Hey, don’t look at me, I’ve been saying this thing was illegal and unconstitutional from the get go. And for the response that will be forthcoming from cboldt; yes, I understand that those (legality and Constitutionality) are two different things, I believe both independently apply. Joint and several culpability if you will.

– And for the response that will be forthcoming from cboldt … –

I was going to let it stand w/o comment. But since you got my attention, the comment that entered my mind was along the lines of the administration changing its legal rationale, maybe mixed with changing the contours of the surveillance.

I figure â€changing legal rationale†is why Gonzales was careful about assigning â€belief in legality†to Ashcroft. That is, I think Gonzales knows the legal rationale changed, and that the legal rational under Ashcroft was no longer operational — probably because it was crap.

As for the program being unconstitutional, I’m certainly open to that being the case. I’m just being anal about withholding an opinion until some evidence comes in that demonstrates â€unreasonableness†or programmatic searching outside of for foreign intelligence information.

And I’m still edgy about â€foreign intelligence information†being morphed into a generic justification for snooping anybody.

If only the framers of the Constitution had built in an emergency parachute making it possible for citizens to directly appoint someone to press charges when the â€officials†responsible resolutely fail to do so…

It is called â€special prosecutor†and it would still be with us, but it was abused so egregiously in the Clinton impeachment scam that they eliminated the position.

Here’s the authority…
from NYTimes Op-Ed Contributor NEAL KATYAL
IN 1999, when the Independent Counsel Act (the law that gave Kenneth Starr and Lawrence Walsh their mandates) was expiring, I was given the job of writing the new Justice Department rules for the appointment of a special prosecutor since the department would once again be responsible for overseeing such investigations. There was one hypothetical to worry about once the Independent Counsel Act lapsed: a case in which the attorney general…(is)…suspected of possible misconduct. The rules were therefore written to vest the decision about whether to appoint a special prosecutor in the top Justice Department official not embroiled in the controversy. Today, the only way to get to the bottom of the United States attorney scandal — which involved the administration’s firing of nearly 10 percent of America’s top prosecutors — is to use these rules and appoint a special prosecutor.
The nightmare has now come true.
http://www.nytimes.com/2007/03…..atyal.html

JEP, just a quibble, but I meant it when I referred to the framers, the weight of the Constitution is much stronger than more recent â€rules†which can expire.

By the way, I had the pleasure of hearing Neal Katyal speak not too long ago and was very very impressed. Somehow, I suspect he won’t make the short list for the new AG

Keep in mind that AFTER he put it â€legally aright†Judge Taylor ruled it unconstitutional and subsequently the FISA court have ruled parts illegal.

fwiw

Not that I would go so far as to say that, â€It seems rich beyond my comprehension that Goldsmith would be incredulous at being served by a subpoena.â€

phred;
â€the weight of the Constitution is much stronger than more recent â€rules†which can expire.â€

I wasn’t disagreeing with you at all, but I was expecting the very argument from our naysayer that you were expecting, also.

Actually, the point you make her is the same onb I am making. There are statutory regulations that simply can not be argued when weighed against Constitution.

But that always seems to be the tack our trolls take, to put some obscure Tom Delay era statute up against the very Constitutinal guarantees that statute defies, and arguing as if they are equal sides of a legal argument, when they are really nothing more than a legalese defense of indefensible.

They use laws as selectively as they use lies. And in this age of legal chaos and unsettled political futures, we don’t need any more obfuscation, we need sincere truth.

Mary – Don’t know if you saw this yesterday, but i was thinking of you when I wrote it:

â€[bmaz discussing seeing Goldsmith on Book TV] … Jack Goldsmith puffing up with pride over his new book. What a totally full of himself little fat fuck that guy is. It was hard to tell what impresses Goldsmith more about himself; that he was at the hub of the Bush Administration saving the world from terrorism, or that he is now saving the world from Bush. Legend in his own mind doesn’t even begin to describe this guy; Mary is absolutely right on the money with her disgust for him.

Bless you bmaz. I’m never right on the money, but I’m glad that you don’t think I’m far in left field.

I really have to wonder at how you manufacture validity for the â€in-house sup ct†OLC rulings when they are spun and spieled by someone who doesn’t actually believe that Presidents need to follow the law?

bmaz & Mary, just to add my two cents, I saw Goldsmith on Moyer’s show the other night and was most definitely struck by the sense that his book is a very serious CHA (H stands for His) attempt. On the one hand, he evidently tried to put a stop to something, but on the other he DID NOTHING to bring charges against those who had broken the law. I agree, he is a puffed up, self important weasel, and Comey’s testimony placing Goldsmith at the center of a firestorm, that in reality appears to have been a dimly lit candle, is only feeding into his super-charged Ivy League ego.

