the first Surgeon General's report was published, over 10 million Americans have been killed by this product.

This makes Yoo's crimes, what, no so bad?

If so, no doubt Tookie Williams should have walked. Directly responsible for just four deaths, indirectly for dozens, a few hundred tops? That's nothing compared to Big Tobacco; let the man go free. I'd love to see the right wing stand up for that.

If it's inconvenient for some to mention Gillibrand's past, it's apparently just as inconvenient for others to mention Yoo's.
 

I doubt that either Yoo or Gillibrand are "technically" guilty of ANY crime (cf. Tookie Williams R.I.P.)
 

Weren't you the one linking to all the anti-tobacco sites, pointing out that big tobacco's policy was getting 12 year olds get addicted, and even "Whether Yoo is better than Gillibrand is like debating who's your favorite Menendez brother"?

Correct.

You're welcome to debate whether Big Tobacco's deaths are prettier or uglier than American casualties in Iraq. I decline to join that debate. You'll have to find someone who thinks that scale of carnage or immediacy of revulsion provides a yardstick for moral relativism. I don't. Personally, I think the facts speak for themselves. Of course, that won't help those who aren't listening.
 

At least I didn't claim you said something about 9/11 that you didn't.
 

I doubt that either Yoo or Gillibrand are "technically" guilty of ANY crime

It is perfectly legal in this country to addict 12 year olds to slow poison.

It is perfectly legal in this country to engineer product for addiction.

It is perfectly legal to be a consiglioro to a convicted racketeer like Philip Morris.

Most of what led to the mortgage meltdown was perfectly legal.

It's perfectly legal to enable war crimes. Oh wait, maybe not.
 

At least I didn't claim you said something about 9/11 that you didn't.

You just keep telling yourself that. Along with "I know I am but what are you". And whatever makes you feel better.
 

I don't think I am better than anyone else. I simply agree with Bart DePalma (and the American Bar Association) on this one:

"A lawyer shall not decline to represent a person solely on account of the latter's race, sex, creed or status of life, or because of his own opinion regarding the guilt of said person."

Code of Professional Responsibility, Rule 14.01
 

Yeah, Gillibrand wanted to decline Philip Morris's $305 an hour, but couldn't, on account of their race.

How about we skip the fantasy there. It was getting weird anyway. The reality: Gillibrand inhaled a lot of tobacco cash and helped her client beat the rap. Now her client is her sponsor. Apparently the zeal goes both ways.
 

I think the applicable reference was to "own opinion as to guilt" part. See if you can figure this one out:

Rule 8.4 Misconduct

"It is professional misconduct for a lawyer to:

(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;

(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

(d) engage in conduct that is prejudicial to the administration of justice;

(e) state or imply an ability to influence improperly a government agency or official or to achieve results by means that violate the Rules of Professional Conduct or other law; or

(f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law."
 

"own opinion as to guilt"

Turns out to be as relevant as race here.

". . . lawyers do indeed reject clients they consider repugnant. There is a tradition of doing so in New York State legal circles going all the way back to Alexander Hamilton . . ." source.

What Gillibrand did was perfectly legal and to my knowledge violates no ABA code. Convicted racketeers get lawyers too, and usually damn good ones. "Tony, the law has to prove beyond a reasonable doubt. I'm an expert at raising that doubt." (source: pop quiz! who said and where?)
 

I have no idea who said it (Ted Olsen to "Tony" Scalia in the Observatory?).

BOTTOM LINE: I agree with Levinson: "As a model of integrity, give me John Yoo, who performed in the OLC precisely as one might have predicted from reading his pre-appointment scholarship and who has valiantly defended himself against his critics since then."
 

Oh, very funny: Scarface (1983).
 

Does anyone else want to debate whether Gillibrand is better than Yoo?
 

Scarface is correct! Sheffield offers his services.
 

No one else is up for a debate? Professor Levinson and I win by default then!
 

"Has the lawyer chosen, as Ms. Gillibrand apparently did, to become (close to) part of a criminal conspiracy to suppress relevant evidence of her client's perjury?"

Have a little courage professor. If the complaint is that Gillibrand represented a reprehensible client and that disqualifies her from holding public office in your opinion, then just say so. If the claim is that Gillibrand violated legal or ethical obligations in representing her client, then just say so. Don't give us weasly, half-assed, cowardly posts about someone "close to" becoming part of a criminal conspiracy.
 

Another Mike:

"At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes" wrote D.C. federal judge Gladys Kessler. She pointed to how both in-house counsel and outside law firms "devised" and "coordinated" strategy, directed scientists' research in favor of the industry, destroyed documents and "took shelter behind baseless assertions of attorney client privilege."

(see link above)
 

It's O.K. to "suppress relevant evidence of her client's perjury"?
 

Here's the NYT article (if you haven't read it):

http://www.nytimes.com/2009/03/27/nyregion/27gillibrand.html
 

Charles, unfortunately, I cannot get your link to open.
 

try Google or www.nytimes.com

(excerpt)

She was also among the small group of Philip Morris lawyers involved in the effort to contain the damage the defection could do to other companies in the tobacco industry, pushing to prevent Philip Morris from disclosing any documents that would violate the confidentiality of the other co-defendants.

“She clearly was more than a lowly associate lawyer on the case,” said Anne Landman, a tobacco document researcher who has testified against the industry and edits Tobaccowiki.org, a Web site that provides analysis of tobacco documents. “Philip Morris showed deep trust in her and brought her in on sensitive legal matters that were of great importance to the company.”

In the face of the vigorous counteroffensive from the industry, the Justice Department abandoned its criminal inquiry in 1999 and decided to bring a racketeering case in civil court, claiming that the cigarette companies conspired for half a century to mislead the public about the dangers of smoking.

Ms. Gillibrand did not work on the racketeering case, on which other law firms took the lead. But when Judge Gladys Kessler of Federal District Court handed down her landmark decision in that case in 2006, finding that the tobacco companies had conspired to defraud the public, she based the ruling in part on the business practices Ms. Gillibrand had delved into during the perjury case. The judge cited Philip Morris’s use of the German lab as a way for the company to suppress evidence and scolded the company for concealing information from consumers and government regulators.
 

Finally got your link to open. Can't say I'm impressed. The language immediately following your quote: "Although the majority of the incidents of lawyers' malfeasance took place decades ago, some of the wrongdoing appeared to continue into the most recent case, which was brought by the Justice Department in 1999. . . . Numerous lawyers and firms aided the tobacco industry over the years, but Kessler's opinion highlighted three firms in particular: Covington & Burling; Jacob, Medinger & Finnegan; and Shook, Hardy & Bacon."

I didn't read the 1700+ page opinion, but there appears to be nothing about Kirsten Gillibrand
or even her law firm in it. Are you arguing for guilt be association?
 

jpk also gave some helpful links to "Gillibrand" is his / her post at 6:07 PM last night.
 

As you admitted, you haven't read the opinion.

The judge cited Philip Morris’s use of the German lab as a way for the company to suppress evidence and scolded the company for concealing information from consumers and government regulators.

Let me know when you catch up.
 

BOTTOM LINE: I agree with Levinson: "As a model of integrity, give me John Yoo, who performed in the OLC precisely as one might have predicted from reading his pre-appointment scholarship and who has valiantly defended himself against his critics since then."
 