JEP – no particular affront taken. cboldt does deal in very intricate minutiae; but those details must be known, understood and in conformity with the more general arguments, else the more general arguments and profound truths fail and/or don’t hold up. I appreciate the scrutiny and feel that the aggressive positions I tend to take are that much stronger if they can stand up to it. I don’t always agree with the analysis, although I often do, but feel better off for it. And let me make one thing crystal clear, I appreciate your comments as well and have no problem with you disagreeing with cboldt; that is also a good thing. The personal attack and denigration of value of cboldt’s contribution do trouble me however.

Katie – That is exactly right. Anything that the Administration truly needed to do could have been accomplished within a legal and constitutional framework. But BushCo is to lazy, belligerent and arrogant to actually do the right thing; not tho mention it would prohibit their inappropriate uses of the surveillance they are undoubtedly making.

â€The personal attack and denigration of value of cboldt’s contribution do trouble me however.â€

if you can find a personal statement inmy criticism of cboldt, please, enlighten me.

I didn’t call cboldt a jerk or an asshole or anything personal, I said, basically, that cboldt’s arguments were often red herrings intended to defer from resolution of the real issues, and that some on this blog give cboldt too much credibility because of his/her legal gymnastics.

Find the personal comment, and tell me where it is, I’ll go back and look muyself, but I don’t think I wrote anything personal…

â€Certainly puts the members of Congress that were briefed in an even more tenuous position as well.â€

If it is anything like Bush’s WMD lies, I would guess there was some serious spinning going on in those briefings, which would provide some legitimate â€plausible deniability†defenses, especially from Democrats, who no doubt got a much more watered down version of those briefings than their Republican counterparts.

I would guess only the Republicans on those committees got the real story, so they might well be culpable. I doubt any Democrats were brought into the â€whole loop,†except maybe Elephant Joe.

greenhouse, the word â€troll†doesn’t mean anything personal…

â€Troll†means anyone who gets onto a blog whose ideology they disagree with and deliberately discourage its â€members†with negative posts. Some â€trolls†are pros working for the R’s some are just provocatuers with a penchant for negativism.

And there can’t be trolls on the right wing sites because their administrators don’t allow contrarians of any sort.

And how do you know a troll?

Read ten comments by them, and if they are all negative or provocative, if they all seem to be promoting the Republican Party line, they are probably a certifiable troll.

â€Troll†isn’t a personal insult on the blogs, it is a label.

JEP, I see where you and I differ in our criticism of Congress. You expect the Dems to be the only self-interested party in Congress that should be inclined to exercise its perogatives. I am equally baffled by the Rethugs being equally disinterested in exerting their authority. Well, ok, I’m not that baffled, which is why I refer to them as Rethugs rather than Republicans. The Republicans in Congress ceased acting in their own best interests years ago. These days they give every appearance of operating as a criminal organization, ceding their own authority to the President (who at the moment happens to be the Republican Godfather — maybe that’s a stretch, I’ve never seen the movies, but humor me).

The brilliance of John Adams’ approach to the Constitution was his faith that each branch would act in its own self interest. Congress has failed to live up to that expectation. Remember, it was the Republicans in Congress who finally told Nixon he had to go.

You seem to be viewing Congress through the party-prism (which they appear to be doing as well). But I am unrepetant in my assertion that Congress has all the tools it needs, it simply refuses to use them. The Rethugs are sinking the Republican Party all on their own without any help at all from the Dems (really, none at all). One would think there would be Republicans in Congress with sufficient self-interest to reassert their authority. But, I haven’t seen it.

You further underestimate the ability of minority parties to take advantage of parliamentary rules to keep from being railroaded by the majority. The Republicans have historically used these to good effect. The Democrats perhaps need to brush up on Robert’s Rules of Order, because they seem to be incapable of holding the line against the minority party and a lame duck President. I mean really, that is just embarrassing. Pelosi’s and Reid’s failures have been failures of leadership, not of numbers. And they better get their act together soon if they expect those numbers to change as dramatically as they hope in 2008.

â€And they better get their act together soon if they expect those numbers to change as dramatically as they hope in 2008.â€

Phred, nothing Pelosi, Reid or anyone else does is going to change the inevitability of the 2008 election. The Republicans themselves admit it with every resignation. The media won’t say it, because so many publishers are republican, but the Republican Party has been cast into utter failure by the Bush legacy, and Larry Craig represents why that will not be reversed before the next election.