If you're waiting for me to read a 1742 page opinion, it'll be a while before I catch up!

Why don't you help me--what does the judge citing Philip Morris’s use of the German lab as a way for the company to suppress evidence and scolding the company for concealing information from consumers and government regulators have to do with Gillibrand? If you want to accuse Gillibrand of concealing evidence, then come out and say it directly.
 

Gillibrand was one of the attorneys at PD&W who was specifically involved in the German lab cover-up personally traveling there at least twice.
 

The NYT article says she interviewed scientists at the German lab. Is that the totality of your factual support that she "was specifically involved in the German lab cover-up?" I fail to see how interviewing scientists violates any ethical or legal obligations.
 

Has it even been alleged that Yoo traveled to Gitmo in order to bless that facility?
 

No (as I already noted, above, there are more links hopefully you can access). For instance:

http://legacy.library.ucsf.edu/action/search/basic?fd=0&q=rutnik
 

C'mon Charles, don't distract with Yoo. Let's focus on Gillibrand.

Did she do anything wrong in the process of representing her client? I've seen zero evidence of that. Which leads me to believe that this is all about who Gillibrand was representing, not how she was representing her client. And, if that is going to be your argument, then have the courage to make it explicitly, rather than darkly hinting at improper conduct for which there is no support.
 

The thread topic is COMPARE AND CONTRAST Gillibrand vs. Yoo (I agree with Levinson that Yoo was much better).
 

Charles, your latest link is to a database of tobacco litigation documents. There's apparently 1231 documents which Rudnik's name on it. From looking at the first few, there's nothing there (stuff like email saying please send me Rudnik's phone number). Congratulations, you've proved that Rudnik represented her client. If you have something showing legal or ethical violations by Gillibrand (nee Rudnik), then cite it.
 

Wait a minute! I am simply answering YOUR question: "Is that the totality of your factual support that she 'was specifically involved in the German lab cover-up?'"

You can't very well complain now that I gave you too much to look through. No big surprise, I guess, since you can't even be bothered to read the Judge's OPINION citing her and her client's conduct:

"At every stage, lawyers played an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes" wrote D.C. federal judge Gladys Kessler.

Kirsten Gillibrand knowingly and purposefully EVADED GOVERNMENT REGULATORS to suppress relevant evidence of her client's perjury (see various links above). If I was prosecuting that case in a court of law, maybe then you would have the right to see every one of my exhibits, tagged and catelogued for easy reference. Until then, (Levinson and) I have more than met the burden of proof in the court of public opinion.
 

See also the ACTUAL "burden of proof" on Gillibrand to prove the NYT story false (as cited by Levinson, in the old days, she could sue for libel) and, in the absence of such proof, she should be soundly repudiated by the Democratic Party.
 

Documents that merely have Rudnik's name on it hardly show ethical or legal violations by Gillibrand. Your bluster does not obscure the fact that you're just throwing a bunch of crap against the wall without any evidence of misconduct. Also, the judge's opinion did NOT cite her conduct (at least according to the article about it). Have you read that 1700+ page opinion yourself? I find it hard to believe you have done so when you cannot get the most basic of facts straight.
 

Which "basic fact(s)" do you think I don't have straight?
 

BTW: Kessler's Final Amended Opinion dated August 17, 2006 is "only" 1,652 pages long (I've read both) and only names "Leighton Coleman" and "Edward J. Cooke, Jr." from DP&W specifically, but we already KNOW that Gillibrand was involved with the Phillip Morris German lab cover-up at least (if not Reynolds as well).

http://www.tobacco.neu.edu/litigation/cases/DOJ/20060817KESSLEROPINIONAMENDED.pdf
 

I'd like to ask Gillibrand what she knows about the ETS Consultancy Program, and Ted Sanders specifically, with Philip Morris.
 

"There can be no real doubt that Yoo was motivated by patriotism"

Uh, yes there can.

First of all extreme nationalism is not the same thing as patriotism. Yoo was pushing his extremist conservative ideology -- and that brings him both psychological as well as professional benefits. Add on top of that the fact that conservative ideology is in the monetary self-interest of those with above average incomes, and there are plenty of alternative ways to account for Mr. Yoo's motivations.

Also, trying to draw a moral equivalence between torture and tobacco use is slightly ridiculous.
 

Heywood:

I would agree (see CDC stats above re: 440,000 annual deaths related to smoking whereas there have been 1-2 annual deaths related to "torture").
 

If it's not clear, I only agree with your last point about trying to draw a moral equivalence.
 

there have been 1-2 annual deaths related to "torture"

Wrong.

"The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001. How anyone can say that torture keeps Americans safe is beyond me -- unless you don't count American soldiers as Americans."

While you're citing my tobacco items, Charles, you seem somehow to have missed my torture items.
 

By analogy, jpk, U.S. solider deaths you want to link to "torture" is akin to second-hand smoking deaths. I (and the CDC stats) related to DIRECT causes. Thanks for your links though.
 

Either way, 440,000 deaths are several orders of magnitude greater than "torture" deaths.
 

Prof. Levinson is doing John Yoo a favor, by creating a slippery-slope defense.

"Look, once we let lawyers be indicted for defending torture, then the tobacco lawyers will be next ... where will it end?"

Perhaps the bottom of the slope is Prof. Levinson's disbarment for the use of bad analogies that provide a defense for John Yoo.
 

soldier deaths you want to link to "torture" is akin to second-hand smoking deaths

A fascinating analogy, deriving from an definitional exercise. Are you by any chance a lawyer?

Lincoln liked the riddle: if you call a tail a leg, how many legs does a dog have? 5? No, 4; calling a tail a leg doesn't make it a leg. Lincoln was a lawyer, and knew how definitional word games work, and how little they mean in the real world.

In the real world, the tobacco industry doesn't itself personally kill 440,000 Americans a year; it just does a lot of things that help lead to that result, such as engineering the product for addiction, spending billions making it look attractive, sexy, and cool, in particular to young people, obstructing public health measures aimed at reducing smoking, stalling or diluting policy change that helps smokers quit, and so on and so forth. You're welcome to define that as direct, indirect, or hoop-de-woop; play all the word games you like.

In the real world, U.S. torture policy likewise didn't itself kill thousands of men and women in uniform; it just led to that result "The No. 1 reason foreign fighters flocked [to Iraq] to fight were the abuses carried out at Abu Ghraib and Guantanamo. Our policy of torture was directly and swiftly recruiting fighters for al-Qaeda in Iraq. The large majority of suicide bombings in Iraq are still carried out by these foreigners. They are also involved in most of the attacks on U.S. and coalition forces in Iraq. It's no exaggeration to say that at least half of our losses and casualties in that country have come at the hands of foreigners who joined the fray because of our program of detainee abuse. The number of U.S. soldiers who have died because of our torture policy will never be definitively known, but it is fair to say that it is close to the number of lives lost on Sept. 11, 2001." You are likewise welcome to define that as indirect or whatever word you like and however you like to define it; this will do nothing to change the real world. In the real world there are thousands of maimed and killed Americans because of torture policy that Yoo helped craft.
 

If torture has to carry a comparison to everything that comes down the pike like this then I think we are trivializing torture.
Best,
Ben
 

440,000 deaths are several orders of magnitude greater than "torture" deaths

Just as thousands of deaths are several orders of magnitude greater than "1-2 annual deaths".

If several orders of magnitude makes the difference, you have your answer.
 

Anderson:

Good one!
 

jpk:

Yes, I am a lawyer. I am also grateful that Bush took the fight to the streets of Iraq rather than the streets of New York, even if it means that the U.S. "tortures" terrorists. Is that clear enough for you?
 

Another Mike:

Are you still around?
 

Heywood?
 

Perfectly clear. When you start with the premise that the folks who attacked us on 9/11 were Iraq, you can reach any number of conclusions; you're welcome to yours. I prefer reality.
 

I never said that the folks who attacked us on 9/11 were Iraq. Keep in mind that Franklin Roosevelt invaded NORTH AFRICA (of all places) after the Japanese attacked Pearl Harbor.
 

During the North Africa campaign, 2,715 United States troops were killed, 8,978 wounded, 6,528 missing.

http://en.wikipedia.org/wiki/North_Africa_Campaign#Operation_Torch
 

Ah, I see; "the fight"; more definitional games. I'll pass. Have fun! Too bad the real world couldn't care less. In the real world Bush had been planning war with Iraq before 9/11. But please, believe whatever you like, define everything just to your liking. Don't let the facts get in the way! Just define 'em out of existence!
 

The "fight" = War On Terrorism (I didn't know there was anything controversial about that definition, notwithstanding the Obama Administration now wanting to stop using that phrase. Talk about denying reality. I guess that will magically make everything better)
 

War On Terrorism

We're having a war on a tactic? Will we have a war on planes, too? That way, anyone who attacks us with a plane, we can then claim we're justified in invading any other nation with a plane.
 

ha ha, very funny. Most people know we are talking about Islamic fundamentalists here. LBJ declared a war on poverty, but that was just fine with liberals.
 

Of course, now it will be known as "Overseas Contingency Operation."
 

Since no one else wants to state the simple turth, allow me to answer Professor Levison's question as to why no liberal is equally outraged by the appointment and presumptive re-election campaign of Kirsten Gillibrand:

Political expediency.
 

I am also grateful that Bush took the fight to the streets of Iraq rather than the streets of New York
# posted by Charles : 6:04 PM


Chucklehead, did you actually think a war in the streets of NY was a possibility? Or that the Iraq Disaster did anything to prevent such a war? If we start a war on stupidity, I'm definitely looking forward to torturing you.
 

Bartbuster:

To answer your questions (ignoring the personal attack and mischaracterization of Iraq as a "disaster" since even your guy Obama has admitted the surge worked beyond anyone's -- except Bush and McCain of course -- imagination): yes.
 

we are talking about Islamic fundamentalists here.

Wrong.

Most Islamic fundamentalists want nothing to do with us and have no interest in attacking us. They don't like us, but they don't plan violence against us. They have no war with us and we have no war with them.

Bin Laden shows he's no Islamic fundamentalist every time he issues a fatwa. In Islam, only a cleric can do that, and he's not a cleric.

Imagine if the Islamic world viewed America as not so great but what's crazy is groups like Al Qaeda that spout a weird mismash of Islam to justify their violence. Imagine how much that view would help support us against our real enemies in the real world.
 

Chucklehead, if you honestly feared a war in the streets of NY, you are even dumber than I had imagined. Fortunately, you appear to be one of the few remaining dead-enders.
 

jpk:

Fine. Islamic terrorists then (fundamentalist or otherwise).

Bartbuster:

Where were you on 9/11? Obviously not at West Broadway and Vesey Street.
 

Back on topic:

Does anyone else want to actually debate whether Kirsten Gillibrand is better than John Yoo?
 

no liberal is equally outraged by the appointment and presumptive re-election campaign of Kirsten Gillibrand

Wrong. I'm one. You'll find more here.

However I'll accept that there are liberals whose double standards are on display regarding Gillibrand, same as with Willie Brown, Jesse Helms, the list goes on and on. Any experienced tobacco advocate learns that Big Tobacco is happy to cultivate power wherever it can.
 

Where were you on 9/11? Obviously not at West Broadway and Vesey Street.

# posted by Charles : 7:17 PM


Were they giving out free lobotomies at West Broadway and Vesey on 9/11? 6 weeks later I was getting onto a jet at Logan Airport. Were you still hiding under your bed?
 

No, jpk.

Any objective review of your posts (in this thread at least) make it clear that you are MUCH MORE outraged by John Yoo and torture (and he hasn't even been appointed to the Senate, yet) than by Kirsten Gillibrand and smoking.
 

Bartbuster:

No (and I've never hidden under my bed).
 

jpk:

Are you posting as "Hudson" on Daily Kos?
 

No (and I've never hidden under my bed).

# posted by Charles : 7:28 PM


You have made it quite clear that you were scared stupid by 9/11. Where did you hide?
 

Bartbuster:

I've never hidden a day in my life, including 9/11 as I was taking a deposition that day, so the answer is NO WHERE. Knowing that another attack had to be in the works is not the same thing as being "scared stupid." Curiously, you still haven't answered where YOU were on 9/11. Is that because you were you in a terrorist-training camp?
 

Again, does anyone want to debate the actual topic? Why all the silence from otherwise very vocal liberals? Arne Langsetmo, where are you?
 

Hank Gillette?
 

Fine. Islamic terrorists then

You're getting there.

In the real world, the threat you're referring to is best characterized as extremist groups and asymmetric warfare.

The fact that it was Islamic extremists on 9/11 is entirely relevant; it tells us some groups are a priority. (But then, we knew that before 9/11; "Bin Laden Determined To Strike In United States").

The threat of extremist groups in general and Islamic extremists in particular is real, and our policies over the last eight years have generally made it worse. Bummer for anyone who was at West Broadway and Vesey Street: we can not honestly say that we have reduced the threat.

It's not that everything we did was a mistake. Nor that every mistake was a policy mistake.

But our torture policy is a standout example of generating blowback so wildly counterproductive as to beggar the imagination of what could possibly have been stupider. It was a big help to extremist groups. It was also illegal, immoral, and sold to the American people by means of a constant stream of lies from the highest officials in the land. It led to the death of thousands of Americans. And it has made us less safe. Oops.
 

Knowing that another attack had to be in the works

You didn't say anything about fearing another attack, you said you feared a war in the streets of NY.

Curiously, you still haven't answered where YOU were on 9/11. Is that because you were you in a terrorist-training camp?

# posted by Charles : 7:39 PM


I was being trained in waterboarding techniques for the War on Stupidity.
 

you are MUCH MORE outraged by John Yoo and torture (and he hasn't even been appointed to the Senate, yet) than by Kirsten Gillibrand and smoking.

You're welcome to believe that. Or the contrary. I couldn't care less.

I have stated my position. I will repeat it only once: I find that like debating who's your favorite Menendez brother. You're welcome to that debate if you like. I'll pass.
 

Bartbuster:

In a terrorist-training camp?

jpk:

Thanks for your posts. As always, I would rather debate someone who actually wants to debate the thread topic.
 