Like I just said, the media won’t tellus, but all you have to do is see the resignations coming from the R’s and you know they already know what I just said was true.

Pelosi and Reid aren’t playing tiddly winks, they are doing whatever they CAN do, in the face of one of the most greedy, devious and dangerously sociopathic administrations in our shoret and glorious history as a nation.

phred: I am suspicious that the skew factor here may be redirected self interest; that is you save you own a$$ first. I am convinced that there is information â€accidentally†collected by the surveillance program that is being used to overshadow the interest in protecting one’s party, branch of gov., or the constitution.

(It looks like reading all you lawyers is affecting me; ~22 words to avoid one that begins with ’Bla’.)

I’ve said before; J.Edgar Hoover used the existence of your â€jacket†as a tool of negotiation. We saw the typical contents of the â€jackets†as he and Nixon handed them to Joe McCarthy. The lack of any substance to the accusations didn’t slow down the proceedings at all.

I take no offense with JEP’s expression of how he views my contributions here. Better to talk about the issues though. The points in my posts either stand or fall on their own (in light of other information, analysis, etc.) I’ve been known to change a position, and I’m not inclined to add -more- distraction by bellyaching when one or two readers says they find my posts distracting.

I think I have reasonable independent judgement about my own contribution v. distraction. I can think of only one poster that I’d have open warfare with today, if provoked. That person doesn’t post here.

I do appreciate the sentiments of support, but they distract from the point of the thread too. But this place will run (and read) better if I’m left to defend myself when I feel the urge.

JEP, Pelosi has the power to bring articles of impeachment up for a vote on the floor of the House. The fact she refuses to do so makes her the problem. Yes, the Rethugs lie, cheat, steal, and probably use bad language. Yes, they have done their damnedest to rig the system. But the Dems can fight back and they don’t. I simply do not agree with the helpless Reid and Pelosi meme. Real leadership requires leaders to lead. As absurd as the sentence sounds it is nonetheless true. If Pelosi wanted to end the reign of terror she could rally the caucus behind her. Perhaps she hasn’t done this because she lacks the skills. Perhaps there is no one in Congress who possesses such skills, but we are sorely in need of someone who does.

Even if you don’t agree with going straight for impeachment, there is even less reason not to enforce Congressional subpoenas. Yet, I don’t see a thing being done about Miers or Bolton or anyone else. There are myriad ways for Pelosi and Reid to flex their muscles, get the attention of their wayward members, and actually take charge. When they begin to take such action, I’ll back off my criticism, but not until I see action where thus far I have heard only words.

Phred;

If you go to the Downing Street Memo site, which is the primary place for imnpeachment supporters,or john Conyers’ old blog, or Harry Reid’s blog, or even over to KOS, way back in its infancy, and you search out my JEP moniker for old posts, you might find that we agree completely about impeachment.

Phred – I undersatand your stated concerns etc. as to not having viewed Godfather Parts I and II. Given all that, I still recommend you see them. The depth, texture, quality and significance far outweighs those factors, as strong as they may be for you; at least in my opinion. Ok, I’ll stop now.

bmaz, I respect your opinion greatly, and like I said my film afficianado friends have been harping on me about it for years. So I may actually cave in one of these days — I’ll let you know if I do

JEP, in response to your Larry Craig reference I give you Gary Hart, Bill Clinton, and John Silber (the last, an act of stupidity so huge on the part of Massachusetts Dems that it gave us Bill Weld, who arguably paved the way for MitWit). But honestly, I am not trying to get into a pissing contest with you (despite all appearances to the contrary). Earlier you wanted less discussion of legal minutiae and more talk of action, what can we do to put an end to the abuse of this administration. This in turn returns me to my earlier wish that in lieu of Congress rising to the occasion, the public could somehow step in and appoint a special prosecutor (or whatever else might have been a more appropriate option back when the Constitution was written).

I agree with you that the excesses of this administration is off the charts. I agree that the Rethugs are evil, where the Dems are merely ineffectual (incompetent, complicit, hamstrung by the math, take your pick).

I am merely pining for what we haven’t got. A leader. Someone who can step in to fix this mess. ’Cause despite my best efforts to cajole those in positions of power, no one has yet stepped up. And I am totally on board with you wanting to figure out what to do, rather than dwell on the limitations of the law. But, short of impeachment, I haven’t heard of any alternatives. I’m still hoping for something though, because the assault on our Constitution must be stopped.

pdaly — I like the way you think, so do you think some sort of petition drive along the lines of â€the undersigned appoint so-and-so to investigate the following crimes…â€, that could be interesting.