Are you posting as "Hudson" on Daily Kos?

No.

Actually I've never posted on Daily Kos. Their signup was one too many identities/passwords for me to keep track of. Maybe not the best reason, but it's my reason.
 

In a terrorist-training camp?

# posted by Charles : 7:55 PM


Stupid people would probably consider it a terror camp, but I prefer to think of us as freedom fighters. And the Iraq Disaster has not stopped us. In fact, if the last election is any indication, we are winning.
 

jpk:

Are you claiming that "Hudson" on Daily Kos is one of those "liberals who would be equally outraged by John Yoo's Senate appointment"?

Bartbuster:

You are aware that Obama is keeping American troops in country for the "Iraq Disaster" and sending even more into Afghanistan, right? Don't tell Mother Sheehan!!!
 

FWIW, William Ockham, et al. on this thread, are not those kind of "liberals" (assuming they are even "liberals" at all).
 

You are aware that Obama is keeping American troops in country for the "Iraq Disaster"
# posted by Charles : 8:04 PM


Actually, I'm pretty sure he's going to remove our troops from the Iraq Disaster.
 

BTW, Bartbuster: I never said that I "feared" a war in the streets of NY. I "fear" nothing except God Almighty.
 

Don't look now:

Even after August 31, 2010, between 35,000 to 50,000 troops will remain in Iraq, Obama said.

http://www.cnn.com/2009/POLITICS/02/27/obama.troops/
 

At least SOME liberals I knew were upset about that. Kirsten Gillibrand, not so much . . .
 

Back on topic: Professor Levinson's hypothetical asserts that most of us would be outraged if John Yoo were named to the Senate or otherwise proposed as the (presumably Republican) candidate for the House or Senate. The pending question is: "Why are we not equally outraged by the appointment and presumptive re-election campaign of New York Democratic Sen. Kirsten Gillibrand, who, the New York Times reports, was an avid and willing mouthpiece (other words come to mind that would be even less tactful) for the tobacco industry in the 1990s?"
 

Thanks for your posts. As always, I would rather debate someone who actually wants to debate the thread topic.

I'm not sure I'm due the honor you give me :-) If the topic is who's worse, Kirsten or John, I'll pass. If the topic is enabling, influence, choices, costs, insider games, or the relevance of a past, sure.

For instance, Sandy and some others have implied, perhaps even stated, a view that Yoo at least never tried to hide or minimize his actions. I can't agree: what part of "secret memo" is consistent with that?

Or take the argument that unless Gillibrand committed a crime or violated ABA standards she did no wrong; what? Slavery was perfectly legal in the United States at one time. Was it right to hold slaves then? Or are some things wrong?

I hope some good may come out of the Gillibrand affair: increase public awareness of tobacco industry power and influence in government.

I can't imagine any good coming out of Woo's choices, but maybe I'm missing something ;-)
 

I "fear" nothing except God Almighty.

# posted by Charles : 8:10 PM


Given your views on torture, and the fact that you're a warmongering piece of shit, you have a lot to fear.

Fortunately for you, "God" does not appear to exist.
 

jpk (and Bartbuster):

You are missing the fact that Yoo's memo, while grotesque and incomprehensible to you, saved lives. You don't want the truth because deep down in places you don't talk about at parties, you want us on that wall, you need us on that wall.

We have neither the time nor the inclination to explain ourselves to the men who rise and sleep under the blanket of the very freedom that we provide, then question the manner in which we provide it. We would rather you just said "thank you," and went on your way. Otherwise, we suggest you pick up a weapon, and stand a post. Either way, we don't give a damn what you think you are entitled to.
 

You are missing the fact that Yoo's memo, while grotesque and incomprehensible to you, saved lives.
# posted by Charles : 8:26 PM


If you have some evidence to support that claim, you should post it. If not, you'd better hope that I'm right about "God".
 

Bartbuster:

http://en.wikipedia.org/wiki/U.S._Bank_Tower#Terrorist_target
 

Are you claiming that "Hudson" on Daily Kos is one of those "liberals who would be equally outraged by John Yoo's Senate appointment"?

Oh, probably unequally. Is equality the standard here? Is it OK if he has outrage about Gillibrand? Doesn't let her off the hook any more than he'd let Yoo off?

Would it make you feel any better if I let you know that I'd appreciate more outrage about Gillibrand from Hudson?

Would it make you feel any better if I assure you that those of us who understand exactly what Big Tobacco is buying when it invests in people like Gillibrand, can cite examples of Democratic and Repblican investments, right and left, and can also enumerate conservative principles that put us all on the other side of this product and industry?
 

Yoo's memo, while grotesque and incomprehensible to you, saved lives.

You're welcome to believe that.

The facts are otherwise.
 

The hypothetical is that Yoo was appointed, and is now running for re-election, to the U.S. Senate. Other than jpk (who somehow maintains that he / she wouldn't be any more outraged at that as about Gillibrand), does ANYONE ELSE say they would be just as outraged at that hypothetical as they are about Gillibrand?
 

http://en.wikipedia.org/wiki/U.S._Bank_Tower#Terrorist_target

# posted by Charles : 8:30 PM


Chucklehead, you lost me at "Wiki".
 

I notice that, in the first post that has allowed comments in a long time, YKW has been pissing all over the comments page again.


Guess I'll go somewhere else.

Some of the rest of you, you need to learn to ignore him ... completely and totally. If you feel you absolutely must respond, do it on his blog. Particularly when he's admitted to enjoying whipping it out and doing just what I stated above, and is proud to have managed to shut down comments here before.

Note to the proprietors: If there ever was an object lesson for banning out-and-out vandals, such is this.

Cheers,
 

jpk:

You're welcome to believe that. The facts are otherwise.

No. At best, the "facts" are that Yoo's memo (and yes "torture") saved X number of lives but maybe Y number of our losses and casualties in Iraq have come at the hands of foreigners who joined the fray because of our program of detainee abuse. Those are the FACTS. Since there's no way to quantify X or Y, short of access to highly-classified information, your best ARGUMENT is that Y > X.
 

http://www.cbsnews.com/stories/2009/03/29/politics/washingtonpost/main4901154.shtml

Chucklehead, it looks like you're headed for Hell.
 

Bartbuster:

Was the "Internets" too complicated for you?

Arne Langsetmo:

As Professor Levinson (and any objective person) can see, I am the one trying to get this thread to stay on topic and DEFENDING our gracious host's thesis. I, for one, am glad he allowed comments (and said so in my very first post on this thread). No big surprise you are not outraged by Gillibrand.

Anyone else?
 

At best, the "facts" are that Yoo's memo (and yes "torture") saved X number of lives

Where X=0
 

Bartbuster:

I am "headed for Hell" because Obama can't make up his mind about anything? Today, he thinks he is the CEO of GM.
 

P.S. to Bartbuster: large office buildings usually hold more than ZERO people (see, e.g. WTC on 9/11).
 

http://en.wikipedia.org/wiki/U.S._Bank_Tower#Terrorist_target

That's it? That's your evidence?

Here's what happened in the real world.

The skyscraper plot allegedly targeted Los Angeles's Library Tower (now US Bank Tower). After Bush mentioned it in a Feb. 9, 2006, speech, Peter Baker and Dan Eggen wrote in The Washington Post that "several U.S. intelligence officials played down the relative importance of the alleged plot and attributed the timing of Bush's speech to politics. James Gordon Meek and Kenneth Bazinet wrote in the New York Daily News: "'There was no definitive plot. It never materialized or got past the thought stage,' said a senior counterterrorism official, who has worked at the CIA and the FBI."

source.


related material


more related material

Bottom line: the Shrub administration has never substantiated its repeated claims that its torture saved lives. Shrub's stories turn out on examination to be wild exaggerations. The Bank Tower story is a fine example.
 

Was the "Internets" too complicated for you?

Dumbfuck, I was programming on the "internets" before you even knew it existed.
 

jpk:

The 9/11 attack was once at "the thought stage" too. Are you really claiming that if Bush has CONNECTED THE DOTS and stopped that attack, no lives would have been saved either?!
 

Having recently criticized Professor Balkin for not opening certain posts for comments, I would like to take this opportunity to apologize to him.

Also, as enlightening as this debate has been, I will now unsubscribe to this thread.
 

That's right, mls. Go ahead and stick your head in the sand! You were also one of those liberals who are just fine with Gillibrand, even though you would be outraged by Yoo, being a U.S. Senator.
 

Chucklehead, mls is one of your fellow rightwingnuts.
 

Defending a Democrat?!
 

The 9/11 attack was once at "the thought stage" too

Nice try. We weren't attacked by thought on 9/11. Turns out the Lensman series is fiction. And '24' is a TV show. And, to put a button on it, the foiled Bank Tower attack was a Shrub story. Never happened. No plot, no attack prevented, no lives saved.

And now, however enlightening this has been, I too must sign off.
 

That's fine, jpk. You don't have to answer by my question if you don't want to.
 

""Why are we not equally outraged by the appointment and presumptive re-election campaign of New York Democratic Sen. Kirsten Gillibrand, who, the New York Times reports, was an avid and willing mouthpiece (other words come to mind that would be even less tactful) for the tobacco industry in the 1990s?""

Um, because the tobacco industry wasn't kidnapping foreigners, dragging them off to the middle of nowhere, and forcing them to smoke against their will?

I'm violently allergic to tobacco, my life was hell until it became unpopular, but I really get tired of the notion that there's no choice involved.

That's the same reasoning behind the war on drugs, and we really don't want to expand that insanity.
 

Brett:

Please see links above re: 12 year olds and 440,000 annual deaths. What Big Tobacco lacks in upfront extraordinary rendition, it more than makes up in volume.
 

Every "torture" detainee made the choice of being in the wrong place at the wrong time.
 

Does anyone TODAY want to debate the thread topic?
 

I never said that the folks who attacked us on 9/11 were Iraq. Keep in mind that Franklin Roosevelt invaded NORTH AFRICA (of all places) after the Japanese attacked Pearl Harbor.

Charles is one of the most dishonest commenters I have encountered, which, given the cesspool at the Volokh blog, is saying a lot.

Germany declared war on the United States.

Germany occupied much of North Africa as of 1942.

The U.S. invaded North Africa because it offered the prospect of an unopposed landing that would allow U.S. troops to fight the Germans in a theater where the Germans suffered severe logistical problems.

There is no analogy whatsoever to the invasion of Iraq after 9/11. None. Nada. Zilch.
 

Chucklehead has no choice but to lie. There is no honest way to defend the Iraq Disaster.
 

Anderson:

"Unopposed"?! Did you not see the KIA numbers above? According to Code Pink's logic, FDR shouldn't have invaded anywhere. I admit that no analogy is perfect, but I take it this means you don't want to debate the thread topic?

Anyone else?
 

Charles, an "unopposed" landing, as you know, is one where the invading forces do not have to fight their way onto the beach.

It does not mean there is no fighting afterwards.

Again, you are simply dishonest, and it's unfortunate that you, like Bart, take pleasure in making comment threads revolve around you. I assume you are compensating for some deficiency in your personal life; perhaps the alternative would be more harmful.
 

Anyone want to debate the thread topic then?
 

Does anyone think that Sandy Levinson is being "dishonest" in posing the following analogy:

"I take it that most of us would be outraged if John Yoo were named to the Senate or otherwise proposed as the (presumably Republican) candidate for the House or Senate. Why are we not equally outraged by the appointment and presumptive re-election campaign of New York Democratic Sen. Kirsten Gillibrand . . ."
 

This comment has been removed by the author.
 

The closest someone got to that was the accusation by William Ockham: "As hard as it is, I'll assume you're serious and not just concern trolling."
 

Brother.

A more ignorant post it would be hard to imagine. Except for most of the comments.

All individuals and entities have a right to legal competent representation. Lawyers are obligated to do their best for clients, whether or not the lawyers agree with their objectives. You don't judge lawyers by their clients, and all attorney codes of ethics specifically declare that representing a client isn't an endorsement of the client's morals, politics, motivations or anything else. CLarence Darrow defended Leopold and Loeb. He didn't admire them or endorse what they did. He was a lawyyer.

I hope cigarette companies get sued into bankruptcy, but they deserve the best legal representation available to make sure it occurs justly and legitimately. Get it?

Brother.
 

Jack:

By "all individuals and entities" you are not excluding the Attorney General of the United States, right?
 

I, too, worked for a law firm that repsented a tobacco company in litgation. I QUIT after 9 months because I could not stand the guilt.

I then went to work in public service defending squirrels and trees for $25 K a year even though I had huge student lonas.

I suffered financially for a long time, but it was worth it. I can look myself in the eye in the mirror when I brush my teeth. Something I could not do during the 9 months I worked on the tobacco litigation.

Yes, mafia bosses get lawyers, too. And if Sen Gillibrand had defended mafia bosses, other than through assigned counsel programs, that would also be a fit subject for assesing her judgement and her moral choices.

It's true that refusing to work on a case out of moral conviction means you prorably will get cut before you make partner, but for some people, making partner is not worth selling out your soul.
 

The ABA is a trade association that has a vested interest in protecting lawyers from any and all public criticism. It is simply silly to say that one can't ever judge a lawyer by extended years spent defending particular clients in civil litigation (and trying to prevent litigation through, say, aggressive discovery, throwing up smokescreens and all the devices of modern Rambo litigation).

I greatly admire Clarence Darrow, who, after all, was a criminal defense lawyer. And I have no hesitation in admiring lawyers,including my former colleague Michael Tigar, who represented the person accused of being the war criminal "Ivan the Terrible" against the US's attempt to deport him. But I would be appalled if Michael, or anyone else I admired, decided to enlist in the fight to preserve big tobacco through thick and thin, and I don't think I would be betraying my identity as a lawyer--and a long-time teacher of "professional responsibility" in doing so.
 

Now, wait a minute! Sandy, I have defended your position on this thread (to my detriment, as you can see, above), but are you saying that everyone deserves legal competent representation except for Big Tobacco?! That can't be right.
 

Under the category of the more things change, the more they remain the same...

The Washington Post reports:

Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster.

For those of you who contend that Yoo was involved in a conspiracy to rewrite the law, this is the kind of evidence you need to be able to offer to prove the charge.