By the way, from his appearance on Bill Moyer’s program, Goldsmith seems to be in the unitary executive camp, or at least he felt the President’s powers had been excessively curtailed since Watergate and that we needed a â€strong Presidentâ€, IIRC. I cringed to hear him say it. Here’s the link if you haven’t seen it. http://www.pbs.org/moyers/jour…..ile3.html.

re: Goldsmith on Moyers

I walked in on the program after the introductions. I guessed from his comments that he was Goldsmith (with the helpful prior and informative missive on Goldsmith by Mary at this site)

To: {name here… Fitz?}
From: The Government OF the People
RE: Pitchforks & Torches

Dear Sir,

It has come to our attention that Congress has lost interest in the rule of law. The People of the United States, however, remain keenly interested in the continued fair application of the laws to all who dwell within the borders of our country, including elected and appointed members of the government in residence in Washington, D. C. It has further been made known to us that several such members of the government have been implicated in various criminal activities. Since Congress has recused itself from this politically awkward, potentially embarrassing investigation of their colleagues and friends, we the undersigned, by the power vested in us by the Constitution, have appointed you Special Prosecutor to fully investigate the crimes specified in the attached Appendix. Indeed, should you uncover more wrongdoing than that covered in the Appendix, you are hereby authorized to follow your investigation wherever it leads until the People are satisfied that the rule of law has been restored to our land.

Sincerely,
The People of the United States of America

***
How’s that pdaly?

Well, I should think after our Special Prosecutor blows through $1 billion, we should be able to arrange for whatever else we need through redirecting supplemental bills otherwise destined for those same nonbid cost plus contracts — isn’t that how it works?

Phred – very nice letter (and I didn’t watch the Godfather movies either – although I read the first book) I have horses and didn’t want to deal with that scene. As a matter of fact, through what I’m sure may be a bit of karmic balance at work, I have a horse named Filharmonic.

Re: Comey parsing – I think when pressed he specifically referred to the Watergate issue – that some in the Bush DOJ say that, â€If the President does it, it is not illegal†and that he didn’t necessarily believe that, but wasn’t going to opine as to the legal validity of that argument.

BTW, for EW – Lombardo & Co. convicted in Chicago today.

http://news.yahoo.com/s/ap/200…..GMbXdH2ocA

I’m sure defense counsel is crushed that his closing argument gambit didn’t save the day – after all, he quoted the former head of DOJ’s Office of Legal Counsel:

Ladies and gentlemen of the jury, successful leadership sometimes requires bending or breaking the law

Sad to see that the DOJ actually knows what to do with that kind of argument when they strip out the politics. It would really be easier if they were just incompetent bumblers, instead of highly educated, well trained, amoral, eyes wide open pro-torture, pro-Executive Branch crime commission advocates.

Mary — I love the karmic balance of your horse’s name. I’m all about creative spelling

PJ — any and all suggestions welcome

sojourner — The memo is obviously tongue-in-cheek, with a tip o’ the hat to Lincoln’s comment to his general along the lines of… If you’re not planning to use the army General, do you mind if I borrow it for awhile?…

In all seriousness though, there are simply no words to describe the frustration I feel standing here on the sidelines, cheering to beat the band, trying to get Congress to pick up the ball, while they pretend there isn’t one on the field. It’s beyond maddening.

JEP-â€Phred, nothing Pelosi, Reid or anyone else does is going to change the inevitability of the 2008 election.â€

Inevitability of R’s on their way out of power? I’m inclined to agree with you. Inevitability of the D’s gaining many seats? I strongly disagree. The D’s capitulation seems founded upon the political calculus of ’who else are you going to vote for?’–> inevitability. Very simple change of that calculus would occur should a new party arise, providing that other choice and someone other than a D for disgusted Republicans to vote for–similar effect for how Joementum won the election but was primaried out (a big reason why I think primary challenges are of limited value to get action). Such a scenario would appear rather unlikely, but could occur simply by having the Net-roots flex their muscle to leverage action NOW. We will be taken for granted so long as we allow ourselves to be. Besides, it may well behoove many of us to consider such a play with a new party simply to capture enough seats to prevent passage of bills that DO NOT pass the smell test.

Just a feeling I’ve got that enough folks (even on Dkos) are getting pissed-off enough to put their activist energies elsewhere.

JEP-â€Pelosi and Reid aren’t playing tiddly winks, they are doing whatever they CAN doâ€

No, they could have (just the two of them) shut the FISA-gutting-Act down, but didn’t. ’Nuf Sed.

Taechan. Yep, it’s coming to that, and Dem leadership is just putting on theater.

Change starts in the primaries.