I don't suppose any of those who demanded that Yoo be disbarred for unethical behavior will now demand the same thing of Holder and the attorneys that ignored the plain text of the Constitution in this case?

If not, then I presume you will offer an ends justify unethical behavior argument on behalf of Holder.
 

BTW, I have no problem with the President's attorneys drafting persuasive legal opinions in support of the President's policy preferences. If the DoJ attorneys want to make fools of themselves by ignoring the plain text of the Constitution rather than resigning, that is their personal professional problem, not a crisis of law.
 

The ABA is a trade association . . .

Yep. Which is why it's silly to pretend, as so many have, that if ABA ethical standards weren't violated, there's no problem.

Clearly, ABA standards in no way interfere with playing "an absolutely central role in the creation and perpetuation of the Enterprise and the implementation of its fraudulent schemes".

The fact that Philip Morris's lawyers violated no ABA standards simply tells us how low ABA's standards are.

You want to be a consiglioro, ABA sanction is one thing you'll never have to worry about.
 

jpk:

That's not true, since Big Tobacco lawyers aren't supposed to violate Rule 8.4 (quoted above).
 

"defending squirrels and trees"

It's good to know that Douglas' position in Sierra Club v. Morton has borne fruit.
 

New thread on the topic, but comments closed?

http://balkin.blogspot.com/2009/04/more-on-sen-gillibrand-and-evaluating.html
 

Now comments are on (but what's up with the headline font?).
 

Bart:

The Washington Post reports:

"Justice Department lawyers concluded in an unpublished opinion earlier this year that the historic D.C. voting rights bill pending in Congress is unconstitutional, according to sources briefed on the issue. But Attorney General Eric H. Holder Jr., who supports the measure, ordered up a second opinion from other lawyers in his department and determined that the legislation would pass muster."

For those of you who contend that Yoo was involved in a conspiracy to rewrite the law, this is the kind of evidence you need to be able to offer to prove the charge.


Here's more context:

"In deciding that the measure is unconstitutional, lawyers in the department's Office of Legal Counsel matched a conclusion reached by their Bush administration counterparts nearly two years ago, when a lawyer there testified that a similar bill would not withstand legal attack.

"Holder rejected the advice and sought the opinion of the solicitor general's office, where lawyers told him that they could defend the legislation if it were challenged after its enactment.

"Democratic and Republican Justice Department veterans said it is unusual, though not unprecedented, for the solicitor general, who backs the administration's position before the Supreme Court, to be asked to weigh in before a case makes its way into a courtroom. Typically, legal scholars said, the solicitor general is asked whether the office can plausibly defend a law in court, rather than to opine directly on the legality of a piece of legislation. The office was asked for the opinion several weeks ago, before the Senate confirmed Elena Kagan as the new solicitor general."

So Holder, asking a different question, came to a different result.

You can't call the OLC politicised here (the gravamen of the complaint against Bybee/Yoo) when the SG lawyers came to a different conclusion.

And Bart's hardly in a position to talk about the AG choosing which advice to follow given his past comments on the job of the OLC.

But one question is unanswered above: Who were the OLC people that gave this opinion? Were they holdovers from the Dubya maladministration? AFAIK, Johnsen hasn't been confirmed, and perhaps others in the department as well.

Of course, the real meat of the matter is the content and the quality of the various memos and opinions. Were they persuasive? Grounded on proper analysis of the law? Even if lawyers disagree, it's hard to call one or the other incorrect in advance, if that's the only criterion. The complaint about the "torture memos" is not that they came out one way, but that they did so in such a patently dishonest and unprofessional manner.

Cheers,
 

Arne:

So Holder, asking a different question, came to a different result.

Please. Holder's follow up question asked if there were any arguments in favor of DC voting rights that were not completely frivolous? All of John Yoo's work can easily fit under that one inch tall hurdle. Indeed, Yoo was working in largely undefined territory while a high school student reading the text of the Constitution can resolve the Holder question in the negative in about five minutes.

You can't call the OLC politicised here (the gravamen of the complaint against Bybee/Yoo) when the SG lawyers came to a different conclusion.

You must be kidding. Holder asked bis attorneys to rewrite their opinion, not to mention the constitution, to offer an argument supporting Obama and the Dem political policy position.

There is no evidence of similar AG intervention with Yoo or Bybee.
 

Bart:

[Arne]: So Holder, asking a different question, came to a different result.

Please. Holder's follow up question asked if there were any arguments in favor of DC voting rights that were not completely frivolous? All of John Yoo's work can easily fit under that one inch tall hurdle. Indeed, Yoo was working in largely undefined territory while a high school student reading the text of the Constitution can resolve the Holder question in the negative in about five minutes.


You forget that the SG's job is to argue in court, and the OLC's is to provide dispassionate and complete analysis. They didn't ask the SG office if they could argue Yoo's nonsense. In fact, they did everything in their power to avoid any court review, much less public airing, of Yoo's "theories".

As for "resolv[ing] ... in the negative", even Ken Starr has said that the measure should pass constitutional muster.

[Arne]: You can't call the OLC politicised here (the gravamen of the complaint against Bybee/Yoo) when the SG lawyers came to a different conclusion.

You must be kidding. Holder asked bis attorneys to rewrite their opinion, not to mention the constitution, to offer an argument supporting Obama and the Dem political policy position.


No. That is false. They didn't "rewrite" anything. A different group answered a different question. Even Jonathan Adler, in dumping on Holder, at least allowed that this is what happened (as did the WaPo article). See my comments on the VC thread.

There is no evidence of similar AG intervention with Yoo or Bybee.

Huh? What's that got to do with the price of tea in Sri Lanka? As I pointed out, the two situations are different ... but not in a way the redounds to Dubya's (or Yoo's) credit.

Cheers,
 

arne:

What were the two questions and how did the second substantively differ from the first?

There was only one question: Does the Constitution allow the District of Columbia to elect a representative and two senators despite the fact that this territory is not a state.

There is also only one answer provided by the text of the Constitution: No.

The issue was the same when Justice correctly answered the question no and later when Holder sought and obtained a yes answer from a different group of attorneys to support Mr. Obama's preferred political outcome.
 

Bart:

What were the two questions and how did the second substantively differ from the first?

Read for understanding, "Bart", and see if you can refrain from making up your own "straw man" questions:

[Bart]: There was only one question: Does the Constitution allow the District of Columbia to elect a representative and two senators despite the fact that this territory is not a state.

[I'd note that this is in fact an extreme "straw man" because the legislation in question doesn't give DC two senators; "Bart" just made that sh*te up]

You answer your "straw man" with an emphatic "There is also only one answer provided by the text of the Constitution: No." But, as I pointed out, even such as Ken Starr (former Bush I SG) have said quite the opposite.

Your word here isn't Wisdom From Gawd, much as you style yourself a Super-Supreme Court.

Cheers,
 

arne:

It appears that the original report upon which you relied claiming that Holder reframed the question and received a second opinion from a second group of DoJ attorneys was typical unnamed source lying CYA spin.

The WP now reports that Holder himself rewrote the Constitution to determine that DC gets congressional representation in Congress and unilaterally overruled the OLC. The so called "second opinion" from a "second group of attorneys" was in fact Holder running his decision by a on old buddy at the Clinton DoJ, Deputy Solicitor General Neal K. Katyal.

BTW, Holder is also lying that the prior OLC opinion was not really an opinion and cannot be released to the public. The OLC drafters disagree.

Holder has not only again proven himself to be a political whore for presidential policy (see the pardon CYA), but a liar and hypocrite as well.

I await your latest tap dancing on behalf of this lying political whore.
 

Go get 'em, Bart!
 

"Bart" DeMakesThingsUp:

From your link:

Whether that conversation was part of a bid by the country's chief law enforcement officer to gather expert advice or an override of a legal conclusion with which he disagreed is the subject of debate among veterans of the department and on Capitol Hill.

Holder, a D.C. resident for more than two decades, is a supporter of voting rights in the city, as is President Obama, who co-sponsored similar legislation two years ago when serving in the Senate.

The bill pending before the House would give the District one full seat in that chamber and add another seat for Utah. Sponsors said the measure could receive a floor vote as early as May.

The constitutionality of the D.C. voting rights legislation has been debated for years. The American Bar Association and former U.S. appeals court judges Patricia M. Wald and Kenneth W. Starr say it passes muster. But the nonpartisan Congressional Research Service and a band of Justice Department lawyers from Republican and Democratic presidential administrations dating back decades concluded the opposite.

As attorney general, Holder has broad authority to make judgments about the law and to reject conclusions from the department's Office of Legal Counsel, an elite team of lawyers who often have the final word on legal issues in the executive branch. Overriding an OLC ruling is rare, former Justice Department officials said.


You said:

["Bart"]: The WP now reports that Holder himself rewrote the Constitution to determine that DC gets congressional representation in Congress and unilaterally overruled the OLC.

Where does the Washington Post article say that? If you're going to say what they said, say what they said. If you're going to put your "interpretation" on it, explain that this is your interpretation of what they said, and explain how you got that from what they actually did say. To say they "reported" such is simply false. Particularly when they present a "he said/she said" of expert opinion on the issue in question.

You also say:

["Bart"]: BTW, Holder is also lying that the prior OLC opinion was not really an opinion and cannot be released to the public. The OLC drafters disagree.

Where did they [the OLC drafetrs] say that?

This: "But Republican lawyers who have worked at the department said that a signed OLC memo generally is a finalized document." does not avail you.

["Bart"]: I await your latest tap dancing on behalf of this lying political whore.

If there's any lying around here, it's thanks to you, "Bart".

Cheers,
 

PRESS RELEASE:

Norton Says Holder Went "Above and Beyond" in Deciding that the
D.C. House Voting Rights Act is Constitutional

April 1, 2009

WASHINGTON. D.C. - Congresswoman Eleanor Holmes Norton (D-DC), who has argued before the Supreme Court today said that Attorney General Eric Holder had gone to the highest source available [ed. HIMSELF and Obama] to learn whether the District of Columbia House Voting Rights Act should be defended by the Department. The Congresswoman's statement follows:

"Courts exercise a strong presumption in favor of the constitutionality of congressional legislation and go to great lengths to avoid finding an act of Congress unconstitutional. At the same time, the U. S. Department of Justice virtually always defends the constitutionality of acts passed by Congress and signed by the President. However, determining whether the constitutionality of the D.C. House Voting Rights Act could be defended, Attorney General Eric Holder has gone further and has sought, in advance, the opinion of the "10th Justice," the Solicitor General of the United States, who will have direct responsibility for defending the constitutionality of the D.C. voting rights bill before the Supreme Court. President Bush, however, had relied on the opinion of his appointees in the Office of Legal Counsel, who have no similar responsibility, to give him the answer he desired. No one expected the Bush Office of Legal Counsel to come down on the side of the bill's constitutionality after years of loud Republican political opposition to the bill.

Holder was confronted with divided opinion, not unusual for an unprecedented bill. Prominent Republican scholars, such as former Court of Appeals Judge Kenneth Starr and Professor Viet Dinh, President George Bush's Attorney General for Legal Policy (under Attorney General John Ashcroft), have testified that the bill is constitutional, while George Washington University constitutional law professor Jonathan Turley argues strongly that the bill is unconstitutional.

Faced with these and other competing views, Holder went to the highest source, short of the Supreme Court. Other divisions of the Justice Department cannot claim greater expertise or greater objectivity on constitutional questions."
 

Arne:

What part of "Holder . . . determined for himself that the measure is constitutional" are you having trouble understanding? Maybe Bart can help you with the big words.
 

Arne:

1) Before I waste my time embarrassing you further, go read the damn article again for content this time. Holder's unilateral action is discussed in the first paragraphs and the OLC position later in the article.'

2) The fact that the ABA supports rewriting the Constitution to achieve a desired Dem policy result is hardly new. Check out their positions on the Second Amendment, the EPC and abortion.

3) Starr's argument is clever, but unavailing. Starr notes that the House Composition Clause states that the House of Representatives "shall be composed of members chosen ... by the people of the several states," and then soft pedals this clear limitation by admitting that this provision does not provide the authority to create a House seat in the District. Starr then shifts gears and argues that Congress via its legislative power over the District may create this seat. The problem with this contention is that it grants Congress the power to amend the limitation in the House Composition Clause out of existence. Article V does not permit Congress to unilaterally amend the Constitution via legislation and essentially determine its own composition.
 

"Bart" DeStillDisingenuous:

1) Before I waste my time embarrassing you further, go read the damn article again for content this time. Holder's unilateral action is discussed in the first paragraphs and the OLC position later in the article.'

What I pointed out is that you were dishonest in your claims about the article (see above, where I laid out my objection). Nothing in those first two paragraphs cures that infirmity. The WaPo made no such statement as you made ("Holder himself rewrote the Constitution to determine that DC gets congressional representation in Congress and unilaterally overruled the OLC"), and saying they said so (or "reported" that) is simply a lie.

As the article states, when asked, Katyal told Holder "the measure could be defended in court" (and this is the "second question").

2) The fact that the ABA supports rewriting the Constitution to achieve a desired Dem policy result is hardly new. Check out their positions on the Second Amendment, the EPC and abortion.

So says the "Eleventh Supreme Court Justice", our esteemed "Bart" DeArrogantSOB. Funny they don't have your picture on their web site.

3) Starr's argument is clever, but unavailing. Starr notes that the House Composition Clause states that the House of Representatives "shall be composed of members chosen ... by the people of the several states," and then soft pedals this clear limitation by admitting that this provision does not provide the authority to create a House seat in the District. Starr then shifts gears and argues that Congress via its legislative power over the District may create this seat. The problem with this contention is that it grants Congress the power to amend the limitation in the House Composition Clause out of existence. Article V does not permit Congress to unilaterally amend the Constitution via legislation and essentially determine its own composition.

So you disagree. But to say that your conclusion is unassailable and unarguable is simply wrong. In fact, I may agree that the provision is unconstitutional (although I'd have to put in more effort than just spouting my top-of-my-head opinion here, you know, like looking at the briefs and supporting cases). But that's just my opinion, and I'm not such an arrogant azo to suggest on a blog that my opinion is unarguably better than that of a former SG, and is -- even more -- the only possible conclusion.

Then there's your mistake (or lie) about "two senators", and your lie here: "The OLC drafters disagree."

You're a dishonest piece of work.

We understand you disagree with Holder and don't like him. That opinion and $3.50 may get you a latte. Your lies will get you scorn and derision, and a reputation for dishonest rhetoric (as we here already know).

Cheers,
 

I would note the subtle irony of someone holding OLC opinions as infalllible and sacrosanct when theOLC itself recently declared (in memos) its own memos to be in error and not to be relied upon. From this it's obvious that the OLC isn't always "right".

Perhaps had we superiors at the time of the first memos that understood that OLC memos aren't like hall passes or indulgences, and should be questioned if they seem too extreme, we wouldn't have such a kerfluffle as we do right now....

Cheers,
 

Fine, Arne. Bart "misstated" the two Senators part (although the legislation hasn't been passed and it could indeed change to include that, who knows anymore where The One is involved). You "misstated" that Holder did not determine for himself that said representation is Constitutional.
 

arne:

Which part of Holder overriding OLC's memo to find that that the legislation creating a House seat for the District was "constitutional" did you now understand? The only way Holder can find the legislation "constitutional" is to rewrite the House Composition Clause's express requirement that the House of Representatives "shall be composed of members chosen ... by the people of the several states." Arguing that the WP did not report those facts in precisely the way I did does not mean that they did not report those facts.

BD: What were the two questions and how did the second substantively differ from the first?

There was only one question: Does the Constitution allow the District of Columbia to elect a representative and two senators despite the fact that this territory is not a state.

arne: As the article states, when asked, Katyal told Holder "the measure could be defended in court" (and this is the "second question").


Holder asking a friend whether his answer to the first and only substantive question will be sanctioned in federal court under Rule 11 for being frivolous is not a second and different substantive question. It is part of the original inquiry.

BD: Starr's argument is clever, but unavailing.

So you disagree. But to say that your conclusion is unassailable and unarguable is simply wrong


Argue with the express wording of the Constitution until you are blue in the face. The House of Representatives "shall be composed of members chosen ... by the people of the several states" is about as crystal clear and unambiguous as it gets.

Tellingly, the WP did not report a single legal basis for Holder's reversal of his OLC. However, it did report:

Holder, a D.C. resident for more than two decades, is a supporter of voting rights in the city, as is President Obama, who co-sponsored similar legislation two years ago when serving in the Senate.

In short, Holder reversed his OLC and proposes to rewrite the Constitution purely to advance his own preferred political policies. This blatant disregard for the law makes Holder unqualified to serve as AG.

Your defense of Holder's bald faced politicization of Justice after accusing the Bush DoJ of the same thing with far less evidence makes you a complete hypocrite. When I made my original post on the subject, the rest of the hypocrites had the good judgement to keep their keyboards in check. None of the professors who regularly condemned the Bush DoJ issued a peep about Holder. However, I knew I could depend upon you to make my point.
 

Bart:

Don't forget the "slippery slope" argument that, once D.C. has a fully-voting Representative, it should get two Senators, Electoral College votes, etc., etc.
 

"Bart" DeStllClueless:

Which part of Holder overriding OLC's memo to find that that the legislation creating a House seat for the District was "constitutional" did you now understand?

Here's what I objected to (for the third time, you bozo):

["Bart"]: "The WP now reports that Holder himself rewrote the Constitution to determine that DC gets congressional representation in Congress and unilaterally overruled the OLC."

I stated that the WaPa did not "report" that, and that you're just making sh*te up. To beat you around the head with a 2X4, this is your putting your own spin on what they said (and inaccurately doing so), when they in fact reported that there was a difference of opinion and were hardly concluding what you claimed. See if you can figure out what part of what you said (they said) was most objectionable.

The only way Holder can find the legislation "constitutional" is to rewrite the House Composition Clause's express requirement that the House of Representatives "shall be composed of members chosen ... by the people of the several states."...

Says you. But WTF cares? It's not relevant to what the WaPo said, because they don't give a damn about your opinion.

... Arguing that the WP did not report those facts in precisely the way I did does not mean that they did not report those facts.

Arguing they did not say what you said they said is factual. They didn't. Period.

BD: What were the two questions and how did the second substantively differ from the first?

There was only one question: Does the Constitution allow the District of Columbia to elect a representative and two senators despite the fact that this territory is not a state.

[Arne]: As the article states, when asked, Katyal told Holder "the measure could be defended in court" (and this is the "second question").

Holder asking a friend whether his answer to the first and only substantive question will be sanctioned in federal court under Rule 11 for being frivolous is not a second and different substantive question....


I doubt that Holder asked that. If you have evidence to the contrary, out with it. But that's beside the point; the Washington Post made no claim that Holder asked that.

BD: Starr's argument is clever, but unavailing.

[Arne]: So you disagree. But to say that your conclusion is unassailable and unarguable is simply wrong

Argue with the express wording of the Constitution until you are blue in the face. The House of Representatives "shall be composed of members chosen ... by the people of the several states" is about as crystal clear and unambiguous as it gets.


Look, "Bart", you clueless berk. I'm not saying you're wrong on this point, and I'm not saying that Holder's wrong. What I said is that the WaPo didn't reach any such conclusion either, despite your claim they did "report" such. Why you look to the WaPo as mandatory authority if the first place is beyond me, but whatever....

Tellingly, the WP did not report a single legal basis for Holder's reversal of his OLC. However, it did report:

Holder, a D.C. resident for more than two decades, is a supporter of voting rights in the city, as is President Obama, who co-sponsored similar legislation two years ago when serving in the Senate.


You note that they didn't say on what legal basis the OLC came to their conclusions either.

And for good reason. Unlike you, they aren't psych[ot]ic, and can't see the thoughts in other people's minds, and prefer to report facts.

In short, Holder reversed his OLC and proposes to rewrite the Constitution purely to advance his own preferred political policies....

See comment immediately above.

... This blatant disregard for the law makes Holder unqualified to serve as AG.

See my last post for the proper response to this.

Your defense of Holder's bald faced politicization of Justice after accusing the Bush DoJ of the same thing with far less evidence makes you a complete hypocrite....

No. You have no evidence to support such a claim. For one, I make no representation about Holder's motives. But do you think that Starr and Viet Dinh are also in on the Great Dummycrat Political Conspiracy™ that you've so cleverly uncovered?

... When I made my original post on the subject, the rest of the hypocrites had the good judgement to keep their keyboards in check. None of the professors who regularly condemned the Bush DoJ issued a peep about Holder. However, I knew I could depend upon you to make my point.

That you're still an eedjit that can't understand simple English?

And a liar? There's still that "two senators" bit and the "The OLC drafters disagree" comment.

Care to retract those claims?

Cheers,
 

HD kaliteli porno izle ve boşal.
Bayan porno izleme sitesi.
Bedava ve ücretsiz porno izle size gelsin.
Liseli kızların ve Türbanlı ateşli hatunların sikiş filmlerini izle.
Siyah karanlık odada porno yapan evli çift.
harika Duvar Kağıtları bunlar
tamamen ithal duvar kağıdı olanlar var
 

Post a Comment

Older Posts
Newer Posts
Home